Rabaul Shipping Limited and Peter Robert Sharp v Cyril Mudalige - Acting Principal Ships Surveyor & Safety Officer and The Independent State of Papua New Guinea (No 2) (2009) N3783

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 23 October 2009
• Court: National Court
• Citation: (2009) N3783
• Docket Number: WS NO 20 OF 2005
• Year: 2009
• Judgement Number: N3783

Full Title: WS NO 20 OF 2005; Rabaul Shipping Limited and Peter Robert Sharp v Cyril Mudalige - Acting Principal Ships Surveyor & Safety Officer and The Independent State of Papua New Guinea (No 2) (2009) N3783

National Court: Makail J

Judgment Delivered: 23 October 2009

N3783

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 20 OF 2005

BETWEEN

RABAUL SHIPPING LIMITED

First Plaintiff

AND

PETER ROBERT SHARP

Second Plaintiff

AND

CYRIL MUDALIGE - Acting Principal Ships Surveyor & Safety Officer

First Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

(No 2)

Kokopo: Makail J,

2009: 20th, 21st July & 23rd October

DEFAMATION - Libel - Defence of fair comment - Defence of truth - Defence of qualified privilege - Claim of malice or lack of good faith - Onus of proof on party alleging malice or lack of good faith - Defamation Act Ch 293 - Sections 2,3,4,5,8,9,10&11.

Cases cited:

Papua New Guinea cases

Wyatt Gallagher Bassett (PNG) Limited -v- Benny Diau (2002) N2277

David Lambu -v- Paul Paken Torato (2008) SC593

PNG Aviation Services Pty Limited -v- Sir Michael Thomas Somare & Ors [1997] PNGLR 515

Arlene Pitil -v- Rutis Clytus & Island Recruitment Management Services Enterprises Limited (2003) N2422

Rabaul Shipping Limited & Peter Robert Sharp -v- Cyril Mudalige & The State (No 1): WS No 20 of 2005 (Unnumbered & Unreported Judgment of 20th July 2009)

Overseas cases cited:

Hunt -v- Star Newspaper Co [1908] 2KB 309

Text:

The Law of Defamation, The Federation Press (1st ed 1998) Michael Gillooy.

Oxford Advanced Learner’s Dictionary, Oxford University Press, (7th ed 1997)

Counsel:

Mr D Lidgett & Ms E Takoboy, for Plaintiffs

Mr K Iduhu, for First Defendant

Mr F Cherake, for Second Defendant

JUDGMENT

23rd October, 2009

1. MAKAIL J: This matter comes before the Court for trial on liability based on an action for defamation, more specifically, libel. The first plaintiff is a company duly registered under the Companies Act 1997 and carries on business in the shipping industry by operating a number of passenger vessels in Papua New Guinea. The second plaintiff is the managing director of the first plaintiff. They sue the defendant for an alleged defamatory statement made by the first defendant and published in a letter to the Ministry for Land Infrastructure and Transport in Japan. This letter is dated 26th November 2002 and is tendered into evidence by consent of the parties and marked as exhibit “P4”.

Background facts

2. From the statement of agreed facts filed by the parties, the following facts are not in dispute and give the background of the dispute between the parties, which I adopt for the purposes of this trial. They are; the defendants on learning that the first plaintiff purchased a vessel named MV Morobe Queen, formerly known as Kofuju Maru 25, asked the second plaintiff to class the vessel before bringing it to Papua New Guinea. The defendants’ request was impossible to comply with because the vessel was over 30 years old and if it was not classed, it would not be able to sail out of Japan under Papua New Guinean registration.

3. On 26th November 2002, the first defendant in his capacity as acting Principal Ships Surveyor and Safety Inspector within the Department of Transport and Civil Aviation’s Maritime Division wrote the subject letter to the Japanese Ministry of Land Infrastructure and Transport’s Maritime Bureau to seek its assistance in conducting an inspection, verification and certification with regards to its sea worthiness before it departed Japan for Papua New Guinea.

4. The subject letter which I shall refer to as the “letter”, from now onwards is the centre of controversy between the parties in this action and I set it out in full in order for all to appreciate its content and understand why it is the subject of controversy:

“MV MOROBE QUEEN/KOFUJU MARU 25

Above vessel is reportedly purchased by PNG ship owner and is in the process of bringing same to the country.

