Did the respondents proceed with reasonable care before publishing the matters complained of? Did the respondents provide fair and accurate reports? Did they believe the matters set out in the matters complained of to be true?
309 It will be recalled that in their defence the respondents pleaded that their conduct was reasonable in the circumstances because, among other things, they took care to distinguish between allegations, suspicions and proven facts; they accurately reported the content of relevant source documents; they sought comment from Mr Duma and fairly and accurately reported his response; and they believed the matters set out in the matters complained of to be true.
310 Mr Grigg and Ms Whyte held themselves out to be experienced and responsible journalists. They were writing for a serious publication engaged in the business of providing information to the public and publishing matters is part of its ordinary and legitimate course of business. The defamatory imputations are extremely serious. In these circumstances the respondents were required to take particular care to ensure that the facts were fairly and accurately reported. Readers are entitled to expect no less.
311 The evidence disclosed that they did no such thing. The articles were replete with errors and misrepresentations. In submissions the respondents' counsel made light of these matters. I accept that an occasional error or omission may be inconsequential. But the number and nature of the errors and omissions in the present case were not. Moreover, in several instances, and contrary to what was pleaded in the defence, the journalists testified that they did not believe that what they had written in the matters complained of was true. In some instances, one or both of them conceded that statements they had made in the articles were not true.
312 The false reports included, in no particular order of importance, the following matters.
313 First, the matters complained of variously asserted that Mr Duma "revoked", "cancelled" or "retract[ed]" PRL 5, implying that the licence was terminated prematurely when it was not. PRL 5 was due to expire and it was simply not renewed at the end of its second term.
314 Had the respondents read the material in their possession with any degree of care they would have known these matters. The PAB's documents tendered in evidence made that clear. So, too, did Ms Jalleh in her email correspondence with Mr Colwell and Mr Greenburg on 17 May 2011.
315 Second, the first article asserted that when PRL 21 was granted in March 2011 Horizon's interest was "cut" whereas the combined share of two Horizon companies had in fact risen from just under 50% to 70%. That, too, should have been obvious to the respondents.
316 Third, while the matters complained of insinuated that Mr Duma came up with specious reasons to "cancel" the licence to put pressure on Horizon to extract a bribe, the respondents repeatedly failed to acknowledge the role of the PAB in the process. Mr Grigg admitted that he did not know that the PAB had recommended against the extension of the licence on 9 June 2010.
317 Fourth, in the weekend review article (the ninth and 10th matters complained of), the respondents wrote (at [49] and [61] respectively):
One engineer warned Duma "has done this before". "[He] rescinded a licence and resold to someone else," the company was warned. "Duma has a buyer."
318 Yet Mr Grigg well knew that licences were not sold but granted or allocated to licensees who had obligations to spend money to develop them. Furthermore, the account was based on remote hearsay and the original source was not identified, although no-one reading it would think that. The document from which the account was drawn was an email sent by Jim Slater of a consultancy firm to Alan Fernie of Horizon on 21 July 2010, which Mr Fernie had forwarded to Mr Emmett. In the email Mr Slater stated:
Jepson just called - he is still to meet Duma this evening. He spoke to someone else in Duma's office. He was told that Duma has done this before - rescinded a licence and re-sold to someone else. The guy he spoke to told him that Duma has a buyer - and he will get the name of company later this evening and call me.
319 As Mr Duma put it in submissions:
So, what in fact happened is that Mr Slater told Mr Fernie that he (Slater) had been called by somebody called Jepson, and that Jepson had said that he had spoken to somebody else (an unknown person in Mr Duma's office), and that that unknown person had told Jepson that Mr Duma had "done this before". No word, of course, on how the unknown source in Mr Duma's office knew any such thing, or why he was motivated to pass the information on to Jepson.
The upshot is that Mr Grigg saw fit to "quote" (in the highly artificial way apparent from the foregoing) a very damaging allegation about Mr Duma, on the basis of nothing more than fourth-hand hearsay. When he was challenged on this in cross-examination, and asked whether it was obvious to him that this information was unreliable at best, he claimed "I didn't have a view on that". His only explanation for why he saw fit to rely on something which was so remote was "It was what Horizon was being told about the situation".
320 In the circumstances it was irresponsible of the journalists to include this account in their article.
321 Sixth, the respondents' reported chronology, which appeared in seven of the 10 matters complained of, and which was critical to the story they told, was false in several not insignificant respects.
