N8482   

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 108 OF 2013

BETWEEN:
MALCOLM LESLIE LEWIS
Plaintiff

AND:
GAUVIN FLORES
First Defendant

AND:
MAJORIE FLORES
Second Defendant

Lae: Dowa AJ
2020:  2nd June &7th August

PRACTICE AND PROCEDURE – motion by Defendant- application to dismiss proceedings on the grounds of lack of jurisdiction – defendants argue National Court in PNG does not have jurisdiction to hear matter as the alleged defamation of the plaintiff’s character occurred in the Republic of Philippines - Whether or not the National Court in Papua New Guinea has jurisdiction to deal with a cause of action which took place outside of Papua New Guinea - the act of publication of alleged defamatory matters took place in the Republic of Philippines - matters that gave rise to the complaint occurred in Papua New Guinea - Plaintiff based in Papua New Guinea - personal and business reputational damage allegedly suffered by the Plaintiff is done and felt in Papua New Guinea – National Court in Papua New Guinea has jurisdiction to hear matter - defendants application to dismiss proceedings is dismissed

Cases Cited:
Papua New Guinea Cases

Trinity Grammar School v Tomai (2019) N7819
Steamships Trading Ltd v Inter Oil LPOP (2018) N76516
Settin Bay Lumbar Company Pty Ltd v Arya Ship Management Ltd (1995) PGSC7 SC488

Overseas Cases

Dow Jones & Company Inc v Joseph Gutnick [2002] HCA 56

Counsel:

S. Tanei, for the Plaintiff
T. Dawidi, for the Defendant

RULING
7thAugust, 2020

1.	DOWA AJ:	 This is a ruling on a preliminary issue of jurisdiction raised by the Defendants.  If the Defendants application is successful, the proceedings will be determined in its entirety.

CAUSE OF ACTION

2.	The Plaintiff is claiming damages against Defendants arising out of defamatory publication allegedly published by the Defendants in the Republic of Philippines.  The Defendants raise the defence that there is no publication in Papua New Guinea and the National Court in Papua New Guinea does not have jurisdiction to hear the matter.

FACTS

3.	The Defendants were employed by Lae International Hospital as Chief Medical Officer and Gynaecologist respectively between December 2008 and March 2010.

4.	Early 2010, the Plaintiff became Chairman of Lae International Hospital after Hornibrook NGI Ltd purchased majority of the shares from Lae International Hospital.

5.	On or about 1st March 2010 the Plaintiff terminated the employment contracts of the First and Second Defendants.

6.	On termination of employment, the Defendants returned to the Republic of Philippines.  Whilst in the Philippines, the Defendants lodged a complaint for disciplinary action with the Philippines Department of Labour and Employment, Philippines, Overseas Employee Association (POEA) Adjudication office, complaining of their termination and the treatment they were given by the Plaintiff upon their termination.

7.	The Philippines Overseas Employee Association (POEA), is a Philippines Government Entity, within the Republic of Philippines, Department of Labour and Employment responsible for the management, and welfare of all its citizens employed all around the world.

8.	Based on the complaint by the Defendants, the PEOA Adjudication office convened and considered the merits of the complaint raised by the Defendants.

9.	On 16th November 2012, the PEOA Adjudication office heard and found the Plaintiff liable for violation of PEOA Rules and Regulations governing the recruitment and employment of land – based overseas workers.

10.	The complaint made by the Defendants is now the basis for the Plaintiffs claim for defamation in Papua New Guinea.  The Plaintiff alleges, he suffered damages to his reputation and loss of income.

ISSUES

11.	The issues for determination are:

1.	Whether the cause of action took place in Papua New Guinea;
2.	Whether or not the National Court in Papua New Guinea has jurisdiction to deal with a cause of action which took place outside of Papua New Guinea.

LAW

12.	The relevant provisions of statute law and rules are set out below.

•	Section 109(4) of the Constitution

“Each law made by Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law, according to its true intent, meaning and spirit, and there is no presumption against extra territoriality.”

•	Section 2A (1) of the Interpretation Act

“2A.  LAW TO OPERATE WITHIN BOUNDARIES, AIRSPACE, SHIPS AND AIRCRAFT, 

(1)	 Subject to Subsection (2), it shall be presumed, unless the contrary intention appears, that a provision is intended to operate-

(a)	Through the land territory under the sovereignty of the State; and 
(b)	Within the area of the internal waters and territorial sea; and 
(c)	Throughout the super jacent airspace of the land territory, the internal waters and territorial sea; and 
(d)	In relation to all ships and aircraft (wherever located) which have Papua New Guinea nationality and in particular to all persons and things for the time being on board those ships and aircraft.

