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Cross v Zuidema [1987] PGLawRp 540; [1987] PNGLR 361 (11 November 1987)

Papua New Guinea Law Reports - 1987

[1987] PNGLR 361 - Wayne Cross v Wess Zuidema�

[1987] PNGLR 361

N642

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WAYNE CROSS

V

WESS ZUIDEMA

Waigani

Bredmeyer J

11 November 1987

DEFAMATION - Statements amounting to defamation - Particular statements - �Mafia tactic� - Addressed to prominent businessman - Statement defamatory.

DEFAMATION - Damages - Assessment - Particular cases - Letter circulated to four persons - Use of words �Mafia tactic� - No apology - Damages assessed at K4,000.

An action for damages for defamation was brought by a prominent, successful and respectable businessman in respect of a letter addressed to him as the Chairman of Directors of a company owning a hotel in Kimbe and containing the following:

�This, however, is the first time ... I have had the old �Mafia� tactic applied ...�

Copies of the letter were forwarded to four other people and no apology was made or offered.

Held:

N1>(1)����� The words complained of were defamatory of the plaintiff within the meaning of the Defamation Act (Ch No 293).

N1>(2)����� As the defendant had no facts to justify the use of the words �Mafia tactic� and did not believe those words to be true a defence of protection, justification or excuse had not been made out.

N1>(3)����� In the circumstances damages should be assessed at K4,000.

Baker v Lae Printing Pty Ltd [1979] PNGLR 16, considered.

Cases Cited

The following case is the only case cited in the judgment:

Baker v Lae Printing Pty Ltd [1979] PNGLR 16.

Trial

This was an action for damages for defamation.

Counsel:

M Goodman, for the plaintiff.

11 November 1987

BREDMEYER J.: This is an action for defamation. The alleged defamation arose in a letter sent by the defendant Wess Zuidema to Wayne Cross on 11 September 1985. The letter reads as follows:

�Subject sewerage problems palm lodge hotel � kimbe

In the past, Department of Works have always �helped out� whenever the Palm Lodge tanks were full and required pumping out.

However, since mid July 85, the Pump of the sewerage tanker broke down and the genuine parts required were not available in PNG and had to be ordered from Japan, even at this stage the unit is not yet working because of incomplete supply of parts.

Your action on the 30th August by ringing Department of Works Secretary (abuse of friendship) to get some action, has done nothing to cement relations between your Palm Lodge Staff and myself.

You as a citizen should know that Department of Works do not operate in opposition to private enterprise irrespective of their capabilities. That goes for all trades.

We are responsible for the maintenance of Government assets only, but in cases of emergencies will also help out the Private Section. We have proven this in Kimbe on many occasions.

This, however, is the first time in my 6 � years in PNG that I have had the old �Mafia� tactic applied and I don�t like it, as far I am concerned your Kimbe Manager will have to make a deal with the resident contractor(s) or set up a sludge removal system on a hotel truck.

The sewerage truck will from now on concentrate on work to Government assets which we have to neglect at present because of having spend 50% of its� working time (prior to breakdown) on sucking tanks at the Palm Lodge.

WESS ZUIDEMA (sgd)

Provincial Manager

cc The manager

Palm Lodge Hotel

P O Box 32

KIMBE WNBP

cc The Secretary

Department of Works

P O Box 1108

BOROKO NCD

ATTENTION DEPUTY SECRETARY OPERATIONS

cc The Regional Manager

Department of Works

P O Box 363

LAE MP

cc Provincial Plant Manager/Plant & Transport Officer

Department of Works

KIMBE WNBP�

The defamatory words as pleaded are found in the second last paragraph. The matter has come on before me ex parte as the defendant has left the country. He was represented by the State Solicitor who has advised the lawyers for the plaintiff and this court that he will not be here today. He has not, however, filed a notice of ceasing to act as lawyer.

Mr Cross gave evidence before me and I accept him as a truthful witness. The facts leading up to this letter are as follows. About two weeks before the letter was sent the septic system at the Palm Lodge Hotel Kimbe overflowed. The plaintiff is the Chairman of Directors of the company which owns the hotel and a 50 per cent shareholder in the hotel. His manager telephoned him and advised him that the Health Inspector was aware of the situation and would close the hotel unless the overflowing septic tanks could be pumped out. At that time there was no private plumber available in Kimbe to do the task and the manager had approached Public Works, Kimbe to pump out the tanks. In the past Public Works had done this task at the request of the hotel and the hotel had paid for the service.

