BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

The reasons for serious cost overruns and subsequent problems arising after the repair

of a car by Darryll Chowan Motors Ltd were the subject of an item broadcast on Fair

Go on TV One at 8.05pm on 30 August 1995. The item included footage showing

Darryll Chowan declining to answer questions put by Fair Go's reporter.

Darryll Chowan and Darryll Chowan Motors Ltd, through their solicitor, complained to

Television New Zealand Ltd, the broadcaster, that the broadcast portrayed them unfairly

and inaccurately. They argued that the item was unbalanced because it failed to include

their responses to the allegations made, and in breach of the law because the matters

discussed were sub judice. The complainants sought an apology and an award of costs.

TVNZ responded that the complainants were given an opportunity to respond but had

failed to do so. It noted that expert opinion was obtained to ensure its representations of

the facts were accurate, given the limited access to details as to the extent of the repairs

undertaken on the car, and that efforts were made to incorporate the complainants'

comments on some of the technical issues. In response to the complaint that the

programme was unfair and lacked balance, TVNZ noted that Mr Chowan had not

availed himself of the opportunity to appear and have his side of the story heard. It

rejected the contention that the matter was sub judice.

Dissatisfied with TVNZ's response, the complainants referred their complaint to the

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

For the reasons given below, the Authority upholds aspects of the complaints that the

item did not deal justly and fairly with Darryll Chowan and Darryll Chowan Motors Ltd

and was unbalanced. It orders that a summary of the decision be broadcast.

Decision

The members of the Authority have viewed the item complained about and have read the

lengthy correspondence (which is summarised in the Appendix). As is its practice, the

Authority determines the complaint without a formal hearing.

The Programme

An item on Fair Go on 30 August 1995 recounted the experience of the owner of a

Mercedes car who took it to a garage for what he believed to be a relatively minor repair

job and ended up with a bill of over $9000. When he refused to pay, the garage refused

to give the car back and a legal wrangle ensued. It was reported on the programme that

according to a Mercedes agent, much of the work done was not necessary, and it was

also claimed that the engine was so badly damaged by poor workmanship and sub-

standard parts that all it was good for was scrap.

It was suggested that Darryll Chowan had upset his customers on other occasions.

When the reporter approached him to respond to the allegations, he was seen to reply:

"See my lawyer". The item reported that Darryll Chowan refused to speak to TVNZ's

reporter or to return his calls, but through his lawyer he disputed the independent

expert's assessment of the cost of the work done and claimed that the car's owners

authorised, through their agent, that the work be done. The item concluded with the car

owner, having regard to this experience, cautioning viewers to be careful about who

repairs their cars.

Darryll Chowan's and Darryll Chowan Motors Ltd's Overall Complaint

Through their solicitor, Darryll Chowan and Darryll Chowan Motors Ltd complained to

TVNZ that the broadcast breached a number of standards. They alleged that the item

contained factual inaccuracies, was biased and misleading, did not deal fairly with

Darryll Chowan and Darryll Chowan Motors Ltd, was unbalanced and was in breach of

the sub judice rule. The complainants sought a public apology and an award of costs

against TVNZ. It was submitted that a hearing by the Authority was appropriate in the

circumstances to ensure that the matters were canvassed comprehensively.

Standards

TVNZ in its response advised that it had considered the complaint under the standards

nominated by the complainants. The first four require broadcasters:

            G1        To be truthful and accurate on points of fact.

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

                        any programme.

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

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

                        matters, current affairs and all questions of a controversial nature.

The other standards read:

            G14      News must be presented accurately, objectively and impartially.

            G15      The standards of reliability of news sources should be kept under

                        constant review.

            G19      Care must be taken in the editing of programme material to ensure that

                        the extracts used are a true reflection and not a distortion of the original

                        event or the overall views expressed.

            G20      No set formula can be advanced for the allocation of time to interested

                        parties on controversial public issues. Broadcasters should aim to       

                        present all significant sides in as fair a way as possible, and this can be

                        done only by judging every case on its merits.

            G21      Significant errors of fact should be corrected at the earliest                 

                        opportunity.

TVNZ's Response to the Overall Complaint

TVNZ advised that in its view, standards G14, G15, G19, G20 and G21 were not

applicable to the complaint because Fair Go, a consumer advocate programme, did not

fall into the category of news, current affairs and documentaries. It also reported that it

had received legal advice on the sub judice point which concluded that the sub judice

rule was not violated, and thus there was no breach of standard G5. It did not believe

that the programme lacked balance or that the complainants were treated unfairly. It

noted that Darryll Chowan was given an adequate opportunity to respond, and it was

his decision not to avail himself of that opportunity. In response to the request for a

hearing, TVNZ submitted that there was no reason for the Authority to depart from its

usual practice of determining complaints without a formal hearing.

The Alleged Breaches in Detail and TVNZ's Response

The following specific matters were cited as evidence of the item's breach of standards.

TVNZ's reply to each point is also recorded.

Factual Inaccuracies (Standard G1)

1.         The complainants argued that the item's claim that the bill had risen by 2000%

was inaccurate because no quote was ever given to the car's owners for the cost of the

repairs. They noted that at no time during the extensive court proceedings had the

owners claimed that a quote was given, and suggested that the owners themselves had

presumed what the likely problem was, and estimated the probable cost themselves.

TVNZ reported that it based its assertion on the recollection of the owners and their

representative (Mr Leader, who sold them the car) that when it was delivered to Darryll

Chowan Motors, Mr Chowan took it for a drive and advised them that it would take a

couple of days to fix and would cost a few hundred dollars. TVNZ considered that the

weight of evidence favoured their recollection over Mr Chowan's.

2.         The item stated that it was two weeks before the owners were informed that the

car had a significant problem. The complainants maintained that this was contrary to the

facts which were made available to Fair Go prior to the broadcast (based on affidavits

from the car's owners and their representative) that the owners were advised after three

days that there was a problem.