(2)	Subsection (1) does not apply to_

(a)	An adopted Act which embodies the terms of a pre-independence law of the former Territory of Papua or of the former Territory of New Guinea; or

(b)	  A subordinate enactment made under an Act referred to in Paragraph (a): or

(c)	Provincial Government laws, Local Government rules or to nay other subordinate enactment made under a power which is limited to the making of statutory instruments to operate in or for the purposes of an area smaller than the country.

(3)	This section shall not be construed-

(a)	As limiting the operation which an adopted Act or subordinate enactment has apart from this section; and

(b)	As extending any power to make subordinate enactments.”

DEFENDANTS SUBMISSION

13.	Mr Dawidi of counsel for the Defendants submit, that the Defendants have raised the defence of lex loci delicti, the common law principle that the substantive law of the place where the tort occurs applies in the case of defamation and should be the place where the Courts have jurisdiction.  It is further submitted the publication complained of by the Plaintiff took place in the Republic of Philippines and for this reason the Courts in Papua New Guinea do not have jurisdiction. The Defendants relied on a decision by the High court of Australia in Dow Jones & Company Inc v Joseph Gutnick for persuasive value.

Plaintiff’s Submissions

14.	Mr Tanei of counsel for the Plaintiff submits that the National Court in Papua New Guinea has jurisdiction to deal with the matter.

15.	Mr Tanei submits that in deciding whether a National Court in Papua New Guinea has jurisdiction, the principles of forum non conveniens apply.  Forum non-conveniens is a legal maxim that says the Court may stay a proceeding if there is another forum to which the case can be conveniently tried.

16.	Mr Tanei relied on the cases of Trinity Grammar School v Tomai (2019) N7819, Steamships Trading Ltd v Inter Oil LPOP (2018) N76516 and Settin Bay Lumbar Company Pty Ltd v Arya Ship Management Ltd (1995) PGSC7 SC488. These cases discuss the cause of action and its connection to the jurisdiction and have generally expressed the view that the most appropriate forum is the Court in the country that the case has closest connection.

17.	The Plaintiff submitted that whilst the act of publication took place in the Philippines, the matters that gave rise to the complaints to the POEA allegedly occurred in Papua New Guinea.  The matters of complaint were matters regarding the Defendants employment in Papua New Guinea.  The Plaintiff who suffered damage to the reputation is based in Papua New Guinea.  There is therefore a real connection in Papua New Guinea and the most convenient forum to deal with the matter is the National Court of Papua New Guinea.

18.	Mr Tanei submits that the National Court of Papua New Guinea has jurisdiction to deal with the matter because it is a court of unlimited jurisdiction as provided for under section 166 of the Constitution of Papua New Guinea.

REASONS FOR DECISION

19.	I have carefully considered the submissions of both counsel, which have been helpful.   I have also considered the case law referred to by counsel.  In my view, the National Court in Papua New Guinea has jurisdiction to deal with this matter.

20.	There is no dispute, the act of publication of alleged defamatory matters took place in the Republic of Philippines.

21.	However, the matters that gave rise to the complaint lodged with the POEA occurred in Papua New Guinea.  The Plaintiff is based in Papua New Guinea.  The personal and business reputational damage allegedly suffered by the Plaintiff is done and felt in Papua New Guinea.

22.	I am not aware of a case decided in Papua New Guinea on this issue.  Mr Dawidi cited the case of Dow Jones & Company Inc v Joseph Gutnick for the proposition that where a tort is committed outside of an Australian State, the choice of law rule and court to be applied are that of the place of commission of the tortious action.  That is a general statement of law.  The specific findings and decision of the High Court favoured the submissions made by the Plaintiff in that case, are identical to the present case.

23.	In Dow Jones & Co., the Plaintiff, Joseph Gutnick a resident of Victoria, Australia sued an American news publication company, Dow Jones & Co, for damages for defamation in respect of an article that defamed him.  The Plaintiff lives in Victoria, and has his business headquarters in Victoria, Australia.

24.	The Defendant, Dow Jones contended that the statements were published in New Jersey, USA and that it was, therefore the law of that jurisdiction which would have jurisdiction to deal with the matter.

25.	On hearing parties, the High Court of Australia, recited the principles of law on forum non conveniens.  The principles applicable in determining this issue in an Australian Court are discussed at paragraph 9 of their decision which I quote:

“Argument of the appeal proceeded from an acceptance, by both parties, of certain principles.  First, it is now established that an Australian court will decline, on the ground of forum non conveniens, to exercise jurisdiction which has been regularly invoked by a plaintiff, whether by personal service or under relevant long-arm jurisdiction provisions, only when it is shown that the forum whose jurisdiction is invoked by the plaintiff is clearly inappropriate.  Secondly, it is now established that in trying an action for tort in which the parties or the events have some connection with a jurisdiction outside Australia, the choice of law rule to be applied is that matters of substance are governed by the law of the place of commission of the tort.”