Mr Cross was advised by his manager that the engineer of Public Works was willing and capable of doing the task but he was stopped from doing it by the Provincial Manager, Mr Zuidema. Mr Cross who normally lives in Port Moresby tried to phone the Minister for Public Works. He phoned his office, was unable to get the Minister but was given the phone number of the Secretary of the Department of Public Works. He thereupon phoned the Secretary of that Department and told him the problem. He did not know the Secretary, he was not a friend of the Secretary, he was simply appealing to him to countermand a decision apparently made by the Provincial Manager at Kimbe. The Secretary told him that he would get straight onto the task and would instruct his Provincial Manager to help out. Mr Cross was later advised on the same day by his hotel manager that Public Works had come and had done the job. I consider that Mr Cross did not act improperly in appealing above the head of the Provincial Manager to the Secretary of that Department.

I consider that the words complained of are defamatory within the meaning of the Defamation Act (Ch No 293). The defendant has pleaded protection or excuse for the words uttered. Mr Goodman, for the plaintiff has drawn my attention to O 8, r 85 of the National Court Rules, which relates to defamation, and which provides:

�A defendant shall specifically plead any defence of protection, justification or excuse of law.�

Although the defence as pleaded in par 3 is poorly worded as a matter of pleading, I nevertheless propose to consider it on the merits and not dismiss it simply on the technical ground that it is not properly pleaded. It is not, of course, defamatory to send a letter to the person defamed, but, in this case, four carbon copies were sent. The sending of a copy to the Secretary of the Department of Works was not unreasonable as he had an interest in knowing the truth of the matter � see s 11(3) of the Defamation Act. The sending of a letter was not unreasonable but the content of this letter was unreasonable in the circumstances because the phrase �I had the old �Mafia tactic� applied to me and I don�t like it�, was excessive language. Even though the word Mafia is put in quotation marks it creates a very bad impression. The Mafia is well known for violence, for standover tactics, and for bribing and corruption of officials, whereas in this case all Mr Cross did was to phone the defendant�s superior appealing to him to countermand an order apparently given by the defendant. I consider that the publication was made in bad faith in that the defendant had no facts to justify his use of the words �Mafia tactic� and that he did not believe those words to be true. Although he refers in par 2 to Mr Cross� action of phoning the Secretary of the Department of Works, that is no justification for the use of the phrase. I therefore conclude that he was actuated by ill will.

I now turn to the question of damages. Mr Cross is a prominent businessman in Papua New Guinea. He came to the country in 1968 as a Patrol Officer. After a career in that service he resigned in 1975 to enter business initially in the Western Province as a trader. His business prospered and at one time he had four major stores in the Western Province. Today he is the major exporter of crocodile skins in the country and he says he is the third largest sawmilling operator in the country. He is the chairman and l assume major shareholder of a group of seven companies. He sits on two statutory bodies. He is the deputy chairman of the forest Industries Council and was appointed to that position in July 1987. He is also the Honorary Secretary of the Papua New Guinea Forest Industries Association and was appointed to that position in January 1987. He was hurt by the phrase mafia. He considers that Kimbe is a small place and the expatriates there know each other well and mix together socially at the hotel and at the club and I think it quite likely that the words used could have been spoken about the published around the club and the hotel thereby damaging his reputation. He is also concerned that the letter sits on three government files in Boroko, Lae and Kimbe and it may affect his standing with the government, his reputation with the government with whom he has business dealings, and may affect his chances of being appointed to other statutory boards. He also told me that he is concerned that his children who are being educated in the USA too, might one day find out that their father was accused of adopting mafia tactics. No apology has been made.

On the question of damages, it is usually said that damages for defamation are much lower in Papua New Guinea than in Australia and we do not have many reported decisions to give guidelines. I was quoted the case of Baker v Lae Printing Pty Ltd [1979] PNGLR 16, where an award of K6,000 was made in 1979 for a publication in a newspaper. The phrase complained of there (odious creature) is somewhat similar to the particular phrase complained of here (Mafia tactic) but the publication in this case is much less wide than there. I consider that the appropriate damages in this case are K4,000 and I also direct that the plaintiff should recover his costs on the National Court scale. I consider a defamation case where lawyers are involved on both sides is quite a difficult thing in terms of pleading and appropriate for this Court rather than the District Court. So I award damages of K4,000 plus costs on the National Court scale.

Judgment for K4,000

Lawyer for the plaintiff: Steeles.