TVNZ asserted that it had not seen those affidavits but had quite properly reported the

recollection of the events as described by the owners themselves, and the dealer who

had sold them the car.

3.         The programme stated that no authority was given by the owners to get the

repairs done. The complainants pointed out that the owners in an affidavit

acknowledged that the dealer was their agent, and he himself acknowledged he was

present on many occasions when the work was being done. The owners knew that the

engine had been stripped and work was under way, and had paid two cheques in part

payment prior to Christmas 1994.

TVNZ repeated that it based its assertions on the credible recollection of the owners and

their agent. It provided a statement from the agent in which he alleged that the engine

had been taken out before permission had been sought from the owner. It also provided

a statement from a mechanic who had worked on the car prior to its being taken to

Darryll Chowan Motors Ltd which expressed surprise at the extent of repairs

undertaken.

4.         The complainants complained that it was stated as fact that the engine was junk.

That allegation was made on the basis of a handwritten report from an independent

expert. The complainants had responded to that claim prior to the broadcast and

complained that the item ignored their rebuttal. They argued that none of the faults

could justify the conclusion that the engine was a write-off and most dealt with very

minor matters. Of the two more serious matters, one (the overplaning of the head)

existed before the car came into the hands of Darryll Chowan Motors Ltd and could be

remedied for about $300, if true. The other related to the compression which,

according to the AA test done in June 1995, was found to be satisfactory.

TVNZ advised that its independent expert, an authorised Mercedes agent, thoroughly

analysed the technical requirements and repairs undertaken by Darryll Chowan Motors

Ltd. It obtained that expert opinion, it reported, because it had limited access to the

details relating to the work undertaken on the car.

5.         The item dealt with paint damage, said by an expert to have been caused by heat

and battery acid, which occurred while the car was in storage pending resolution of the

dispute. The complainants argued that there was a clear implication that the damage was

done deliberately by Darryll Chowan Motors Ltd. While the programme stated that the

damage was denied by Darryll Chowan, it did not report the advice, received before the

broadcast, that an independent expert would testify that the damage was unlikely to have

been caused by acid and indicated a poor standard in the original paintwork.

TVNZ responded that it made an effort to report appropriately the complainants' view

that the damage was not caused by them.

Dealing Justly and Fairly (Standard G4)

The complainants alleged that they were unfairly treated in the programme because:

1.         Mr Chowan was given insufficient time to respond to the allegations made on

the programme. His solicitor noted that he had requested before the broadcast the

substance of the allegations being made by the owners so that he could respond to them

in detail. Mr Chowan's solicitor was promised he would have adequate time to prepare

a response but in fact did not receive the information until the middle of the afternoon of

the day before the broadcast and further information was not received until after 5pm

that day.

TVNZ acknowledged there were what it described as technical difficulties (relating to

the late receipt of the fax) but pointed out that nevertheless the relevant aspects of the

complainants' solicitor's statement were included in the programme.

2.         It was unfair not to mention that the matter was before the court at the time. The

complainants' solicitor wrote:

                        The removal of the reference to any Court hearing cannot in the         

                        hands of sophisticated journalists be accidental. The only reference

                        to Court proceedings in the programme at all gave the impression that

                        the Court had already finished with the matter in favour of the Storers

                        see the statement in the transcript

                                    Ian Storer was awarded legal possession of his car by a           

                                    Court...

TVNZ rejected the allegation that the statement suggested possible evasiveness. It noted

that the complainants did not deny that the owner was awarded legal possession of his

car.

3.         Mr Chowan's refusal to speak was made to look like an admission of guilt. The

complainants' solicitor repeated that he had advised his client to make no comment

except through him, since Judge Joyce in the District Court had asked the parties not to

indulge in a public witch hunt while the matter was still before the Court. The solicitor

also reported that Mr Chowan had asked for the questions to be put to him in writing.

The complainants asserted that TVNZ failed to present fairly Mr Chowan's reluctance to

speak, thus raising the clear implication that he accepted he was guilty.

TVNZ asserted that Mr Chowan was given an opportunity to respond but failed to do

so. It observed that Fair Go's purpose was to represent the consumer angle on

complaints and that there was considerable public interest in the exposure of standards

which fall below those which could reasonably be expected. It argued that if the person

being complained of did not choose to avail themselves of the opportunity to be heard,

then that should not prejudice the ability of the programme to be broadcast.

It added that relevant points made by Mr Chowan's solicitor were incorporated into the

story.

Lack of Balance and Unfairness (Standard G6)

1.         The complainants argued that there was only a "feeble" attempt at balance

because only a few lines from the comprehensive statement provided to Fair Go prior to

the broadcast were included. Furthermore, they pointed out, each of those lines then

received a counter-response which was designed to undermine the response and strain

the truth.

TVNZ maintained that the extracts from their statement fairly and accurately conveyed

the complainants' views of the issues. It observed that it was simply not possible to

read the whole letter, and the extracts used encapsulated the complainants' concerns.

2.         No attempt was made to present contrary information. For example, the

complainants wrote, the claim that the bill had risen by 2000% was made repeatedly

despite a detailed response which contested the claim. They noted that at no time in the

extensive court proceedings had the owners ever said that a quote was given by Mr

Chowan when they sent the car to him.

TVNZ responded that relevant material from the solicitor's response was included in the

programme.

3.         The complainants asserted that because the programme appeared to have been

compiled before the response was received, TVNZ was clearly not interested in a

contrary view.

4.         No hint was given that there were current court proceedings. Had that been

alluded to, the complainants argued, it would have indicated to viewers that Darryll

Chowan Motors Ltd must be defending its position and may have a likely reason to do

so. They repeated that deliberately not revealing that fact was unbalanced and unfair.

TVNZ repeated that it believed Fair Go accurately and fairly summarised the position

regarding the car. It rejected the allegation that it was evasive about the court

proceedings and noted that the complainants did not deny that possession of the car was

awarded to its owner by the court.

