BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

---

An appeal against this decision was dismissed in the High Court:
HC 176/94 436.22 KB

---

Summary

Problems associated with the extent of cover provided by crop insurance were examined in

two Fair Go programmes broadcast by Television New Zealand Ltd on Channel Two at

8.00pm on 15 and 29 September 1993.

The Managing Director of Jardine Insurance Brokers Ltd complained to Television New

Zealand Ltd that the two broadcasts contained inaccuracies, lacked balance, were unfair

and were in breach of broadcasting standards.

After resolving some procedural matters concerned with the threat of legal proceedings,

TVNZ investigated the complaint, and concluded that there was no breach of broadcasting

standards. Accordingly, it declined to uphold any aspect of the complaint.

Dissatisfied with that decision, Jardines referred the complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upheld some aspects of the complaint that the

items were unbalanced and unfair.

Decision

The members of the Authority have viewed the programmes complained about and have

read the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

The Complaint

The effects of a particularly bad growing season on holders of crop insurance was the

theme of two programmes on Fair Go. The first, screened on 15 September 1993,

concerned a couple in Tolaga Bay whose corn and maize crop had been severely damaged

by rain. Although they had insured against crop loss, there were some difficulties in

pursuing the claim although by the time the programme came to air, they had been paid

their claim in full. The second programme was screened on 29 September and focused on

tomato growers in Hawkes Bay whose crop insurance claims had not been honoured and

who, it was said, had lost or would lose millions of dollars. In both programmes, Jardines,

the insurance broker which had negotiated the crop insurance cover, was implicated in

the losses.

Jardines complained to TVNZ that the programmes contained errors and omissions which

breached the standards requiring the broadcaster to be fair, impartial and accurate. It

cited examples from each of the two programmes of errors of fact, and assertions and

accusations that it maintained were not supported by the evidence.

Jardines requested a correction, retraction and apology for the damage done to its

reputation.

The Authority wishes to stress from the outset that this complaint has been a protracted

and complex one for a variety of reasons, including the following. First, the insurance

cover on growing crops involves a significant number of variations, negotiable or non

negotiable, from the customary indemnity policy to which most insurers are accustomed.

Secondly, in the case of some of the growers featured in the second programme, it involved

the replacement of the previous underwriter for those who had formerly had this form of

cover and thirdly, at least one and possibly more of the parties was insuring for the first

time.

The Authority is not competent nor does it believe that it is possible in all the circumstances

to make finite decisions as to the respective duties and responsibilities to each other of the

underwriters, brokers and clients involved. The complexities of these relationships is

clearly evidenced by the problems which have arisen subsequent to the crop damage.

The Authority has therefore confined itself to deciding whether the presentations in both

programmes were in all the circumstances and in the light of the material supplied to it by

the complainant and broadcaster acceptable within the terms of the Broadcasting Act

1989 and the Television Code of Broadcasting Practice.

The Programmes

To ensure an understanding of the issues, the Authority includes the following summary

of the programmes.

Programme One

Alluding to the fact that insurance is a topic often investigated by Fair Go because many

people have problems with interpretation of a policy, the presenter explained that in this

case, the consumer suffered because of a failure to pass on key information.

The story then focused on one couple, the Rushtons, who had "a horror story about a

$25,000 insurance claim and a brokerage firm called Jardines". The Rushtons had decided

to take out a crop insurance policy for the 1992–93 growing season, which, reported

Fair Go, was the worst season for about 40 years. As a result of damage to their crop, the

Rushtons lodged a claim with the insurer.

Their claim was initially declined by the underwriter, State Insurance, because of late

notification, although subsequently the amount was paid in full. The Rushtons, the item

reported, had not been told about the clause in their policy which stipulated that the

insurer must be notified within 48 hours of the occurrence of an event likely to cause

damage. Mrs Rushton also explained that they had been led to believe they had cover

from the date of the planting to the date of harvest, when in fact cover did not commence

until January and expired in April and their policy did not arrive until March.

However, Fair Go noted that the Rushtons were paid out on their claim, the reporter

stating that it could not be estimated what influence Fair Go's involvement may have had

in that outcome.

Fair Go concluded that Jardines had "failed miserably" in its job as broker by not keeping

the Rushtons informed as to the terms and status of their policy, and noted that Jardines

had declined the offer to appear on the programme.

The programme concluded with the observation that although the Rushtons received their

pay-out, other growers, whose losses ran into millions of dollars, had not fared so well.

Programme Two

The second programme, broadcast two weeks later on 29 September, continued the theme

that following the worst growing season in memory, growers in Hawkes Bay who had

expected to be protected by their crop insurance policies discovered that they were not

covered.

According to Fair Go, the growers were reluctant to be interviewed because they did not

want to jeopardise future negotiations with the insurers.

One spokesperson claimed that the insurance problem arose because the wording of their

policy was "totally different" from the one they had the year before from another insurer.

Another grower confirmed that the wording was "substantially different", while yet

another, who did not appear on camera, was reported to have lost hundreds of thousands

of dollars because the insurance he ended up with was not what he had paid for.

Fair Go reported that it had invited Jardines to appear to answer the concerns of its clients,

but that Jardines had declined. The programme concluded by noting that the

underwriters, State Insurance, met with Jardines on the morning Fair Go began filming

and that growers' claims were being reassessed.

Although it agreed that was a positive outcome, Fair Go maintained that growers deserved

to know why the cover was not fully explained to them in the first place and why

premiums were paid for insurance that turned out to be something different from what

they had been led to believe.

Procedural Matters

In its initial response to the complainant, TVNZ expressed its reluctance to respond in detail

to the allegations because of Jardines' threat to commence legal proceedings against TVNZ

if the complaint was not satisfactorily resolved. It requested that the Authority defer

making its decision until the legal action had been resolved, citing the High Court decision

in TV3 Network Services v Eveready New Zealand Ltd (1.11 MB) in support. It advised that if the

Authority did proceed to determine the complaint, it would seek a judicial review of that

decision.

The Authority, on advice from the Crown Law Office, advised TVNZ that it intended to

determine the complaint, distinguishing the Eveready case on its facts.

TVNZ's Description of the Programmes

TVNZ submitted that it was normal practice for a broker to advise and explain to its clients

the full details of the terms and conditions of their policies. It maintained that because

Jardines had failed to do so, and because Jardines had been tardy and less than

forthcoming in its relationship with its clients, it had been responsible for the growers'

difficulties with their crop insurance.

Although it denied that the programme was unbalanced, TVNZ pointed to Jardines'

reluctance to appear on the programme or to respond to written questions prior to the

broadcast which in its view, made it difficult for Fair Go to undertake its investigation.

The matters allegedly in breach of broadcasting standards and the Authority's

decisions

Jardines claimed that standards G1, G4, G6 and G19 of the Television Code of

Broadcasting Practice were contravened in the two programmes. Those standards 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.

G6   To show balance, impartiality and fairness in dealing with political matters,

current affairs and all questions of a controversial nature.

Standard G19 reads:

G19  Care must be taken in the editing of the 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.

For clarity, the Authority records below the arguments of the complainant and TVNZ and

its own findings on the main points raised by Jardines. It also observes that the length of

time taken to determine this complaint has been necessitated by the lengthy

correspondence and the large number of issues raised by the parties.

At the outset the Authority notes that many of the large number of issues raised by this

complaint overlapped and many required specialised knowledge. Some aspects of the

complaint raised issues about factual matters which the Authority was not able to resolve

such as, for example, in Programme 1 where some opinions proffered by the Rushtons

were disputed by Jardines. The Authority, in such instances, subsumed the accuracy

complaint under standard G6 and assessed the competing arguments on the basis of

whether both sides of the argument were presented and viewers given an opportunity to

make up their own minds.

Programme One

The thrust of this programme was that because the Rushtons had not been kept fully

informed by Jardines, the insurance broker, their livelihood was risked when their claim

was turned down by State. It was suggested that Jardines was responsible for the financial

problems which beset the Rushtons and other East Coast growers because it failed in its

responsibilities to its clients.

The programme alleged that the Rushtons were misled about the following matters:

1. The duration of the policy

There was a direct conflict between the parties on the date the insurance cover

commenced. The Rushtons claimed that they were told by Jardines' representative on 24

November 1992 that an underwriter was in place and cover had commenced, when the

facts revealed that cover did not start until 8 January 1993 and they did not receive their

policy until 8 March (although it was posted on 25 February). They also expressed

surprise when they learned that the cover extended only to 30 April and not until the date

of harvest as expected.

The Authority noted that it was not a breach of standards to report an honestly-held

opinion, even if the accuracy of that opinion was later challenged. The Authority believed

that even if, as Jardines claimed, its agent made no claim that cover began immediately, it

was possible that he conveyed to the Rushtons the impression that it did. Although the

Authority believed it was not entirely fair to Jardines to accept the Rushtons' belief

uncritically as an accurate record of the meeting with Jardines, it was of the view that had

Jardines responded to the Fair Go request to answer a series of questions prior to the

programme, then the Rushtons' claim that they were assured the cover was in place in

November might well have been challenged. A question in the fax dated 14 September, the

day before the programme was broadcast, asked:

Does Jardines believe it acted properly in leading the Rushtons to believe an

underwriter had been secured [in November] when in fact this was not the case?

In spite of the request being made only the day before the broadcast, the Authority

believed that a substantial organisation such as Jardines would have had the facilities

available to respond with some effectiveness even in that time frame. Since only the agent

could confirm what actually happened, and even then what he said might have been

misinterpreted, the Authority was unable to resolve the allegation that there was a breach

of standard G1 which requires the broadcaster to be truthful and accurate and declined to

determine that aspect of the complaint.

With respect to the expiry date of the policy, TVNZ maintained that Jardines should have

advised the Rushtons at the time the policy terms were negotiated that the term finished

on 30 April.

Jardines responded that crop insurance cover beyond 30 April was not offered because the

risks of inclement weather were too high to insure against.

In the Authority's view, Jardines should have taken the opportunity to clarify this point,

and when it was asked by Fair Go on 14 September:

...what use is a policy that expires before harvesting?

it could have explained that crop cover beyond 30 April is normally not available because

the weather deteriorates and the risk becomes unacceptable.

It seemed to the Authority that the Rushtons were naive about the policy and its terms if

they believed that cover extended from the time of planting (ie before they had negotiated

the terms) until harvest. Had they read the policy when it was received in March, they

would have been under no such misapprehension. However, because Jardines made it

difficult for Fair Go to research matters fully by not responding to the questions asked, the

Authority declined to uphold the complaint that this aspect of the broadcast was in breach

of standard G4.

2. The 48-hour notification clause

A clause in the policy required policy-holders to notify the insurer within 48 hours of an

event likely to cause damage. The Rushtons' claim was initially denied because they had

failed to notify the insurer within that time. In their defence, they claimed that they had

been unaware of that clause in their policy.

TVNZ's position was that it was Jardines' duty to apprise its clients of the clause in the

policy. It accused Jardines of withholding key information from the Rushtons thus

causing unnecessary hardship and anxiety because it had not alerted them to this clause.

Responding to this accusation, Jardines claimed there was nothing unusual about such a

clause and, furthermore, common sense dictated that the underwriter or broker should be

informed immediately when an event which has the potential to cause damage occurs.

Observing that the Rushtons had been unaware that damage had occurred, and that they

still took weeks to notify the underwriter when they were finally made aware of the

potential damage, Jardines noted that nevertheless they had suffered no financial loss and

were compensated in full.

