BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The dissatisfaction of a new home owner on the Hibiscus Coast with the person who developed and built the home was covered in an item on Fair Go broadcast at 7.30pm on TV2 on 10 February 1997.  It was reported that a number of fellow customers were also dissatisfied.

Mr Shaw, the developer and builder named in the item, complained through his solicitors to the broadcaster, Television New Zealand Ltd.  He alleged among other matters that some aspects of the item were inaccurate, that it was unfair to him, and that it did not acknowledge that he was unable to comment as the buyer of the home had begun proceedings in the Disputes Tribunal.  Moreover, he complained that he had been "door-stepped" by Fair Go when leaving the local Council offices.

Denying that the item either contained any inaccuracies or was unfair, and maintaining that Mr Shaw had been given opportunities to comment, and the meeting outside the Council offices was a chance encounter, TVNZ declined to uphold the complaint.

Dissatisfied with TVNZ's decision, Mr Shaw's solicitors referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the aspect of the complaint which alleged that Fair Go's approach to Mr Shaw involved door-stepping.

Decision

The members of the Authority have viewed the item complained about and have read the correspondence (summarised in the Appendix).  In this instance, the Authority determines the complaint without a formal hearing.

The Item

A dispute between the owner of a new home on the Hibiscus Coast and the builder was explored in an item broadcast on Fair Go on 10 February 1997.

Fair Go is a consumer advocate programme to which, the Authority has noted in an earlier decision (e.g. 1996-038), the standards relating to news, current affairs and documentaries do not apply.

The Standards

The builder (Gregory Shaw) complained through his solicitors that the broadcast breached standards G1, G4, G5, G7, G14 and G19 of the Television Code of Broadcasting Practice.

The first four require broadcasters:

                G1          To be truthful and accurate on points of fact.

               G4          To deal justly and fairly with any person taking part or referred to in any programme.

                G5          To respect the principles of law which sustain our society.

                G7          To avoid the use of any deceptive programme practice in the presentation of
                               programmes which takes advantage of the confidence of viewers have in the
                               integrity of broadcasting.

The other two read:

                G14        News must be presented accurately, objectively and impartially.

                G19        Care must be taken in the editing of programme material to ensure that the
                              extracts used are a true reflection and not a distortion of the original event or
                              the overall views expressed.

The latter two are included in the section headed News, Current Affairs and Documentaries and thus, as noted above, do not apply to the programme complained about.  Nevertheless, the matters raised under these standards overlap with matters raised under the applicable standards, and, consequently, will be considered by the Authority at the appropriate stage in its determination of the complaint.

The Complaint

Mr Shaw complained that the item was inaccurate (and in breach of standard G1) by incorrectly stating the purchase price of the property, by giving a completion date, and by referring to incomplete fencing.  He maintained that it was unfair (standard G4) as comments from other unhappy customers of Mr Shaw were not substantiated, as it was not recorded that Mr Shaw was prepared to communicate through his lawyers, and as no effort was made to present Mr Shaw's side of the story.

A breach of standard G5 was asserted because public comment on a matter about to go before the Disputes Tribunal amounted to contempt of court.  Further, as an aspect of the alleged breach of standard G5, the door-stepping approach of Mr Shaw was said to be tantamount to a breach of privacy.

Because the item used only extracts from a letter Mr Shaw wrote to the house buyer, rather than the full letter, a contravention of standard G7 was claimed.

Issues involving alleged inaccuracy and partiality were raised under standards G14 and G19.  The Authority will consider these points under standards G1 and G4.

The specific claims have been dealt with in the extensive correspondence between the parties and with the Authority, and are summarised in the Appendix.  The Authority records below the matters it considers to be of relevance as it determines each aspect of the complaint.

The Authority's Findings

Standard G5 – Contempt of Court

In response to the complaint that the broadcast was a contempt of court in view of the forthcoming hearing in the Disputes Tribunal, TVNZ reported that Fair Go had been advised of the Dispute Tribunal's involvement on the afternoon when the completed item was scheduled to be screened.  Fair Go had spoken to the buyer of the home who, at that time, had then withdrawn the proceedings.  TVNZ argued that there were thus no proceedings to which contempt could apply.  Moreover, it argued, given the ruling in Duff v Communicado [1996] 2 NZLR 89, the item would not have been in contempt should proceedings have been extant.

Mr Shaw's solicitors pointed out that Mr Shaw was not notified that the proceedings were withdrawn until some days later and, furthermore, the item which was broadcast went beyond the "fair and temperate" standard adopted by Blanchard J in the case cited.

The Authority does not accept that the item contravened standard G5 in that it failed to respect the principles of law.  It reaches this decision on the basis that the Disputes Tribunal proceedings had been withdrawn at the time of the broadcast.

Secondly as a breach of standard G5, the complainant's solicitors alleged that Fair Go's approach to Mr Shaw in the Rodney District Council carpark amounted to "door-stepping" which was tantamount to a breach of privacy.  "Door-stepping" has arisen in a number of complaints the Authority has determined in the past as a breach of either s.4(1)(c) of the Act – relating to privacy – or standard G4 – which requires that people referred to be dealt with justly and fairly.  In view of the facts which apply to this complaint, the Authority does not intend to consider it under standard G5, but to deal with it in the same way as it has done in the past.  Accordingly, it is considered below under standard G4.

Standard G1 – Inaccuracies

The Authority notes that the Agreement for Sale and Purchase records the purchase price as $365,000.  The item, on two occasions referred to $370,000.  TVNZ reported that the purchase price, once agreed extras had been included, totalled $369,826.  This is not disputed by the complainant and the Authority accepts that the rounding up of the second figure to $370,000 does not involve an inaccuracy in view of the small discrepancy.

The reference to a completion date was the second matter which the complainant alleged was broadcast inaccurately.  The Agreement did not refer to a completion date and TVNZ referred to the date given by Mr Shaw to the purchaser in front of witnesses which, it said, justified the observation contained in the broadcast.  The solicitors pointed out that the Agreement recorded that the possession date was "upon completion".