5.         The item did not explain that Mr Chowan's reluctance to speak, when

approached by a reporter from Fair Go in his garage, was because in the District Court,

the Judge had advised the parties not to indulge in a public witch hunt while the matter

was still before the court, and his solicitor advised him not to respond to the media.

The complainants asserted that the programme attempted to make Mr Chowan's

reluctance appear to be an admission of guilt.

TVNZ advised that Mr Chowan had every opportunity to respond as numerous requests

had been made of him for an interview. It wrote:

            As viewers saw he refused to avail himself of the opportunity to publicly

            advance the very information you appear to believe was lacking in this

            programme.

It argued that if the person being complained about did not choose to avail themselves of

the opportunity to speak, then that should not prejudice the ability of the programme to

be broadcast. Were that so, such people could effectively avoid media scrutiny and stall

effective resolution of disputes.

6.         The complainants maintained that only three or four lines from their solicitor's

statement were included in the programme, and each of those points elicited editorial

comment from the reporter which was unfair and unbalanced. For example, they

wrote, Fair Go based its claims on an unsigned, handwritten document without any

letterhead. Although the solicitor responded with four pages of detailed information

rebutting those claims, and offered to provide a specialist who would confirm the

reasons for the condition of the cambox, the programme simply stated "every point is

disputed" and repeated that an expert said that the engine "is now junk". The

programme referred to the matter being complex, but avoided mentioning it was before

the Court.

To the point that the bill was less than 10% more than the independent expert's likely

bill, Fair Go responded by saying that most of the work did not need to be done.

Further, the engine was described as being a write-off. Yet, the complainants noted,

when the AA tested it in June 1995, six months after the work undertaken by the

complainants, it was found to be satisfactory. Finally, the complainants noted, the

programme stated that Darryll Chowan Motors considered that the $24,000 Mercedes

was an old car with expensive problems. They believed that summary was an unfair

representation of their actual statement.

TVNZ repeated that it was unable to include the statement in its entirety on the

programme because of time limitations and that the extracts used fairly and accurately

summarised the main points.

7.         The complainants argued that the late dispatch of the technical report (received

after 5pm on the day before the broadcast) prejudiced its ability to respond.

TVNZ acknowledged there were technical problems with the sending of the

information, but noted that the statement from the complainants' solicitor was included

in the programme.

8.         In conclusion, the complainants alleged that the broadcaster wilfully and

systematically permitted the presentation of a programme which lacked balance and was

unfair.

TVNZ reiterated that Fair Go's purpose was to represent the consumer angle on

complaints against the suppliers or makers of goods and services and to attempt to

resolve disputes which consumers may have with them. It maintained that there was

considerable public interest in exposing those in business who fell below acceptable

community standards.

Breach of Principles of law (Standard G5)

The complainants argued that standard G5 was breached because the item violated the

sub judice rule. When a matter is sub judice it is before the Court and is yet

undetermined, and publications which are intended or are likely to prejudice a fair trial

may be punishable as being in contempt of Court. The complainants pointed out that

both parties had submitted to the jurisdiction of the Court and had agreed to be bound

by the Court's determination. They maintained that standard G5 was accordingly

breached.

TVNZ reported that its legal advice was that, taking into account a number of factors

including the fact that the pool of participants and witnesses was small and in effect

limited to the parties themselves, the risk of them being influenced or dissuaded by the

programme was also small. It was therefore its view that standard G5 had not been

breached.

Standards G14, G15, G19 and G20

The complainants submitted that the complaint should be considered under these

standards as well as standards G1, G4 and G6, arguing that Fair Go was

indistinguishable from some segments of current affairs programmes and portrayed

itself as providing topical in-depth coverage and investigative journalism.

TVNZ's response was that standards G14, G15, G19 and G20 were not applicable to

Fair Go but even if they were, those standards were effectively subsumed into

standards G1, G4, G5 and G6.

The Authority's Findings

Request for a Hearing

The Authority advised the complainants' solicitor that it invariably considers complaints

on the papers. It considered it had sufficient detail in the submissions to follow its

usual practice. It advised the parties accordingly and the request by the complainants

for a hearing was not pursued.

Standards G14, G15, G19 and G20

The Authority agrees with TVNZ that the issues raised in this complaint under standards

G14, G15, G19 and G20 are effectively subsumed under standards G1, G4 and G6.

Those standards are comprehensively considered below.

Truth and Accuracy (Standard G1)

The Authority received lengthy submissions from the parties detailing the matters which

were examined on Fair Go. The Authority concluded that in addition to the dispute

about the cost of the work done, there was a dispute as to the necessity of some of the

repairs, the standard of the work, the condition of the car when it was first seen by

Darryll Chowan Motors Ltd, and differences in how the parties recalled some of the

events.

The complainants' solicitor reported that in the judicial conference held in January 1996

at which the matter was settled, the Judge himself indicated that it was his view that it

would take 8 to 10 days of court time to resolve some of the factual matters.

Where there is no agreement between the parties, the Authority is of the view that,

usually, it is not the appropriate body to resolve the technical aspects of the factual

dispute. Because of the complexities of these complaints, the Authority, in all the

circumstances, declines to determine the complaint that standard G1 was breached. It

notes, nevertheless, that some of the points raised by the complainants under this head

are dealt with below under standards G4 and G6.

Dealing Fairly and Justly (Standard G4)

The Authority accepts that Fair Go's purpose is to act as advocate for disaffected

consumers. It also appreciates that it is in the public interest to expose conduct which

falls below reasonable standards. However, the Authority considers that in its role as

consumer advocate, TVNZ carries a heavier than usual duty to be fair and to ensure that

it fairly presents a balanced report.

The Authority also acknowledges that on some occasions, the party complained about

might well wish to avoid making comment, and agrees with TVNZ that refusal to

comment is not a sufficient reason in itself to avoid scrutinising that person's activities.

