David Coyle, Rimbink Pato and Alfred Manase v Loani Henao

• Jurisdiction: Papua New Guinea
• Judge: Los J, Jalina J, Kirriwom J
• Judgment Date: 30 November 2000
• Court: Supreme Court
• Judgement Number: SC655

Full Title: David Coyle, Rimbink Pato and Alfred Manase v Loani Henao (2000) SC655

Supreme Court: Los J, Jalina J, Kirriwom J

Judgment Delivered: 30 November 2000

SC655

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 112 OF 1999

Between:

DAVID COYLE

First Appellant

And:

RIMBINK PATO

Second Appellant

And:

ALFRED MANASE

Third Appellant

And:

LOANI HENAO

Respondent

Waigani: Los, Jalina & Kirriwom, JJ.

1999: November 28

2000: November 30

DEFAMATION — Libel — Measure of Damages — Appeal — Excessiveness of Award of K50,000 — Discretionary range — Appellate court only interfere with award in exceptional cases where the amount is inordinately high or inordinately low — "Such as to evoke an exclamation of astonishment"- Defamation Act Ch. 293.

Respondent sued the appellants for defamation and was awarded K50,000 in damages. Appellants appealed on the grounds, inter alia, that the amount was excessively high.

Held: (1) The amount is not well above the trial court's discretionary range or so inordinately high such as to evoke an exclamation of astonishment from the ordinary people to be considered manifestly excessive.

(2) The appellants have failed to show or demonstrate to the Supreme Court that the trial judge had acted on wrong principle of law or misled by misapprehension of facts.

Cases cited:

1. Christhoper Haiveta v Paias Wingti (No.2) [1994]PNGLR 189

2. Taylor v John Summers & Sons Ltd

1 (1957) 1 WLR 1182

1 Taylor v John Summers & Sons Ltd1957) 1 WLR 1182

3. Bruce Tsang v Credit Corporation (PNG) (1993) PNGLR 112

4. Lowa v Akipe [1992] PNGLR 399

5. Pfeiffer v Midland Railway Co.,( 1886) 18 GBQ 243

6. Motor Vehicles Insurance (PNG) Trust v Salio Tabanto [1995] PNGLR 214

7. Evans v Bartlaw [1937] AC 473 Evans v Bartlaw [1937] AC 473

8. Dingle v Associated Newspapers Ltd. (1964) AC 371

9. Coyne v Citizen Finance Ltd (1990) 172 CLR 211;

10. Sutcliffe v Pressdraw Ltd (1991) 1 QB 153

11. Television New Zealand Ltd v Quinn (1996) 3 NZLR 24

12. Carson v John Fairfax & Sons Ltd (1992-1993) 178 CLR 44

Textbooks and Legislation:

13. The Law of Defamation in Canada, Raymond E. Brown, Carswell 1987.

14. Defamation Act Chapter 293

Counsel:

P. Young for the Appellants

M. Cooke QC with N. Varitimos for the Respondent

DECISION

November 30, 2000

BY THE COURT: This is an appeal against an award of damages of K50,000 made by the National Court following an assessment hearing in a libel action. The suit was filed by the respondent, a lawyer practising under the firm name of Henao Lawyers, against the principals or partners of another law firm namely Pato Lawyers, the appellants herein. Liability was not contested in the National Court due to failure of the appellants and their lawyers to file their defence and the respondent obtained judgment by default. We note for the record that a belated attempt to set aside the default judgment was abandoned by counsel for the appellants on the eve of the hearing on the assessment of damages.

Grounds of Appeal

The appellants have premised their appeal on these two broad grounds:

3. (a) His Honour's award granted in favour of the Respondent was manifestly excessive.

(b) His Honour misdirected himself and/or was wrong in law.

