Dettke v Tradewinds Investment Company Ltd [2016] SBHC 144; HCSI-CC 237 of 2015 (6 September 2016)

IN THE HIGH COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN: HEINZ HORST DODO DETTKE - Claimant

AND: TRADEWINDS INVESTMENT COMPANY LTD - 1^st Defendant

TAROMANE MARTINE - 2^nd Defendant

EDITOR OF THE ISLAND SUN NEWSPAPER - 3^rd Defendant

Date of Hearing: 31 August 2016
Date of Judgment: 6 September 2016

G. Suri for the claimant
G. Fa’aitoa for the respondent

Claim for damages for defamation

Brown PJ:

These proceeding for damages for defamation were commenced following a front page article in the “Island Sun” new paper dated 4^thMay 2015. In that article, headed “ANZ, BSP said to be still entertaining logging companies”, the source of the story claimed that the current Minister of Forestry and Research, Bobo Dettke “is believed to be involved with these logging companies in trying to bring in the bank and to take control of the logging industry in our country”.

The story intimated that the logging companies were working together in a plot to take over the industry, and the possibility of “these logging companies exploiting other logging companies (who will have to pay a small charge to the Minister and other companies for using their banks) in certain”.

The defamation pleaded in the statement of case was that collusion with logging companies to bring in a new bank was an abuse of his position as Minister of the Government; suggested that the claimant was a dishonest and corruptible character; and not fit to be a member of the Parliament or a National leader. No truth of the matters published was pleaded in defense, rather on the 5^th August 2016, by consent, summary judgment for liability was entered and the claim was set down for assessment of damages.

In support of his claim for damages Mr. Dettke filed a statement on the 31^st May 2015. He claimed for reputational damage, distress and embarrassment he had and will continue to suffer and the effect on his reputation as a Parliamentarian and National leader, as well as damage to his trade or business reputation and “good will”. He earlier stated he was a business man well known here and in the Republic of Vanuatu. Of course, I may presume him to be of good repute.

A further affidavit in support by the Parliamentary member for the Aoke Langalanga Constituency Malaita Province, Mr. Matthew Wale was filed on the 11^th August 2016. He says he read the newspaper article and saw it as a very serious allegation against the claimant, as a Minister and Member of Parliament. He said that his opinion of the claimant, upon reading the article, was that the article was true and so he began to doubt the suitability of the claimant to continue as a Minister of the Crown. He went on to say, however, since from the time of the article, no action or criminal proceedings were taken to prove the allegation. He did learn that the claimant was removed as Minister for Forestry,
“I guess it was due to public pressure generated by media”.

I should say the supposition concerning cessation of the Member as a Minister of the Government is just that, for there is no evidence upon which that opinion was based, nor is it clear whether the deponent, Mr. Matthew Wale reached his conclusions, knowing the claimant at the time of the article, his knowledge of him caused him to reassess or to confirm his opinion of him or since he did not know him, his concern was solely based on the article published. The statement has not helped me save to show the claimant has this others’ support for his claim.

Of course, in the circumstances, were the Government to have acted as a direct consequence of the allegations in the newspaper report of the 4^th May, it may be seen as confirmation of the critical nature of the allegations, or, irrespective of the truth or otherwise of the allegations, the Government had considered,[ because of the critical inferences to be drawn by the article, that the Minister was acting beyond his portfolio], it was in its best interest to have a change of Minister. Whether for one or other reason whilst currently a Member of Parliament for North West Guadalcanal Constituency, the Claimant is no longer the Minister for Forestry. Reason for that change was not suggested nor shown.

In the absence of evidence concerning the portfolio change I am not prepared to attribute the change to the newspaper report or speculate why. The claimant did, however, become Minister of Tourism. Since this Government has taken office, there have been three Ministers of Forestry, the claimant, the Hon. Parapolo & Hon. Laore.
Apart from the material I have touched on, there is a paucity of evidence going to the actual effect on the claimant, whether in his role as a Parliamentarian or business-man.

There is however, evidence from the claimant of the distress and embarrassment he had felt and suffered.

It is difficult to assess damages on the basis of any loss of status in these circumstances, in the absence of the reasoning of Cabinet when considering Ministerial changes. These are not matters (quite correctly) for the public but matters for Cabinet in its discretion. With the transfer to that of Minster for Tourism, however, there would not appear to have been objective material loss, but on a subjective view, by the claimant, he may have seen such transfer as reflecting on his status. I am not to know.