However where, as on this occasion, the owner of the business at the centre of the

complaint is acting on his solicitor's instructions not to comment and Fair Go is aware

of that fact, the Authority considers it was unfair to ambush him outside his business

and to broadcast footage of him refusing to comment. The Authority accepts that

viewers would have drawn adverse conclusions from that footage which were unfair.

The Authority understands that Fair Go had been advised that Mr Chowan would

respond to questions put to him in writing, but that those questions were not faxed until

late in the afternoon of the day before the broadcast, giving Mr Chowan and his solicitor

a very limited time in which to respond. It also notes that TVNZ excused the lateness of

the fax on the grounds of technical difficulties, although its reporter, in apologising for

the delay, had written that he had left the letter on the fax machine the previous night but

for some reason it had not gone through. Nevertheless the complainants did respond in

detail to the allegations made and also provided a short statement summarising their

main points. The Authority accepts that time constraints and other limitations made it

impossible to read the statement in full, but agrees with the complainants that the

extracts from the statement which were included in the programme were not a fair

representation of what was written.

To TVNZ's point that Mr Chowan was given an opportunity to respond and failed to do

so, the Authority observes that the written questions were not received until the

afternoon prior to the broadcast but, in spite of that delay, a comprehensive reply was

made. It considers that short time available for a detailed response on some of the

technical matters raised was unfair to the complainants. It also notes that Mr Chowan

was acting on his solicitor's instructions in refusing to speak, but that the reporter was

aware that he was willing to answer the written questions. The Authority considers the

ambush tactic to be an unfair way to approach a Fair Go subject and notes that the

broadcast response usually elicits an adverse assumption by viewers.

For these reasons, the Authority concludes that the programme did not treat Darryll

Chowan and Darryll Chowan Motors Ltd fairly and thus was in breach of standard G4.

Breach of Principles of Law (Standard G5)
The Authority has considered the circumstances in which the sub judice rule applies.

The dispute was finally mediated by the parties. It is unlikely that either was

prejudicially affected by the broadcast and, accordingly, it concludes that standard G5

was not breached.

Lack of Balance and Fairness (Standard G6)

In providing its consumer service, Fair Go adopts an advocacy role. However that

service does not absolve it from observing broadcasting standards. In a previous

decision (No: 161/93, dated 25 November 1993) about a Fair Go programme which

investigated the distributors of a baby buggy, the Authority wrote:

            The Authority is firmly of the view that, because of its role as an advocate for

            the consumer, Fair Go must bear the concomitant responsibility of ensuring

            that the balance aspects of the standards are complied with thoroughly at all

            times. One aspect of that responsibility on this occasion meant, as the

            complainant company's barrister put it:

                        Reluctance to appear on camera should not be taken as reluctance to

                        comment.

On that occasion the Authority decided that TVNZ had not made reasonable efforts to

allow the company to answer the specific accusations made against it and thus had

breached standard G6.

The Authority considers that even if there was, as TVNZ argued, considerable public

interest in exposing the practices of Darryll Chowan, it still had an obligation to permit

him to respond to the criticisms. The broadcast summary - of the statement provided by

his solicitor - did not, in the Authority's view, adequately summarise the complainants'

response and the overall impression, that the complainants were guilty of malpractice in

their business, was confirmed by allowing the aggrieved party (the car's owner) to have

the final word.

In addition, the Authority believes that the failure to mention that the parties were

engaged in a legal wrangle which was still unresolved contributed to the item's lack of

balance.

The Authority concludes that the item did not present a balanced investigation and that

accordingly standard G6 was breached.

Award of Costs

An award of costs was sought by the complainant. The Authority exercises its

discretion, conferred under s.16 of the Broadcasting Act 1989, and decides that in all

the circumstances no costs will be awarded on this occasion.

Conclusion

As explained above, the Authority makes no ruling on the truth or otherwise of the

allegations made about the work undertaken on the car, and records that the Authority is

usually not the appropriate forum for resolving complex factual disagreements.

In reaching its decision that the item failed to deal with the complainants fairly, and was

unbalanced, it takes into account several factors: the broadcast of an inadequate and

incomplete summary of the complainants' statement, the failure of the item to explain

that the matter was before the Court, the late receipt of information to which the

complainants had to respond, the ambush of the complainant, and the final word of

"warning" from the car's owner. Those factors contributed to an overall impression

which was unfair to the complainants.

For the reasons set forth above, the Authority upholds the complaint that

the broadcast by Television New Zealand Ltd of an item on Fair Go on

TV One on 30 August 1995 at 8.05pm was unfair and unbalanced and in

breach of standards G4 and G6 of the Television Code of Broadcasting

Practice.

It declines to determine the complaint that standard G1 was breached.


It declines to uphold any other aspect of the complaint.

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

Broadcasting Act 1989.

As the item complained about did not deal fairly with the complainants and did not

provide a balanced summary of the dispute, the Authority imposes the following order.

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 the complaint about a

Fair Go item broadcast on 30 August 1995. 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)          Reasonable efforts had not been made to allow Darryll          

            Chowan Motors Ltd or Darryll Chowan to answer the

            allegations made against them. The statement

            from their solicitor was inadequately summarised

            and was not a fair representation of what was said.
                    

ii)        The footage showing Mr Chowan refusing to respond was

                      unfair to him given that the reporter knew he had requested

                      questions to be in writing, and had explained that his

                      solicitor advised him not to speak on camera.

            iii)         The item failed to mention that the parties were engaged in

                         legal proceedings.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
28 March 1996

Appendix

Darryll Chowan Motors Ltd's and Darryll Chowan's Complaint to

Television New Zealand Ltd – 5 September 1995

Darryll Chowan Motors Ltd and Darryll Chowan, through their solicitor (Mr S H

Barter), complained to Television New Zealand Ltd that its broadcast of an item on Fair

Go on TV One on 30 August 1995 at 8.05pm was unbalanced, inaccurate and portrayed

Mr Chowan and his business unfairly. The item focussed on the escalating repair bill

on a Mercedes car (from an estimated $400 to over $9000), which was later

impounded, and included testimony from an independent source that some of the repair

charges were for work not needed or not done. The matter was the subject of court

proceedings at the time of the broadcast and the complainants argued that because the

matter was sub judice, the item should not have been broadcast.

