N9895

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 1138 OF 2011

RENDLE RIMUA
Plaintiff

-V-

FRANK SENGE KOLMA
First Defendant

PACIFIC STAR LIMITED trading as The National
Second Defendant

Waigani:  Kariko, J
2021: 18th October

DEFAMATION – newspaper publications – publications of report tabled in parliament by Public Accounts Committee - whether publications defamatory – availability of defences – fair report, s.8 Defamation Act – qualified protection, s.11 Defamation Act 

The plaintiff, the head of a government department, sued a newspaper company and the journalist responsible for publication of several articles in a daily edition of the newspaper. The articles were based on a report tabled in the parliament by a parliamentary committee. The report was in relation to the administration of the department. The plaintiff claimed damages alleging the published articles were defamatory of him – that they implied he was corrupt and had benefitted from illegal dealings, and that he was incompetent and did not have control over his department. The allegations were denied by the defendants. 

Held:

1.	The elements of a cause of action in defamation are that: 

(1)	the defendant made a defamatory imputation of the plaintiff; 
(2)	the defendant published it; and 
(3)	the publication was unlawful in that it was not protected, justified, or excused by law (Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16).

2.	Some articles were prima facie defamatory, implying the plaintiff was incompetent and did not have control over his department.

3.	 The prima facie defamatory publications were a fair report “for the information of the public” as they were:

(a)	of proceedings (an inquiry) of a Committee of the Parliament held under a law; and 
(b)	contained extracts from or abstract of an official report of the inquiry; and 
(c)	the publications were not initiated by any ill-motive; and
were therefore justified or excused by s 8 of the Defamation Act.

4.	The publications were made in circumstances of qualified protection under s 11 of the Defamation Act as they: 

(a)	were made in good-faith; 
(b)	concerned the administration of public funds by a government department on a public project; and 
(c)	these were matters of public interest and for the benefit of the public.

Cases Cited

Griffin v Australian Broadcasting Commission (No 2) [1974] PNGLR 152
Yakham v Merriam [1999] PNGLR 592
South Pacific Post Ltd (trading as Post Courier) v Tame (2020) SC2042 Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16

Legislation

Constitution
Defamation Act, Ch.293
Permanent Parliamentary Committees Act 1994
Public Finance (Management) Act 1995

Counsel

Mr G Manda & Mr J Siki, for the Plaintiff
Mr I Molloy & Mr W Frizzell, for the Defendants

LIABILITY

This was a trial on liability regarding a claim for defamation

18th October, 2021

1.	KARIKO, J: The plaintiff claims that journalist Frank Senge Kolma wrote articles published in The National newspaper on 20th May 2010 that were defamatory of him. 

2. The publications related to a report by the Permanent Parliamentary Committee on Public Accounts (the PAC) on an inquiry the Committee conducted into the fund allocation, general administration, and operations of the Department of Petroleum and Energy (the DPE), particularly in relation to the Konebada Petroleum Park Project (the Konebada Project). 

FACTS

3.	The following pertinent facts are not in dispute, as disclosed by the evidence. Both the plaintiff and the first defendant were called and examined, and had their respective affidavits filed for the trial tendered without objection.

4.	The plaintiff Rendle Rimua was at the relevant time, the Secretary to the DPE while Kolma was employed by The National as a senior journalist.

5.	The PAC conducted the earlier mentioned inquiry from 14th July 2008 to the end of July 2009. In short, the inquiry related to the administration of the DPE, with particular reference to the Konebada Project.

6.	A report on the inquiry containing the findings of the PAC was prepared and adopted by the Committee on 21st December 2009 (the Report). It was subsequently tabled on the floor of the National Parliament on 6th May 2010.

7.	By letter dated 10th May 2010, the Chairman of the PAC wrote to the plaintiff enclosing a copy of the Report. In the letter, the Chairman listed the adverse findings made by the PAC in relation to, among others, the administration and management of public monies by the DPE. The plaintiff was then invited to respond within 30 days explaining how he intended to address the administration and management issues identified in the Report.  

8.	On 20th May 2010, Kolma wrote four articles that were published in The National under the headings:

•	“No trace of Konebada Petroleum Park’s K8 mil” on the front page and continued at page 14 (Article 1);
•	“Rimua Agrees to ‘no control’ at DPE” at page 14 (Article 2);
•	“PAC:  Petroleum and energy failed as a department” at page 14 (Article 3); and 
•	“Consultants cash in on petroleum park” at page 14 (Article 4).

9.	The articles were based on the Report and contained excerpts from it. 

10.	The plaintiff not only considered the release of the Report to the defendants to be premature and unauthorized, but he further viewed the newspaper publications to be defamatory of him.

