Solomon v Prater

JurisdictionNew Zealand
JudgeClark J
Judgment Date12 March 2021
Neutral Citation[2021] NZHC 481
CourtHigh Court
Docket NumberCIV-2019-485-132
Date12 March 2021
Between
Māui Ashley Solomon
Plaintiff
and
David James Prater
Defendant

[2021] NZHC 481

Clark J

CIV-2019-485-132

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

Defamation — claim for damages against the defendant for defamation — an anonymous email was sent accusing the plaintiff of conduct that went against his duty as a trustee — general damages — gravity of the libel — extent of publication — harm suffered — aggravated damages — punitive damage — permanent injunction — meaning of “defamatory” — “grapevine” effect — damage to the plaintiff's reputation was negligible — interest on awards of damages for defamation

Appearances:

A J Romanos for Plaintiff

Defendant in Person

JUDGMENT OF Clark J
Table of Contents

Para Nos

Overview

[1]

Formal proof

[8]

Issues for determination

[12]

Evidence on behalf of Mr Solomon

[14]

The anonymous letter

[15]

Are the challenged statements defamatory of the plaintiff?

[19]

Is the defendant liable for the publication?

[29]

The approach in analogous cases

[32]

Creation of the Gmail account

[43]

Metadata evidence

[57]

Similarities in syntax, grammar and style

[69]

Similarities in content

[75]

Evidence regarding the email itself

[85]

Counterfactuals

[86]

Remedies

[97]

General damages

[98]

The gravity of the libel

[104]

Extent of publication

[111]

Harm suffered

[123]

Aggravated damages?

[128]

Punitive damages?

[135]

Permanent injunction?

[138]

Interest

[142]

Costs

[150]

Result

[158]

Overview
1

The Hokotehi Moriori Trust (the Trust or HMT) represents the Moriori people, in New Zealand and elsewhere. HMT gained charitable trust status in 2003 to manage the taonga of the Moriori people. 1 The plaintiff, Maui Solomon is the executive chair of the HMT.

2

The defendant, David Prater, is an Australian citizen. His wife, Debbie King is of Moriori descent and related to Mr Solomon. Mr Prater was employed by the Trust in August 2016 as its General Manager of Operations.

3

Personal and professional relationships between Mr Solomon and Mr Prater deteriorated. In his affidavit evidence, Mr Solomon gives a detailed account of the escalation of the difficulties, tension and conflict. In May 2017, the Board gave written notice to Mr Prater of his temporary suspension on full pay pending confirmation from a medical practitioner that he was able to attend work. Mr Prater had earlier requested leave due to stress.

4

In July 2017, the Board (excluding Mr Solomon) decided to terminate Mr Prater's employment. Mr Prater was formally dismissed in 2017 for serious misconduct. Aaron Donaldson, the vice-chair of HMT deposed to Mr Prater “bad mouthing” Mr Solomon and his wife around the Rekohu (Chatham Island) community, “using language and referring to his CEO within the community that was unbecoming of a person in his position”.

5

In August 2018, an email was sent to a number of people from a pseudonymous email address: allmoriori@gmail.com. Attached to the email was a letter addressed

to members of the Trust. Throughout the proceeding this letter has been referred to as the “anonymous letter”. In this judgment I do likewise
6

The anonymous letter accused Mr Solomon of a range of behaviours going to the heart of his responsibilities as a trustee. The letter encouraged the recipients to oust Mr Solomon at the upcoming election for the HMT chair position and instead, to support Debbie King who readers were invited to contact through the email address.

7

Mr Solomon filed defamation proceedings in March 2019 seeking substantial damages. A second amended statement of claim was filed on 13 August 2020. This is the statement of claim to which I refer in this judgment.

Formal proof
8

The matter ultimately proceeded by way of formal proof. Mr Prater filed and served a statement of defence in April 2019 but thereafter seems not to have participated in any aspect of the proceeding. He did not appear at the hearing of Mr Solomon's application to strike-out his affirmative defences. Notwithstanding Mr Prater's failure to oppose the application and his non-appearance at the hearing, Associate Judge Johnston did not strike out the affirmative defences. He ordered instead that the statement of defence would be struck out unless an amended pleading was filed by a stipulated date. 2

9

By November 2019, Mr Prater had failed to discharge his obligations in relation to either discovery or the plaintiff's notice to answer interrogatories. Mr Solomon sought a further “unless” order debarring Mr Prater from defending the proceeding if he had not complied with his obligations within ten working days. The Associate Judge recorded Mr Prater as being “in flagrant breach of a direction from the Court” both in relation to discovery and answers to interrogatories”. 3 Having regard to an earlier memorandum in which Mr Prater made it “entirely clear that he ha[d] no intention of complying with either obligation” the Court could “have little confidence that [he would comply] with any order that was made. 4 Against that

backdrop Associate Judge Johnston made unless orders in default of which after 15 days, the statement of defence would be struck out
10

On 4 February 2020 Mr Prater's statement of defence was formally struck out from 12 December 2019, that being the expiry date of the period within which Mr Prater was to comply. The matter was to proceed by way of formal proof. Although the registry was directed not to accept any documents from Mr Prater other than a properly made application for leave to file further documents, and that direction was ignored, Mr Solomon did not oppose Mr Prater filing written submissions or making oral submissions at the hearing in line with the Associate Judge's original decision making unless orders. In the event, Mr Prater neither attempted to appear nor file submissions.