322 In the first place, the respondents falsely reported that Mr Emmett's letter of 24 November 2010 was sent after Horizon had instituted legal proceedings, characterising the letter as "the trigger for settlement" of those proceedings, and claiming that it was sent "[a]fter an aborted legal battle". At that point in time there was no "legal battle". Ms Whyte admitted the reports about these matters were false (at T1112/15-27).
323 Mr Grigg knew they were false. In contrast to the chronology presented in the articles, the "timeline" he prepared before the articles were published recorded:
24 November - Horizon writes to Duma, says has instructed lawyers to prepare for judicial review. Says has learnt that Duma has opened tender for PRL5. Asks to withdraw tender process. "We remain open to any suggestion to you to how the current tension might be defused (sic)".
(Italicised emphasis added.)
324 As that timeline accurately recorded, Mr Emmett's letter was sent before Horizon commenced legal proceedings, not after. The timeline included in the graphic had Horizon launching court action in November 2010, before the entry for 24 November. In fact the proceedings were not commenced until 3 December 2010. The timeline in the graphic omitted the passage italicised above and the two sentences that followed it.
325 The letter was described in the ninth and 10th matters complained of as an "abrupt change of tack" or "a grovelling letter". It was neither. Rather, it was a notice of intention to institute legal proceedings.
326 After setting out the grievances of the PRL 5 licence-holders, the letter stated:
Based on the foregoing, our lawyers have been instructed to prepare for the commencement of judicial review proceedings to quash the decision and require an extension of PRL 5 to be issued. We will also seek injunctive relief to restrain the grant of any licence over the blocks the subject of PRL 5 pending the hearing of the judicial review proceedings. In the circumstances we request that you do not take any action to deal with the blocks the subject of PRL 5 pending the hearing of these proceedings.
That said, we were informed yesterday that the Registrar, as delegate of the Director, is issuing letters to industry participants inviting them to apply for the blocks previously the subject of PRL 5. These invitations are said to be open from Monday 22 November 2010 until Friday 26 November 2010. We are advised that it is unlikely that the relevant proceedings can be commenced and an injunction obtained within the time period named for tenders to be received. In these circumstances, we request that you direct the Director to withdraw these invitations or, failing that, that you inform any applicant of our claim to these blocks and of the proceedings which we propose to take.
Minister, we very much regret that this issue has led to the current situation, which we do not choose to be in. This letter is an attempt to be open with you about the situation and the action that we will be compelled to take to protect the interests of our shareholders.
As always, we remain open to any suggestion from you as to how the current tension might be defused. I can always be contacted by email emmettbd@horizonoil.com.au or mobile phone ... Do contact me if you wish to discuss a solution - I would welcome the opportunity.
327 As Mr Duma submitted:
The false claim that Mr Emmett's letter came after the commencement of legal proceedings contributes very strongly to the message, conveyed to readers, that Mr Duma schemed to extract, and did extract, a bribe from Horizon as the price for granting it an interest in the new PRL 21. The false sequence of events is central to the articles' characterisation of the transaction as corrupt. It is set out relentlessly in the timeline graphic which features in all five of the February online articles as well as in two of the February print articles.
328 The letter was contained in the leaked documents. If, as the respondents pleaded in their defence, the journalists had read all the relevant documents, they would have known the true facts. Either they did know them and deliberately misrepresented them, as Mr Duma contended, or they did not take sufficient care to get the facts right before publishing the matters complained of. In cross-examination, after some initial equivocation, Mr Grigg admitted that he had read the letter, was aware of its contents, and knew that proceedings had not been instituted when the letter was sent. It follows that he, at least, knew the facts and deliberately misrepresented them.
329 Second, Elevala (under its former name, Viva No 54) was part of the original consortium, with Horizon and Dabajodi, which lodged an application for PRL 21 on 26 November 2010. This circumstance is overlooked in the articles, although Mr Grigg admitted to seeing the document in which the information was recorded when he was preparing the story. The deed of settlement was executed on 4 March 2011. As Mr Grigg accepted in cross-examination, the source documents showed that Mr Ketan became a director and shareholder of Elevala some 10 days later.
330 Third, it is significant, and at odds with the impression created by the matters complained of, that Horizon was keen to purchase Elevala's interest before Mr Ketan had any involvement with Elevala. In an email to BDW on 4 February 2011 Mr Sheridan wrote:
We and TLM would still like to have the arrangements to take out the other parties and increase our joint interest to 100% but those arrangements will need to be negotiated separately with [Dabajodi] and Elevala - depending on their receptiveness to such proposals. With appropriate provisions in the JOA and the expenditure levels anticipated early in the PRL term, we may have some leverage.
