Togamae v Tuki [2021] SBHC 69; HCSI-CC 430 of 2016 (8 September 2021)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Togamae v Tuki
Citation:
Date of decision:	8 September 2021
Parties:	Whitlam Khalegedi Togamae v Freda Tuki (Aka Tau)
Date of hearing:	4 May 2021
Court file number(s):	430 of 2016
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	Consequential to Orders (1) and (2), the claim is hereby dismissed. Costs of this application are to be paid by the Claimant to the Defendant on standard basis, if not agreed.
Representation:	Mr. P Teddy for the Claimant Ms L. Ramo for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Legal Practitioners Act 1987 S 8 (2), S 9 and 10, Solomon Islands Bar Association Act S 9
Cases cited:	Heydary Hamilton PC V Muhammad [2013] O.J No.3601 Solomon Airlines V Carey [2014] SBCA 34, Sussman V Eales [1985] 33 CCLT 156,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 430 of 2016

BETWEEN

WHITLAM KHALEGEDI TOGAMAE
Claimant

AND:

FREDA TUKI (AKA TAU)
Defendant

Date of Hearing: 4 May 2021
Date of Decision: 8 September 2021

Mr. P Teddy for the Claimant
Ms L. Ramo for the Defendant

DECISION ON PRELIMINARY POINT OF LAW

Faukona, DCJ: An application for determination on a preliminary point of law was filed by the Defendant on 19^th March 2021.

