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Solomon v Prater

Solomon v Prater

Case [2021] NZHC 481 12 March 2021

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IN 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

Judgment:

12 March 2021

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]

SOLOMON v PRATER [2021 NZHC 481 [12 March 2021]

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 Rēkohu (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

1 Solomon-Rehe v Hokotehi Moriori Trust [2015] NZHC 46, [2015] NZAR 776, at [1].

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Solomon v Prater

Details

AGLC: Solomon v Prater [2021] NZHC 481
Case: [2021] NZHC 481
Decision Date: 12 March 2021

CaseChat Overview and Summary

This case was a defamation action brought by Maui Ashley Solomon against David James Prater. Solomon, the executive chair of the Hokotehi Moriori Trust (HMT), sought damages for a defamatory email sent from an anonymous Gmail account. The email contained a letter that accused Solomon of various misconducts, including electoral fraud and financial impropriety. The Court found that the email was sent by Prater, who had been previously employed by HMT but was dismissed for serious misconduct. Prater had denied any involvement in the creation or publication of the email, but the Court found evidence to the contrary, including metadata from the email, stylistic similarities between the letter and documents authored by Prater, and Prater's own statements and actions that mirrored the allegations in the letter. The Court awarded Solomon general damages of $100,000, interest on the damages, and costs and disbursements in the sum of $81,695.58. The Court declined to award punitive damages, aggravated damages, or a permanent injunction, finding that Prater's conduct did not warrant such remedies.

Orders