Wyatt Gallagher Bassett (PNG) Limited v Benny Diau and Moresby Claims Adjustment Partners Ltd (2002) N2277

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 August 2002
• Court: National Court
• Citation: [2002] PNGLR 477
• Year: 2002
• Judgement Number: N2277

Full Title: Wyatt Gallagher Bassett (PNG) Limited v Benny Diau and Moresby Claims Adjustment Partners Ltd (2002) N2277

National Court: Kandakasi J

Judgment Delivered: 16 August 2002

N2277

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 472 OF 2000

BETWEEN:

WYATT GALLAGHER BASSETT (PNG) LIMITED

Plaintiff

-V-

BENNY DIAU

First Defendant

AND:

MORESBY CLAIMS ADJUSTMENT PARTNERS LTD

Second Defendant

WAIGANI: KANDAKASI, J.

2002: 27th June

16th August

DEFAMATION –Letter to statutory authority making false allegations – Whether that is to defamation? – If defamatory whether protected under s. 11 of the Defamation Act? – Letters were defamatory and not protected by s. 11 of the Defamation Act – Protection under s. 11 is not available when the publication of the defamatory material is actuated by malice or ill will or with knowledge that the material published has no factual foundation – Defamation Act s.11

DAMAGES – Damages for defamation – Measure of damages – Actual costs and or expenses incurred and general damages for costs and injury to reputation and or good will in the case of a business – Plaintiff already awarded damages in related action – Related action against a different party also for defamation set in motion by the defendant’s publication – Separate cause of action – No double compensation – Awarded K40,500.00 for actual costs or loss incurred and K50,000.00 for damage to loss of good will.

Papua New Guinea Cases Cited:

PNG Aviation Services Pty Ltd & Ors v. Michael Thomas Somare & Ors (unreported judgement delivered on 20/12/96) N1493.

PNG Aviation Services & Ors v. Somare & Ors (unreported Supreme Court judgement) SC 658.

National Airline Commission v. Lysenko [1990] PNGLR 226.

James G. Komo v. The Dependent State of Papua New Guinea N1322.

Yange Lagan & 58 Others v. The State N1369.

Motor Vehicles Insurance (PNG) Trust v. John Etape [1995] PNGLR 214.

Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370.

Repas Waima v. Motor Vehicles Insurance Trust [1992] PNGLR 254.

Carmelita Mary Collins v. Motor Vehicles (PNG) Insurance Trust [1990] PNGLR 580

Other Cases Cited:

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

Huth v. Huth [1915] 3 KB 32.

Powell v. Gelston [1916] 2 KB 615.

Colthard v. South Australia [1995] 63 SASR 531.

Adam v. Ward [1916-17] ALL E.R. Rep. 159.

Penton v. Calwell [1945] 70 CLR 219.

Brunsden v. Humphrey [1884] 14 QBD 141.

Counsels:

Mr. I. Molly QC, and Mr. D. Lightfoot for the Plaintiff.

Mr. Nalawaku for the Defendant’s.

16th August 2002

KANDAKASI J.: This is a claim for damages for defamation by Wyatt Gallagher Bassett (PNG) Limited (“the plaintiff”). It carries on business in Papua New Guinea (“PNG”) as a loss adjuster. Mr. Benny Diau is the managing director of Moresby Claims Adjusters Partners Limited (“MCAL”) formerly Freemans Port Moresby Ltd, (“together, the defendants”). MCAL is a competitor to the plaintiff. By letters dated 25th February 2000 and 6th March 2000, the defendants wrote to the Insurance Commissioner concerning the plaintiff (“the letters”). The letters stated that the plaintiff was responsible for manipulating the adjusters industry, through unfair practices, secret commissions and collaborating with others to force the defendants and others out of the market. The words complained of were stated as facts when in fact they were not.

