Carey v Sumsum [2019] SBHC 93; HCSI-CC 290 of 2011 (6 November 2019)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Carey v Sumsum
Citation:
Date of decision:	6 November 2019
Parties:	Stephen Alan Carey v Ron Sumsum
Date of hearing:	24 July 2019
Court file number(s):	290 of 2011
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	The Claim is hereby dismissed in its entirety Costs incidental to this hearing be borne by the Claimant and payable to the Defendant
Representation:	Mr. M Pitakaka for the Claimant Mrs L Ramo for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 2007, R17.74, 17.75 New Zealand Pocket Dictionary [3rd Edition 2005, Reprinted in 2012
Cases cited:	Plato Films v Spiedel [1961] AC 1090

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 290 of 2011

STEPHEN ALAN CAREY
Claimant

V

RON SUMSUM
Defendant

Date of Final Submission: 24 July 2019
Date of Judgment: 6 November 2019

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

JUDGMENT

Faukona, PJ: This is a defamation claim against the Defendant filed by the Claimant on 1^st August 2011. The claim sought (a) damages for defamation including (b) compensation (c) aggravated, punitive, and exemplary damages to be assessed, (d) interest before and after judgment (c) costs and (e) interest on costs pursuant to Rules 17.74 and 17:75 of SI (Civil Procedure) Rules 2007.

2. The Claimant alleged that the defamatory statements were contained in an e-mail sent by the Defendant and addressed to the Claimant on 24^th March 2011. The e-mail was in a form of a letter and stated as thus; Dear Sir, Following up on our discussions, Solomon Airlines is preparing a second round of audits on your Henderson Airport Operations to continue the joint effort in improving OTP in relation to delays caused by South Pacific Oil limited. Solomon Airlines understands that we both will face challenges due to technical/systems failure, however it’s the interest or attitude by SPOL towards finding a solution that is most of concern to us.

AN EXAMPLE.

3. As recent as yesterday your pump broke down whilst refueling our Islander (H4 – AA1) for 7:00 am ETD for Auki, both our engineering and operations staff made contact with your airport office to seek alternate plans in meeting our OTP requirements. The response we got was outright rude and most unhelpful.
4. Mr. Steve Carey Capt. Aumanu that the pump would take approximately 1 hour to fix and Capt. Aumanu advised Gloria (Ops Supervisor). Gloria then called Mr. Carey’s and suggest to take 2 drums to the aircraft and we fuel by portable pumps as we do in the outer ports as this would minimize the delay. Mr. Care’s response was that this was not necessary as it would take the same time. Knowing that it normally takes 30 minutes to refuel by drum, Gloria further queried whether waiting for the pump fixing would really be the best option considering delay impact on our business. At this point Mr. Carey hung up the phone on Gloria. Gloria rung the same number but no one picked up the call. She then rang and asked to speak to Mr. Steve Carey as she wanted to know why he hung up the phone on Solomon Islands as your client. The local staff member simply passed on a message from Mr. Carey advising as that no alternate option, since, it was now not possible to go any further with finding better solutions to this, Solomon Airlines reluctantly waited and the Islander was fueled by SPOL at 8:14am and departure for Auki at 8:31am (1 hour and 31 minutes DELAY).
5. Sir the above is just an example of what are enduring to a point where now my airport managers and executive head of operations have ceased all effort in dealing with Mr. Carey. In this letter to you I am not complaining about the mechanical breakdown or the delay caused for that matter. Unfortunately, for our business relationship, I can no longer accept the lack of commitment by Mr. Steve Carey in addressing our OTP issue. We are also concerned that due to his past differences with Solomon Airlines he may be in a mindset of vendetta against the Airline.

URGENT OFFICIAL REQUEST – SOLOMON AIRLINES LTD.

6. Due critical operational need for addressing our OTP issue - Solomon Airlines can no longer see progress with Steve Carey as head of SPOL Airport Office. We are desperate to put closure on pending issues and can no longer accept dealing with Mr. Steve Carey. Solomon Islands Ltd. request that South Pacific Oil Ltd remove Steve Carey from all airport premises immediately. Solomon Airlines as an AOC holder also now considering security measures for protection of all our assets at the airport due to potential risk of sabotage.

Note.

7. Mr Ben Kera, Director Civil Aviation is also advised of this request from Solomon Airlines Ltd to South Pacific Oil Ltd (SPOL).

