Francis Chibelle v Jack Mafu

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Cannings J
• Judgment Date: 24 March 2015
• Citation: (2015) N5942
• Judgment Number: N5942
• Year: 2015

Full : WS NO 1203 OF 2011; Francis Chibelle v Jack Mafu and Mathew Funtengim, Tiong Kariam, Martha Tabi, Mathew Dupkut, Mark Awansakam & Nancy Fred and Darks Anwan, Kaiomena, Sikain Mai, Gilbert Famitey, Wilson Bayal, Mark Awans, Siassi Aheng, Mary Tabi, Mary Awok, Tikiyok, Max Firana, Kerry Unalup, Mathias Bitel, Semis, Mathew D, Philip W, Roy Brian, Nekie Negial, Bryan T, Simon Sol, Nelson Tapineng, Obert Fawool, Gibson Tamalin, Mark Muli, Peter Musum, Wam Ipsim & Alexous and Peter Amireng (2015) N5942

National Court: Cannings J

Judgment Delivered: 24 March 2015

N5942

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1203 OF 2011

FRANCIS CHIBELLE

Plaintiff

V

JACK MAFU

First Defendant

MATHEW FUNTENGIM, TIONG KARIAM, MARTHA TABI, MATHEW DUPKUT, MARK AWANSAKAM & NANCY FRED

Second Defendants

DARKS ANWAN, KAIOMENA, SIKAIN MAI, GILBERT FAMITEY, WILSON BAYAL, MARK AWANS, SIASSI AHENG, MARY TABI, MARY AWOK, TIKIYOK, MAX FIRANA, KERRY UNALUP, MATHIAS BITEL, SEMIS, MATHEW D, PHILIP W, ROY BRIAN, NEKIE NEGIAL, BRYAN T, SIMON SOL, NELSON TAPINENG, OBERT FAWOOL, GIBSON TAMALIN, MARK MULI,

PETER MUSUM, WAM IPSIM & ALEXOUS

Third Defendants

PETER AMIRENG

Fourth Defendant

Waigani: Cannings J

2014: 20 October, 17 December,

2015: 24 March

DEFAMATION – whether correspondence critical of a company manager’s performance gave rise to liability in defamation – whether correspondence contained defamatory imputations – defences of public interest, truth and good faith

The plaintiff was general manager of a landowner company that did a lot of business with a mining company. The first defendant held himself out as interim chairman of the landowner company and wrote the plaintiff a letter, advising that his employment was terminated on various grounds including failing to lodge annual returns, failing to call shareholders meetings, being in a conflict of interest, mismanagement of company funds, non-compliance with safety standards and use of company funds for private study. The first defendant circulated copies of the letter to senior management of the mining company and the commander of the local police station. Around the same time as that letter was circulated the third defendants, who claimed to be shareholder representatives of the landowner company, issued a “circular resolution” containing similar criticism of the plaintiff and recommending that he be referred to the Police Fraud Squad. The plaintiff commenced proceedings against the first defendant and the third defendants, and against the second defendants (who held themselves out as directors of the landowner company) and the fourth defendant (who the plaintiff claimed was the principal author of the allegations), claiming damages for defamation. At the trial the defendants conceded that both documents had been published but denied liability on the ground that neither document was defamatory of the plaintiff, but if either was defamatory, its publication was lawful by virtue of defences under the Defamation Act, namely it being: (i) a matter of public interest in that it was a fair report of proceedings of a public meeting (Section 8(2)(g)), (ii) the truth (Section 10) and (iii) made in good faith (Section 12).

Held:

(1) The elements of a cause of action in defamation are that: the defendant made a defamatory imputation of the plaintiff; the defendant published it; and the publication was unlawful in that it was not protected, justified or excused by law (Defamation Act, Sections 5, 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16).

(2) As the plaintiff was suing over two different documents the elements of a cause of action should be considered in respect of the two documents separately.

