N5818
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 1297 OF 2013

JOHN ANDAMA YULA
Plaintiff

V

SIMON NOMA
Defendant

Madang: Cannings J
2014: 24, 25 September, 20, 21 November

DEFAMATION – whether threatening statement made by defendant contained defamatory imputations – whether alleged spreading of false rumours by defendant was proven – whether alleged defamatory statements were published

The plaintiff commenced defamation proceedings against the defendant. The plaintiff claimed that the defendant had falsely alleged that the plaintiff's son was responsible for the injuries to the defendant's nephew and had threatened to make the plaintiff pay compensation if his nephew died. The plaintiff also claimed that after the deceased's nephew did in fact die, the defendant spread false rumours that the plaintiff's son had caused the death and related problems. It was the plaintiff's case that the defendant's false allegation made to the plaintiff and the false rumours that the defendant spread were defamatory statements that he had published and that the defendant had raised no proper defences and that therefore the defendant was liable to pay damages to him.

Held:

(1)	The elements of a cause of action in defamation are: (a) the defendant made a defamatory imputation in relation to the plaintiff; (b) the defendant published it; and (c) the publication was unlawful in that it was not protected, justified or excused by law.

(2)	The question of whether a statement contains a defamatory imputation is to be determined objectively according to the standards and reactions of a reasonable person.

(3)	As to the two sets of defamatory statements complained of: (a) the first statement was a threat to make the plaintiff responsible for compensation, it was not a statement containing any defamatory imputations; and (b) there was no pleading to support the allegation of fact made at the trial and further, there was no credible evidence of the spreading of false rumours: the evidence was vague and uncorroborated.

(4)	The proceedings were wholly dismissed and costs awarded to the defendant.

Cases cited

The following cases are cited in the judgment:

Boyd v Mirror Newspapers [1980] 2 NSWLR 449
Hutton v Jones [1910] AC 20
SMY Luluaki Ltd v Pacific Star Ltd (2011) N4360
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
Vitis Industries Ltd v Pacific Star Ltd (2014) N5807

TRIAL

This was a trial on liability for defamation.

Counsel

B Tabai, for the plaintiff
J Morog, for the defendant

21st November, 2014 

1. CANNINGS J: The plaintiff, John Andama Yula, is seeking damages for defamation against the defendant, Simon Noma. The plaintiff claims that the defendant made two sets of defamatory statements that have damaged his reputation and caused him a lot of trouble and led to him being forced to pay compensation to other people.

2. The defamatory statements revolve around injuries received by the defendant's nephew, Abel Haggai, and the ultimate death of Abel Haggai in Port Moresby in October 2013.

THE PLAINTIFF'S CASE

3. The plaintiff says that from the time that Mr Haggai was injured, in about August 2012, up to and after his death in October 2013, the defendant was blaming the plaintiff's son, Junior Andama, for what happened to Mr Haggai.

4. The plaintiff says that the defendant was concocting false allegations and rumours due to differences that they had had in the past concerning the distribution of the proceeds of a judgment of about K3 million of which he and the defendant had, amongst many others, been beneficiaries, in 2011.

5. The plaintiff says that the defendant was trying to blame Junior Andama for troubles that had erupted in Madang town in 2012 involving people from Enga and those from Tari. It is well known, he says, that in July 2012 a group of drunken Tari youths attacked an Engan youth, Junior Lupe, and stabbed him. This led to retaliatory action by the Engans against the Taris in August 2012. Tari houses were burned down and some injuries on Tari people were inflicted. The plaintiff says that the defendant used this crisis involving the Engans and the Taris to his advantage by making out that his nephew, Mr Haggai, had been attacked by the Engans (when he was probably injured by some other means altogether) and then claiming that this had been caused by Junior Andama, who the defendant was falsely claiming was the person who had cut Junior Lupe and caused the whole crisis, culminating in Mr Haggai's death.

6. The plaintiff says that the defendant defamed him in two ways. First, by barging into his premises in a threatening manner one night, after Mr Haggai, had been injured, accompanied by a group of armed men, shouting:

Sapos Abel Haggai i dai bai mi karim bodi ikam toromoi long hia na yu yet bai holim haus krai na salim bodi igo!

[If Abel Haggai dies, I'll bring his body to you, you will hold a haus krai for him, then send his body home.]

7. Secondly, by spreading false rumours that the plaintiff's son had stabbed Junior Lupe and caused the death and all related problems.

ISSUES

8. The elements of a cause of action in defamation are: (a) the defendant made a defamatory imputation in relation to the plaintiff; (b) the defendant published it; and (c) the publication was unlawful in that it was not protected, justified or excused by law (Defamation Act, Sections 5, 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16; SMY Luluaki Ltd v Pacific Star Ltd (2011) N4360, Vitis Industries Ltd v Pacific Star Ltd (2014) N5807). The first issue there is: did the defendant make a defamatory imputation in relation to the plaintiff? If yes, were those imputations published? If yes, were they published unlawfully, or is there a defence available to the defendant?