In the Authority's opinion, it is not possible to reach a clear decision on this aspect of the complaint.  However, given the understandable wish for buyers of new houses to move into their new home reasonably promptly,  it is reasonable to assume that verbal assurances were given.  Because, in the Authority's opinion, it is not a matter readily able to be resolved, it is not prepared to accept that the broadcast was inaccurate on this point.

The item reported that the fencing was incomplete.  The complainant's solicitors said that was inaccurate as the fences were complete, and the only issue in dispute was the type of bolts required to secure them.  As there is a dispute on an aspect of fencing, the Authority does not accept that the item was inaccurate when it said that the fencing was incomplete.

The final matter raised as an alleged inaccuracy was the reference to the building standards.  The complainant's solicitors point out that a Compliance Certificate under the Building Code had been issued.  TVNZ stated that the item did not dispute that the building complied with the Code.  As the item did not refer to the Compliance Code, the Authority does not consider that the item was inaccurate.

In their final comment, the solicitors noted TVNZ's comment that the buyer was the primary source of information and argued that TVNZ had a duty to verify the buyer's opinions in order to establish the facts.  By not doing so, they continued, the item breached standard G1.

To the Authority, these comments raise questions of fairness.  It is of the opinion that they are matters to be taken into account when assessing the item's fairness overall.  The issues will be discussed below under standard G4.

Standard G7 – Deceptive Programme Practice

Under this standard, the complainant's solicitors complained about the item's use of extracts from a telephone call and from a letter.  TVNZ replied that the extracts used were "not inconsistent" with the tenor of the correspondence and communication between Mr Shaw and the buyer.  The complainant supplied the Authority with a copy of the full letter from which extracts were shown.

The Authority records that it has confined standard G7 to incidents of deception involving matters of technology (e.g. incorrectly using the graphic "amateur video" when the filming has been done by a stringer).  The Authority believes that the issues which are raised under standard G7 on this occasion are more accurately considered under the requirements for balance and fairness in standards G6 and G4 respectively.  In this instance, it is of the opinion that the matter is more appropriately dealt with under the requirement in standard G4 to deal fairly with any person referred to in a programme.

Standard G4 – Dealing justly and fairly

In the Authority's experience, standard G4 usually encapsulates most of the issues raised by complainants who are dissatisfied with an item broadcast on Fair Go.

In regard to the complaint that extracts only from the correspondence were used, and acknowledging TVNZ's point that extracts are commonly used rather than a full letter, the Authority, having read the letter in full, does not accept that Mr Shaw was dealt with unfairly.  The extracts shown summarised the tone of the letter.

In the Authority's opinion, the central issue of fairness which captures the concerns expressed in the complaint evolves from the fact that Mr Shaw declined to be interviewed for the item.  In the initial complaint, Mr Shaw's solicitors alleged that he had been door-stepped in the Rodney District Council carpark.  The item shows the reporter, accompanied by the dissatisfied home owner, approaching Mr Shaw as he walks from the building to the carpark, and asking him for comment on the home owner's complaints.  Mr Shaw declines to comment, climbs into his car and attempts to drive off.  The home owner stands behind his car and prevents Mr Shaw from leaving the carpark.  At Fair Go's suggestion, the home owner finally moves away, whereupon Mr Shaw backs out of the carpark and drives away.  Mr Shaw is also shown during the item driving his car which, the item said, was filmed earlier.

The Authority's approach to door-stepping was set out in Decision No: 29-30/94 (9 May 1994).  In that case, the Authority determined a complaint where the person who managed the organisation under investigation was approached by the reporter and crew as he collected the newspaper from the letter box early in the morning.  The Authority wrote:

It was apparent from TVNZ's comments that the "door-step" method is not one which is used without great care.  Such caution is essential for a number of reasons not least the fact that most people have little experience in and no training for appearing on television.  They can be at a distinct disadvantage when appearing on television even with prior knowledge and consent let alone when opening a door to find themselves confronted by a camera and reporter.  Their inexperience and disadvantage can be contrasted with that of television journalists who not only have the skills but also the information and total preparedness to confront the person whom they wish to interview.  An interview in which an interviewee is being asked to respond to accusations or allegations of other serious misbehaviour is, moreover, usually an adversarial situation.  If the element of surprise is combined with unequal television experience and accusations of irresponsible or illegal behaviour, the situation becomes one where the unevenness between the parties is very marked.  In other words, it is a situation which is potentially most unfair and intimidating to the interviewee.  It is also a situation to which standard G4 of the Television Code is applicable.

The Authority is concerned not only about the degree of unfairness potentially involved but also the possibility that a broadcaster might decide to use this method for the expected visual impact of the confrontation which is likely to ensue, rather than its use as a source of considered information and constructive comment.

While "door-stepping" will not always be in breach of the Code, the Authority emphasises that it is a method which should not normally be used unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted.

As is apparent from the summary recorded in the Appendix, there has been extensive correspondence between the Authority, TVNZ and Mr Shaw's solicitors in regard to this complaint.  On the issue of door-stepping, TVNZ advised that the "confrontation" in the carpark on 4 February was Fair Go's third attempt to talk to Mr Shaw.  It also sent the Authority a transcript of a telephone conversation between Mr Shaw and Fair Go's reporter on 5 February, in which Mr Shaw brusquely stated that he had no comment to make, and that he did not want to be telephoned or visited again by Fair Go. (This conversation is included in the Appendix.)

In their response to TVNZ's account of the efforts which had been made to contact Mr Shaw, his solicitors stated that until confronted by Fair Go in the Council carpark, Mr Shaw had been unaware of Fair Go's efforts to speak to him.

In view of this comment, the Authority asked TVNZ to advise the extent of Fair Go's efforts to contact Mr Shaw, and the extent to which they had been successful before the meeting outside the Rodney District Council buildings.  TVNZ recorded that Fair Go had made every effort to contact Mr Shaw by calling his office on a number of occasions, but each time had been told that he was unavailable.  TVNZ contended:

Thus we assert that every effort was made to contact Mr Shaw before Fair Go resorted to the not unreasonable approach in a public place.

In earlier correspondence on this point (3 June 1997), TVNZ advised the Authority:

Mr Shaw ... was approached in a public place only after "Fair Go" had made repeated but unsuccessful attempts over a period of about a month to contact him by telephone.  In fact, this was a chance encounter, the presence of Mr Shaw's car having been noted by one of Mr Shaw's dissatisfied customers who drew it to the attention of the reporter.