331 In late April, when he recommended the buy-out of Elevala to Horizon's board, Mr Emmett referred to this strategy:
We understand that Elevala Energy has been approached by InterOil, Dabajodi (20% interest owner in PRL 21) and LNG Ltd (small company with PNG interests) with offers to buy it out of its 10% interest in PRL 21. As foreshadowed, I expect Elevala Energy will be susceptible, as it begins to appreciate the funding required to meet its obligations.
332 As Mr Duma submitted:
50. The respondents' story - plainly conveyed to readers, although repeatedly evaded or disavowed by Mr Grigg in his evidence - that Mr Duma engineered the grant of an interest in PRL 21 to Elevala as the mechanism for payment of a bribe from Horizon, depends on the assumption that Mr Duma's supposed "associate", Mr Ketan, was (to Mr Duma's knowledge) the sole director and shareholder (or at least in some way the controller) of Elevala. But there is no evidence, at all, either that Mr Ketan did have any such involvement prior to mid-March 2011, or that Mr Duma had any knowledge as to when Mr Ketan became involved. And Horizon was giving active consideration to a buy-out of Elevala's share from the outset, well before Mr Ketan became involved (whenever exactly that was).
51. Moreover, it appears that even at this early stage, Horizon was well aware that Elevala would struggle to meet the expenditure commitments for the licence, and that it planned to use this as "leverage" in a bid to buy Elevala out.
52. This puts a rather different complexion on the fact, which the matters complained of repeatedly emphasise, that Elevala was a "shell company" with no experience in the energy sector and no assets. As noted above, Horizon had participated in a joint application for PRL 21, with Dabajodi and Elevala. Since Horizon apparently hoped and intended to buy Elevala out from the beginning, one readily available inference is that it deliberately partnered with a company which it knew had no capacity to meet the expenditure obligations, in order to submit an application which satisfied the Minister's requirement of local participation, while preserving the prospect of buying that company out later, when it inevitably failed to meet its expenditure commitments, in order to increase its own share of the licence.
333 In cross-examination Mr Grigg admitted to knowing the true sequence of events before the articles were written. He claimed they mistook the timing. He was repeatedly asked why he did not take the trouble to get the sequence right. His answers were evasive and unhelpful.
334 Seventh, the respondents repeatedly misrepresented what the Talisman lawyers were saying.
335 In the first two matters complained of (published on 10 February 2020), the respondents reported that:
Mr Colwell said it could be assumed "there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21". That made it "fruit of the poison tree", he said, while flagging "the possibility" of payments from "Elevala back to some government officials from the sale price to be paid by Talisman and Horizon".
(Emphasis added.)
336 This report was taken from Mr Colwell's email to Mr Greenburg of 14 May 2011 in which he sought advice about the prospect of an investigation into the transaction in the United States by the Securities & Exchange Commission or the Department of Justice.
337 But Mr Colwell did not say, or even intimate, that it could be assumed there was some corrupt behaviour. Nor did he describe the acquisition of Elevala's interest in the licence as "fruit of the poison tree". Unlike the respondents, he chose his words carefully. As Mr Duma put it, Mr Colwell was seeking advice posited on a hypothetical worst-case scenario. What he actually said was this:
If we assume that there was some corrupt behaviour on the part of Elevala in the acquisition of their interest in PRL 21 it would either be the "fruit of the poisoned tree", which we have previously discussed, or the possibility of payments flowing from Elevala back to some government officials from the sale price to be paid by Talisman and Horizon.
The red flags that we see are (i) Papua New Guinea generally; (ii) the fact that Elevala is a new company with no track record in the petroleum business; (iii) one of the principals of Elevala is a lawyer with what appears to be close connections to government officials. We do not have any specific information or knowledge that would lead to a conclusion that there has been any corrupt activity.
(Emphasis added.)
338 Tellingly, none of the articles which referred to Mr Colwell included the last sentence or words to the same effect.
339 The respondents also reported that Mr Greenburg "warned the Department of Justice and Securities & Exchange Commission would investigate if the deal was ever made public" and informed readers that he "conclud[ed]" that "the legitimate role of Elevala is not clear" (emphasis added). This report was taken from an email from Mr Greenburg to Mr Colwell on 15 May 2011.