The Authority considered that this was one of the critical questions in its decision. It

believed that it was reasonable to assume that on receipt of the policy, the Rushtons would

have read it and learned of the 48 hour notification clause. Therefore, in the Authority's

view, it was Fair Go's responsibility to question the Rushtons as to why they delayed for

more than 5 weeks after receiving their policy before they reported that there had been

crop damage. Secondly, it considered that the Rushtons should have been questioned on

when they became aware of the likelihood of crop damage, especially since Jardines said

(and it was not disputed) that when the heavy rain occurred, Mrs Rushton was away for a

month and Mr Rushton had not indicated to anyone the possibility that damage had

occurred. Thirdly, the Authority took the view that it was misleading to suggest that the

claim was turned down simply because the Rushtons had not notified within the 48 hour

time frame, especially since the later correspondence revealed that another reason which

contributed to the claim being turned down was that the damage could not be attributed

to any one event. Although Fair Go might not have known this, it should have asked State

Insurance about the reasons for declining the claim, in an attempt to verify the Rushton's

story. The Authority was of the view that the Rushtons' problems were not caused

exclusively by Jardines failing to tell them about the 48-hour clause, but by their failure to

act on it when they did know.

Jardines, the Authority noted, had been given an opportunity to explain its position on the

48-hour clause when it was asked on 13 September:

At what stage were the Rushtons told of the need to give 48 hours notice of crop

damage to qualify for cover under their insurance?

and on 14 September:

Why weren't the Rushtons told much earlier on about the 48 hour notification

clause?

Although the faxes arrived only one and two days before the broadcast, the Authority

considered that Jardines should have been able to respond in that time. However, it

believed that Fair Go should have asked the Rushtons why it took them so long to notify

the insurer and why they had not read their policies. Further, the role of State Insurance,

particularly its apparent tardiness in sending out the policies, should also have been

investigated.

Although the Authority believed that it was not unreasonable for Fair Go to adopt the

position that the broker should discuss key clauses with its clients, it was also of the view

that there was a duty on the clients to ensure that they read and understood their policies

when they received them. Had the Rushtons notified State immediately on receipt of their

policy that damage had occurred, State would no doubt have found it more difficult to

turn the claim down on the basis of late notification, since it could not have expected the

Rushtons to know about the clause when they did not have their policy. The Authority

considered the reporter should have challenged and questioned the Rushtons' views and

opinions especially since it should have been evident that they had, to some extent,

contributed to their predicament.

The Authority concluded that because the programme omitted to include this information,

it was unbalanced and in breach of standard G6. It acknowledged that it would have been

preferable to have had comment from Jardines, but noted that more thorough

questioning of the Rushtons might well have revealed the true situation.

3. Jardines' job to look after the Rushtons

The criticism of Jardines by Fair Go was based on the premise that it neglected its duty to

look after its clients and that it failed to pass on key information.

Jardines, in the correspondence which ensued after the broadcast, maintained that this

was unfair, pointing out that it had forwarded to the Rushtons all of the relevant

information from State as soon as it came to hand and also noting its role in lobbying State

on the Rushtons' behalf to get the claim paid out.

TVNZ observed that it had been unaware of any role Jardines had played because it had

not been privy to the negotiations between State and Jardines.

The Authority observed that in the programme, Fair Go had hinted that it might have

been the catalyst for resolving the claim. It considered that the broadcast gave an unfair

impression of the role Fair Go might have played, and whilst word that Fair Go was

investigating might have reached the underwriters before the direct approach was made,

it should have acknowledged that the investigating staff member from State Insurance

had already recommended that the claim be paid before Fair Go became directly involved.

In the Authority's view, Jardines was given a reasonable opportunity to explain how it

lobbied on behalf of the Rushtons and in particular to clarify its role in the negotiations

with State Insurance. The question put to Jardines in the fax dated 14 September asked:

Does Jardines believe it has represented the Rushtons' interests to the best of its

ability?

When it chose not to comment on how it represented its clients' interests, Jardines put up

an obstacle to Fair Go's reporters, who were not privy to the detail of the negotiations

which were proceeding. The Authority decided that if a party chose not to comment, then

it had to bear part of the responsibility for not having at least part of its side of the story

presented.

However, in spite of Jardines' unwillingness to respond, the Authority considered that Fair

Go had access to sufficient information which would have provided balance to the

Rushtons' accusation that Jardines had not looked after them. Fair Go should have

investigated State's role in the chronology, including its reasons for not sending the policy

to Jardines until 19 February, even though verbal confirmation of the proposal had been

given on 8 January. By stating in the programme:

The policy with that important 48 hour clause didn't arrive till March, half way

through the growing season and it expired just seven weeks later.

it was open to viewers to reach a conclusion that was not favourable to Jardines. The

Authority considered that because the programme did not adequately investigate the

reasons for the late arrival of the policy, Jardines was treated unfairly and concluded that

there was a breach of standard G4.

4. Livelihoods were threatened by insurance problems

The programme pointed to insurance problems which had put people's livelihoods at risk.

Jardines accused Fair Go of exaggeration and hyperbole, pointing to the fact that in the

case of the Rushtons, the rain damage was restricted to only about 10 per cent of their

total crop and further, that the claim had been paid before the programme went to air.

Jardines also objected to the suggestion that it was the villain in this story and that no

mention was made of the role of State Insurance.

TVNZ reported that it was the Rushtons themselves who described their situation as

financially precarious and that when their claim was denied initially they felt that their

livelihoods were at risk.

The Authority had no reason to doubt that the Rushtons did feel that their livelihoods

were threatened. It considered that it was quite possible that the $25,000 could have been

the difference between profit and loss. Accordingly it declined to uphold the complaint

that this statement was inaccurate.

Programme Two

The thrust of this programme was that the terms of crop insurance policies were different

from those of previous years and growers' chances of recovering losses amounting to

millions of dollars may have been prejudiced because of those differences. According to the

programme, Jardines led growers to believe that the new contracts would be very similar

to those underwritten by the previous insurer, whereas in fact when they were received

they were "substantially different". However, by the time the growers received their

policies it was already too late as the crops were in the ground.

Jardines complained about the following statements:

1. The wording of the policies was substantially different

Growers complained to Fair Go that because of differences in the wording of their policies,

they did not have such a comprehensive coverage as they had under the previous policies

offered by another company. Because the terms were different, their chances of

recovering under the policies may have been prejudiced. The growers believed that

Jardines should have alerted them to those differences.

Jardines pointed out that Fair Go had been advised by State Insurance prior to the

broadcast that although there were specific differences there were no inconsistencies

between the policies. It maintained that growers were advised by the broker before the

cover commenced that there would be some differences and commented that growers had

no choice of insurer since no other company was offering coverage. Jardines also noted

that although the so-called 95 percentile clause was a departure from the previous policy,

no claim had been denied under that clause and accordingly, it had no relevance to the

growers' losses.

TVNZ provided a legal opinion which itemised the specific differences between the policies

and argued that those differences could have resulted in many claims being rejected. It

was apparently unaware until advised by Jardines that in fact not a single claim was

turned down as a result of those differences, although it referred to one grower who had

been advised that he had a good case against State, on the basis of the 95 percentile clause,

to recover money which State had refused to pay out.

In the Authority's view, the substantive issue was not whether the variations between the

policies were "inconsistencies" or "differences" but whether anyone was actually

disadvantaged by the different terms in the policies. The Authority noted that TVNZ

seemed to accept Jardines' point that no claim had been denied because of those differences,

although TVNZ alluded to Cedenco Foods' $3.1 million claim against State Insurance and

hinted that one aspect of the case was Jardines' failure to pass on information. However,

the Authority considered this reference fell far short of the proof required to substantiate

the allegation that Jardines was implicated in the millions of dollars of losses which were

incurred.

It believed it was unfair to suggest that the reason growers were having difficulty in

recovering their claims was because the policies were worded differently. It accepted that

was the view of growers but considered that Fair Go should have investigated more

carefully the reason why claims were turned down, and examined the role of State

Insurance in declining those claims. The Authority concluded that attributing blame to

Jardines in the manner which the programme did was unfair and this aspect of the

programme was in breach of standard G4.

2. Jardines failed in its duty to inform clients

It was suggested on the programme that growers' losses were caused because Jardines had

failed to advise its clients that the policies were worded differently from those of previous

years.

Jardines did not deny that the wording was different, but argued that the differences were

not "substantial" as was claimed in the programme. It maintained that growers were

advised of the differences before they signed their policies.

TVNZ responded that it was simply reporting the view of many growers and argued that

Jardines had failed in its duty to inform its clients.

The Authority could understand why growers were aggrieved and why they tried to

allocate blame. It cannot resolve the conflict of evidence about whether or not growers

were informed that there would be some differences. In a fax dated 27 September 1993,

Fair Go asked:

Were tomato growers in Hastings made fully aware that insurance policies for the

92/93 growing season would be substantially different to those of previous years?

Because Jardines was the only party which could refute the allegation that it failed to

inform its clients, the Authority considered that by refusing to respond to Fair Go's

question, it therefore had to accept responsibility for the fact that the growers' opinions

were not challenged. The Authority declined to uphold the complaint that this aspect of

the programme was in breach of standard G4.

3. Growers were fearful of talking to Fair Go

The programme suggested there were many disaffected growers in the district but that

they were fearful that, if they appeared on camera, they might jeopardise their position.

Only one grower agreed to be interviewed for the programme and he was seen to be very

cautious in his response to the interviewer's questions.

Jardines complained about the innuendo of intimidation and the suggestion that growers

were fearful they might prejudice any future case against either Jardines or State. It

pointed to its letter (a copy of which was sent to Fair Go) asking growers to advise it of any

problems with their crop insurance.

TVNZ denied that there was any implication of intimidation by Jardines or State

Insurance. Agreeing that the growers' reluctance to appear may have been unwarranted,

TVNZ nevertheless supported their wish not to do so.

The majority of the Authority believed that, in the context of a story which portrayed

Jardines as the villain, to report baldly that growers would not appear on the programme

for fear of jeopardising their positions was likely to be interpreted by viewers to mean that

they had been intimidated into silence by Jardines. It considered that when a programme

casts a negative light on a person or entity, viewers are especially receptive to taking

negative inferences from any ambiguous or vague statement, even if the programme

makers do not intend to make a negative implication and even if they believe the

statement to be something of a "throwaway line". Particularly in a story making serious

allegations against a person or entity, as this one did - suggesting that Jardines was

responsible for the loss of many millions of dollars by crop growers - the majority

considered the brief and ambiguous explanation of the growers' refusal to appear on the

programme was inadequate and unfair to Jardines.

However, the minority could understand why growers were reluctant to appear on

television criticising either Jardines or State Insurance, believing this might jeopardise

future relationships. Further, it accepted that if that was their view, it was legitimate for it

to be reported. The minority declined to uphold this aspect of the complaint.

4. Interview with grower (Tim Symes)

One grower was interviewed in the programme and expressed, albeit reluctantly, a view

that the insurance problems stemmed from the "substantial differences" in the policy.

Jardines reported that it was advised by this grower that he and other growers had been

hounded by Fair Go and that he was unhappy with the interview as broadcast. He

reported that when asked on camera whether he was unhappy with Jardines, he had

responded "No". Since this part of the interview was not broadcast, Jardines accused TVNZ

of dishonesty in using a selective editing practice. It also accused the Fair Go reporter of

asking leading questions.

Responding to this accusation, TVNZ reported that the grower had been very forthcoming

off camera and had expressed his dissatisfaction with Jardines in preliminary discussions

with the reporter. Acknowledging that he had changed his story on camera, TVNZ

explained that it would have been misleading for Fair Go to broadcast the denial when it

was so clearly contrary to the responses he had repeated earlier. TVNZ denied that it had

hounded growers or made any dishonest editorial decisions and explained that the

questions were only leading because the grower had given his answers to them in the

earlier discussion.