The following points were made by the complainants:

1.         On the Friday prior to the programme (25 August), Mr Chowan's solicitor was

            advised that a reporter would contact him the following Monday and he would

            be given the opportunity to make a response on behalf of his clients. In fact the

            information he required in order to make a response was not received until the

            evening before the broadcast. A response was sent to Fair Go around 9.00am

            on 30 August (the day of the broadcast).

That response was all but ignored by the programme. Only about four lines

were quoted and each of those had a counter-response which strained the truth

and was designed to undermine the response.

2.         The programme was advertised extensively before the response could even be

            considered. Little amendment of the programme took place after it arrived. The

            programme was not interested in a contrary view.

3.        The programme was biased and inaccurate. It set out from the start with a claim

that the bill had risen by 2000% in spite of the detailed information provided by

Darryll Chowan's solicitor contesting the claim. In fact, no estimate of the cost

of repairs was given to the owners. Contrary to the programme's claim that

there was a two week delay in advising the owners of the problem, in fact they

were told in six days that there was a major problem and were warned after three

days that the problem had not yet been located. Affidavits attesting to this were

available to Fair Go.

4.        The programme failed to acknowledge that there were current court proceedings.

The programme made a reference that the court had given possession of the

vehicle to the owners, implying that the proceedings had concluded in their

favour. Deliberately not revealing that there were current court proceedings was

unbalanced and deliberately unfair. Even more unfair was that Fair Go became

involved after the owners were offered mediation. It was misleading, unfair and

unbalanced to state that the owner had contacted Fair Go as a last resort, when

he had been offered mediation.

5.        Mr Chowan's failure to respond to the reporter's questions on the programme

made him look guilty. He had been advised by his lawyer not to speak unless

through him, as the District Court judge had asked the parties not to indulge in a

public witch hunt. No attempt was made to convey that information to the

public.

6.        The programme stated as fact that the engine was junk. That claim was made on

the basis of an unsigned handwritten document. Fair Go declined to speak to a

specialist who could confirm that the condition of the cambox was such that it

indicated overheating, oil contamination and high mileage. According to the

complainants, most of the supposed defects were very minor, and only two

could be used to support a conclusion that the engine was a write-off - the

evidence relating to the compression, and the head having been overplaned.

With respect to the overplaning, it was noted that that could be repaired for

$300, if true. As to the compression, the AA had tested the vehicle some weeks

before and the compression was found to be fine. No mention was made of the

AA report which showed the motor to be in good order on 16 June.

7.        The programme also dealt with paint damage said to be caused by heat and acid

and it was implied this was done deliberately by Darryll Chowan Motors Ltd.

An independent expert was prepared to testify that it was unlikely to have been

caused by acid. The reference to heat damage may have been a deliberate

exaggeration designed to vilify Darryll Chowan Motors.

8.        The concluding part of the programme made an attempt at balance by including

three or four lines from Darryll Chowan's lawyer's statement to Fair Go. But it

deliberately avoided mentioning the matter was before the court. Although it

said Darryll Chowan disputed every point it repeated that an expert had said that

the engine was now "junk". That point had already been made and was only

made again at the end of the programme to "win" the argument rather than

present both sides evenly and fairly.

9.        The programme then dealt with the complainants' point that the final bill was

less than 10% more than an independent expert's likely bill for the same work.

However Fair Go robbed the point of validity by saying that the independent

expert also said much of the work did not need to be done. In fact, the only

work that he indicated may have been unnecessary was to do with the cambox

which represented only one seventh of the total bill.

10.       The programme failed to acknowledge that the dealer himself visited the garage

on behalf of the owners.

11.       Finally, the programme quoted from the statement that Darryll Chowan Motors

thought the $24,000 Mercedes was an old car with expensive problems. This

misrepresented what Darryll Chowan Motors Ltd said in its own defence. That

statement read:

We understand the car cost $24,000 which is a lot of money for any car

with something like 140,000 kilometres on the clock. The Storers

bought it without themselves getting their own check on the car, as far

as we can see. The registration papers do not show the dealer on them

as required. There has been the sort of mechanical problem that every

old car potentially has. When this happens with a status car like the

Mercedes it is an expensive job and it is obviously tempting to find

someone else to pay for it.

Darryll Chowan's lawyer concluded by saying that his clients had been unfairly treated

and that the programme was unbalanced. He sought a full public apology and

retraction.

In a letter dated 15 September, the solicitor confirmed that he alleged the programme

breached standards G1, G4, G5, G6, G14, G15, G19, G20 and G21. He advised that

he had received an opinion from counsel that the programme offended the law dealing

with matters sub judice.

TVNZ's Response to the Formal Complaint – 30 October 1995

At the outset TVNZ advised that standards G14, G15, G19, G20 and G21 were not

applicable to this complaint because Fair Go was a consumer advocate programme and

not in the category of news, current affairs or documentaries. It pointed out that the

content of the news standards were subsumed under G1, G4, G5 and G6.

With respect to the sub judice point, TVNZ commented that the complainants' lawyer's

position in his 15 September letter was different from that taken in the 5 September

letter. According to TVNZ the 5 September letter represented the correct position. It

wrote:

It is the view of TVNZ's counsel that in this instance the test for infringement of

the sub judice rule is found in Solicitor General v BCNZ [1987] NZLR 100.

There would seem to be no real risk of likely prejudice in the District Court as a

result of the programme.

Given that advice, TVNZ concluded that standard G5 was not breached.

In response to the allegation that standard G1 was breached, TVNZ noted that the

purpose of the broadcast was to set out the position of the customer who sought to have

a car repaired of a relatively minor cold start problem. The repairer (without clear

instruction from the customer) then embarked on complex additional work which

resulted in high cost, substantial delays and great inconvenience to the customer.

