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Hetura Paz Development Co Pty Ltd v Niugini Nius Pty Ltd, Paliau and Thurecht [1982] PNGLR 250 (8 April 1982)

Papua New Guinea Law Reports - 1982

[1982] PNGLR 250 - Hetura Paz Development Co Pty Ltd v Niugini Nius Pty Ltd, Bernard Paliau and Michael Thomas Thurecht 

[1982] PNGLR 250

N376

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

HETURA PAZ DEVELOPMENT CO. PTY. LTD.

V

NIUGINI NIUS PTY. LTD.

AND BERNARD PALIAU

AND MICHAEL THOMAS THURECHT

Waigani

Kapi DCJ

8 April 1982

DEFAMATION - Injunctions - Interlocutory - Jurisdiction of court - Relevant considerations on exercise of discretion.

In determining whether an interlocutory injunction to restrain further publication of material alleged to be defamatory ought to be granted in the exercise of the court’s discretion under O. 58, r. 11 of the National Court Rules the following matters are relevant:

(a)      the discretion should be carefully exercised, particularly where privilege is claimed;

Quartz Hill Consolidated Gold Mining Co. v. Beall, [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501, applied.

(b)      where privilege is claimed malice must be proved;

Liverpool Household Stores Association v. Smith [1887] UKLawRpCh 212; (1887) 37 Ch. D. 170, 180, and Bonnard v. Perryman [1891] 2 Ch. D. 269, applied.

(c)      freedom of expression and publication as guaranteed by s. 46(1) of the Constitution is a strong reason for the cautious exercise of the jurisdiction;

Bonnard v. Perryman [1891] 2 Ch. D. 269, referred to.

(d)      the jurisdiction should be exercised only in clear cases of defamation;

Coulson, William and Sons v. Coulson, James and Co. (1887) 3 T.L.R. 846, and Liverpool Household Stores Association v. Smith [1887] UKLawRpCh 212; (1887) 37 Ch. D. 170, 180, applied.

(e)      where it is intended to make fair comment on a matter of public interest, even though the material sought to be restrained be defamatory, whether the truth should out in the public interest;

Fraser v. Evans [1969] 1 Q.B. 349 at p. 360 applied.

(f)      whether the plaintiff is likely to suffer by the publication sought to be restrained;

Fraser v. Evans [1969] 1 Q.B. 349 applied; and

(g)      that the “balance of convenience” rule generally applicable to interlocutory injunctions does not apply in defamation proceedings.

Edelsten v. John Fairfax & Sons Ltd. [1978] 1 N.S.W.L.R. 685.

Cases Cited

Bonnard v. Perryman [1891] 2 Ch. D. 269.

Coulson, William and Sons v. Coulson, James and Co. (1887) 3 T.L.R. 846.

Edelsten v. John Fairfax & Sons Ltd. [1978] 1 N.S.W.L.R. 685.

Frazer v. Evans [1969] 1 Q.B. 359.

Liverpool Household Stores Association v. Smith [1887] UKLawRpCh 212; (1887) 37 Ch. D. 170.

Quartz Hill Consolidated Gold Mining Co. v. Beall [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501.

Summons

This was an application, by a plaintiff in proceedings in defamation, for an interlocutory injunction to restrain further publication of material alleged to be defamatory.

Counsel

J. G. Fuller, for the plaintiff.

B. Larkin, for the defendant.

8 April 1982

KAPI DCJ: The plaintiff in this application sought an interlocutory injunction to restrain the defendants from further publishing articles similar in nature to the article that appeared in the “Weekender” entitled “Bogus firm leases prime land” dated 13th March, 1982.

This matter came before me on the last working day before my departure for circuit in the Eastern Highlands Province. Because of the urgent nature of the application, I made a ruling that I would not grant the injunction and indicated that I would give my reasons later. This, I now do.

As a result of the article referred to above, the plaintiff commenced an action for defamation under the provisions of the Defamation Act 1962 against the defendants. Pleadings in this action have not reached a point past appearances by the defendants.

Pending the final determination of this action, the plaintiff made an ex-parte application for an injunction against the defendants. This application came before Kearney Dep. C.J. (as he then was). His Honour granted the injunction but only for a limited period. This order was not served on the defendants and expired on 24th March, 1982. In the meantime, no further articles were published.

The application before me was a fresh application for a similar order pending the trial of the action. The defendants were served with the notice of this application and were represented by counsel.

JURISDICTION

The jurisdiction of the court was not contested by both counsel. Counsel did not refer me to any statutory or equitable basis for the jurisdiction of the court. It appears that the jurisdiction of the court is derived from the Rules of Court. The relevant rule is O. 58, r. 11. The following are the relevant words:

“In any action in which an injunction has been or might have been claimed, the plaintiff may, before or after judgment, apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act... or from the Commission of any injury...; and the Court or Judge may grant the injunction, either upon or without terms, as may be just.”

I consider this rule to be the basis for the court’s jurisdiction in applications of this nature. The discretion given to the court in exercising this jurisdiction is wide. Such wide discretion is given by the words “as may be just”.

In addition, the jurisdiction of this Court would also exist under the second limb of s. 155(4) of the Constitution. See Supreme Court Reference No. 2 of 1981, S.C. 224, dated 26th March 1982.

Similar jurisdiction given by our rule is given to the courts in England—s. 28(5) of the Judicative Act 1873 (Imp.) and in New South Wales—See s. 66 of the Supreme Court Act, 1970.

