N11598
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 1161 OF 2014 (CC1)

BETWEEN:
HONOURABLE JUSTICE LES GAVARA-NANU
Plaintiff

AND:
HONOURABLE PETER O’NEILL, MP
First Defendant

AND:
HONOURABLE BELDEN NAMAH, MP
Second Defendant

AND:
HONOURABLE POWES PARKOP, MP
Third Defendant

AND:
THE INDEPENDENT STATE OF PAPAU NEW GUINEA
Fourth Defendant

WAIGANI: BRE J
27 MAY, 18 NOVEMBER 2025

ASSESSMENT OF DAMAGES – defamation – publication over several weeks in local and overseas media – tense and politically charged situation following Supreme Court decision – defamatory allegations against Judges – plaintiff a member of the bench that handed down decision – imputations defaming reputation - settlement discussions – delay in progressing case to assessment– general and aggravated damages awarded. 

Writ of Summons

The plaintiff sought to prove damages arising from defamation.

Cases cited
Mel v Pakalia [2005] SC790
Papua New Guinea Banking Corporation Limited v Jeff Tole [2002] SC694 
Salika v Pacific Star Ltd [2014] N5699
Wapi v Ialy [2014] SC1370
Rayney v The State of Western Australia (no9) [2017] WASC 367

Counsel
Mr G Geroro for the plaintiff
Ms Z Waiin for all of the defendants

JUDGMENT

1. BRE J: Honourable Justice Les Gavara-Nanu commenced this proceeding against the then Prime Minister Honourable Peter O'Neil, Deputy Prime Minister Honourable Belden Nama, Governor of the National Capital District Honourable Powes Parkop and the State; for publishing defamatory statements against himself and other judges as a result of a Supreme Court decision that he was a part of, whose decision had the effect of ousting Honourable Peter O'Neil as Prime Minister and reinstating Honourable Sir Michael Somare who was earlier voted out by Parliament while on extended medical leave. Parliament voted in Honourable Peter O'Neil as Prime Minister.

The decision was handed down some weeks before the 2012 national general elections and after Parliament had risen.

2.	The First and Second Defendants did not accept the decision and issued public statements discrediting the members of the Supreme Court who made the decision on 21 May 2012. The members of the Supreme Court were five senior judges being the then Chief Justice Sir Salamo Injia, Justice Kirriwom and Justice Les Gavara-Nanu. The then Deputy Chief Justice Sir Gibbs Salika and Justice Sakora abstained from making a decision based on ethical grounds.  Before the decision, there was an email sent internally to judges by Justice Kirriwom allegedly to the effect that the government of Honourable Peter O'Neil was illegal. Applications for recusal made against Chief Justice Sir Salamo Injia and Justice Kirriwom were refused by them. Justice Les Gavara-Nanu was on holidays at the time of the email and he deposes to seeing it after he resumed work in February 2012 but did not think much of it. No recusal application was made against him.

3.	Given this background, the then Deputy Prime Minister Honourable Belden Namah on Thursday 24 May 2012, stormed into Court room 3 followed by some personnel from the military and the police while the Chief Justice Sir Salamo Injia was sitting, with Namah shouting "arrest him" to the Chief Justice, who promptly walked out of the Court room.  A video was tendered into evidence confirming this incident. The incident was widely reported by the news. Following that, policemen were stationed outside the Court house gates in order to arrest the three Judges for allegedly committing the criminal offence of sedition.
Chief Justice Sir Salamo Injia, and Justice Kirriwom were arrested and released on bail. Their charges were dismissed. The plaintiff was not arrested but there were threats by the second defendant to also arrest him.

4.	The defamatory statements were reported by local, Australian and regional media.  The media reports quoted the Deputy Prime Minister as saying the following:

"Enough is enough, as of yesterday, I gave (the judges) 24 hours to resign on the basis that they have compromised the judiciary at the very highest level. They will be arrested for sedition."  

The Deputy Prime Minister took out a full-page media release on Monday 28 May 2012 in the Post Courier stating:

"..Moreover, the remaining three judges decided on Wednesday 23 May 2012, after handing down their corrupt decision on Monday 21st May to amend their own orders of the Court. The amended order vindicates O'Neil's Cabinet and all its decisions, but isolates O'Neil from the Cabinet and further nullifying his election as Prime Minister. We must further question the timing of the decision. Why didn't they ( the Courts) hand down the decision before the issuance of the writs or better still after the writs are returned. This is clearly political and vindictive..."  

