Solomon Airlines Ltd v Carey [2014] SBCA 34; SICOA-CAC 17 of 2014 (17 October 2014)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona J.)
COURT FILE NUMBER:	Civil Appeal Case No. 17 of 2014 (On Appeal from High Court Civil Case No. 418 of 2012)
DATE OF HEARING:	13 OCTOBER 2014
DATE OF JUDGMENT:	17 OCTOBER 2014
THE COURT:	GOLDSBROUGH P, WILLIAMS JA, WILSON JA
PARTIES:	Solomon Airlines Limited Appellant -V- Stephen Alan Carey Respondent
Advocates: Appellants: Respondent:	Ms. Ramo, DNS & Partners Law Firm Mr. Pitakaka, Michael Pitakaka Law Chamber
Key words
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSD	ALLOWED
PAGES	1-6

JUDGMENT OF THE COURT

1. This is an application for leave to appeal against the dismissal of an application to strike out the claim, which is for damages for defamation, as frivolous and vexatious and an abuse of process. The application is made on the grounds that it raises important questions of law and the appeal has reasonable prospects of success. The Court heard full argument on the merits of the appeal.
   

Background

2. The respondent Carey was employed by the applicant Solomon Airlines Limited ("SolAir") as a licensed aircraft maintenance engineer for a term of two years. On 16April 2009SolAir terminated the employment before its expiration. Carey subsequently became an employee of South Pacific Oil Ltd ("SPOL"). That employment was terminated following a complaint by SolAir's CEO.
   
3. Civil Claim No. 009 of 2011 is between Carey as claimant and Sayada Sarah Azeem as defendant. The defendant Azeem made an application for non-party disclosure against SolAir and SPOL. The claimant Carey was represented on the hearing of the application, as was SPOL. Although served with the application, SolAir did not appear. On 14 June 2011 a judge of the High Court made an order for non-party disclosure against SolAir and SPOL. So far as presently relevant, his Lordship ordered.
   

"2. Solomon Airliner's Limited ("the Airline') file and serve a sworn disclosure statement within 21 days disclosing the following documents (whether electronic or otherwise):-

a. The Airline's employment file or employment related documents in respect of the Claimant including but not limited to:-

1. Any application for employment by the Clamant.
2. The Claimant's employment contract and any renewal thereof.
3. All of the Airline's employee assessments in respect of the Claimant.
4. Any document touching or concerning the Claimant's performance of his duties while an employee of the Airline.
5. Any employment related disciplinary action undertaken by the Airline against the Claimant including warning (whether written or oral), suspension or dismissal.
   

b. All documents of whatsoever nature relevant to the conclusion of the Claimant's employment with the Airline (whether by mutual agreement of otherwise) (including but not limited to correspondence, board minutes, board papers, termination agreements and termination payments).

c. Documents (not subject to any lawful privilege against production) with respect to any legal or quasi-legal proceedings between the Claimant and the Airline.

3

a. The Claimant and the Defendant shall each be entitled to inspect and ask for copies of all documents disclosed pursuant to order ... 2 during business hours on reasonable notice.

b. A copy of any document requested pursuant to paragraph 3(a) shall be delivered to the ordering party within seven days of the making of a written request in that regard in exchange for payment by the ordering party of the reasonable copying costs of same."

(Emphasis added)

4. In response to the order, SolAir filed a sworn statement by Billy Tyson, the chairman of its board of directors, made on 31 August 2011. He did not list the documents in the manner envisaged by r 11.7, but instead swore-
   

"2. Solomon Airlines Limited understands that it is obligated pursuant to the Order of His Lordship F Mwanesalua PJ perfected, signed and sealed on June 14, 2011 to disclose documents.

3. Solomon Airline Limited has in its possession and custody the documents and records contained in the Claimant's personal file kept by it, copies of entire contents kept therein are now shown to me and exhibited hereto marked "BT 1"

4. In relation to the Claimant's termination of employment with Solomon Airlines, various emails and records kept by Solomon Airlines Limited relating thereto are now shown to me exhibited hereto marked "BT 2"

5. One of the documents in exhibit BT2, "AIRS Report No. 39", contained the following statement:
   

"Flight was delayed due to Fuelling truck driven outside apron area and got stuck".

The exhibit also contained a photograph of the refuelling truck apparently stuck on the apron area.

Civil Case No. 418 of 2012

6. The defamation proceeding (Civil Case No 418 of 2012) was commenced by Carey against SolAir on 2 December 2012. Carey alleges that the statement in the AIRS Report and the photograph defamed him.
   
7. On 23 January 2013SolAir filed an application to have the claim struck out as frivolous and vexatious and an abuse of process. See r 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007. It particularised the abuse of process as follows-
   

"(1) (That) the respondent/Claimant herein in bringing this claim in effect seeks to usurp the lawful orders of the Court in HC-CC 09/11;

(2) That orders of the court in HC-CC 09/11 are not amenable to challenge by way of a claim but either by way of an application to set aside or appeal; and

(3) That the sworn statement in issue produced by the Applicant/Defendant and forming part of court documents in HC-CC 09/11 is absolutely privileged, hence no action for defamation can lie there from".

8. Faukona J dismissed the application with costs on 15 April 2014. His Lordship considered the principal of absolute privilege in defamation law, referring to two cases cited by counsel for SolAir, namely Dawkins v Lord Rokeby (1873) LR 8 QB 255 and Reti v Taulaga II (2002) WSSC 17. His Lordship continued-
   

" 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 thee was not claim of privilege document or given reasons for such privileged document. The sworn statement disclosing those documents never indicated as a privileged document. ...."

Discussion

9. According to the law of defamation, no action lies where words are spoken or written on occasions of absolute privilege. The principle is encapsulated in the following statement by four justices of the High Court of Australia in Mann v O'Neill (1997-1997) 191 CLR 2014 at 211-
   

"It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any documents published on an 'occasion properly incidental (to judicial proceedings), and necessary for (them)'."

(Emphasis added. References omitted.)

Later in their joint judgment their Honours said -

"..... [A]bsolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witness or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the 'safe administration of justice'."

(References omitted.)

See also Dawkins v Lord Rokeby (1873) LR 8 QB 255 and Reti v TaulagaII (2002) WSSC 17.

10. This type of privilege is quite distinct from the types of privilege from production which may be claimed by someone obliged to disclose documents. See Minter v Priest (1930) AC 558 at 579 et seq. Privilege from production is concerned with circumstances in which there is reason to preserve the confidentiality of communications. It includes legal professional privilege and privilege against self-incrimination.
    
11. Rule 11.7(a)(v) of the Solomon Islands Courts (Civil Procedure) Rules 2007 is concerned with disclosure by parties. It is concerned with privilege from production; it is not concerned with the doctrine of absolute privilege in the law of defamation.
    
12. Someone against whom an order for non-party disclosure is made may claim that one or more documents are privileged from production in reliance on the common law. In this case, paragraph 2(c) of the order made express provision for this.
    
13. In our respectful view, the primary judge erred in refusing to strike out the claim because SolAir had not raised a claim of privilege from production in response to the order for non-party disclosure. Absolute privilege is a defence to a claim in defamation; it could not have been claimed as a basis for non-disclosure.
    
14. The thrust of Carey's case in the defamation proceeding seems to be that SolAir published the defamatory material by filling the sworn statement (to which the AIRS Report and the photograph were exhibited in the High Court Registry knowing that it would be used in court proceedings and that it would be accessible to the public. (Statement of Case paragraph 5.) He alleges that it has been used in court proceedings involving him, namely Civil Claim No 009/2011 – which is of course the very proceeding in which the order for non-party disclosure was made.
    
15. The documents became part of the Public Record when they were filed in the registry. However, they did not thereby become immediately accessible to any member of the public. In Dobson v Hastings (1992) Ch 394 Nicholls VC said at 401-402-
    

"..(A) court file is not a publicly available register. It is a file maintained by the court for the proper conduct of proceedings .... Non-parties have a right of access to the extent, but only to the extent, provided in the rules."

Rule 20.15 of the Solomon Islands Courts (Civil Procedure) Rules 2007 provides that a party "or a person who has a proper interest in the proceedings "may ask the registrar for a copy of a document filed in the court. There is no provision giving unrestricted access to any member of the public. (see generally the useful discussion in JaconelliOpen Justice: A Critique of the Public Trial (Oxford University Press 2002) chapter 8 "The Reporting of Judicial Proceedings", particularly at 284,289.)

16. Carey was represented on the hearing of the application for non-party disclosure; he took no steps to have the order set aside or varied; there is nothing to suggest he applied for an order restricting or prohibiting the use of the documents (rr 11.38, 11.39). He then commenced the defamation proceeding alleging in effect that SolAir defamed him in complying with the order. He cannot succeed in his claim for damages for defamation, because the publication was on an absolutely privileged occasion.
    
17. In these circumstances, the order dismissing the application to strike out the proceeding was wrongly made.
    
18. This application for leave to appeal has raised important issues under the Solomon Islands Courts (Civil Procedure) Rule 2007. We consider that the applicant would be successful in its appeal if leave were granted.
    
19. Accordingly, the Court makes the following orders:
    
    1. Leave to appeal granted.
    2. Appeal allowed
    3. Order dismissing the application to strike out with costs set aside.
    4. Substitute order striking out the claim.
    5. Respondent to pay applicant's costs of and incidental to the application for leave to appeal, and its costs of the appeal.
       

Goldsbrough P
President of the Court of Appeal

Williams JA
Member of the Court of Appeal

Wilson JA
Member of the Court of Appeal