The Authority received considerable correspondence from both TVNZ and Mr Shaw's solicitors (summarised in the Appendix) which dealt with the detail of the lead-up to the encounter in the carpark.

Mr Shaw's solicitors provided material to the Authority which has cast doubt on the degree that the meeting was in fact a "chance" encounter.  It first provided an article from the "NZ Women's Weekly" of 21 April 1997 which reported that a Fair Go crew had come to police attention while in a plain white rented van parked in Orewa and secretly filming a business across the road.  The solicitors later supplied an account of this event from the Police in Orewa who reported that, on 4 February 1997, a plain van in which an occupant had a video camera, had been parked next to a bank in Orewa from 10.00am - 2.00pm.  Because of a bank employee's suspicions, the police were called.  The police report recorded:

The van contained three people.  The constable recognised one of the occupants of the van to be a television presenter who appeared on the Fair Go television program from time to time.  He questioned this person and was told that they were waiting to video some footage of a person leaving an address.  The presenter indicated to the constable an address situated on HBC Highway.  The constable recalls seeing a BMW parked at this address.

The constable satisfied himself that nothing was untoward, spoke to bank staff, and carried on with other duties.

The solicitors provided a map which showed that the address was that of Mr Shaw.  He was seen in the item to be driving a BMW.

TVNZ maintained that the Fair Go crew went to Orewa late on the morning of the 4th to interview Mr Millbank, and that its van was parked in the vicinity of the national Bank for about an hour, while the crew ate their lunch and monitored Mr Shaw's property.  As for the meeting in the carpark, TVNZ wrote:

The encounter with Mr Shaw was entirely by chance.  Fair Go went to the Rodney District Council after being told his car was parked in the public car park there.

In view of the information about the events on 4 February, along with the point that TVNZ acknowledged that Fair Go's efforts to speak to Mr Shaw before then had been unsuccessful, the Authority upholds the aspect of the standard G4 complaint which alleged that through door-stepping, Mr Shaw was dealt with unfairly.  It was apparent that the home owner and Mr Shaw had spoken during the previous few months, and Fair Go's reporter spoke to Mr Shaw by telephone on 5 February.  The Authority thus does not accept, regardless of the specific details of the activities of the crew on 4 February and the hour at which they actually occurred, that Fair Go's efforts to speak to Mr Shaw before confronting him in the carpark had involved every legitimate way to obtain the information sought.

The other specific matter raised by Mr Shaw's solicitors under standard G4 was the reference to other dissatisfied customers.  Fair Go, they wrote, should not be permitted to use hearsay evidence.

TVNZ said it had spoken to three other clients of Mr Shaw, and to two tradespeople, all of whom were critical of him.  Their experiences had not been presented in detail as it had been decided to illustrate all the issues which it wanted to raise about Mr Shaw's business by focussing on one dissatisfied customer.  Further, it had been unable to put the allegations to Mr Shaw as he had refused to talk with Fair Go.

In view of the apparently unexpected meeting in the carpark, the Authority understands why Mr Shaw declined to discuss these matters with Fair Go on the day after this approach.  While it could be argued that Fair Go should not be able to include material it gathered following the door-stepping encounter, it did telephone him the following day when, not unexpectedly, it was curtly dismissed.  Unfortunately for Mr Shaw, that response also meant that he had foregone the opportunity to comment about other "dissatisfied customers".  Accordingly, although the reference to other dissatisfied customers is borderline, a majority of the Authority concludes that it did not amount to a breach of standard G4.

A minority disagrees.  It considers that because this comment about other dissatisfied customers reflected adversely in a major way on Mr Shaw, TVNZ's effort to obtain a response was insufficient.  Thus, the inclusion of the statement, in the minority's opinion, amounted to a breach of standard G4.

The final matter the Authority deals with is the overall tone of the item.  Did it amount to a breach of standard G4?  In reaching a decision on this question, the Authority acknowledges that Fair Go is a programme which is known for its stance of consumer advocacy.  Nevertheless, although this perspective is adopted, each programme must also comply with the relevant requirements in the standards – especially those dealing with accuracy and fairness.  While the specific item was critical of Mr Shaw, it also showed (e.g. by his provocative behaviour in the carpark) that the customer whose story was told could also well be a difficult person to deal with.  Consequently, the Authority concludes that the tone of the item, overall, does not contravene standard G4.

For the reasons above, the Authority upholds the aspect of the complaint relating to the meeting in the Rodney District Council carpark as a breach of standard G4 of the Television Code of Broadcasting Practice.   It declines to uphold any other aspect of the complaint about the broadcast by Television New Zealand Ltd of an item on Fair Go on 10 February 1997.

Having upheld a complaint, the Authority may impose an order under s.13(1) of the Broadcasting Act 1989.  While the Authority considers the aspect upheld – door-stepping – to be a serious matter, it is only one of a range of issues raised by the complaint.  No other aspects were upheld and, in the particular circumstances of this complaint where some facts cannot be determined with certainty, the Authority does not consider that any order is necessary or appropriate.

Signed for and on behalf of the Authority

Lyndsay Loates
Member
2 September 1997

Appendix

Mr Shaw's Complaint to Television New Zealand Ltd – 3 March 1997

The solicitors for Mr Gregory Shaw of Auckland (Graham and Co) complained to Television New Zealand Ltd about an item broadcast on Fair Go on TV2 at 7.30pm on 10 February 1997. It was alleged that the item breached standards G1, G4, G5, G7, G14 and G19 of the Television Code of Broadcasting Practice.

Detailing the complaint under each standard, the solicitors said that the item was inaccurate (G1) in incorrectly stating the purchase price of a property, in giving a completion date, and in referring to incomplete fencing.

It was unfair (G4), the solicitors wrote, as comments about other unhappy customers of Mr Shaw were not substantiated, as it was not recorded that Mr Shaw was prepared to communicate through his lawyers, and as no effort had been made to present his side of the dispute.

As Fair Go was aware that the matter was before the Disputes Tribunal, the solicitors asserted that public comment amounted to a contempt of court and failure to acknowledge this point amounted to a breach of standard G5.  Further, Fair Go's door-stepping tactic was tantamount to an invasion of privacy.

