Complaint under section 8(1)(a) of the Broadcasting Act 1989
Fair Go – item about a family (the Alexanders) who, in order to purchase a home, became involved in a family trust with the assistance of Miles McKelvy and Arden Fatu – $316,000 borrowed from Westpac to buy four properties – repayments in arrears – total debt grew to $331,000 – property deals and financing arrangements fell through – Alexanders approached Fair Go – Alexanders later sought to withdraw complaint – Fair Go declined – Dermot Nottingham named in item as advocate for Mr McKelvy and Mr Fatu – item urged people involved in complicated property deals to get independent legal advice – item allegedly unbalanced, unfair and inaccurate
Standard 4 (balance) and Guidelines 4a and 4b – not unbalanced – not upheld
Standard 5 (accuracy) and Guidelines 5a, 5b, 5c, 5d and 5e – insufficient information to determine inaccuracies complained of – decline to determine
Standard 6 (fairness) and Guidelines 6a, 6b, 6c and 6d – overall message valid – not upheld
This headnote does not form part of the decision.
 An item on Fair Go dealt with what was described by the presenters as a “damn good” complaint, but “a bit involved”, from the Alexander family. Viewers were told that in trying to finance a home, the Alexanders had become involved with Miles McKelvy and Arden Fatu and had established a family trust. The trust raised a bank loan for $316,000 to buy four properties. The Alexander family, it was reported, now owed the sum of $331,000. The item also advised that Mr McKelvy and Mr Fatu had given evidence to the Legal Practitioners’ Disciplinary Tribunal in its case against Cambridge lawyer, Ray Harris. That Tribunal, the item reported, had questioned Mr McKelvy’s honesty and had described Mr Fatu as having an “imposing physical presence”.
 The item informed viewers that Dermot Nottingham, “a controversial battler … of wound back odometers fame”, dealt with Fair Go as an advocate on behalf of Mr McKelvy and Mr Fatu, and had claimed that it was the Alexanders who had “done the dirty” in their dealings with Messrs McKelvy and Fatu. The item also noted that the Alexanders had sought to withdraw their complaint to Fair Go, but Fair Go had decided to proceed with a broadcast. The itemwas broadcast on TV One at 7.30pm on 12 May 2004.
 Noting that the broadcast had reported that he was the advocate for Miles McKelvy and Arden Fatu, Dermot Nottingham complained to Television New Zealand Ltd, the broadcaster, that the item breached the standards relating to balance, fairness and accuracy.
 Mr Nottingham explained that the programme’s producer had stopped the screening of the item on two occasions. The first occasion occurred, he wrote, to enable him (Mr Nottingham) to complete inquiries into the allegations made by Mr Alexander, and the second because Mr Alexander had “unreservedly withdrawn” all his allegations. They had been withdrawn, Mr Nottingham continued, as Mr Alexander had been given information which showed that his allegations were unreliable. Mr Nottingham added that Fair Go ’s journalist had admitted to him:
… that he [the journalist] hated Miles McKelvy and that he had received an admission of fraud from Mr Alexander about the placement of false information in an application for finance but felt the admission was not relevant to the credibility of “the story” the show intended to run.
 However, Mr Nottingham said, the item omitted that “false” information because of the journalist’s “hate of Miles McKelvy”. Mr Nottingham attached a detailed report he had prepared (previously provided to TVNZ in part) which, he contended, established that Mr Alexander had been fully aware of the process under which the four properties had been bought. The deficit had built up, he stated, as Mr Alexander had lived in one of the properties for a year without paying rent.
 Mr Nottingham argued, in view of this information, that the item on Fair Go had not included all of Mr Alexander’s original allegations but had implied, falsely, that the arrangements were similar to those for which a lawyer, Ray Harris, had been brought before the Law Practitioners’ Disciplinary Tribunal. The deals in which Mr Harris had been involved were not similar to the deals involving Mr Alexander. Mr Nottingham alleged:
The third actually aired show came about out of a desire [by the journalist] and the producer to show the writer [Mr Nottingham], Mr McKelvy and Mr Fatu, that the TVNZ show would not be intimidated into “not running a story” EVEN THOUGH IT WOULD BE INACCURATE AND UNBALANCED.
