Paulwagun v Robert Palme

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 06 March 2015
• Citation: (2015) N5917
• Court: National Court
• Year: 2015
• Judgement Number: N5917

Full : WS. NO. 1925 of 2005; Paulwagun v Robert Palme and Pacific Star Limited Trading as “The National” (2015) N5917

National Court: Kandakasi, J

Judgment Delivered: 6 March 2015

N5917

[PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 1925 of 2005

BETWEEN

PAULWAGUN

Plaintiff

AND

ROBERT PALME

First Defendant

AND

PACIFIC STAR LIMITED trading as “THE NATIONAL”

Second Defendant

Waigani: Kandakasi, J.

2013: 21st October

2015: 06th March

DEFAMATION – Meaning of - Defence against publication of – Protection – Report of matters in the public interest – Fair comment Truth, fair comment and qualified protection of excuse – Publication in good faith in the public interest and for the public’s benefit – Publishing fair meaning of a report on a matter of public interest – Need to plead and establish bad faith – Failure to – Effect of - Issue precluded from being raised – Publication required in the public interest for the public benefit – Any bad faith publication secondary to the need to publish in the public interest for the public’s benefit – Defamation Act (Chp 293) ss8 (2)(b), (d) and (f), 8 (3), 9(1) (c), 10 and 11 (h).

LEGISLATION – Defamation Act (Chp 293) – Central to a claim in defamation – Not a complete code – Common law and equity supply any lacking in the Act – Defences under the Act.

PRACTICE & PROCEDURE – Claim in defamation – Defence pleading publication in good faith in public interest and for public’s benefit - Plaintiff taking issue with it – Requirement to specifically plead lack of good faith with particulars – Failure to so plead – Effect of - Plaintiff precluded from raising the issue – National Court Rules, Order 8, rr, 83 – 88.

Cases cited:

National Provident Fund Board of Trustees v. Jimmy Maladina & Ors (2003) N2486

Tony David Raim v. Simon Korua (2010) SC1062

Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132

New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126

Joshua Kalinoe v. Paul Paraka; Hon Biri Kimisopa v. Paul Paraka (2010) SC…; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355

Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183

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

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

Moresby Claim Adjustment Partners Ltd v. Wyatt Gallagher Basset (PNG) Ltd (2003) SC713

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

Arlene Pitil v. Rutis Clytus & Island Recruitment Management Services Enterprises Limited (2003) N2422

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

Counsel:

R. Saulep, for the Plaintiff

B. Frizzlle, for the Defendant

6th March, 2015

1. KANDAKASI J: Paul Wagun the Plaintiff is claiming that a write up by Robert Palme (first defendant) in one of the daily newspapers in the country, namely “The National” which is owned by the Pacific Star Limited, the second defendant (together referred to as “the Newspaper”) defamed him. He claims in particular that the publication was malicious and misleading. The publication reads in relevant parts:

“Wagun should go”

“Curator incompetent, says Auditor-General’s Office; and

“The Auditor-General’s Office (AOG) has urged the Justice Minister and Attorney-General to replace the Public Curator Paul Wagun with someone competent.”

2. This was based on a report by the Auditor General of PNG, headed “Auditor General’s Report on Special Audit Investigation of the Public Curator.” Paragraph 1.3 of that report is relevant and it reads:

“It is essential that the Minister of Justice and Attorney General act immediately to appoint someone with the appropriate background and capability to take responsibility for the reform of the Public Curator’s Office. This person should, ideally, have experience in the operation and management of similar public trustee organizations and be empowered to make the many and hard decisions required to move the Office of the Public Curator forward.”

3. The Newspaper admits publishing the material based on the Auditor’s Report but denies the publication was defamatory. It claims the publication was fair comment published in good faith in the public interest for the benefit of the public. Mr. Wagun failed to take any issue with the Newspaper’s defence of good faith, which the Newspaper argues means its defence is uncontested and should form the basis for judgment in its favour.

4. From the foregoing, the issues for this Court to determine are:

(1) Should there be judgment for the Newspaper on account of Mr. Wagun not taking any issue with the Newspaper’s defence of publication in “good faith”?

(2) Was the publication defamatory?

(3) If the publication was defamatory, was the publication in good faith and fair and published in the public interest for the benefit of the public?

Failure to plead against good faith

5. Order 8 rr. 83 - 88 of the National Court Rules (NCR) govern pleadings in defamation cases. The most relevant provision here is r. 87, which reads:

“87. Pleading and particulars; Want of good faith

Where a plaintiff intends to meet any defence by alleging that the publication of the matter complained of was not in good faith –

(a) the plaintiff shall plead that allegation by way of reply; and

(b) the particulars required by Rule 29 in relation to the reply shall include particulars of the facts and matters from which the absence of good faith is to be inferred.”

6. This rule is very clear. Where a defendant to a claim in defamation pleads “good faith” and the plaintiff takes issue with that, he or she is required to plead with particulars in his reply to the defendant’s defence setting out the basis for taking that position. In this case, there is no contest that Mr. Wagun did not meet this requirement and hence the Newspaper argues for a finding in its favour.

7. As I said in National Provident Fund Board of Trustees v. Jimmy Maladina & Ors (2003) N2486 with the subsequent approval of the Supreme Court in Tony David Raim v. Simon Korua (2010) SC1062 (per Gavara-Nanu, Davani and Makail JJ)

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

1:

“…the object of pleadings is to enable the parties to fully disclose in fairness the basis of their claim or a defence with particulars to avoid delay, trials by ambush, evasion and or attrition. They also enable the opposing party to know precisely the claim he or she is to meet and if need be, enable an out of Court settlement or a payment into Court. At the same time, pleadings enable the Court to know exactly what are the issues between the parties and what it is required to hear and determine.”

8. It is settled law in our jurisdiction that, unless a matter is pleaded, a party cannot adduce evidence and seek to succeed on a matter or issue not pleaded. Specifically in defamation cases, on the question of pleading malice or bad faith, the decision of the Supreme Court in Cyril Mudalige v Rabaul Shipping Ltd (2011) SC1132, is relevant. There, without pleading malice or bad faith as is required by r.87, Rabaul Shipping Ltd tried to raise the issue. The Court per Davani J with whom David J agreed said:

“However, I find that the respondents should not have relied on malice as their way of saying that publication was not in good faith because they did not plead malice in a Reply. Malice must be specifically pleaded.”

9. The only time a party may be permitted to venture outside his or her pleadings is in cases where, the Court is so persuaded and is minded to grant leave for an issue not pleaded to be litigated and give all of the parties to the proceeding an equal opportunity to properly present their evidence and if need be, address the Court on the issue.

New Britain Oil Palm Ltd v. Vitus Sukuramu (2008) SC946; Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694,

2 This would be a rarity because once pleadings have closed and the matter is progressed to trial, the Courts will be slow to abort a trial and hence cause a delay in reaching finality in litigation promptly. This would be consistent with worldwide judicial view against the ready grant of adjournments except in cases in which a case is properly made out for an adjournment.

PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126; Joshua Kalinoe v. Paul Paraka; Hon Biri Kimisopa v. Paul Paraka (2010) SC1024; Ok Tedi Mining Ltd v. Niugini Insurance Corporation and Others (No 1) [1988-89] PNGLR 355 and Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183.

3

10. In the present case, Mr. Wagun did not seek leave of the Court...