DID THE DEFENDANT MAKE DEFAMATORY IMPUTATIONS OF THE PLAINTIFF?

9. In assessing this issue, the court must have regard to Section 2 (definition of defamatory matter) of the Defamation Act, which states:

(1)	An imputation concerning a person, or a member of his family, whether living or dead, by which—

(a)	the reputation of that person is likely to be injured; or
(b)	he is likely to be injured in his profession or trade; or
(c)	other persons are likely to be induced to shun, avoid, ridicule or despise him,

is a defamatory imputation.

(2)	An imputation may be expressed directly or by insinuation or irony.

(3)	The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

10. The question of whether a statement contains a defamatory imputation is to be determined objectively according to the standards and reactions of a reasonable person. It is irrelevant whether the publisher of the statement intended it to be defamatory or to do any harm to the plaintiff's reputation (Boyd v Mirror Newspapers [1980] 2 NSWLR 449; Hutton v Jones [1910] AC 20).

The threatening statement

11. This statement – "Sapos Abel Haggai i dai bai mi karim body ikam toromoi long hia na yu yet bai holim haus krai na salim bodi igo!" – was pleaded in the statement of claim and the plaintiff has presented sufficient evidence to prove on the balance of probabilities that it was, in fact, made by the defendant.

12. I agree that it was a threatening statement, although it must be noted that it was not a threat of violence, but a threat to make the plaintiff accountable for what had happened. It is not the sort of statement that was likely to injure the plaintiff's reputation or likely to injure him in his profession or trade or likely to cause other persons to shun, avoid, ridicule or despise him. I find that it was not a defamatory statement.

Spreading of false rumours

13. There is no pleading to support the allegation that the defendant spread false rumours about the plaintiff's son being responsible for the death of Abel Haggai and that these rumours were defamatory statements. Without a pleading to support it, this part of the plaintiff's case is un-actionable. If I were to bend the rules of pleadings and allow evidence of false rumours to be admitted, the plaintiff's case would still go nowhere. The evidence is vague and uncorroborated.

Conclusion re first issue

14. It has not been proven that the defendant made any defamatory imputations in relation to the plaintiff. The first element of the tort of defamation has not been proven. The plaintiff's case fails and must be dismissed.

OTHER MATTERS

15. Before concluding, I wish to comment on a number of other aspects of this case. If the plaintiff had proven that the defendant had made defamatory statements about him, his case would still have failed as he has not pleaded and brought evidence to show that the defendant published his statements. This case has been poorly pleaded from the beginning and is misconceived. It is evident that the plaintiff has a number of grievances against the defendant but he has chosen the wrong way of bringing his grievances to court. He should perhaps have brought an action in trespass if he wanted to make the defendant liable for what happened when the defendant barged into his premises with armed men alongside him. He complains that the defendant forced him to pay Mr Haggai's medical bills under false pretences and that the defendant encouraged his relatives to come from Tari and demand K25,000.00 compensation and five pigs. He suggests that the defendant encouraged his relatives to attack one of the plaintiff's lain in Tari, a schoolboy, and that the boy was so distressed he was forced to leave school.

16. It seems that the plaintiff wants to pin the blame for all his problems on the defendant and I am not sure that these allegations are genuine. I think the plaintiff needs to sit down with the defendant and make a more meaningful attempt to sort out their differences according to Tari custom. I am not saying that the door of the Court will be closed to the plaintiff, or the defendant, if they want to bring other matters into Court. But I think that they both must make a better effort to solve their differences outside the Court first, before bringing these sorts of problems into the National Court.

17. If that does not work, by all means come back to Court. Bringing a problem to Court is much better than fighting about it. But I indicate now that if similar problems are brought back to this Court, I will be thinking seriously about referring the matter to mediation.

18. Another piece of advice I need to give concerns costs. There is always a risk that if you bring a hopeless case to Court, the Court will award costs against you. This might not have been a hopeless case, but it was a poorly conceived one. It was so badly pleaded it had little chance of success from the beginning. The plaintiff should have engaged a lawyer. Mr Tabai only came into the case after it had been commenced by the plaintiff himself. So I will award the defendant costs of this case. I will set the amount now, to avoid any need for taxation. It is a moderate amount – K1,000.00 – and I will order that it be paid within one month.

ORDER

(1)	The proceedings are wholly dismissed.

(2)	The plaintiff shall pay the defendants' costs of the proceedings, in the fixed sum of K1,000.00, which must be paid to the defendant's lawyer by 22 December 2014.

(3)	Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Orders accordingly.
____________________________________________________________
Nelson Lawyers: Lawyers for the Plaintiffs
Warner Shand Lawyers: Lawyers for the Defendants