11

In a formal proof context such as this, the Court's role is to assess whether Mr Solomon has established the elements of his claim and, if he has, to consider the issue of remedies. The standard to which the Judge is required to be satisfied in relation to the plaintiff's evidence “is much the same as it would be if the proceeding had gone to trial”. 5 Specifically, in a formal proof setting, the Court is not required to consider hypothetical affirmative defences. 6 Accordingly, all issues for determination are to be determined against the standard of the balance of probabilities.

Issues for determination
12

Mr Solomon must establish the essential ingredients of his claim, namely that— 7

  • (a) a statement has been made;

  • (b) the statement was defamatory of Mr Solomon; and

  • (c) the defamatory statement was published by the defendant.

13

If I am persuaded these elements of the claim are established, Mr Prater will be liable for defamation. I will then assess the plaintiff's claims for:

  • (a) general damages (including aggravated damages);

  • (b) punitive damages;

  • (c) interest;

  • (d) a permanent injunction; and

  • (e) costs.

Evidence on behalf of Mr Solomon
14

Ten affidavits were filed in support of Mr Solomon's claim.

  • (a) Mr Solomon himself filed an extensive affidavit outlining his personal and professional background, particularly his longstanding efforts to advance the recognition and rights of the Moriori people and his corresponding role with the HMT; his dealings with Mr Prater; his observations of the publication of the letter and how it circulated through the Rekohu and offshore communities; the hurt and distress he suffered as a result of the publication and the course of events following the publication including the steps taken to establish that the email was sent from an account set up by Mr Prater.

  • (b) Susan Thorpe, Mr Solomon's wife deposes to her own dealings with Mr Prater, her observations of the harm Mr Solomon suffered as a result of the dissemination of the letter and her own investigations into the owner of the Gmail account from which the email and letter were sent.

  • (c) John Langford is Mr Solomon's solicitor. He has provided a narrative of his dealings with Stuff prior to the commencement of the proceeding and steps taken when information was received from Google in relation to the Gmail account.

  • (d) Aaron Donaldson, the Vice-Chair of HMT and Mr Solomon's nephew, deposes to his dealings with Mr Prater, his response to the anonymous letter and actions taken by HMT trustees.

  • (e) Cameron Hansen is an expert in data recovery and digital forensics. He has filed expert evidence in relation to the metadata extracted from the anonymous letter and the email by which it was sent. Mr Hansen's evidence is that it is highly likely that the operating system with the name “David Prater” was used to create the anonymous letter. Mr Hansen also gave evidence identifying similarities between the anonymous letter and other ‘control’ documents emanating from Mr Prater.

  • (f) Porsha Meo deposed to receiving the unsolicited email and anonymous letter directly from allmoriori@gmail.com on 23 September 2018 and forwarding it to Ms Thorpe.

  • (g) Eric Solomon, to whom Maui Solomon is first cousin, deposes to receiving messages from his nephews and nieces in Australia who had received the unsolicited email and letter directly from allmoriori@gmail.com and who sought the advice of their uncle in relation to their concerns.

  • (h) Raiha Kahukore, a resident of the Chatham Islands deposed to receiving the unsolicited email and anonymous letter and forwarding it to her mother to send to HMT. Ms Kahukore was concerned by the fact the letter-writer had somehow obtained her email address.

  • (i) Greg Preece of the Chatham Islands, but a Dunedin resident, also received the unsolicited email...

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4 cases
  • Staples v Freeman
    • New Zealand
    • High Court
    • 4 Junio 2021
    ...of what was published and publicly expresses regret that the libellous publication took place. 106 From these principles Clark J in Solomon v Prater extracted and applied the following considerations: (a) the gravity of the defamation; (b) the extent of the publication; (c) the harm suffere......
  • Craig v Macgregor
    • New Zealand
    • High Court
    • 16 Noviembre 2021
    ...v Craig [2018] NZCA 31, [2018] 3 NZLR 1 at [34]. Siemer v Stiassny [2011] NZCA 106, [2011] 2 NZLR 361 at [66]. Compare Solomon v Prater [2021] NZHC 481 at Nature of the defamatory statements [48] Ms Clark for Ms MacGregor submits the defamatory statements that were established go to the ver......
  • Staples v Freeman
    • New Zealand
    • High Court
    • 4 Junio 2021
    ...in a formal proof determination.16 However, for completeness, I will consider a defence of absolute privilege. 16 Solomon v Prater [2021] NZHC 481 at Absolute privilege [87] Section 14(1) of the Defamation Act 1992 provides that: Subject to any provision to the contrary in any other enactme......
  • Solomon v Prater
    • New Zealand
    • High Court
    • 12 Marzo 2021
    ...THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE CIV-2019-485-132 [2021 NZHC 481 BETWEEN MĀUI ASHLEY SOLOMON Plaintiff AND DAVID JAMES PRATER Defendant Hearing: 31 August 2020 Appearances: A J Romanos for Plaintiff Defendant in Person Jud......

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