The use of extracts from letters and taped phone calls, rather than in their entirety, took advantage of the confidence viewers had in the integrity of broadcasting (G7).

The lack of accuracy and impartiality, the solicitors concluded, amounted to a breach of standard G14 and the one-sidedness of the editing resulted in distortion in contravention of standard G19.

TVNZ's Response to the Formal Complaint – 14 March 1997

Pointing out that the item concerned Mr Shaw and his relationship with customers – particularly Mr Chris Millbank of Red Beach – TVNZ assessed the complaint under each of the nominated standards.  By way of introduction, it wrote to Mr Shaw's solicitors:

Before assessing each of these standards, we note that "Fair Go" is a well-established consumer advocate programme.  Its role is to examine incidents in which customers may have been treated in a less than satisfactory manner during business dealings.  The programme has a proud record of assisting in the settling of many disputes before they reach the stage of being worthy of reporting on television, and – quite properly in our view – of exposing people and organisations whose relationships with their customers do not withstand close scrutiny.

In the case of your client, "Fair Go" began its investigation after hearing from a number of sources that customers were dissatisfied in their dealings with him.

In response to the accuracy complaint (G1), TVNZ said the aggrieved customer gave the purchase price.  There was no direct reference in the item to the completion date, and the reference to the uncompleted fence was attributed to a Master Builder's report.  TVNZ concluded:

We note that Mr Millbank is entitled to express his genuinely held opinions (indeed that right is included in the programme standards under G3).  Our investigations show that Mr Shaw was given every opportunity to challenge these matters had he chosen to do so.  The programme shows the effort being made by "Fair Go" to acquire comment from Mr Shaw.  We can advise that there were a number of other approaches to Mr Shaw which ended with a telephone call to Mr Shaw by the reporter which elicited only the following response:

Sorry I have no comment.  Do not bother to call me again or come on to my property.

The reporter clearly had no opportunity to check Mr Millbank's version of the situation against the views of Mr Shaw.

The refusal of one party to participate, TVNZ wrote, was not sufficient reason to abandon the story.  Mr Shaw had specifically declined to comment although the job was unfinished, TVNZ contended, given the consultant's report on the state of the fencing.

With reference to fairness (G4), TVNZ repeated that it had approached Mr Shaw for comment and while he had declined to comment, he had not referred Fair Go to his lawyer.  The letter to Mr Millbank which had referred to a lawyer, was used to show its abusive content and Mr Shaw's attitude towards his customer.  TVNZ added:

We can assure you that "Fair Go" has an extensive file of comments made by other clients of Mr Shaw.  The reporter spoke in person to three other private clients and two tradespeople who have done business with him.  The tradespeople complained about not being paid for work done and the three private clients made disturbing claims about work not being done, personal harassment, abusive letters and broken promises.  Some of these matters, we have discovered, are now in the hands of the police.

TVNZ maintained that it was acceptable to make assertions about other unhappy customers and, rather than broadcast one item with a "litany of complaints", it had been decided to detail the experiences of one person.

As for the contempt of court complaint (G5), TVNZ advised that after being informed by Mr Shaw's lawyers on the date of broadcast of the Disputes Tribunal proceeding, it had been told by Mr Millbank later that day that the proceedings had been withdrawn.

Nonetheless, TVNZ stated, the law did not impose a blanket prohibition on the discussion of cases before the courts.  It maintained that the item did not infringe the recent ruling from McGechan J in Duff v Communicado when he wrote:

"A public statement about civil litigation before a Court will be in contempt of Court if (a) it goes beyond fair and temperate comment; and (b) either (i) when viewed objectively, it can be seen to have a real likelihood of inhibiting a litigant of average robustness from availing itself of its constitutional right to have the case determined by the Court; or (ii) it is actually intended by the maker of the statement to have inhibiting effect on a litigant".

TVNZ also argued that Mr Shaw's privacy had not been infringed as he was in a public place and the questions had been put to him courteously.

Turning to the use of extracts (G7), TVNZ maintained that extracts used properly reflected the tone and content of the correspondence and were not deceptive.

Standard G14 was not applicable, TVNZ argued, as it applied to news programmes.

Standard G19 was not breached, TVNZ added, in view of the absence of comment from Mr Shaw.

Expressing regret that Mr Shaw found fault with the item, TVNZ concluded that it did not breach broadcasting standards.

Mr Shaw's Referral to the Broadcasting Standards Authority – 18 April 1997

Dissatisfied with TVNZ's decision, Mr Shaw's solicitors referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

1.  Accuracy – standard G1

Attaching a copy of the Sale and Purchase Agreement, Mr Shaw's solicitors said the item was incorrect when reporting the purchase price, when asserting that the property was handed over eight weeks late, and when referring to incomplete fencing.  The building complied with the building standards and, the solicitors wrote:

TVNZ claimed that the issues of fact raised in our complaint were raised by Mr Millbank the aggrieved customer and not by Fair Go.  It is submitted that there is a duty on TVNZ to ascertain that any facts being quoted in a programme it intends screening should be checked and confirmed before being screened.  TVNZ also asserted Mr Millbank's right to express his genuinely held opinion.  Our client does not dispute that right but an opinion is quite different to facts which can be verified and in our submission were not.  Mr Millbank had an Agreement for Sale and Purchase and it is submitted that a quick check of that document would have provided verification to the facts of the matter.

2.  Dealing fairly – standard G4

The solicitors considered that Mr Shaw had been dealt with unfairly by Mr Millbank and a Fair Go camera crew when he was approached leaving the Rodney District Council Building on 4 February.  He was approached by telephone on 5 February but declined to comment because the matter was before the Disputes Tribunal.  An earlier attempt to doorstep Mr Shaw was unsuccessful.

They also repeated the complaint about the unsubstantiated comments from other dissatisfied customers.  When Fair Go decided to focus on one complaint, the solicitors argued, it was no longer entitled to use hearsay allegations.

3.  Respect for principles of law – standard G5

On this point, the referral letter began:

Strictly speaking any public comment on a matter that is properly before the Courts, including the Disputes Tribunal, is contempt of Court.  It is submitted that whilst the Bill of Rights enshrines the principal of the right to free speech and therefore protects comment to some degree, it is only a right that can be exercised within certain limits.

