Kamea Gabe v Jack Clunn and Pacific Gold Studios Pty Ltd

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 02 November 1995
• Citation: [1995] PNGLR 153
• Court: National Court
• Year: 1995
• Judgement Number: N1378

National Court: Brown J

Judgment Delivered: 2 November 1995

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KAMEA GABE

V

JACK CLUNN ANORS;

AND PACIFIC GOLD STUDIOS PTY LIMITED

Waigani

Brown J

4 September 1995

5 September 1995

6 September 1995

28 September 1995

2 November 1995

DEFAMATION — Publication of defamatory lyrics Cassette recording and sale of song — Motuan lyrics obscene — Lyrics referring to "Kamea of Elevala" afford, in the circumstances no denial that they relate to the plaintiff.

DAMAGES — Defamation — Assessment where plaintiff Rahobada or senior elderly leader of motuan society — Malicious statement asserting plaintiff exhibited perverted sexual tendencies towards young children — Qualified defence not available — Qantum of damages for solartuim Defamation Act Ch 293.

Facts

The plaintiff was an elderly Motuan man from and living in Elevala village Port Moresby. Jack Clunn, the first defendant who has Motuan ancestry, was the leader of the band, Clockwork Orange. At or about April 1992, the second defendant, released a cassette album entitled, "Clockwork Orange" which was recorded by the firs tdefendants in the second defendant's Port Moresby studios.

One of the songs contained in the album entitled, "Tiny Bubbles" sung partly in English and Motu, was alleged to contain obscene and highly offensive lyrics in the Motuan language which defamed the plaintiff.

The first defendants did not file a defence hence judgment by default was entered against them, with damages to be assessed. The second defendant did file a defence, but after the plaintiff gave evidence, abandoned its defence and admitted liability. The trial then proceeded only on the question of damages.

Held

1. The alleged defamatory lyrics referred to no one else but the plaintiff.

2. The lyrics were indeed defamatory of the plaintiff.

3. Under the circumstances, qualified defence of unlikelihood of harm must fail.

4. Assessment of damages in this instance is that of solartium. "Solartium is more commonly understood in cases involving the loss of children in accidents for instance, where parents are entitled to recover damages on that basis. Solartium is compensation for mental suffering. In cases such as this, it is compensation for the injury to the plaintiff's feelings. He is not compensated because of his damaged reputation (which has clearly happend in any event) but rather because he, subjectively, is seriously injured in his feelings and his burden of knowing that there is a general odium attaching to him as a result of this obscene song sung about him": per Brown J.

5. In the circumstances of this case, an appropriate award is K6,000 plus interest and costs.

6. In the second defendant's cross-claim for indemnity from the first defendants, the publisher shall bear 60% of the judgment, interest and costs and the band members 40%.:

Cases Cited

Papua Ne w Guinea cases cited

Baker v Lae Printing Pty Ltd [1979] PNGLR 16.

Wayne Cross v Wess Zuidema [1987] PNGLR 361.

Other cases cited

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 18

Australian Consolidated Press Limited v Uren (1968) 117 CLR 221.

Counsel

E. Kamburi, for the plaintiff.

K. Kua, for the second defendant.

No appearance of first defendants.

2 November 1995

BROWN J: This is an action for defamation which became one of assessment of damages after the second defendant Pacific Gold Studios Pty Ltd (Pacific Gold) admitted liability for a defamation which arose out the recording and production of a song "Tiny Bubbles" by the Clock Work Orange Band and its sale in cassette form by Pacific Gold.

The first defendants, the band members ("the band") have not defended the proceedings and consequently by default, a verdict restricted to liability, was entered against them, with damages to be assessed. Pacific Gold filed a defence and the trial proceeded on that basis. After the plaintiff had given some evidence Pacific Gold quite properly abandoned its defence on liability. The trial consequently proceeded on an assessment of damages.

In Pacific Gold's case, some of the band members were called to give evidence.

THE OBSCENE MATERIAL

The plaintiff's statement of claim relates that in about April of 1992 Pacific Gold released a cassette album entitled "Clock Work Orange" recorded by the band in the studios of Pacific Gold in Port Moresby. Amongst the songs was one entitled "Tiny Bubbles" sung partly in English and Motu. The motuan lyrics were obscene and highly offensive. I do not propose to compound the offensiveness by reiterating the Motu or translated English lyrics, suffice to say that in their ordinary meaning, the words sung are obscene. Included in two verses of the song are the lines "Kamea the elderly man from Elevala" and "Kamea the elderly man, the Elevala dog ...", a description which has brought the plaintiff to Court since in Elevala Village, they could refer to no-one else, and they relate the obscenity to him. The plaintiff alleges no innuendo, rather relies on the plain and ordinary meaning of the words used. The nature of the lyrics relates to sexual proclivities of a perverted nature and involve indecencies on young chidren.

The defence of unliklihood of harm (s 14, Defamation Act Ch 293), whilst not pursued on liability was taken up, in a sense, by Pacific Gold, on the question of the extent of hurt to the plaintiff. While conceding the obscene and offensive nature of the lyrics, Mr Seeto says that Motuan custom sees the words complained of as humorous or funny. Consequently no damage has in fact, been suffered in this case for the plaintiff is Motuan. In that society, no harm is intended despite the ordinarily obscene effect.

The plaintiff is an elderly man living in Elevala Village, the large neighbouring village to Hanuabada, on the shores of Fairfax Harbour, Port Moresby. He is aged in his middle sixties and has lived at Elevala all his life. He had a distinguished career with the Public Service between 1946 and 1983. As well he has held and holds various community positions. He is currently a Deacon in his church. He has seven children and some...