Sincerely Solomon Airlines.
Captain Ron Sumsum:

8. From facts the email was written by the Chief Executive Officer of Solomon Airlines and was addressed to the Claimant and copied to Board Members of SPOL, and Director Aviation Mr Ben Kere. At that time of writing and sending of the e-mail to the Claimant, Captain Sumsum was the Chief Executive Office of Solomon Airlines, and Mr Steve Carey, the Claimant, was a qualified Aircraft Engineer and Pilot, was employed by South Pacific Oil as Manager Aviation and Ag Development.
9. The Defendant in his defense denies the contents of the statements were false and defamatory, however, pleaded the defense of justification.

Issues:

10. The major issue for determination is whether the Defendant’s email on 24th March 2011 and an attachment of another email on 11^th March 2011, sent to the Claimant and copied to Board Members of SPOL contain materials that defamed the Claimant?

The Law:

11. The law in defamation concerned with the reputation of a person^[1]. Lord Denning defined reputation as “a man’s character, it is sometimes said is what he in fact is, whereas his reputation is what other people think he is”.
12. The pertinent point to note is did the Defendant publish the defamatory materials in a public media which may have attracted views by other persons apart from the Claimant and those the email was copied to.
13. In argument, the Counsel for the Claimant submits that to proof defamation the Claimant must establish that the Defendant published the defamatory materials for others to see, which are false. The word “publication” is used by the Claimant as a mode of getting the defamatory materials to other persons.
14. The law also requires that the ordinary meaning of the words contained in the published defamatory material complained of disparage the Claimants reputation.
15. Once the Claimant established that the Defendant has published the defamatory material complained of, then the onus therefore shifted to Defendant to prove that the imputations were true. This is to rebut the presumption of falsity.

Publication of the defamatory materials:

16. The question to pause is, was there a publication of the alleged defamatory materials? The Claimant in his submissions seems to adopt and confide with the word “publication” of the material emails in the ordinary sense of publication. In reality there is no evidence of any such publication done for the purpose of public view and attention.
17. In the New Zealand pocket Dictionary^[2], it defines publication as issuing of a book, newspaper, etc to the public, or instance of making something publicly known.
18. In applying that definition to the manner in which the Defendant had issued the emails, seem to fall short of the requirement. There is no publication for public view. In fact the emails were sent to the authorities mandated to receive any such emails; letters or any other information within the bounds of the contractual companies. Indeed there is no publication for public view at all in any manner.

The attached email:

19. The other issue of pertinent nature is in respect to the second email of which the Defendant attached a copy of it to his email of 24^th March 2011.
20. The fascinating disposition is that the author of the attached email was different and not the Defendant, and the route that email was sent was the same as the email the Defendant sent. Despite no uniqueness the author of the first email was not sued at all. He was not a party to this case either.
21. Whilst, the Claimant may have the right of choice as to who to be sued, it would be incomplete in my opinion, to allow the author of the attached email, which channeled through the same course, not to be party to this case but rather prefer the Defendant to bear the responsibility, and be liable for attachment. There is no logic at all by attaching the email the Defendant could be punished alone if found guilty. It would be cumbersome to note that the author of the attached email which had been received by the same authorities could escape with bad excuses.
22. It makes no sense if the Defendant could stand alone to answer a claim for defamation whilst the author of the other email was excused, or was not intended to be sued as party in this proceeding. In my opinion the case against the Defendant in respect of the attached email was in completely unfounded. Therefore, I must decide that the Defendant cannot be responsible for any element of defamation contain in that attached email.

Was the email contain false and defamatory information.