The Authority believed that it was dishonest to edit out the highly significant comment

that this grower was not unhappy with Jardines. It considered that it should certainly

have been included and the reporter could then have challenged him on camera as to why

he had changed his story, and thus allowed the viewer to judge the credibility of what he

said. Although it recognises that the format of Fair Go requires succinct interviews, the

Authority nevertheless considered in a major story such as this, it was important to make

the time to deal fairly with those involved. It upheld the complaint that the editing of the

interview was in breach of standard G19.

5. It was too late...

The programme stated that, having paid their premiums, when growers received their

policies, they discovered that they were totally different from the year before, but by then

it was too late to do anything about it. The presenter stated:

...the growers thought they'd be covered for certain things, but they didn't have a

policy, but when they got the policy the plants were already in the ground and by

then it was just too late to do anything about it.

Jardines challenged this assertion, pointing out that no grower had approached it to cancel

their policy or to reverse their premium payments. It also refuted the suggestion that it

was too late for growers to decide not to plant any crops, observing that the planting

began months before cover was even available.

In response, TVNZ reported that growers had held a meeting at which some had tried to

cancel their payments, but had found that the policies were irreversible. It suggested that

the purpose of the meeting was to discuss concerns about the new policies.

The Authority found this aspect of the story confusing and considered that the matter was

not properly explained. It was not clear what was meant by "too late". In the

correspondence, TVNZ suggested that Fair Go meant that it was too late to get other cover.

In fact, that was not an option – Fair Go knew that there was no other insurance

available. It was certainly too late to plant other crops, and apparently, after their

meeting growers learned that it was too late to recover their premiums since they had

already been paid. Whatever was meant by "too late" was left open and the Authority was

of the view that by omitting the point that there was no other insurance available, it was

possible that viewers were led to an unfair conclusion about what was meant and it would

have been open to them to draw a number of unreasonable inferences which were unfair

to Jardines. Accordingly, it upheld the complaint that this aspect of the programme was in

breach of standard G4.

6. Jardines' refusal to appear and the identities of the growers

The programme referred to a grower "too exhausted emotionally and physically" to appear

on Fair Go who had lost hundreds of thousands of dollars, and to other growers who had

"files of correspondence" to and from Jardines on the crop insurance problems.

Jardines refused to comment on those growers' concerns, stating that it was not prepared

to discuss generalities and requesting the names of the individual complainants. It

complained that it was unfair to state on the programme that it had refused to appear

simply because the complaints were not specific enough. It maintained that the principal

reason why it did not appear was because it did not know who the complainants were.

Jardines accused Fair Go of dishonesty because it did not inform viewers of the real reason

why it did not appear.

TVNZ responded that Fair Go was unable to release that information to Jardines because

the growers had requested anonymity. However, it argued, the issues were general,

factual and legal and the identity of the individual growers was irrelevant. It maintained

that the correspondence between the growers and Jardines clearly identified the growers'

principal concerns.

The Authority was inclined to agree with TVNZ that the identities of the individual

growers were immaterial and that the questions put to Jardines before the programme

(copies of which were provided to the Authority) were specific enough to warrant a

response. The Authority considered that when there were a number of disgruntled people,

as in this case, it was not necessary to name them all. However, if they were not to be

named, there was a greater onus on the reporter to take particular care to ensure that the

party being complained about was dealt with fairly and that the programme had its facts

right.

It also believed it was somewhat unfair to Jardines when the story had apparently been

researched for some weeks that it was not approached until two days before it went to air.

Nevertheless, the Authority found it difficult to understand why Jardines was so

intractable on the issue of the identities of the complainants when it appeared to the

Authority that the issues were mainly general ones. It considered that had Jardines taken

a more conciliatory stance and responded to the questions put to it, the programme would

have been fairer to Jardines.

A majority of the Authority upheld the complaint that Fair Go's explanation of why

Jardines would not respond to its queries was an inaccurate summary of Jardines' position

and accordingly was in breach of standard G1.

The minority, on the other hand, considered that Jardines had to assume some

responsibility for its treatment in the programme because it was unwilling to cooperate

with its production. It concluded it was neither inaccurate nor unfair to state that the

reason Jardines refused to participate was because it did not think the complaints were

specific enough.

Summary

Overall, the Authority concluded that in a programme in which a number of serious

allegations were made about Jardines and its relationship with its clients, there was a

particular onus on Fair Go to ensure that those allegations were substantiated. The

Authority considered that it was particularly important that Fair Go made sure the

programme was correct and balanced, especially when only one of the growers was

prepared to appear on the programme to support those claims. The fact that TVNZ edited

out the grower's negative response when asked if he was unhappy with Jardines was, in

the Authority's view, a serious distortion of the truth. However, the Authority accepted

that Jardines' refusal to answer the questions put to it, especially after the first

programme, made it difficult, but not impossible for Fair Go to prepare a fair and balanced

programme.

Finally, the Authority repeats that it has been unable to deal with many of the issues raised

under standard G1 since they were factual ones disputed by the parties. In such cases, it

has subsumed those complaints under either standard G4 or G6.

For the above reasons, the Authority makes the following decisions about

the Fair Go programmes broadcast by Television New Zealand Ltd on 15

and 29 September 1993.

Programme One

The Authority upholds the complaint that standard G4 was breached

because:

it was unfair to suggest that Jardines did not look after the Rushtons

without including other relevant information;

and standard G6, because:

it was unbalanced to blame Jardines solely for the Rushtons' failure

to know about the 48 hour clause.

It declined to uphold the complaint that standard G1 was breached because:

the report that livelihoods were at risk was an honest belief; and

it declined to uphold the complaint that standard G4 was breached because:

the discussion of the duration of the policy was not unfair because

Jardines made it difficult for Fair Go to research matters fully;

and it declined to determine the complaint that standard G1 was breached

when it was reported that the Rushtons were advised in November that

they had cover, since it was not possible to confirm what exactly happened

at the meeting with the broker.

Programme Two

A majority of the Authority upholds the complaint that some aspects of the

programme broadcast on 29 September 1993 were in breach of standard

G1 because:

it was inaccurate to state that the reason why Jardines refused to

appear was because the complaints were not specific enough.

The Authority upholds the complaint that standard G4 was breached because:

it was unfair to suggest that growers were seriously disadvantaged

principally because the wording of the policies was substantially

different; and

the suggestion that it was "too late" for growers to do anything

contained an unfair innuendo; and

standard G19 was breached because:

the editing of the interview did not reflect what was actually said;

and

a majority upheld the complaint that standard G4 was breached because:

the innuendo contained in the report that growers were fearful of

jeopardising their position by talking to Fair Go was unfair to

Jardines.

It declined to uphold the complaint that the programme was in breach of

standard G4 because:

it was not unreasonable to claim that holders of crop insurance

should have been told what was in their policies and Jardines was

given a reasonable opportunity to debate this point and chose not to

do so.

Having upheld a complaint the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. Because the programmes made a number of accusations about

Jardines which were not substantiated, the Authority has decided to impose an order

which is a summary of this decision.

Order

Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders

Television New Zealand Ltd to broadcast a brief summary of this decision,

approved by the Authority, arising from complaints concerning items on

Fair Go on 15 and 29 September 1993. The statement shall be broadcast

during a Fair Go programme within one month of this decision and shall

make particular reference to the following points:

i) In Programme One it was unfair and unbalanced to suggest

that Jardines did not look after the Rushtons and to blame

Jardines solely for the Rushtons' failure to know about

the 48 hour clause in their contract without including other

relevant information.

ii) In Programme Two it was unfair to suggest that growers were

severely disadvantaged because their policies were worded

differently.

iii) In Programme Two the editing of an interview with a grower

did not reflect what was actually said because it edited out his

negative answer when asked if he was unhappy with Jardines.

iv) Overall, while it was recognised that Jardines' refusal to

answer the questions put to it made it difficult, Fair Go had a

duty to present fair and balanced programmes.

Signed for and on behalf of the Authority

Iain Gallaway
Chairperson
22 August 1994

Appendix

Jardine Insurance Brokers Ltd's Complaint to Television New Zealand Limited

In a letter dated 19 October 1993, Jardine Insurance Brokers Ltd complained to Television

New Zealand Ltd about items on two Fair Go programmes broadcast on 15 and 29

September 1993.

The items concerned growers who had experienced crop damage as a result of heavy rain

and the extent of insurance coverage under their insurance policies. Jardines complained

that the items breached, both by commission and omission, the broadcaster's obligation to

be fair, impartial and accurate. It alleged that the items contained assertions and

accusations about it which were not supported by the evidence and also contained

numerous errors of fact. Jardines advised that in its view the items were defamatory and

reserved the right to pursue its legal remedies.

By way of explanation, Jardines first outlined the role of the insurance broker (such as

itself) and the underwriter (who provides the insurance), pointing out that although it

was the broker's responsibility to monitor the relationship between the client and the

underwriter, the broker was unable to compel the underwriter to take any particular

course of action with respect to any claim. Jardines noted that in the end it was the

underwriter who set the terms of the policy and accepted or declined any claim under that

policy.

The 15 September programme

Jardines outlined the events concerning the case of Mr and Mrs Rushton, first from the

point of view of Fair Go, in which Jardines was portrayed as having been remiss and

negligent to their clients, and secondly with a chronology of the actual events. It then

listed the errors and omissions by referring to the transcript of the programme and

offering a comment on each of the allegedly inaccurate or incorrect statements made. The

item concluded with a statement that the situation of the growers discussed was "only the

tip of the iceberg" and that other growers, whose losses run into millions also pointed the

finger at Jardines. In response, Jardines described this as a very serious, defamatory and

damaging allegation and the inference which could be drawn was that Jardines were

being held responsible for millions of dollars worth of losses. Yet, as Jardines pointed out,

no evidence was advanced to support that claim in either of the broadcasts.

In summary, Jardines complained that the item ascribed to it total blame for the growers'

losses and completely ignored the considerable efforts it had made on behalf of its clients to

advance their case. Further, the item failed to recognise that there was fault on the part of

the growers themselves. It concluded:

Instead Fair Go, for reasons unknown to us, chose to mount a concerted attack on

the least culpable party in this matter. That attack was characterised by a

procession of misleading statements, errors of fact, the omission, deliberate or

otherwise, of pertinent material tending to undermine the programme's thesis,

dishonest reporting of events and of the statements of other parties and highly

damaging allegations about Jardines' relations with other clients and its

responsibility for millions of dollars of losses, allegations advanced without any

supporting evidence either in this programme or in the subsequent programme of

29 September.

The 29 September programme

Jardines outlined first the Fair Go version of the facts - that an unspecified number of

tomato growers on the East coast had lost or would lose millions of dollars in insurance

claims because Jardines had withheld information about their crop insurance and its terms

and further, that growers were so intimidated by Jardines and State Insurance that they

were unwilling to talk to Fair Go for fear of recrimination.

Jardines then listed the errors and omissions from the transcript and made comments on

each of the statements which it believed were in breach of broadcasting standards. It

particularly objected to the interview with a grower, indicating that growers it had spoken

to had stated that they were "hounded" by Fair Go to appear on camera. With respect to

the interview, Jardines reported that when the grower was asked on camera if he was

unhappy with Jardines he responded that he was not. Yet, this comment was not included

in the item – an example, in Jardines' view, of selective editing. Jardines also objected to the

inclusion of comment from an anonymous grower who, it was implied, lost hundreds of

thousands of dollars because of insurance problems.

Jardines explained that its refusal to appear on Fair Go was because it was not told who the

complainants were, adding that it considered it was entirely reasonable that it chose not to

respond to anonymous accusations. It then documented the exchanges between it and

TVNZ regarding the identity of the complainants.

