Solomon Star Ltd v Wale [2016] SBCA 10; SICOA-CAC 11 of 2015 (22 April 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands (Faukona PJ)
COURT FILE NUMBER:	Civil Appeal Case No. 11 of 2015 (On Appeal from High Court Civil Case No. 437 of 2012)
DATE OF HEARING:	18 APRIL 2016
DATE OF JUDGMENT:	22 APRIL 2016
THE COURT:	Goldsbrough P Ward JA Hansen JA
PARTIES:	Solomon Star Limited 1st Appellant & Editor of Solomon Star Newspaper 2nd Appellant V Matthew Wale Respondent
ADVOCATES: Appellants: Respondent:	Mr G. Fa'aitoa Mr. G. Suri
KEY WORDS:	Damages for defamation: assessment: aggravated and exemplary damages
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1- 6

JUDGMENT OF THE COURT

1. This is an appeal against the decision of the High Court in awarding damages for defamation to the respondent. No trial was necessary on liability as this was admitted, but a hearing was held to determine the quantum of damages. The claim as filed sought general and aggravated or exemplary damages, sum damages to be assessed. In correspondence figures of SB$2 million for general and SB$3 million for aggravated damages were raised by the respondent.
   
2. Whilst the appellants admitted liability prior to trial of the issue, they had previously filed a defence and it was only after a finding made in other proceedings that the material the subject of this claim was indeed defamatory that liability was conceded. As counsel for the appellants told this Court, liability was admitted following that other finding to save legal costs. Thus it appears to be the case that liability was not admitted for anything other than purely pragmatic reasons, certainly not because the appellants thought any apology for their actions was warranted.
   
3. The appellant, it appears from the notice of appeal, seeks to appeal against the whole of the judgment and order. Given that one aspect of the final order is the dismissal of the respondent's claim for aggravated damages, one is left to wonder if indeed the appellants seek to overturn that order.
   
4. The notice of appeal, only to be found in a supplement to the appeal book, sets out five grounds of appeal and seeks a reduction in the award made by the trial judge of SB$200,000 to SB$50,000. The five grounds of appeal are: -
   
   1. His Lordship the trial judge erred in law and fact in holding that the defamatory statements were worst and serious vis-à-vis the defamatory statements in the case of Sikua & Manele v Tradewinds Co Ltd HCSI CC 138 of 2009
      
   2. His Lordship the trial judge misdirected himself by placing an unreasonable and unfair emphasis on the impact on the respondent and or his feelings or reputation of the republication and rebroadcasting of the appellants' publication by other media outlets given the appellants had no power or control over such republication or rebroadcast.
      
   3. His Lordship the trial judge erred in law and fact in the context of this jurisdiction by not assessing the relevant evidence to properly determine the true extent of the respondent's claim of still suffering from reputational damage, distress and embarrassment both locally and internationally.
      
   4. Notwithstanding that the respondent was entitled to be awarded damages plus costs, His Lordship the trial judge erred in law and in fact in the context of this jurisdiction by awarding damages at a level which was prima facie excessive.
      
   5. His Lordship the trial judge erred in law and fact in the context of this jurisdiction by awarding damages to the respondent at a level when considered alone or together with costs was obviously punitive in nature and effect.
      
5. Judgment sought in lieu of the appealed judgment is a downward revision of the award of damages to SB$50,000 and costs on the appeal, so it may well be an error of drafting in the notice of appeal to seek to overturn the whole of the judgment or order. Whilst counsel for the respondent did not take the point, it is worth noting that by filing the appeal in the way it has been filed the entire judgment is open to review and that includes a conclusion that aggravated damages were indeed indicated.
   
6. We have set out the grounds of appeal in full so that it is clear that this appeal does no more than question the level of damages. It does not suggest that the learned trial judge made errors of principle, more that his findings of fact were not as they should have been. It is not suggested, for example, that the learned trial judge was wrong to look at other awards of damages for defamation and make comparisons. The conclusions he made in making those comparisons are questioned on the appeal, not the act of comparison itself.
   
7. Sikua & Manele v Tradewinds Co Ltd was such a case used for comparison purposes. That involved the publication of material suggesting that a prominent individual was less than properly behaved. It resulted in an award of damages of SB$75,000 after publication in a Solomon Islands newspaper, although not the same newspaper as in this case. The trial judge found that the defamation in this case was not only serious, but more serious than in the Sikua case. The appellant submits that the two instances of defamation are similar and should therefore attract similar damages.
   
8. Whilst no doubt the claimant in Sikua regarded the published material as most serious, the average bystander who heard or read about these allegations would not be reading about someone who it was alleged had sold his country's sovereignty to another nation state. He would be reading of someone who drank alcohol to excess and took out his anger on others in violent form. The learned trial judge summarised as: -
   

"From a view point of an ordinary Solomon Islander the defamatory statements premise on a family domestic violence, a social behaviour which globally is predominantly common. It is neither a rare occasion nor a new one. . . . ."

This is to be contrasted with: -

"collaborator, conspirator, traitor, criminal and corrupted person. To conspire with a foreign element to topple a legitimate and sovereign elected government. . . ."

It will, therefore, come as no surprise that we agree with the learned trial judge's finding when he arrives at the conclusion, as he did, that the defamation in this case was by far the more serious defamation of the two cases, and by a long margin.

9. Turning to the second and third grounds of appeal which relate to the injury to the reputation of the respondent and the notion that rebroadcasting and republication were taken into account, we will firstly deal with republication and rebroadcasting. It is clear that the appellants were, and are, not responsible for either republication or rebroadcasting and if it were the case that the learned trial judge had increased the damages for that then we agree that he would be in error. Careful reading of the judgment, though, suggests that he did not make such an error.
   
