Moresby Claim Adjustment Partners Ltd and Benny Diau v Wyatt Gallagher Basset [Bassett] (PNG) Limited (2003) SC713

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Sakora J
• Judgment Date: 15 August 2003
• Court: Supreme Court
• Citation: [2003] PNGLR 140
• Docket Number: SCA No 88 of 2002
• Year: 2003
• Judgement Number: SC713

Full Title: SCA No 88 of 2002; Moresby Claim Adjustment Partners Ltd and Benny Diau v Wyatt Gallagher Basset [Bassett] (PNG) Limited (2003) SC713

Supreme Court: Amet CJ, Kapi DCJ, Sakora J

Judgment Delivered: 15 August 2003

SC713

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

SCA No. 88 of 2002

BETWEEN:

MORESBY CLAIM ADJUSTMENT PARTNERS LTD

First Appellant

AND:

BENNY DIAU

Second Appellant

AND:

WYATT GALLAGHER BASSET

(PNG) LIMITED

Respondent

Waigani: Amet CJ., Kapi DCJ., Sakora J.

24th April, 15th August 2003

DEFAMATION – Libel – Letter to Insurance Commissioner making false allegations – Whether there was publication? – Qualified protection under s 11 of Defamation Act – Whether the statements made in good faith.

DAMAGES – Damages for Defamation – Damages for actual loss and loss of good will.

N. Nalawaku for the Appellants

I.Molloy for the Respondent

Cases Cited:

Pullman and Another v Walter Hill & Co. Ltd [1891] 1 QB 524

Adam v Ward [1916-17] All E R 159

Coyle v Hanao (Unreported Judgment of the Supreme Court dated 30th November 2000) SC655.

PNG Aviation Services Pty Ltd & Ors –v- Michael Thomas Somare & Ors N1493 (1996) Unreported.

Powell –v- Gelston [1916] 2 KB 615.

Legislations Cited:

Defamation Act

Insurance Act 1995

15th August 2003

By The Court: This appeal is against a decision of the National Court (Kandakasi J) in which the Court found Moresby Claim Adjustment Partners Ltd (First Appellant) and Benny Diau (Second Appellant) liable for defamation against Wyatt Gallagher Basset (PNG) Ltd (Respondent).

The facts giving rise to this cause of action are briefly these. The Second Appellant is the Managing Director of the First Appellant which carries on business in insurance loss assessing, adjusting and surveying services. The Respondent is engaged in the same line of business.

In letters dated 25th February 2000 and 6th March 2000 addressed to the Insurance Commissioner, the Second Appellant wrote of the Respondent the words

“…Wyatt Gallagher (PNG) Ltd is breaching the Labour Laws…….failing to train employees……..engaging unqualified expatriates………and offering employees of insurance companies bribes and inducements to obtain work”

It is alleged that these letters were received by the Insurance Commissioner and this resulted in an investigation. It is not necessary to refer to the details of the investigation for the purposes of the appeal before us.

The National Court found the Appellants liable for publishing defamatory material in respect of the Respondent and awarded K90,500.00 in damages. The Appellants appealed against the whole of the decision on the following grounds:

“1.0 Publication

1.1 His Honour, the trial judge after having made a finding of fact that the Insurance Commissioner was responsible for the general administration of the Insurance Act thus entitled to receive all information including complaints affecting the industry.

(a) erred in law in making a finding that the Insurance Commissioner was a third party not entitled to receive such information when there was evidence that the defamatory material were intended and addressed to him in his official capacity hence no publication, Powell –v- Gelston [1916] 2 KB 615;

(b) erred in law in finding that there was publication when case law showed there is no publication where a defamatory material is read by a person other than the person whom the publication was intended, Huth –v- Huth [1915] 3 KB 32;

(c) erred in law in making a finding that the Insurance Commissioner was a third party when he was not within the meaning and spirit of section 11 of the Defamation Act.