Jardines summarised the item as stating that an unspecified number of commercial tomato

growers on the East coast had lost or would lose millions of dollars because Jardines had

not properly informed them of terms in their insurance policies. It accused Fair Go of

proceeding with the story in spite of being unable to obtain on the record complaints from

growers and claimed that in requiring Jardines to respond to anonymous and unspecified

complaints from growers, Fair Go had departed from acceptable journalistic practice.

Finally, Jardines requested that TVNZ be ordered to publicly correct the numerous errors

and omissions in the programmes and to apologise to it for the damage caused.

TVNZ's Response to the Formal Complaint

TVNZ advised Jardines of its Complaints Committee's decision in a letter dated 13

December 1993.

It advised that it had considered the complaint in the context of standards G1, G4, G6 and

G19 of the Television Code of Broadcasting Practice. Before dealing with the complaint it

considered two procedural matters. The first was that the complaint about the item

screened on 15 September had not been lodged within the 20 working day time limit.

However, TVNZ advised that it would consider the complaint.

The second matter was that in light of Jardines' threat to pursue legal action if its

complaint was not satisfactorily resolved, TVNZ was of the view that it could seriously

prejudice its position if it responded in full to the complaint and had therefore decided to

limit its response. It also noted that if the Broadcasting Standards Authority was not

prepared to defer considering the complaint until such proceedings were determined, TVNZ

would seek a judicial review of the Authority's decision to proceed.

Turning to the substance of the complaint, TVNZ reported that it had considered each of

the alleged errors and omissions in the two items and that none was upheld. In response

to the complaint that Jardines had not been dealt with fairly because Fair Go had not

revealed the identity of the complainants, TVNZ maintained that it was prevented from

releasing personal information about the growers under the Privacy Act and in addition it

would have amounted to a breach of journalistic ethics.

It reported that it considered the issues canvassed in the two programmes were general,

factual and legal and that the identities of the complainants was not central.

With respect to Jardines' failure to appear on the programme, TVNZ stated that viewers

would have assumed from the statement that "Jardines did not think that the complaints

were specific enough" that Fair Go had not provided details of each of the claims to

Jardines. TVNZ therefore declined to uphold the complaint that either standard G4 or G6

was breached.

Finally, TVNZ referred to standard G19 and noted that since no specific evidence was

advanced, it was found not to have been breached.

Jardines' Complaint to the Broadcasting Standards Authority

Dissatisfied with TVNZ's decision, in a letter dated 24 December 1993, Jardines referred

the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the

Broadcasting Act 1989 for investigation and review.

Referring to TVNZ's one page response to its detailed 30 page formal complaint, Jardines

complained that TVNZ had a duty to respond to the particulars and its failure to do so was

in breach of its statutory obligations. This was particularly so, Jardines continued, when

its reputation was damaged by the material broadcast. In its view this was an important

matter for the Broadcasting Standards Authority to address. It wrote:

Otherwise there is little point in having a legislative requirement that formal

complaints be first referred to the broadcaster. This is particularly so, if the

broadcaster can effectively refuse to deal with the complaint because of a concern

that legal proceedings will ensue. The right to remain silent is incompatible with

the statutory complaints procedure.

In conclusion, Jardines commented that it did not consider that TVNZ had fulfilled its

statutory obligations under s.6 of the Broadcasting Act 1989.

TVNZ's Response to the Authority

As is its practice, the Authority sought the broadcaster's response to the complaint. Its letter

is dated 12 January 1994 and TVNZ's reply, 16 February.

TVNZ responded first to the Authority's opinion that the High Court ruling in the Eveready

decision (that the Authority could not proceed to determine a complaint which was the

subject of legal proceedings) did not apply where legal proceedings have only been

suggested but not initiated.

In TVNZ's view, the threat of legal action went well beyond a suggestion. Referring to

section 11 of the Broadcasting Act 1989, TVNZ argued that in the Eveready decision,

McGechan J accepted that the Authority has the power to defer its consideration of a

complaint. In this case, and in reliance on the Eveready case, it argued that it was

inappropriate for the Authority to determine the formal complaint until the court

proceedings had been determined, settled or permanently discontinued.

TVNZ argued that although Eveready concerned a case where proceedings were already in

train, the reasoning applied on the present facts. First, it argued that a crucial factor in

McGechan J's decision was the effect of publicity on potential jurors and witnesses. In

TVNZ's view, in this case there would be an overlap between the issues before the Authority

and those which would be considered by a jury and in addition to any technical overlap in

the issues to be considered, it argued that any pronouncements on the propriety of the

programme would undoubtedly have an effect on the public.

Secondly, McGechan J had held that pretrial disclosure of evidence could cause "some

disadvantage" to the defendant because all written evidence and arguments would have to

be disclosed. TVNZ believed that the complainants in this case would gain a tactical

advantage if such disclosure was made.

Finally, referring to McGechan J's statement that if a complainant is concerned by the

delay it is open to it to abandon its claim, (ie total abandonment, not tactical

discontinuance), TVNZ argued that this meant that any future High Court proceedings

would be prejudicially affected by determination of the complaint by the Broadcasting

Standards Authority. In TVNZ's view, there is nothing to distinguish between a claim

which has not been brought and one which has been tactically discontinued, and it argued

that McGechan J's reasoning applied to a situation such as the present where there has

been a threat of legal proceedings.

TVNZ submitted that determination of the complaint would create a serious injustice.

Jardine's Response to the Authority

In response to TVNZ's argument to the Authority, in a letter dated 22 February 1994,

Jardines argued that there was no justification for TVNZ to maintain that the

Broadcasting Standards Authority and the courts provided mutually exclusive remedies.

It argued that if TVNZ's argument was correct, the Authority would never be able to hear

any complaint unless it first extracted from the complainant an undertaking not to

proceed with any court action regardless of the outcome. It contended that if the

Broadcasting Act had intended the Authority's powers to be so narrowly circumscribed, it

would have said so expressly. It wrote:

We are concerned that TVNZ is seeking to use a couple of selected phrases from

many pages of our correspondence to it to coerce the Authority not to carry out its

statutory duties. If TVNZ were right, the Authority's important role as a safeguard

to the public against irresponsible journalism would be effectively eliminated.

Jardines added that it did not accept the validity of TVNZ's arguments, maintaining that

they would only be valid if there was a reasonable probability that potential jurors would

be contaminated by a decision against TVNZ. It noted that it only intended to pursue legal

remedies if its complaint was not satisfactorily resolved and pointed out that the risk of

contamination to prospective jurors was an equal and unknown risk to both parties.

Further Correspondence

Following legal advice from the Crown Law Office, the Authority advised TVNZ on 16

March 1994 that it declined TVNZ's request to defer consideration of this complaint and

that it intended to proceed to determine it.

In response, in a letter dated 7 April 1994, TVNZ submitted a comprehensive response to

the formal complaint of 19 October 1993.

At the outset it recorded its concern that in providing a detailed response it inevitably

undermined its ability to effectively defend legal proceedings which the complainant had

clearly indicated it intended to pursue. It advised that consequently it would be

circumspect in naming sources of information.

TVNZ reported that it had assessed the complaint under standards G1, G4, G6 and G19 of

the Television Code of Broadcasting Practice and responded point by point to issues raised

in the 19 October complaint. TVNZ's arguments are summarised below.

The 15 September programme

1. The Fair Go version

The Rushtons had been misled by Jardines about the starting date of their insurance cover

and about the terms and conditions of the policy. Jardines was remiss in failing to draw

to the attention of the Rushtons a particular clause in the policy which required them to

notify the insurer within 48 hours of any event which was likely to lead to a claim.

Although Jardines failed to "look after the Rushtons", the underwriter eventually did pay

out on the claim after the Insurance Council investigated the matter. Jardines maintained

that it was not relevant to mention that State Insurance was replacing NZI as

underwriters of crop insurance.

2. Chronology of Events

TVNZ disputed the accuracy and completeness of the chronology of events outlined by

Jardines. First it pointed out that State Insurance in August 1992 advised Jardines that it

had no facility at that time to underwrite crop insurance. However a Jardines

representative on 24 November 1992 expressly told the Rushtons that an underwriter was

in place and cover had commenced. TVNZ noted that this was incorrect as State did not

consider the Rushton's proposal until December 1992 and the cover was not finally put in

place until 29 January 1993 but was backdated to 8 January 1993.

Pointing out that Jardines was in constant contact with State Insurance negotiating the

underwriting agreement, TVNZ observed that it did not keep the Rushtons informed of

progress, nor did it forward a draft copy of the policy. Although the Rushtons were sent a

copy of the policy on 25 February, they did not receive it until 8 March and prior to then

were unaware of the 48-hour notification clause. According to TVNZ, a fax dated 7 April

was the first occasion on which the 48 hour notification condition was drawn to the

Rushtons' attention. It also noted that the Rushtons were very surprised to learn from

that fax that Jardines was negotiating with State about extending the insurance cover

beyond 30 April, because they believed that the insurance would cover them until the

crops were harvested, some time after that date.

In July 1993, the Rushtons wrote to Fair Go and the Insurance Council, having had no

satisfaction from State or Jardines. According to TVNZ, after correspondence between

Jardines, State and the Rushtons, Fair Go contacted the Rushtons on 2 September and State

agreed to meet their claim on 8 September.

3. Farmers threatened by an insurance "stuff-up"

TVNZ maintained that this statement was not directed at Jardines but noted that there was

no doubt there was a "stuff-up" which jeopardised the claims made by the Rushtons

because they failed to meet a condition they were not told about.

4. Failure to pass on key information

TVNZ argued that Jardines did fail to pass on key information about the terms of the

insurance contract they arranged on behalf of the Rushtons, including the 48-hour

notification clause. It did not explain to the Rushtons that no cover was in place prior to

January 1993 and did not keep them advised of the negotiations with State.

These lapses occurred despite the clear recognition by Jardines that it acted as an

agent for the Rushtons and therefore owed them fiduciary duties – including a

duty to provide the Rushtons with all information that was relevant to their

interests.

5. Livelihoods at risk

TVNZ argued that the Rushtons were in a financially precarious situation and when their

claim was at first denied, they felt that their livelihood was at risk. It pointed out that the

programme made clear that subsequently their claim had been met.

6. Horror story about a $25,000 insurance claim.

The programme made clear that State was responsible for the wording of the policy and

the denial of the claim. TVNZ added that it was clear from the programme that Jardines

had acted as the "shop front" for State. It noted that the Rushtons themselves were

dissatisfied with Jardines' service and did not feel their interests had been adequately

represented.

7. Package offered by insurance brokers, Jardines

TVNZ reiterated that the programme clearly described Jardines as "brokers" – a description

which made it clear that the company was an intermediary between the Rushtons and

State.

8. Worst season

Claiming that there was no implication that the insurance policy covered all eventualities,

TVNZ argued that the point was that the Rushtons expected their crop insurance to cover

the crop damage they had suffered. It noted that they were unaware of any limitations to

their policy (which they did not receive until March).

9. Claim within 48 hours

Jardines were agents for the Rushtons and, TVNZ argued, it was their duty to explain the

48-hour condition in the policy. It added that despite being given numerous

opportunities, Jardines did not explain to Fair Go the steps that it had taken on behalf of

the Rushtons.

10. Interview segment – the extent of the damage

Although the Rushtons were aware of damage to their crops, they did not know the extent

of damage. According to them, it was untrue to say they were unaware of any damage

until advised by Watties in April. According to TVNZ it was impossible to be sure the

Rushtons would not have complied with the 48-hour condition, had they been given the

opportunity.

TVNZ noted that it was significant that when further damage occurred in early April, the

Rushtons met the 48-hour deadline.