23. The fundamental logic which ought to be acknowledged that the Claimant must proof the emails contained elements of defamation and there were no truth in them, in particular the email authored by the Defendant. If the Claimant fails to proof on the balance of probability then the onus can be shifted to the Defendant who relies on the defense of justification to proof the falsity of the statement.
24. The first issue on the email is in regards to delay by South Pacific Oil Limited Airport Operation in terms of OTP. It is not clear whether the Defendant meant an audit to be done, or rather a review of South Pacific Oil operation at Henderson. The core fact of the statement lies in a question whether by mentioning an audit work disparage the reputation of the Claimant. Auditing work in any organization private or public is a normal process that organization must undertake to justify its performance for a certain period. I do not think it disparages the reputation of the Claimant nor does it demean him either. Or a word that implicated that public at large who knows the Claimant personally would think that the character of the Claimant was subjected to controversy and therefore questionable.
25. Auditing of accounts is a normal process that occurs in organizations. To mention it in this case makes no harm, neither created threat to the Claimant’s character. It is not an invented policy to discover edited cause of delay in refilling aircrafts. Whether the audit work was carried out or not, is an activity annually occurs and not a defamatory word that will disparage the character of the Claimant.
26. On the Second issue of being rude to a person directly associated with the service provided, in my perception was an action normally occurs in a work place. That can be easily sorted out by conveying a word sorry, shake of hands and that would resolve any animosity or ill feelings.
27. By determining the first and second issues resulting in the emails complained of were in fact not published in a public media, but were sent to authorities within the two organizations who were bound by the contract of service, who were entitled and mandated to receive such emails.
28. As clear as it can be, there is no element of defamation. Even if Gloria was called to give evidence to establish any act of rude behavior in office, is an issue I do not think require legal litigation under defamation. Whether it is proved or not is a minimal behavior that can be addressed at business level rather than in the High Court. I have read the sworn statement deposed by the Claimant filed on 14^th September 2018.
29. If the issue is such being bulky and which prompted the termination of the Claimant then the proper route to resume to is through the Trade Dispute Panel. Otherwise it is a minimal level matter which can be sorted out by individuals concern.
30. The third issue complained of is lack of commitment to address Solomon Airline “On time Performance”. The Claimant has denied it as noted in his sworn Statement. However, mere denial is not a defense. The Claimant who carries the burden on the balance must proof. As I would reiterate, only when the Claimant has proved an allegation, then it is necessary to consider any evidence adduced by the defendant to justify what was alleged is true.
31. In this case the Claimant fails to proof that he lacked commitment in addressing time performance by South Pacific Oil which employed him.
32. The tactic adopted by the Claimant is that once he denied the allegation, he expects the Defendant to proof the truth of the matter. As a profound law existed from time memory that he who alleges must proof. The Claimant cannot assume to shift the legal onus prematurely but until he has fully established the allegation, otherwise is baseless.
33. It is eminent there being no evidence at all to proof defamation by the use of those words attracted public or friends to question the character and the integrity of the Claimant as compared to what they previously acknowledged. Therefore the claim for defamatory damages under the particular issue is not worth it.
34. On the issue of past differences with Solomon Airlines, however, the Claimant has accepted he was terminated after completing a documentation which resulted in Solomon Airlines obtaining Part 145 was approved.
35. From his sworn statement the Claimant did not reveal the reason for his termination. Perhaps that background adds or brought about reflection which the email may have dwelled upon.
36. In any event the Claimant must adduce evidence to establish that any reference to past event has downgraded his integrity which public or those who know him would assess a vast disparage of character of the Claimant. In this case nothing has leaked out into public domain. The emails alleged to have contained defamatory statements were sent to Officers of the South Pacific Oil Limited Deport who were eligible, to receive any such emails as a company that employed the Claimant.
37. It is only relevant to dismiss any defamatory claim under this issue.
38. On the final issue, the Claimant denies that as a result of the information conveyed to the SPOL, as an employer, he was eventually terminated. The fact is that there is no evidence accounting for the reasons for the Claimant’s termination. It would be proper if the Claimant could expound on this to reveal the truth. If he was terminated there must be reasons given. Those reasons are not available.
39. The Claimant cannot rely on the Defendant to proof why the Claimant was terminated. It was information personally confines to the knowledge of the Claimant, and him alone will furnish an answer.
40. After all every one must acknowledge the Claimant was finally terminated. Whether his termination was based on that information in the emails, that cannot be calculated. But should the Claimant persisted of his righteousness then legal litigation is open to him to file a Civil suit claiming judicial review of the decision taken to terminate him.
41. It may appear the Claimant has failed to resume or utilize such rights. Therefore it could be perceived as him taking no issue with the termination and the reasons for termination.
42. If therefore, the content of the emails, or part thereof, were part and partial of the reasons why the Claimant was terminated then an inference can be drawn that some of it, not all the information provided in those emails had contributed to the termination of the Claimant. Therefore, one legal conclusion which can be drawn is that those or some of those information’s provided in the emails were true.
43. It is quite difficult to particularize which information is not true and which is true. However, the overall consideration which outnumbered any particularization is that the emails were not published in a public media. All that were provided were domestically conveyed within two corporate bodies which were bound by an agreement of service under heading On Time Performance (OTP).
44. Therefore, over-rally the Claimant has failed to perform his legal duty to proof his case on the balance of probability. Hence, it need not by any legal basis for me to consider defense by justification. I must therefore, as an appropriate conclusion dismisses the claim with costs.

Orders:

1. The Claim is hereby dismissed in its entirety.
2. Costs incidental to this hearing be borne by the Claimant and payable to the Defendant

The Court.

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^[1] Plato Films v Spiedel [1961] AC 1090 at 1138 per Lord Denning.
^[2] 3^rd Edition 2005, Reprinted in 2012 9 (latest)