Cyril Mudalige, Acting Principal Ships Surveyor & Safety Officer v Rabaul Shipping Limited and Peter Robert Sharp (2011) SC1132

• Jurisdiction: Papua New Guinea
• Judge: Davani J, David and Sawong, JJ
• Judgment Date: 02 September 2011
• Court: Supreme Court
• Docket Number: SCA. NO. 161 OF 2009
• Citation: (2011) SC1132
• Year: 2011
• Judgement Number: SC1132

Full Title: SCA. NO. 161 OF 2009; Cyril Mudalige, Acting Principal Ships Surveyor & Safety Officer v Rabaul Shipping Limited and Peter Robert Sharp (2011) SC1132

Supreme Court: Davani J, David and Sawong, JJ

Judgment Delivered: 2 September 2011

SC1132

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 161 OF 2009

BETWEEN:

CYRIL MUDALIGE, ACTING PRINCIPAL SHIPS SURVEYOR & SAFETY OFFICER

Appellant

AND:

RABAUL SHIPPING LIMITED

First Respondent

AND:

PETER ROBERT SHARP

Second Respondent

Waigani: Davani J, David and Sawong, JJ.

2010: 26 October

2011: 2nd September:

DECISION

DEFAMATION – Defences – Fair comment – Truth – Qualified privilege: Publication made in good faith for the public benefit – Defamation Act (Ch. No. 293), Section 9 (1)(b), Section 10, Section 11(1)(h).

Facts

In November 2002, the first respondent purchased a 30 year old steel vessel MV Morobe Queen in Japan and sought provisional registration from the Papua New Guinea Shipping Registry. In response, the Appellant wrote to the relevant Japanese authorities saying inter alia and concerning the respondents that “the owners had very bad records in maintaining vessels…this authority is short of surveyors to survey such vessels…It is requested …Inspector in Hiroshima to check and verify condition of the vessel before it departs Japan…”

The respondents claim that this was defamatory of them. In the proceedings, the defendants claim defences of fair comment under Section 9(1)(b), of truth under Section 10 and that although the statements were prime facie defamatory, the statements were privileged under Section 11(qualified privilege) of the Defamation Act.

The trial judge found these statements prime facie defamatory of the respondents and found that the statutory defences of fair comment, truth and privilege were not proved by the appellants. The appellants have appealed against that finding of liability.

Held:

1. (Per Davani J at [32], David J concurring and Sawong J at [17]) - The Court’s first task is to consider whether publication was made on a protected occasion, before proceeding to consider whether it was made in good faith;

2. Per Davani J at [55] David J concurring and Sawong J at [22] - The trial judge failed to determine if the defamatory statement was protected or the occasion privileged;

3. (Per Davani J at [44) - In the defence of truth, it is for the appellant to prove the allegations are true, not that the proof is contained in the document containing the allegations;

4. (Per Davani J at [48-49]) - The Defence of Truth and the Defence of Fair Comment are separate and distinct defences and the Defence of Truth must be considered on its own before considering the Defence of Fair Comment;

5. (Per Davani J at [53]) - To obtain the protection of s.11 of the Defamation Act the publication must be made in good faith, without malice, acting honestly on reasonable grounds believing that what is published is true and necessary for the purpose of his redress of a wrong to him or her for the public good or interest;

6. (Per Davani J at [62] O8 r31 and O8 r87 must be read together - The trial Court should not venture into a consideration of malice unless it is specifically pleaded as “malice in fact” or “malice in law”.

7. (Per Davani, David and Sawong JJ) - Appeal upheld, orders of the National Court quashed.

Cases Cited:

Papua New Guinea Cases:

David Lambu v Paul Paken Torato (2008) SC593

Henzy Yakam v Steward Hamilton Merriam and Carol Merriam (No.2) (1999) SC 617

PNG Aviation Services Pty Ltd v Sir Michael Somare [1996] PGNC 62; N1493

Rimink Pato v Umbu Pupu [1986] PNGLR

Wyatt Gallagher Bassett (PNG) Ltd v Diau [2002] PNGLR 51

Overseas Cases Cited

Adam v Ward [1916-17] All ER Rep 159

Eyre v New Zealand Press Association Ltd [1978] NZLR 736

London Artist Ltd v Littler [1968] 1 WLR 607

Pullman & Anor v Walter Hill & Co Ltd (1891) 1 QB 524

Watt v Longsdon [1930] 1 KB 130

Text referred to:

Gatley on Libel and Slander (8th Ed. 1981)

Supreme Court Practice 1985

The Law of Defamation in Australia and New Zealand

Statutes

Defamation Act (Ch. No. 293).