(3) As to the first document, the letter written by the first defendant insinuated that the plaintiff was incompetent, dishonest, irresponsible and untrustworthy. Those are defamatory imputations, which were published widely by the first defendant (but not by other defendants, against whom liability could not be established). Hence the first two elements were proven. As to the three defences pleaded: (i) the letter was not purporting to be a report of a public meeting, hence the Defamation Act, Section 8(2)(g) defence was not available; (ii) the first defendant failed to prove that the defamatory statements were truthful, hence the Section 11 defence failed; (iii) publication of defamatory imputations in good faith is not a defence by itself, hence the defence claimed under Section 12 failed; therefore publication was unlawful. A cause of action was established against the first defendant, but not against other defendants.

(4) As to the second document, the circular stated that the plaintiff had been managing the company against the interests of shareholders and insinuated that he and another person had conspired to defraud the company. Those are defamatory imputations, which were published by the third defendants (but not by other defendants, against whom liability could not be established). Hence the first two elements were proven. As to the three defences pleaded: (i) the circular was not purporting to be a report of a public meeting, hence the Defamation Act, Section 8(2)(g) defence was not available; (ii) the third defendants failed to prove that the defamatory statements were truthful, hence the Section 11 defence failed; (iii) publication of defamatory imputations in good faith is not a defence by itself, hence the defence claimed under Section 12 failed; therefore publication was unlawful. A cause of action was established against the third defendants, but not against other defendants.

(5) It was accordingly ordered that: in respect of publication of the first document, liability was established against the first defendant, but not against other defendants; in respect of publication of the second document, liability was established against the third defendants, but not against other defendants; and no liability was established against the second and fourth defendants and the proceedings against them were dismissed.

Cases cited

The following cases are cited in the judgment:

Boyd v Mirror Newspapers [1980] 2 NSWLR 449

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

Hutton v Jones [1910] AC 20

PNG Aviation Services Pty Ltd v Michael Thomas Somare [1997] PNGLR 515

Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16

Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617

TRIAL

This was a trial on liability for defamation.

Counsel

R Diweni, for the plaintiff

J Lome, for the first, second and third defendants

24th March, 2015

1. CANNINGS J: This is a defamation trial. The plaintiff, Francis Chibelle, is the general manager of a landowner company called Camp Administration Ltd, based in Tabubil, Western Province, which does a lot of business with Ok Tedi Mining Ltd. The plaintiff alleges that in 2011 the defendants, who held themselves out as representing a particular group of minority shareholders, attempted to remove him as general manager and in the process published two documents defaming him.

2. The first document was a letter dated 22 August 2011 from the first defendant to the plaintiff. The first defendant held himself out as interim chairman of Camp Administration Ltd and notified the plaintiff that his employment was terminated on various grounds including failing to lodge annual returns, failing to call shareholders meetings, being in a conflict of interests, mismanagement of company funds, non-compliance with safety standards and use of company funds for private study. The first defendant circulated copies of the letter to senior management of Ok Tedi Mining Ltd and the Commander of Tabubil Police Station.

3. The second document was a circular published in the period from 6 July to 21 August 2011 by the third defendants, who claimed to be shareholder representatives of the landowner company. It contained similar criticism of the plaintiff and recommended that he be referred to the Police Fraud Squad.

4. The plaintiff has commenced defamation proceedings seeking damages against the defendants, who deny liability. This judgment gives the Court’s reasons for its decision on the question of liability.

ELEMENTS

5. The elements of a cause of action in defamation are that:

· the defendant made a defamatory imputation of the plaintiff,

· the defendant published it, and

· the publication was unlawful in that it was not protected, justified or excused by law (Defamation Act, Sections 5, 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16).

6. The defendants concede that both documents were published but deny liability on the ground that neither document was defamatory of the plaintiff. If either document was defamatory, the defendants argue that its publication was lawful by virtue of defences under the Defamation Act, it being: (i) a matter of public interest in that it was a fair report of proceedings of a public meeting (Section 8(2)(g)), (ii) the truth (Section 10) and (iii) made in good faith (Section 12).

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