Williamson v TV Works Limited Broadcasting as TV3 HC Wellington CIV 2010-485-2120
[2011] NZHC 125
•21 February 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2010-485-2120
IN THE MATTER OF complaint under section 8(1B)(b)(i) of the
Broadcasting Act 1989
BETWEEN DOUGLAS JOHN WILLIAMSON Appellant
ANDTV WORKS LIMITED BROADCASTING AS TV3
Defendant
Hearing: 21 February 2011
Counsel: D J Williamson in Person
C Bradley for TV Works Limited
A Scott-Howman for Broadcasting Standards Authority
Judgment: 21 February 2011
JUDGMENT OF RONALD YOUNG J
Introduction and background
[1] The Williamson brothers represented in this case by Douglas John Williamson were, together with a number of their horses, the subject of a TV3 programme on Campbell Live, 30 March 2010. The item reported that the SPCA had seized a number of the Williamsons’ horses because of their condition. The next day a follow up story identified other Williamson horses, which were said to be missing, had also been seized.
[2] Mr Williamson made a complaint about the two programmes saying they breached broadcasting standards relating to controversial issues, accuracy and fairness. TV3 rejected the complaints. The appellant was dissatisfied and
complained to the Broadcasting Standards Authority (“BSA”).
DOUGLAS JOHN WILLIAMSON V TV WORKS LIMITED BROADCASTING AS TV3 HC WN CIV 2010-
485-2120 21 February 2011
[3] The BSA did not separately consider “controversial issues” assessing it was
covered by their consideration of fairness and accuracy.
[4] The BSA considered whether there had been a breach of Standard 5 (“Accuracy”) as it related to:
(a) the use of undated photos and video footage;
(b) comments made by an unknown female interviewee;
(c) the impression that the reason for the horses’ condition was that there was not enough food;
(d) the legality of the SPCA’s actions;
(e) references to dozens of neglected horses;
(f) misrepresentation of the farm where the 12 horses had been relocated. [5] They found that none of the complaints had been established. A reasonable
effort had been made by TV3 to ensure the material points of fact were accurate and did not mislead.
[6] Secondly, the BSA considered Standard 6 (“fairness”) in relation to the allegations of the Williamson brothers regarding:
(a) the use of undated photos and video;
(b) the failure of TV3 to question the legitimacy of the SPCA’s action;
(c) unfairness to John Williamson in a TV3 interview;
(d)the comment to TV3 by Mr Williamson that “we did not move any horses illegally”.
[7] The BSA found that both brothers were given a fair opportunity to respond to the allegations and that Mr Doug Williamson had featured prominently in the items on the 30th and 31st of March representing his views. They considered overall that the Williamsons were treated fairly and declined the Standard 6 complaint.
[8] Mr Williamson wished to appeal the BSA’s decision. He filed his appeal with the Authority within the one month provided.[1] He failed to serve TVWorks Limited until some weeks after the appeal period expired.
[1] Broadcasting Act 1989, s 18.
[9] Mr Williamson therefore seeks the leave of this Court to file his appeal out of time. That application is opposed by TVWorks who say even if Mr Williamson has made an understandable mistake about service of his appeal, the interests of justice are against granting leave given there is little or no merit to his appeal.
The proposed appeal
[10] The appellant has a right of appeal pursuant to s 18 of the Broadcasting Act 1989 to the High Court. The BSA’s decision was dated 14 October 2010 and released to the parties on 15 October 2010. Rule 20.6 of the High Court Rules provided:
20.6 When appeal brought
(1) An appeal is brought when the appellant—
(a) files a notice of appeal in the court; and
(b) files a copy of the notice of appeal in the administrative office;
and
(c) serves a copy of the notice of appeal on every other party directly affected by the appeal.
(2) Service at the address for service stated in the proceedings to which the appeal relates is sufficient service for the purposes of subclause (1).
[11] Thus, an appeal is only “brought” once it is filed in the Court and served on the respondent. Section 18 requires the appeal be brought within one month from the decision. Time expired on 15 November 2010.
[12] There is some uncertainty about the date of filing of the notice of appeal but it was probably 19th October 2010. The notice of appeal was not served on the appellant until 2 December 2010. The service of the appeal was therefore beyond the one month period and the appeal was not “brought” within the one month allowed.
[13] The appellant says he assumed that the BSA would forward the notice of appeal to the broadcaster and therefore he assumed they would know about the appeal. By itself, therefore, the error was understandable, has caused TV3 no prejudice and is only a modest delay. In considering whether leave should be given I must consider the wider issue of the interests of justice and, in particular in this case, the prospects of success of the proposed appeal.
Merits discussion
[14] The merits of an appeal (here the prospects of success) is only one ingredient that goes into the interests of justice. As long as there is a reasonable prospect of success in the appeal and, as there is here, an excuse for the failure to bring the appeal within time, then leave should be granted. The threshold should not be set too high. It is in the interests of justice that appellants with a reasonable prospect of success should be able to have their day in Court. On the other hand it cannot be in the interests of justice to allow an essentially hopeless case proceed when the required time limits have not been complied with.
[15] Section 18(4) of the Broadcasting Act 1989 provides that an appeal from a decision from the BSA to the High Court is to be determined “as if the decision ... appealed against had been made in the exercise of a discretion”. The appellant, therefore, will need to establish the traditional discretionary grounds of appeal; that the BSA took into account something irrelevant; failed to take into account
something relevant; acted on a wrong principle; made an error of law or was plainly wrong.
