Justice Gibbs Salika v Pacific Star Ltd

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 10 January 2014
• Citation: (2014) N5699
• Court: National Court
• Year: 2014
• Judgement Number: N5699

Full : WS NO. 176 OF 2007; The Honourable Justice Gibbs Salika v Pacific Star Limited t/as The National and David Korimbao, Acting Editor in Chief of The National and Harlyne Joku (2014) N5699

National Court: Davani J

Judgment Delivered: 10 January 2014

N5699

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 176 OF 2007

BETWEEN:

THE HONOURABLE JUSTICE GIBBS SALIKA

Plaintiff

AND:

PACIFIC STAR LIMITED T/AS THE NATIONAL

First Defendant

AND:

DAVID KORIMBAO, ACTING EDITOR IN CHIEF OF THE NATIONAL

Second Defendant

AND:

HARLYNE JOKU

Third Defendant

Waigani: Davani, .J

2013: 22nd May,

2014: 10th January,

CIVIL PROCEEDINGS—defamation—plaintiff, a Judge of the National and Supreme Courts of Papua New Guinea - assessment of damages after entry of default judgment—wide circulation of defamatory article - defamatory article published once in newspaper—reporter did not check facts—defendants did not apologize—injury to the plaintiff’s reputation as a judge and private citizen—award of general and aggravated damages and interest of K471, 143.

Facts:

The Plaintiff, a Judge of the Court, brought proceedings against the defendants for damages for defamation said to be contained in a letter written by the third defendant and published by the first and second defendants. The letter contained imputations that the plaintiff was unfit to be a judge and was sitting on a case where he knew he had a conflict of interest and deliberately delayed the case for the benefit of one of the parties. Default judgment had been entered and the matter came for trial on assessment of damages.

Held:

1. Entry of default judgment resolves all questions of liability in respect of the matters pleaded in the statement of claim except where the cause of action pleaded does not make sense or an assessment of damages would be a futile exercise, at [19];

2. The purpose of an award of damages for a human plaintiff are:

a) to protect and vindicate the personal reputation of the plaintiff, that is reparation of the harm done to the plaintiffs personal and (if relevant) business reputations; and

b) to provide solace for wounded feeling, grief and annoyance and consolation for personal distress and hurt;

c) to compensate the plaintiff for past and prospective losses caused by publication of the defamatory material.

3. An apology soon after the defamation is published can result in a lesser award, at [26];

4. Damage to reputation is not a commodity having a market value; Reputation and money are in that sense incommensurable. Secondly, comparisons between awards for defamation are difficult. Every defamation and every award of damages for defamation is necessarily unique. Thirdly, because the available remedy is damages, courts can and must have regard to what is allowed as damages for other kinds of non-pecuniary injury.” (at 58) per Hayne .J in Rogers v. Nationwide News Pty Ltd (2003) 77ALJR 1739.

5. A judge’s reputation is indeed one that must be zealously, closely and safely guarded, at [74]

6. Where the media proposes to publish matters alleging incompetence of a judge they must first confirm that the source of information is correct, at [77];

7. The offending article was published without the reporter checking the facts, a very irresponsible act, at [80];

8. There was complete apathy and indifference by the defendants to a request for an apology and the effect the article had on the plaintiff, at [79-82];

9. A journalist and reporter has a responsibility to the public to publish accurate and correct reports meaning they must conduct their own investigations to ensure that what they report is correct, at [87]

10. Aggravated compensatory damages may be awarded in defamation if the defendants’ conduct aggravates the subject hurt, at [86,88];

11. An award of K250,000 for general damages, at [85];

12. An award of K50,000 for aggravated damages, at [88];

13. Interest at 8% for 7 years 1 month 21 days in the sum of K171,143, total judgment of K471,143, at[ 90];

Cases cited

Papua New Guinea cases:

Tei Abal v. Anton Parau [1976] PNGLR 250

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

Glenn B. Watterston v. Henry Moses (1982) N388;

Wayne Cross v. Wess Zuidema [1987] PNGLR 361

Pawa Kombea v. Semal Peke [1994] PNGLR 572;

Kamea Gabe v. Jack Clunn & Pacific Gold Studios Pty Ltd [1995] PNGLR 153;