11. Interview segment – notified them right away

TVNZ did not consider this response was dishonest. It also maintained that just because

Mrs Rushton was not on the property did not mean she was not aware of the damage.

12. Insured from November 1992

The Rushtons told Fair Go that a representative from Jardines had expressly told them on

24 November that they were covered and an underwriter had been secured. TVNZ noted

that Jardines had not responded to this allegation.

While stating that it may be untrue to say that Jardines had an underwriter who was

prepared to underwrite crop insurance, the Rushtons were advised that the cover was in

place from the date they signed the proposal.

13. Crop in the ground/ we had cover

TVNZ chose not to comment.

14. A couple of calls from Fair Go

The chronology shows clearly that the decision of State to meet the Rushtons' claims

occurred after Fair Go's contact with State. However, TVNZ noted that it was true that the

spokesperson for State informed Fair Go that he had already recommended that the

Rushtons' claim be met. TVNZ speculated that that might have been because the Rushtons

had told State they had approached Fair Go and noted that many of the people Fair Go

approach strongly deny that the programme influenced the course of events.

15. Jardines' job

TVNZ stood by its statement that it was Jardines' job to look after its clients and observed

that although Jardines was given plenty of opportunity to explain how it had lobbied on

behalf of its clients, it failed to do so.

Disputing the suggestion that the programme gave the impression that the 48-hour

clause was unusual, TVNZ argued that it had to be borne in mind that the clause was a

significant procedural limitation on the policy and that the Rushtons were taking out crop

insurance for the first time and had not been given access to the policy or been told of any

standard conditions of the cover.

16. Admission

TVNZ wrote: In the context of Jardines' assurances to the Rushtons that they were covered

as from November, we submit that this constitutes an "admission".

17. Problem of not knowing about the clause

TVNZ explained that in a telephone conversation on 7 September 1993, a representative

from State Insurance made this assertion. However, it believed Fair Go's paraphrase was

defensible, arguing that the problems were caused by the Rushtons' lack of knowledge of

the clause.

18. Normal insurance practice

TVNZ claimed that Jardines had admitted no underwriter had been secured for the

insurance cover sought by the Rushtons in November 1992 (which was when they

thought their cover had commenced). Although it may be that State was responsible for

much of the delay, TVNZ argued that Jardines departed from normal insurance practice

because it failed to inform the Rushtons of the terms of their policy and failed to let them

know that their insurance was not in place until 1993.

19. Other growers on the East Coast

TVNZ asserted that other growers besides the Rushtons were blaming Jardines for

insurance problems and that the reason they were reluctant to appear on the programme

was that they had to continue to deal with Jardines.

20. Summary of complaints on Rushton programme

TVNZ disputed Jardines contention that the programme ascribed to them "total blame" for

the Rushtons' misfortunes. It also challenged Jardines' contention that it acted in the best

interests of its clients, arguing that it was tardy, less than forthcoming and failed to keep

its clients informed.

Further, it argued that throughout Jardines had been evasive and reluctant to respond to

allegations put to them. It noted that even after the broadcast, Jardines did not write or

otherwise contact Fair Go to present their side of the story. TVNZ argued that Mrs

Rushton's absence was a red herring and it was not productive to speculate on what would

have happened had they had the policy.

TVNZ denied that the programme contained misleading statements and facts or had

significant omissions. It maintained that there was ample evidence for all the assertions

made in the programme.

It submitted that it had not breached its obligation to be fair, impartial and accurate.

The Tomato Growers (Fair Go) 29 September 1993

1. The Fair Go version

The thrust of the programme was that Jardines led growers to believe their new insurance

contracts with State were on similar terms to previous contracts. In fact, TVNZ reported,

the contracts were substantially different and as a result, growers' chances of recovering

losses amounting to millions of dollars may have been prejudiced.

TVNZ denied that the programme implied that tomato growers were so intimidated by

Jardines or State that they were unwilling to talk to Fair Go for fear of recrimination. In

fact, TVNZ reported, they were reluctant to appear because they did not want to upset

delicate negotiations with Jardines and State, with whom they had a potential on-going

relationship.

2. A couple of weeks ago

TVNZ explained that this statement referred to the rejection of the Rushtons' claim,

reported in the first programme, which would have crippled them financially and forced

them to leave the farm.

It noted that not all of the Rushtons' problems had been sorted out by the time of the

second programme.

3. Tonight we continue the story...

TVNZ described as standard journalistic practice this introductory statement which set out

the main features of the story. It did not mention losses, nor apportion blame.

4. In a nutshell, growers signed up...

TVNZ accused Jardines of arguing on semantics. It maintained that the point was made

that growers signed up thinking they would be covered for certain specific events (as in the

previous contracts) but were not.

5. By then, of course, it was too late

TVNZ argued that the meaning was perfectly clear, that it was too late for growers to get

cover for the events they believed they were insured against. Although growers could

have sought alternative cover, the crops were already in the ground and the growers had

no knowledge of the risks that were not covered.

TVNZ disputed Jardines' statement that it was not too late for growers to cancel their

policies, pointing out that growers had tried to do so but were too late.

6. Embroiled in a fight

TVNZ asserted that it was difficult to understand how Jardines could deny that they were

involved in an insurance fight when it had been involved as agents for its clients and its

behaviour was central to the complaints of the growers.

7. No one will talk...

TVNZ repeated that this statement contained no implication of intimidation by Jardines or

State Insurance. It reported that Fair Go had talked to many growers who were in

constant communication with Jardines and who had made Jardines fully aware of their

complaints and concerns.

8. Interview with Mr Norm Speers

TVNZ denied that he was simply a bystander offering a second hand opinion. It noted that

he was a representative of the Vegetable and Potato Growers Federation which had offered

to assist growers.

9. Scared of prejudicing any case they may have

TVNZ explained that the reason growers wished to remain anonymous was because they

did not want to jeopardise their position.

10. Original undertaking

A legal opinion obtained by Fair Go supported the view that there were substantial

differences between the old contract and the new one which made the policies less

attractive from the growers' point of view. One of the important differences, according to

TVNZ was that under the State contract, growers had to demonstrate that the rainfall

over a particular set period was worse than that occurring in 95% of the previous year's

rainfall. It reported that Jardines admit that this was a major departure from the previous

policy.

TVNZ regarded it as significant that Jardines held the view that the two contracts were

very similar, since it supports the allegations by growers that they were told that the two

contracts were similar.

11. Interview with Mr Tim Symes...unforeseeable hassles

Nobody foresaw the hassles which arose – the growers themselves were amazed by what

happened.

12. Very reluctant...ultra-sensitive

TVNZ denied that Fair Go hounded growers and that it made dishonest editorial decisions.

It reported that Mr Symes was very forthcoming off-camera but cautious when

interviewed and denied that he was hounded.

With respect to the interview, TVNZ reported that all the questions put to Mr Symes had

been canvassed in preliminary discussions and Mr Symes had volunteered the information

that he was unhappy with Jardines during a telephone conversation and again in the pre-

interview conversation. Acknowledging that he had changed his story when interviewed,

TVNZ reported that Fair Go chose to omit his denial that he was unhappy with Jardines

since it was so clearly contrary to his earlier remarks. Fair Go maintained that it would

have been dishonest to broadcast the denial.

TVNZ submitted that the sensitive nature of the relationship between the growers and

Jardines had to be borne in mind when considering the responses of growers.

13. Interview with Mr Symes: "substantially different"

TVNZ explained that the questions were only leading because Mr Symes had already

revealed his answers in earlier conversations with the reporter.

It believed that Jardines was incorrect in stating that no claims had been declined as a

result of any difference between the 1993 and 1992 policies. It noted that Fair Go was

aware of a grower who had received legal advice that this claim was declined as a result of

differences between the two policies.

Although the differences in the policies were not discussed on the programme, TVNZ

reported that the differences had been thoroughly researched and that Fair Go had taken

legal advice and concluded that the growers had a genuine moral and legal complaint

about the treatment they received from State and Jardines.

14. Most powerful story

With respect to the grower who claimed he had suffered $250,000 loss, TVNZ reported

that it could reveal the identity of the person to the Authority but only on a confidential

basis. It challenged Jardines' assumption that evidence could only be obtained from an on-

camera interview, pointing out that much information was obtained from written

statements, including from Jardines itself.

Claiming that there was ample evidence for all of the allegations made on the programme,

TVNZ identified some of those who spoke out, while noting that others for various reasons

requested confidentiality.

15. To guard against bad weather

TVNZ accused Jardines of "hair-splitting". It believed it was perfectly acceptable to

summarise crop insurance as covering bad weather.

16. Not what he paid for

This is exactly the thrust of the programme.

17. Lost hundreds of thousands of dollars

According to the grower's legal advisors the differences between the two contracts has cost

hundreds of thousands of dollars.

18. Iron clad assurances

TVNZ maintained that the growers held Jardines responsible for their lack of knowledge

about the changed terms of the new contracts. It believed it was entirely appropriate that

Fair Go should invite Jardines to appear on the programme.

19. List of specific questions

TVNZ explained that release of information about the complainants would have breached

the Privacy Act, as well as being a breach of confidence and journalistic ethics. It

considered it surprising that Jardines did not know who the complainants were since

growers had been in constant touch with Jardines.

While acknowledging that it was true that Fair Go did not state on the programme that

Jardines had refused to appear because it did not know who the complainants were, it

considered it not unfair to describe this attitude as a belief that "the complaints were not

specific enough".

TVNZ maintained that the issues were general, factual and legal and related to Jardines'

representations to growers and that the identities of the complainants was not central to

the nature of the complaints. Furthermore, TVNZ noted that the nature of the questions

was conveyed to Jardines prior to the programmes and they were fully informed of the

nature of those complaints. TVNZ added that Fair Go kept recordings of telephone

conversations which could be made available if required.

20. Growers' claims are now finally being assessed

TVNZ acknowledged that the meeting was held on Wednesday 22 September and not

Thursday as it was told by State.

21. Why cover was not fully explained

TVNZ maintained that the old and new policies were substantially different and pointed

out that growers who had tried to reverse their premium payments were unsuccessful.

22. Summary of Complaint on Tomato growers programme

TVNZ denied that Fair Go had breached broadcasting standards. Apart from one minor

factual error, it maintained that all the allegations made were fully substantiated. It noted

that where Fair Go passed comment, this was simply a reflection of attitudes of the

growers concerned.

Pointing out that Jardines had throughout been reluctant to talk, TVNZ noted that Fair Go

had provided Jardines with every opportunity to appear on the programme. If the

programme was at all unbalanced (which TVNZ denied), it believed it was entirely the

fault of Jardines for failing to respond to those opportunities and "for pursuing its obsessive

concern with the identities of the individual complainants."

Jardines' Response

Invited to comment on TVNZ's response, Jardines, in an 18-page letter, replied on 28 April

1994.

1. In a preamble, Jardines outlined the central issues which it believed deserved to be

highlighted.

a) Delay

Jardines accepted that there was an unacceptable delay in providing the Rushtons with

their policy, but noted that the delay was not of its making.

b) The 48-hour clause

Jardines' position was that claims notification clauses are the norm in all insurance policies

and that there was no obligation for it to point out the clause to its clients. Even accepting

Fair Go's thesis that the Rushtons could not have known about the clause at the time

because they did not have the policy, Jardines argued that they were unaware of the event

or of the potential hazard to their crops at all. Further, when they did receive the policy,

they still delayed for five and a half weeks before notifying the underwriter.

However, Jardines continued, even if the Rushtons had been on the property at the time,

had been immediately aware of damage to their crops but had failed to comply with the

48-hour notification clause because they had not received a copy of the policy, it would

have been impossible for State to refuse to pay out because of late notification. This is

because under the Insurance Law Reform Act, an underwriter cannot decline a claim on

the grounds of late notification except where certain conditions apply (which did not, in

this case).