The media reports referred to the plaintiff as the 'third judge'. Below is an extract from a publication of The Australian on 26 May 2012 in reference to the plaintiff:

"The charge to arrest Sir Salamo, Justice Kirriwom, and the third judge who ordered the return of Sir Michael Somare, Justice Les Gavara-Nanu, was led by Deputy Prime Minister Belden Namah, who said on Wednesday: Enough is enough."

And the Sydney Morning Herald  published on 28 May 2012:

"It is yet to determine whether charges will be laid against a third member of the bench, Justice Les Gavara-Nanu." 

5.	Mr Geroro submitted to impute from these public statements that the plaintiff's reputation was injured in his profession as a judge and as a senior legal professional and leader.

Ms Waiin required the Court to consider that the media reports and video were protected publications under sections 8 and 9 of the Defamation Act and are fair reports of the events that transpired and are not intended to be defamatory against the plaintiff.

Ms Waiin's submission requires me to revisit liability. I can exercise my discretion to revisit liability but only where the pleadings are defective and do not sufficiently plead the legal or factual foundation of the cause of action or there is inadequate or no evidence to prove loss. See Papua New Guinea Banking Corporation Limited v Jeff Tole [2002] and SC694 Wapi v Ialy [2014] SC1370.
Neither of these situations apply here.

6.	The pleadings are not defective, they clearly plead a cause of action in defamation against the defendants.

The media and video reports are protected by sections 8 and 9 of the Defamation Act Chapter 293. That protection extends to the journalist and the media company. I distinguish that aspect of the argument on liability to the facts of this case. Here, the plaintiff is not suing the journalists nor the media companies but rather, the persons that were reported to have said and published defamatory statements against him (and others). The other judges did not bring a similar suit, perhaps because of their respective positions in the case and the events that concerned them. Regardless, the plaintiff was part of the bench and there were serious inferences harming his reputation, at that time, from the media statements.

7.	This case did not proceed to trial as default judgement was entered on 8 September 2016 for failure by the defendants to file their defences.

8.	The plaintiff seeks general and aggravated damages, publication of an apology by the defendants, interest and costs. 

9.	Judges are public officials who hold public positions of trust and can bring defamation proceedings like anybody else, as severe harm to the integrity to both the personal reputation and the public institution which they represent, here the PNG judiciary; can occur as a result of defamatory publication. While the Constitution guarantees freedom of speech and the judiciary is not exempt from any criticisms and comments such, should observe the requirements of the Defamation Act. 

10.	Here, liability is not an issue and default judgement is taken to establish liability. 

The general law on proving damages applies. The onus is on the plaintiff to prove damages. See Mel v Pakalia [2005] SC790.

11.	The Defamation Act provides that a person who communicates any defamatory imputation by spoken or written words or by signals or gestures about another person that is likely to injure his/her reputation, profession, trade or, has the effect of other people shunning or avoiding that person; and that communication is circulated widely; commits defamation. Defamatory communication is usually unfounded and baseless accusation that is likely to seriously tarnish a persons reputation and character in the eyes of the public or others.

12.	Apart from the extracts of defamatory material cited above from the then Deputy Prime Minister, the then Prime Minister also took out a full-page media release under his office on 24 May 2012, three days after the decision was handed down, stating that two judges had disqualified themselves from the five-judge panel to uphold judicial integrity and ethical conduct; that:

"For Chief Justice Injia and Justices Kirriwom and Les Gavara-Nanu to remain on the panel in the face of such a compromising and unethical situation and then to deliver a tainted verdict leaves a great deal to be desired of their judicial integrity and ethical conduct."

13.	For the Governor of the National Capital District, the plaintiff's uncontested evidence is that on 18 December 2011,  referring to an earlier decision in SCR 3 of 2011 constituted by three judges, also upholding the prime ministership of Sir Micheal Somare during a radio talk-back show that is broadcasted nationwide by the National Broadcasting Commission, told listeners that the Supreme Court in its haste had "deliberately distorted the facts" in its judgement.  The plaintiff’s evidence is that the Governor relied on parts of his decision to make those statements which were also published in a full-page media release issued by the Governor in the Post Courier on 11 January 2012.

14.	The plaintiff believes that the statements and actions by each of the defendants were grossly defamatory to his character and reputation as a judge and were a smear on his unblemished legal career that he had worked extremely hard to build over 40 years; the majority of which was devoted to serving PNG as a government lawyer and a judge. He was appointed to the bench in mid 2000. In 2012, the plaintiff served as a Judge for 11 years. He continued to serve as a judge until his retirement at the end of 2024. On his retirement, he served 24 years as a Judge and he had acted on several occasions as the Acting Chief Justice or Acting Deputy Chief Justice as the next senior judge, during their respective short absences.

