N11114
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 368 OF 2013

BETWEEN:
NICHOLAS TAME t/a NICHOLAS TAME LAWYERS
Plaintiff

AND:
SOUTH PACIFIC POST LTD t/a POST COURIER
Defendant

WAIGANI: MANUHU, J.
10 MARCH 2022; 16 DECEMBER 2024 

DEFAMATION- Publication by mainstream media – Publication of a pending court proceeding – Defamation Act, ss. 5, 7 (a), 8 (2), 9(d), 11 (1)(c), (e), (h) and 12.

No case cited.

Counsel

E. H. Pato for the plaintiff
D. Wood & E. Lili for the defendant

1.	MANUHU, J.:   The plaintiff alleges that the defendant published a defamatory matter against him on 2nd August 2010 in one of its daily news articles through one of its reporters. Under section 5 of the Act, it is unlawful to publish a defamatory matter unless the publication is protected, justified or excused by law.  The defendant pleads protection under sections 7 (a), 8 (2) (c), 9 (d), 11(1) (c), (e) and/or (h), of the Defamation Act (“The Act”).

The article in question appeared on the front page of the Post Courier as follows:

“A politician from the Highlands and a lawyer based in Port Moresby have been restrained by the National Court from using K1.5 million in their personal bank accounts. This follows a successful injunction sought in the courts by a plaintiff questioning the whereabouts of the money meant for the public use in the Southern Highlands.”

2.	It continued on page 4 as follows:

“A politician from the Highlands and a lawyer based in Port Moresby has been restrained by the National Court from using K1.5 million in their personal bank accounts, as these are subject of a major fraud investigation. Member for Dei Puri Ruing and private lawyer Nicholas Tame were prevented by an order of Justice Ambeng Kandakasi last week from accessing their accounts held by Bank South Pacific Moresby branch.
Member for Dei Puri Ruing and private lawyer Nicholas Tame were prevented by an order of Justice Ambeng Kandakasi last week from accessing their accounts held by Bank South Pacific Moresby branch.
The order was sought by Fedro Waboga and Tre Mearine Limited as First and Second Plaintiffs. The court orders were based on the disappearance of money meant for Dei District Coffee allocated by the Government to rehabilitate coffee plantations in MP’s district following a commitment by the Prime Minister Sr Michael Somare during his visit to the district. Justice Kandakasi among the 10 orders he handed down, restrained the MP from operating or conducting any transactions from his private account with the Bank South Pacific account number 1001322198.
The lawyer has also been restrained from operating any transactions from his private account or any account help under the name of Nicholas Tame Lawyers with BSP – Port Moresby branch until such time as the amount of K320,000 is paid to the National Court.
Mamgol Ltd, Roken Enterprise Ltd, RVL, principal of RVL Kenny Kerry Kewa, director Robin Mong Kela, Polti Wara and Lelly Kewa have also been named first, second, fifth, sixth, seventh and eighth defendants by the plaintiffs.
Justice Kandakasi has applied similar orders on the other six defendants and restrained BSP and its branches throughout the country from allowing any transactions by MP and lawyer Nicholas Tame or all transactions by four other defendants in the matter.
The court heard allegations that the cheque was raised by the Department of National Policy and Planning and was hijacked and fraudulently picked up but that people changed the applied name in the warrant of payment by collaborating with an officer from the department. The cheque of K1.5 million was then deposited into the Dei District Treasury operating account no. 100878758 on 3 June, before sharing the money among themselves, allegedly.
The court also ordered all properties that have been identified purchased from the money received by seized by police and kept in the custody of the National Court sheriffs in Mt Hagen and Port Moresby. Following the court ruling director Mong was arrested and a vehicle was confiscated by Boroko police while arrests of others will be done this week.”

3.	Under section 7 (a), a person does not incur liability for defamation by publishing a defamatory matter in the course of a court proceeding.  Under section 8(2)(c), it is lawful to publish in good faith for the information of the public a fair report of the proceeding of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings.  Under section 9(1)(d), it is lawful to publish a fair comment respecting the merits of a civil case that has been decided by a court. The defendants also claim qualified protection under section 11(1)(c), (e) and or (h). The claim would fail if any of these protections is established.

