Chowan and Chowan Motors Ltd and Television New Zealand Ltd - 1996-038, 1996-039
- J M Potter (Chair)
- A Martin
- R McLeod
- L M Loates
- Darryll Chowan and Darryll Chowan Motors Ltd
BroadcasterTelevision New Zealand Ltd
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.
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.
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
Signed for and on behalf of the Authority
28 March 1996
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
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
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
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
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  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
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.
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
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
3. A detailed response was sent but was largely ignored because it did not fit the
Faced with a detailed articulated truth that is at odds with its position,
the programme seems incapable of surrendering newsworthiness to fair
4. TVNZ failed to address the many items of imbalance referred to in the
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
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.
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
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
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
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
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.
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.
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
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
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 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
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.
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
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
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
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.