Because Mr Millbank had chosen one forum, it was inappropriate for TVNZ to be used as a vehicle to litigate the dispute.  TVNZ, the solicitors said, had a duty to find out whether litigation in a different forum was under way.  It had acknowledged that it failed to do so and, furthermore, Mr Shaw was not advised of the withdrawal until five days after the item was screened.  Further, Mr Millbank subsequently reinstated the matter with the Disputes Tribunal.

Attaching a copy of Blanchard J's judgment on Duff v Communicado Ltd, the solicitors argued the published comment went beyond the "fair and temperate" standard.  They stated:

The purpose of upholding the centuries old principles relating to contempt are, as recognised by Blanchard J, to ensure that no litigant is exposed to ridicule or pressure outside the forum which that litigant has chosen.  That is exactly what has happened in this case as a result of the programme and we refer you to the examples given and identified in our submissions under section 4 below.

The solicitors also argued that the door-stepping process used by TVNZ "was tantamount to an invasion of privacy".

4.  The use of a deceptive practice – standard G7

By failing to show the entire contents of the correspondence, the solicitors contended, TVNZ had used a deceptive programme practice.  Full disclosure, they continued, would have shown that there were a number of outstanding personal complaints.  The letter observed:

As a result of the Fair Go item our client received a malicious phone call from a Queenstown resident.  Attached are copies of a letter of apology from that resident together with a letter from New Zealand Police.  In our submission this clearly illustrates the result of deceptive programme practice by Fair Go in relation to our client.

5.  Accurate, objective and impartial news – standard G14

It was argued that the breaches of the standards listed above amounted to a breach of this standard.  There was no allowance, it was postulated, for any point of view other than Mr Millbank's.

6.  Care in Editing – standard G19

This standard was contravened, the solicitors said, as TVNZ did not make use of the material it held which would have shown a true reflection of the dispute.  It was necessary in the public interest, they added, for the public to be advised the reasons why Mr Shaw had taken the stance that he had.

In conclusion, the solicitors reserved the right to request to make oral submissions.

TVNZ's Response to the Authority – 16 May 1997

Using the same headings as used in the letter of referral, TVNZ advised that it had consulted its solicitors before submitting its response.

1.  Standard G1 – accuracy

TVNZ referred to each of the four points which were claimed to be incorrect.

(i)  As for the purchase price, TVNZ acknowledged that the figure of $365,000 was contained in the Sale and Purchase Agreement but extra work finally resulted in an agreed figure of $369,826.16.  It was not inaccurate, TVNZ maintained, to round up this figure to $370,000.

(ii)  TVNZ reported that Mr Millbank, in the presence of a real estate agent and family, was told on 14 April 1996 that the work could take eight weeks.  He was later told by Mr Shaw that it would be completed on about 10 July.  Mr Millbank moved in on 16 August which, TVNZ pointed out, was more than eight weeks after the completion date promised on signing.

(iii)  TVNZ pointed out that the Fair Go item referred to the master builder's report when it said that the fencing was incomplete.  That report was quoted.

(iv)  The item did not dispute that the building complied with the building code.

TVNZ commented on these matters:

We make one or two further observations in relation to G1.  The comments made in the programme are Mr Millbank's genuinely held opinion and he was entitled to express that opinion.

Bearing in mind the relatively small number of people involved in the dispute, Mr Millbank was the primary source of factual information upon which Fair Go relied.  Attempts to obtain Mr Shaw's views were met with refusal.  We submit (and this was accepted in the Authority's decision 1995-175/176) that the refusal of one party to a dispute to comment on allegations made does not prevent the story from being told.

2.  Standard G4 – dealing fairly

Maintaining that the "confrontation" on 4 February was Fair Go's third attempt to talk to Mr Shaw, TVNZ said the 5 February telephone call did not refer to the Disputes Tribunal.  The following was recorded as the transcript of that call:

                Shaw:                        "Hello"

                Hannan (reporter):     "Hello, Greg Shaw please"

                Shaw:                        "Speaking"

                Hannan:                    "Hello, Greg, Mark Hannan from TV's Fair Go programme here. 
                                                   How are you?"

                Shaw:                        "Fine".

                Hannan:                    "Good.  We've got a couple of questions I'd like to ask you."

                Shaw:                        "Sorry, I have no comment.  Do not bother to call me again or
                                                  come on to my property.  Thank you."

                Hannan:                    "You have no comment, so we can run a story saying you have
                                                  no comment."

                Mr Shaw had hung up before the final sentence was completed.

TVNZ also insisted that it was entitled to refer to other dissatisfied customers – provided that was genuine information.  In regard to Mr Shaw's complaint, it wrote:

In fact, Fair Go spoke to three other clients of Mr Shaw and two tradespeople, all of whom were critical of him.  One woman in particular, who did not wish her identity to be disclosed, told Fair Go she was scared of Mr Shaw.  The experiences of these other people were not used in detail by Fair Go because it was felt the issue could be better illustrated by detailing the experiences of one of Mr Shaw's customers, that is Mr Chris Millbank.

3.  Standard G5 – respecting principles of law

On the basis that it heard first, in a fax from Mr Shaw's lawyers, of the Disputes Tribunal's involvement at 3.25pm on the day the programme was scheduled, TVNZ said Fair Go was told at 3.45pm by Mr Millbank that he had withdrawn the action.  No mention was made of the intention to reinstate the action and, TVNZ said:

Therefore it is our submission that at the time the programme was broadcast, the matter was not before the Disputes Tribunal.  The matter of contempt therefore does not arise.

Nevertheless, and while it believed that contempt was not in issue, TVNZ said it wanted to make further submissions on the matter should the Authority consider that the issue of contempt was relevant to its consideration of the complaint.

4.  Standard G7 – deceptive programme practice

TVNZ maintained that the extracts used were "not inconsistent" with the tenor of the correspondence Mr Millbank received from Mr Shaw.  Further, Mr Millbank had a tape of some abusive telephone calls he had received from Mr Shaw.  Those calls, however, were not used in the item but were available to the Authority, if required.