340 But the email makes no such statements. Mr Greenburg said that, "if DOJ or SEC get wind of an allegation … that Elevala was a vehicle for bribes or paid bribes, there likely will be an investigation". He counselled that additional facts were required. He posed a number of questions. He stressed the requirement for due diligence. This is the relevant passage in the source document from which the report was drawn (the emphasis is mine):
The bottom line is that if DOJ or SEC get wind of an allegation from any source that Elevala was a vehicle for bribes or paid bribes, there likely will be an investigation. If that occurs, you need to be able to show you did due diligence and reasonably believed the transaction was not corrupt. The question will be can Talisman get comfortable that this is leg mate [sic], and we need to do more and get more facts to get there. Otherwise, you will be very exposed if an allegation is made and an investigation initiated. On the sparse record now, the legitimate role of Elevala is not clear. Of course, as I understand it, there is also no allegation of misconduct and no evidence of improper activity. So, it may well be that you can get to a point of comfort. You just need to learn more.
341 In cross-examination Mr Grigg admitted that Mr Greenburg had not reached any conclusions. A fair report would have included the qualification in Mr Greenburg's advice. It was unreasonable to omit it.
342 Ms Whyte admitted that the proposition put to Mr Duma that the lawyers for Talisman said "it could be assumed there was some corrupt behaviour on the part of Elevala" was false (at T1092/40-T1093/5) and not "truthful" (T1093/13). She was unable to explain why (at T1093/8). She admitted that they should have been truthful (at T1093/20-11). She accepted that their conduct in this respect was not reasonable (at T1093/15). Ms Whyte also agreed that it was false for Mr Grigg to tell Mr Duma that the Talisman lawyers had said "it was safe to assume some corrupt behaviour on the part of Elevala" (at T1095/5) and false to publish that Mr Colwell said "it could be assumed there was corrupt behaviour on the part of Elevala" (at T1110/35-1111/3). She also agreed that it was false to tell Mr Duma that the Talisman lawyers "concluded that if the SEC or the Department of Justice in the US were to find out about the transaction, then they would have no choice but to investigate" (T1095/30-37) and unreasonable to publish that (at T1111/10-25).
343 It is difficult to believe that these were innocent mistakes, particularly when the follow-up email, which includes the responses to Mr Greenburg's questions, is taken into account. Those answers may well have allayed Mr Greenburg's concerns. No further correspondence from him was presented in evidence. In cross-examination, Mr Grigg was asked whether there was anything in the material he saw where Mr Greenburg or Mr Colwell provided an opinion in the light of those answers. He said without equivocation that there was not.
344 Mr Grigg suggested that his purpose in paraphrasing Mr Colwell was "just for space" and to keep the article "tight and make it readable". This was at best a half-truth. The effect of the paraphrase was to change the meaning of Mr Colwell's words. I cannot accept that this was an accident. Nor can it have been accidental that Mr Grigg omitted Mr Greenburg's important qualification that he understood there was "no allegation of misconduct and no evidence of improper activity". Mr Grigg admitted that omitting the qualification had nothing to do with space or readability. When asked why he did not include this part of Mr Greenburg's email in the articles, Mr Grigg made it quite clear that he did so because it did not suit his narrative or case theory:
My question was, why didn't you include in the article that you wrote, where you quoted from one sentence as though it were a conclusion, the actual next sentence where he said that there was:
…no allegation of misconduct and no evidence of improper activity.
?---Because, ultimately, they didn't go ahead with the deal.
And you assumed that the reason was to do with something that was being raised in this emails?---Yes.
345 Senior counsel for Mr Duma proceeded to interrogate Mr Grigg about this assumption:
Mr Greenburg said he wanted - he would need some answers to some questions. Answers were provided; correct?---Yes.
And you know nothing more about what happened thereafter inside Talisman, do you?---Correct.
So just if I can encapsulate what you did in relation to these two emails of Colwell and Greenburg, in the case of Colwell, to repeat myself, he couches his paragraph in terms of if we assume corrupt behaviour, so it's a hypothetical, you agree with that?---Yes.
So you report in your newspaper about Colwell's hypothetical, but you turn it into something that is not hypothetical by saying that Colwell said it could be assumed, correct?---Yes.
Yes. You leave out - you report that - sorry, I withdraw that. You report that Greenburg said - although you call it a conclusion - but you report that Greenburg said the legitimate role of Elevala is not clear, correct?---Yes.
But in both cases, both Colwell email and Greenburg email, you omit the next succeeding sentence of both Colwell and Greenburg, don't you?---Yes.
Where each of them says, in slightly different language, there's no allegation of misconduct and no evidence of any improper or corrupt activity?---Correct.
Now, in doing that, as I've just summarised it to you, do you say that you fairly and accurately reported information obtained from the Greenburg email chain?---Yes.
346 I reject Mr Grigg's assertion that the account given by the respondents of the information obtained from the Greenburg email chain was a fair and accurate report of that information. It was nothing of the kind.