11.	He accordingly placed a Press Release in the National on 28th May 2010 outlining those concerns, which were also included in his response letter to the PAC Chairman on 10th June 2010.

12.	The PAC did not reply to the letter and there was no further report on the inquiry.

13.	This suit was then filed on 30th September 2011.

APPLICABLE LAW

14.	Section 1 of the Defamation Act, Ch.293 states that a “defamatory matter” means the matter of an imputation referred to in Section 2 (Definition of defamatory matter) which provides:

(1)	An imputation concerning a person, or a member of his family, whether living or dead, by which—
(a)	the reputation of that person is likely to be injured; or
(b)	he is likely to be injured in his profession or trade; or
(c)	other persons are likely to be induced to shun, avoid, ridicule or despise him,
is a defamatory imputation.
(2)	An imputation may be expressed directly or by insinuation or irony.
(3)	The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.

15.	Under Section 3, a person who publishes a defamatory imputation about a person defames that person.

16.	Section 5 states that the publication of a defamatory matter is unlawful unless the publication is protected, justified or excused by law.

17.	The elements of a cause of action in defamation are that: 

(1)	the defendant made a defamatory imputation of the plaintiff; 
(2)	the defendant published it; and 
(3)	the publication was unlawful in that it was not protected, justified, or excused by law (Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16).

ISSUES

18.    The defendants do not deny the third element, admitting that the National is vicariously liable for articles written by its employed journalist. 

19.    As to the third element, the defendants argued that there is no reference to the plaintiff by name or position in Article 4, so no cause of action is established in respect of that publication. I consider otherwise. The four articles were published alongside each other in a way that they were obviously meant to be read together. By necessary inference therefore, Article 4 also implicated the plaintiff.  

20.     The only issues in this trial then are:

(1)	whether the Articles were defamatory of the plaintiff; and 
(2)	if so, whether their publications are protected, justified or excused by law.

DEFAMATORY IMPUTATION

21.     The defamatory imputations alleged by the plaintiff are set out in paragraph 13 of the Statement of Claim which reads:

In their natural and ordinary meaning, the said articles can be construed and understood that:.
(a)	Despite his qualifications and years of experience working with DPE, the Plaintiff as the Head of Department has no control and is incompetent to manage the administrative affairs of the department;
(b)	The Plaintiff failed as the Head of Department to establish or maintain effective check and balance mechanisms to oversee the disbursement of funds allocated to DPE;
(c)	Th Plaintiff sanctioned and benefitted from the alleged illegal dealings involving DPE;
(d)	Consultants were running the affairs of DPE on astronomical consultancy fee basis and not the Plaintiff as the Head of the DPE;
(e)	 The Plaintiff is incompetent and should be removed from office immediately;
(f)	The Plaintiff was a corrupt Head of Department; and
(g)	The Plaintiff does not have integrity. 
(My underlining)

22.   As noted earlier, Section 2(1) of the Defamation Act provides that an imputation concerning a person by which the reputation of that person is likely to be injured, or he is likely to be injured in his profession or trade, or other persons are likely to be induced to shun, avoid, ridicule or despise him, is a defamatory imputation.

23.   Article 1 contained statements that implied the plaintiff. After the Article referred to the Report, it was stated that the PAC accepted certain findings of the Auditor General’s Office, including: 

•	That the Konebada Petroleum Park Authority working group trust account was operated in breach of the trust instrument and the Public Finance Management Act, and that the trustees and “the head of the Department of Petroleum and Energy” ignored the trust instrument.
•	 That “the head of DPE” breached financial instructions in operating the trust account. 

24.    Article 2 discussed the PAC’s finding in the Report that the plaintiff failed to address obvious problems in the handling of public money, property and supplies by officers of the DPE. The Article concluded by noting that the PAC put to the plaintiff that he had no control over his staff or the accounting and recording systems, to which the plaintiff generally agreed. 

25.    Article 3 noted that in the Report, the PAC described the DPE as a “failed department” after finding that the Department had not properly discharged basic duties such as bank reconciliation and lodgment of statutory reports. The PAC noted several areas of concern regarding proper management and accounting of public monies, including the plaintiff and his senior managers’ failure or refusal to assist and co-operate with the Auditor General. 

26.     Article 4 related to the PAC’s findings that about 80% of the expenditure out of the Konebada Project trust account was spent on consultants. 