 Quoting the introduction to the item in which the presenter had acknowledged that the Alexanders had wanted to withdraw their complaint, Mr Nottingham disputed the item’s claim that it was a “damn good” complaint. Rather, he wrote, the Alexanders had misled Fair Go and had attempted to “rip off” Mr Thomas Fatu (Arden Fatu’s son) for a substantial amount of money. Mr Nottingham provided details which he claimed disclosed that Mr Alexander was the person who had instigated a fraud.
 The property rents, Mr Nottingham maintained, would certainly have serviced the loan – not “apparently” as the item said – if the properties had been managed correctly. However, he added, Mr Alexander had “sacked” the property manager and had then chosen “not to pay rent”. The failure to pay rent, Mr Nottingham argued, gave rise to the exact amount of the deficit.
 Mr Nottingham also argued that the item was inaccurate, unbalanced and unfair when it suggested that Arden Fatu was involved. He believed that there was no need for the item to refer to Arden Fatu other than Fair Go ’s desire to include the Disciplinary Tribunal’s comment about him, that he had an “imposing physical presence”. Mr Nottingham stated:
The script is a complete deceit of the viewing public about what had occurred. It is a complete deceit to allege that the trouble that the Ray Harris cases involved was “similar” to the Alexander story for the reasons already given.
 In regard to the broadcast comments at the end of the item when the journalist expressed his opinion that the Alexanders had “got in over their heads” rather than being responsible for the situation as Mr McKelvy contended, Mr Nottingham submitted that his points had not been adequately summarised. The item was not impartial, he maintained, as it did not disclose that the properties had rentals that clearly covered the loan. Further, while the item had acknowledged that the Alexanders had done some “silly” things, it had not explained what those “things” were. These “things”, Mr Nottingham claimed, were lies to TVNZ, fraud to the bank when obtaining the loan, an offer to sell back three of the four houses to Thomas Fatu for the price of four, and a “general lack of reliability”. Mr Nottingham added:
Alexander settled because he was caught red handed on fraud and wanted out now. He had lived in a house rent free, as he had done with another landlord and his attempt at ripping off T Fatu had failed. Alexander knew about the Harris law case and wanted to intimidate McKelvy into buying three houses back to enable Alexander to keep the fourth house with a small mortgage.
 Mr Nottingham added that he had supplied a statement that TVNZ had refused to read out. He sought an apology and a statement on air explaining the situation accurately.
 TVNZ assessed the complaint under the following standards in the Free-to-Air Television Code of Broadcasting Practice. They read:
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
 TVNZ acknowledged that there had been delays in getting the item to air, and that the Alexanders had withdrawn their complaint as they had been told that they would not need to repay their debt if the item was not screened. TVNZ added that the item had explained, on air, “why it was not prepared to enter into such trade offs”.
 It was relevant to the complaint, TVNZ submitted, to record that Mr McKelvy and Mr Arden Fatu were currently facing 120 charges in the Hamilton District Court for aspects of fraud. TVNZ noted:
It is acknowledged that these charges do not involve the particular matter the subject of the Fair Go story but two of the lawyers facing charges with McKelvy and Fatu were connected with the Alexander Trust which was the nub of the story.
 In summarising the complaint and recording the allegations made about Mr Alexander, TVNZ pointed out that the complainant had made it clear to the reporter that if the story went to air, “it would scupper any settlement for Mr Alexander”. That was, TVNZ said, “an attempt to pressure the Alexanders” and the item had recorded “their dilemma”.
 In regard to the complaint that the item was unbalanced, TVNZ argued that the item had disclosed the Alexanders’ naivety. The script had been carefully prepared, it added, in view of the complex nature of the inquiries and Mr McKelvy’s and Mr Fatu’s later court appearances. Attempts had been made, TVNZ wrote, to get both sides of the story.
 As for accuracy, TVNZ argued that the item was accurate and that there were no significant errors of fact. It noted what it described as “unfounded and unproven” allegations against Mr Alexander, and it rejected the complainant’s efforts to “vilify” the reporter.
 Turning to fairness, TVNZ contended that the complainant had tried to turn a relatively simple story into a complex one which was confused by innuendo and unsupported allegations. TVNZ surmised that the object had been to prevent the story going to air, and some of the reporter’s questions had not been answered. There had been a reference to the Law Practitioners’ Disciplinary Tribunal, it noted, as the men’s business backgrounds were relevant.
