SC2042
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 24 OF 2018

SOUTH PACIFIC POST LIMITED
TRADING AS POST-COURIER
Appellant

V

NICHOLAS TAME,
TRADING AS NICHOLAS TAME LAWYERS
Respondent

Waigani: Cannings J, Kariko J, Miviri J
2020: 25th November, 4th December

DEFAMATION – defamatory matter – Defamation Act, s 2 (definition of defamatory matter) – whether publication of defamatory matter protected, justified or excused by law – defences – Defamation Act, s 8 (protection: reports of matters of public interest); s 9 (protection: fair comment); s 10 (truth); s 11 (qualified protection: excuse). 

JUDGES – duty to give reasons for decision – judge giving oral reasons for judgment with undertaking to later give written reasons for judgment – consequences of failure to comply with undertaking.

The appellant is the publisher of a daily newspaper, which ran an article under the heading “MP, lawyer restrained”. The article referred to the respondent, a lawyer, by name, as being restrained by an injunction granted by the National Court in the use of his personal bank account, after commencement of a police fraud investigation into suspected misuse of public funds. The respondent sued the appellant in the National Court, claiming damages for defamation. A trial was conducted on the issue of liability. Two years and seven months later, the trial judge delivered an oral judgment, concluding that the appellant was liable in defamation and that damages would be assessed at a time convenient to the parties. When delivering the oral judgment the trial judge apologised for the delay in delivering what he described as a summary of his judgment and undertook to later publish a written judgment. Three months later the trial judge resigned, without publishing a written judgment. The appellant appealed on grounds that the trial judge had erred in fact and law by: (1) denying the parties natural justice by failing to provide written reasons for decision and failing to provide reasons that detailed the disputed issues of fact and law and giving weight to extraneous considerations; (2) failing to find whether and how the alleged imputations in the published article were defamatory for purposes of s 2 of the Defamation Act; (3) failing to provide reasons to demonstrate that the defences pleaded by the appellant (good faith publication of information for public, fair comment, truth, qualified protection under Defamation Act, ss 8, 9, 10, 11) had been considered. 

Held: 

(1)	Though it was regrettable that the trial judge had not complied with the undertaking to provide written reasons for decision, that was not in itself an error of law or a denial of natural justice, and the oral reasons for decision should be accepted as the full reasons for decision and assessed on their merits. Ground (1) dismissed.

(2)	An essential element of a cause of action in defamation is that the matter published contain a “defamatory imputation” as defined in s 2 of the Defamation Act. If this element is disputed at the trial, the judge is obliged to determine the issue, which is a question of law, by identifying which if any of the parts of the definition of “defamatory imputation” have been proven. The trial judge failed to determine this issue in the manner required and the finding on liability was for this reason alone quashed. Ground (2) upheld. 

(3)	If a defendant pleads and contends specific defences under the Defamation Act the trial judge must address the elements of each defence and determine, following assessment of the evidence, after addressing which party bears the onus of proof on each element, whether the defence has been made out. The trial judge failed to address the elements of any of the defences pleaded, and the finding on liability was for this reason also quashed. Ground (3) upheld. 

(4)	The appeal was allowed, with costs, and the proceedings remitted to the National Court for retrial. 

Cases Cited

The following cases are cited in the judgment:

Amet v Yama [2010] 2 PNGLR 87
Arlene Pitil v Rutis Clytus (2003) N2422
Francis Chibelle v Jack Mafu (2015) N5942
Hobai Haro & Lolo Bellamy v The State (2019) SC1841 
Coconut Products Limited v Markham Farming Co Ltd (2018) SC1717
Mision Asiki v Manasupe Zurenuoc (2005) SC797
Philip Opa Kore v Charles Lapa (2018) SC1699
PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515
SMY Luluaki Ltd v Paul Paraka Lawyers (2011) N4360
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
Vitis Industries Ltd v Pacific Star Ltd trading as The National (2014) N5807
Wyatt Gallagher Bassett (PNG) Ltd v Benny Diau (2002) N2277
Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617

APPEAL

This was an appeal against a decision of the National Court in a defamation trial.