If the letter of referral was referring to Mr Shaw's claim that Mr Millbank damaged his car, TVNZ said it believed that the Disputes Tribunal did not accept Mr Shaw's claim.

5.  Standard G14 – accurate, objective and impartial news

TVNZ maintained that the standard did not apply.

6.  Standard G19 – editing

The item, TVNZ stated, was carefully edited.  Mr Shaw was entitled to refuse to comment:

– but his absence from the programme coupled with his failure to explain that he thought the matter was before the Disputes Tribunal, left the programme with no alternative but to present the item in the way it did.

In conclusion, TVNZ repeated that it wanted to submit further comment if the Authority decided that contempt was in issue.  It said:

We believe the story as broadcast accurately conveyed to the audience the justified dissatisfaction felt by a customer of Mr Shaw, a customer who the programme had learned was not alone in being unhappy in his dealings with Mr Shaw.  Fair Go examines consumer grievances; this story was in the public interest and was the consequence of diligent and detailed research.

Mr Shaw's Final Comment – 26 May 1997

In their final comment, the complainant's solicitors argued that had TVNZ carried out "diligent and detailed" research, it would have ascertained the accuracy of the following matters: first, that possession was upon completion; secondly, that the fences were completed other than a dispute as to the type of bolts requires to secure them; thirdly, that the building complied with the NZ Building Code; and fourthly, no formal notice of withdrawal was given of Mr Millbank's claim with the Disputes Tribunal.

Referring to TVNZ's explanation that Mr Millbank was the primary source of information used, the solicitors argued that TVNZ had a duty to cross-check Mr Millbank's opinions to establish the truth.  By failing to do so, they continued, TVNZ was in breach of standard G1.

Under the heading "standard G4", the solicitors reiterated the points made earlier and noted in particular:

                i)     The allegation about the other dissatisfied customers was not put to Mr Shaw and
                       no names were given;

                ii)    Mr Shaw was not warned that his telephone conversation was being taped;

                iii)    Neither they nor Mr Shaw were advised of TVNZ's response to the written advice
                       that the issue was before the
                       Disputes Tribunal;

                iv)   Mr Shaw was "doorstepped" when he had not been earlier advised of Fair Go's
                      efforts to speak to him;

                v)    TVNZ only sought comment from and spoke to Mr Shaw after he had been
                       "doorstepped";

                vi)   TVNZ's door-stepping practices breached the principles set out in the Authority's
                      decision in Dr Smedley's complaint (29-30/94);

                vii)  The use of hearsay evidence was inappropriate after the decision to focus on
                      one complainant.

The solicitors then dealt with the complaint which alleged breach of aspects of standard G5.  They noted that Mr Millbank withdrew his Disputes Tribunal Claim after Fair Go received the fax, but no notice was given of the withdrawal to Mr Shaw or his solicitors.  As proceedings are not usually withdrawn without notice, the issue of contempt was relevant.

Turning to standard G7, the solicitors again reiterated the complaint, adding that the letter from which extracts were read was not too long to be included in full.  The full letter would have told viewers that Mr Shaw was happy to deal with Mr Millbank through his lawyers.  The letter would also have shown that Mr Shaw had had to complain to Telecom about the number of calls he received from Mr Millbank, and that:

The end result of the Telecom complaint was that Mr Millbank was advised that he would have his telephone disconnected unless he stopped making nuisance calls to our clients.

Moreover, the personal complaints between Mr Shaw and Mr Millbank were not a side issue as TVNZ claimed.  To ensure that the item was comprehensive, the solicitors contended, it was necessary to include the difficulties experienced by both parties.

The solicitors asserted that, contrary to TVNZ's stance, standard G14 was applicable as they considered that Fair Go was a current affairs programme.  Otherwise, they added, there was no reason why the broadcast could not have been deferred on receiving advice about the Disputes Tribunal proceeding.

Finally, in relation to standard G19, the solicitors said Mr Millbank – not Mr Shaw – had been under a duty to advise Fair Go of the Disputes Tribunal proceeding, at which time further enquiries could have been undertaken to ensure the broadcast of an item which portrayed both sides of the story fairly.  They concluded:

As screened, we submit the programme was not in the public interest but merely supportive of Mr Millbank's opinion and a clear distortion against our client.

TVNZ's Response to the Complainant's Final Comment – 3 June 1997

While stating that it did not wish to prolong the correspondence unduly, TVNZ responded to the points made by Mr Shaw's solicitors in their final comment.

TVNZ initially dealt first with the allegations under standard G1 (factual accuracy): first, it said that there was a verbal agreement with regard to the completion date which was not met by Mr Shaw; secondly, that the fence was not complete; thirdly, compliance with the building code was not an issue raised in the item; and lastly, Mr Millbank withdrew his claim with the Disputes Tribunal by telephone.  TVNZ wrote:

"Fair Go" did cross-check Mr Millbank's facts.  As indicated already, "Fair Go" spoke to three other private clients and two tradespeople who had done business with Mr Shaw.

Turning to standard G4 (dealing justly and fairly), TVNZ replied to each of the seven points:

                i)    Fair Go was unable to put allegations from other customers to Mr Shaw as he
                     would have nothing to do with the programme.

                ii)   In Fair Go's one telephone conversation with Mr Shaw, the reporter did not have
                     the chance to tell him that the conversation was being taped.  It was taped, TVNZ
                     added, to ensure an accurate transcription.

                iii)  TVNZ's response on the Disputes Tribunal issue was not given as it was not sought.

                iv)  TVNZ stated:

"Fair Go" made every effort to contact Mr Shaw by orthodox means before approaching him in the car park. 
The reporter called his office on a number of occasions but Mr Shaw was never available.

                v)   It was correct to note that Fair Go had spoken to Mr Shaw on the day after the
                      encounter in the Council carpark.

                vi)  TVNZ maintained that its approach to Mr Shaw differed from that in Decision
                      29-30/94 in that Mr Shaw was approached in a public place after unsuccessful
                      efforts over a month to contact him by telephone.  It added:

In fact, this was a chance encounter, the presence of Mr Shaw's car having been noted by one of Mr Shaw's
dissatisfied customers who drew it to the attention of the reporter.

                vii) TVNZ stated it could substantiate its claim about the dissatisfactions felt by some
                     others who had had dealings with Mr Shaw.

