BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has declined to determine a complaint regarding a broadcast discussing Fonterra’s write-down of assets and the Reserve Bank’s announcement of an official cash rate cut. The Authority considered that the complaint was trivial, frivolous and vexatious and raised matters which were not covered in the broadcast and amounted to the complainant’s personal preference rather than issues of broadcasting standards.

Declined to Determine: Accuracy

The broadcast

[1]  A segment on Nine to Noon included a discussion with business commentator Rod Oram regarding Fonterra’s ‘big write down of assets’ and the fact that it would give no dividends this financial year; and the Reserve Bank’s announcement that the official cash rate would be lowered.

[2]  The segment was broadcast on 13 August 2019 from 11:10am on RNZ National. In considering this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[3]  Allan Golden complained that the item was inaccurate. In his original complaint to RNZ he also raised the fairness standard, but did not raise this in his referral to the Authority. Mr Golden argued that Rod Oram’s discussion ‘failed to disclose likely and obvious corruption which is at the heart of these topics’ and made submissions raising information about topics not covered in the broadcast.

[4]  In his referral, Mr Golden also made reference to an alleged inaccuracy concerning the ‘contribution’ of Gavin Ellis, who appeared on the programme in a later segment. This aspect of the complaint introduced material not contained in the original complaint or the broadcaster’s decision (and which cannot be interpreted as a simple elaboration upon the original complaint). Accordingly, it is outside the scope of the referral to us.¹

[5]  The broadcaster, RNZ, did not uphold the complaint, noting that the complaint did ‘not identify which particular comment made by Mr Oram, or the presenter’ may have been inaccurate.  

Outcome: Declined to Determine

[6]  Section 11(a) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers that the complaint is frivolous, vexatious, or trivial. The policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by broadcasters and by the people of New Zealand, should not be wasted in having to deal with matters which objectively have no importance.²

[7]  A ‘frivolous’ complaint is one which is not serious or sensible, and is unworthy of being treated in the same way as a complaint which has some merit. A ‘trivial’ complaint is one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.³

[8]  A vexatious complaint, on the other hand, is one which has been instituted without sufficient justifying grounds.⁴ The BSA is usually reluctant to label a complainant vexatious. However, complainants who repeatedly refer complaints about the same issue, even though their earlier complaints have been dismissed with comprehensive reasons given, have been found to be vexatious.⁵

[9]  Mr Golden has made a number of complaints on unmeritorious or spurious grounds over the past several years.⁶ Mr Golden has had two costs orders made against him⁷ and he has been warned that where further frivolous or vexatious complaints are made, the costs scale may be increased.

[10]  In this case, Mr Golden’s complaint concerns his own personal preferences as to what he considers should have been covered in the segment discussing two specific issues, Fonterra’s write downs and the lowering of the official cash rate. The Broadcasting Act 1989 acknowledges that such complaints are not, in general, capable of being resolved by a complaints procedure.⁸

[11]  Given the specific nature of this broadcast and the lengthiness and irrelevance of Mr Golden’s complaint to the material broadcast, we find his complaint frivolous, trivial and vexatious, as he has again raised matters of personal preference which cannot be resolved by this complaints procedure. We therefore decline to determine the complaint pursuant to section 11(a), on the grounds that it was frivolous, trivial and vexatious.

For the above reasons the Authority declines to determine the complaint.

[12]  Having found the complaint to be frivolous and vexatious, we may make an order of costs and expenses under section 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

The parties’ submissions

[13]  RNZ sought reimbursement for costs totalling $1,325.00 plus GST and provided a breakdown of the time and resources spent on the matter. RNZ highlighted the time-consuming nature of the complaint (which identified an hour-long broadcast) and the previous unpaid costs awards.

[14]  Mr Golden provided lengthy submissions in response to the provisional decision. He took the opportunity to further present arguments unrelated to the broadcast and further his own views as with previous complaints. On the issue of costs he commented:

RNZ typically provides only a one sentence comment on my complaints.  The cost is about $5.00. It is continually inviting comment from the public on all topics.  Obviously the corrupt Government wishes to close down critics such as me and solicits assistance such as from RNZ…RNZ has a clear duty to tell the public what is going on to make democracy work. There is no democracy when the Government lies to the public through the news media. The BSA has a duty to make broadcasters do [their] job.

Our decision on costs

[15]  Section 16(1) of the Broadcasting Act 1989 states:

Subject to subsection (2), the Authority may, in any proceedings, order any party to pay to any other party such costs and expenses (including expenses of witnesses) as are reasonable, and may apportion any such costs between the parties in such manner as it thinks fit.