Counsel 

D Wood, for the Appellant
P H Pato, for the Respondent

4th December, 2020

1.      BY THE COURT: This is an appeal by South Pacific Post Ltd, publisher of the Post-Courier newspaper, against the decision of the National Court that it is liable in damages for defamation to the respondent, Nicholas Tame, a practising lawyer, in relation to the publication of an article in its 2 August 2010 edition.

2.     The article, which began on page 1, headed “MP, lawyer restrained”, referred to the respondent by name, as being restrained by an injunction granted by the National Court in the use of his personal bank account, after commencement of a police fraud investigation into suspected misuse of public funds. The respondent sued the appellant in the National Court, claiming damages for defamation. A trial was conducted on the issue of liability from 13 to 16 February 2015. 

3.     On 6 October 2017, the trial judge delivered an oral judgment, concluding that the appellant was liable in defamation and that damages would be assessed at a time convenient to the parties. When delivering the oral judgment the trial judge apologised for the delay in delivering what he described as a summary of his judgment and undertook to later publish a written judgment. Three months later the trial judge resigned, without publishing a written judgment. 

4.     The appellant appealed on six grounds, which can be reduced to three main contentions. The trial judge had erred in fact and law by: 

(1)	denying the parties natural justice by failing to provide written reasons for decision and failing to provide reasons that detailed the disputed issues of fact and law and giving weight to extraneous considerations; 

(2)	failing to find whether and how the alleged imputations in the published article were defamatory for purposes of s 2 of the Defamation Act; 

(3)	failing to provide reasons to demonstrate that the defences pleaded by the appellant (good faith publication for information of public, fair comment, truth, qualified protection under Defamation Act, ss 8, 9, 10, 11) had been considered. 

GROUND (1): DENIAL OF NATURAL JUSTICE BY FAILING TO PROVIDE WRITTEN REASONS 

5.     The appellant argues that the proceedings before the National Court were a mistrial due to the failure of the trial judge to make necessary findings of fact and law and in particular the judge’s failure to comply with his undertaking to give written reasons. 

6.     The issues surrounding that scenario, where a judge indicates that a summary of the reasons for decision is being provided, which will be followed by written judgment, but where no written judgment is in fact published, have been the subject of discussion in at least four Supreme Court cases in recent times.

7.      In Amet v Yama [2010] 2 PNGLR 87, the trial judge, in delivering an  oral judgment in an election petition trial, undertook to provide full written reasons later, which undertaking was not complied with. The Supreme Court found that, though it was an unsatisfactory state of affairs as the trial judge should have complied with his undertaking, the oral reasons were lengthy and comprehensive and enabled a proper review of the decision of the National Court to be undertaken. The Supreme Court proceeded with the review, upheld it and quashed the decision of the National Court. 

8.     In Philip Opa Kore v Charles Lapa (2018) SC1699, the trial judge, in a breach of contract trial in which the appellant’s claim for specific performance was dismissed, gave an oral judgment as a summary of the main points and pronounced the orders and indicated that he would later publish detailed reasons for decision, but never did. One of the grounds of appeal was that the trial judge had denied the appellant natural justice by not giving a written judgment as he had undertaken to do. The Supreme Court upheld the appeal on the basis that it was likely that there were some reasons for decision that were undisclosed, making it difficult for the appellant to formulate grounds of appeal. The Supreme Court remitted the proceedings to the National Court for rehearing.

9.     In Coconut Products Limited v Markham Farming Co Ltd (2018) SC1717, the trial judge, in a malicious prosecution trial in which the appellant was found liable to the respondent and ordered to pay damages of close to K4 million, gave an oral judgment as a summary of his decision and pronounced the orders and indicated that he would later publish detailed reasons for decision, but never did. One of the grounds of appeal was that the trial judge had denied the appellant natural justice by not giving a written judgment as he had undertaken to do. The Supreme Court found that the oral reasons were sufficient to enable the appellant to formulate grounds of appeal, therefore the trial judge’s failure to comply with his undertaking was not a denial of natural justice. The Supreme Court proceeded with the appeal, upheld it and quashed the decision of the National Court on both liability and damages.