According to the dealer who sold the car, the only mechanical difficulty was the

problem of being difficult to start when cold. A new petrol pump had been fitted and

adjustments made to the rear brakes by another repairer, who recommended that the car

be taken to a European car specialist to look into the cold start problem. The dealer

recommended Darryll Chowan Motors. When it was delivered it was taken for a drive

and Darryll Chowan advised it would take a couple of days to fix and would cost a few

hundred dollars. While there have been subsequent disputes about whether a quote was

given, TVNZ advised that Fair Go endeavoured to present the facts accurately, in the

absence of any clear recollection from Darryll Chowan.

TVNZ advised that it was accurately reported that the owners did not authorise the

motor to be stripped down or further work to be undertaken. It maintained that while

the dealer visited Darryll Chowan Motors on occasions he did not authorise additional

expenditure or repairs. The evidence of the owners and the dealer conflicts with that of

Darryll Chowan, but TVNZ believed the weight of the evidence gave the owners and

the dealer greater credibility.

With respect to the work undertaken TVNZ advised that it sought detailed information

from Mr Chowan about the work undertaken and further analysis was provided by

another Mercedes agent. It believed that the evidence was strong that Fair Go obtained

expert opinion to ensure its representations on matters of fact were accurate, given the

limited access it had to details about the work done on the car. It considered the specific

issues of accuracy were dealt with by the independent expert's report on the vehicle and

by the inclusion of comments made in Mr Chowan's solicitor's statement in relation to

technical matters. TVNZ considered that the amount of time given in the programme to

Mr Chowan's response was sufficient to address the issues, especially as he declined

requests to be interviewed. It concluded:

While "Fair Go" clearly had some difficulty in assessing accuracy, because of

the evidence to support contrary viewpoints, TVNZ is satisfied that the

programme properly checked and double-checked the evidence presented to it

and in so doing complied with the requirements of G1.

TVNZ advised that it had examined the complaint under standards G4 and G6 together

because they overlap to a considerable extent,. It wrote:

Central to the issues of fairness and balance was the opportunity offered by

"Fair Go" to your client so that his side of the issue could be heard. As noted

above numerous requests were made of Mr Chowan for an interview. As

viewers saw he refused to avail himself of the opportunity to publicly advance

the very information you appear to believe was lacking in this programme.

Accepting that there were technical difficulties when communicating with Mr Chowan's

solicitor prior to the broadcast, TVNZ noted that nevertheless the relevant aspects of his

statement were included in the programme.

TVNZ observed that Fair Go's purpose was to represent the consumer angle on

complaints and noted that there was considerable public interest in the exposure of poor

standards of service and conduct. In dealing fairly and justly with people in the

programme, it agreed it was important to give them an opportunity to be heard.

However, it argued, if the person being complained of does not choose to take the

opportunity to be heard, their choice should not prejudice the ability of the programme

to be broadcast.

In this case, it noted that Mr Chowan was given the opportunity to put forward his side

of the story on more than one occasion and to explain the breakdown of the bill.

Subsequent efforts elicited the statement from his solicitor and parts of that were

incorporated into the story.

TVNZ concluded that standards G4 and G6 were not breached.

Darryll Chowan Motors Ltd and Darryll Chowan's Referral to the

Broadcasting Standards Authority – 27 November 1995

Dissatisfied with TVNZ's response, Darryll Chowan Motors Ltd and Darryll Chowan,

through their solicitor (Mr Barter), referred the complaint to the Broadcasting Standards

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

Mr Barter enclosed copies of the relevant correspondence, a transcript of the item, his

faxed response to TVNZ prior to the programme's broadcast, an extract from the

District Court judgment and a copy of a comparative quote from another Mercedes agent

for the repair work.

He began by outlining the history of the complaint. He noted that in the Auckland

District Court Judge Joyce, in a judgment dated 11 August 1995, cautioned the parties

in the matter against:

            ...succumbing to an approach to the case which, taken too far, might itself

            gather the elements of a witch hunt.

Accordingly, he advised his client Darryll Chowan that he should not comment to the

Fair Go reporter because the matter was sub judice, was contrary to the judge's

directions and therefore a contempt of court, and that if Fair Go did broadcast the item,

the rules of natural justice should be strictly applied.

In response to requests to Fair Go, Mr Barter was sent information about the allegations

against his clients to which he responded with detailed submissions. He noted that the

reports about the condition of the car and the estimate of how much it would cost to

repair were anonymous. He also noted that he did not receive the information until the

night before the item was broadcast, giving him very little time in which to respond.

Mr Barter then turned to the reasons for referring the matter to the Authority. In

response to TVNZ's argument that standards G14, G15, G19, G20 and G21 were not

applicable because Fair Go was a consumer advocate programme and not in the

category of news, current affairs and documentaries, he argued that the classification

should not be read so restrictively. In his view, Fair Go was indistinguishable from

some segments of 60 Minutes, Newsnight and Holmes. He described Fair Go as:

...Current Affairs in that it portrays itself as providing topical "in-depth"

coverage and investigative journalism. It is a Documentary series that presents

items of current interest and relevance to the consuming public.

He argued that the programmes which were in the non-news category were

entertainment programmes and included sport, comedy and drama. Those programmes,

he argued, were distinguishable as being fictional. He reasoned that it was sensible to

regard programmes dealing with manifestations of truth as being within the news,

current affairs, and documentary grouping, and in this case, amounted to advocacy

journalism.

With reference to the sub judice matter, Mr Barter repeated that he had received an

opinion that the programme offended the law dealing with matters sub judice. He

sought a ruling from the Authority that the programme was capable of breaching the sub

judice rule and submitted that it consequently breached standard G5.