Finally, Jardines argued, this scenario was hypothetical since in the end the Rushtons'

claims were met. The result was achieved because of the intervention from the Insurance

Council and mediation by Jardines.

c) The Tomato Growers

Jardines' position was that at the end of the first programme, viewers were told that

Jardines was responsible for millions of dollars of losses by East Coast growers. The

evidence was to appear in a subsequent programme. Not only was the evidence not

presented but the allegation was not withdrawn.

According to Jardines, the ultimate test was that when Fair Go was faced with an on-

camera statement favourable to Jardines from its only complainant, it edited out that

statement.

d) Jardines' Refusal to Appear

Jardines' position was that this was not a matter it needed to defend. Fair Go, it argued,

had no right to subpoena witnesses or to demand disclosure of evidence. It wrote:

But, as in a court, silence may not be taken as evidence of guilt, nor may it be

advanced as an excuse for mis-statements, lies, unfairness and lack of balance. The

onus is on the programme to be honest and get things right, not on us to ensure

that they do.

Secondly, Jardines argued that it was a breach of natural justice to conceal from it the

identities of the complainants and the specific nature of the complainants and was

grounds for its refusal to appear.

Jardines then responded point by point to matters raised in TVNZ's letter. The numbering

corresponds with TVNZ's response.

Programme One: The Rushtons

2. State Insurance, in August 1992, advised Jardines that it had no facility at that

time to underwrite crop insurance.

Jardines responded that it did not know what point was being made here. It noted that

when approached in August 1992, State had no facility to underwrite crop insurance, but

when invited to consider providing such insurance, had "responded positively".

However, on 24 November 1992 Kevin Allen of Jardines expressly told the Rushtons that

an underwriter was in place...

Agreeing that this was correct, Jardines explained that it was the result of the three and a

half months of negotiation between it and State.

...and that, having completed the proposal, their cover had commenced.

Jardines denied that any such statement could have been made to the Rushtons by Kevin

Allen.

Jardines' chronology also does not reflect the fact that Jardines was in constant contact

with State Insurance, negotiating the underwriting agreement.

Jardines denied this assertion, pointing to its letter of 19 October 1993.

Jardines did not keep the Rushtons informed of progress in this report.

Commenting that it was not normal practice to keep a client informed of detailed day to

day negotiations with an underwriter, Jardines maintained that clients were interested

generally in the outcome of the negotiations and in any matters which might adversely

affect cover. It added that there were no such matters in the policy negotiated with State.

Nor did it forward to the Rushtons a draft copy of the policy, even though the initial draft

included a 48-hour notification clause in the same terms as that contained in the final

contract.

In response, Jardines commented that it would have been irresponsible to send a draft

contract when that draft might differ substantially from the final version. It added that

the negotiations with State were general, and not specific to that client.

The facsimile from Jardines dated 7 April 1993 was the first occasion on which Jardines in

fact drew to the Rushtons' attention the 48-hour notification condition.

Jardines claimed that this was a distortion of the facts and accused Fair Go

of persisting with misinformation. It stated that the policy was sent on 25 February, not 7

April, and at the very latest, the Rushtons should have known about the 48-hour clause

on 8 March when they received the policy.

3. This statement (Farmers threatened by insurance stuff-up) was not directed at

Jardines.

Since no other agency was criticised in the programme, Jardines commented that it was

logical to assume that the criticism was directed at it.

4. Jardines did fail to pass on key information...

This point has been dealt with elsewhere.

It did not explain to the Rushtons that no cover was actually in place prior to July [sic]

1993.

Jardines stated that it could not understand this statement and that the date had no

significance to it.

5. The words stated (livelihoods at risk) are those used to describe the situation by the

Rushtons themselves...They felt (and Fair Go had no reason to doubt) that at that

point their livelihoods were at risk.

Jardines claimed that Fair Go had taken the position that it was acceptable to publish false

information if it had been received in good faith from the complainant – a practice which

Jardines described as an unacceptable journalistic practice. It noted that not only was the

damage restricted to 10% of the Rushtons' crop but that cropping was only part of their

overall farming activity. It suggested that this may account in large part for Mr Rushton's

failure to recognise potential damage to his crops.

6. The programme does not leave State unscathed.

Jardines denied this, claiming it could not identify a single statement from either

programme directly critical of State.

Noting that State originally denied the claim, Jardines explained that it did so for a number

of reasons, not just on the grounds of late notification. After extensive negotiations,

Jardines added, the claims were eventually met, a sequence of events it described as part of

the normal business of insurance.

It is clear that Jardine Insurance Brokers acted as the "shop front" for State Insurance.

Jardines responded: It is not clear and it is not true. At all times Jardines were

acting for the Rushtons alone.

8. ...expected their crop insurance to cover the crop damage they had suffered...

Jardines: "Their policy did cover the crop damage they had suffered."

9. Jardines were agents for the Rushtons...

Jardines: "As distinct from "a shop-front for State Insurance". We agree."

It was the duty of Jardines to explain the 48-hour condition to the Rushtons.

Jardines observed that it was not common practice for brokers to read through the entire

policy with clients. Conditions requiring clients to report claims within a time frame are

found in all policies.

Despite being given numerous opportunities, Jardines did not explain to Fair Go the steps it

had taken on behalf of the Rushtons.

Jardines criticised Fair Go's perception of itself as a judicial body enjoying the powers of a

court and referred back to its comments in the preamble.

10. It is perfectly clear from this segment of the interview that the Rushtons realised

that damage was being caused to their crops...

Jardines responded that it was not clear and not true. The facts were that Mrs Rushton

was in the South Island when the events occurred. Mr Rushton made no attempt to warn

his wife and when she returned she failed to notice any damage. They took no action until

April when notified of the possibility of damage by Watties, five and a half weeks after

they received their policy containing the 48 hour clause.

Jardines maintained this segment of the interview was dishonest.

However by this stage it was apparent that the 48-hour time limit had long since elapsed,

and that any further attempt to make the requisite notification would be fruitless.

Commenting that this argument was difficult to follow, Jardines noted that it was quite

clear that the 48-hour period elapsed between the time the event occurred (February) and

late March when the Rushtons first became aware of the damage. It suggested that in the

circumstances, no sensible person would delay in notifying the underwriter of a likely

claim.

11. We do not consider this response was dishonest.

Jardines stood by its assertion that the response was dishonest.

Just because Mrs Rushton was not on the property does not mean she was unaware of any

potential damage.

In response, Jardines argued that at no time did Mrs Rushton claim that she had been

made aware of the potential damage to the crop. Had she been aware, it continued, she

would have been under a duty to notify the underwriter.

12. The Rushtons told Fair Go that Kevin Allen of Jardine Insurance Brokers expressly

stated to them in conversation on 24 November 1992 that Jardines had "arranged

for State to be the underwriters" and that the Rushtons "were covered".

Referring to its original response, Jardines reiterated that the Rushtons were not told and

could not have been told that cover was in place from the date they signed the proposal.

13. No comment

14. The chronology shows quite clearly that the decision of State Insurance to meet the

Rushtons' claims occurred after Fair Go's first contact with State Insurance.

Pointing out that Fair Go had already acknowledged that a spokesperson for State had

informed it that he had already recommended that the Rushtons' claims be met, Jardines

criticised Fair Go's use of conjecture and speculation and the suggestion that the Rushtons

had mentioned to State that they had informed Fair Go of their complaint. Jardines added:

It is of note here that Fair Go chose not to tell its viewers that "a spokesperson for

State informed Fair Go that he had already recommended that the Rushtons' claims

be met by this time" This clearly did not suit the programme's purpose to take

credit for an outcome for which it deserved no credit.

15. If Jardines had in fact "made representations on behalf of the client, applied

pressure, cajoled and lobbied on behalf of the Rushtons, it did not tell Fair Go about

it, despite being given plenty of opportunity.

Jardines responded that it was under no obligation to supply Fair Go with any information

and argued that its decision not to appear in no way excused Fair Go from its obligation to

present a programme that was accurate, fair and balanced.

It is beyond dispute that they are dissatisfied with Jardines.

Jardines responded that the Rushtons had not communicated their dissatisfaction.

With respect to the 48-hour clause, the programme does not necessarily give the

impression that such clauses are unusual.

Jardines reiterated that such clauses were not unusual in insurance contracts. It added

that persons of normal intelligence and common sense would immediately notify their

underwriter when they became aware of an event that damages or threatened to damage

goods insured.

16. ...assurances to the Rushtons that they were covered as from November...

Jardines reported that no such assurances were given.

17. Even without this statement, Fair Go's paraphrasing is defensible.

Jardines reiterated its original assertion that this was an entirely dishonest statement of

State's position. It drew attention to the distinction between "failure to notify" and "lack of

knowledge about the 48-hour condition".

As Jardines had admitted...

Jardines denied any admission, noting that an underwriter had been secured and no policy

had been approved.

It may be that State was responsible for much of the delay...

Jardines noted that this was not stated on the programme and the blame was directed at

Jardines.

...but Jardines clearly departed from normal insurance practice...Both of these duties

existed and were breached, despite any delays attributable to State.

Jardines repeated that there was no departure from normal insurance practice and no

breach of duty.

19 The inference to be drawn...to support these allegations.

Jardines commented that although Fair Go had signalled its intention to explore the

claims, it was unable to find a single witness to substantiate them. The one complainant

they did find stated on camera that he was not unhappy with Jardines. However, this

statement was edited out by TVNZ, an act described by Jardines as blatantly dishonest.

20. The programme does not ascribe to Jardines total blame for the Rushtons'

misfortunes. State Insurance is also implicated.

As noted above, Jardines disputed this statement and repeated that the whole thrust of

both programmes was an attack on Jardines.

As a result, the Rushtons suffered for six months before the claim was sorted out.

Jardines responded that this was a normal time frame for crop insurance as it takes time to

assess the extent of the damage.

Throughout Fair Go's involvement in this matter, Jardines have been evasive..."the finger

was again pointed at them".

Commenting that this was an example of Fair Go's perception of itself as a judicial body

with the rights of a court, Jardines responded that it refused to be bullied into dealing with

a programme which refused to name people who had allegedly complained about it. It

considered that the onus was not on itself to provide material favourable to it, but on the

programme to substantiate the allegations it made.

Jardines claimed that after the misinformation presented in the first story, it was in the

process of preparing a formal complaint and considering an action in defamation and

therefore it would have been extraordinary for it to have presented its side of the story in

the second programme. It concluded:

If Fair Go wishes to act as a court, then it must operate within the principles and

practice of New Zealand law. There is no onus on the accused to prove his/her

innocence. The "prosecution" must prove its case.

Jardines drew to the Authority's attention its view that many of its complaints regarding

the first programme had not been dealt with by TVNZ.

Programme Two – The Tomato Growers

1. The thrust of this programme...a potential on-going relationship.

In Jardines' view, the terms of State's contract were very similar to those of the former

underwriter. It denied that any grower's chances of recovering for losses was prejudiced

by the differences in the contracts.

Jardines stood by its assertion that the programme implied that tomato growers were so

intimidated by Jardines or State that they were unwilling to talk to Fair Go. It argued that

this was absurd because Jardines had no power to prevent the underwriter meeting claims.

Secondly, it argued that its relationship with its clients was of great importance to it and

one it had an interest in preserving.

2. It is worth noting that not all of the Rushtons' insurance problems had been sorted

out by 29 September. Some of the claims are still pending.

Jardines reiterated that claims can only be met when the crop has been harvested and the

final damage assessed.

3. This is simply a summary of the story. It is standard journalistic practice to set out

the main features of the story in the introductory paragraph. It does not mention

losses, and it does not apportion blame.

