N2160

PAPUA NEW GUINEA

[In the National Court of Justice]

WS 952 of 1998

BETWEEN

LIN WAN XIN
First Plaintiff

AND

LIN BROTHERS PTY LTD
Second Plaintiff

AND

WANG YANHONG
First Defendant

AND

XIAO ZHICHUN
Second Defendant

AND

LIN SHENG
Third Defendant

Waigani: Sevua, J.
1999: 13th August
2001: 7th December

Defamation - Libel - Measure of damages - Discretionary - Damages to compensate injured plaintiff for injury to reputation etc. - Where injured plaintiff is a corporation compensation for aggravated damages and damages for pecuniary loss may be awarded.

Cases cited:
PNG Aviation Services Pty Ltd & 3 Ors v. Michael Thomas Somare & The Independent State of Papua New Guinea; N1493, unreported, 20th November 1996
David Coyle & Ors v. Loani Henao; SC655, unreported, 30th December 2000
PNG Aviation Services Pty Ltd v. Michael Thomas Somare & The Independent State of Papua New Guinea; (SCA 5 of 1997), unreported and unnumbered, …… December 2000

Counsel:
A. Kandakasi for Plaintiffs

7th December 2001

SEVUA, J: This is an assessment of damages. On 9th December 1998, judgment was entered against the second and third defendants. On 3rdMarch 1999, judgment was entered against the first defendant. Assessment of damages was fixed for the 13th of August 1999, however as the defendants did not appear in person and were not represented by counsel, counsel for the plaintiffs asked that the defendants be given the opportunity to appear on the assessment of damages to present submissions if desired. Following application by the plaintiffs' counsel, the Court directed that notice of assessment of damages be given to the defendants by publication in the Post Courier and The National. Orders to that effect were given on 13th August 1999. The defendants have not availed themselves to that opportunity.

At this juncture the Court wishes to apologise to the plaintiffs and their lawyers for the long delay in finalising this matter, which was not intended. The delay was caused by an oversight following the orders of 13th August 1999. The assessment was never listed in my list of outstanding judgments until recently, after Mr. Kandakasi had been appointed to the bench and he kindly drew my attention to it. The Court therefore apologise to the plaintiffs and their lawyers for the delay caused by the oversight,

As adverted to at the outset, judgment had been entered against all the defendants in this action for failure to file their defence.

The plaintiffs' principal relief claimed in their writ was damages for defamation pleaded in paragraphs 3 and 5 of the statement of claim. They also claimed interest and costs. 

It is not intended to set out the allegations of defamation in full as they appear in paragraphs 3, suffice it to say, the defamatory imputations against the first plaintiff can be summarized as follows. That the first plaintiff was:-

(a)	a criminal who has prior convictions and was imprisoned in China;
(b)	an adulterer;
(c)	a thief or robber;
(d)	an evil man;
(e)	involved in bribing various government officials;
(f)	an arsonist;
(g)	possessor of illegal firearms;
(h)	involved in illegal human smuggling of Chinese nationals into PNG and illegal issuing and renewal of visas, and
(i)	a drug dealer.

The defamatory remarks against the second plaintiff were that it facilitated, aided and abetted the illegal activities of the first plaintiff therefore it should be de-registered as a company in the records of Investment Promotion Authority and the work permits of its employees revoked. 

 The defendants did not defend the proceedings. Despite being given another opportunity to defend the assessment they have shown no interest. It is evident to the Court that they are not interested in these proceedings and as judgment has been entered against all of them, liability is not in issue.

 The plaintiffs rely on the first plaintiff's affidavit sworn on 4th May 1999, which sets out the losses he claimed to have been suffered by him and the second defendant. As there is no evidence by the defendants to refute or dispute that evidence I accept it. I am satisfied from that evidence that the plaintiffs have suffered loss and damages.

 Order 8 Rule 21 and Order 9 Rule 30 of the National Court Rules are pertinent to this matter, in particular, the defendants' failure to file any pleadings to traverse the plaintiffs' claim. It is not necessary to cite those rules except say that since the defendants have not traversed the plaintiffs' pleadings they have admitted the allegations in the statement of claim therefore the plaintiffs are entitled to judgment as it were.

 I accept the plaintiffs' evidence and I am satisfied that as a result of the defamation published by the defendants and circulated to key government officers and departments, the second plaintiff had lost income from its business, which loss translated to a drop in income from K15,000 - K20, 000.00 to K5, 000.00 - K10, 000.00 per month from May to December 1998, which is approximately K40, 000.00. Taking into account the costs of inflation since December 1998, I assess that head of damages at K50,000.00.

I also accept that as a direct consequence of the defendants' defamatory publication, the plaintiffs were compelled to engage Young & Williams to mount litigations to fight the effect of the defamation. I am satisfied from the evidence before me that the plaintiffs incurred legal costs in the sum of K21, 000.00 and I assess that as part of their damages.

These amounts represented the tangible damages, as counsel put it, which were suffered by the plaintiffs. I consider that the plaintiffs are entitled to recover these from the defendants.

Counsel for the plaintiffs referred to PNG Aviation Services Pty Ltd v. Michael Thomas Somare & The Independent State of Papua New Guinea, N1493, unreported, 20th December 1996, a judgment of the National Court, which awarded the highest level of damages of K100,000.00 to each of the three individual plaintiffs who were shareholders of the plaintiff company. Counsel submitted that the plaintiffs in the present case are entitled to damages in that sum for injury to their character and reputation as an individual and a corporate entity respectively. Counsel also submitted that in that case the plaintiffs did not suffer any tangible and out of pocket expenses like the present plaintiffs, however the Court awarded the sum of K100,000.00.