Standard G1

Mr Barter, for the complainants argued:

1.        The programme was inconsistent with sworn affidavits of the owners and their

agent and furthermore failed to acknowledge that there was a dispute about the

factual basis. Even the District Court judge who had had three preliminary

hearings and had studied all of the affidavits, was unable to make any

conclusive decision on the evidence. The complainants rejected TVNZ's

assertion that the evidence favoured the owners and their agent.

2.        The programme failed to acknowledge that the matter was before the court. In

fact the only reference to the court implied that the matter was resolved in favour

of the owners.

3.        The programme stated that no authority was given by the owners to a third party

to get the repairs done. In fact both the owners and their agent knew within

days that there was a far more serious problem with the car than had been

contemplated and that the work would cost thousands, not hundreds, of dollars

to repair. There was serious doubt about the owners' assertions that they had

given no authorisation to do the work.

4.        With respect to the comment "all it is good for is scrap" the complainants argued

that none of the expert's documents (which were unsigned, undated, and

without any identification of their origin) indicated that the engine was a write-

off. There were a number of errors in the expert's report which were drawn to

Fair Go's attention prior to the broadcast.

5.        Although the owners stated that the car would not start and sounded awful, an

AA report in August indicated it was running satisfactorily. Other experts

would have testified as to the condition of the engine but they were not asked to

do so.

6.        Mr Chowan's silence was taken as an admission of guilt when in fact he had

been instructed not to comment.

7.        Responding to TVNZ's argument that Fair Go obtained expert opinion to ensure

its facts were correct, the complainants noted that their solicitor's response the

day before the broadcast challenged those facts and that response was ignored.

8.        The complainants rejected TVNZ's assurance that it had incorporated their

comments in the script, arguing that it would have only taken seconds to read

the excerpt which stated:

The company has sent a letter to Fair Go with its answer to each of the

Storers' [the owners] latest claims. Every item in the latest report on the

car (which is a hand-written note from an undisclosed source) is

completely disputed and in detail. We've been told by Fair Go for

instance, that the car was unable to be driven, yet the Storers did an AA

test in mid-June which said it was fine on a road test and that the

        compression was quite OK.

The complainants suggested:

                        The impelling force driving this "investigation" was a programme

                        scheduling deadline rather than determination of the truth:
           

           They noted the late arrival of the expert's report (5.15pm the day before the

broadcast) and the lack of time for the complainants to respond.

9.         Turning to the matter of paint damage and TVNZ's response which stated:

As an example, the programme outlined your client's view that the

paint on the Mercedes was not damaged by them, but rather indicated

a poor standard in the original paintwork.

           The complainants maintained that it did not present their view unequivocally that

the damage, confirmed by an expert, was caused by bad paintwork. The

programme referred to the owners as having expert opinion that the damage was

caused by battery acid and then stated that the complainants denied that

assertion, and failed to mention that that was backed by expert opinion.

Standards G4 and G6 – Fairness and Balance

The complainants repeated that the instances of unfairness were detailed at length and

that they objected to TVNZ's argument that there was an opportunity for the

complainants to respond which was not taken. They argued:

1.         The matter was sub judice. The complainants were advised not to respond.

2.         The complainants were not given the relevant material until the day before the

            broadcast.

3.         A detailed response was sent but was largely ignored because it did not fit the

            pre-determined position.
                       

                        Faced with a detailed articulated truth that is at odds with its position,

                        the programme seems incapable of surrendering newsworthiness to fair

                        play.

4.         TVNZ failed to address the many items of imbalance referred to in the

complaint.

The complainants sought a full public statement of apology to be aired twice every night

for one week between 6.00pm and 8.30pm in a form to be approved and an award of

costs.

They submitted that a hearing may be appropriate.

TVNZ's Response to the Authority – 18 January 1996

TVNZ repeated that in its view, standards G14, G15, G19, G20 and G21 were not

relevant to the complaint because it did not regard the programme as falling under the

heading of News, Current Affairs and Documentaries. It maintained that nevertheless

those standards can be effectively subsumed into standards G1, G4, G5 and G6. It

advised that even if the Authority decided that the first standards were relevant, its

conclusions would be the same as under the latter group.

Referring to standard G5 and the sub judice rule, TVNZ advised that it had sought legal

advice and enclosed the opinion it received from its lawyers on that issue.

Standard G1

TVNZ responded to the numbered points above:

1.        TVNZ has not seen the affidavits to which the complainants lawyer referred.

However Fair Go reported the credible recollection of events as described by the

car owners. It noted that that recollection was bolstered by a letter from the

dealer who had sold them the car.

2.        The owner put his point of view on the programme and Mr Chowan was given

every opportunity to respond. It reported that the owner's experience was not

an isolated one and that Fair Go had received a number of complaints about

Darryll Chowan Motors Ltd both before and after the broadcast of the

programme.

3.        Fair Go accurately and clearly summarised the position regarding the car.

TVNZ rejected the allegation that the statement suggested possible evasiveness

and noted that the owner was awarded legal possession of his car by the Court.

4.        TVNZ observed that Mr Chowan's lawyer seemed to be suggesting that if his

client chose not to comment then that should force the broadcaster to desist from

presenting a consumer affairs piece which is clearly in the public interest. It

suggested that if that were the rule, then any amount of questionable commercial

activity could be concealed. TVNZ reported that it gave Mr Chowan every

opportunity to comment.

5.        TVNZ asserted that, according to its information, all parts of the item were true

and accurate.

Standards G4 and G6 – balance

TVNZ denied that Fair Go largely ignored the response from Mr Chowan's lawyer,

adding that relevant material from his response was included in the programme.

It expressed its disappointment with the accusation that its journalists used their

dominant position to obtain salacious footage to further the programme's predetermined

position.

Referring to Mr Chowan's lawyer's complaint that his letter of response was not

included, TVNZ responded that it was simply not possible to broadcast the whole letter,

but that it did quote a portion of the letter which encapsulated the points made. It

concluded:

            TVNZ stands by the information contained in the "Fair Go" item dealing with

Darryll Chowan Motors and believes it important that properly researched

material concerning the rights of consumers should be aired in this manner in a

free and democratic society.