15.	He states it was a highly tense and politically charged situation, that caused him, his family and village people, much distress, anxiety and worry. That it was very distressing to him and his wife, that it was likely he would be arrested, and it distressed him very much about how that was to eventuate. That he felt deeply humiliated and offended by the whole ordeal and described it as one of the 'darkest chapters' of his life and professional career.    

The plaintiff gave evidence of his long legal career and professional and personal affiliations which include with the Summer Institute of Linguistics as a member of its advisory council, pioneer and lifetime member of the PNG Bible Translation Association and the united church. He was a pioneer law student from his Rigo district having graduated in February 1974, the first national to be appointed Acting Public Prosecutor in 1979. He was then appointed as the Public Prosecutor in 1980 and ran his own legal practice from 1988 to 2000.

16.	The plaintiff's evidence speaks for itself and his illustrious legal career and civic contributions. He retired in 2024 as a senior and respected judge. The incident occurred 13 years ago but the print media is still able to be located on the internet and the plaintiff had to bear that burden which was left unaddressed by the defendants, who did not retract their statements nor offer any apology.   

17.	I consider in assessing damages that the impact of those statements did not seem to affect his continuation in the office of a judge for another twelve years. Though I accept that the gravity of the situation and the likelihood of injury to the reputation and integrity of the plaintiff, the Chief Justice and the other judges and the judiciary was real at that time in May 2012 and soon thereafter.

18.	I am satisfied that the three-defendant high profile public leaders had made public statements that injured the professional and personal reputation of the plaintiff, a respected judge and upstanding member of society, and the statements were made carelessly and without consideration of its impact to each of the judges that comprised the bench nor its impact in the eyes of the public for the judiciary. The plaintiff was unfortunately caught up for doing his job by the tense and high politically charged situation that for the first time in PNG's history saw very senior members of the executive arm of government clash with the senior arm of the judiciary. It was a sad day in our history and good lessons must be learned from it, so it is not repeated. The rule of law must be respected. Leaders must act with considered judgement and address their grievances according to law. It is also a lesson for the judiciary to take note of.      
 
19.	I am satisfied that the plaintiff has provided sufficient evidence from media reports and full-page media releases by the defendants that demonstrates serious defamatory remarks were made which injured his reputation and profession as a senior member of the highest court of Papua New Guinea, the Supreme Court. I am satisfied that damages has been proven to the required standard of balance of probabilities.

20.	In assessing the quantum, I accept Mr Geroro's submissions that damages be assessed against each of the three defendants with the State to be held vicariously liable for the damages. I accept that sections 27 and 28 of the Defamation Act are an appropriate guide in adopting this approach.

21.	The purpose of an award for damages in defamation cases are:

a) to protect and vindicate personal and or professional reputation,
b) to provide solace for wounded feeling, grief, annoyance and 			consolation 	for personal distress and hurt; and 
c) to compensate for past and prospective losses as a result of the defamatory 	publication

See: Salika v Pacific Star Ltd [2014] N5699 at [22].

22.	In considering damages, I think it is relevant to also consider the severity of the defamatory statements, the extent of the publication of the defamatory statements and the defendant's conduct. 

23.	Judges take an oath of office that in making decisions and in their conduct, they will do right to all manner of people without fear, favour, affection or ill-will, in upholding the Constitution and the laws of PNG. This oath is integral to a judges reputation for impartiality and integrity and is pivotal to the delivery of justice in PNG.

Therefore, when accusations are made that a judge is corrupt or that his/her decision was tainted, unethical or corrupt; it not only affects the judge's personal and professional reputation but the public institute (s)he serves, the judiciary, which is the third arm of government.

A judge's reputation and integrity are crucial to the principle of judicial independence entrenched by sections 99 and 157 of the Constitution. 

The public interest and confidence in the Court and its administration of justice can be jeopardised by careless, unfounded defamatory remarks against judges that are published, reprinted several times and circulated very widely locally and overseas. The evidence showed this incident generated international concern about the democratic institutions of PNG and created widespread concerns amongst Papua New Guineans and the legal profession.

Although most of the reported statements from the Prime Minister and his deputy were focused on the then Chief Justice, they also mentioned the other; judges comprising the bench that delivered the decision who are Justice Kirriwom and Justice Gavara-Nanu. Justice Gavara-Nanu filed the proceeding as it is his right to do. 

23.	The defamatory remarks injured the reputation of the judiciary, which up to that point was held in very high esteemed by the public.  Higher awards of damages to those currently existing will be awarded because defamatory remarks to a judge or those holding public offices;  can cause greater harm not only to the individual but to the public office and the institution that (s)he represents. As a result, higher damages are to be awarded to reflect the seriousness of the harm and to provide public vindication. 

