Reekie v Television New Zealand Limited HC Auckland CIV-2009-404-6074
[2011] NZHC 1019
•29 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2009-404-6074
BETWEEN NICHOLAS PAUL ALFRED REEKIE Applicant
ANDTELEVISION NEW ZEALAND LIMITED
Respondent
Hearing: 10 February 2011
Appearances: N P A Reekie in person and R Wood as a McKenzie friend
W Akel for the Respondent
Judgment: 29 July 2011 at 3:30 PM
RESERVED JUDGMENT OF PETERS J
This judgment was delivered by me on 29 July 2011 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date: ........................................
Copy to:
Mr N P A Reekie, c/- Auckland Prison, P O Box 50 124, Albany, Auckland
Solicitors/Counsel:
Simpson Grierson, Solicitors, Auckland (email: [email protected])
REEKIE v TELEVISION NEW ZEALAND LIMITED HC AK CIV-2009-404-6074 29 July 2011
Introduction
[1] Television New Zealand Limited (“TVNZ”) seeks an order striking out Mr Nicholas Reekie‘s (“Mr Reekie”) amended statement of claim (“statement of claim”) and an order dismissing this proceeding. TVNZ‘s application to strike out is made on the basis that the statement of claim discloses no reasonably arguable cause of action, is frivolous and vexatious, or is otherwise an abuse of the process of the Court. Alternatively, TVNZ seeks an order that Mr Reekie provide security for costs. Mr Reekie opposes both applications.
[2] The proceeding arises from two steps which TVNZ took in August 2009. One was to screen, for the second time, a feature length film named “Until Proven Innocent‘ (“the film”) and the other was to offer for sale copies of the film on DVD, to the general public. Mr Reekie was depicted in three brief scenes in the film and mentioned in captions at the end of the film.
[3] TVNZ had screened the film previously, in February 2009. Mr Reekie made a complaint under the Broadcasting Act 1989 (“the Act”) in respect of that broadcast. That complaint was still on foot in August 2009. After TVNZ screened the film in August 2009, Mr Reekie made another complaint under the Act in respect of that broadcast, and he commenced this civil proceeding.
[4] The issues which arise on the application to strike out the pleading and dismiss the proceeding are:
(a) whether the statement of claim discloses any reasonably arguable cause of action or is frivolous and vexatious or is otherwise an abuse of the process of the Court.
(b)if so, whether I should exercise my discretion in TVNZ‘s favour and strike out the pleading and dismiss the proceeding.
[5] The issue which arises on the application for security for costs is whether I
should order Mr Reekie to provide any such security. Mr Reekie is a prison inmate
and has acknowledged that he has no prospect of providing security if it were ordered.
[6] Before discussing these issues it is necessary to say more about the history of events between the parties.
Background
[7] The film depicts the successful campaign which was mounted on behalf of Mr David Dougherty, who had been convicted, wrongly as it turned out, of the abduction and rape of a young girl. As a result of the campaign, Mr Dougherty was retried and acquitted. Mr Reekie was later convicted of the same abduction and
rape.[1] As I have said, Mr Reekie was depicted in three short scenes in the film and
mentioned in captions at the end of the film. I watched the film on one of the occasions when it was broadcast but I have not watched it since. Anything which follows regarding the film is based on a description of the film in a decision of his Honour, White J, on 8 February 2010 in CIV-2009-404-3728.
2009
[1] Mr Reekie was then, and is now, serving a sentence of preventive detention with a minimum period of 20 years imprisonment: R v Reekie CA339/03, 3 August 2004.
[8] Mr Reekie made a complaint to TVNZ under the Act after the film was broadcast in February 2009 (“the February complaint”). Mr Reekie complained that the film was inaccurate, unfair and unbalanced, that it breached his privacy and that it was in breach of standards of the Free to Air Television Code of Broadcasting Practice (“Free to Air Code”). TVNZ dismissed Mr Reekie‘s complaint on about
17 March 2009.
[9] Mr Reekie then referred his complaint to the Broadcasting Standards Authority (“the Authority”), pursuant to s 8 of the Act and on 10 June 2009 the Authority issued its decision declining to uphold the February complaint (“June 2009
decision”).
[10] Any complainant or broadcaster who is dissatisfied with a decision of the Authority has a right of appeal to the High Court (see s 18(1) of the Act). The High Court‘s decision is final. Mr Reekie filed a notice of appeal in June 2009, with TVNZ as respondent.
