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Nukundji v Ten [2017] PGNC 414; N7641 (13 October 2017)

N7641

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 106 OF 2017

HON. WESTLEY NUKUNDJI
Appellant

V

WILSON TEN
Respondent

Waigani: Kariko, J
2017: 12^th & 13^th October

PRACTICE & PROCEDURE – application for interim injunctions pending appeal – appeal against District Court order for compensation for adultery - injunctions sought against media generally from publishing the order - relevant considerations –– interest of justice

Cases cited:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617

Legislation:

Constitution
Defamation Act (Chapter 293)

Counsel:

Mr D Levy, for the Appellant
No appearance for the Respondent

RULING

13^th October, 2017

1. KARIKO J: This is an application for interim injunctions.

2. The plaintiff is a member of the National Parliament and is a Minister in the current Government. On 19^th September, 2017 the Port Moresby District Court found him and a female co-defendant liable for adultery and ordered that each pay K300 compensation to the complainant (and now the respondent) Wilson Ten. Aggrieved with that decision, the appellant lodged this appeal.

Relief sought

3. Pending the hearing of the appeal, the appellant seeks interim injunctions against:

(1) All media outlets (newspapers, television and radio) from publishing the decision pursuant to the District Court order.
(2) The defendant from approaching any media outlet to publish the contents of the District Court order.
(3) The defendant from publishing the contents of the District Court order in the social media including Facebook.

Legal principles

4. Case authorities such as Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853 have established that in order for the Court to grant an interim injunction, an applicant must show that:

(1) There are serious questions to be tried and that an arguable case exists;
(2) An undertaking as to damages has been given;
(3) Damages would not be an adequate remedy if the interim order is not granted; and
(4) The balance of convenience favours the granting of the interim order.
(5) Where does the interest of justice lie?

Consideration

5. The applicant explains that any reporting of the District Court case would tarnish his reputation as a leader, and therefore this application.

6. In relation to the orders sought against the media generally, such an order would amount to a gag of the media and would restrain the media from carrying out an important part of its role in society and that is to publish news on matters of public interest.
7. The media is not a party to the proceedings. In any case, it is at liberty to report on items of public interest and that includes court proceedings. That happens every day. Unless there is a court order barring the reporting of a court proceeding or such publishing is prohibited by law, the media has every right to report and publish news items so long as it does not contravene the Defamation Act (Chapter 293). If it does, then the applicant may file an action against the publisher. Otherwise the right to freedom of expression and publication is guaranteed by Section 46 of the Constitution.

8. The Supreme Court in Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617 observed that:

“It is the function of the press, both the private and State-owned press, in a democracy, to provide its readers with news of current events of public interest. Likewise the public has a right to have access to that information. And it is the duty of the press to ensure as far as possible, that its reports on matters of public interest are reasonably accurate, fair, and objective. ...

Our system of government is a constitutional democracy. Freedom of the press to communicate information of public interest to the public for the advancement of the general public welfare is fundamental to the development and sustenance of a free and thriving constitutional democracy. For this reason, Section 46 of the Constitution guarantees everyone the right to freedom of expression and publication.”

9. In the same case which involved a defamation suit by a missionary against a newspaper, the Court noted in referring to public scrutiny of the conduct of the missionary: “Just as much as his public conduct is subject to public scrutiny, his private morals, habits, nature and convictions which relate to his conduct as a missionary is open to legitimate public commentary.” In my view, similar sentiments apply in the case of a senior governmental official such as a Minister.

10. The only evidence produced by the appellant in support of the orders sought in this application is that he has been approached by a couple of journalists asking for his comment on the District Court decision. He is entitled to make no comment or he could state his case that he believes the decision was wrong and that he has appealed against it. The reporting of court cases involving public officials including members of parliament are matters of public interest. The conduct of those officials is subject to scrutiny generally.

11. The applicant further claims that the respondent urged those journalists to report on the District Court case. This is a vague allegation and even if true, is not a proper ground to issue the restraining orders against the media. No evidence has been presented to show that news of the District Court order has already been published in the media and there is no evidence that the respondent has published the decision on social media. It is nearly one month since the District Court order was issued.

12. Finally, I note that if the applicant succeeds on his appeal and is able to establish that the case in the District Court was politically motivated and initiated with malice, he may file appropriate action against the respondent for damages.

Conclusion

13. In the end, I consider that it is in the interest of justice, that I refuse the appellant’s application for interim injunctive orders.
________________________________________________________
Manasseh & Co. Lawyers: Lawyer for the Appellant