2. The Defendant by the application raises two preliminary issue of law for determination. One is whether or not the letter co-authored by the Defendant dated 7^th September 2016 was published or constitute publication. Secondly whether or not the letter in issue is covered by absolute privilege.
3. The facts that set the cause for this action premise on a letter written by the Defendant and another Mr Kokomane (deceased) on 7^th September 2016.
4. The letter was addressed to the Attorney General and copied to seven dignitaries including the Chief Justice.
5. The Defendant is an owner of a felling license issued by the Commissioner of Forest to fall and export merchandized trees from raerade customary land in Isabel Province. The second author of the letter was the landowner himself.
6. The logs concerned were tubi logs (prohibited species) which were harvested and exported. The proceeds were somehow kept in the Solomon Islands Central Bank. Whilst waiting for a decision from the High Court concerning the tubi logs, the letter was written alleging that the Claimant used the names of his wife and another women Mrs Bridged Kiniris to file an application in the Magistrates Court to obtain and did obtain by order of the Court withdrew the amount of $317,000.00, without informing the High Court and two other women for using their names to withdraw the funds.
7. The letter therefore kicked up a stinct with the Claimant who filed for defamation and sought reliefs in terms of general damages, aggravated damages, with interest.
8. The Defendant attributed in her defence that the letter was an absolute privilege which she intended that those who received the copies of the letter are those who have interest to know the outcome of the High Court decision in relation to the tubi logs which is a matter of subject before the Court.
9. It ought to be noted that the protection of absolute privilege provides a complete defence to any civil claim arising from the complaint, including a defamation claim^[1].
10. Further, the author of the book in para.9 above stated that privileged occasion exists even if the complaint is found to be without merit and is dismissed at an early stage before there being any need for an inquiry hearing^[2].
11. The letter by nature was a complaint against the Claimant who was practising lawyer and the principle of Whitlam Togamae Lawyers. The complaint letter was intended to inform the responsible authorities about the behaviour of the Claimant by his act.
12. From deducing the tone of the letter the Defendant had never been advised of which Office is responsible for disciplining lawyers should they behaviour and actions called into question.
13. As near as it could be perceived, the Attorney General who the letter was addressed to would be about the right person. He was the Chairman of the Disciplinary Committee established by section 8 (2) of the Legal Practitioners Act. The Chief Justice is a member and the Deputy President of Solomon Islands Bar Association was also a member of that Committee.
14. The Disciplinary Committee whose functions are recognized under Sections 9 and 10 of the Legal Practitioners Act did undoubtedly and without any issue performed quasi-judicial functions.
15. By informing three members of the Disciplinary Committee which exercises quasi-judicial function, is it a defamation which defamed the character of the Claimant by sending of copies to those three members.
16. What is publication then in considering whether the Defendant had committed a defamatory act? Reference was made to the case of Carey V Sumsum of which I adopted the definition of publication in the NZ Dictionary which states; “issuing of a book, newspaper, etc, to the public or instance of making something publicly known.
17. This definition gives rise to another question, whether the membership of the regulatory body, as quasi-judicial Committee fixed or unlimited? The notion is, if the publication is aimed at the members of the regulatory body and non-other, then defamation ought to be further redefined so as to accept limited publicity from public media which attract views from other persons apart from the Committee. In any event the scope of defamation act may vary from one set of fact to another.
18. In this case publication may fall short and may become redundant, when consideration is focussed on defence on absolute privilege.
19. In the paper I referred to in paragraphs 9 and 10 above, it further states by providing qualification, “provided that the Defendant can established that he or she had a duty or interest to communicate information to the recipient and the recipient has a corresponding legitimate interest to receive the information.
20. In this case the Counsel for the Claimant apparently accepts that communication can only be made to an appropriate quasi-judicial body as the Disciplinary Committee, pursuant to S. 9 of the Solomon Islands Bar Association Act, but not others.
21. That makes the letter of complaint is not what was said by parties, witnesses, legal representatives, by a judge in the course of a judicial proceeding. However, the Court of Appeal in the case of Solomon Airlines V Carey^[3] the court clearly stated, “by extending the defamation to any documents published on an occasion properly incidental to (judicial proceeding) and necessary for them”. In this case the letter of complaint authored by the Defendant could fall within the extended arm of the law expressed in Solomon Airline case. However, in a paper written by Nikoley Y. Chsherbinin which referred to the case of Heydary Hamilton PC V Muhammad^[4], which the Court stated on page (1) paragraph 3.
    • “Given this tort is a tort of intention, in order to find liability Heydary Hamilton must be able to demonstrate that Schor intended to induce the Muhammed Group to breach its retainer agreement. Without knowing whether Schor created a reason to procure the termination of the retainer or merely pointed out a reason the element of intention necessary cannot be made out”.
22. It therefore turns on the fact whether the letter of complaint has an element of intention inscribe in it. If so the Claimant ought to demonstrate that the letter intended to defame him by copying to other authorities who are not entitled to receive.
23. This brings as back to the question is it defamatory to copy the letter of complaint to other authorities. It has been acknowledged that a suit for defamation particularly targeted those whom the copies were sent to. This poses a question, are these Offices have legitimate interest to receive the information therein; or were they disinterested parties?
24. The background of this case emerges from logging operation which the Defendant was a license holder. It is not an issue in this case that the prohibited species were logged and exported. That was an issue, perhaps in another case. The issue in this case are proceeds which were held by the Central Bank and were taken by the Claimant. It is not argued or denied that the proceeds were taken by the Claimant from its safe keeping lock.
25. From facts and submissions, it is noted with satisfaction that the proceeds were kept by the S.I Central Bank by orders of Court when it was removed by the Claimant. So an Officer of Central Bank who is a manager of Currency and Banking who may have some responsibility for keeping the money was informed by a copy of the letter of what had been done. I do not seem to see that as defamatory but an information to bring into attention how the money was removed out from the custody of that office. From reasonable sense, that Office has legitimate interest to receive it, and where possible provide an answer.
26. The Commissioner of Forest was another Public Office a copy of the letter of complaint was sent to. The Commissioner in fact was a party to the High Court Civil Case No. 113 of 2014 and Civil Case No. 29 of 2013. It was the Commissioner of Forest who authorized the payment to be kept by the Central Bank. It is reasonable that that office should be notified of the foregoing circumstances and so a carbon copy was sent, it is not defamatory in nature.
27. Again a copy of the letter of complaint was sent to Southern Wood Trading Company. The company was a party to those cases of which a decision or ruling had not been delivered yet at that time. It is well within proprietary rights that Southern Trading Company is entitled to be made aware of the Claimants activities and in respect of the proceeds kept by the Central Bank of Solomon Islands.
28. What about Sol-Law is it far too remote of having interest in the matter in particular the proceeds in which the complaint letter was concerned. Of course yes definitely in the affirmative. Sol-Law was the law firm that represented raerade customary landowners which the co-author Mr. Kokomane signed. So Sol-Law’s position is confirmed by virtue of a paper authored by Karen Ziniel which quoted the case of Sussman V Eales^[5], which the Counsel for the Claimant referred to in his submissions.
29. In the same paper the author, at page 2, paragraph 2, pointed out that “qualified privilege provides a complete defence provided the Defendant can establish that he or she had a duty to communicate information to the recipient and the recipient has a corresponding legitimate interest to receive the information. However, the defence of qualified privilege will fall where the defamatory comment was not reasonable and germane to the occasion, or where a plaintiff can establish malice”.
30. In the current case the letter of complaint was in fact addressed to the Attorney General as the Chairman of disciplinary Committee to consider issues affecting practising lawyers. It was copied to two other members of a disciplinary committee who performed quasi-judicial function and who have powers to discipline the Claimant if allegation against him is proved by evidence. They comprise the body which is entitling by law to receive complaints against practicing lawyers.
31. The second category of people the letter was copied to were officers I have alluded to by narration above. They are offices which have legitimate interest to receive the information. Some if not all, are directly associated with the proceeds obtained out of logging operations. It may form as news to some or amazed at the action. In any event the letter gave them information which they ought to know the occurrences.
32. In conclusion the letter of complaint was in fact sent to responsible authorities who have legitimate interest to receive such information. It was not a publication in public media newspaper etc, but directly to those who have interest.
33. I find the letter written by the Defendant is not defamatory in any sense but a complaint to the rightful authorities for their information. Therefore the Defendant is protected by absolute privilege against the defamatory claim, which provided a full defence to the claim.

Orders:

1. Order declaring the letter dated 7^th September 2016, co-authored and co-signed by the Applicant and Mr. Ezekiel Kokomane (now deceased) does not constitute a publication and is accordingly not amenable to an action for defamation.
2. Order by declaring that the same letter dated 7^th September 2016, is a complaint against the Claimant to a quasi-judicial body and copied to other authorities who have legitimate interest to receive information, therefore covered by absolute privilege, accordingly, it is not amendable to an action for defamation.
3. Consequential to Orders (1) and (2), the claim is hereby dismissed.
4. Costs of this application are to be paid by the Claimant to the Defendant on standard basis, if not agreed.

The Court.

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^[1] Article by Karen Zimmer on 25 March 2014, Making Complaints to Regulatory Bodies with the Protection of Absolute Privilege.

^[2] Ibid (1).
^[3] [2014] SBCA; SICA; SICOA-CAC 17 of 2014 (17 October 2014).
^[4] [2013] O.J No. 3601
^[5] [1985] 33 CCLT 156; [1986] 25 CPC (2d) 7,