We had asked him to class the vessel before he brings it to this country due to:-

1. Vessel is 30 years old and going to ferry passengers amounting to 360 in PNG.

2. Owner had very bad records (sic) in maintaining vessels.

3. This Authority is short of surveyors to survey such vessels.

Owner has disagreed on our advice. It is requested to advise the Port State Control inspector in Hiroshima to check and verify the condition of the vessel before it departs Japan. Owner has not produced thickness gauging of the vessel or last dry dock report.

Expecting your fullest co-operation in this regard.

Signed

CYRIL MUDALIGE

A/Principal Ships Surveyor

& Safety Officer.” (Emphasis added).

5. It is paragraph 2.2 of the letter that is the most contentious of all. This is because the statement carried the following imputations which were said to be defamatory. First, that the plaintiffs had a very bad history of operating unsafe vessels, secondly, that they had endangered lives of their employees and passengers by failing to maintain their vessels in a safe condition, thirdly, that they were reprehensible ship owners against whom the Japanese authorities should have taken action and finally, that they proposed to sail from Japan to Papua New Guinea the MV Morobe Queen, knowing it to be unsafe, thereby endangering its crew.

6. The defendants deny the plaintiffs’ claim that they have defamed the plaintiffs by publishing the statement in paragraph 2.2 of the letter. In their defence, they claim that the statement made of the plaintiffs in the letter was a fair comment, justified, truth and for public good, in that they were true and represented the character and style of business operations of the plaintiffs. They rely on sections 9, 10 and 11 of the Defamation Act Ch 293. I shall refer to these provisions later on when I consider the defence of the defendants in detail.

7. For now, the plaintiffs rely upon three affidavits of the second plaintiff which were admitted into evidence by consent and marked exhibits “P1”, “P2” & “P3” of the business operations of the first plaintiff and to establish that the statement contained in the letter was false and maliciously made to injure and bring disrepute to the plaintiffs’ standing and good name within the shipping industry in this country. The second plaintiff was cross examined by the counsel for the first defendant.

8. As for the defendants, they rely upon an affidavit of the first defendant sworn on 15th May 2009 and filed on 19th May 2009 marked as exhibit “D1” in addition to his oral evidence and a document titled Asia Pacific Port States Central Manual which was tendered into evidence without objection and marked exhibits “D2”.

General: Law of defamation

9. Before I discuss the evidence of the parties’ witnesses and make appropriate findings of fact in relation to the factual matters that are in dispute between the parties, it is appropriate to state in brief the law of defamation in this jurisdiction. The law of defamation in this jurisdiction more or less has been codified in the Defamation Act Ch 293. I agree with the statement made by Kandakasi J, with regards to the adoption and position of the law of defamation in Papua New Guinea in Wyatt Gallagher Bassett (PNG) Limited -v- Benny Diau (2002) N2277, where his Honour observed that:

“Defamation is tort at common law. The relevant principles governing the law on defamation were adopted into our jurisdiction by virtue of section 9 and Schedule 2.2 of the Constitution. As Justice Sheehan said in PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (unreported judgment delivered on 20/12/96) N1493:

“the Defamation Act (Ch 293) which consolidates the law on defamation protects the rights of individuals to their good reputation. It restates the essential common law principles in statutory form. It is the substantive law of defamation, but without provisions for such matters as procedure, damages or even the absolute protection of Parliamentarians for speeches in the House, the Act is not an exhaustive code in the way that Australian statutes on which it is modelled are said to be codes. Accordingly where the act is not specific then common law not inconsistent with the Act is relevant. English decisions pursuant to schedule 2.2 of the Second Schedule of the Constitution are therefore authoritative, while Australian decisions and those of other jurisdictions maybe persuasive.”

The law on defamation and the Defamation Act prohibits a person in effect from unlawfully publishing a defamatory matter against a person. It follows therefore that a defamatory publication is unlawful unless the publication is protected, privileged or excused by law. A company, as in the PNG Aviation Services (supra) case, or an individual who is unlawfully defamed and suffers in the consequence loss and injury to his or her reputation, is entitled to damages.”

Section 5 of the Defamation Act Ch 293 states that, “It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.” and section 2 of the same Act defines a defamatory matter as:

“2. Definition of defamatory matter.

(1) An imputation concerning a person, or a member of his family, whether living or dead, by which -

(a) the reputation of that person is...