[1998] PNGLR 326

PAPUA NEW GUINEA

[national court of justice]

FRANK MALARA

V

TURIAI MARAVILA;
HERMAN ITAGAU;
GULF PROVINCIAL EXECUTIVE COUNCIL; and GULF PROVINCIAL GOVERNMENT

waigani: woods j
12 March and 28 May 1998

Defamation - Unauthorised action by an Administrator against a Treasurer – Treasurer an officer of the Secretary for Finance – Statements went further than mere complaints about work performance - Statements went to his basic qualifications and ability – Unauthorised and defamatory – Not privileged under Defamation Act. 

Facts

The plaintiff, a provincial treasurer, was suspended, for a lengthy period, by a provincial administrator, allegedly for, inter alia, making financial commitments without proper authority; lack of financial management capability; willfully disregarding or disobeying lawful direction and being inefficient and incompetent. These allegations were contained in an official internal memo and disciplinary charge sheet, which were widely circulated. In an action for defamation, the defendants claimed privilege under s 11(a) of the Defamation Act, which provides:

"it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith –

(a)	by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates…"

Held

1.	That the provincial administrator had no legal authority to discipline the plaintiff as that power rested with the Secretary of the Department of Finance.

2.	The statements of allegations regarding the plaintiff’s suspension were unauthorized and defamatory. These statements were not mere complaints about performance of his work but hit directly at his professional training and ability. They could not be regarded as privileged under s 11 of the Defamation Act. Toogood v Spyring (1834) 1 CM & R 193 (per Parke, B) applied.

Cases cited

Harrison v Bush (1855) 5 E & B 348.
Pullman v Hill Ltd [1891] 1 Q B 528.
Toogood v Spyring (1834) 1 CM & R 193.
Whiteley v Adams (1863) 15 CB 418.

Counsel

S Soi, for the plaintiff.
J Milang, for the defendant.

28 May 1998

Woods j. The plaintiff is suing the defendants for remarks made by them either individually or on their behalf which remarks it is alleged were malicious and defamatory.

The plaintiff was at the time the remarks or statements were made, employed in the Provincial Government as First Assistant Secretary, Division of Finance, Department of Gulf, and the position becoming the position of Treasurer under the Organic Law on Provincial and Local-Level Government. His employment in that position being effected by the National Department of Finance. 

On 8th August 1996 the plaintiff was suspended by the first defendant, at that time the Administrator of the Department of Gulf. Whilst I query the power of an Administrator to suspend an officer of the plaintiff’s position employed by the National Government that is not the immediate issue here although it may have some bearing on whether it was within the first defendant’s powers or duty to make the statements complained about. The main issue here is that in the internal memo of suspension, which was circulated widely, the first defendant made a number of statements about the failure of the plaintiff in the performance of his duties:

(a)	that you … 

(b)	that you randomly made financial commitments without reference to the Provincial Executive Council or the Administrator for approval;

…

(g)	that your financial management capability has much to be desired.

There was later a further document called a charge sheet referred to which listed some similar allegations: 

That you wilfully disobeyed or disregarded a lawful direction …

Being inefficient and incompetent from causes within your own control….

The plaintiff submits that these comments in the internal memo and in the charge sheet were defamatory and has resulted in difficulties in getting another position in the area of his expertise since the suspension. The plaintiff submits that the defendants had no authority to take the action they did and this thereby exacerbates what has happened. The plaintiff alleges that the defendants’ actions were motivated by ill-will and the allegations went further than fair comment.

It is submitted on behalf of the defendants that what was stated was no more than facts relating to the plaintiff’s duties and were relevant in a disciplinary situation. 

There is no doubt that the statements made about the plaintiff would be injurious to his character and reputation suggesting as they do that the plaintiff was incapable of doing his duty and generally inefficient and incompetent, these words actually being used.

However these statements being made in a public employment situation, the law has noted and the Defamation Act notes that there may be what is called a qualified privilege. The law was stated very early in this area in the case Toogood v Spyring (1834) 1 C.M. & R 193 Parke B said: "In general an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another, and the law considers such publication as malicious unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases the occasion prevents the inference of malice which the law draws from unauthorised communications, and affords a qualified defence depending on the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society".

The Defamation Act (Ch. No. 293) s 11 refers to qualified protection:

"it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith –

(a)	by a person having lawful authority over another in the course of a censure passed by him on the conduct of the other person in matters to which the lawful authority relates…

And this is what is being submitted on behalf of the defendants here. 

It is submitted that the Administrator in the internal memo was merely censuring the plaintiff in the requirements of his job and taking disciplinary action. And in line with his position as Administrator the first defendant was advising persons within the Provincial Government who should know what was happening. 

So in the words of Lord Campbell in Harrison v Bush (1855) 5 E & B 348, was the "communication made bona fide upon a subject matter in which the party communicating it has an interest, or in reference to which he has a duty". And as Lord Esher MR said in Pullman v Hill Ltd [1891] 1 Q.B. 528 "An occasion is privileged when the person who makes the communication has a moral duty to make it to the person to whom he does make it and the person who receives it has an interest in hearing it. Both these conditions must exist in order that the occasion may be privileged". 

It has been noted that "Judges have all felt great difficulty in defining what kind of social or moral duty will afford a justification": see Earle CJ in Whiteley v Adams (1863) 15 CB 418. 