10.     In Hobai Haro & Lolo Bellamy v The State (2019) SC1841, the trial judge, in an aggravated rape trial in which the appellants were each convicted and sentenced to 26 years imprisonment, gave a very brief oral judgment and informed the parties that he would later publish full reasons, but never did. The appellants were self-represented and did not directly raise the issue arising from the failure to provide a written judgment. The Supreme Court addressed it of its own motion. The Court noted that the main issue at trial was identification of the offenders, and there were other issues including reliance on an alibi and contested medical evidence that also required detailed analysis. The Supreme Court held that the trial judge’s oral reasons for decision did not assess the evidence or legal principles or the application of the law to the facts. The Supreme Court concluded that the reasoning of the trial judge was incapable of proper scrutiny and that a breach of natural justice and a miscarriage of justice had occurred. The Supreme Court quashed the convictions and sentences and ordered a retrial. 

11.     From those cases the following principles emerge:

•	No judge is obliged to give written reasons for a decision, but if an undertaking is given to provide written reasons it should be complied with as soon as practicable.

•	If such an undertaking is not complied with, the failure to comply will not necessarily amount to an error of law or a denial of natural justice.

•	However, the oral reasons (which should be readily available from the transcript of the delivery of judgment) must be examined to determine whether they summarise the evidence and issues so as to enable the appellant to formulate proper grounds of appeal.

•	If the oral reasons are sufficient (eg Amet, Coconut Products) the failure to provide written reasons will of itself be of no consequence and the Supreme Court should proceed to determine the appeal, based on the oral reasons, on its merits. 

•	If the oral reasons are insufficient (eg Haro), in particular where it appears there are other undisclosed reasons for decision (eg Kore), the failure to provide written reasons will amount to a denial of natural justice, on the basis that if no or insufficient reasons are given for a decision it is presumed that there are no good reasons (Mision Asiki v Manasupe Zurenuoc (2005) SC747), and normally the appeal would be upheld for that reason alone without the necessity of examining any other grounds of appeal.  

12.     Applying those principles to the facts of this case, while it is regrettable that the trial judge did not comply with his undertaking to provide written reasons for decision, we do not consider that was in itself a denial of natural justice. We have examined the transcript of the oral reasons for decision and note that his Honour took one hour and five minutes to deliver the judgment. Though the appellant is with some justification critical of the lack of detailed consideration of the evidence and the issues for consideration, we put this case in the category of Amet and Coconut Products, rather than in the category of Haro and Kore, and find that the reasons are sufficient. There has been no denial of natural justice due to the failure to provide a written judgment. We dismiss the first ground of appeal and will proceed to determine the appeal on its merits. 

GROUND (2): FAILING TO FIND WHETHER AND HOW THE ALLEGED IMPUTATIONS WERE DEFAMATORY

13.     The three elements of a cause of action in defamation are by virtue of s 5 of the Defamation Act (explained in numerous cases, eg Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16, Vitis Industries Ltd v Pacific Star Ltd trading as The National (2014) N5807, Francis Chibelle v Jack Mafu (2015) N5982) that:

(a)	the defendant made a defamatory imputation of the plaintiff;

(b)	the defendant published it; and

(c)	the publication was unlawful in that it was not protected, justified or excused by law.

14.     The appellant argues that the trial judge, while making general findings to the effect that the article was not well researched and was generally defamatory of the respondent, failed to specify how the respondent was defamed and which of the nine defamatory imputations pleaded in the amended statement of claim were proven.

15.     We note that the trial judge did not address the definition of defamatory imputation provided by s 2 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.

16.     We uphold the appellant’s submission that if the defamatory imputation element is disputed, the judge is obliged to determine the issue, which is a question of law, by identifying which if any of the parts of the definition of “defamatory imputation” have been complied with. 

17.     In this case, the defamatory imputation element was one of two central issues for deliberation as the publication element was conceded and the appellant pleaded in its defence that the publication was protected, justified and excused by law. With respect the trial judge failed to address the issues requiring determination under s 2(1) of the Defamation Act and failed to specify which of the nine pleaded defamatory imputations were proven. We uphold ground of appeal (2). 

GROUND (3): FAILING TO PROVIDE REASONS TO DEMONSTRATE THAT THE DEFENCES PLEADED BY THE APPELLANT WERE CONSIDERED

18.     The appellant pleaded four specific defences: 

•	good faith publication for information of public, Defamation Act, s 8;

•	fair comment, Defamation Act, s 9;

•	truth, Defamation Act, s 10; and 

•	qualified protection, Defamation Act, s 11. 

