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Kimisopa v Kamen [2016] PGSC 70; SC1554 (28 November 2016)

SC1554

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 18 of 2015

BETWEEN

ELIZABETH KIMISOPA
Appellant

AND

DARRYL KAMEN
First Respondent

AND

PETER KUMAN trading
as KUMAN LAWYERS
Second Respondent

Waigani: Manuhu, Hartshorn and Makail JJ
2016: 26^th April, 28^th November

Counsel:

Mr. T. Injia, for the Appellant
Ms. F. Matiabe, for the Respondents

Appeal

28^th November, 2016

1. BY THE COURT: The appellant commenced proceedings against the respondents seeking damages for defamation. After a trial, the National Court dismissed the proceeding. This is the decision on a contested appeal against that dismissal.

Background

2. The appellant claims that a lawyer’s letter written to her by the respondents and copied to Government officials (Letter), contained defamatory statements about her as it states that she engaged in fraudulent conduct.

Grounds of appeal

3. The appellant appealed on four grounds but only proceeded on three. Those grounds are amongst others in essence that the National Court erred in law and fact by failing to find that statements in the Letter were defamatory and unlawful, by imposing the burden of proof on the appellant to prove that the defamatory matter was untrue and also to prove damage.

The appeal

4. We consider first the defence of qualified protection. If our finding on this aspect is against the appellant, it will be determinative of the appeal.

5. At the National Court hearing counsel for the appellant conceded that the most appropriate defence of the respondents was s. 11 (1) (b) and (c) Defamation Act and in this appeal he conceded that the respondents were entitled to rely upon s. 11 (1) (b) Defamation Act.

6. Section 11 (1) (b) is:

“11. Qualified protection: excuse.
(1) 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) for the purpose of seeking remedy or redress for some private or public wrong or grievance from a person who has, or whom the person making the publication believes on reasonable grounds to have, authority over the person defamed with respect to the subject-matter of the wrong or grievance; .....”

7. Section 11 (2) Defamation Act is:

“(2) 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.”

8. It is contended on behalf of the appellant that the primary judge fell into error in:

a) finding that there was a lack of malice or improper motive in publishing the Letter; and

b) failing to give appropriate weight to the evidence given on behalf of the appellant that notwithstanding that Lady Nombri knew about the position of the National Housing Corporation (NHC), that it had received legal advice to cancel the sale of the property to the late Sir Joseph Nombri and was proceeding with the sale to the appellant, Lady Nombri made spurious allegations about the appellant to the respondents which led to the respondents’ writing the Letter.

9. It is further contended that the respondents were negligent in not checking the facts of the matter first before writing the Letter and copying it to Government officials.

10. It was submitted on behalf of the respondents that the primary judge was correct in finding that a plaintiff must prove an absence of good faith, and in this instance the appellant did not provide any evidence to the effect that the respondents wrote the Letter with an absence of good faith.

11. Section 12 Defamation Act is:

“12. Good faith.
Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances that would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith is on the party alleging the absence.”

Consideration

12. In this instance as the first two parts of s. 12 Defamation Act are satisfied, the third part comes into focus. The appellant at trial, had the burden of proving an absence of good faith by the respondents.

13. The only evidence given on behalf of the appellant was that of Ms. Madeline Paulisbo and the appellant. It was conceded by counsel for the appellant that this evidence did not constitute evidence of an absence of good faith on behalf of the respondents. Further, there is no evidence supporting the contention that the respondents were amongst others, negligent, or that they were motivated by malice or ill will. For these contentions to have a modicum of success in satisfying the burden of proving an absence of good faith, there must have been evidence to this effect. There was not.

14. In such circumstances, we are satisfied that the appellant failed to satisfy the burden of prove upon her. Consequently the respondents were entitled to successfully rely upon the defence of qualified protection provided for in s.11 (1) (b) Defamation Act and the primary judge did not fall into error in her determination in regard to this defence. Given this it is not necessary to consider the other submissions of counsel.

Orders

15.
a) This appeal is dismissed;

b) The appellant shall pay the respondents’ costs of and incidental to this appeal to be taxed if not otherwise agreed.

___________________________________________________________
Steeles Lawyers: Lawyers for the Appellant
Kuman Lawyers: Lawyers for the First and Second Respondents