Arlene Pitil v Rutis Clytus, Nancy Simeon, Margaret Luku and Islands Recruitment Management Services Enterprises Limited (2003) N2422

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 01 August 2003
• Court: National Court
• Citation: (2003) N2422
• Year: 2003
• Judgement Number: N2422

Full Title: Arlene Pitil v Rutis Clytus, Nancy Simeon, Margaret Luku and Islands Recruitment Management Services Enterprises Limited (2003) N2422

National Court: Kandakasi J

Judgment Delivered: 1 August 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1046 of 2000

BETWEEN:

ARLENE PITIL

Plaintiff

AND:

RUTIS CLYTUS

First Defendant

AND:

NANCY SIMEON

Second Defendant

AND:

MARGARET LUKU

Third Defendant

AND:

ISLANDS RECRUITMENT MANAGEMENT SERVICES ENTERPRISES LIMITED

Third Defendant

WAIGANI: KANDAKASI, J.

2003: 27th May

1st August

DEFAMATION – Letter to plaintiff with copies circulated to third parties including statutory authorities making false allegations – Whether that amounts 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 – Actual costs and or expenses incurred and general damages for injury caused to reputation and or good will in the case of a business – K50,000.00 awarded for damage reputation.

Papua New Guinea Cases Cited:

Takai Kapi v Gregory James Shepherd & Ors (20/01/03) N2323.

The State v. Kauva Lavau & Kamo Kauva (26/09/96) N1523.

The State v. Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (16/10/01) N2298.

The State v. Kevin Anis and Martin Ningigan (7/04/03) N2360.

Wyatt Gallagher Bassett (PNG) Limited v Benny Diau and Moresby Claims Adjustment Partners Ltd (16/08/02) N2277.

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

David Coyle & Ors v. Loani Henao (30/11/00) SC 655.

PNG Aviation Services Pty Limited v Michael Thomas Somare (?/12/00) SC 658.

Lin Wan Xin & Anor v. Wang Yanhong, & Ors (07/12/01) N2160.

Other Cases Cited:

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

Texts Cited:

Street on Torts, H. Street, 7th Edn. Butterworths, London 1983.

The Law of Defamation in Canada, Raymond E. Brown, Carswell, 1987.

Counsels:

Mr. L. Manua for the Plaintiff.

No appearance for the Defendants.

1st August 2003

KANDAKASI J.: The plaintiff is claiming damages for defamation. She alleges that the defendants defamed her by circulating a copy of a letter written to her dated 2nd July 2002. The letter was jointly written by the first, second and third defendants, using the fourth defendant’s Islands Recruitment Management Services Enterprises Limited (IRMSEL) letterhead. She also claims that she was defamed when the first defendant deposed to an affidavit filed in the Port Moresby District Court. These materials contain various allegations of mismanagement of the fourth defendant’s funds, breached of immigration and Investment Promotion Authority laws and regulations.

In their defence, the defendants deny publishing and defaming the plaintiff. At the same time, they plead in the alternative that what they published was true and they published it to be circulated to the various third parties, who needed to know of its contents for redressing an injury or harm done to them and for their protection.

Issues

These present to a number of issues for me to determine. The first is whether the defendants published the kind of defamatory material Mrs. Pitil complains of? Secondly, whether the material published was and is protected under any of the known defence to a claim of defamation? Thirdly, subject to a determination of the first and second issues, what are the plaintiff’s damages?

These questions can only be answered by reference to the facts and the applicable law. I will firstly deal with the relevant facts and then the relevant and applying law followed by a decision on the issues raised.

The Evidence and Relevant Facts

The relevant evidence is only in the affidavit of the plaintiff sworn on 21st and filed on the 22nd of May 2003. This was the only evidentiary material admitted into evidence in this case. Following the failure to turn up for the trial by the defendants and or their lawyer when the matter was called for hearing on the 27th of May 2003. The trial date was confirmed at a status conference I conducted on the 5th of May 2003. All the parties were represented at that conference. Mr. Manua appeared for the plaintiff while Ms. Rakanou appeared for the defendants. The trial date was allocated at a call-over conducted in January 2003 by my brother, Justice Gavara-Nanu when the matter was tentatively fixed for hearing on the 27th of May 2003. There being no communication forwarded to the Court or the plaintiff by the defendants explaining theirs or their lawyer’s non-appearance, I granted the plaintiff her application to proceed ex parte.

After the plaintiff’s affidavit was admitted into evidence, the plaintiff closed her case and asked for an adjournment to enable her to file written submissions in support of her claim. Her application was granted. In line with the orders, the plaintiff filed her submission on the 2nd of June 2003 through her lawyer. As I was away on circuit in June, I did not get around to considering the submissions and work on a decision until late last month. In the meantime, I had expected an application by or for the defendants to either set aside the ex parte proceedings and or be given leave to participate in the hearing in terms of filing and serving their affidavits and submissions. Neither of these has happened. I have therefore, proceeded to consider judgement and this is the judgement of the Court in this matter.

The plaintiff is 45 years old and comes from the Philippines and is married to Mr. Patilia Pitil, who comes from the New Ireland Province. She has been married to her husband for 26 years. Out of her marriage, she has three children, aged 25, 20 and 13 years old respectively. She is a Christian by religion and goes to the Praise Centre Church, CLC at Waigani, here in the National Capital District.

She has applied for a PNG citizenship and has followed up on that on a number of occasions. No decision has yet been made on her application. The Citizenship Committee has not considered hers and others applications for citizenship as yet due to lack of funds. She regards herself as a Papua New Guinean as she has been married to a Papua New Guinean for 26 years and has grown-up children, who are Papua New Guineans and that she has no reason to leave the country.

The plaintiff is an Accountant by profession. She graduated from the Queensland University of Technology in 1997. Presently, Islands Nationair employs her as its finance and administration manager. This is a contract position and has a current work permit number 04090764, which has an expiry date in September 2004. Prior to this employment, she was employed as a consultant to IRMSEL. For that employment, she had a valid work permit number 03020155 with an expiry date in February 2003. That was issued under her family consultancy firm, Pitil and Associates Enterprises Ltd. But well before that employment, she was employed by a company called Workman Ltd as its finance manager in 1999. The first, second and third defendants were also employed by that company.

In 2000, the plaintiff resigned from her employment with Workman Ltd. Upon her resignation, she and her husband decided to form a recruitment company. The first, second and third defendants learned of that and approached her husband and her and asked if they could join them in that business. Driven by a desire to help these defendants with a view to providing them the opportunity to improve their livelihood and their lives, should this business venture become successful in the future, the plaintiff and her husband decided to accept them into the business. This decision led to the formation of IRMSEL.

The plaintiff prepared all the necessary company registration forms. Her husband lodged the application for approval by the Investment Promotion Authority (IPA).

The plaintiff and her husband contributed 70% of the financial capital that was required to start up the business. They met the necessary operational expenses of office rentals and bond paid to Ray White, advertising costs, telephone, installation and bonds paid to Telikom, office partition and front desk counter; office stationery, company seals and stamps, locks and keys and office sign board sign. The couple also provided their own complete computer package for the company’s use. This consisted of 1 computer, 1 monitor, 1 keyboard, 1 mouse and 1 coloured Cannon bubble jet printer. The first to third defendants contributed toward the purchase of an additional computer, 1 monitor, and 1 keyboard with a mouse.

Although the plaintiff and her husband contributed more toward the formation and commencement of...