[11] Before the appeal was heard, in August 2009 TVNZ broadcast the film again and began offering copies of the film for sale to the general public, through third party retailers. It is common ground that the film that TVNZ broadcast on
9 August 2009 was the same as that which it broadcast in February 2009, with the exception of a change to one of three captions which appeared at the end of the film. The captions which appeared regarding Mr Reekie were as follows:
...
§ In 2003 Nicholas Reekie was convicted of the abduction and rape of “Kate”.
His DNA positively matched the semen sample taken from her pyjamas in
1992.
§Between the time of David‘s conviction and his own, Nicholas Reekie had abducted and raped two other women.
§ He was caught while attempting to abduct a third.
[12] When the film was re-broadcast on 9 August 2009, the word “while” was replaced by “after” in the final caption.
[13] Mr Reekie then commenced the complaint procedures under the Act in respect of the second broadcast, by lodging a further complaint on 31 August 2009 (“the August complaint”). The August complaint was largely a repeat of the February complaint, but added some grounds.
[14] Also, as a result of the broadcast, on or about 16 September 2009, Mr Reekie commenced this (civil) proceeding, in which he sought a permanent injunction restraining TVNZ from any further screening of the film and restraining the sale of the film to the general public. Mr Reekie also sought interim orders to the same effect. Chisholm J heard Mr Reekie‘s application on 21 September 2009. His Honour‘s minute records that he declined to make an order regarding any rebroadcasting as TVNZ had said it did not intend to rebroadcast the film again prior
to the hearing of Mr Reekie‘s appeal. Chisholm J also declined to make any order in respect of the sale of DVDs as such an order would affect the third party retailers and only a relatively small audience which would see the film on DVD. Mr Reekie then took no further steps in this proceeding until a year later, in September 2010.
[15] On 21 October 2009, White J heard Mr Reekie‘s appeal against the June 2009 decision. Mr Reekie appeared, as did TVNZ by counsel. White J gave his decision, dismissing the appeal, on 8 February 2010.[2]
2010
[2] Reekie v Television New Zealand Limited HC Auckland CIV-2009-404-3728, 8 February 2010.
[16] The Authority had delayed making a decision on the August complaint, pending receipt of White J‘s decision. Having received that, in Decision 2009-111 dated 6 July 2010 (“July 2010 decision”), the Authority declined to determine Mr Reekie‘s complaint to the extent that it repeated his February 2009 complaint. The Authority declined to uphold Mr Reekie‘s new grounds of complaint.
[17] Mr Reekie then filed an appeal to this Court against the July 2010 decision, again with TVNZ as respondent. This appeal subsequently came before Asher J on
26 October 2010 in CIV-2010-404-4893. Justice Asher dismissed the appeal in a decision dated 3 November 2010.[3] In traversing the history of Mr Reekie‘s complaints in respect of the two broadcasts, Asher J said at [30] that he considered it frivolous and vexatious for Mr Reekie to repeat a complaint simply because of a rebroadcast, and that those who wished to complain about a programme should have only one opportunity to do so. Despite that, Asher J went on to consider the complaint on its merits, following submissions from Mr Reekie, counsel for TVNZ and counsel for the Authority. Asher J upheld the Authority‘s decision.
[3] Reekie v Television New Zealand Limited HC Auckland CIV-2010-404-4893, 3 November 2010.
[18] Mr Reekie had brought the present proceeding back to life shortly before
Asher J heard the appeal. He filed an amended statement of claim in
September 2010 and it is that pleading which TVNZ seeks to strike out. TVNZ
filed its application to strike out or, alternatively, for security for costs on
11 October 2010.
The amended statement of claim
[19] The amended statement of claim pleads six causes of action which may be summarised as follows:
(a) breach of common law right to due process by rebroadcasting the film and offering DVDs of the film for sale – causes of action A and C respectively;
(b)breach of s 27(1) New Zealand Bill of Rights Act 1990 (“NZBORA”), by rebroadcasting the film and offering the DVDs for sale – causes of action B and D respectively;
(c) negligence, in that it is alleged TVNZ owed Mr Reekie a duty of care when making its decision to rebroadcast the film and offer it for sale, which duty TVNZ breached – cause of action E; and
(d)unreasonableness, it being alleged that TVNZ‘s decisions to broadcast the film again and to offer the DVDs for sale were unreasonable – cause of action F.