4.	The article is prima facie a defamatory matter and I so find as a matter of fact.  I do understand that the plaintiff was hurt by the article to the point where people and colleagues would have a negative perception of him.  However, if the defendant is covered by a protection under the Act, there is nothing much the plaintiff could do except to move on with life.

5.	Accordingly, the issues are:  

•	Whether the defendant is protected under section 7(a)?
•	Whether the defendant is protected under section 8(2)(c)?
•	Whether the defendant is protected under section 9(1)(d)?
•	Whether the defendant is protected under section 11(1)(c)(e)(h)?

Whether the defendant is protected under section 7(a)?

6.	The defendant contends that a proceeding was in fact commenced in the National Court by Fedro Waboga and Tre Mearine Limited against eight defendants.  The plaintiff was a defendant.  In the course of the proceeding, injunctive orders were made which restrained the defendants, including the plaintiff, from accessing their bank accounts. Orders were also made against Bank South Pacific Limited to prevent the defendants, including the plaintiff, from accessing their accounts. The plaintiff was also restrained from operating his personal account and accounts of his legal firm until an amount K320,000 was deposited into the National Court Trust Account.  The defendant also relies on the terms of the said injunctive orders, which are set out below:

•	The Second Defendant be restrained from operating or conducting any transaction any transaction from account numbers their Bank South Pacific Account number 1000878758 and 1001294170 and 1001850187 until further orders.
•	The Third Defendant be restrained from operating any transactions from account numbers their Bank South Pacific Account number 1001322198.
•	The Fourth Defendant be restrained from operating any transactions from his personal accounts held with the Bank South Pacific Port Moresby Branch Account or any account held in the name of the firm NTame Lawyers.
•	That the Ninth Defendant be restrained from allowaing any or all transactions in all of the above named Defendants until further orders.
•	That the Bank South Pacific Limited be restrained from allowing any or all the Defendants from conducting transaction with any account that the Defendants may hold with the said Bank.
•	That all properties that have been identified to have been purchased by the monies received be seized and kept under the custody of the National Court Sheriffs in Mt Hagen and Port Moresby.

7.	I have carefully considered the offending article with the orders and the pleadings.  In my considered opinion, there is no demonstration of bad faith or malice by the defendant or its reporter.  In my view, it was a fair report of the proceeding.  The plaintiff took issue with the article stating that the funds in question were the subject of a “major fraud investigation”. The pleadings alleged fraud and conspiracy. Payments were particularized, including amounts, payees, cheque numbers, and dates of payment.  The amount of money involved was more than K1 million.  Bank Account details were pleaded.  The plaintiff allegedly received K320,000.  In my view, given the amount in question, it is fair reporting to use such description.

8.	The totality of all the above, in my considered opinion, demonstrates good faith and fair reporting.  I find therefore that the defendant is entitled to the protection under section 7(a). 

Whether the defendant is protected under section 8(2)(c)?

9.	I have already covered this issue. I find that the article was a fair report of the court proceeding.  Thus, the defendant is protected under section 8(2)(c).

Whether the defendant is protected under section 9(1)(d)?

10.	In my view, section 9(1)(d) is irrelevant as the article wasn’t a commentary on the merits of the case, the conduct or character of anyone or the plaintiff, for that matter. 

Whether the defendant is protected under section 11(1)(c)(e)(h)?

11.	Good faith is one of the ingredients of protection under this section.  I have already made a finding that there is no bad faith in the defamatory article.  Thus, the defendant is entitled to protection under section 11. 

12.	I also note that under section 12 of the Act, the onus is on the plaintiff to show absence of good faith.  There is absolutely no evidence of this.

13.	Ultimately, I find that the plaintiff has failed to prove his allegations. The proceeding is therefore dismissed with costs which if not agreed shall be taxed. 

Orders accordingly.

Lawyer for the plaintiff:	Parker Legal	
Lawyer for the defendant: Ashurst Lawyers