347 Mr Grigg also testified that he and Ms Whyte read these emails "with some care" and acknowledged that the defence claimed that the respondents took care to report the available information accurately. He agreed that it was very important that they reported the contents of the emails accurately. He agreed, too, that if the report was inaccurate, that would tell against the reasonableness of their conduct.
348 Mr Duma submitted that it is difficult to see how Mr Grigg's misrepresentations were anything other than "outright dishonesty". He argued that it strains credibility to believe that an experienced professional journalist with two Walkley awards to his name could not tell the difference between what was said in the emails and what he wrote in the article. He invited the Court to find, contrary to Mr Grigg's evidence, that he deliberately twisted the words used by Mr Colwell and Mr Greenburg to suit the narrative he wished to construct.
349 It is presently unnecessary to decide whether the misrepresentations of the contents of the Greenburg email chain were dishonest and a deliberate twisting of their author's words to suit the narrative Mr Grigg wished to construct. It is enough for present purposes to observe that he was at least careless about, if not indifferent to, the truth.
350 Eighth, there was no proper basis to assert, as the respondents did, that the conclusion reached by Horizon's lawyers was very different from that reached by Talisman.
351 In the third and fourth matters complained of the respondents reported that the conclusion reached by Horizon was "very different" from the conclusion reached by Talisman and any future investigation conducted by Horizon "will need to examine how Horizon's management failed to see the same 'red flags' as lawyers for its joint venture partner…Talisman". They went on to report that Talisman's lawyers advised against buying out Elevala due to corruption concerns and these concerns were shared with Horizon. The article was followed by the heading "Differing conclusions" in large font, and went on to report that Horizon came to "a very different conclusion to that reached by Talisman" with Horizon ultimately purchasing Elevala's stake.
352 It will be also recalled that, in the first, second, third, fourth, seventh and eighth matters complained of, the respondents reported that the searches Ashurst conducted on Elevala on Horizon's behalf "revealed nothing corrupt, illegal or anything in breach of bribery laws", yet lawyers working for Talisman "raised concerns about Elevala's sole director and shareholder, Simon Ketan, being 'a lawyer with what appears to be close connections to government officials'" or words to that effect.
353 In addition, the first and second matters complained of reported that, "when Talisman's lawyers learned that Elevala wanted to sell its 10 per cent stake in the gas fields just 10 weeks after the licence had been granted, they began asking questions" and, although they had been lined up to buy half the Elevala stake, Talisman had "second thoughts" after a "flurry of emails from its lawyers" and ultimately "set about unwinding its commitment". Later they reported that the lawyers warned that, if Talisman wanted to proceed with the acquisition, it must have a "good faith belief…that Elevala had not paid, and will not pay bribes". And in the website article, there is a dinkus in large font stating, "Talisman pulls out", followed by a conclusion that the "documents don't answer that question but Talisman did not proceed with the acquisition".
354 The information in the email chain, which was all the respondents had, was too tenuous a foundation for the assertions that Talisman had come to different conclusions from those reached by the lawyers for Horizon. It was apparent that the respondents assumed that Talisman had withdrawn because they lacked the "good faith belief" that Mr Greenburg considered necessary. Given the gravity of the implication, a responsible journalist would not have asserted that Talisman had come to a different conclusion than that reached by Ashurst based only on an assumption. A reasonable publisher would have been more circumspect.
355 Ninth, the statements made in the seventh to 10th matters complained of that Horizon had received repeated corruption warnings from lawyers working on the deal were admittedly false.
356 Tenth, a number of the articles reported that Mr Duma and Mr Ketan were involved in a scheme to defraud tribal landholders. In the first article, for example, Ms Jalleh was said to have "flagged a news clipping indicating a link between Mr Ketan and Mr Duma amid allegations of tribal landholders being defrauded of government compensation".
357 In fact, there was no such news clipping.
358 The source document is an email from Ms Jalleh of Talisman to Brent Anderson and Pat Colwell, both also of Talisman, dated 6 May 2011. The email was in the following terms:
Interesting:
"At Mr Maladina's instruction, lawyers Jack Patterson and Simon Ketan both concealed and fabricated documents on Mr Maladina's instruction in order to protect Mr Maladina. They have been referred to the Commissioner for Police to consider prosecution for fabricating documents contrary to Section 122 of the Crimina[l]-Code."
Mr Duma… also said that claims and misunderstandings that the funds were being mismanaged by certain named individuals (councilors John Watt and Nelson Kerua) and a legal firm (Simon Ketan Lawyers) in past reports and speculations was not true."