[20] In his prayer for relief, Mr Reekie seeks:
(a) a declaration that TVNZ‘s actions of repeating the film and offering
the DVDs for sale were in breach of Mr Reekie‘s rights;
(b) exemplary damages for all grounds of relief in a sum assessed by the
Court but in any event not to be less than $35,000.00.
[21] TVNZ‘s application is based on High Court Rules, r 15.1, which reads as follows:
15.1 Dismissing or staying all or part of proceeding
(1) The Court may strike out all or part of a pleading if it –
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counter claim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the court‘s inherent jurisdiction.
Discussion – strike out
[22] At the hearing of the application, counsel for TVNZ submitted that the pleading disclosed no reasonably arguable cause of action and that the claim was frivolous and vexatious. Counsel submitted that the claim was frivolous and vexatious because it constituted a collateral attack on the judgments of White and Asher JJ. The Court having ruled on the complaints, Mr Reekie should not be allowed to relitigate the complaints.
[23] Counsel for TVNZ also told me from the bar that, although Mr Reekie said his concern was that the rebroadcasting and sale of DVDs might have affected White J‘s decision as to remedies if White J had upheld the complaint, in fact it was Mr Reekie who had told White J of these matters and of the outcome of his application for interim relief. Mr Reekie confirmed to me that he had told White J of these matters because he was concerned at the possible risks to his prospects which
the rebroadcasting and sale presented. White J‘s response (Mr Reekie said) was that he could deal only with the issues raised on the appeal.
[24] Mr Reekie disputed that his claim was frivolous and vexatious. As to whether he had pleaded a reasonably arguable cause of action, Mr Reekie put most weight on his NZBORA claim. He submitted that he was not seeking to revisit the earlier decisions of White and Asher JJ. Rather the nub of the proceedings was to determine whether a broadcaster is under an obligation not to broadcast a programme which is subject to a complaint, while a complaint against that programme is on foot, regardless of the merits (or lack of them) of the complaint. Mr Reekie advised that his sole concern was whether White J‘s assessment of the appropriate remedy might have been affected by the rebroadcasting and sales of DVDs, if Mr Reekie had succeed on appeal. As Mr Reekie put it, White J might have thought that “the horse had bolted” as a result of the rebroadcasting/sales and his approach to appropriate remedy might have been influenced as a result.
[25] This is an appropriate point to note that the remedies available to the Authority (s 13(1) of the Act), and the Court on appeal (s 18(5) of the Act) are in fact very limited. The Authority may order the broadcaster to publish an approved statement relating to the complaint, order the broadcaster to refrain from broadcasting for up to 24 hours, remit the complaint to the broadcaster for further consideration and, in a case involving a breach of the privacy standards, order the broadcaster to pay compensation not exceeding $5,000.00. The rebroadcasting and sale of DVDs would not have closed off any of these remedies, had White J come to a different conclusion on the merits of the complaint.
Frivolous and vexatious or otherwise an abuse of the process of the court
[26] I have come to the conclusion that the claim is frivolous and vexatious or otherwise an abuse of the process of the Court for the following reasons.
[27] The first point to note is that the parts of the film which have any connection with Mr Reekie are brief and innocuous. At [6] of his decision, White J said:
[6] I have viewed a DVD of the programme which included three brief fictional scenes with Mr Reekie and David Dougherty while they were both in prison.
(a) First scene (45 seconds): the appellant [Mr Reekie] approaches Mr Dougherty while they were both working with other prisoners under supervision:
NR – I know how you feel man. Those guys just think it‘s a joke, but I know what it‘s like. I‘m innocent too.
DD – Is this a wind up?
NR – No way man. I know how it gets. It‘s hard to trust anyone after you‘ve been falsely convicted. It does your head in.
DD – Yeh, it does.
NR – I‘m Nick Reekie.
DD – David Dougherty.
Other prisoners – How cute, the two kiddie rapists have made friends.
DD – Is that what you‘re in for?
NR – No way man, just abduction. It‘s a total
misunderstanding. The kids backed me up.
(b) Second scene (1 min 16): both men are shown in the prison chapel singing a hymn (How Great Though Art). This follows the death of David Dougherty‘s father and the dismissal of his appeal.
