Sarea Soi v Daniel Korimbao

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 05 February 2018
• Citation: (2018) N7081
• Court: National Court
• Year: 2018
• Judgement Number: N7081

Full : WS No 71 of 1999; Sarea Soi v Daniel Korimbao-Chief Editor National Newspaper and Jaqlene Kapigeno – Chief of Staff National Newspaper and Andy NG – General Manager Pacific Star Limited and Pacfic Star Limited Publisher of National Newspaper (2018) N7081

National Court: Kandakasi, J

Judgment Delivered: 5 February 2018

N7081

[PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO. 607 of 2008

BETWEEN

SAREA SOI

Plaintiff

AND

DANIEL KORIMBAO-CHIEF EDITOR

NATIONAL NEWSPAPER

First Defendant

AND

JAQLENE KAPIGENO –CHIEF OF STAFF NATIONAL NEWSPAPER

Second Defendant

AND

ANDY NG-GENERAL MANAGER PACIFIC STAR LIMITED

Third Defendant

AND

PACFIC STAR LIMITED PUBLISHER OF NATIONAL NEWSPAPER

Fourth Defendant

Waigani: Kandakasi, J.

2016: 20th April

2018: 05th February

DEFAMATION – Meaning of - Defence against publication of – Protection – Report of matters in the public interest – Fair comment and truth, fair comment and qualified protection – 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).

DEFAMTION – Publication of defamatory material against an organisation – No cause of action accruing to an individual member – Against public policy and public interest for individuals to sue – Need for free discussions of matters of public interest must not be inhibited – Also it is most difficult to identify and conclude such a publication applies to an individual - Exceptions – Only if an individual can clearly show by appropriate evidence that the publication target and concerned only him and not the group he may be permitted.

DEFAMATION - Publication against commission of inquiry - Appointed by the people through the government – Funded by public funds - Purpose, duties and responsibilities – Subject matter to be investigated into - Public function –All officers or persons working with a commission of inquiry are discharging a public function - Public has an interest in knowing how a commission of inquiry is carrying out its duties and responsibilities – Newspaper publications of and concerning Commissions of Inquiry in the interest of the public - Publication not singling out and specifically target the plaintiff - No cause of action.

EVIDENCE – Rule in Brown v. Dunn (1879) R (HL) – Failure to observe and put own case to opponents witnesses – Claims made in submission not put to the opponents’ witnesses rejected.

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 the public interest and for public’s benefit - Plaintiff taking issue claiming lack of truth and publication actuated by malice – Plaintiff’s pleading must identify with appropriate particulars the malice or ill-will or harm, difficulty or injury intended against him or her - Pleadings must also plead with particulars the basis for inferring the sole or predominate motive or intend to cause the identified harm, difficulty or injury as well as the basis for alleging the publication was not for the purpose pleaded in a defendant’s defence – A plaintiff claim lack of truth must in his pleadings identify what the truth was, how the truth was misrepresented or not properly reflected in the publication, how the truth could have been ascertained or how it could reasonably be inferred and how there was no truth in the publication – In case of malice the pleadings must plead the essential elements of malice – Failure to so plead – Effect of - Plaintiff precluded from raising the issue, call evidence and succeed – National Court Rules, Order 8, rr, 83 – 88.

WORDS & PHRASES – “Secretariat” - Usually means an administrative unit or department of an organisation that is responsible for the maintaining of records, and other secretarial duties.

Cases Cited:

Papua New Guinea Cases

Paul Wagun v. Robert Palme and Pacific Star Limited Trading as “The National” (2015) N5917

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

Francis Chibelle v. Jack Mafu (2015) N5942

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

Tony David Raim v. Simon Korua (2010) SC1062

MVIT v. John Etape [1994] PNGLR 596

Cyril Mudalige v. Rabaul Shipping Ltd (2011) SC1132

Joshua Kalinoe & Ors v. Paul Paraka & Ors; Hon Bire Kimisopa & Ors v Paul Paraka & Ors (2014) SC1366

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

PNG Aviation Services v. Somare [1997] PNGLR 515

Demba Kalo v Cornnie Akaya and Sam Inguba, Commissioner of Police and The Independent State of Papua New Guinea (2007) N3203

Overseas Cases

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

Adam v. Ward [1916-17] ALL E.R. Rep. 159

Knupffer v. London Express Newspaper [1944] A.C. 166.

Philliponi v. Leithead (1958) 76 W.N.(NSW) 150

Pilato v. Metropolitan Water Sewerage and Drainange Board (1959) 76 W.N. (NSW) 364, at 365

Gordon v. ABC (1973)22FLR 181

Trobridge v Hardy (1955) 94 CLR 147

Other Sources & Material:

A. Mullis & R. Parkers, Gatley on Libel and Slander, 12th Edition (2013), Thomas Reuters (Professional) UK Limited, at 274, para 7.9.

Counsel:

N. Kubak, for the Plaintiff

I. Molly and W. Frizzell, for the Defendants

05th February, 2018

1. KANDAKASI J: The plaintiff Mr. Sarea Soi, who is a senior lawyer by profession is claiming damages inclusive of exemplary damages for defamation with interest and costs. This arises out of six publications in The National Newspaper (the Newspaper) between 17th December 2007 and 25th February 2008, which included two cartoons. There is no denial of the publications but the arguments are around the meaning, effect and purpose of the publications.

Issues for Determination

2. Hence, the issues for this Court to consider and determine are the following:

(1) Are the articles and cartoons (pictorial messages) variously published by the Defendants in the Newspaper:

(a) Defamatory; and

(b) of the Plaintiff?

(2) If the first question is answered with a “yes’, are the publications, excused or justified by virtue of the protections accorded by ss. 8, 9 and 11 of the Defamation Act?

(3) Subject to a determination of the first two questions, what are the Plaintiff’s damages and how are they to be calculated?

Relevant Facts

3. Most of the facts are not in any serious dispute. The Plaintiff, is a lawyer who commenced private legal practice in 1993. On 10th November 2006, he was appointed as senior lawyer to a Commission of Inquiry into the Department of Finance (COI). Almost two months later on 12th January 2007, he was appointed counsel assisting the COI. Later, on 7th December 2007, his appointment as counsel assisting the COI was revoked and was replaced by Mr. Stephen Kassman (as he then was). Early in the New Year, on 16th January 2008, Mr Kassman’s appointment was revoked, and Mr. Soi was reappointed. That was however, short lived. On 28th February 2008, his appointment was yet again revoked and replaced by Mr Kassman.

4. A number of other persons were engaged or seconded to work at the COI. The total number of persons working for or with the COI was between 20 and 30 people. That included Mr. Soi and the Commissioner.

5. At all material times, the First and Second Defendants were employed by the Fourth Defendant (Pacific Star). They were respectively journalists holding the positions of editor in chief and chief of staff of the Newspaper published by the Pacific Star. The Third Defendant was employed by the Pacific Star as its general manager.

6. The Newspaper published the six articles, the subject of this proceeding. The first was on Monday 17th December 2007, with the heading “Inquiry Team sacked” at the front page and the second page stating amongst others, Mr. Soi and his team had been sacked and replaced by a new team “[d]ue to public outcry questioning the integrity of the inquiry” and the new appointment “would no doubt bring back the credibility of the inquiry.” The second was on Thursday 31st January 2008 with the heading: “Probe Shame” with a subheading “Disgraceful conduct uncovered in probe into Finance Inquiry” in the front page and continuing in the second page of the Newspaper. The third and fourth...