"PNG Police Commissioner, Sam Inguba says lawyer, Simon Ketan has been arrested and charged for allegedly perjuring himself before the inquiry."
Is this sufficient, for FCPA purposes, for us not to proceed with acquiring an interest in PRL 21 from Elevala Energy, or would more definitive information be required?
359 In cross-examination, Mr Grigg acknowledged that the quotes appearing in this email came, not from "a" news clipping, but from three separate articles. He also maintained that the extracts from the three separate articles indicated "a link" between Mr Duma and Mr Ketan. Yet his explanation for saying that Ms Jalleh "flagged a news clipping indicating a link between Mr Ketan and Mr Duma amid allegations of tribal landholders being defrauded of government compensation" was that the two men were "named in connection with something that has happened". That evidence is incredible.
360 As Mr Duma submitted, together with the Colwell and Greenburg emails in the Greenburg email chain, this is yet another example of the respondents misstating and distorting the contents of a document. It is unlikely to have been mere coincidence that the misrepresentations of a key source document had the effect of enhancing the appearance of corruption in the Elevala transaction.
361 The only reference to Mr Duma in any of the articles from which the quotes from Ms Jallah's email was taken was in an article evidently published in the PNG Post-Courier on 4 March 2004. The text was contained in an email from Mr Anderson of Talisman to Ms Jalleh and Mr Colwell sent on 7 May 2011. This is what it said:
Landowners force school to close
…
ONE of the biggest high schools in the Highlands has been forced to shut down following due to a running dispute over land ownership payments.
Close to 1000 students at the Mt Hagen Secondary School were forced to leave the school premises early yesterday after landowners the Jika Milakambs forced their way into the school, closed the entrances and held a meeting, which demanded explanations about where K1.6 million in payouts to the landowners had gone.
One student described the day as chaotic and one of the worst days in my life.
Students were forced to take their personal belongings and leave school for an indefinite period.
The school was closed for the day as the landowners waited for an explanation on the whereabouts of K1.6 million in claims, supposedly paid out.
Port Moresby-based Simon Ketan Lawyers (the law firm looking after the funds in a trust account), landowner group chairman Nelson Kerua, councillors John Watts and David Maip and other leaders were asked by the community to account for the State funds paid towards settling a claim over the land on which the school was built.
Mr Kerua, Cr Watt and Cr Maip each gave their side of the story, but Simon Ketan Lawyers was not represented to provide details. It was the second meeting the law firm had not attended in relation to the matter. The first was last week. Leaders have called upon Ketan Lawyers to provide information on the status of the account and warned the re-opening of the school depended on a positive response by Ketan Lawyers on the whereabouts of the funds.
The landowners have asked for the most recent financial records of the funds. They have also asked Mt Hagen Open MP and Environment and Conservation Minister William Duma to intervene and bring the lawyers in to explain the situation.
School principal Leo Noki said the students were told to go home because their security was at risk, and it was disturbing for them.
Unless the issues are sorted out, school will not start but it will be closed for an indefinite period. The reopening of the school depends entirely on Ketan Lawyers, he said.
(Emphasis added.)
362 The article did not suggest any link between Mr Ketan and Mr Duma. Nor did it suggest that Mr Duma had anything whatsoever to do with any possible fraud on landowners.
363 In an email to Mr Duma on the evening before the publication of the first and second matters complained of, Mr Grigg asked Mr Duma about this matter. But what he put to Mr Duma was completely false. He wrote (relevantly):
Talisman's in-house lawyers and external counsel noted that you and Mr Ketan had been named together in a scam to defraud tribal landholders in the Mr Hagen region …
364 In Mr Duma's reply he told Mr Grigg:
Mr Ketan and I were never involved in an alleged scam to defraud landowners. That is absolutely false and defamatory.
It would be unbecoming of me to be involved in a scam against the very people I have been elected to represent.
365 Mr Duma's evidence, which was not challenged, was that Ms Jalleh was apparently referring to an article in which it was reported that there was a group of landowners who were in dispute with each other and Mr Ketan was the lawyer for the landowners. This was the article to which I referred above and which Mr Duma discovered in the respondents' tender bundle. He went on to say:
When it came to distribution of the monies that were allocated, the landowners had disputes amongst themselves. So they publicly called for myself, who was the Minister for Environment and Conservation at that time, as their member of parliament, to help them resolve the issue. There was a public call to me to intervene, which I did, and I helped them resolve the matter. So I was not involved with Mr Ketan to defraud them. I was publicly called to step in there, which I did. I helped them resolve the matter.