General Damages

24.	Mr Geroro referred me to Rayney v The State of Western Australia (no9) [2017] WASC 367 to submit that a sum of AUD600,000.00 equivalent in PNG Kina of K1,538,067.16 for each of the defendants should be awarded. However, I do not accept this submission because that award is relevant to the circumstances of Western Australia.

In PNG, the comparable award is that of Salika v Pacific Star. However, I accept that there are differences in the factual background compared to this case were the defamatory remarks were made by very high-profile leaders and published over several days locally and re-published internationally, in Australia, New Zealand and Asia. That all of these publications are still available on the internet.
That there has been no public apology offered by the first, second or third defendants.

25.	In Salika v Pacific Star, an award of K250,000.00 was awarded in general damages in 2014 for a defamatory article that was published by a journalist of The National newspaper, eight years earlier on 24th November 2006. That was the highest award in a defamation action at that time and still is. I consider the K250,000.00 award to a single judge as the base amount.

26.	This case arose in 2012, two years before the decision in Salika v Pacific Star, but the claim was filed in 2014. In terms of working out the monetary award, I agree with Mr Geroro that this case is distinguishable to Salika v Pacific Star.
I take into account the gravity of the impact of the defamatory statements at that time not only to the plaintiff but to the office he held which is the Court and the judiciary, the extent of the publication, the severity of the conduct of the defendants especially the second defendant, and the extremely wide circulation of the defamatory statements, and award the amount of K250,000.00 against each of the three defendants which comes to K750,000.00.

26.	The award of K250,000.00 is maintained because it is awarded against three defendants and inflation and aggravated damages will be considered and added to this award. In saying this, I take into account the fact that the other judges did not file a similar defamation claim nor join this action; the incident occurred 13 years ago and may have been forgotten in the memory of the public.  The plaintiff continued as a judge for twelve years with no issues prevailing from the 2012 defamatory statements, and it appears the incident did not seriously tarnish his integrity and reputation. However, I accept that the evidence exists on the internet and he worked with that burden and his reputation was defamed in May 2012, the time of the incident.
 
27.	In this award, I also consider that a settlement offer was proposed to the plaintiff by the State, but it was refused, as is the right of the plaintiff. However, it is a relevant factor to consider in awarding damages.

28.	For these reasons, I award general damages against each of the First, Second and Third Defendants of K250,000.00 each or combined, the sum of K750,000.00 to be paid by the State in vicarious liability.

29.	To this general damages award of K750,000.00, I award inflation at a rate of 5% per annum because more than 10 years have passed since the award in Salika v Pacific Star and the date of the cause of action in May 2012.

30.	Although Ms Waiin submitted that inflation should not be awarded for damages in defamation, inflation is about the time value of money and its purchasing power in the decision year compared to what it was back then. 

31.	General damages are monetary awards and I consider that inflation is a discretionary matter. As such, I note that this case has taken an unnecessarily long time to proceed to assessment of damages after default judgement was granted nine years ago on 8 September 2016. I therefore reduce the duration of the period by three years from 8 September 2016, I consider three years was adequate time for the plaintiff to progress the case  to assess damages by September 2019, and award inflation from the date of the cause of action being May 2012 to September 2019, which is a period of seven (7) years.

I factor the time to run for the date of the cause of action because, apologies could easily have been offered by the defendants, but were not.
   
32.	Thus, I add inflation at a rate of 5% per annum for seven years to the general damages award of K750,000.00 as follows:

K750,000.00 x 0.05 x 7 = K262,500.00 

The total general damages award is:

  K750,000.00 + K 262,500.00 =K1,012,500.00

33.	I therefore award a consolidated general damages award of K1,012,500.00 against the First, Second and Third Defendants to be paid by the State in vicarious liability.

Aggravated Damages

34.	Aggravated damages are awarded as a compensatory measure where the circumstances giving rise to the hurt, injury or loss are aggravated or made worse for the injured party by the conduct of the defendant. It is obvious the defamatory statements were made in response to the decision of the Supreme Court and was aggravated by the conduct of the Second Defendant and the First Defendant in using the criminal law and the media to make statements to tarnish the reputations of the judges who made the decision which included the plaintiff.  Their reaction to the Supreme Court decision was sensationalised and the conduct of the Second Defendant was extreme given his prominence as the deputy prime minister. The statements also issued by the then Prime Minister tended to discredit and hurt the reputation of the judges, including the plaintiff, and bring disrepute to the judiciary. The statements were reported by local and international media and had extremely wide coverage. That aggravated the injury caused. 

