Elizabeth Kimisopa v Darryl Kamen

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Davani J
• Judgment Date: 09 January 2015
• Citation: (2015) N5844
• Judgment Number: N5844
• Year: 2015

Full : WS NO. 213 of 2011; Elizabeth Kimisopa v Darryl Kamen and Peter Kuman trading as Kuman Lawyers (2015) N5844

National Court: Davani J

Judgment Delivered: 9 January 2015

N5844

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 213 OF 2011

BETWEEN:

ELIZABETH KIMISOPA

Plaintiff

AND:

DARRYL KAMEN

First Defendant

AND:

PETER KUMAN TRADING AS KUMAN LAWYERS

Second Defendant

Waigani: Davani J

2013: 30th September

2015: 9th January

DEFAMATION - Lawyer and law firm sued – Defendants are lawyers – letter sent by lawyer for possible plaintiff, to possible defendant – letter alleges fraud by possible defendant – letter give notice of court proceedings to be filed.

DEFAMATION- Plaintiff alleges letter giving notice is defamatory – plaintiff sues lawyers for defendants – defamation by lawyers, alleged.

DEFENCES -Fair comment, truth, qualified privilege, good faith- plaintiff alleges malice and falsity in subject letter – Defendants only performing duties as lawyers – Defendant’s actions justified, protected and excused by law – ss. 9, 10, 11, 12 of Defamation Act.

Facts

The first and second defendant, an employed lawyer and employer respectively, are sued by the plaintiff who alleges that they defamed her when they sent a letter to her, copied to 3 others, informing her that they had recently received instructions from their client advising that she (the plaintiff) had colluded with 3 others, and fraudulently obtained title to property, s. 33, l. 10 Granville (Ela Makana), Lawes Road, Port Moresby, which title was to have been transferred to their client’s late husband.

Defendant lawyers say they are only acting on instructions from their client to file proceedings alleging fraud by her (the plaintiff) and 3 others.

The defendants raise the Defences of;

- Fair Comment under s. 9 of the Defamation Act,

- Truth under s. 10 of the Defamation Act,

- Qualified Privilege under s. 11 of the Defamation Act

- Good Faith under s. 12 of the Defamation Act.

Held

1. The letter the subject of these proceeding was not made falsely or maliciously knowing the facts to be false and knowing that the publication would harm the plaintiff’s reputation because it is a fair comment, carrying the protection of ss. 8 and 9 of the Defamation Act, the letter being a step a law firm briefed with instructions, will take, to put the prospective defendants on notice of the court proceedings to be filed by their client and the nature of those proceeding.

2. That the instructions conveyed by the defendants to the plaintiff were based on their client’s instructions, which were not refuted by other evidence, hence were true and that the Defence of Truth under s. 10 of the Act, is made out.

3. That the subject letter was published in good faith and without malice because the plaintiff has not shown, on the balance of probabilities, that there was malice against her in the manner in which the defendants conducted their business, hence the Defence of Qualified Privilege and Good Faith under ss. 11 and 12 of the Act are made out.

4. Lawyers are duty bound to convey their client’s instructions to the prospective defendant/s, subject to the cloak of privilege.

Cases cited:

Papua New Guinea Cases

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

Wyatt Gallagher Basset (PNG) Limited v. Benny Diau (2002) N2277

Arlene Pitil v. Rutis Clytus (2003) N2422

David Lambu v Paul Paken Torato (2008) SC 593

Rabaul Shipping Limited v. Cyril Mudalige (No.2) (2009) N3783

Cyril Mudalige v. Rabaul Shipping (2011) SC 1132

SMY Luluaki Ltd v. Paul Paraka Lawyers (2011) N4360

Overseas Cases

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

Hunt v. Star Newspaper [1908] 2 KB309

Hansen v. Border Morning Mail Pty Ltd (1988) ATR 80, 188

Counsel

Mr T. Injia, for the Plaintiff

Mr T. Boboro, for the First and Second Defendants

DECISION

9th January, 2015

1. DAVANI .J: Before the Court for hearing on both liability and quantum is the Writ of Summons and Statement of Claim filed by Steeles Lawyers on 23rd March, 2011, for and on behalf of the plaintiff.

2. Elizabeth Kimisopa, the plaintiff in these proceedings (the ‘plaintiff’), sues the first and second defendants for defamation, alleging that a letter sent by the second defendant law firm Kuman Lawyers (‘Kuman Lawyers’), was defamatory in content, as against the plaintiff.