It is to be noted here that the first plaintiff in that case did appeal to the Supreme Court against the inadequacy of damages and the Supreme Court in that appeal, PNG Aviation Services Pty Ltd v. Michael Thomas Somare & The Independent State of Papua New Guinea; (SCA 5 of 1997, unreported and unnumbered), …. December 2000, which I was a member of, increased the quantum of damages the appellant was entitled to as the Court was of the view that the amount of damages awarded to the appellant was quite inadequate. The Court increased the award of K50,000.00 awarded to the appellant for general damages for injury to the company's reputation to K100, 000.00. The Court also awarded the sum of K100, 000.00 for aggravated damages since the trial Judge did not make any award for that head of damages although claimed in the writ. The Court further awarded the sum of K1, 500,000.00 for injury to the company's trade reputation or goodwill and damages for direct monetary loss or pecuniary loss.

In essence, what the Supreme Court did in that appeal was it recognized that compensation should not only be appropriate and adequate to the injury sustained by both the company and the shareholders, but should also signify and affirm the vindication of the plaintiffs' reputation. 

In David Coyle & Ors v. Loani Henao; SC655, unreported, 30th November 2000, the Supreme Court confirmed the trial Judge's award of K50, 000.00, which the appellants had appealed against as being manifestly excessive. The Court held that the trial Judge did not fall into error in awarding that amount to the respondent. The Court further said that the amount is not outside the discretionary range therefore dismissed the appeal.

In both those cases, the facts are quite distinct. The first case involved a company and its shareholders and the defamation was perpetrated by the Prime Minister of the day and published in the daily newspapers over a few days. The publication of the defamation affected the company to the extent that it suffered extensive losses in profit. The effect to the company was disastrous. The second case involved lawyers. The respondent, who was defamed, is a very prominent lawyer of high esteem and standing in the National Capital District and the country.

It is trite law that there is no fixed measure of damages in a defamation suit. I only wish to refer to a passage quoted by the Supreme Court in Coyle (supra) to reiterate and highlight this principle from, The Law of Defamation in Canada, Raymond E. Brown, Carswell, 1987:

"A good name proverbially is rather to be chosen than great riches, but loss may require heavy financial solace. Actions for libel and slander are maintained principally for the purpose of protecting and vindicating the personal reputation of the defamed plaintiff. An award of damages may partially compensate him for the decline in his esteem in which he may be held by others, and provide solace for his wounded feelings, grief and annoyance. However, the reputation of any person is necessarily an evanescent thing, ant it is difficult to calculate an appropriate financial equivalent for its loss. An award must have regard for both probable past and prospective damages."

The awards in both cases have surpassed awards in previous reported defamation cases such as Tei Abal v. Anton Parao [1976] PNGLR 251, (K1,000.00); Theresa Joan Baker v. Lae Printing Pty Ltd [1979] PNGLR 16, (K6,000.00); Wayne Cross v. Wess Zuidema [1987] PNGLR 361, (K4,000.00); and Kamea Gabe v. Jack Clunn & Ors [1995] PNGLR 153, (K6,000.00). However, it is worth remembering that each case is different and the decision to award compensation for defamation is largely dependant on the facts of each case and at the discretion of the Court.

In the present case, the first plaintiff is a Chinese businessman with investments and interests in Port Moresby in cafeterias, restaurants, coffee shops and other businesses. Perhaps it ought to be emphasized that this kind of conduct may have a detrimental effect on a foreign investor who wishes to invest in the economic development and prosperity of this country. I am satisfied that the defamatory publication was circulated to a number of key government officials and departments that the plaintiffs have suffered injury to their name, character, reputation and trade reputation or goodwill. I am also satisfied that the defamation had caused injury to the business of the second plaintiff causing direct monetary or pecuniary loss. In my view the plaintiffs are entitled to damages for these injuries.

Doing the best I can, and mindful of the fact that there is no fixed measure of damages in defamation, but that the injured plaintiffs' reputation needs to be protected and vindicated, the injured plaintiff should be compensated for the decline in his esteem. If the defamed plaintiff is a corporation and has suffered pecuniary losses, it should be compensated for such losses. The award should be able to provide some solace for the injured feelings, grief and annoyance. 

I consider that the first plaintiff is entitled to general damages for injury to his name, feeling and reputation. Taking into account the undisputed fact that the defamatory remarks were circulated within key government circles thereby portraying an untrue picture of him being a convicted criminal, a cheat, a drug dealer etc. etc. I assess his damages at K50, 000.00. In respect of the second plaintiff, I am also satisfied that it suffered monetary losses between May and December 1998. I assess damages at K50, 000.00 and I add the sum of K21, 000.00 in legal fees incurred as a direct consequence of the defamation.

I also consider that since the company's reputation was injured to the extent that it sustained pecuniary losses as alluded to above, the second plaintiff is entitled to damages for injury to its reputation as a company, that is damages to its trade reputation or goodwill. Damages will be assessed at K50, 000.000.

In summary the awards are:-

(a)	Damages for injury to reputation etc.
First Plaintiff K 50, 000.00

Second Plaintiff 50, 000.00

Both Plaintiffs 21, 000.00

(b)	Damages for injury to company's trade
reputation or goodwill and damages for
direct monetary loss or pecuniary loss
Second Plaintiff 50, 000.00

(c)	Aggravated damages - Second Plaintiff 50, 000.00

Total : K 221, 000.00

I allow interest at the usual rate of 8% per annum from the date of filing of the writ to date of judgment. There shall be an order for costs to follow the event.
____________________________________________________________________
Lawyer for Plaintiffs : Young & Williams
Lawyer for 3rd Defendant: Kubak Lawyers