Commenting that this was not borne out by the programme itself, Jardines pointed to the

script which implied a relationship between Jardines and the million dollar losses allegedly

suffered by the growers.

4. ...thinking they were covered for certain specific perils – namely the same ones

included in the old NZI contracts. They were not.

Jardines reported that the contracts were substantially the same. Windstorm was excluded

but hail damage was added and growers were made aware of the changes.

5. It was too late for the growers to get cover for the events they believed they were

insured against.

Jardines repeated that they were covered.

Jardines states that it was not too late for the growers to cancel their policies. This is

untrue. In fact they tried to do so...However, the growers found they were too late, the

arrangements were irreversible.

The growers attempted to reverse their premium payments when they discovered the

difference between the policies, but failed.

Jardines asserted that no grower at any stage attempted to cancel their policy or reverse

their premium payments.

Of course, it was also too late for any particular grower to decide not to take the risks, that

is, not to plant any crops.

In Jardines' view, this was untrue. The decision whether or not to plant could never have

been affected by the insurance cover, since planting began in September, long before cover

was available.

6. In a letter to growers dated...that they were involved in a fight.

Jardines was critical of TVNZ's interpretation of its intermediary role as being involved in a

fight.

7. The letter...is a last-gasp and rather transparent attempt to smooth the waters with

the growers.

Describing this as an arrogant and unfounded assumption, Jardines commented that no

grower had responded to its invitation to contact it if there was a complaint about the

1992–93 crop insurance.

8 and 9 – no comment.

10. Fair Go has obtained a legal opinion from...their legal advisors.

While it acknowledged that there were differences between the old and new contracts,

Jardines argued that these were not substantial, did not disadvantage growers and in some

cases, increased the risks covered. Jardines accepted that the 95 percentile clause was new

and complex, however it noted that no claim was denied under that clause.

How can there be "specific differences" but no "inconsistencies".

In response, Jardines argued that the two statements were not incompatible – the contracts

could have differing clauses or conditions, but be consistent in their general thrust.

One of them has been advised by his lawyer that he has a good case against State

Insurance on the basis of this clause to recover moneys which State has refused to pay out.

Jardines reiterated that not a single claim was denied under the 95 percentile clause.

It is significant that Jardines hold to the view that the contracts are very similar.

Jardines replied that it did not find it significant at all and it had consistently been its

position that the two were similar.

12. It is denied that Fair Go hounded any growers...

Jardines reported that it stood by its original contention and noted that several growers

had advised they were hounded by Fair Go.

It also reported that Mr Symes had complained about the treatment he received on the

programme. Jardines provided a transcript of a telephone conversation with Mr Symes

and then an analysis of TVNZ's interpretation of Mr Symes' comments. At the end of the

first programme, Jardines continued, viewers were informed that East Coast growers had

suffered losses of millions of dollars and that Jardines was implicated. That allegation,

Jardines maintained, was highly defamatory but when the subsequent programme was

broadcast two weeks later, none of the growers, with the exception of Mr Symes, was

prepared to speak to reporters. Jardines wrote:

From Fair Go's own account, it seems that Mr Symes was well rehearsed before the

programme for what he had to say. To avoid the possibility of error, he was led

through the interview by reporter Liane Clarke. But when asked whether he was

unhappy with Jardines, he said that he was not. So a statement favourable to

Jardines from the only "complainant" was edited out of the interview by Fair Go.

Jardines accused TVNZ of censoring the statement because it did not suit its purposes.

13. The questions are only leading...

Jardines explained that it stood by its original complaint and noted that the reasons why

the questions were leading was evident from point 12 above.

Fair Go is aware of a grower who has received legal advice that his claim was denied as a

result of differences between the two policies.

Jardines stated it had no knowledge of this.

The specific differences between the policies were not discussed...agreed on screen that the

issues were complex.

In its response, Jardines argued that it was indefensible to excuse oversimplification of the

issues by reference to the time constraints imposed. It added:

The programme was all about the contracts being "substantially different". Yet

here we are told that "the specific differences between the policies were not

discussed on the programme because such a discussion would be beyond the scope

of Fair Go.

14. We know the identity...

Responding that it did not doubt the existence of this person, Jardines explained that the

issue was not whether State declined his claim, but whether they were right in doing so.

Jardines' complaint contains a ludicrous assumption...

Stating that it did not object to the fact that evidence was collected off camera, Jardines

repeated its objection to the fact that both the viewer and the complainee were denied

access to the evidence and the names of the complainants.

It described the references to Jardines' non-appearance as deliberately misleading and

mischievous.

In fact Fair Go had ample evidence...

Referring to the sources of evidence cited, Jardines noted that only Mr Speers (described as

not directly involved in the fight) appeared on camera and that none of the evidence was

passed on to it.

Commenting that it hoped anonymous phone calls did not constitute evidence, Jardines

observed that it had also received anonymous phone calls regarding the Rushtons'

competence as farmers.

17. The man's legal advisors certainly believe...

Arguing that the word "certainly" suggests doubt on the matter, Jardines also observed

that the man had access to legal remedies if his complaint was justified and noted that he

had certainly not brought the matter to its attention.

18. no comment

19. The Privacy Act prevented them from doing so...without their authorisation.

Jardines described this assertion as absolute nonsense.

...breach of confidence and a breach of journalistic ethics.

Replying to this argument, Jardines made the observation that Fair Go was a complaints

programme, and argued that it was unfair not to advise the complainee about the details

of the complaint. Jardines disagreed with the assertion made by TVNZ that it was not

unfair to describe Jardines' reluctance to appear as a belief that the complaints were not

specific enough.

20 and 21 – no comment

22. If the programme was at all unbalanced (which we deny) it was entirely the fault

of Jardines for failing to respond to these opportunities and for pursuing its

obsessive concern with the identities of the individual complainants.

Jardines described this statement as a "rather nice double defence: the programme wasn't

unbalanced, but if it was, it wasn't our fault."

TVNZ's Response to Jardines' letter of 28 April

In a letter dated 11 May 1994, TVNZ reiterated that it stood by all that it had said in its

earlier correspondence.

It pointed out that the two programmes were the result of very detailed investigation

which stretched over many weeks and involved a large number of people. It disagreed

with Jardines that the matters were overly complex. It maintained that the overriding

thesis of the two programmes was that people taking out insurance through broking firms

should be kept fully informed of progress in obtaining that cover and be advised promptly

of key provisions in the policies.

Programme 1 – The Rushtons

Noting that the first item concerned a policy which contained a 48-hour notification

clause, TVNZ took issue with Jardines' contention that such clauses are the norm in all

insurance policies and that there was no onus on the broker to point the clause out to any

of its clients. TVNZ noted that State Insurance, the underwriter, considered that Jardines

should have told their clients about the clause at the time of the quotation (months before

the policy was sent to the clients).

TVNZ also noted that the Rushtons themselves had taken the unusual step of asking to be

kept informed of what was going on about their insurance cover, a step which TVNZ

argued placed an added onus on the brokers to spell out the key detail of the provisions in

the policy.

Pointing out that one of the key differences between normal material damage insurance

and crop insurance was that an event such as a storm may occur and yet no damage be

apparent immediately, TVNZ argued that people taking out crop insurance for the first

time may be unaware that the insurer must be notified each time an event which might

cause damage occurs.

TVNZ maintained that it was not until 7 April that Jardines drew the Rushtons' attention

to the 48-hour notification clause. It did not deny that the Rushtons were sent a copy of

their policy on 25 February, but considered that Jardines should have brought to the

clients' attention the fact that there was a 48-hour notification clause.

Responding to Jardines' claim that no other agency was criticised in the programme, TVNZ

acknowledged that although there was no direct criticism of State Insurance, they were

responsible for the delay in accepting the proposal and forwarding the policy and were also

criticised for initially declining the Rushtons' claim. Noting that the insurer had no direct

contact with the farmers, TVNZ repeated that it considered Jardines acted as the

underwriter's shopfront and expressed its surprise that Jardines considered this statement

was not true.

With respect to Jardines' claims that some of the responses made by the Rushtons in the

programme were dishonest, TVNZ claimed that it had no reason to consider that they were

untrue. It reiterated that the crux of the Fair Go items was the failure of the brokers to

keep the clients fully informed. According to the Rushtons, Kevin Allen, Jardines'

representative expressly told them on 23 November 1992 that an underwriter was in

place and that having completed their proposal their cover had commenced. In fact, the

cover was not finally in place until 29 January 1993 but backdated to 8 January.

Further, TVNZ claimed, Jardines did not bring to the Rushtons' attention the expiry date of

the policy. They were surprised to learn it was 30 April being of the belief it extended to

the date the crops were harvested.

In July 1993, TVNZ reported, the Rushtons wrote to the Insurance Council and to Fair Go,

having had no satisfaction from either State or Jardines, then just before the programme

went to air, received payment for their loss.

Programme 2

According to TVNZ the thrust of the second programme was that the brokers had led

growers to believe that their new insurance policies were on similar terms to those of the

former insurers, when in fact they were substantially different. In TVNZ's view, this could

have resulted in many of the claims being rejected, although it accepted Jardines' point in

its 28 April letter that in fact no claim was turned down because of those differences.

It noted some of the main differences:

NZI included damage caused by wind storms if accompanied by rain, whereas

State's policy excluded damage caused by wind.

NZI's policy covered any rainfall which includes damage whereas State's includes

only excessive rainfall which is given a technical and somewhat limited definition.

State's definition of flood was more limited than NZI's.

The notification and claim clauses in the State policy were more strict than NZI's.

Commenting on the reluctance of growers to appear on television, TVNZ argued that

growers were clearly concerned that to do so could upset negotiations between Jardines

and State. One grower interviewed expressed his view that the policy wording wasn't

what was expected – and in TVNZ's view this was another instance where the broker had

failed to fully inform the clients. TVNZ noted that at a meeting of growers concern about

the policies was expressed but it was too late to cancel the policies or reverse their premium

payments.

TVNZ reported that Fair Go stood by its assertion that growers whose losses totalled

millions of dollars pointed the finger at Jardines. It noted that Cedenco Foods' claim

concerned in part the failure of Jardines to pass on information.

With respect to the refusal of Jardines to appear on the programme, TVNZ observed that

inevitably one party's side of the story may not be represented but denied that therefore

the programme would be unfair or unbalanced. The crux of the second programme,

TVNZ noted, was that growers felt that they did not receive the cover they thought they

were paying for. It argued that it was clear the growers did not agree that the contracts

were substantially the same because they held meetings to discuss the matter and spoke to

Fair Go about it. TVNZ concluded that this was another example of the broker failing to

keep the clients informed.

Referring to the interview with Tim Symes, TVNZ reported that it was standard practice

prior to an interview to discuss the areas to be covered in the interview. It was at the pre-

interview session that Mr Symes apparently expressed his dissatisfaction with several

aspects of Jardines' conduct. TVNZ considered that the interview which was broadcast

succinctly included Mr Symes' views overall and that the editing was not dishonest.

Finally, TVNZ reminded the Authority that a threat of legal proceedings against it

necessitated that it be particularly circumspect in its response to the complaint so as to

avoid as far as possible the risk of double jeopardy.

TVNZ's Response to the Authority's Questions

In a letter dated 17 May 1994, TVNZ responded to questions put to it by the Authority.

In response to the Authority's request, it provided a copy of the questions put by Fair Go to

Jardines prior to the programme. Secondly it commented that it did not know what role,

if any, Jardines played in getting State to reverse its decision and pay out on the claim from

the Rushtons.