(c) Third scene (23 seconds): After Mr Dougherty heard he was to be released from prison, he was shown lying on the ground in the rain. The appellant is shown holding out his hand and pulling him up, and said, “Hey that‘s good news. You‘re getting out aye?”
[28] It has always been common ground, and the source of most of Mr Reekie‘s complaints, that the three scenes are fiction, not fact. The content of the captions to which I have already referred was factual.
[29] Secondly, White J‘s decision on Mr Reekie‘s appeal was comprehensive. White J said at [23] of his decision that the Court is under a special responsibility in
determining an appeal against a decision of the Authority because such an appeal is final.
[30] White J addressed the relevant provisions of the Free to Air Code, the complaints which Mr Reekie had made and the Authority‘s decision in respect of each complaint. Briefly, White J had to consider:
(a) whether the broadcast breached standard 3 (privacy) of the Free to Air Code. Mr Reekie contended that the standard had been breached because the captions referred to his 2003 convictions and these had become “private facts” again. The Authority dismissed that complaint and White J determined that was the correct decision.
(b) whether the broadcast breached standards 4 and 5. Standards 4 and 5 apply only to news, current affairs and other factual programmes. The Authority had determined that the film was a drama and not a factual programme. White J held that the film was a dramatised version of the story and that standards 4 and 5 had no application.
(c) whether the broadcast breached standard 6 (fairness). Standard 6 requires a broadcaster to deal justly and fairly with any person or organisation taking part. Mr Reekie complained that the broadcast might have affected his rights to a retrial or effective rehabilitation. White J considered that there was no substance to these complaints, particularly as Mr Reekie will not be released from prison until at least 2023. Importantly, White J also said:
[67] Mr Reekie also faced the further difficulty that the three brief fictional scenes in the programme did not contain any material that was in fact “unfair” to him. The three scenes amounted to less than two and half minutes of the two hour programme. ... In none of these fictional scenes could the portrayal of Mr Reekie be described as “unfair” to him. Indeed it might be considered that the latter two scenes portrayed Mr Reekie in a rather favourable light.
(d)whether the broadcast breached standard 7 which is concerned with programme classification. The programme had been classified “adults only”. White J confirmed that such a classification was appropriate and was not made for the purpose of distinguishing between drama and docu-drama programmes;
(e) whether the broadcast had breached standard 8 and deceived or disadvantaged the viewer. Again, White J found that there was no basis on which it could be contended that standard 8 had been breached.
[31] Following this careful analysis, White J determined that the Authority was correct to dismiss Mr Reekie‘s complaint.
[32] As stated above, TVNZ submitted that in this proceeding Mr Reekie was seeking to make a “collateral” attack on White and Asher JJ‘s decisions. TVNZ submitted that the Court‘s intolerance of such an attack is clearly stated in Hunter v Chief Constable of the West Midlands Police.[4] It was evident to me at the hearing that Mr Reekie remains of the view that White and Asher JJ‘s came to the wrong conclusion, and that is a view he is entitled to take. Mr Reekie is not, however, entitled to pursue this proceeding with a view to running those arguments all over again. If that is Mr Reekie‘s intention, then the Court will not tolerate it.
[4] Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[33] Giving Mr Reekie the benefit of the doubt, however, my concern is that Mr Reekie has now had two separate days in court in respect of the film. The outcome has been findings that in each of February 2009 and August 2009 TVNZ broadcast a film which complied with the relevant broadcasting standards. Mr Reekie‘s claim would have TVNZ defend a third proceeding in relation to the same compliant broadcasts. Putting the best construction I can on the claim, in my
view it is frivolous and vexatious, or otherwise an abuse of the process of the Court.
No reasonably arguable cause of action
[34] I also heard submissions on whether the causes of action which Mr Reekie has pleaded in the statement of claim are reasonably arguable. It is appropriate that I set out my views briefly, having heard those submissions.
[35] The principles relating to applications to strike out all or part of a pleading in a case where the application is made on the basis that the statement of claim discloses no reasonably arguable cause of action are well established. The Court should exercise the jurisdiction to strike out only in clear cases[5] and the Court may decline to exercise the remedy if an amendment to the pleading could remedy the defect.[6] In Couch v Attorney-General,[7] Elias CJ said that it is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed.
Due process
[5] Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267.
[6] Ransfield v The Radio Network Ltd [2005] 1 NZLR 233 at [21].
