PNG Aviation Services Pty Limited v Michael Thomas Somare and The Independent State of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Sakora J:
• Court: Supreme Court
• Citation: (2000) SC658
• Year: 2000
• Judgement Number: SC658

Full Title: PNG Aviation Services Pty Limited v Michael Thomas Somare and The Independent State of Papua New Guinea

Supreme Court: Salika J, Sevua J, Sakora J

Judgment Delivered: ? December 2000

SC658

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 5 OF 1997

BETWEEN:

P.N.G. AVIATION SERVICES PTY LIMITED

-Appellant-

AND:

MICHAEL THOMAS SOMARE

-First Respondent-

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

-Second Respondent-

WAIGANI: SALIKA, SAKORA, SEVUA, JJ

November, 1999

December, 2000

Defamation — Damages — Damages to Company — Damages to Company reputation — Damages to Company trade reputation or goodwill — Aggravated damages — General Damages.

Mr. J. Shepherd, for the Appellant

Mr. J. Kwimb, for the Respondents

DECISION

SALIKA, J: The appellant appeals from a part of the decision of the National Court dealing with the assessment of damages in favour of the appellant given in WS 290 of 1987 on 20 December 1996 at Waigani.

The appellant at the time of filing of the notice of appeal had also filed an application for leave to appeal. The grounds for application for leave were that the appeal raised matters of importance and justice between the parties and as such that he relied on his grounds of appeal.

The grounds of his appeal are as follows:

"(1) The award of damages in favour of the appellant was unreasonable and manifestly inadequate.

(2) In assessing the appellant's damages the learned trial judge failed to give any sufficient consideration to the loss of at least K313,316 suffered by the appellant in the year 1985.

(3) The learned trial judge erred in failing to give any or any sufficient consideration to the evidence of the appellant's loss of income in the year in which the defamatory matter was published or in subsequent years.

(4) Having found that the appellant was "a viable operation" and being "satisfied that it had every chance of developing into a strong profitable business had this (defamatory) attack not occurred" the learned trial judge erred in failing to determine and award damages for the appellant's financial loss.

(5) The learned trial judge erred in failing to award, or to give any consideration to awarding, aggravated damages in favour of the appellant.

(6) His Honour erred in failing to award, and in failing to consider awarding, interest on damages at a commercial rate.

(7) The appellant reserves the right to add to these grounds of appeal when a transcript of the evidence is available."

The appellant seeks the following orders:-

"(1) That the award of the National Court in favour of the appellant be set aside and in lieu thereof judgment be entered against the respondents in favour of the appellant for damages as assessed by the Supreme Court and for interest thereon at such rate as to the Court seems just.

(2) Alternatively, that the award of the National Court be set aside and that the proceedings be returned to the National Court for re-assessment of the appellant's damages and interest thereon.

(3) The respondents pay the costs of the appeal.

(4) Such further or other order as the Court considers just."

APPLICATION FOR LEAVE TO APPEAL

The application for leave was filed contemporaneously with the notice of appeal. This was in conformity with the practice of the Supreme Court Rules as approved by the Supreme Court in KUNANGEL v. THE STATE (1985) PNGLR 144. This practice of simultaneous filing of a notice of appeal was subsequently disapproved by the Supreme Court in HENZY YAKAM & OTHERS v. THE STATE & OTHERS, SC 533 dated 27 November 1997. In the YAKAM case the Court held that where a Notice of appeal sets out the grounds which require leave, a separate Application for leave must be determined first in time. The Court went on to say that a Notice of Appeal and Application for leave to appeal are different both in form and content in that the grounds seeking leave to appeal are different to the grounds in the Notice of Appeal.

The appellant submits that the procedures relating to applications for leave to appeal required as a result of the decision in the YAKAM case should not apply to him because he filed his Notice of Appeal and his Application for leave to appeal under the practice approved in the KUNANGEL case. I am also of the same view that the ruling in the YAKAM case should not affect this case. In the light of that view, I am satisfied that leave be granted for the reasons stated in his application for leave to appeal, that is there are serious issues of law to be determined in this case.

THE APPEAL

The appellant contends that the award of general damages to the company was unreasonably low and that it was manifestly inadequate given the finding by the learned trial judge concerning the enormity and the wide impact the defamation had on the company.

The background facts as set out in the trial are:-

"On 16 August 1985 the Prime Minister of Papua New Guinea the Hon. Mr. Michael Somare addressed Parliament in answer to questions that had been put to the Government by the Leader of the Opposition Mr. Paias Wingti.

The Government was challenged in its dealings relating to the sale [and] purchase of Government aircraft. The Opposition through its Leader accused the Government of accepting bribes in return for business favours. At that time the issues raised by those questions were a matter of considerable public interest.

Mr. Somare in his reply to the House denied any impropriety in Government's or his own business dealings and launched a severe and scathing attach on the Opposition Leader. In the course of this speech he made equally severe and damaging assertions about the plaintiff company PNG Aviation Services and its directors Messrs Valentine, Mendoza and Lussick.

Following that speech in the House the Prime Minister caused a report of it [to be] published under the State crest in advertisements printed over three days in each of 4 newspapers circulating in PNG at the time. It reads as follows:

Statement by Prime Minister Michael Somare in reply to a statement by Opposition Leader Wingti, August 16, 1995

Yesterday, the Opposition Leader made a statement about Government negotiations leading to the sale of Kumul 1 and the purchase of Arawa aircraft for the Defence Force.

Sir, in that statement he made a number of vicious, dishonest and slanderous allegations about my conduct in this House. He accused me of deliberately lying to this House and of associating with criminals.

Sir, I believe the member for Hagen has in his enthusiasm for the Opposition role overstepped the mark dramatically.

Sir, Mr Wingti is relatively inexperienced and perhaps he doesn't fully understand legal documents, so I would like to give him the chance to retract his statements (if he doesn't offer to retract).

Mr. Speaker, since the Honourable member does not choose to retract his statement full responsibility for it must fall on his head. And, Sir, it is a dreadful responsibility. The member for Hagen will for many years regret his rashness and ill-considered words on this subject.

…

Sir, I will demonstrate to every member of this House how the member for Hagen has lied and I will use his own documents and words to do it!!!

Mr. Speaker the dishonesty exhibited by the Opposition Leader is on a level rarely seen in this house previously. It is dishonesty which must being upon the Opposition Leader's head the condemnation of all decent thinking citizens.

Sir, I will deal with his scurrilous allegations in the order they were delivered.

First, Sir, I was accused of lying to this House in a statement I made on June the seventh.

Sir, I do not lie!!!

I stand by every word of that statement. I have nothing to hide! And I have nothing to apologise for.

Sir, the Opposition Leader has been manipulated by a disreputable foreign owned company.

Sir, PNG Aviation Service have tried repeatedly to mislead and cheat this Government and when they failed to do that they have tried to embarrass us by leaking documents to the gullible members of the Opposition.

Sir, yesterday Mr. Wingti tabled a number of documents and claimed and here I quote "These documents are total proof that PNG Aviation Services Pty Ltd was appointed the Sole Agent for the sale of Kumul 1".

End of quote.

Sir, the member for Hagen continued to say that these documents proved I was lying.

Sir, that statement...