4. The defendant’s Defence filed on 3rd May, 2011 by Kuman Lawyers pleads protection under Sections 9, 10, 11 and 12 of the Defamation Act. I will discuss these further below.

Background

5. By a Statement of Agreed and Disputed Facts and Legal Issues for Trial filed on 31st August, 2012 and which was endorsed by both Steeles Lawyers for the plaintiff and Kuman Lawyers for the defendants, the following facts are agreed to;

i. the plaintiff is an adult female,

ii. the first defendant is a lawyer by profession and was at all material times, an employee of Kuman Lawyers, the named second defendant,

iii. Peter Kuman is the principal lawyer and proprietor of Messrs Kuman Lawyers, a private law firm carrying on business in Papua New Guinea,

iv. On 4th October, 2010, the first defendant Darryl Kamen, sent a letter to the plaintiff, which copies were also copied to the National Housing Corporation Limited to the attention of the Acting Managing Director Mr David Dambili; Secretary to the Department of Lands and Physical Planning Mr Pepi Kimas and Registrar of Titles of the Department of Lands and Physical Planning, Mr Benjamin Samson. The letter reads as follows;

4th October, 2010

Mrs Elizabeth Kimisopa

C/- PO Box 1176

GOROKA

Eastern Highlands Province

Dear Sir,

SECTION 33, LOT 10, GRANVILLE – (ELA MAKANA), LOWES ROAD, LATE SIR NOMBRI’S ESTATE

We refer to the above and confirm that we act for the wife and children of the late Sir Joseph Nombri.

We are instructed that on or about 16th July, 2008, you fraudulently obtained title to the above property.

We therefore request that you organize for the title to be transferred back to the wife and children of the deceased, whom we are instructed is your uncle, within the next 7 days, failing which we have instructions to institute legal proceedings against you.

Where legal proceedings are instituted you may also be ordered to pay costs. To avoid the usual embarrassment and inconvenience associated with legal proceedings we request that you organize for the title to be transferred to our clients. The payments you made can be reimbursed.

We further have instructions to refer you to the Police Fraud for possible charges to be laid against you for fraud, should you fail to settle the matter out of Court as requested.

Should there be any queries, contact Darryl Kamen of our office to discuss.

In the meantime, to preserve the status quo, we request that you do not deal with the property in any way, either to dealings or sell the property.

(signed)

Yours faithfully,

KUMAN LAWYERS

cc1:The Care –Taker Managing Director

National Housing Corporation

Koura Way, Tokarara BY HAND

(PO Box 1550)

BOROKO

Attention: Mr David Dambali

cc2:The Secretary

Department of Lands & Physical Planning

Tower 2, Aopi Centre, 2nd Floor BY HAND

WAIGANI

Attention: Mr Pepi Kimas

cc3:The Registrar of Titles

Department of Lands & Physical Planning

Tower 2, Aopi Centre, 2nd Floor BY HAND

WAIGANI

Attention: Mr Benjamin Samson”

Issues

6. The issues, are the following;

1. Whether the content of the letter is defamatory?

2. Whether the Defences pleaded in the defendant’s Defence referred to above, are available to the Defendants?

Evidence

7. The plaintiff relies on the following affidavits which were tendered into evidence and marked as exhibits;

i. affidavit of Madeline Paulisbo sworn on 9th August, 2011 and filed on 11th August, 2011 marked exhibit ‘A’.

ii. affidavit of Elizabeth Kimisopa sworn on 11th September, 2011 and filed on 11th September, 2011 marked exhibit ‘B”.

8. The defendants rely on the following affidavits which were tendered into evidence and marked as exhibits;

i. Affidavit of Peter Kuman sworn on 15th August, 2011 and filed on 29th August, 2011, marked as exhibit ‘1’,

ii. Affidavit of Roger Gileng Otto, sworn on 7th December, 2011 and filed on 8th December, 2011, marked as exhibit ‘2’,

iii. Affidavit of Peter Kuman, sworn on 3rd October, 2012 and filed on 15th October, 2012, marked as exhibit ‘3’,

iv. Affidavit of Lady Nikki Nombri, sworn on 15th October, 2012 and filed on 17th October, 2012, marked as exhibit ‘4’.

Analysis of Evidence and the Law

9. The affidavits were tendered and marked as exhibits. Parties did not cross-examine on the contents of the affidavits.

Brief background

10. For the defendants, it is not disputed that their client, one Lady Nicki Nombri, had given instructions to Kuman Lawyers in relation to property, the subject of these proceedings, described as Allotment 8, Section 33, (Ela...