Unreported National Court Decisions
N1746
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS N0. 944 OF 1995
BETWEEN
DR. AMBALAVANA G. PILLAY
PLAINTIFF
AND
DR. B. AMEVO, DR. B.R. POTTURI, DR. G.R. SWANIKER &
 DR. S. ZIVANOVIC
DEFENDANT
Kapi DCJ
15-16 April 1998
31 July 1998
DEFAMATION ACT - Qualified privilege under s…- whether or nor there was a conspiracy by the defendants - whether there was any malice in the publication.
Counsel
J Poro for the plaintiff
D Goma for the defendants
31 July 1998
KAPI DCJ: This is a claim for damages for defamation under the provisions of Defamation Act (Cap 293) (hereinafter referred to as “the Act”). The plaintiff claims that the defendants published defamatory material within the meaning of s 4 (c) (ii) of the Act.
The background to this claim is as follows. The plaintiff is originally from India where he received all his primary and tertiary education. He graduated in Bachelor of Science from the University of Madras in 1963. He completed his Master of Science degree in 1967 from Birla Institute of Technology also in India. For a while he taught at the Institute and was promoted to Assistant Professor. 
He resigned shortly after he was appointed Associate Professor and joined the University of Khartoum in Sudan. He was awarded PhD in Zoology by the University of Khartoum in 1985. He taught there for four years. 
In 1991 the plaintiff applied for a position to join the academic staff at the University of Papua New Guinea. He was appointed a senior lecturer in the Faculty of Medicine and commenced work here in March 1993.
At the time of his appointment, the Faculty of Medicine had four academic departments one of which was the Department of Basic Medical Sciences. This department is divided into four divisions; Anatomy, Bio-Chemistry, Physiology and Pharmacology. The plaintiff was appointed a senior lecturer in Anatomy.
For general administration the department was headed by Dr Amevo (hereinafter referred to as the First Defendant). The academic head of the department was Professor Zivonivic (hereinafter referred to as the fourth Defendant) and the head of the division of Anatomy was Dr. Pouttori (hereinafter referred to the second Defendant). The third defendant is a former academic head of the department.
In 1993, the fourth defendant wrote a series of memorandum to the plaintiff complaining that his performance as a senior lecturer was not satisfactory. The plaintiff responded to these allegations in a series of memorandum.
This course of action resulted in a letter written to the plaintiff by the Vice Chancellor dated 26th October 1993 (Exhibit “K”) in which certain allegations were made about his qualifications and unsatisfactory performance as a senior lecturer and he was asked to explain. The plaintiff replied in a series of memorandum.
By letter dated 2nd December 1993 the Vice Chancellor terminated the employment of the plaintiff as effective from 17th December 1993.
The plaintiff later complained to the Ombudsman Commission and was subsequently reinstated to his position. It is not necessary to set out the details of the investigation and the action taken by the Ombudsman Commission. He later resigned and left the country. He is presently employed at the University of Malaysia.
The plaintiff filed this cause of action for damages for defamation. He pleaded three publications which he attributed to each of the defendants as responsible for publication. At the hearing, counsel for the plaintiff sought to rely on publication by the first defendant only. Counsel did not seek to rely on publication by the other three defendants. They are all non-citizens and have left the country upon completion of their contracts with the University. 
The plaintiff pleaded that the first defendant collaborated with other members of the faculty and falsely and maliciously wrote and published a letter dated 15th July 1993 in the English language which was meant and understood to mean:
(a)      that the plaintiff had not taught the courses well in the specific fields of Anatomy or failed to teach them at all.
(b)      that the plaintiff was incompetent and not fit to properly or at all discharge his duties as a Senior Lecturer in Anatomy Division.
(c)      that the plaintiff had falsified his educational qualifications and never possessed any in the first place and was a false, cheat and imposter.
(d)      that the plaintiff was a criminal and had obtained employment with the University of Papua New Guinea by deceit, deception and trickery.
The first defendant has denied that there was any collaboration and that there was any malice. With regard to the letter of the 15th July 1993, the first defendant does not dispute that he wrote this letter but claims lawful excuse under s 11(1) (e) .. of the Defamation Act.
The plaintiff gave evidence in support of the claim and the first defendant gave evidence in his defence.
The issue in this case is whether the first defendant conspired with other defendants and published defamatory material with malice and whether the defendant has a lawful excuse under s 11 (1) (e) of the Act? This provision is in the following terms:
“11.    Qualified protection: excuse
(1)      For the purposes of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith.
(a)      …
(b)      …
(c)      …
(d)      …
(e)      for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances.”
The plaintiff claims that there was conspiracy amongst the defendants to publish defamatory materials. In an attempt to establish such a conspiracy, he testified that one of the defendants demanded certain amount of money in American dollars. The plaintiff has not clarified the context in which the demand for the money was made. He stated that he did not comply with the demand. Although he did not say so in so many words, the plaintiff sought to imply that when he failed to meet the demand, this led to the conspiracy against him. At no stage in his evidence did he attribute any conspiracy on the part of the first defendant either in connection with the demand for money or conspiracy to discredit the plaintiff and his qualifications. I cannot find any evidence that the first defendant became involved in any such conspiracy.
I also find that the first defendant has proven a lawful excuse under s 11 (1) (e) of the Act. The copies of correspondence that came to the first defendant were by virtue of his position as administrative head of the department. The first defendant was a person in position of responsibility to receive such complaints. When he received the correspondence, he approached the Vice Chancellor and he requested him to put the matter in writing. The letter which has been pleaded as containing defamatory material was forwarded to the Vice Chancellor to investigate the allegations. 
I find that the plaintiff cannot succeed in this action. I dismiss the action with costs to the first defendant.
Lawyers for the Plaintiff: Nii & MirupasiI
Lawyers for the First Defendant: Nonggorr & Associates