 TVNZ declined to uphold any aspect of the complaint.
 Dissatisfied with the broadcaster’s decision, Mr Nottingham referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.
 He also advised that he had requested copies of the recordings of his conversations with Fair Go ’s reporter. Observing that there were probably in excess of 15 conversations, he said that TVNZ had supplied, under the Official Information Act, tapes of only four conversations. He considered that it was important for the Authority to assess the information of which TVNZ was aware, but which had not been disclosed in the broadcast. TVNZ, he said, had “purposefully misled” the viewer by broadcasting inaccurate information and by omitting relevant information which challenged the credibility of the information which was broadcast.
 TVNZ said Mr Nottingham had requested the return of the materials he had submitted with his complaint. He had been advised that he could collect them but as he had not done so, they were now attached for the Authority on the basis that Mr Nottingham wished to put them before the Authority.
 TVNZ had nothing further to add in its reply to Mr Nottingham’s referral.
 The Appendix records the extensive correspondence which the Authority has considered in determining Mr Nottingham’s complaint. Much of the correspondence is lengthy and, as the complainant acknowledged, it was on occasions repetitive to ensure that the Authority did not overlook any matters which he believed were relevant.
 While the correspondence elaborates on a number of matters raised by both the complainant and the broadcaster, it does not raise new issues beyond the matters covered in the initial complaint and TVNZ’s response (paras  to  and  to ). Accordingly, contrary to its usual practice of summarising all the correspondence, and while it has recorded in full the parties’ answers to its specific questions (paras  to ), the Authority summarises those matters raised which it considers are relevant to its determination as follows:
 After its initial consideration of the complaint, the Authority wrote to each of the parties seeking specific information which it believed would assist it to determine the complaint. In view of the large amount of information it had received, the Authority asked that the answers be direct and succinct. It added that if the party failed to provide an answer, it might draw an inference adverse to that party.
 The first question to TVNZ asked:
Why did the item state that the Alexanders “had no hope of paying” the loan without informing viewers of the approximate market value of the properties against which the mortgage was secured?
 TVNZ said that the Alexanders were unable to continue to make mortgage payments because, as a large family with a modest income, they were “struggling to meet their commitments”.
 In response to a question about the reason(s) for the increase in the total mortgage debt from $316,000 to $331,000 given during the item, TVNZ said the bank had advised that the increase was made up of unpaid interest.
 The final question sought the reasons why TVNZ had not given Mr Nottingham an opportunity to present his view live on the Fair Go programme. TVNZ said it had sought to interview Mr McKelvy and Mr Arden Fatu. The item which went to air, it added, centred on the Disciplinary Tribunal’s outcome rather than the Alexander Trust and that “did not seem to Fair Go to be a matter for Mr Nottingham”. In conclusion, TVNZ said it was satisfied “that what was said about the Alexander Trust was a fair and accurate report”.
 The first of nine questions to Mr Nottingham was:
What motivated Mr T Fatu to be a guarantor for and put his own money into a trust for a family with whom he had no previous relationship?
 Mr Nottingham advised that the Trust was supposed to have named Mr Thomas Fatu or persons of his choice as co-beneficiaries. Its omission to do so was an error.
 The second question asked whether there were other arrangements between the Alexanders and Mr McKelvy and the Fatus which might explain why Mr T Fatu invested in the Alexander family trust. Mr Nottingham did not elaborate on any such arrangements. Instead, he contended that Mr Alexander had referred to some income which did not exist when he had applied for a loan from Westpac.
 The third question asked about whether Mr McKelvy or the Fatus had benefited from the Trust or its establishment. Mr Nottingham said that only Mr Alexander had participated in the discussions with the solicitor who established the trust, Mr Robert Warburton.
 The fourth question asked about the role of Harris Law. Mr Nottingham said Mr Ray Harris of Harris Law was paid $294,000 to settle the purchases as part of normal transactions.
 The fifth question asked about the trust deed. Mr Nottingham replied that the error in the Trust deed, referred to in the correspondence, was the omission of Mr Thomas Fatu or persons of his choice as co-beneficiaries.