27.    The plaintiff submitted that the imputations pleaded corresponded to certain statements in the articles:

Imputation	Article 	Statement	
Failed to establish and maintain effective check and balance mechanisms	1 (paragraph 1)	Public funds totaling K8million has disappeared without a trace through the government’s Konebada Petroleum Park Authority.	
Was corrupt	1 (paragraph 4)	The park concept received and spent K29million, one third of it without trace, 83% went to consultants  	
Was incompetent and had no control in managing the DPE	2 (heading)	Rimua agrees to ‘no control’ at DPE 	
Was incompetent	2 (paragraph 2)	From the PAC report, it seemed Rimua appeared to have accepted all criticisms and findings of illegality, weakness and incompetence but claimed that he only accepted responsibility for those failures from the time of his appointment in April 2007. 	
Did not have integrity	2 (paragraph 2)	From the PAC report, it seemed Rimua appeared to have accepted all criticisms and findings of illegality, weakness and incompetence but claimed that he only accepted responsibility for those failures from the time of his appointment in April 2007.	
Sanctioned and benefitted from illegal dealings	4 (paragraph 4)	“Consultants” seemed to have been chosen by the individuals concerned with the management of the project with no lawful competitive selective procurement conducted.	
Allowed consultants to run the DPE	4 (paragraph 1)	The Public Accounts Committee (PAC) discovered that K80 out of every K100, allocated for the Konebada Petroleum Park, was spent on consultants.	

28.   The defendants argued that Article 1 did not suggest any of the meanings pleaded by the plaintiff, and because Article 4 made no mention of the plaintiff, there were no imputations concerning him. 

29.   However, the defendants acknowledged that Article 2 was capable of being understood to mean that the plaintiff had no control over the DPE and was incompetent in managing the Department, and that Article 3 suggested the plaintiff was incompetent and lacked control in managing the DPE. 

30.   I repeat my view that each article should not be read separately and apart from the others and therefore considered as a distinct publication. They all related to the Report and were intended to be read jointly as they were grouped together. The common message of the articles was the adverse findings of the PAC in relation to management of the DPE and the accounting for the funds allocated to it, particularly regarding the Konebada Project. 

31.    Foremost, I reject the plaintiff’s submission that in their natural and ordinary meaning, the publications conveyed the meanings that the plaintiff was corrupt and that he sanctioned and benefitted from illegal dealings. The articles do not suggest these meanings, nor can they be understood in that way.

32.    I agree that the publications could be understood to convey the meaning that the plaintiff as the head of the DPE was incompetent and did not have control over his department. No doubt, such accusations could injure his reputation.  The publications were therefore prima facie defamatory of the plaintiff on those bases. 

33.    I consider the alleged imputations that the plaintiff: 

•	failed to maintain systems to ensure proper checks and balances; and 
•	did not have integrity.
are part of the alleged imputation that he was incompetent.

34.  I also consider that the alleged imputation that the plaintiff allowed consultants to run the DPE is a part of the alleged imputation that he had no control over the department.

FAIR REPORT

35.     In their defence, the defendants first raised Sections 8 of the Defamation Act contending that the prima facie defamatory publications: 

•	were done in good faith; and 
•	concerned an inquiry established under a law (and extracts from a report of the inquiry); and
•	were made without malice or other ill motive.

36.    The defendants relied on circumstances described by Section 8(2)(a)(b) and (d):

(1)	…
(2)	For the purposes of this Act, it is lawful to publish in good faith for the information of the public-
(a)	a fair report of the proceedings of the Parliament or of a Committee of the Parliament; or
(b)	a copy of, or an extract from or abstract of, a paper published by order of or under the authority of the Parliament; or
(c)	…
(d)	A fair report of the proceedings of an inquiry held under a law, or by or under the authority of the Head of State, acting on advice, or an extract from or abstract of any such proceedings, or a copy of, or an extract from or abstract of, an official report made by the person by whom the inquiry was held; or
(e)	…
(f)	…
(g)	…
 (3)	For the purposes of this Act, a publication is made in good faith for the information of the public if the person by whom it is made is not actuated in making it by ill-will to the person defamed or by any other improper motive, and if the manner of the publication is such as is ordinarily and fairly used in the publication of news. 
(My underlining)
 
37.    The defendants submitted the articles related to an inquiry of the PAC which is a Permanent Parliamentary Committee established by the Constitution (Section 215) charged with the power to investigate public accounts under the Constitution (Section 216) and the Public Finance (Management) Act 1995 (Section 86) and accordingly may conduct inquiries for this purpose. 

38.     It is also noted that under Section 17 of the Permanent Parliamentary Committees Act 1994, the PAC may conduct such an inquiry on its own initiative.  The Committee is obliged under Section 82 of the Public Finance (Management) Act to table its report to the Parliament. 

Excerpts from the report on the inquiry – a final report not an interim report. 