As there is no authority in this jurisdiction on interlocutory injunctions in defamation cases it may be of assistance to refer to the authorities in England and elsewhere, how this jurisdiction has been exercised.

It is not necessary to set out all the cases in any greater detail than simply to state in brief the propositions contained in them. All the English cases are conveniently set out in a very helpful judgment of Yeldham J. in Edelsten v. John Fairfax & Sons Ltd. [1978] 1 N.S.W.L.R. 685. The following points appear to emerge from the cases:

(a)      Jurisdiction to grant an interim injunction to restrain publication of matter alleged to be defamatory must be very carefully exercised particularly where privilege is claimed: Quartz Hill Consolidated Gold Mining Co. v. Beall [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501.

(b)      Where privilege is claimed, the plaintiff must prove malice. This is difficult to prove on an interlocutory application. Liverpool Household Stores Association v. Smith [1887] UKLawRpCh 212; (1887) 37 Ch. D. 170, at p. 180; Bonnard v. Perryman [1891] 2 Ch. D. 269.

(c)      Free Speech is a strong reason for being very cautious with the exercise of jurisdiction: Bonnard v. Perryman (supra).

(d)      Even if defamatory but intends to make fair comment on a matter of public interest—the truth should out: Fraser v. Evans [1969] 1 Q.B. 349.

(e)      Jurisdiction should be exercised only in clear cases of defamation. Coulson, William and Sons v. Coulson, James and Co. (1887) 3 T.L.R. 846.; Liverpool Household Stores Association v. Smith (supra).

(f)      The balance of convenience does not apply in defamation cases. Edelsten v. John Fairfax & Sons Ltd. (supra).

(g)      Whether the plaintiff is likely to suffer by the publication. Fraser v. Evans (supra).

Both counsel did not question the application of these principles. I would adopt these principles as a guide in the exercise of the court’s discretion in this jurisdiction.

In the instant case, the plaintiff relied on the affidavit of Mr. Rudd. This was the same affidavit relied upon for the application before Kearney Dep. C.J. (as he then was). In this affidavit, it was alleged that there was evidence of defamation in that the article suggested dirty deals by the plaintiff with a Minister of the Government. Agents and/or servants of the first defendant intend to enlarge upon the article. It was alleged this is likely to further defame or repeat the injury already caused to the plaintiff by the first publication.

However, the strength of the plaintiff’s application was weakened by an affidavit filed on behalf of the defendants. In this affidavit Mr. Bragg deposed to the fact that there were errors in the first publication. The first defendant intends to correct the errors and apologize in a subsequent publication. I do not know what the nature of this publication would be like. However, one thing is clear, it is not going to contain errors. It was not clear from the evidence in this interlocutory application whether any defamatory material would be included. In other words there was no evidence that it would contain defamatory material. It could not be said that any wrong would be done to the plaintiff. If any damage is likely to be done by any further publication, it has already been done. If any new defamatory materials are published (which was not supported by any evidence) this can be the subject of a new cause of action.

Further, the affidavit of Mr. Bragg showed that the first defendant intends to make a fair comment on a matter of public interest. Even if the proposed publication is defamatory, if the defendant intends to make a fair comment on a matter of public interest, the court would be reluctant to grant injunction. The words of Lord Denning are applicable in Fraser v. Evans (supra):

“First, Libel: Insofar as the article will be defamatory..., it is clear that he cannot get an injunction. The court will not restrain the publication of an article, even though it is defamatory, when the defendant says he intends to... or to make fair comment on a matter of public interest. That has been established for many years ever since Bonnard v. Perryman [1891] UKLawRpCh 69; (1891) 2 Ch. 269. The reason sometimes given is that the defences of justification and fair comment are for the jury, which is the constitutional tribunal, and not for a judge. But a better reason is the importance in the public interest that the truth should out.... There is no wrong done if it is true, or if it is fair comment on a matter of public interest. The court will not prejudice the issue by granting an injunction in advance of publication.”

This reasoning is based on the freedom of the press. Section 46 of the Constitution gives every person the right to freedom of expression and publication. It should be noted that this right can only be regulated or restricted by a law. Laws of Papua New Guinea are as set out in s. 9 of the Constitution. As far as an Act of Parliament is concerned, an ordinary Act may regulate or restrict the right of:

(a)      public office-holders (s. 46(1)(a) of the Constitution), and;

(b)      non-citizens (s. 46(1)(b) of the Constitution).

Insofar as an Act is dealing with the regulation or restriction of the right of all persons in the country, it must comply with the requirements in s. 38 of the Constitution (s. 46(1)(c) of the Constitution). An interesting issue which arises is whether the Defamation Act which applies to all persons complies with s. 38 of the Constitution. This was not argued before me but I understand it may be argued in the trial of the action.

Counsel for the plaintiff has further argued that there was malice in the first publication and there is likelihood of malice in a subsequent publication. Whether or not there was malice on the part of the defendants in the first publication cannot be determined with any confidence by affidavit in an interlocutory application. That is a matter to be determined at the trial of the action. There was no evidence to suggest that the defendants are going to publish defamatory material with malice. The only evidence on the nature of article is that the defendants intend to correct errors and apologize for those errors. I should add that it is the plaintiff’s desire for the defendants to correct errors and apologize for those errors.

For these reasons I refused to grant the injunction.

Injunction refused.

Solicitor for the plaintiff: Gadens.

Solicitor for the defendants: Beresford Love & Company.