 The sixth question asked about the grounds upon which Mr Alexander removed Mr Thomas Fatu as co-trustee from the Trust. Mr Nottingham contended that there were no legal grounds to have done so.
 The seventh question asked why Mr Thomas Fatu had in fact been removed. Mr Nottingham wrote:
The writer cannot answer that question but supposes it was done by Alexander to bring pressure on T Fatu to buy him out leaving Mr Alexander in ownership of Bruce Street [one of the Rotorua properties] as this is what was proposed by Alexander, when rejecting the deal offered by Messrs McKelvy and Fatu seven months earlier to buy him out to save T Fatu’s position.
 The eighth question asked why Mr Fatu was removed as trustee. Mr Nottingham wrote in response that Mr Thomas Fatu was removed by solicitor Mr Warburton who was acting on the instructions from his client, Mr Alexander.
 The ninth question sought Mr Nottingham’s estimate of the financial outcome to Mr Alexander if he had accepted the deal offered seven months earlier. Mr Nottingham maintained that Mr Alexander would have been free of all debt relating to the properties. Mr Alexander had not accepted the deal, Mr Nottingham wrote, as he wanted to put pressure on Mr Thomas Fatu to allow him to keep one property, especially as Mr Thomas Fatu was a guarantor.
 Mr Nottingham then commented extensively on the arrangements between the Alexanders and the other named parties, and how those had been misrepresented in the Fair Go item. A sound business arrangement, he argued, had been undermined by Mr Alexander who had, after removing Mr Thomas Fatu as a trustee, “fleeced” the Trust. When confronted with his actions, Mr Nottingham continued, Mr Alexander had tried to benefit from the Trust. These matters were not reported in the item which had attempted to focus on an “allegedly notorious fraudster called Miles McKelvy”. TVNZ, he maintained, had been duped and should be required to face up to its error. He concluded:
It is also crucial to note that there has not been a shred of independent corroboration from the broadcaster. The broadcaster even destroy[ed] the tape of the Alexanders making the allegations. It is submitted that a negative inference can be safely drawn from this behaviour when it is obvious that the broadcaster knew that it was going to be brought to task by the writer.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The primary issue covered in this Fair Go item was a young couple’s involvement in a complicated property deal by which they were seeking to finance a new home. The item was a cautionary tale which urged viewers not to get involved with two named men – Miles McKelvy and Arden Fatu. The item also contained a general message about the need for the inexperienced to obtain independent legal advice before agreeing to take part in such complex deals.
 The item suggested that Miles McKelvy and Arden Fatu had been connected with Cambridge lawyer Ray Harris who had appeared before the Law Practitioners’ Disciplinary Tribunal. It also referred to Mr McKelvy’s criminal convictions and the Disciplinary Tribunal’s description of Mr Fatu as having an “imposing physical presence”.
 The Authority considers that the level of public interest in unusual and questionable finance deals is such that the issue can be categorised as one of controversial public importance (a prerequisite for the application of the balance standard). However, the complainant’s allegation of imbalance in this case focuses principally on his concern that neither he nor his clients were given a fair or reasonable opportunity to present their point of view in the item. In essence, then, this is an allegation that he and his clients were treated unfairly.
 For this reason, the Authority considers that the allegations regarding a lack of balance are most appropriately considered under the fairness complaint.
 In determining the issue of whether the broadcast was fair, the Authority focuses initially on the purpose and nature of the programme. Fair Go is a consumer advocacy programme. This item was clearly intended as a cautionary tale about complicated finance deals and the potential pitfalls of being led into them without the benefit of sound independent legal advice. Moreover, the item specifically warned viewers not to enter into such deals with Miles McKelvy and Arden Fatu. As a way to illustrate the tale, the item featured the case of the Alexanders.
 The Authority accepts that the circumstances of the Alexanders’ financial arrangements with Messrs McKelvy and Fatu were unconventional and complex. Even an astute layperson could not have been expected to understand the detail without a thorough review. The Authority also notes that the item did not make direct accusations of criminal or otherwise illegal behaviour against Messrs McKelvy and Fatu. Given the background of the men, the Authority accepts that it was fair and reasonable of Fair Go to sound a note of caution to consumers against involvement both with these specific individuals and also with this type of unconventional finance arrangement generally.