The statements complained about in this case were used in a disciplinary situation. So was there justification for saying them. In the internal memo by the first defendant some of the statements were purely statements of facts about the failure of the plaintiff to reconcile reports however there were other statements, which it is submitted, go further than state facts. The other statements use the words ‘randomly made financial commitments’, ‘persistent travels’, ‘your financial management capability has much to be desired’. Then on 22nd August 1996 the second defendant in a formal charge sheet, which was circulated widely, used the words ‘being inefficient and incompetent’. 

The first defendant under the Organic Law on Provincial Governments and Local-Level Governments s 74 as the Provincial Administrator is the chief executive officer of the Provincial Government, the administrative head of the staff in the province and shall maintain overall supervision and direction in accordance with an Act of Parliament, over all officers and employees assigned or otherwise employed to carry out the functions of the National Government and the Provincial Governments and Local-Level Governments. It is noted further that there is a further duty to liaise and consult with the Provincial Treasurer on budget and treasury matters. The Organic Law makes reference to the Public Services (Management) Act for further aspects of the management and control of public servants in the provincial system. 

It is noted that there is no specific mention or role of the Deputy Administrator in the Organic Law. It is important to note that the role of the plaintiff is as interim Treasurer. Under the Organic Law the Provincial and District Treasury headed by the Provincial Treasurer is an extended service of the National Department of Finance. And the Provincial Treasurer is appointed by the Departmental Head of the Department responsible for financial matter. And the Organic Law makes it clear that the Departmental Head of the Department responsible for finance matters shall oversee the affairs of the Provincial and District treasury. The independent status and role of the Provincial Treasurer within the Provincial Government framework was made clear to the first defendant in a letter from the Acting Secretary for Finance dated 25th October 1996. 

It is clear that the overall control of a Provincial Treasury was always to be kept in the National Department responsible for finance matters and I do not need to go into the reasons for that which would be obvious to all.

So were the first and second defendants acting properly in the discharge of their official duties when they made the statements complained of.

It is quite clear that the first and second defendant had no authority to discipline the plaintiff; they were not the Departmental Head of the Treasurer for disciplinary purposes. Actually the second defendant who called himself the deputy Administrator had no status at all. The Administrator only had the power to refer any matters involving the treasurer to the Secretary for Finance. The Organic Law specifically states the Administrator has the duty to liaise and consult with the Provincial Treasurer; this puts the plaintiff on a much different position than other public servants in the Province. In view of what was being said about the plaintiff and the way it was said and the nature of his role as an independent treasurer in the Province one could be excused for wondering that perhaps the plaintiff was doing his duty to the Secretary of Finance and the people too well.

Therefore as the first and second defendants had no power of discipline over the plaintiff they cannot claim privilege under the Defamation Act. What they said about and against the plaintiff was not just unauthorised but went much further than mere complaints about the performance of his work, and hit directly at his professional training and ability and was clearly defamatory and they must be personally liable for what they said. What they said hits directly at the qualifications and work of the plaintiff. Whilst it may be that the Secretary for Finance is quite satisfied with the plaintiff’s job and qualifications, in the eyes of other public servants and the people generally the plaintiff has been seriously maligned. I wonder how the Secretary for Finance himself feels at such a criticism of his own appointment and trust in the plaintiff. The actions of the defendants could also be an attack on the integrity and ability of the Secretary for Finance. 

It is very hard to estimate and give a figure for such defamation. This defamation goes to the very heart of the plaintiff’s position and work and status in the eyes of the people generally and the other people he has to work with. The statements and actions clearly demeaned the plaintiff in the eyes of people. I am unable to find any comparable verdicts in this jurisdiction for such an unauthorised and outrageous attack on a person’s basic qualifications and ability at this level. People like the first and second defendants must realise that their position does not give them any carte blanche authority to say anything about senior qualified staff. 

I feel that the damages suffered by the plaintiff are extreme being as they included a lengthy suspension and the difficulty of getting similar roles with this cloud hanging over his head. There has been no evidence that he was actually out of his salary, it appeared that he was only suspended and it was a matter for the Department of Finance to help him find another position but this was being difficult because of what the defendants had said and done. However his whole life has been disrupted since the action taken by the defendants. 

I will assess a figure of K25,000 as damages for such defamation as was made in this case and the effect this has had on the plaintiff’s life. I cannot think of any fewer figures, which would clearly exonerate the plaintiff in the eyes of the people and fellow workers. I am unable to find that the third and fourth defendants are in any way also liable for the statements made. I am not sure how far the Provincial Government in its group capacity actually authorised and supported the defamatory statements made. So I cannot find that in general the people of the Province itself should be liable in any way for the actions of such officers as the first and second defendants. Although if it came to a matter of wrongful dismissal then of course the Provincial Government or the State could be liable but this is not the action here. 

Therefore the damages awarded must be split between the two defendants. 

I order judgement for the plaintiff against the first defendant in the sum of K12,500. I order judgement for the plaintiff against the second defendant in the sum of K12,500. 

I order that the first, second and fourth defendant is to pay the plaintiff’s costs. 

Lawyer for the plaintiff: Soi & Associates.
Lawyer for the defendants: Paul Paraka Lawyers.