366 Eleventh, the respondents reported that Mr Duma was named in a 2017 corruption "case" involving a landlocked naval base. This is a reference to the so-called "Manu Manu affair". In the first story, reported in the first two matters complained of, the respondents described this "case" as a "corruption scandal" and stated that Mr Duma was suspended from cabinet because of it.
367 In fact, the naval base was not landlocked at all. It was built on an estuary. And both Mr Grigg and Ms Whyte admitted they knew that at the time of publication. Ms Whyte admitted that she knew the proposed site for the new naval base was not landlocked (at T1108/47). She also admitted that it was false, misleading and unreasonable to publish that it was (at T1109/1-5).
368 Mr Grigg's explanation for misleading readers was unpersuasive as the following exchange illustrates:
Why did you say "moving a naval base 10 kilometres inland" when you knew it was on water?---I was paraphrasing from the linked article from the ABC.
Was that good enough, do you think, to tell your readers that the naval base was 10 kilometres inland when you knew it wasn't?---It was - it was inland.
It was on water.
HER HONOUR: That went out to the sea?---Yes.
MR GRAY: Well, telling the readers that it was inland is telling them something very different from it being on a waterway being an estuary, wasn't it?---Yes.
Why didn't you tell them the truth?---As I said, I - I looked at the ABC article, I checked a couple of other sources and I looked at what they had - I used similar words to what they had used.
Even though you did enough checking, I take it from your earlier answer, to ascertain that, in fact, it was on an estuary; is that right?---In hindsight, we could have put a few more paragraphs there, yes.
369 Mr Grigg's response was disingenuous.
370 A few more paragraphs were not what was required, just accuracy. As Mr Grigg later admitted, the ABC article upon which he relied stated that "the proposed site of the new base is 10 kilometres inland on the banks of an estuary". The omission of these words created a completely false picture. It served to advance the notion that Mr Duma was corrupt. That was no accident, as the evidence indicated.
371 The exchange continued:
So the answer to my question is you noticed that the ABC, or whoever it was that you read, referred to it as being 10 kilometres inland or landlocked; correct?---Yes.
You yourself ascertained that, in fact, it wasn't landlocked and was on water; correct?---I think there was some dispute about whether or not it was a - a good place to have a naval base; that was the point we were trying to make.
Mr Grigg, back we go again. You told us - you volunteered a few minutes ago that you had ascertained that, in fact, it was on an estuary, on water; correct?---Yes.
But instead of telling your readers that, you just used the language of an article on the ABC which you knew to be inaccurate?---It was inland.
Is the answer to my question yes?---Yes, it is.
372 This was not the only error in the reporting on the "Manu Manu affair" in the matters complained of.
373 Mr Duma was not suspended from cabinet because of the scandal. He voluntarily stood down. Mr Grigg admitted in cross-examination that the same newspaper article he purportedly relied on to say that the naval base was landlocked, also reported that Mr Duma and the other Minister were going to "stand down". He agreed that "standing down conveys a different impression to being suspended". He claimed to have had conflicting accounts in that the QC's report had said that Mr Duma had been suspended. But he made no attempt to check which was right.
374 In fact, the QC, John Griffin, did not say Mr Duma had been suspended. He said that the Post-Courier, a PNG daily newspaper, reported he had been suspended. He also said that Mr Duma stated that he had voluntarily stepped aside (at [10.134]).
375 In his report Mr Griffin QC recommended that the matter should be investigated by the police and the Ombudsman. Yet the respondents made no inquiries to see whether such investigations had taken place let alone ascertain the outcome of the investigations. Mr Grigg conceded, again with the benefit of "hindsight", that he should have done that. It was unreasonable of the respondents to report the matter in the way they did without doing so. Had they bothered to check the facts before publication, they would have acquired (and perhaps presented) a very different picture. That is because, not only was Mr Duma not suspended from cabinet, he was also cleared of any wrongdoing in relation to the matter well before the matters complained of were published. Had the respondents mentioned to Mr Duma what they were proposing to report about the subject, he would have set them straight.
376 On 24 August 2018 the Commissioner of Police wrote to Mr Duma advising that, after a lengthy investigation, the complaint that generated the investigation was found to be without merit and the transaction to be completely above board. It is appropriate to record the contents of that letter in full:
POLICE INVESTIGATION REPORT - MANUMANU LAND DEAL
The letter serves to inform you that a complaint was lodged by Paul Nerau the Chairman of Kumul Consolidated Holdings Ltd with the office of the Commissioner of Police on 7 February 2017 that Kumul Consolidated Holdings Ltd (KCH) was misled into endorsing approval of a fraudulent payment of K46.6 million to a company called Kurkuramb Estates Ltd.