There is no claim for aggravated damages. In fact, following the institution of proceeding, an apology was published by the same newspaper, retracting each and every untrue or incorrect statement made by the original story. The apology was by the Director of Tradewind Investment Co Ltd trading as Island Sun Newspapers and by the editor and staff. The apology was addressed to Honourable Dettke and his family for any hurt or harm caused him or his family.

Mr. Suri, in his address, said the apology came too late, some 3 months after the damage, by publication, was done. This argument is a factor for aggravation, if I am satisfied the delay came about through a positively interested or the indifferent act of the newspaper, rather than sheer ignorance, for the apology did not follow upon the solicitors’ letter of the 6 May, putting the newspaper on notice of the defamation and the risk of court proceedings. Correcting mistakes of this nature may be the case in a perfect world but it is apparent, from the contemporaneous apology coupled with the defendant lawyers’ letter seeking to compromise the claim, the publisher acted when it would seem, he had proper legal advice in relation to the risk when facing an action for defamation. The apology was on page 3 of the paper published on the 4 August 2015 and I am satisfied, would have been apparent to all readers of the paper on that day. The circulation of the newspaper about Honiara is some 1300 copies per week, so while papers are shared amongst the population, I am unwilling to hazard a guess about the number of people about Honiara who may have been influenced by the report and whose opinion of the claimant was changed detrimentally as a consequence. There are many thousands of people living and working about the city. The fact of the matter, however is the effect in this case on the feelings of the complainant.

The apology, with the consent to summary judgment I am satisfied, negates any argument over aggravated damages.

The solicitors’ letter, of the 4 August 2015, addressed to the claimants’ lawyer, offered to settle the claim for $ 20,000 plus costs. I am unaware of any course of negotiations but by written submission, handed up in court, that offer has been increase to $ 100,000 plus costs.

In this case, there is no real need to revisit the facts of numerous other cases with a view to determining the quantum of damages. The case to which counsel refer as assisting the Court is that of Goh v Yam.^[1] The former Chief Justice, then Muria ACJ, said his task:- “ was to assess damages to be awarded to the plaintiff bearing in mind that the award must be adequate compensation in the sense that it must be fair to him in the circumstances of the case and that such award is appropriate in the context of Solomon Islands.” And he went on to say:- “it would be wrong .. to pluck a standard of award from another jurisdiction and adopt it in this country without any rational comparison.”
There can be no rational comparison with the case referred to, Solomon Star Ltd v Wale^[2] where the Court of Appeal had occasion to speak of defamatory material complained of amounting to treasonous conduct when confirming the High Court’s award of damages in the sum of $200,000.

Nor do cases outside the jurisdiction help in arriving at a monetary amount when the differences of domestic production through salaried endeavors make comparison worthless and the differences in societies’ mores, even about the country, compound the risks if seeking guidance from such cases.

A range of awards cannot assist in arriving at a sensible mean in this instance for there are insufficient cases to afford the court assistance. One case by an aggrieved Member of Parliament, the Hon Derek Sekua and Mr. Jeremiah Manele against this newspaper in 2010 is helpful for that it also deals with the publication of a libel, although the libels were threefold, the first by words in an article, the second by editorial and to compound the offence, by cartoon published the next day. In that case^[3], an award of $75,000 was made for damages.

While Mr. Suri counsel for the claimant, has referred me to other cases beyond this jurisdiction, this case may be distinguished for the reasons I have given.

It seems the offer of $100,000, in the context of Solomon Island monetary remuneration for a Member of Parliament, leaving aside allowances [some $150,000 per annum] would not be inappropriate in this case. The greater number of the population lives in the Provinces, for instance, and rely on subsistence farming. This award may seem a lot of money to most people. But it needs to assuage the hurt feelings of the complainant and act as a warning to others to be careful in their dealing with men reliant on their standing in the community for their position in Government.

Whilst it may be said the Banks named may be offended by the publication, so far as I am aware, no steps have been taken to apology to those Banks, whose businesses are reliant on the good-will of their customers.

This case did not go to trial. The apology was published. In all these circumstances, the amount of $ 100,000 may be seen to be an amount that would justly compensation the claimant. The liability of the three defendants was conceded by the entry of the summary judgment as to liability. There shall accordingly be judgment for damages for defamation in the sum of $100,000 against the defendants jointly and severally with costs in favour of the claimant to be agreed or taxed.

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BROWN J

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^[1] [1993] SBHC 43; HCSI-CC 154 of 1989
^[2] [2016] SBCA 10; SICOA-CAC 11 of 2015 [22 April 2016]
^[3] Sikua anor v Tradewinds Investment Company Ltd anors [HC- SI Civil Case 138 of 2009 judgment of Chetwynd J]