35.	I award aggravated damages only against the First and Second Defendants as I find that the defamation by the Third Defendant did not mention the plaintiff although it was within the knowledge of the plaintiff that the Governor referred to his decision. In any event, I do not find any aggravating factor against the Governor NCD.  

36.	I regard the conduct of the Second Defendant more aggravating then the First Defendant because of several statements and real threats of criminal charges and arrest to each of the judges, including the plaintiff, who was named.

37.	I accept the submissions of Mr Geroro that the circumstances were aggravated by the politically tense situation. Pubic commentary referred to the situation as an impasse’ or a 'constitutional crisis’.

38.	I therefore award a higher percentage of 80% of the general damages award compared to the 20% awarded in Salika v Pacific Star.

Eighty per cent (80%) of the general damages award only applies against the First and Second Defendants in aggravated damages comprised of 30% awarded against the First Defendant and 50% awarded against the Second Defendant. 
I calculate the aggravated damages award against the First and Second Defendants from the single defendant general damages award of K337,500.00, 
 as follows:-
A)	For the First Defendant, K337,500.00 x 30% = K101,250.00
B) For the Second Defendant, K337,500 x 50% = K168,750.00
                    Total:	                          = K270,000.00      		
39.	I therefore award total aggravated damages of K270,000.00 against the First and Second Defendants to be borne by the State in vicarious liability.

Interest

41.	Interest is a discretionary award. I am guided by Section 4(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015  which grants a wide discretion to the Court to award pre-judgement interest at a rate it thinks proper on the whole or part of the judgement sum and for such period it considers relevant from the date of the cause of action to the date of judgement. Section 6 of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 limits that discretion for judgements against the State to a statutory interest rate of 2% for post judgement interest.

My view is to award pre-judgement interest also at 2% per annum unless there are convincing reasons to award a higher amount. Here, I have awarded inflation at the rate of 5% per annum to 7 years and I think that it would be punitive to the State if I award an amount of interest higher then 2% because damages are not intended as a penalty against a defendant but to compensate the plaintiff for the injury caused and not to make a profit. 
41.	Mr Geroro submits that consistent with the allocation of damages award, interest at the rate of 8% per annum, should be awarded on the pre-judgement award against each of the three defendants. That would amount to 24% interest and in my view would be a penalty on the State who will be paying the damages award, not the three leaders.
42.	On that basis, and the nature of the case not being a loss of business case, I regard the rate of 2% per annum as fair, and award that rate to the combined awards for general and aggravated damages of K1,282,500.00. For the same reasons in awarding inflation for 7 years, the pre-judgement interest award of 2% per annum is also applied to a period of 7 years.
Pre-judgement interest is thus calculated as follows:
K1,282,500.00 x 0.02 x 7 =K179,550.00
I therefore award pre-judgement interest of K179,550.00
43.	For the reasons, mentioned, I exercise by discretion consistent with section 6(1) of the Judicial Proceedings (Interest on Debts and Damages) Act 2015 to not award any post-judgement interest especially because this claim has taken too long to reach this stage. Section 6(1) provides an exception not to award damages by reference to its terms "unless the court otherwise orders,". 

Costs

44.	Costs are discretionary. I exercise my discretion to award the plaintiff’s reasonable costs to be paid by the State on a party/party basis, to be taxed if not agreed.

Orders

45.     The judgment of the Court is as follows:

(1) Judgment is entered for the plaintiff against;

i) the First Defendant for general and aggravated damages at K438,750.00,
ii)the Second Defendant for general and aggravated damages at K506,250.00 and 
iii)the Third Defendant for general damages at K337,500.00,
totalling K1,282,500.00 to be paid collectively by the State in vicarious liability, in the total sum of K1,462,050.00.00 comprising: -
(a) General damages:  K1,012,500.00
(b) Aggravated damages: K270,000.00   
(c) Pre-judgement interest at the rate of 2% per annum on above 	damages:  K179,550.00

Total damages awarded to the plaintiff: K1,462,050.00

(2) Post-judgment interest is not awarded.
(3) The State shall pay the plaintiff’s reasonable costs on a party/party basis, to be taxed if not agreed.
(4) The time for entry of this Judgment is abridged to the time of signing by the Court which shall take place forthwith.
(5) Subject to any enforcement proceedings, an administrative order is issued for the Registrar to close and archive the Court File as soon as practicable.
 
Judgment accordingly.
________________________________________________________________
Lawyers for the plaintiff: Geroro Lawyers
Lawyer for the defendants: Solicitor General