(d) In the alternative, even if the Insurance Commissioner was a third party, the trial judge erred inn law in finding that there was publication of the defamatory material to the Insurance Commissioner when evidence showed that the Insurance Commissioner had an interest in the subject hence entitled to receive such communication in confidence in respect of matters affecting the insurance industry. Powell –v- Gelston [1916] 2 KB 615.

1.2 His Honour erred ion law in drawing an inference that the letter was typed by the Secretary of the Appellants, thus publication at that stage, although having made a finding of fact that there was no evidence as to who typed out the two (2) letters containing the defamatory matter to constitute publications.

1.3 The trial judge erred in law in drawing an inference that the Insurance Commissioner’s Secretary or a clerk in the Insurance Commissioner’s Office read the defamatory letter hence publication when there was no evidence showing the mode of delivery of the letters to draw such inference.

1.4 His Honour the trial judge erred in law in stating that it was not necessary for the Court to have regard to the Defendant’s argument that the Plaintiff/Respondent has failed to establish by way of evidence publication.

(a) when there was no single evidence from the Plaintiff/Respondent or all that the defamatory letters were copied or circulated to persons other than the Insurance Commissioner,

(b) when there was no evidence from the Plaintiff that it did in fact had copies of the defamatory letters mailed or delivered to it,

(c) when the only evidence for the Plaintiff from Mr. Muir was that he only saw the copies of the two defamatory letters for the first time in Court at the time of trial when giving evidence.

(d) Had the trial judge did have regard to the facts set out in paragraphs (a), (b) and

(e) (c) herein, the Court could have arrived at a different conclusion.

2.0 Qualified Protection – Section 11, Defamation Act.

2.1 His Honour, the trial judge, erred in law and in fact in making a finding that publication of the defamatory material by the Appellant was not protected by the defence of qualified protection under Section 11 of the Defamation Act in that.

(a) His Honours failed to establish that the publication was made on protected occasion before deciding the question of good faith; PNG Aviation Services Pty Ltd & Ors –v- Michael Thomas Somare & Ors N1493 (1996) Unreported.

(b) The occasion on which the publication was made was protected or privileged under Section 11(b), (c) and (e) of the Defamation Act in that the Insurance Commissioner was entitled to know and have access to such information in his official capacity in confidence.

(c) The occasion on which the publication made was privileged in that the First Defendant and the Insurance Commissioner had a common interest in the subject published about.

3.0 Res Judicata

3.2 The trial judge erred in law in making a finding that the Respondent’s claim was not res judicata in that:

(a) There was evidence before the Court that a judgement had been entered in the Plaintiff’s favour for the sum of K384,000.00 in proceedings WS No. 446/2000 on the 4th of June 2002 when pleadings in the current matter had closed and the matter was ready for trial on the 27th of June 2002.

(b) There was evidence before the Court showing that the Respondent was already awarded damages for the sum of K384,000.00 in proceedings WS No. 446/2000 against the Insurance Commissioner for alleged defamation arising from the same set of facts in the instant proceedings.

(c) The injury to reputation or goodwill can be done only once and that once damage is done, there is no more reputation or goodwill capable of being damaged;

(d) The publication of the defamatory materials were done once thus the damages suffered by the Plaintiff/Respondent is one and the same and therefore cannot claim for the same injury from two (2) different Defendants as such is unjust enrichment.

4.0 Damages

4.3 The trial judge erred in fact and in law in finding that the Plaintiff suffered special damages in the sum of K40,500.00 in that there was no evidence before the Court showing any correspondence from the Plaintiff to the Insurance Commissioner by way of response to the Appellant’s two (2) letters dated 25th February and 6th March 2000 the subject of the defamation proceedings.

4.4 The trial judge erred in fact in finding that the Plaintiff lost managerial and secretarial time worth K40,500.00 when there was no independence evidence before the Court showing loss of such time.

4.5 The trial judge erred in fact in finding that the Insurance Commissioner’s perception of the...