Further Correspondence

In response to a request from the Authority, TVNZ, in a letter dated 9 February 1996

advised that it appeared that the unsigned, handwritten quote came from a Mercedes

agent in Auckland. It also enclosed two statements, one from a mechanic who had

worked on the car prior to it being sent to Darryll Chowan Motors Ltd, and one from

the dealer who sold the car. It asked that those statements not be sent to the

complainants. The Authority returned those statements to TVNZ, advising that it could

not consider material which was confidential.

In a letter dated 9 February 1996, Mr Barter, for the complainants, responded to the

Authority's letter of 7 February in which it advised that almost invariably it decides

matters on the papers and would propose to do so on this occasion. Mr Barter noted

that his request for a formal hearing was by way of an offer of assistance to the

Authority and he was willing to defer to the Authority's experience in the matter. He

repeated that the essence of his submissions to TVNZ prior to the broadcast was to

point out that its claim that the engine had been ruined could not be logically supported

on the basis of the expert's report.

In response to the Authority's request for information on the nature of the legal

proceedings extant, Mr Barter advised that the claim between the owners and Darryll

Chowan Motors Ltd had been settled at a judicial conference two weeks previously.

Further Correspondence

TVNZ, in a letter dated 14 February 1996 submitted that there was no reason for the

Authority to depart from its normal practice of determining complaints without a formal

hearing.

It advised that it considered the quote from the Mercedes agent to be of considerable

significance because it provided a cross-check against the work done. It reminded the

Authority that although Fair Go checked out the complex technical details and prices,

the item was constructed so as to be readily comprehended by the viewing audience.

In a letter dated 20 February it confirmed the origin of the handwritten quote. It also re-

submitted the statements from the mechanic and the dealer for the Authority's

consideration.

Further Correspondence

Mr Barter, for the complainants, in a letter dated 21 February 1996, expressed his

concern at the introduction of the letters from the mechanic and the dealer. It noted that

TVNZ described the letters as affidavits and "sworn statements" and responded that that

was totally misleading and incorrect. It noted that one in particular was vitriolically

expressed and biased.

Mr Barter advised that if necessary he would present an equal number of statements

from the tradesmen who did most of the work on the vehicle. He reported that the

mechanics who saw the cam box indicated that it was in a seriously bad condition when

sent to them and showed signs of having been run out of oil and overheated and a

considerable amount of wear due to dirt etc.

He reminded the Authority that the issue was not the condition of the vehicle, and noted

that the owners themselves presented a report from the AA which indicated that the

vehicle was able to be driven. He noted that there was very considerable ground for

dispute as to the facts of the matter and added that at the recent judicial conference:

            ...the Judge himself indicated that it was his view that it may take up to 8 to 10

            days of Court time to resolve the truth or otherwise of anybody's statements in

            respect of the mechanical condition of the vehicle.

Regarding the mechanic's statement, Mr Barter commented that if the problem was so

simple in his view, then why had he not done the repairs himself. He commented that

he viewed the unsworn statement of the dealer as one that ought to be discarded

entirely. He noted that this was the dealer who had sold the car to the Storers and

whose name as dealer had not appeared on the ownership papers, as required by law.

He wrote:

            He is, in my view, potentially legally liable to the Storers in respect of any

            representations he may have made to them about the condition of the vehicle,

            and has every reason to paint as unkind a position as possible in respect of Mr

            Chowan and Darryll Chowan Motors Limited.

Mr Barter gave notice that he regarded the documents as inadmissible because they had

no relevance, were not affidavits on oath and were entirely prejudicial and contestably

wrong on fact. He sought confirmation that the documents would not be presented to

the Authority.

Finally Mr Barter described as quite amazing the fact that TVNZ had not given the name

of the person who prepared the quote. He wrote:

            It is my submission that this is typical of a presentation made by Fair Go at

            reckless speed and with disregard for obtaining accurate and balanced factual

            information before it went to air.

Further Correspondence

In a letter dated 22 February, TVNZ responded to points made by Mr Barter. It advised

that the statements were provided to assist the Authority if it wished to review the

mechanical detail. It agreed with Mr Barter that the Authority's deliberation should be

confined to what was broadcast and should not include references to the car's condition

other than to those specific references in the item.

It denied that the report of Fair Go was distorted or unfair and reminded the Authority

that this was but one of a number of complaints against Darryll Chowan Motors Ltd.

It advised that it had received information from the Mercedes company that scouring of

the cam box was not unusual and not a cause for concern.

TVNZ confirmed the name of the person who wrote the quote and stated that it was his

view that there was no necessity for work of that extend to be done. It suggested that if

the Authority wished to investigate the technical details further it should contact the

reporter directly.

A copy of TVNZ's letter was faxed to Mr Barter and his response was received the

same day (22 February). He objected to TVNZ's comment that this was but one of a

number of complaints against Darryll Chowan Motors Ltd, describing it as scurrilous.

He also objected to the suggestion that the Authority should contact the reporter directly.

He repeated that the documents TVNZ provided were not affidavits and should not have

been referred to as such.

Mr Barter reported that he had contacted the Mercedes company himself and had been

advised that significant scouring with metal filings and cam gaps of 30/1000th inch

(present in this cam box) indicated a significant and severe problem which ought to be

repaired.

He apologised for the length of his reply but stated that he was reluctant to allow TVNZ

to continue to introduce new and irrelevant material into the matter without

contradiction. He considered the debate should have been confined to the issue relating

to the programme and not dealt with the mechanical condition of the vehicle. He

concluded:

            Indeed, it is the whole point of this complaint that TVNZ have attempted to

            determine the facts for themselves, event when they were the subject of a civil

            trial. It did so without proper reference to my client and published its

            conclusions without any reasonable attempt to also publish the contradictions

            that my client had made TVNZ aware of before it went to air.