N4965

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO 49 0F 2005

LINAH EDWARD
Appellant

V

ELIZABETH TIOTAM
Respondent

Kimbe: Cannings J
2005: 9 May, 25 August

DEFAMATION – defences – truth – need to establish truth on the balance of probabilities – Defamation Act, Section 10 – damages – assessment – "at large" – need to consider the nature and extent of the defamatory imputation, the width of publicity and the capacity to pay of the guilty party.

The appellant and the respondent are schoolteachers. The appellant believed that the respondent was having an affair with the appellant's husband. The appellant wrote a letter, under her school's letterhead, to the principal of the respondent's school, alleging that her husband and the respondent had committed adultery on school premises. The respondent was aggrieved by the letter and brought a complaint in the District Court against the appellant, seeking damages for defamation. The District Court upheld the complaint and awarded the respondent K3,000.00 damages. The appellant appealed against the decision of the District Court, both as to liability and the amount of damages.

Held:

(1)	The District Court correctly decided that the letter was defamatory and that the defence of truth did not apply.

(2)	The National Court, exercising its appellate jurisdiction, should not interfere with an assessment of damages unless manifest errors of law are apparent and there has been a substantial miscarriage of justice. 

(3)	Manifest error was not shown and, although the appellate judge may consider that the amount of damages was excessive, there was no substantial miscarriage of justice. The appeal was accordingly dismissed.

Cases cited

The following cases are cited in the judgment:

David Coyle v Loani Henao (2000) SC655
In the Matter of an Application by Linah Edward (2005) N2804
John Alan Smerdon v Tali Kaipeng Raquel [1973] PNGLR 313
Kongo Bomai v The State [1979] PNGLR 125
MVIT v Salio Tabanto [1995] PNGLR 214

APPEAL

This was an appeal from a decision of the District Court awarding damages for defamation.

Counsel

O Oiveka, for the appellant
G Linge, for respondent

25 August, 2005

1. CANNINGS J: This is an appeal against a decision of the District Court at Kimbe, constituted by Mr J I Voku, in which his Worship upheld a claim for damages for defamation. The appellant, Linah Edward, and the respondent, Elizabeth Tiotam, are female schoolteachers. On 9 July 2004 the appellant, who was then employed by Kimbe Primary School, wrote a letter to the headmaster of the respondent's school, Valoka Primary School, complaining about the conduct of the respondent. She alleged that the respondent had committed adultery with the appellant's husband on school premises at Valoka and that the appellant's husband and the respondent were now living together in Kimbe. The text of the letter, written under the letterhead of Kimbe Primary School was as follows:

The Headmaster
Valoka Primary School
PO Box Hoskins
West New Britain Province

SUBJECT:	COMPLAINT OF YOUR OFFICER MS ELIZABETH TIOTAM'S AFFAIR (COMMITTING ADULTERY) WITH MY HUSBAND ROBERT KIRI

Dear Sir,

Concerning the above subject. I Linah legal wife of Robert Kiri has observed that from the 2nd to the 3rd of July, your officer Elizabeth Tiotam had committed adultery with my husband in your school premises at Valoka in which I believe she has broken one of the mission act.

This action has caused great disorder in our marriage. It has torn the marriage up. This matter of your new officer has shown a bad model to the agency, children and community as a whole. They are now living together at section 10 Kimbe.

I therefore appeal to you to take further action on her at your level.

I await your favourable consideration and prompt action to the above before I take legal action.

Thank you,

Yours faithfully,
[signed]
_______________
LINAH EDWARD

Cc	:	Valoka Parish Priest
Cc	:	BOM Chairman
Cc	:	Hoskins Inspectorate

2. The publication of this letter led to defamation proceedings in the District Court at Kimbe. On 28 July 2004 the respondent filed a 'summons to a person upon complaint'. In her statement of claim she pleaded that the appellant had published a false complaint and defamed her. She claimed K5,000.00 damages.

THE DISTRICT COURT DECISION

3. On 1 October 2004 his Worship upheld the complaint after a trial in which both parties were present. The appellant admitted publishing the letter but claimed that its allegations were true; and that became the central issue in the case: were the allegations true? A considerable number of witnesses were called. Some supported the appellant, by giving evidence that the respondent and the appellant's husband had been seen together on several occasions and that they had spent the night together at 'Section 10', which is a suburb of Kimbe. (Not to be confused with Section 10 of the Defamation Act, which is central to this case.) Others gave evidence for the respondent. They included Robert Kiri, who denied having an affair with the respondent. The respondent's mother also gave evidence, in support of her daughter. His Worship indicated that the case resolved around Section 10 (protection: truth) of the Defamation Act, which states:

For the purposes of this Act, it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made.

4. His Worship held that the appellant had published two distinct defamatory statements:

•	That the respondent had from 2 to 3 July 2004 committed adultery with the appellant's husband on school premises at Valoka; and

•	The respondent and the appellant's husband are living together at Section 10, Kimbe.

5. His Worship held that if the appellant were to be protected by the defence of truth "she must provide factual evidence of exactly what she had published". He came to the conclusion that she could not prove what she alleged. The observations that she referred to in her letter were based on what people had told her. But there was no evidence to back it up. The evidence given in court was not consistent with her specific allegations. His Worship said it seemed that the appellant's witnesses had been instructed to spy on the respondent and the appellant's husband and that the witness' evidence seemed to be based on stories and gossip. He found the witnesses for the respondent more credible. Therefore the defence of truth could not protect the appellant and she was liable to pay damages.

