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Carey v Azeem [2012] SBHC 50; HCSI-CC 9 of 2011 (1 June 2012)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Chetwynd J)
Civil Claim No. 9 of 2011

BETWEEN

STEPHEN ALLAN CAREY
Claimant

And

SAYADA SARAH AZEEM
Defendant

Mr Pitakaka for the Claimant
Mr Katahanas for the First Defendant

Date of Hearing: 17th April 2012
Date of Judgment: 1st June 2012

Ruling on preliminary issue

1. South Pacific Oil Ltd is a company trading in Solomon Islands. On Friday December 10th 2010 the company held a planning meeting at Lennon's Hotel in the centre of Brisbane. Both the Claimant and the Defendant were present at the meeting. From the minutes it is apparent the meeting was rather heated at times and the Claimant alleges words spoken about him by the Defendant were defamatory. That is the basis of the claim for slander. The minutes of the meeting were later circulated and they recorded the spoken words complained of and that is the basis of the claim for libel. The case came before the court for a ruling on the preliminary issue of whether words spoken in Australia could form the basis of a claim for slander in Solomon Islands.

2. Both Claimant and Defendant argue the claim based on slander, the words spoken in Australia, can be heard in this jurisdiction. Faced with that unity or argument a decision from the court should be quick and easy. Were it so simple. The parties, whilst in full agreement the tortious act can be dealt with in Solomon Islands, are completely at odds as to the consequence of the decision. The Defendant argues the law which applies should be Australian law whilst the Claimant says it should be Solomon Island law. The difference is that in Queensland the Defamation Act of 2005, the law favoured by the Defendant, has a provision at section 33 which introduces the defence of triviality. There is no such defence in Solomon Islands either under the unamended English Defamation Act of 1952 or the common law.

3. The leading English case on the "conflict of laws" is perhaps Boys v. Chaplin [1971] A.C. 356; [1969] 3 W.L.R. 322; [1969] 2 All E.R. 1085, H.L.(E) which was considered in the later case of Red Sea Insurance Co v. Bouygues S.A. [1995] 1 A.C. 190 [P.C.] where their Lordships' judgment was read by the late President of our Court of Appeal, Lord Slynn. Having said Boys v. Chaplin is the leading case it has to be accepted there are difficulties with that judgement. In the Red Sea case the Privy Council gave the brief facts and set out those difficulties:

In Boys v. Chaplin [1971] A.C. 356 their Lordships were agreed that the plaintiff, a British soldier who was injured by a car driven by another British soldier in Malta, was entitled to damages in an English court on the basis recognised by English law, even though such damages were not available under the law of Malta, the lex loci delicti. Their reasons for reaching this conclusion, however, varied to such an extent that both academic writers and judges in other cases have expressed doubt as to whether there can be extracted from the speeches one binding ratio decidendi."

What was certain is the House of Lords had accepted and endorsed the first part of rule 158 as stated in Dicey and Morris, Conflict of Laws, 8th ed. (1967):

"An act done in a foreign country is a tort and actionable as such in England, only if it is both (1) actionable as a tort, according to English law, or in other words, is an act done which, if done in England, would be a tort;"

However, the House of Lords were not in total agreement about the second part of the rule which read:

"and (2) not justifiable, according to the law of the foreign country where it was done."

The Privy Council indicated:

"Their Lordships in the present case (the Red Seas case) thus consider that it is clear that there was a majority in favour of reading "not justifiable" as meaning actionable in civil proceedings even if it was not necessary for the act to be characterised as a "tort" under the foreign law. Their Lordships agree with that decision and, subject to the effect of clause (2) consider that rule 203(1)(b) in Dicey and Morris, Conflict of Laws, 12th ed., is a correct statement of the law."

4. The rule 203(1)(b) referred to was a restatement of rule 158 following the decision in Boys v. Chaplin and it appeared in the 12th edition of Dicey and Morris published in 1993. The re-stated rule reads:

"Rule 203 –(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both (a) actionable as a tort, according to English law, or in other words, is an act done which, if done in England, would be a tort; and (b) actionable according to the law of the foreign country where it was done. (2) But a particular issue between the parties may be governed by the law of the country which, with respect to the issue, has most significant relationship with the occurrence and the parties"

That is the correct statement of the law as it applies to Solomon Islands.

5. As was said by the court in Red Seas, the rule does permits a degree of flexibility when dealing with an apparent conflict of laws. It would certainly seem that in this case Rule (1)(a) and (b) are satisfied. Section 33 of the Queensland Act would not bar the claim it simply provides a statutory defence. We are left in the situation where the answer as to whether (as set out in 203 (1)(a)) the act, the slander, if done in Solomon Islands would be a tort, is yes. Would it be actionable in Australia (203(1)(b))? That must be answered yes as well. A statutory defence is not a bar to the action. However in relation to clause 2, whether there are issues which may be governed by the "most significant relationship with the occurrence and the parties"; that is not a question which needs to be answered at this stage. It is a matter for full evidence and argument at trial. If the question is answered in the affirmative, the court can, again after hearing detailed evidence, decide if the defence of triviality under Australian law can be relied on here in Solomon Islands. Presumably if the defence of triviality is pleaded in Australia it is for the Defendant to prove the facts supporting triviality. In reality then it may well be a moot point because the very facts and issues which go to triviality would go to the question of contemptuous damages here in Solomon Islands. It is well established in English law that the court can say, this case should never have come to trial; or, you the plaintiff you have wasted the court's time; and award the smallest sum possible even though the evidence establishes the defamation. This usually involves the time honoured award of one half penny. It is also settled law (Dery v. Uris [1964] 2 QB 669) that following an award of contemptuous damages the likelihood is the plaintiff will not even get his or her costs.

6. The upshot is the Claimant can proceed in this court on the claim for the slander alleged to have occurred in Brisbane on 10th December 2010. It is open to the Defendant to plead in her Defence the defence of triviality available under the Australian legislation. Whether the law as applicable in Australia is actually available to the Defendant is a matter for full argument and evidence at trial with the onus on the Defendant to establish the required nexus. If the Defendant succeeds in satisfying the court that it is Australia which has the most significance to both the alleged slander and all those involved the Defendant would then be required to "prove" that law. The Defendant would then be required to prove that the circumstances of the publication were such the plaintiff was unlikely to sustain any harm. Practically, it is likely this would be done all at one time rather than in three separate stages.

7. The costs in respect of this hearing on the preliminary issue will be costs in the cause.

Chetwynd J