The defendants do not dispute that the material stated in the letters were defamatory. They claim however that, there was no defamation as the letters were not published to persons other than the Insurance Commissioner who is the regulator of the industry and needed to know the matters raised for the purposes of its official duties of regulating the industry. Alternatively, they argue that, even if the letters were published and the plaintiff was defamed, they are protected by s.11 of the Defamation Act 1962, as the letters were written in good faith to get redress for what they believed were wrongs. Further, they argue that, the claim is res judicata because the plaintiff was already awarded damages in an action against the Insurance Commissioner arising out of the same publication.

Hence the issues presented before this Court for determination are these:

1. Whether the letters to the Insurance commissioner were published within the meaning of the term publication as is known in a defamation case?

2. If the letters were published and amounted to defamation against the defendants, is the defence of qualified protection under s. 11 of the Defamation Act 1962, available to the defendant.

3. Depending on the answers to questions 1 and 2 above, what are the plaintiff’s damages?

4. Whether this action is res judicata?

The Facts

Evidence for the plaintiff came from Mr. Donald Robert Muir. As for the defendants, the evidence came from Mr. Benny Diau. From these evidences, the facts are not in any serious contest.

The plaintiff has been in the loss adjusting business for a good number of years in the country up to now. They carry out loss adjustments on nearly everything except for radiation related incidents as they do not have the expertise. Most of the work is in the motor vehicle, marine and fire related loss areas. According to Mr. Muir, most loss adjusters start their career as penal beaters especially in the motor vehicle and marine related areas. Becoming a lost adjuster, is the ultimate in those professions.

Most of the plaintiff’s work and therefore, clients come from insurance houses. It has about 80% of the loss adjusting business in the country. On the other hand, the defendants are new comers to the business and are competitors to the plaintiff.

Concerned with what the defendants believed to be a serious and unfair imbalance in the level of loss adjusting work received between the plaintiff and nationally owned competitors like the MCAL, its managing director Mr. Diau wrote the letters to the Insurance Commissioner. The respective letters in relevant parts read:

Letter dated 25th February 2000

“RE: SERIOUS FINANCIAL DISADVANTAGE CAUSES TO MY COMPANY BY A FOREIGN ENTERPRISE WYATT GALLAGHER BASSET WITH SEVEN APPROVED LABOUR POSITION

…

Since colonial days up until now, not one expatriate in the Insurance Industry has trained or assisted a Papua New Guinean in Loss Adjusting Business, they have kept this business far away from all Papua New Guinean Nationals therefore only FOREIGN ENTERPRISES were operating in this field and all monies (Millions of Kina) were remitted abroad for the last 25 years or so.

I am the first Papua New Guinean National to actively get involved in the business of loss adjusting in Papua New Guinea and this Foreign company is doing everything under the sun to shut me out.

During the past few years the above company, WYATT GALLAGHER BASSET has caused me serious financial disadvantages by employing an excessive amount of expatriates and monopolising the market.

This company originally operated as International Adjusters Partnership and change that name to WYATT GROUP and subsequently to WYATT GALLAGHER BASSET.

This company has Seven approved Labour Positions, the expatriates employed by the company are mainly panel beaters and their qualifications and experience do not correspond to the positions for which Labour approval was obtained, the Labour approvals are for Managers, Insurance and Superannuation and this description does not correspond to Loss Adjusters and Motor Vehicle Assessors (panel beaters) employed by this company.

I am very surprised how this company can have seven approved Labour Positions when the major insurance companies in this country only have on expatriate each working for them.

Further details are given below:-

1. QBE Insurance One expatriate

2. Pacific MMI One expatriate

3. American Home One expatriate

4. Mitsu Marine and Fire Insurance One expatriate

5. Zurich Pacific Insurance One expatriate

6. Pan Asia Pacific Insurance One expatriate

7. HIH Insurance One expatriate

During the past 15 to 20 years this company has monopolised loss adjusting business and remitted millions of kina out of this country. Now they are manipulating to shut down my company and another National Loss Adjuster...