6. His Worship found, as a fact, that because of the letter the respondent was transferred out of Valoka school and that the public has "come to know" that she committed adultery with the appellant's husband. In assessing damages, he took into account that the respondent is a single woman, a schoolteacher, and has the potential to secure a good relationship leading to marriage. The false allegations made by the appellant may have jeopardised the respondent's chances of securing a good relationship. They may have also jeopardised her teaching career. His Worship considered that the K5,000.00 claim for damages was reasonable considering the circumstances of the case. However, as the appellant may not have the capacity to pay that amount, the assessment was reduced to K3,000.00. The following order was entered on 1 October 2004:

Defendant [ie the appellant, Linah Edward] adjudged to pay K3,000.00 for damages to the complainant [the respondent, Elizabeth Tiotam] within three months, in default distress.

SUBSEQUENT EVENTS

7. 1 January 2005 was the date by which the appellant had to pay the money ordered by the District Court. Nothing was paid by then, so on 3 January 2005 the respondent applied to the District Court for enforcement of the judgment, requesting the District Court to make an order for oral examination. The respondent succeeded and on the same day, 3 January 2005, a warrant of execution was issued under Section 173 of the District Courts Act and an order for oral examination was issued, returnable on 28 January 2005. The appellant failed to attend on 28 January 2005 and on that date the District Court issued a warrant for her arrest. On 7 February 2005 the appellant attended before Mr Voku to explain the delay in satisfying the judgment. His Worship allowed her one week to pay the K3,000.00, failing which she would be imprisoned for two months. On 11 February 2005 the matter came before the National Court for the first time when I heard and granted an application by the appellant for an extension of time to appeal (In the Matter of an Application by Linah Edward (2005) N2804, Cannings J). On 21 February 2005 the appeal was instituted in accordance with the time limit set. It is alleged that the learned magistrate:

•	erred in fact and law by failing to consider that the evidence raised a defence of justification; and

•	failed to properly weigh or consider all the evidence of the appellant, thereby causing a miscarriage of justice.

MAJOR ISSUES

8. In the course of the appeal hearing, the appellant's counsel, Mr Oiveka, clarified that the two grounds of appeal were intended to capture two major issues:

•	whether the District Court erred by dismissing the defence of truth;

•	if no, whether the District Court erred by making an assessment of damages that was excessive.

I accept that this is a proper way to interpret the grounds of appeal and will determine the appeal accordingly.

APPELLANT'S SUBMISSIONS

9. Mr Oiveka submitted that there was direct evidence that the respondent and the appellant's husband were having an affair. They had been seen together on several occasions. The allegations were clearly true. The defence of truth should have been applied. In the alternative, his Worship erred by making a manifestly unreasonable assessment of damages, which took no account of the earning capacity of the appellant or the reputation of the respondent. The respondent is not a public figure. She was only a first-year-out teacher, so the effect on her reputation was minimal.

RESPONDENT'S SUBMISSIONS

10. Mr Linge, for the respondent, submitted that his Worship had carefully weighed the two competing stories that he was given. He acknowledged that there was evidence that the appellant's husband had been seen in and around Section 10, Kimbe, but there was insufficient evidence that he had slept there. His Worship correctly found that there was no evidence at all that there was any incident involving the respondent and the appellant's husband at Valoka. As to the assessment of damages, Mr Linge highlighted that the appellant had alleged adulterous acts had been committed on the premises of a Catholic mission school; and they are extremely serious and damaging allegations.

DID THE DISTRICT COURT ERR BY DISMISSING THE DEFENCE OF TRUTH?

11. The first comment I would make is that his Worship gave a carefully reasoned decision that immediately and correctly highlighted the defence of truth, under Section 10, as the key issue in the case. In any defamation case, there are three sets of issues: Was the statement defamatory? Was it published? Was it justified, excused or protected? If the defamatory statement is true, it is protected as truth is an absolute defence. The letter of July 2004 contained two clear defamatory imputations. There was no doubt about publication – and though the magistrate did not address it, the sting in the appellant's letter was sharpened by it being on letterhead. Therefore, it was all about truth. His Worship correctly said that it was up to the appellant to prove that the defamatory statements were true.

12. I have examined the District Court depositions. It is apparent that his Worship carefully weighed the evidence and made extensive notes of the oral testimony. I find no error of law in the finding that the appellant failed to prove that the allegations were true or in the conclusion that the appellant was liable in negligence. The first ground of appeal is dismissed.

WAS THE ASSESSMENT OF DAMAGES EXCESSIVE?

13. The National Court, exercising its appellate jurisdiction, should not interfere with an assessment of damages unless manifest errors of law are apparent and there has been a substantial miscarriage of justice (John Alan Smerdon v Tali Kaipeng Raquel [1973] PNGLR 313, MVIT v Salio Tabanto [1995] PNGLR 214, Kongo Bomai v The State [1979] PNGLR 125). An assessment of damages for defamation is 'at large'. It should take account of a number of considerations, including the nature and extent of the defamatory imputation, the width of publicity and the capacity of the guilty party to pay (David Coyle v Loani Henao (2000) SC655).

14. Left to my own devices, I think if I had been dealing with the matter at first instance, I would have been inclined to award damages of a lesser amount, of say K2,000.00; not wanting a judgment of this nature to be crushing. However, I am not sitting at first instance. I am exercising appellate jurisdiction and I cannot detect any error of law. His Worship gave the assessment of damages serious thought and made a considered decision, so I am not going to disturb it. The second ground of appeal is dismissed.

JUDGMENT

15. The appeal is dismissed, however it is ordered that all orders of the District Court are deemed amended, to the extent necessary to allow the appellant a further three months from the date of entry of this judgment to satisfy the judgment of the District Court.

Ordered accordingly
______________________________________

Public Solicitor: Lawyer for the Appellant
Linge & Associates: Lawyer for the Respondent