PNG Aviation Services Pty Limited v. Michael Somare [1997] PNGLR 515;

Loani Henao v. David Coyle & Others (1999) N1918

David Coyle, Rimbink Pato and Alfred Manase v. Loani Henao [2000] PNGLR 17

William Mel v. Coleman Pakali & Others (2005) SC 790

David Lambu v. Paul Paken Torato (2008) SC 953

Lina Kewakali v. the State (2011) SC 1091

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

SMY Luluaki Ltd v. Paul Paraka Lawyers (2012) N4685

Overseas cases:

Rooks v. Barnard [1964] AC 1129

Broome v. Cassell & Co. Ltd [1972] UKHL 3; [1972] AC 1027,

Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1992-3) 178 CLR 44

Crampton v. Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176

John Fairfax & Sons Ltd v. Vilo (2001) 52 NSWLR 373

Rogers v. Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327; 77 ALJR 1739

Konstantinidis v Foreign Media Pty Limited and Ors [2004] NSWSC 835

John Fairfax Publication Pty Ltd v. O’Shane (No. 2) [2005] NSWCA 291

Counsel:

Mr S. Malaga, for the plaintiff

Mr B. Frizzel, for the first, second and defendants

DECISION

10th January, 2014

1. DAVANI .J: Before me is Writ of Summons and Statement of Claim filed on 28th February, 2007 by Henaos Lawyers for and behalf of the plaintiff. For hearing is the plaintiff’s claim for assessment of damages, default judgment having been entered against the first, second and third defendants on 11th May, 2007.

2. The defendants filed an application to set aside the default judgment however, this was dismissed by the National Court on 8th October, 2007.

3. On 16th November, 2007, an appeal was filed in the Supreme Court, SCA 117 of 2007 against the National Court’s order of 8th October, 2007. However, the appeal was dismissed by the Supreme Court on 3rd July, 2009, with costs.

Background facts

4. This is a claim for defamation filed by the plaintiff, presently the Deputy Chief Justice of Papua New Guinea. Then, when the action was filed, he was a Judge of the National Court of Papua New Guinea.

5. He filed this action after publication by the National Newspaper on Friday, 24th November, 2006, of an article that mentioned or discussed a case that was before him in Court.

6. The title of that article “Custody hearing denied, says mum” was in relation to a custody matter. The full text of this article is attached to the plaintiff’s affidavit sworn on 14th December, 2009 and filed on 23rd February, 2010 as annexure ‘B’.

7. Below is the full text of the article:

“A frustrated mother has written to the Chief Justice expressing her concern that the court system has denied her a hearing related to the custody of her children. Vagi Aruai, the mother of three children, who were abducted and kidnapped by their estranged father and taken out of PNG to Fiji for over a year, sent her letter on Tuesday. Ms Aruai said the court’s inability to deal with the matter expeditiously was a bad reflection of the Court’s inability and incompetence. That should be brought to the attention of the Ombudsman Commission and other relevant authorities to deal with, she said. She referred to her case OS 654 of 2006 Vagi Aruai v. Sam Pepena – outstanding application. Since the filing of the writ of summons at the National Court last September, Ms Aruai has yet to get a hearing date. “This case concerns the welfare of my children who were abducted and kidnapped by their estranged father and taken out of the country for over a year. I, as a citizen have been fighting this case on my own without support from the Government because of the legal system’s inability to provide me legal aid. Then when I get some help, the court system deliberately denies me the opportunity to get my case heard at the earliest time possible”, Ms Aruai claimed. With the court vacation approaching fast she needs to know why this case has not been given a hearing date. “My checks with the National Court Registry have continuously revealed that the file is with Justice Gibbs Salika, a church member and friend of the defendant. “Surely if this is the case, the Honourable judge would have disqualified himself and get someone else to hear the case, “Ms Aruai claimed. She further asked the Chief Magistrate how long it took a citizen to get a case heard. “How much longer do my children have to suffer and why does the court think it is at its disposal to decide how long a citizen should wait without any proper notice explaining why, “she asked. Ms Aruai said she had asked for her matter to be listed for hearing immediately and the matter be given to Justice Catherine Davani or another Judge due to conflict of interest. Ms Aruai told the National that while the nation celebrated the International Children’s Day and protection...