[16]  Section 16(2)(a) states:

No award of costs shall be made under subsection (1) against the complainant unless,—

in the opinion of the Authority, the complaint is frivolous or vexatious or one that ought not to have been made; … 

[17]  The purpose of an order of costs is ordinarily to enable recovery of a contribution to the costs reasonably incurred during the complaints process. In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.⁹

[18]  Costs awards are most often ordered by the Authority to recompense in part a successful complainant for legal costs which have been incurred.¹⁰ Where costs have been awarded to a successful complainant, the Authority has generally awarded 20-25% of the actual costs incurred. Costs are ordered rarely.

[19]  Generally, we consider costs ordered against a complainant should also be awarded sparingly to ensure complainants are not dissuaded from lodging complaints with merit.¹¹ As we discuss below, this is a unique case, with a complainant who persists in raising substantially similar issues, notwithstanding previous determinations and warnings by this Authority.

[20]  The requirements for section 16(2)(a), which enable us to make a costs order, are met in this case, as we have determined that the complaint was frivolous, vexatious and one that ought not to have been made. In making a decision as to whether, and what, costs order is appropriate, however, we have found the below factors relevant:

• The complaint was found to be trivial, frivolous and vexatious and to raise issues that did not justify it being treated as a serious complaint.
• A number of Mr Golden’s complaints have been found to be trivial, frivolous and vexatious.¹²
• Mr Golden has been warned on a number of occasions since 2013, including recently in July 2019, that costs may be awarded against him.
• Costs of $100 and $200 (20% of costs incurred by RNZ) were awarded against Mr Golden in decisions ID2019-010 and 2019-027 respectively which both raised substantially similar issues as those in this case.
• Mr Golden is familiar with the broadcasting standards regime and complaints process. This is not his first complaint.
• It is clear that RNZ deals with a number of complaints from Mr Golden, only a small portion of which come before the Authority. The majority of Mr Golden’s complaints that have come before the Authority have been against RNZ. 
• RNZ provided clear evidence of the time spent and cost incurred in dealing with this particular complaint. We consider those costs were reasonable.
• A number of previous complaints by Mr Golden have concerned his views about corruption in the government and financial sectors in New Zealand. He has been advised by the Authority on a number of occasions about its jurisdiction concerning matters of personal preference. Notwithstanding that advice, this complaint mirrored those previous complaints.
• Cost awards should be made rarely.

[21]  Taking into account the factors above, we consider it is reasonable for us to order Mr Golden to pay a contribution towards RNZ’s costs to reimburse RNZ for the time spent in dealing with a frivolous, trivial and vexatious complaint.

[22]  We agreed that a contribution of approximately 20% of RNZ’s total costs is appropriate, given Mr Golden’s continued referral of similar complaints to RNZ and this Authority. Therefore, we have determined that an award of $300 is reasonable and proportionate.

[23]  This remains a relatively small contribution towards RNZ’s costs and we reiterate to the complainant that where further frivolous or vexatious complaints are made, this scale may be further increased. 

Order
Under section 16(2)(a) of the Act, the Authority orders Allan Golden to pay costs to Radio New Zealand Ltd in the sum of $300.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings 
Chair
16 June 2020 

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Allan Golden’s formal complaint – 9 September 2019

2  RNZ’s response to the complaint – 4 October 2019

3  Mr Golden’s referral to the Authority – 31 October 2019

4  RNZ’s final comments – 22 November 2019

5  Mr Golden’s submissions on the provisional decision – 7 May 2020

6  RNZ’s submissions on the provisional decision – 13 May 2020

¹ See, for example, The Prime Minister (Rt Hon Helen Clark) and Munro and TV3 Network Services Ltd, Decision No. 2002-157, 2002-158 at [23]-[26]
² Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 63
³ As above
⁴ As above, page 64
⁵ See, for example, Leitch and Television New Zealand, Decision No. 2012-104 and Rupa and Māori Television, Decision No. 2011-087
⁶ See, for example, Golden and Radio New Zealand Ltd, Decision No. 2015-002 (vexatious), Golden and Radio New Zealand Ltd, Decision No. 2014-159 (frivolous and vexatious), Golden and Radio New Zealand Ltd, Decision No. 2013-086 (trivial), and Golden and Radio New Zealand Ltd, Decision No. 2013-028 (trivial)
⁷ See Golden and Radio New Zealand Ltd, Decision No. ID2019-010 and Golden and Radio New Zealand Ltd, Decision No. 2019-027
⁸ See Broadcasting Act 1989, s 5(c)
⁹ Guidance: Costs Awards to Complainants, Broadcasting Standards in New Zealand Codebook, page 66
¹⁰ As above 
¹¹ McDonald and Television New Zealand Ltd, CIV-2011-485-1836, 30 April 2012 at [33]
¹² See above, footnotes 6 and 7