 Mr Nottingham, however, steadfastly maintained that Messrs McKelvy and Fatu approached the deal with the Alexanders in good faith and were themselves the victim of Mr Alexander’s dishonesty. As a result, he maintained, the item was unfair and unbalanced in its portrayal of the specific arrangement.
 Despite reading the voluminous material in relation to this complaint – provided for the most part by Mr Nottingham – the Authority is still unable to ascertain key background information relating to the creation of the trust or the specifics of the financial arrangement in question.
 The great majority of the information the complainant has provided has been directed not towards explaining the circumstances surrounding the creation and dissolution of the Trust, but instead towards establishing that it was the Alexanders’ alleged dishonesty that was ultimately the cause of the arrangements failing.
 The Authority considers that the Alexanders’ situation was used by Fair Go as a case example to illustrate the questionable – and potentially financially risky – property dealings that Miles McKelvy and Arden Fatu were engaged in. The Authority has some doubts as to whether the story about the Alexanders and the Alexander Trust was a totally convincing case-study for this cautionary tale. Based on the documentation provided, it considers that each party to the deal, including Mr Alexander, may have had their own self-serving agenda. It is, however, impossible on the information available to unravel the background to the deal in a manner that explains the motivation or intent of each party.
 The Authority accepts that the reference in the item to the Alexanders having “done some silly things” was a sufficient acknowledgement that they possibly bore some responsibility for the failure of the property deal and the bad relationship which now existed between them and Mr McKelvy and Thomas Fatu.
 The Authority does not agree that insufficient opportunity was given to the complainant or his clients to have their point of view explained on the programme. Mr McKelvy was offered an opportunity to appear on the programme in person, but declined to do so, and while the brief item did not provide Mr Nottingham with an interview opportunity, the Authority considers the programme adequately summarised his concerns.
 Nor does the Authority uphold the complainant’s concerns that the reporter was unfair and partial in his handling of the story. There is no evidence to suggest either that the reporter “hated” Miles McKelvy as alleged, or indeed that his personal feelings improperly influenced the content of the item.
 Further, the Authority does not agree with Mr Nottingham that the item’s reference to his involvement with wound back odometers was derogatory. Rather, given the context of a consumer advocacy programme, it regards the comment as positive in referring to Mr Nottingham’s well-publicised earlier efforts to protect the interests of buyers of used cars imported from Japan.
 In all the circumstances of the case, the Authority considers that the item provided a general warning about entering this sort of complex finance deal without good advice, and the potential pitfalls of dealing with Messrs McKelvy and Fatu. The complainant has not concretely established that the Alexanders’ situation involved a legitimate deal that turned bad only as a result of the Alexanders’ dishonesty. The Authority is thus not persuaded that the use of the Alexanders’ situation operated to make unfair what was otherwise a relevant and important cautionary tale.
 For the above reasons, the Authority considers that the item was fair, and did not breach Standard 6 of the Free-to-Air Television Code.
 Mr Nottingham also maintained that the item was inaccurate in a number of respects:
 The Authority declines to determine this part of the complaint. While it accepts that some of the detail provided in the item about the nature of the deal and the subsequent actions of the Alexanders appears to have been incomplete, the Authority is left with insufficient information to determine whether the aspects complained of were inaccurate or misleading.
 The Authority notes that despite supplying a voluminous amount of paperwork, the complainant has given no straightforward explanation of key background issues – the involvement of each of the individuals in the establishment of the trust, or exactly what took place during the trust’s operation and prior to the collapse of the venture. Despite a detailed examination of the large quantity of documentation supplied by the complainant, the Authority has not been able to unravel this highly complex transaction, or isolate key background information. It is left with only a limited understanding of the operation of the trust and the circumstances surrounding its creation and ultimate failure. The only thing that the Authority is able to conclude is that, despite efforts to seek further information from both parties, it does not have the full story about this deal.
 For the Authority to be able to determine the accuracy parts of the complaint, it would need to be in a position to make concrete factual findings about certain aspects of the trust’s operation and the circumstances surrounding its creation and demise. For the reasons noted above, the Authority does not consider that it is safely able to make any findings of fact in relation to these matters.
 Accordingly, the Authority declines to determine the accuracy part of the complaint.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
11 May 2005
The following correspondence was received and considered by the Authority when it determined this complaint: