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 that a broadcast covering the name change of an investment and advisory group from ‘First NZ Capital’ to ‘Jarden’ was inaccurate finding that the complaint was frivolous, trivial and vexatious. The Authority ordered the complainant to pay a reasonable portion of costs to the broadcaster to compensate for the time and resources spent in dealing with the complaint.

Declined to Determine: Accuracy

Order: Section 16(2)(a) – $200 costs to the broadcaster

The broadcast

[1]  A segment on Nine to Noon included commentary from Rod Oram about the name change of a New Zealand investment and advisory group from First New Zealand Capital (First NZ Capital) to Jarden, after All Black Ron Jarden who started the firm.

[2]  The segment was broadcast on 19 March 2019 at 11:15am on RNZ National. As part of our consideration of 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. He argued:

• The company which had changed its name to Jarden was called FNZC, not First NZ Capital, and RNZ had deliberately misled audiences by not correctly identifying the firm.
• Mr Oram mentioned that the group had bought an entity called ‘Principal Investments’ but Mr Golden referenced an RNZ news item from August 2017 suggesting that the group had set up that business rather than buying it.
• Mr Oram indicated that First NZ Capital started ‘way back in the 50s and sixties’ but since ‘Ron Jarden continued to be employed by Shell Oil after finishing Rugby in 1956’ his firm could not have emerged in the 50s.
• Mr Oram’s description of the ‘wonderful history’ of First NZ Capital was inaccurate (and Mr Golden made various assertions regarding the history and nature of First NZ Capital including allegations of corruption).

[4]  The broadcaster, RNZ, responded that the complaint contained ‘assertions, potentially defamatory statements and what can only be described as conspiracies which trifle with [the] formal complaints process and have no bearing on the matter which you raise.’

[5]  RNZ did not uphold the complaint, noting that nothing raised ‘would indicate that the listener would have been misled in their understanding that the firm had changed its name back to “Jarden”.’

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 s 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.¹

[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.²

[8]  A vexatious complaint, on the other hand, is one which has been instituted without sufficient justifying grounds.³ The BSA is usually reluctant to label a complainant vexatious. However, complainants who repeatedly referred complaints about the same issue, even though their earlier complaints had been dismissed with comprehensive reasons given, have been found vexatious.⁴

[9]  Mr Golden has made a number of complaints on unmeritorious or spurious grounds over the past several years, including four previous complaints relating to FNZC/Feltex, two of which were found vexatious and the others trivial.⁵ Mr Golden’s most recent complaint included an award of costs against him⁶  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:

• the use of the group name (First NZ Capital)⁷ rather than its commonly used ‘trading name’⁸ (FNZC), although both describe the same entity
• trivial issues of detail (ie regarding the decade when the firm was established or the precise manner in which a particular part of the group’s business, Principal Investments, was established)
• his own personal preferences as to what he considers should have been covered in the segment describing the history of this investment and advisory group. The Broadcasting Act acknowledges that such complaints are not, in general, capable of being resolved by a complaints procedure.⁹

[11]  In the context of a brief broadcast reporting on the group’s name change, we consider that Mr Golden’s complaints are 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]  Under section 16(1) of the Broadcasting Act 1989, the Authority may order any party to pay to any other party reasonable costs and expenses, which may be apportioned in a manner the Authority thinks fit.

[13]  As part of this process, RNZ indicated that it intended to seek from Mr Golden reimbursement of the costs incurred in processing his complaint.

[14]  Having declined to determine the complaint, we invited submissions from the parties on whether and what costs should be ordered. In particular, we sought further information from RNZ as to the time and cost incurred in dealing with Mr Golden’s complaint.

The parties’ submissions

[15]  RNZ sought reimbursement for costs totalling $1050 plus GST and provided a breakdown of the time and resources spent on the matter.

[16]  Mr Golden submitted that this decision inaccurately implied that his complaint was referred after he received the costs order for Decision No. ID2019-010 and therefore the complaint referral was in defiance of the order. We have amended footnote 6 to address this. However, Mr Golden also reiterated a number of his initial submissions and commented:

It is most likely that I would have defied that warning had I had it at the time, as these submissions indicate.

Our decision on costs

[17]  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.

[18]  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; … 

[19]  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.¹⁰

[20]  Costs awards are most often ordered by the Authority to recompense in part a successful complainant for legal costs which have been incurred.¹¹ 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.

[21]  We consider costs ordered against a complainant should also be awarded sparingly to ensure complainants are not dissuaded from lodging complaints with merit.¹²

[22]  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, cost 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 vexatious¹³.
• Mr Golden has been warned on a number of occasions between 2013 and recently in July this year that costs may be awarded against him.
• Costs of $100 (20% of costs incurred by RNZ) were awarded against Mr Golden in decision ID2019-010 and he was informed that RNZ would seek costs against him in this complaint.
• 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. 91% 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. This complaint, however, mirrored those previous complaints.
• Mr Golden informed the Authority that had he had the warning before he made this complaint he would have ‘defied’ it.
• Cost awards should be made rarely.

[23]  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 that ought not to have been made.

[24]  We agreed that the same percentage as applied in ID2019-010 (rather than an increased amount) is appropriate, given that Mr Golden referred this matter before the ID2019-010 cost award was communicated to him. Therefore an award of $200 is reasonable and proportionate (being approximately 20% of the full costs incurred by RNZ in this case).

[25]  This is a small contribution on this occasion and we reiterate to the complainant that where further frivolous or vexatious complaints are made, this scale may be 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 $200.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings 
Chair
29 October 2019 

Appendix

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

1                 Allan Golden’s formal complaint – 22 March 2019

2                 RNZ’s response to the complaint – 18 April 2019

3                 Mr Golden’s referral to the Authority – 25 April 2019

4                 RNZ’s confirmation of no further comment and seeking costs – 21 June 2019

¹ Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 63
² As above
³ As above, page 64
⁴ See, for example, Leitch and Television New Zealand, Decision No. 2012-104 and Rupa and Māori Television, Decision No. 2011-087
⁵ 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)
⁶ See Golden and Radio New Zealand Ltd, Decision No. ID2019-010 (although the complaint currently before the Authority was referred before ID2019-010 was determined)
⁷ See <https://app.companiesoffice.govt.nz/companies/app/ui/pages/companies/1791729#>
⁸ A trading name is the name used for the business in trade and is the name by which customers know the business – see: ‘Trading name vs Company name…Don’t get caught out when buying a business’ (Rainey Collins, 23 May 2016)
⁹ See Broadcasting Act 1989, s 5(c)
¹⁰ Guidance: Costs Awards to Complainants, Broadcasting Standards in New Zealand Codebook, page 66
¹¹ As above 
¹² McDonald and Television New Zealand Ltd, CIV-2011-485-1836, 30 April 2012 at [33]
¹³ See above