10. There is a difference to consider republication by others or rebroadcasting by others and acknowledging that an organisation must be cognizant of its own readership when publishing defamatory material. On this appeal there is material to establish both print and on line readership figures. Those figures are substantial. There is a concession that the appellants appreciate that Solomon Islands and matter that they carry in their newspaper are matters of interest not only within but also outside of Solomon Islands, in particular given the interest in the region following the region's substantial investment in the Reginal Assistance Mission to Solomon Islands.
    
11. In short, the appellants were aware of the possibility, indeed probability of the story they had published being taken up by others. Making such an assertion is not attributing liability for republication or rebroadcasting on the appellant. It is no more than a simple assertion of reality. Damages, should they include an element for intentional republication and or rebroadcasting would be at a much higher rate than the present award.
    
12. The true extent of the damage, distress and embarrassment both locally and internationally, as the notice of appeal refers to it, is set out in the evidence of the respondent in his sworn statement at page 34 of the Appeal Book. That evidence was not challenged at trial. There was not even a request to cross examine the respondent on that evidence. Thus the trial judge could accept that evidence. Indeed, unchallenged, he had little choice but to accept it as the basis on which damages should be assessed under that head.
    
13. "My daily consciousness of the perception that the defendants succeeded in creating the appearance that my loyalty is with a foreign power, namely, Australia; and therefore I am not wanted and cannot be trusted with the sovereignty of SI; and worst, is the allegation that I did it for money." is the unchallenged evidence on which the learned trial judge based his finding. We do not find that he erred in any way in his consideration of that evidence. It was not necessary, in the circumstances, to adduce further evidence. There was enough when, again unchallenged, the respondent summarised the defamatory statements as "serious, grave and devastating to me".
    
14. Given that the respondent's evidence on the point went unchallenged, we do not feel that there is any possibility that the learned trial judge fell into error in assessing the relevant evidence properly.
    
15. Grounds 3, 4 and 5 all make reference to the context of this jurisdiction. When the learned trial judge assesses damages he is required to make his determination in the context of this jurisdiction. Whilst awards in other jurisdiction may be considered for comparative purposes, it would be wrong to transplant an award elsewhere into this jurisdiction without careful analysis. We find that this is what the learned trial judge did and no error was made in contextualising the award.
    
16. Prima facie excessive says no more than just too high. In the absence of a reason why the damages are to be regarded as too high, this ground of appeal takes the matter no further.
    
17. The final ground of appeal suggests that the damages are punitive in nature and therefore not compensatory. It suggests that the award should be considered "alone or together with costs". We do not agree that it is appropriate to bundle together costs with the amount of the award. They are a different matter and their assessment does not go to the assessment of damages and vice versa.
    
18. Punitive damages are an example of exemplary damages. Exemplary damages may be appropriate when there is evidence of oppressive, arbitrary or unconstitutional action by the servants of government, or where there is evidence of a calculated attempt at making a profit from the defamation which may well exceed the damages payable. Aggravated damages are quite different. Aggravated damages may be indicated having regard to the conduct of the publisher towards the victim. As the learned trial judge correctly said, exemplary damages are not intended to be compensatory whereas aggravated damages are. A much fuller exposition of the terms can be found in the judgment of Lord Devlin in Rookes v Barnard [1964] UKHL 1; [1964] 1 All E. R. 367 beginning at page 396 and more particularly at page 407 H and then at page 410 F.
    
19. In this claim exemplary or aggravated damages were sought in the alternative. That, we believe, was mistaken given the difference between the two heads of damage. The learned trial judge indicated that he felt the claim for exemplary damages was inappropriate, having considered the profit element and then having further considered whether punitive damages should be ordered. He concluded that neither were indicated and moved on to aggravated damages. Given his findings as expressed in the reasons for judgment we do not find that, on quantum alone, the learned trial judge did indeed award punitive damages.
    
20. He finally determined that aggravated damages were not indicated. Whilst we are not inclined to disturb that finding, we feel obliged to point out that there are factors which could constitute aggravation in this case. In particular, we note beginning at page 135 of the Appeal Book and especially at page 137 the letter from counsel for the appellants contains statements that could very well be regarded as amounting to substantial aggravation. Aggravated damages come into play when taking into account the behaviour of the publisher towards the victim. Thus repetition of publication, refusal to apologise or retract all may be said to contribute to aggravation. Here the recital of evidence of other incidents is nothing but aggravation, in our view, such to justify a finding of aggravated damages. That is made worse by the material contained in the letter found at page 140 of the Appeal Book.
    
21. Whilst that material is before us on this appeal, we do not propose to interfere with the learned trial judge's finding that aggravated damages are not appropriate. He was in a better position than ourselves to arrive at that conclusion having had the evidence before him and submission on that evidence from counsel. Suffice it to say that if he had found in favour of aggravated damages we would not find ourselves in disagreement with him.
    
22. It is apparent that this award is higher than any previous award of damages for defamation in this jurisdiction. Given that, the learned trial judge arrived at the conclusion that this was the worst example of a defamation case that he had encountered in this jurisdiction, that fact is unsurprising. Whilst we do not find counsel's comparison of the relative maximum penalties for various criminal offences useful, and would not suggest that such an approach be followed, the defamatory material complained of amounted to treasonous conduct, and the penalty for treasonous conduct is invariably higher than any other criminal offence.
    
23. In the event, this appeal is dismissed with costs.
    

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Goldsbrough P

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Ward, JA

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Hansen JA