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Mondo v Steamships Trading Company Ltd trading as Boroko Hotel [1992] PGNC 24; N1314 (5 July 1992)

Unreported National Court Decisions

N1314

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 245 OF 1993
TOBY MONDO
v
STEAMSHIP TRADING COMPANY LTD
TRADING AS BOROKO HOTEL

Waigani

Salika J
March 1995

JUDGMENT

DEFAMATION - Words Spoken Defamatory per se - Circumstances Words Spoken - Defence Under S. 14 of Defamation Act - words not actionable in the circumstances spoken.

Counsel:

Mr P Waine for plaintiff

Mr P Payne for Defendant

Cases Cited:

Baker v Lae Printing Pty Ltd (1979) PNGLR 16 at p. 24

March 1995

SALIKA J: This is a claim for defamation commenced by way of a Writ of Summons. The circumstances trought ught about this claim are that:

“On Tuesday 21 January 1992 the plaintiff went and booked himself a room at the Boroko Hotel for a night.&#1e says that at about 7.30pm he came outside and went to theo the reception area to leave his room key. When he was there two sey rity men on duty and one off duty assaulted him. He alleges tther employeesoyees of the Hotel and the Security men pulle outside and told him:

‘Yu wanpela pipia man

Yu nogat money

Yu r>Yu rabisman

Yu kisim moni we na kang na spak na bikhet’8217;.”

He says those words were repeated to him and that there were many bystanders. Hn went and reported the mthe matter to the Boroko Police Station.

The plaintiff then sued the defendant for assaults allethat its servants and agents had assaulted him and that they had defamed him. The mate matter oault was was dealt with on the 5/7/92 at the Port Moresby District Court and the Court entered judgment of K636.60 against the defendant for assault. Thematiostion was referrederred to the National Court thus this this writ.

The plaintiff alleges that the words and gestures spokd done by the servants and agents of the defendant were inferred to mean that the plaintiffntiff was a worthless person with no means of support and that he was a dishonest and untrustworthy person.

The plaintiff alleges that the object of the defendant, its servants or agents in uttering those words complained of was to cause annoyance, inconvenience and distress to the plaintiff and to cause damage to the plaintiffs reputation in his community and business.

The plaintiff alleges that he has suffered damages as a result of the utterances.

The plaintiff claims he was defamed by way of slander in that the utterances amounted to:

a) ـ S60; Slander by words, and

b) ҈ Slander by way of a of actions, gestures and conduct.

The plaintiff further submits that the utterance of the words to the people preand lthe YGroup for which the tiff was president of had thed the effe effect thct that that the plaintiff was a worthless person. As a result of that the members of the Youth Group have lost interest and that their confidence and trust in the plaintiff has diminished.

The defenhas denied the allegation claimed by the plaintiff.

The defendant says that the alle alleged defamatory statements were independent personal acts of persons alleged to be employed by the defendant and were not connected with or incidental in any manner to the work which the defendants alleged employees were either expressly or implied authorised to perform on behalf of the defendant. The defendant submits the the plaintiff must prove on the balance of probabilities that the person who defamed him were acting within the authority of the defendant.

The defendant further submits in the alternative that while the words allegedly uttered may be impleasant and perhaps vulgar, they cannot be words which at common law are actionable, having regard to the circumstances under which the words were alleged to have been said. The defendant submits if t if the alleged words were uttered in a hotel in the presence of the patrons of the hotel the plaintiff was not likely to be injured by the publication beca hotel by its nature is a place where people go to consume sume alcohol and that it is generally a place where more vulgar words are spoken than in other places like offices, shops or church meetings.