Standard G5 (principles of law) was the next issue addressed.  TVNZ maintained that Mr Millbank gave verbal notice to Fair Go, and that Disputes Tribunal proceedings were noted for their informality.  The case was withdrawn by Mr Millbank – there was nothing "purported" about it – and TVNZ argued:

We hold to the view that contempt is not an issue here.  Should the Authority consider otherwise we have prepared, with legal advice, a detailed argument against this being a case of contempt.  To provide it at this stage, we submit, will obscure the main elements of this complaint but we repeat our request for leave to present it should the Authority feel that contempt (and therefore the principles of law) is an issue.

The allegation of a deceptive practice (standard G7) was then canvassed and, TVNZ contended that it was not the practice in any programme for material to be read in its entirety.  The item reported that Mr Millbank was tired of the strained communication between Mr Shaw and himself.  TVNZ had not been aware and of, and had no reason to suspect, Telecom's action against Mr Shaw.  It would have been investigated if Mr Shaw had told Fair Go about it.  TVNZ continued to maintain that the other disputes between Mr Shaw and Mr Millbank were irrelevant.

TVNZ considered that standard G14 was inapplicable as Fair Go was not a current affairs programme, although the requirements in the standard had been met.

Finally, in relation to standard G19, TVNZ did not accept that either party had a duty to advise Fair Go of the Disputes Tribunal proceeding.  There was no justification to delay the item which TVNZ insisted, was in the public interest.

Mr Shaw's Second Final Comment – 23 June 1997

Dividing its response into the same sections, Mr Shaw's solicitors did not, under standard G1, accept that there was a verbal agreement as to the completion date; it argued that the Master Builder's Report was opinion rather than fact; and maintained that the item should have dealt with the issue of a Code Compliance Certificate.  Pointing out that a telephoned withdrawal of a Disputes Tribunal claim was not a formal withdrawal, as the North Shore Disputes Tribunal said it had to be in writing, the letter added that neither Mr Shaw nor his lawyers was advised of the withdrawal.  The letter commented:

Fair Go claims it cross checked Mr Millbank's facts by speaking to three other private clients and two trades people who had allegedly done business with Mr Shaw.  We submit that this is merely cross checking of opinion rather than cross checking of facts.  Fair Go could easily have asked to see a copy of the Sale and Purchase Agreement and/or sought factual confirmation from the Rodney District Council, Mr Millbank's solicitors, Mr Shaw solicitors and the Disputes Tribunal.

As for the points raised under standard G4, the solicitors wrote:

                i)    the allegations made by "other dissatisfied customers" were not put to Mr Shaw;

                ii)    Fair Go could have advised Mr Shaw from the outset that the call was being taped;

                iii)   As for the withdrawal of the Disputes Tribunal claim:

It is submitted that notification of withdrawal was not passed on because Mr Millbank and Fair Go wished to retain the upper hand.  Had Mr Shaw been made aware that the matter was withdrawn he may have had a different attitude to providing Fair Go with his side of the story.

                iv)   The solicitors contended:

We reiterate that no messages were left by Fair Go for Mr Shaw to contact them.  Our client's home telephone number is the same as his work telephone number.  He also has a telecom call minder service operating and call waiting.  His office is staffed during normal working hours.  Further, it would appear that Fair Go tape telephone conversations as a matter of course.  In that event it should be easy for Fair Go to substantiate the efforts made to contact Mr Shaw by orthodox means before door stepping him in the carpark.  No reference is made by TVNZ to any documentation which supports the attempts made to contact Mr Shaw.

                v)    TVNZ had acknowledged it sought an interview with Mr Shaw the day after
                       he was doorstepped.

                vi)    Doubt was cast on the "chance encounter" explanation given the time it had
                       taken to travel from Auckland to Orewa. 
                       The solicitors argued that Mr Shaw was being tracked in order to initiate a
                       "doorstep" interview.

                vii)  The claims from the other "dissatisfied" customers were not substantiated on
                      the programme.

It was argued, under standard G5, that Fair Go had ample time to notify Mr Shaw of the withdrawal but had chosen not to do so.  Written verification was required of a withdrawal, and TVNZ's lack of knowledge on this point questioned its claim of "considerable experience" on the issue.  It was TVNZ's duty, they maintained, to check that the withdrawal had taken place.

As the first matter under standard G7 (deceptive practice), the solicitors observed:

We note Fair Go has no comment in relation to the suggestion that they could have included [in the item] the last paragraph of the first page [of the letter] to show that Mr Shaw was quite happy to communicate and deal with Mr Millbank via Mr Shaw's solicitors.

On the basis that Mr Shaw was under no duty to disclose anything, the solicitors claimed that Fair Go would have been aware of the Telecom matter as it was covered in the letter from which extracts were screened.  They added:

How could Mr Shaw advise Fair Go of anything when he was not aware he was being investigated until he was door-stepped on camera.

Finally, in reference to standard G19, the solicitors contended that Mr Millbank had a definite duty to disclose all the information relevant to his complaint.  The item, they wrote, was not in the public interest, but merely supportive of Mr Millbank's opinion.

The solicitors concluded:

The response by TVNZ seems to be highlighted by a certain lack of candour and forthrightness.  One would have expected that in the context of a complaint to the BSA TVNZ would be completely candid and frank by disclosing all details of what it had done, the contacts it had made or attempted to make, the people with whom it had spoken, thereby assisting the Authority itself to be satisfied that this was truly a well balanced, objective programme.  The lack of proper explanation and in particular the lack of proper detail in many of the instances could be taken as reluctance to be forthcoming for fear that in doing so TVNZ may indeed be caught out.  This must be all the more so in the case of other people who are alleged to be dissatisfied customers.

Further Correspondence

After its initial consideration of the complaint, the Authority asked TVNZ (on 29 May 1997) to advise the extent of the efforts made to contact Mr Shaw before the meeting outside the Rodney District Council buildings which was shown during the item.

TVNZ advised (on 25 June 1997) that Fair Go had made every effort to contact Mr Shaw by orthodox means before approaching him in the carpark.  That had included a number of visits to Mr Shaw's office but each time Mr Shaw had been unavailable.