The complaint was registered with the Royal PNG Constabulary National Fraud and Anti-Corruption Directorate (NFACD) and assessed to establish whether or not the complaint has any merit and whether there was any evidence to substantiate the allegations.
It took the NFACD more than 12 months to conduct a thorough investigation into the allegations. After carrying out the investigation and interviewing many persons of interest, NFACD has advised me as follows:-
1. The complaint by the Chairman of KCH, Paul Nerau has no merit;
2. There is no evidence to the substantiate the allegations of fraud;
3. The payment of K46.6 million by KCH to Kurkuramb Estates Ltd was in compliance with due process/procedures and therefore in order;
4. The payment of K46.6 million was not exorbitant, excessive or fraudulent:
5. There was no grand conspiracy between Ministers and employees of the State within the respective Government agencies involved in the process of compulsory acquisition to defraud KCH and the State of the K46.6 million; and
6. The complaint has no merit for further NFACD investigation and action.
Accordingly, I wish to inform you that:-
1. The NFACD investigations have not made any adverse findings against you in your conduct as Minister for Public Enterprises & State Investment at that time;
2. The NFACD investigations into this matter are now closed and the investigation file is written off; and
3. The complaint by the Chairman of KCH Paul Nerau has no merit for further criminal fraud investigation and any actions to be taken against you for that matter.
This letter is to finally advise you that the file is now closed.
377 Four days later, in its lead front page article, the Post-Courier reported that Mr Duma had been cleared by the police and that there was "no fraud" in the "land deal".
378 Within a couple of hours of the publication on the internet of the first article, Mr Duma pointed both matters out to Mr Grigg in an email:
I would like to point out that the allegations in relation to the relocation of the naval base were politically motivated and were made during early 2017 as we were on the verge of having our general elections. I realized that so I voluntarily stepped aside as Minister to allow the authorities to conduct their investigations.
I even voluntarily provided information and documents regarding the allegations to the PNG Ombudsman Commission without being asked to do so.
About 14 months later in August 2018, 1 was cleared of the allegations by the Royal Papua New Guinea Constabulary.
This was reported in the front page of the Post Courier on 28 August 2018.
379 Even then, the respondents did not publish the facts. In cross-examination Mr Grigg admitted that he ignored them. He also admitted that he should have included them. This omission could not have been the result of an oversight. It must have been deliberate. On any view of the matter it was unreasonable, as Mr Grigg conceded.
380 Ms Whyte considered that a correction should have been made about the errors concerning the "Manu Manu affair" and claimed not to know why a correction was not made. She testified that she had discussed Mr Duma's response with Mr Grigg and told him that they should change what had been published but claimed to be unable to recall his reply. She conceded that it was not reasonable not to correct it and to repeat the errors in subsequent publications.
381 In cross-examination Mr Grigg agreed that moving a naval base 10 km inland is an obviously ridiculous proposition. Connecting Mr Duma to such a proposal without a scintilla of evidence to support it was calculated to expose him to ridicule.
382 Mr Grigg admitted that, having read the report of the administrative inquiry, he knew that the police were carrying out an investigation, yet none of the respondents bothered to find out the outcome of the police investigation. When it was put to him that that was not reasonable, Mr Grigg did not give a direct answer. Rather, he said: "We should have included another paragraph". Only after I pressed him for a direct answer did he acknowledge that their conduct in this respect was unreasonable. That was by no means the only time in cross-examination that he had to be directed to answer the question put to him.
383 Mr Grigg's evasiveness in cross-examination is also illustrated by the following exchange:
HER HONOUR: Can I ask you this question, Mr Grigg. Uninformed by your knowledge that the proposal was to put it on an estuary, do you say that an ordinary reasonable reader would surmise that "inland" means anything other than inland and on land and - well, obviously, on land, I suppose, but nowhere near water, like 10 kilometres away from water? Isn't that the logical inference to draw from that?---In hindsight, we should have put a couple of clarifying paragraphs there.
No, no. I accept that you've said that. But the ordinary reasonable reader reading that would conclude, wouldn't he or she, that … efforts were being made to move a naval base 10 kilometres away from water?---I guess so, yes.
384 As I have said, the articles were replete with errors, misrepresentations and omissions. In many cases, the journalists admitted that that what they reported was false, misleading and/or unreasonable. I find that the respondents did not take care to distinguish between allegations, suspicions and proven facts. There is no excuse for this. Contrary to the contention raised in their defence, there was no apparent need for the articles to be published expeditiously as the articles were concerned with events that had taken place a decade or so earlier and the AFP had only just begun their investigation.