[7] Couch v Attorney-General [2008] NZSC 45.
[36] In paragraph 16 and 17 of the statement of claim, which are part of cause of action A and which address the second broadcast, Mr Reekie pleads as follows:
16.In making its decision to rebroadcast the film “Until Proven Innocent” on 9th August 2009, The Defendant has breached the Plaintiff‘s right under common law to due process.
17.The Defendant did breach its own obligations to act in accordance with the principles of common law, and to provide for the right to due process, to the Plaintiff.
[37] In paragraphs 19 and 20 of the statement of claim, which are pleaded as particulars to this cause of action, Mr Reekie pleads as follows:
19. The Plaintiff did have a right to due process occurring in a lead up to his
High Court Appeal, due to be heard on 21st October 2009.
20.The Plaintiff did have a right not to have this film and the inaccuracies that he complains of and is appealing against, rebroadcasted before that appeal is [sic] heard.
[38] Cause of action C is pleaded in the same terms with the same particulars, except that the decision in issue is the decision to offer for sale DVD copies of the film.
[39] TVNZ submitted that on the facts of this case it could not be argued that the rebroadcast had affected the outcome of the appeal or had caused any prejudice or other loss to Mr Reekie. TVNZ submitted that Courts have long accepted that no judge would be influenced in his/her judgment by what might be said in the media.
TVNZ referred me to Attorney-General v BBC[8] where Lord Salmon said:
... I am and have always been satisfied that no judge would be influenced in his judgment by what may be said by the media. If he were, he would not be fit to be a judge. ...
[8] Attorney-General v BBC [1981] AC 303 at 432.
[40] In response, Mr Reekie submitted that an appellant under the Act has a right to have their appeal determined by the Court without the broadcaster taking any step which might affect the outcome of the appeal. Mr Reekie acknowledged, however, that he could not point to any aspect of White J‘s judgment which indicated that knowledge of the second broadcast, let alone that DVDs were for sale, had affected White J‘s decision.
[41] To have any prospect of success on causes of action A and C, it would be necessary for Mr Reekie to persuade the Court that TVNZ was required to refrain from rebroadcasting the film and offering it for sale in the period between the Authority‘s decision dismissing the complaint and the hearing or determination of the appeal.
[42] In my view such an argument cannot succeed on the facts of this case. The Act imposes no express restraint on a broadcaster. If a complainant wishes to ensure that there is no further broadcast or dissemination pending the Court‘s determination of their appeal, then they may seek an injunction to preserve the position. Likewise any issue of contempt which might arise in a particular case can be pursued as
necessary. I accept TVNZ‘s submission that a judge would not be affected in their
determination of the issues by the mere fact that the film had been rebroadcast or copies of it had been sold.
[43] For these reasons I am satisfied that causes of action A and C disclose no reasonably arguable cause of action and that they cannot be saved by amendment to the pleading.
New Zealand Bill of Rights Act 1990
[44] In the submissions at the hearing before me, both TVNZ and Mr Reekie focused their argument on causes of action B and D. In these causes of action, Mr Reekie alleges that TVNZ breached s 27(1) of NZBORA in making its decisions to rebroadcast the film and to offer the DVDs for sale (see paragraphs 23 and 37 respectively of the statement of claim).
[45] Counsel for TVNZ submitted that these causes of action are not reasonably arguable for two reasons. First, counsel submitted that TVNZ was not subject to NZBORA when it decided to rebroadcast the film and offer the DVDs for sale (“the decisions”). Secondly, even if wrong in that, counsel submitted that the decisions did not breach Mr Reekie‘s rights under s 27(1).
[46] Mr Reekie submitted that it is reasonably arguable that TVNZ came within s 3(b) of NZBORA at the time it made the decisions and that in making those decisions it breached the right guaranteed to him by s 27(1) of NZBORA.
[47] Sections 3 and 27 of NZBORA provide that:
3 Application
This Bill of Rights applies only to acts done—
(a) By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
...
[48] As Randerson J in Ransfield,[9] s 3(b) requires that three elements be established:
[9] Supra, at [47].
(a) performance of a function, power or duty by any person or body;
(b)the function, power or duty is conferred or imposed by or pursuant to law; and
(c) the function, power or duty is “public”.