39.     Accordingly, it was argued that the publications were a fair report “for the information of the public”:

(a)	of proceedings (an inquiry) of a Committee of the Parliament held under a law; and 
(b)	contained extracts from or abstract of an official report of the inquiry; and 
(c)	the publications were not initiated by any ill-motive.

40.     In response, the plaintiff urged the court to find that neither of these elements are proven. The publications were not a fair report as the Report was interim in nature, awaiting a response from the plaintiff. Also, the publications were based on untrue assertions. It was stressed that the Parliament had yet to accept the Report as final and that its release to the defendants was unauthorized.   

41.     I find the plaintiff’s arguments to be misconceived. 

42.     The evidence is clear that the Report is “the Final Report of the Public Accounts Committee into the Department of Petroleum and Energy and the Konebada Petroleum Park Project”. That is how it was labeled by the Chairman of the Committee in his Foreword to the Report.   The invitation to the plaintiff to explain within thirty (30) days, was not for answers to matters under investigation in the inquiry but for advice on remedial steps or measures to be taken to correct the failures and deficiencies already determined by the inquiry. There was never another report issued regarding the inquiry.

43. In respect of the claims that Parliament had not yet accepted the Report as final and that it had not authorized it to be released, the plaintiff produced no evidence to support the claims. The evidence by Kolma that he obtained the Report from the Bills and Papers Section of the National Parliament as could any other member of the public following its tabling in the Parliament, was not properly rebutted. 

44.   I am also not satisfied that the plaintiff duly established that the defendants were motivated by ill-will in publishing the articles. He agreed there was no animosity between he and Kolma. He also acknowledged that the National was under no obligation to publish his Press Release criticizing the publication of the articles on the Report, yet the newspaper obliged.

45.   The meaning of “fair report” was considered in Griffin v Australian Broadcasting Commission (No 2) [1974] PNGLR 152. That case dealt with a report by radio broadcast of court proceedings containing defamatory imputations against a lawyer. The court held that while minor inaccuracies in reporting on the proceedings were acceptable, there were major inaccuracies that rendered the broadcast as not a fair report. In the present matter, the plaintiff only contested that the findings in the Report against him were not true, and he did not suggest that the defendants inaccurately published the findings of the PAC contained in the Report.

46.   Upon due consideration of the evidence and the applicable law, I am persuaded to accept the defendants’ proposition that the prima facie defamatory publications are justified or excused by Section 8 of the Defamation Act. For this reason, I am obliged to dismiss this proceeding. 

QUALIFIED PROTECTION

47.   While it is then not necessary to consider the other pleaded defence of qualified protection under Section 11 of the Defamation Act, I will nevertheless discuss it briefly. 

48.   In particular, the defendants relied on the privileges provided by Section 11(1)(c), (e) and (h):

For the purposes of this Act, it is a lawful excuse for the publication of defamatory matter if the publication is made in good faith—
(a)	…
(b)	…
(c)	for the protection of the interests of the person making the publication or of some other person, or for the public good; or 
(d)	…
(e)	for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed on reasonable grounds by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances; or
(f)	…
(g)	…
(h)	in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

49.     Section 11(2) states:

For the purposes of this section, a publication is made in good faith if—
(a)	the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; and
(b)	if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and
(c)	if the person by whom it is made—

(i)	is not actuated by ill-will to the person defamed, or by any other improper motive; and 
(ii)	does not believe the defamatory matter to be untrue.

50.    The defendant bears the onus of only proving the first element of the defence of qualified privilege, that a situation of a privilege existed, while the plaintiff bears onus of disproof, that the publication was not in good faith; Yakham & Pacific Star Ltd v Merriam (No 2) (1999) SC617, South Pacific Post Ltd (trading as Post Courier) v Tame (2020) SC2042.

51.     In my opinion, the publications were made in circumstances of qualified protection:

•	For the protection of the interests of the public, namely for the public’s digestion of how, according to the PAC (in conjunction with the Auditor General’s Office), public monies had been used by a government department on a public project it was responsible for; and
•	It was for the public good and a matter of public interest and for the benefit of the public, for the same reasons.

52.     As I noted earlier, the plaintiff failed to properly establish that the defendants were motivated by ill-will in publishing the articles and therefore did not make the publications in good faith. 

53.    The claim for defamation must also be declined based on qualified protection under Section 11 of the Defamation Act.

ORDER

54.    These are the formal orders of the Court:

(1)	The plaintiff's claim is dismissed in its entirety.
(2)	The plaintiff will pay the defendants’ costs of the proceedings, to be taxed if not agreed.
_____________________________________________________________
Greg Manda Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyers: Lawyers for Defendants