26.	The High Court, in dismissing Dow Jones appeal, affirmed the Supreme Court’s decision, that Victoria was the appropriate forum for trial of the Plaintiff’s claim.The High Court reasoned that in deciding which is an appropriate forum, in defamation cases, the court need not to look at the publishers conduct only, but also at the place where damage to reputation occurs.  At paragraphs 44 &48, of the judgment, the High court said this:

“44.	In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher’s conduct, lead to the conclusion that ordinarily, defamation is to be located at the place where the damage to reputation occurs.  Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged.  It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant’s conduct.  In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server.  It is where that person downloads the material that the damage to reputation may be done.  Ordinarily then, that will be the place where the tort of defamation is committed.”

“48.	As has been noted earlier, Mr Gutnick has sought to confine his claim in the Supreme court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that State.  The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria.  That is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications which he complains were comprehensible by readers.  It is his reputation in that State, and only that State, which he seeks to vindicate.  It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria.  But is also follows that Mr Gutnick’s claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction.  There is no reasons to conclude that the primary judge erred in the exercise of his discretion to refuse to stay the proceeding.”

27.	The reasoning in the above Court has persuasive value in our jurisdiction, although not binding in this Court.  In Settin Bay Lumbar (supra), the Supreme Court in stating the principles to be applied when considering the issue of forum non conveniens said this on pages 4 to 5 of the judgment:

The authors of HALSBURYS LAWS OF ENGLAND 4TH EDITION VOL 1 at PARA 353 set out the principles which apply in ascertaining the most appropriate forum especially where a stay is sought.  Thus:

“353.   Forum non conveniens
The court may stay an action if there is another forum in which the case can be more conveniently tried.  Account is taken not only of convenience and expense, but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum.  In ascertaining the most appropriate forum the court searches for the country with which the case has its most real and substantial connection.
If a foreign court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him by suing in England.  A common instance of this in Admiralty proceedings is the opportunity for the plaintiff to secure his claim by the arrest of the vessel as an action in rem.  Other examples from the decided cases are the availability in England of a more generous limitation period, a speedier or cheaper trial, a more generous measure of damages, or a more favourable rule of substantive law.  Particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant.  Normally however the court will not compare the quality of justice available in England with that dispensed elsewhere, and allegations that a fair trial would not be obtainable in the foreign jurisdiction must be supported by cogent evidence.  Ultimately, the courts task is to weigh in the balance the factors both for and against a stay, so that even if the plaintiff can point to a legitimate advantage in suing in England, this will not be decisive if another jurisdiction is clearly the more appropriate forum.”
28.	Mr. Tanei helpfully summarized the principles, to be applied when considering which is the most convenient forum, and they are:

a)	There is another forum that can conveniently deal with the matter.
b)	The expense involved in running the trial if it were to be dealt with in another country.
c)	The law governing the transaction/event which point to the most appropriate or natural forum.  Here the court searches for the country which the case has its most real and substantial connection.

29.	Applying the above principles, I find the substantive matters that gave rise to the complaint took place in Papua New Guinea.  The Defendants were employed by Lae International Hospital in Lae.  They were terminated in Papua New Guinea for a cause by a Company operating in Papua New Guinea.  The Plaintiff is based in Papua New Guinea.  The National Court in Papua New Guinea is the most convenient and appropriate Court to deal with the matter.

30.	In terms of cost, it is less expensive to run a trial in Papua New Guinea than in the Republic of Philippines.

31.	Further, and more importantly, whilst the act of publication of defamatory matters took place initially in the Republic of Philippines, the alleged damage to personal and business reputation occurred in Papua New Guinea.  The proceedings in the present case is similar to the proceedings in Dow Jones (supra).  In my view, the application should be refused.

32.	There is another reason the application should fail.  The proceedings were commenced in February 2013, seven (7) years ago.  This important issue was not raised at the initial stage of the proceedings.  Grave injustice would be done if the proceedings were to be determined now on this issue alone, after the proceedings have been litigated over more than seven (7) years.

33.	For these reasons, the Defendants application for dismissal of the proceedings on the basis of lack of Jurisdiction is refused.

ORDERS

34.      It is ordered that:

1.	The Defendants application is refused.

2.	The matter is now fixed for listing on a date to be agreed to by the parties.
________________________________________________________________
Corporate In-house Lawyers: Lawyers for the Plaintiff
Dawidi Lawyers: Lawyers for the Defendant