I find that the words complained of that were allegedly uttered in their ordinary sense bear the following meaning.

a) ; The plafntifa is a rubbishbbish man.

b) The plaintiff is aonersth with no money and should not be drinking ansing le.I amhe viat the circumstancetances unds under wher which tich those hose words were allegedly uttered should be identified first. The tiff checked in d in at the hotel at 11.45 am on 21 January, 1992. He was evasive as to why he had gone to the Hotel and what he had done while at ttel bn 11.45am and 7.00pm. He was with a d iend PeterPeter Leo and some “one day friy friends”. He said he drank o bottles of beer shortly bely before he said he was assaulted. He was evaabout telling thng the court the truth about what he did fo whole afternoon. One could almost gtaking iing into account that he was seen in the the bar area by Peter Leo.

The evi is that while he was talkitalking to 2 duty security guards an off duty security guard assaulted him for no apparent reason. He saiwas then dragged outd out and the defamatory words were spoken.

The words themselves in my view given their ordinary meanre defamatory per se.

The next question is, are those words actionable. In comn common lfamation iion is a tort and is not actionable without proof of special damage except where the:

1) ټ Words imputes a crua crunishable with imprisonment.

2) ;d Words imds impute cute contagious venereal disease.

3)&##160;;ټ&#Words impute reputation in ofin office,fice, prof professioession, calling, trade or business.

4) ـ҈ W60; Words irds impute unchastity to a woman.

In Gatley on Libel And Slander 8th Edition of paragraph 162 the learned author says:

&#822 mereral abuse spoken, no action lies. The mannemanner in r in which the words were pronounced may explain the meaning of the words. It is also very relevant for the jury to consider in determining the sense in which the words were used and understood if were spoken in the heat ofat of passion or accompanied by a number of non actionable but scurrilous epithets, eg a rascal, a scoundrel or villain etc.”

The learned author goes on to say at paragraph 202 that at common law:

“no action will lie, in the absence of special damage, for calling a man hypocrite, a rogue or rascal, a cheat, a cad, a bastard, a swindler, a crook, a villain, a liar and fraud a gambler...unless the words are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication.”

Those common law principles were recognised in the case of Baker v Lae Printing Pty Ltd [1979] PNGLR 16 at page 24 but the court in that case found that the words complained of were defamatory and actionable and not mere words of vulgar abuse and therefore not actionable.

Section 14 of the Defamation Act provides as follows:

“In any case other than that of words intended to be read, it is a defence to an action or prosecution for publishing defamatory matter to prove that the publication was made on an occasion when, and in circumstances in which, the person defamed was not likely to be injured by the publication.”

The defendant has pleaded that defence saying that the incident took place in a hotel and that the plaintiff was not likely to be injured.

I have heard the evidence from the plaintiff and his witnesses. There was no evidencm him him and his witnesses how he had been injured. The plainwas the leader ofer of a Youth Group and the group was in the business of identifying projend seeking donations for funding from various companies ands and foreign embassies to do those projects. There is no evidence that the Boroko incident ruined his chances of obtaining funding for projects. The evidence is to therarytrary. Evidence it even afte inci incident at Boroko on 21/2/92 the plaintiff was receiving funding for vari various projects. For example his greceiunding for sewing and screen printing projects ints in November of 1992 from the New Zealanealand High Commission of which the other rs of the group knew nothing about. I also note that by that time the plaintiff was no long longer the president.

The fact that he is no longer the president of the Youth Group is not because of the Boroko Hotel incident. There was a meeting for election of office bearers and a new President was elected. The ms of the Youth Group roup who gave evidence said generally before the incident they trusted and respected the plaintiff but because hey heard that he t he caused some trouble at the Boroko Hotd that he had been assaulteaulted and called names at the hotel they no longer respected and trusted him. They have not told thrt hort how they were affected or the Youth Group was affected. There is no evidence from the donor or funding agencies thnded or donated money to his group to say that they had refused to provide funding for his his group because of the incident.

As I have found that the words were of a vula vulgar abuse I find that they are not actionable, in view of the circumss they were spoken.

>

The plaintiffs claim is dismissed. I award costs to the defendants.

Lawyer for Plaintiff: Blake Dawson Waldron.

Lawyer for Defendant: Wal and Co Lawyer.