With respect to the differences between the policies from NZI and State, TVNZ referred to

its letter of 11 May. It also noted that this letter answered the question about what

evidence there was that growers were not covered by certain things that they expected to

be covered on. TVNZ added that the growers were stuck with those policies because it was

too late in the season to obtain alternative cover.

Finally, in answer to the question of what evidence there was that implicated Jardines in

the millions of dollars of crop insurance and millions of dollars of losses, TVNZ referred to

its 11 May letter in which it identified one grower (Cedenco Foods) as having such losses.

In a further letter dated 20 May 1994, TVNZ provided the Authority with a copy of the

legal opinion which Fair Go commissioned on the question of differences between the NZI

and State policies and a copy of the questions sent to Jardines by Fair Go before the

programme was broadcast.

Jardine's Response to TVNZ's 11 May letter

Jardines responded to several points made by TVNZ and also noted that several issues raised

by it had not been addressed by TVNZ, in particular its contention that Fair Go was not

prevented by the Privacy Act from revealing the names of complainants.

1. The two programmes were a result of detailed journalistic investigation stretching

over many weeks and involving contact with a large number of people.

Jardines commented that although many weeks were spent in researching the complaint,

Jardines was given written notice of the complaint on a Monday and expected to defend

itself on television the following Wednesday. It claimed that this tactic was calculated to

disadvantage the complainee.

Noting that the approach taken by the Consumers' Institute is to take no action until it has

received a response from the complainee, Jardines commented that this was a preferable

system to the kangaroo court approach adopted by Fair Go, since it was based on the

judicial principle that the accused is innocent until proven guilty.

2. The overriding thesis of the two programmes is that people taking out insurance

through broking firms should be kept fully informed of progress in obtaining cover

and advised of the key provisions in the policies.

Jardines suggested that this statement attempted to transform the real intent and effect of

the two programmes (which was to discredit Jardines and to implicate it in alleged multi-

million dollar losses by its clients) into merely offering viewers general advice on what

clients should expect from insurance brokers.

Jardines claimed that this was a substantial shift from TVNZ's earlier summaries of the

content of the programmes (eg the 7 April letter, which stated that the thrust of the first

programme was that the Rushtons had been misled by Jardines about the starting date of

their insurance cover and about the terms and conditions of the policy. The thrust of the

second programme, according to TVNZ, was that Jardines had led growers to believe the

insurance contracts with State were similar to those with NZI when in fact the terms of

the policies were substantially different.)

3. State Insurance considered that the brokers should have told their clients about the

clause at the time of the quotation which was months before the policy was sent.

Jardines disagreed with this statement. It maintained that there was nothing unusual

about 48-hour notification clauses in insurance policies and that common sense dictates

that if an event occurs which is likely to damage the insured property, the underwriter or

the broker should be informed immediately.

Jardines repeated that the fact was that the Rushtons had no idea that such an event had

occurred, took weeks to inform the underwriter when they were finally made aware of

the damage and suffered no financial loss at all thanks to Jardines and the Insurance

Council intervening. Jardines added:

We feel bound to draw the Authority's attention to the irony inherent in Fair Go

citing a statement by State Insurance in support of its assertion of negligence by

Jardine, while at the same time referring to "months before the policy was sent to

the insured couple". Had State Insurance forwarded the policy to us at the

appropriate time in the first place, none of these events would have occurred and

Fair Go would not have had a programme.

Yet here, as elsewhere, it is Jardine who suffer the full thrust of Fair Go's attack

while State is largely ignored and even called as a witness in the programme's

defence. We do not understand TVNZ's motive for this.

4. The Rushtons took the unusual step of asking to be kept informed of what was

going on about their insurance cover.

Jardines emphatically denied this claim.

5. People taking out crop insurance for the first time might not realise that they must

notify the insurer each time events which might cause damage occurred.

Jardines repeated its argument in the 28 April letter in which it noted that the Rushtons

were not aware of the event or the potential hazard to their crops when it occurred.

Further, when they received their policy, they still delayed for five and a half weeks before

notifying the underwriter.

Adding that only the most naive and inexperienced farmer would not alert the

underwriter to the possibility of a claim after watching rain fall on susceptible crops,

Jardines suggested that it was reasonable to expect a modicum of common sense from its

clients.

6. Although there was no direct criticism of State Insurance...

In Jardines' view, this amounted to a significant concession by TVNZ. It submitted that in

fact there was no criticism of State at all. It considered that remarkable given that:

The new policy was drafted by State;

The delay in forwarding the policy to the Rushtons was entirely the responsibility of

State;

It was State who initially denied the claim;

It was Jardines and the Insurance Council which fought to have that decision

overturned;

Colleen Rushton's complaint to the Insurance Council, which formed the basis of

her complaint to Fair Go was directed at the underwriter and not at Jardines;

No formal or written complaint about Jardines has, to its knowledge, been received

by Fair Go.

7. Jardines' representative, Kevin Allen told the Rushtons the cover was in place.

Jardines denied this. It noted that at that stage, the Rushtons had not completed a formal

proposal for the insurance.

8. Jardines' representative expressly told the Rushtons on 24 November 1992 that an

underwriter was in place and that having completed their proposal, cover was in

place.

Describing this as a preposterous assertion, Jardines noted that at this point State had not

received the proposal. Their cover could not possibly have commenced.

9. The first occasion on which Jardines drew the Rushton's attention to the 48-hour

clause was on 7 April 1993.

Accusing TVNZ of manipulation of the truth, Jardines repeated that it forwarded the

policy containing the 48 hour clause to the Rushtons on 25 February. It maintained that

it was entitled to expect the Rushtons to read the policy.

10. The Rushtons were surprised to learn on 7 April that the policy only extended to 30

April.

Jardines responded that a tax invoice was sent to the Rushtons on 14 January which

clearly stated the period of cover being from 8 January to 30 April 1993. It added that

there was nothing sinister or unusual about the 30 April cutoff, noting that cover beyond

that date was not normally available as the risk becomes unacceptable. Jardines noted

that the Rushtons did not finish harvesting their crops until July–August and expressed the

view that it was inconceivable that they could have expected their cover to continue until

the crops were harvested.

11. Until receipt of (Jardines) 28 April letter, TVNZ was unaware that in fact not a

single claim was turned down as a result of these differences.

Claiming that this was an extraordinary admission Jardines added that it was all the more

extraordinary for its dishonesty. Jardines argued that TVNZ could not justify the claim

that there was a thorough journalistic investigation by Fair Go when it now admitted

 that not a single claim was turned down as a result of the differences in the policies.

Further, Jardines described TVNZ's claim that it was unaware of the fact until 28 April as

patently untrue, referring to its original letter of complaint dated 19 October 1993 in

which it stated that no claims had been declined as a result of any difference between the

policies.

12. Differences between the State and NZI policies.

Acknowledging that there were some (but not substantial) differences between the policies,

Jardines did not accept that the notification of claims clauses were more strict under the

State policy as compared with NZI. It reiterated that in some areas the State policy

provided more cover than the NZI policy, but maintained that the argument was

academic since no claim was affected by the different policy wording.

13. It should be noted that Jardines do not deny that a meeting of growers resolved to

stop premium payments until their concerns were addressed.

Jardines claimed that it did not deny such a meeting took place since it had no knowledge

of any such meeting. It noted further that the growers did not convey their dissatisfaction

to Jardines or to State nor did they convey any resolution to either.

14. When further inquiries were made it was ascertained that the premiums had

already been forwarded to Jardines and could not then be stopped.

Jardines took issue with the suggestion that having already paid the premiums, growers

could not have negotiated refunds.

15. Fair Go stands by its assertion that growers lost millions of dollars and pointed the

finger at Jardines. It added that Cedenco Foods had a claim under its crop

insurance policy and one aspect of that was Jardines' failure to pass on

information.

In Jardines' view none of these matters was dealt with in the programme nor had it been

asked to comment on them. It did not believe it could respond to assertions from

anonymous growers.

Referring to the Cedenco claim, Jardines noted that it was State which was being sued and

not Jardines.

16. Jardines' failure to appear means that they cannot complain that the points they

wished to have been advanced were not included in the programme.

Jardines denied that this had ever been its complaint. Its complaint was that the

programmes contained numerous statements that were dishonest, untrue and

unbalanced.

17. Why did Jardines not immediately lodge a formal complaint rather than wait over

a month?

Jardines provided copies of faxes which confirmed its position that it had sought leave to

lodge the complaint about the two programmes together (even though the first

programme was outside the 20-day time limit at the time of lodging the complaint.)

Jardines' Response to TVNZ's 17 May letter

Jardines responded first to the memorandum provided by Fair Go's lawyers on the

differences between the two policies. It noted that its own legal advice disagreed with some

of the conclusions in the memorandum but considered that a comparative analysis would

not assist the Authority. It concluded that the real position was that no grower had

suffered any loss which could be attributable in any way to any act or omission by

Jardines nor to any differences between the policies.

Jardines also noted:

a) Growers had no choice of insurer since no other underwriters were available

anywhere;

b) It was pointed out to growers before cover commenced that there would be

differences between the two policies;

c) Each time it rained, growers knew to contact State to report and assess damage.

d) State did not decline any claim which would have been payable under NZI's

wording. The only claims which were declined were those under the Policy

deductible which had been the same for the past two years and voluntarily

accepted by the growers.

Jardines then responded to TVNZ's letter to the Authority dated 17 May in which it

answered specific questions.

1. Fair Go was not privy to the exchanges between Jardines and State and

consequently is unable to say what role Jardines played in the State's decision

reversal.

Noting that on air Fair Go had stated that Jardines had failed miserably, Jardines accused

Fair Go of promoting itself and its own viewpoint in an unbalanced and dishonest manner.

It added:

Jardines had been dealing with State to have State reverse its decision long before

the Rushtons wrote to the Insurance Council or Fair Go;

State specifically told Fair Go that Fair Go's intervention was not influential in

State's reversal. It had already made the decision before being contacted by Fair Go.

It appears that, on its own admission, Fair Go was happy to speculate on air,

contrary to the facts, about the possibility of its own beneficial influence while at

the same time being highly critical of Jardines.

2. Growers were not covered for certain things they expected.

Referring to the reporter's opening remarks in programme 2 where she stated: "In a

nutshell growers here signed up thinking they would be covered in certain situations for

certain things, and they paid their premiums, but when the policies finally arrived, they

found they weren't covered." In actual fact, according to Jardines, the premiums were not

paid until after the policies had been faxed to the growers' representative and to Watties.

3. The evidence that implicated Jardines in the millions of dollars of losses referred to

at the end of programme 1 and the beginning of programme 2 was that Fair Go

was aware of one grower whose losses totalled $2million and Cedenco Foods also

had a claim under a crop insurance policy, one aspect of which concerned the

failure of Jardines to pass on information.

In response, Jardines made two points. The first was that Cedenco is suing State and not

Jardines. The second was that Programme 2 focused on the Hawkes Bay tomato growers

and implicated Jardines in millions of dollars in losses. In Jardines' view, this had not been

substantiated on the programme or in any of TVNZ's responses.

TVNZ's Final Comment

When asked to make a brief final comment on Jardines' letter of 1 June, TVNZ in a letter

dated 3 June 1994 commented that it had nothing of substance to add.

It noted the emphasis placed by Jardines on the culpability of State and pointed out that in

arranging insurance both the Rushtons and the tomato growers were dealing with

Jardines and not State.

TVNZ described Fair Go as a programme that examines consumer difficulties from a

consumer's point of view and in this case the consumers were dealing with an insurance

broker, Jardines. TVNZ enclosed a press clipping concerning the legal proceedings between

Cedenco and State.

Jardines' Final Comment

In a fax dated 13 June 1994, Mr Fair of Jardine Insurance Brokers advised that he had no

further comment to make.