Ground 3(b)

We deal firstly with this ground of the appeal. Counsel for the respondent submits that ground 3(b) ought not stand as it offends against Order 7 rr.8-9 of the Supreme Court Rules. In the light of the overwhelming authorities discussed herein, we are of the view that this ground must be struck out, as it is clearly incompetent. The law is already well established in Christopher Haiveta v Paias Wingti (No.2)

2 [1994] PNGLR 189

2 and the case of Taylor v John Summers & Sons Ltd

3 (1957) 1 WLR 1182

3 is in fact right on the point. The pleading in ground 3(b) offends against Order 7 rule 8 and rule 9 of the Supreme Court Rules. We set out the rules hereunder for easy reference

Order 7 Rules 8 (c) provides:

The notice of appeal shall -

(c) state briefly but specifically the grounds relied upon in support of the appeal.

Order 7 Rule 9 provides:

Without affecting the specific provisions of Rule 8, it is not sufficient to allege that a judgment is against the evidence or the weight of the evidence or that it is wrong in law, and the notice must specify with particularity the grounds relied on to demonstrate that it is against the evidence and the weight of the evidence and the specific reasons why it is alleged to be wrong in law.

It is submitted that Order 7 rule 9 must be complied with to the letter. It is not sufficient to simply allege that a judgment is wrong in law without specifying the reasons why it is alleged to be wrong. This is the respondent's contention with respect to ground 3(b) of the appeal. It is further submitted that O.7 r. 8 (c) similarly reinforces what is stated in r. 9. Although the ground must be brief but it must state specifically what it is that is wrong that has necessitated the appeal.

The contention is that the ground as pleaded fails to meet the requirement of the rules under both Order 7 rule 9 and also rule 8(c). It is clear from the wording of ground 3(b) which reads: "His Honour misdirected himself and or was wrong in law"- quite clearly fails under rule 9 because the ground as pleaded does not specify as to why the appellants say that the judgment is wrong in law. This is precisely the kind of pleading that this rule is indeed meant to avoid. The appellants have not submitted otherwise and we note the respondent's argument remains unchallenged.

Objection to Ground 3(b)

The power of this court to determine objections to competency issues is provided under Order 7 rule 14. Rule 14 reads:

14. A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal-

(a) file an objection in accordance with form 9;

(b) serve a copy of the objection on the appellant.

The respondent in this appeal did not give any notice of objection to competency to the appellants. But even if he did now, he is already way out of time. However, the issue of objection to competency of an appeal continues to run throughout the appeal whether it is raised or not. This is clearly implied or envisaged in Order 7 rule 18 which reads:

18. If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise.

In Bruce Tsang v Credit Corporation (PNG) (1993) PNGLR 112 the Supreme Court held:

"We note from the record that the respondent filed a notice of objection to competency of the notice of appeal on 22 October 1991. This matter came on for hearing on 31 October 1991, but the Supreme Court dismissed the notice on the basis that it was filed outside the 14 days limit set by O 7 r 14 of the Rules of the Supreme Court.

However, this does not prevent the respondent from raising the same issue at this stage. The issue of the competence of an appeal remains open, and the Court may address it at any time before judgment; see Lowa v Akipe [1992] PNGLR 399. The respondent filed another notice of objection to competency of the supplementary notices on 16 June 1992. It is this objection which has been raised by the respondent for determination by this Court."

However the submission by Mr. Cooke for the respondent which is akin to raising an objection to the competency of a part of this appeal was squarely addressed in Christopher Haiveta v Paias Wingti (No.2)

4 (1994) PNGLR 189 at p.193

4 where the Supreme Court made the following observation

"Counsel for the respondents submitted that these grounds of appeal were not given "in the manner prescribed by the rules of Court", as required by s 17 of the Act. In particular, they submitted that they do not comply with O 7 r 8 and r 9. Order 7 r 8 and r 9 are in the following terms:

"8. The notice of appeal shall

(a) state that an appeal lies without leave or that leave has been granted and or annex appropriate order to the notice of appeal;

(b) state whether the whole or part only and what part of the judgment is appealed from;

(c) state briefly but specifically the grounds relied upon in support of the appeal;

(d) state what judgment the appellant seeks in lieu of that appealed from;

(e) be in accordance with form 8;

(f) be signed by the appellant or his lawyer; and

(g) be...