19.     Two of those defences were emphasised in closing submissions for the appellant:

•	that the publication of the article was lawful as it was a fair report of the public proceedings of a court published in good faith for the information of the public and therefore a lawful publication under s 8(2)(c) of the Defamation Act; and

•	that there was a lawful excuse for publication of any defamatory matter in the article as the publication was made in good faith for the purposes permissible under ss 11(1)(c), (e) and (h) of the Defamation Act. 

20.     Both categories of defences require that the publication be made in “good faith”, and it is critical that the trial judge state and apply the special rule as to burden of proof prescribed by s 12 (good faith) of the Defamation Act, which states:

Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances that would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith is on the party alleging the absence.

21.     Both categories of defence are rather complex, consisting of intricate elements. For example, s 8(2)(c) provides:

For the purposes of this Act, it is lawful to publish in good faith for the information of the public … a fair report of the public proceedings of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings, unless—

(i)	in the case of proceedings that are not final—the publication has been prohibited by the court; or
(ii)	in any case—the matter published is blasphemous or obscene, or publication is prohibited by law. 

22.      There is a definition of “good faith” (at least for the purposes of s 8) in s 8(3):

For the purposes of this Act, a publication is made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill-will to the person defamed or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the publication of news.

23.     The defence of qualified privilege is even more complex under s 11 of the Defamation Act. As explained in SMY Luluaki Ltd v Paul Paraka Lawyers (2011) N4360 it has long been recognised that there are some situations in which there is a public interest to be served in allowing the publication of defamatory imputations provided that this privilege is not abused (Wyatt Gallagher Bassett (PNG) Ltd v Benny Diau (2002) N2277, Arlene Pitil v Rutis Clytus (2003) N2422). The common law developed the notion of qualified, as distinct from absolute, privilege, which has been codified in PNG in s 11, which recognises eight situations in which, if made in good faith, the publication of defamatory matter will be excused. The appellant relied on the privileges available under ss 11(1)(c), (e) and (h) of the Defamation Act, which are in these terms:

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—

(c)	for the protection of the interests of the person making the publication or of some other person, or for the public good; or …

(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; or …

(h)	in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

24.     The question of whether a publication is made in good faith for the purposes of s 11 is to be determined under s 11(2), which states:

For the purposes of this section, a publication is made in good faith if—

(a)	the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and
(b)	… the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and
(c)	… the person by whom it is made—

(i)	is not actuated by ill-will to the person defamed, or by any other improper motive; and
(ii)	does not believe the defamatory matter to be untrue.

25.         Determination of a qualified privilege defence follows a different type of decision-making process than in the case of other defences such as fair comment and truth. With those defences the defendant bears the onus of proving each of the elements whereas with qualified privilege the defendant bears only the onus of proving the first element, the existence of a situation of a privilege. The onus of proof, or more correctly the onus of disproof, on the second element – good faith – rests with the plaintiff (PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515; Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617).

26.     We acknowledge the appellant’s assertion that the trial judge failed to address any of the above issues. His Honour made a bald statement to the effect that none of the defences had been made out, which was clearly inadequate. 

27.     If a defendant pleads and contends specific defences under the Defamation Act the trial judge must address the elements of each defence and determine, following assessment of the evidence, after addressing  which party bears the onus of proof on each element, whether the defence has been made out. The trial judge failed to address the elements of any of the defences pleaded, and the finding on liability must for this reason also be quashed. We uphold ground (3). 

CONCLUSION 
28.        We have upheld two grounds of appeal, either of which was sufficient to allow the appeal as each of those grounds addressed the trial judge’s finding on an essential element of the statutory tort of defamation. Costs will follow the event.

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court of 6 October 2017 in WS No 368 of 2013 is quashed.

(3)	The proceedings are remitted to the National Court for retrial. 

(4)	The respondent shall pay the appellant’s costs of the appeal, on a party-party basis, which shall, if not agreed, be taxed. 
________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant 
Parker Legal Lawyers: Lawyers for the Respondent