TVNZ wrote:

Thus we assert that every effort was made to contact Mr Shaw before "Fair Go" resorted to the not unreasonable approach in a public place.

TVNZ's Response to the Complainant's Letter of 17 June – 25 June 1997

In response to the complainant's letter, TVNZ pointed out that it had not been able to put to Mr Shaw the comments from "other dissatisfied customers" as he made it clear that he would not talk to the programme.  Because he had hung up, it had not been possible to advise him that the call was being recorded.  TVNZ also wrote in regard to the meeting in the carpark:

Fair Go was in the Orewa area on that particular day attempting to talk to clients of Mr Shaw.  That they should come across him as well was a chance encounter.

TVNZ concluded:

In reference to the final paragraph, we deny emphatically that we have been less than frank or candid in responding to this complaint.  We are surprised that Graham and Co should imply that the response require TVNZ to identify all the people spoken to during the course of a journalistic enquiry.   The protection of journalistic sources is, as the Authority is aware, a fundamental principle of a free press; without such protection the unfettered flow of information so precious in a democracy and enshrined in New Zealand's Bill of Rights Act would be stifled.  We are aware there is no specific legal protection for journalists but a study of case law will show that the judiciary has by tradition recognised what has become known as the "newspaper rule" and has not, except in the most extraordinary circumstances, pressed journalists to reveal confidential sources.

The Complainant's Response – 9 July 1997

Mr Shaw's solicitors sent the Authority an article from the "New Zealand Woman's Weekly" of 21.4.97 which noted that while a Fair Go crew had been secretly filming a business in Orewa, they had been approached by the police who had been called by a nearby bank because they were suspicious of the van.  Attaching a plan of the locality, the solicitors said it showed, on the day that the door-stepping occurred, that Fair Go was likely to have been attempting to film Mr Shaw.

Further, they referred to a statement made by Mr Millbank at the Disputes Tribunal on 6 March when he said he went to Mr Shaw's office on 23 January to speak to Mr Shaw.  He said that he was wearing a hidden microphone co-ordinated by Fair Go.  However, Mr Shaw was away.  The solicitors wrote:

These two incidents tend to suggest an operation more of a clandestine nature than one would expect to find in a consumer affairs programme.

The solicitors argued that TVNZ's statement that Fair Go's meeting with Mr Shaw in the carpark was a chance encounter was incorrect.  With reference to the above statement, the solicitors submitted:

The newspaper rule which is referred to in that paragraph is generally applied only in defamation cases and not in other cases.  We refer you to the Court of Appeal decision in European Pacific v TVNZ [1994] 3 NZLR 43.  Whilst there are certain circumstances in which the Court will not order disclosure of sources if there is a good reason not to do so, the protestation contained in TVNZ's paragraph is quite wrong.  It is simply a misstatement of the law.

TVNZ's Response – 22 July 1997

On the basis that it was challenging the damaging innuendo in the above letter, TVNZ said that Fair Go was in Orewa on 4 February to speak to other complainants about Mr Shaw.  While the van was parked at lunchtime and while the reporter was out, the cameraman noticed a car backing out of Mr Shaw's property and had filmed it.  It was found to be useful to the story.

In regard to the incident on 23 January, TVNZ said that Fair Go had been in Orewa to interview Mr Millbank in his home.  The reporter had earlier, unsuccessfully, tried to see Mr Shaw in his office.  As Mr Millbank had business at Mr Shaw's office on that day, Fair Go had filmed him going into the office.  Fair Go had stayed in case Mr Shaw returned to his office when it would have attempted to arrange for a time for an interview.

A further interview with Mr Millbank was conducted on 4 February and, on that day, Fair Go made contact with other people who had complained about Mr Shaw.  Information from these people, TVNZ reported, was collected on the basis that their identities would remain confidential.  TVNZ concluded:

We hope that this will be the end of the correspondence on this matter and that the Authority can proceed to a determination of the complaint.

The Complainant's Further Response – 30 July 1997

Mr Shaw's solicitors enclosed a letter from the Police in Orewa which reported that a bank employee had noticed a plain van parked near the bank from 10.00am to 2.00pm.  An occupant had a video camera which was directed towards the intersection between the Hibiscus Coast Highway and Florence Ave.  Because of the possibility of suspicious action, the police were called by the bank at about midday.  A constable checked the van which contained three people.  He recognised one as a Fair Go presenter who told him they were seeking footage of a person leaving an address on the Highway.

The solicitors stated that this letter refuted TVNZ's claim of a "chance encounter" between Fair Go and Mr Shaw.  Further, they pointed out, TVNZ had not denied the claim that Mr Millbank was wearing a hidden microphone when visiting Mr Shaw on 23 January.

The solicitors said they could not understand why the identities of the other complainants had to remain confidential – especially in view of their critical comments about Mr Shaw.  They concluded:

TVNZ has said nothing new in their latest response.  Indeed, TVNZ have already been less than frank in their explanations and they have continued to modify their arguments to their position as new factual matters are raised by us.  We believe our submissions have remained entirely consistent and been well supported by documentary evidence.

We do not wish to comment further unless TVNZ introduce some new material but we would be pleased to receive any final comments that TVNZ have to make.

Further Correspondence

Expressing some trepidation at continuing the correspondence, in a letter dated 6 August 1997 TVNZ said that the chronology outlined in the complainant's solicitors' letter was incorrect.  Fair Go, it said, went to Orewa at about 11.30am, spoke to Mr Millbank, and on to the Orewa shopping centre at midday.  Just after 1.00pm, it wrote, Mr Shaw was interviewed in the Council carpark, after Fair Go was told that his car was in the public carpark there.  The crew, TVNZ insisted, were only in the vicinity of the National bank for about an hour while eating their lunch and monitoring Mr Shaw's property.

TVNZ added that the other customers spoken to had been interviewed only on the basis that their names would not be used.  Mr Shaw, TVNZ concluded, refused to speak to the programme about the claims made about him.

In their reply (13 August 1997), Mr Shaw's solicitors said that he had been at a meeting until 1.40pm – for which minutes were available – to counter TVNZ's claim that Mr Shaw had been interviewed at 1.00pm.  TVNZ's submissions, they said, showed little consistency.