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Carey v Solomon Airlines Ltd [2014] SBHC 21; HCSI-CC 418 of 2012 (15 April 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona, J).

Civil Case No. 418 of 2012.

BETWEEN:

STEPHEN ALAN CAREY
Claimant

AND:

SOLOMON AIRLINES LIMITED
Defendant.

Hearing Date: 28th March 2014.

Date of Hearing: 15th April 2014.

Mr M. Pitakaka for the Claimant
Ms L. Ramo for the Defendant.

RULING.

1. Faukona J: The application herein was filed on 27th March, 2013 to strike out the claim pursuant to Rule 9.75 of the Court Rules 2007, ("Rules"). Rule 9.75 set out three grounds upon which the proceedings may be dismissed generally or in relation to the claim. From submissions I could able to foreshadow that the applicant (Defendant) is seeking striking out of the claim on the ground being frivolous and vexations, as well as abuse of the process of Court.

2. On the 3rd of December 2012, the Claimant filed a claim for damages for defamation in respect of a sworn statement deposed by the Defendant Company on 31st August 2011, in a High Court Civil Case No. 9 of 2011. The sworn statement was filed in compliance with a non-party disclosure order signed by Justice Mwanesalua on 14th June 2011. By virtue of the orders a sworn statement was filed disclosing documents pertaining to the Claimant's previous employment with the Defendant including a copy of termination letter issued by the Defendant company on 16th April 2009.

3. The Counsel for the Defendant submits that the documents disclosed were absolute privilege, which applies to occasions and reports of high public importance; words publicized or reported on such occasions can never be the subject of suit, even if the Defendant was actuated by express malice.

4. From a number of absolute privilege occasions Ms Ramo choses to elaborate, as a hypothesis, the administration of justice. And further adds that at common law a statement made in the course of judicial proceedings are absolutely privileged hence not amenable to action for defamation. It matters not whether the statement is false or malicious.

5. Mr Pitakaka submits that there is no room for absolute privilege, a common law principle to take its roots and apply in this jurisdiction. The cut off time limit is expressed by paragraph 2 of schedule 3 of the constitution. To support his argument Mr Pitakaka refers to two case authorities, Cheung V Tanda[1] and Jeovah's witness of SI Trust Board (Ins) V Registrar of Titles[2].

Application of principles of Common Law and equity in Solomon Islands:
6. Schedule 3 paragraph 2 (1) of the Constitution spells out that the principles of Common law and equity shall have effect as part of the law in Solomon Islands except (a) where they are inconsistent with the Constitution or Act of Parliament (b) where they are incapable or inappropriate to Solomon Islands circumstances and (c) in their application to a matter are inconsistent with customary law. The schedule does not talk about cut-off date but exception. Simply, the principle does apply and have effect but for the exceptions.

7. In opposing the applicability of a common law principle of absolute privilege, Mr Pitakaka submits that this is one of a kind of case in this jurisdiction, if not the first. He admits himself there is no other case similar on the same principle as this one. Eventually he refers to an Australia case Smith V Harries[3] Is it not a self-contradictory on behalf of the Counsel himself? Or is it a mishap on his part.

Disclosure by non-party.
8. Rule 11.28 states that a party may apply for an order that documents be disclosed by a person who is not a party to the proceedings. By Rule 11.7 (a) (v) it is a general requirement at disclosure that for documents claimed as privileged must state that the documents are privileged and giving reasons for claiming privilege. Rule 11.31 (a) states that the Court must not order document be disclosed unless the Court is satisfied that the person in possession and control of the document has had an opportunity to be heard.

9. In this case, there is nothing coming from the Defendant at that time of disclosure claiming certain documents are privileged and giving reasons for claiming privilege. Not until 31st July, 2013 when this application was filed that the issue of privilege or absolute privilege was raised.

10. Noted as well the fact that at that time of submissions in respect and prior to the grant of the orders, the Defendant in this case as a non-party, made no appearance by or on behalf of itself. Having not being represented the order that followed may have been not complied with R 11.31 (a). If it were so, there was no appeal filed, or an application to set aside. There could have been an error or an oversight, which was not remedied. In any event, an order had been made and disclosures had been done. Solomon Airlines a well-established company; could have engaged one of the smartest lawyers around to represent it and for legal advice. Legal error sited herein could have been remedied at an early stage of the proceedings.

Principle of absolute privilege:
11. It is accepted that the applicability of common law principles extend to this jurisdiction with the exception alluded to in schedule 3 paragraph 2 (1) of the constitution. More so specifically (in this case) where the principle has yet to be adjudicated by any of the domestic Courts. As such, the circumstances allow this Court to consider the principle.

12. Mr Pitakaka argues that the order for disclosure was for the benefit of the Defendant and not the Court. He further attested that the disclosure order is for the Defendant to draft her defence. Therefore, the basis upon which the principle is devised is to protect the Courts and public institutions as Parliament etc. It protects what is said in Court and Parliament as matters of privilege and are non-justiciable.

13. I have the privilege to check on Civil Case No. 9 of 2011. The revelation is that Mr Pitakaka is absolutely wrong to assert that the orders were made to enable the Defendant draft her defence. In reality, the Defendant's defence and counterclaim were filed on 16th February 2012, three months and twenty eight days before the orders were made, what a bluff.

14. In applying the principle to the facts of this case Ms Ramo refers to the case of Dawkins V Lord Rokeby,[4] Kelly CB stated at page 263;

"The authorities are clear, uniform and conclusive that no action of libel or slander lies, whether against judges, counsel, witnesses or parties, for word written or spoken in the ordinary course of any proceeding before my Court or tribunal recognized by law"

15. It is submitted that the authority was followed by Beti V Taulanga, a Samoan Case which a claim for defamation was struck out against the plaintiffs. The relevant of that case is that "absolute privilege" also applies to oral or written statements, which are incidental to and necessary for judicial proceedings.

16. Drawn from the Samoan case by virtue of R 11.7 (a) (v) require a party disclosing document by sworn statement and for documents that he claims as privilege must state, that the documents are privileged and give reasons for it. In this case, when the orders were served on the Defendant there was no claim of privilege document or given reasons for such privileged document. The sworn statement disclosing those documents never indicated as a privileged document. Discount can be given to the Defendant for non-representation on the date of submissions so that its rights are not prejudiced by operation of Rule 11.31 (a). However, that discount is removed by the facts that Solomon Airlines is huge commercial company capable of affording a lawyer to represent advice and to appeal against the orders. There was nothing done until this application was filed.

17. The circumstances of the case warranted the application be dismissed with costs. I find the proceedings are not frivolous or vexatious or an abuse of Court process.

Orders:

1. Application to strike out dismissed.

2. Costs of this application be paid by the Defendant to the Claimant.

The Court.

^[1] [1983] SBCA 1, SILR 108 [8 December 1983].
^[2] [1993] SBHC 49; HLSI-CC 51 of 1993 [16 July 1993].
^[3] [1996] Vic Rp 70; [1996] 2 VR 335 [8 March 1996].
^[4] [1873] LR 8 Q B 255.