Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Bole v Imbell [1982] PGNC 3; N354(M) (7 May 1982)

N354(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 304 OF 1981

WAMA BOLE
APPELLANT

V

WILLIE IMBELL
RESPONDENT

Rabaul & Waigani: Bredmeyer J
10 February 1982; 7 May 1982

Appeal from District Court.

Appeal from an award of damages for defamation.

Principles governing an appeal from an award of damages.

Cases Cited
The Government of Papua New Guinea v. McCleary [1976] PNGLR 321.
Baker v. Lae Printing Pty. Ltd. [1979] PNGLR 16
Tei Abal v. Anton Parau [1976] PNGLR 251

REASONS FOR DECISION

BREDMEYER J: This is an appeal against an award of K300 damages for defamation awarded by the Rabaul District Court on 7th October 1981. The defamation alleged was that on or about 13th June 1981 the defendant had said that the complainant had worked magic on the defendant's daughter resulting in the daughter dying. The case was heard ex parte by the magistrate. The only ground of appeal stated in the Notice of Appeal is that the damages awarded were not properly assessed.

An award of damages lies within the discretion of the magistrate. My duties on appeal are well set out in The Government of Papua New Guinea v. McCleary [1976] PNGLR 321 at pp. 322-323. I should not lightly alter the award merely because I would have awarded a lesser sum if I had been sitting as the trial magistrate. I can intervene and alter the magistrate's assessment in two circumstances. One is if I consider that he applied a wrong principle of law by taking into account some irrelevant factor or leaving out of account some relevant one. The second is, where I cannot point to such an error, but nevertheless consider that the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. In addition I can only allow an appeal under s.236(2) of the District Courts Act where there has been a substantial miscarriage of justice. In this case the appellant's counsel has chosen to argue the appeal without obtaining the magistrate's reasons and is thus unable to point to any error in principle made by the magistrate. Counsel must therefore of necessity rely on the second ground mentioned above.

Counsel for the appellant suggested that the cause of action was under custom but I do not think that is correct. The cause of action is given by the Defamation Act 1962, which being a statute overrides custom. I interpret the Notice of Appeal as being against the amount of damages only. No application was made to me to amend it and I take it that liability is not in dispute.

The parties to this dispute are Sepik wantoks. Three witnesses were called for the complainant to give evidence of the defamation. They said that Bole at a gathering of wantoks in Rabaul said that Willie had made sorcery on Bole's daughter and caused her death. The words were said in place talk. The words were said more than once. A witness, Susanna, said Bole "kept on saying the words." How many people heard the words? Susanna said "plenty" of people were present. I have no doubt she used the Pidgin work ‘planti’ which could mean as few as 10 or 20. No other evidence was given as to the numbers present.

I have no doubt that the words spoken were defamatory within the meaning of ss. 6 and 7 of the Defamation Act and that the uttering of them at the gathering was a publication within the meaning of ss.7 and 8. I have no doubt that the words spoken would injure Willie's reputation and that other persons would be likely to shun or avoid or despise him. To what extent was Willie's reputation injured by these words? The witnesses said that Willie was not a leader but was a good man. There is no evidence from them that they thought any less of Willie because of the words spoken. They all said that the words were not true which I take to mean not true in the double sense that Willie did not work sorcery on Bole's daughter and that she did not die. They said she was still alive. One of the witnesses, Susanna, said that some people now think that what Bole said was true. I ignore that statement as hearsay. There was thus no evidence before the magistrate from the only witnesses called that they thought any less of Willie because of the words uttered or that they believed the words to be true.

It is settled that a statement can be defamatory even though the hearers do not believe the defamatory imputations and may even know that they are untrue^[1]. A defamatory statement is one which tends to injure the reputation of a person, even though in fact it may not. Nevertheless the fact that the three hearers who gave evidence did not believe the statement and did not think any less if Willie does, I think, affect the damages that should be awarded. Only moderate damages should have been awarded.

In those circumstances, and because the publication was not as wide as in Baker's case already cited or in Tei Abal v. Anton Parau^[2], I consider that the damages awarded were so inordinately high as to amount to a wholly erroneous estimate and that that amounts to a substantial miscarriage of justice. I therefore allow the appeal, quash the order made and substitute an order that the appellant pay to the respondent K80 and costs of K31.

Solicitor for Appellant: Public Solicitor
Counsel: F. Gubon
Solicitor for Respondent: Maraleu, Isana & Associates
Counsel: M. Maraleu

^[1] Baker v. Lae Printing Pty. Ltd [1979] PNGLR 16 at p. 23.
^[2] [1976] PNGLR 251.