[49] Counsel for TVNZ submitted that the decisions were not made in performance of a public function, power or duty. TVNZ submitted that the decision to rebroadcast was an “editorial” decision, as his Honour Lang J used that term in Mangu v Television New Zealand Limited,[10]and that the decision to sell copies of the film was a commercial decision.
[10] Mangu v Television New Zealand Limited [2005] NZAR 299.
[50] Mr Reekie accepted in submissions that NZBORA does not apply to the day to day decisions that are made in the operation of TVNZ. However, he submitted that ss 5 and 6 of the (Broadcasting) Act impose on a broadcaster a duty to establish a proper procedure for considering and determining complaints. In his submission that duty is a public one within the meaning of s 3(b) NZBORA and the duty was still operative at the time TVNZ made the decisions. The relevant parts of ss 5 and 6
of the Act provide as follows:
5 Principles
This Part of this Act is based on the following principles:
(a) Broadcasters have a responsibility to deal with complaints relating to broadcasts and must establish a proper procedure to deal with them:
...
6 Formal complaints about programmes
(1) Subject to subsection (2) of this section, it is the duty of every broadcaster—
(a) To receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4 of this Act; and
...
(c) To establish procedures for investigating such complaints.
...
[51] The decisions which TVNZ made were decisions as to what feature film should be screened and when, and what should be offered for sale. In Mangu the Court was required to consider whether the content of a news programme, and a failure to refer to a candidate in an election was amenable to judicial review. The Court held that decisions relating to the content and presentation of news programmes did not have the necessary “public” element to them, so as to make them amenable to judicial review. On the basis of that authority and the programme content in this case I do not consider it reasonably arguable that TVNZ made the relevant decisions in the performance of a public function, power or duty. The fact that Mr Reekie‘s appeal was pending does not alter the matter.
[52] I did not hear argument on whether, even if s 3(b) were engaged, s 27(1) NZBORA would have any application in the circumstances of this case. Section
27(1) guarantees Mr Reekie the right to the observance of the principles of natural justice by a tribunal or other public authority with the power to make a determination in respect of his rights, objections, or interests protected or recognised by law. In this case, that tribunal was the High Court. It is not apparent to me how it could be
argued on the facts of this case that rebroadcasting/sale of the DVDs affected the observance of Mr Reekie‘s right under s 27(1). The right was observed and Mr Reekie did suggest otherwise.
[53] For these reasons, I do not consider that the causes of action pleaded under B
and D are reasonably arguable.
Duty of care
[54] In his cause of action E, Mr Reekie pleads that TVNZ owed him a duty of care when making its decisions to rebroadcast the film and to offer it for sale, and that it breached that duty.
[55] Mr Reekie submitted that the duty of care required TVNZ to uphold his rights and entitlements throughout the entire “formal complaint and appeal process”, continuing beyond TVNZ‘s rejection of the complaint, through to the determination of the complaint by decision or expiration of time limits in the Act. It was an aspect of that duty to avoid taking any step which might affect procedure or any remedy which might follow.
[56] Counsel for TVNZ submitted that Bell-Booth Group Ltd v Attorney-General[11] was clear authority against a broadcaster being subject to a duty of care to a person portrayed in a broadcast programme. Counsel for TVNZ also submitted that Mr Reekie cannot point to any such loss which he has suffered, because the film complied with the Free to Air Code.
[11] Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148.
[57] There can be no claim in negligence without physical or economic loss. I accept the submission of counsel for TVNZ that no claim in negligence can be argued in this case because no loss was suffered. Cause of action E is not reasonably
arguable.
Unreasonableness
[58] In his cause of action F, Mr Reekie pleads that TVNZ‘s decisions to rebroadcast and offer the DVDs for sale were unreasonable because TVNZ failed to have regard to his rights of due process and natural justice under NZBORA. Mr Reekie did not advance this cause of action before me. Counsel for TVNZ submitted that this cause of action should be treated as a more general claim, subsumed within each of the preceding claims. In my view, no cause of action for unreasonableness can arise in a case of this nature and the cause of action is not reasonably arguable as between Mr Reekie and TVNZ.
Security for costs
[59] TVNZ‘s application for security was an alternative to its application to strike out the statement of claim. Given the decision I have reached, the application does not need to be considered.
Result
[60] I strike out the amended statement of claim dated 20 September 2010 and dismiss this proceeding.
[61] I make no order as to costs, as no purpose would be served by doing so.
..................................................................
PETERS J
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