Counsel:

Mr Keith Iduhu, for the Appellant

Ms Jacqueline Marubu, for the Respondents

2nd September, 2011

1. DAVANI .J. This is an appeal against the National Court’s decision of 23rd October, 2009, where the Court found the appellant liable for defamation. The hearing on the assessment of damages has yet to take place.

2. In the National Court proceedings WS 20 of 2005, the appellant was alleged to have defamed the respondents by a letter to the Ministry of Land and Infrastructure and Transport in Tokyo, Japan, letter dated 26th November, 2002.

3. In its Defence, the appellant pleaded the Defence of fair comment, truth and qualified privilege.

4. I note also that in the National Court proceedings, the Independent State of Papua New Guinea was named as the second defendant and Cyril Mudalige, the first defendant. The Office of the Solicitor-General filed a Defence in this matter on 28th January, 2005. In this appeal, only Cyril Mudalige is named as the appellant. The Court was not informed of the events that occurred in the Court below that saw the removal of the State as a party to the proceedings. Relying on the good records before me, I note that Cyril Mudalige is the only appellant in these proceedings.

5. I raise this because it is relevant to the issue of costs, depending on the outcome of this appeal.

Background

6. The background to this matter is conveniently set out by my brothers David and Sawong .JJ. Therefore, I need not set that out.

7. However, it is relevant and necessary that I set out the evidence which the appellant had put before the trial judge, in relation to the first and second respondents record, as it were, in the proper maintenance of ships. I do this because it is these facts that the appellant relied on, to raise and maintain his Defences.

8. The evidence in the Court below revealed that the respondents owned several other vessels which had sunk and which sinking prompted the conduct of several investigations.

9. The appellant’s involvement in this matter is by virtue of his being the Acting Principal Ships Surveyor at the time of his sending the letter of 26th November, 2002, to Japan.

10. The appellant is a qualified Seagoing Marine Engineer. In 1979, he passed the certificate of competency first class motor UK Department of Trade and Transport. He is a member of the Institute of Marine Engineers in the UK and has sailed in the capacity of Chief Engineer and 2nd Engineer on bulk carriers and container carriers all over the world.

11. From 1991 to 1995, he was the Marine Superintendent in Colombo, Sri Lanka and was in charge of dry docking.

12. In 1996, he was recruited by the Department of Transport, Papua New Guinea, as a Marine Engineer Surveyor/Examiner based in Madang. Upon his promotion to Acting Principal Ships Surveyor of the Department of Transport, he was in charge of the Ships’ Safety Inspections and Surveys section of the Maritime Safety Branch. As delegate of the Safety Officer, who was the Secretary to the Department of Transport, his responsibilities were to ensure that the safety standards on ships were maintained and conditions on ships improved for the safety and lives of both the crew and passengers. His responsibilities were also to prevent pollution to the marine environment. Since that time, he has surveyed and inspected nearly 50 ships annually. (Pars.1, 2, 5 of Cyril Mudalige’s affidavit, sworn on 15th May, 2009) (pgs. 37 to 38 of Appeal Book). These facts are not disputed.

13. The evidence is also that the appellant has surveyed several vessels including those owned by the respondents. The vessels that the appellant makes particular reference to are the MV Kris and MV Saracen. These investigations occurred after the MV Kris sunk in 1994 with the loss of 8 lives. The MV Saracen sank in 1993 where 10 lives were lost. Another vessel MV Morima Trader sank on 24th December, 2001. No lives were lost. The MV Kondor, another vessel that the appellant inspected and which inspection revealed that the vessels Safety Survey Certificate had expired on 24th October, 2001 and that although the first respondent was advised not to operate the ship as it needed urgent docking and heavy upgrading equipment, that the first respondent continued to operate the MV Kondor without complying with the advice given to him by the appellant. It was not until 2nd April, 2002, that a passenger who had arrived in Port Moresby from Rabaul on the MV Kondor, complained that the MV Kondor was in a very bad state. This was when the appellant and several other officers attended upon and conducted an inspection of the MV Kondor and noted that it had not been repaired and/or maintained as per the appellants instructions to the respondents and that the condition of the ship’s hull “was still very bad if not worse”. (See...