[16] I agree with counsel for TVWorks that it is difficult to understand the allegations in the appellant’s 15 November 2010 proposed notice of appeal. The notice of appeal contains four grounds of appeal as I understand them. Some I quote others I have attempted to reword to assist understanding:
(a) that the BSA decision was wrong in law and fact because “Doug Williamson had ample opportunity to voice his side of the situation but fails to mention he had no input or control over the editorial content of the programmes. This would not be the situation in judging a live interview broadcast in its entirety”;
(b)“TV3 purposely only showed the portions of the interviews which suited the purpose of creating the perception of malnutrition and neglect. This was misleading and inaccurate”;
(c) “TV3 neglected to either show nor mention the feed regime the Williamsons undertook at the new place they had found for the horses”;
(d)“most of all the statements to portray this perception are wrong in fact and it is extremely easy to show this manipulation. The BSA disregards this distortion of truth. In fact implying the opposite stating the Williamson brothers had an opportunity to state their case in their side of the situation. This is incorrect and also can easily be shown”.
[17] The first ground relates to a complaint that Mr Williamson had no input or control over the editorial content of the programmes. Mr Williamson could not expect to have any such control. Nor was this an issue dealt with by the BSA. It was not raised before them. An individual television viewer has no input or control
over the editorial content of a programme shown on television. This cannot be a ground of appeal.
[18] The alternative interpretation of this ground of appeal is that the appellant says he did not have a fair opportunity to put forward his side. Whether the appellant had a “fair go” is an assessment to be made by the BSA. BSA considered this question and was satisfied that Mr Williamson had had that opportunity. This Court cannot second guess that assessment. No reviewable error has been identified by the appellant ([15]). A claim that he did not have enough time to reply to the allegation is not a ground of appeal in an appeal from a discretion. This ground of appeal is very unlikely to succeed.
[19] The second ground of appeal relates to the claim that TV3 only showed part of the interviews which suited their perception that the horses were suffering from malnutrition and neglect and that this was both inaccurate and misleading. This was not a specific complaint dealt with by the BSA. Clearly only part of a number of interviews were shown in the programme. By itself this is unobjectionable. As a general proposition there is no obligation, on the grounds of fairness or accuracy, to show all of an interview. In some cases to achieve fairness and accuracy it may be necessary to do so. It was the BSA’s function to assess whether the programme was unfair and/or inaccurate. As I have noted in the first appeal ground a reviewable error must be identified for a successful appeal. The fact Mr Williamson disagrees with the BSA’s assessment of fairness is not a valid ground of appeal unless a reviewable error can be seen. None has been identified. This ground of appeal is very unlikely to succeed.
[20] As to the third ground of appeal the Authority said:
66. The Williamsons considered that the reporter was inaccurate in stating that the horses “were being kept on a dry back paddock a long way from the road... skinny, scabby and without water”. This was not the case for all 12 horses, they said. Some were unwell and the owners were investigating possible poisoning of the water. The complainants noted that a large amount of supplementary feed had been purchased, and there was also a water race in the paddock. Further, the paddock was filmed following a dry summer. TVWorks said that Campbell Live had no evidence that there was a water race on the site. However, Mr Williamson was given an
opportunity to comment, and there was no intimidation that the dry grass was a negative aspect of the location.
67. We note that the reporter was shown discussing the state of the paddock and the feed with Mr Williamson in the 31 March item. They had the following exchange:
Reporter: But Doug this land has loose wire, coils of barbed wire,
and not enough feed for them, so it’s the same situation.
Doug W: No, no there is plenty of feed down there and that’s for a
professional person to ascertain, isn’t it?
Reporter: Sure, but I mean I can see that these horses are skinny and
they don’t have enough feed.
Doug W: Yeah, but they’re skinny, they’re just skinny just because
they got here on Sunday.
68.In our view, the reporter expressly raised the condition of the paddock with Mr Williamson, and he had sufficient opportunity to comment on the water and the feed, as well as the condition of the horses. Viewers were shown footage of the farm and of the horses on the farm. In these circumstances, we find that the 31 March programme would not have misled viewers in this respect.
[21] The BSA remarked that the focus of the TV3 programme had been on sick horses. It was not suggested the illness was solely because of feed problems. The concern expressed in the programme was about neglect of the horses once it became clear they were ill (for whatever reason). As the above extract ([20]) illustrates the applicant was given the opportunity to comment on the feed regime at the “new venue” for the horses. The BSA therefore considered that this aspect of the programme was fair given the opportunity afforded to the Williamsons.
[22] Mr Williamson’s view is that TV3 should have accepted his assertion that the horses had adequate feed at the new venue. Presumably this would have involved editing out the reporter’s observations and the camera shots of the new venue. TV3 was not obliged to accept Mr Williamson’s word as to the feeding arrangements. They were obliged and did give Mr Williamson the chance to put forward his side of this aspect of the story. Equally, TV3 were entitled to have the reporter express an opinion given he was able to view the conditions, and for the video to speak for itself.
[23] Once again Mr Williamson does not identify any reviewable error. His complaint is that TV3 showed a side of the situation with which he disagrees. However, there is no identification of any reviewable error made by the BSA, nor is one apparent. The ground of appeal is also very unlikely to succeed.
[24] As to the final ground this relates to an allegation that the two items on TV3 were simply wrong when they expressed concern about animal neglect. The complaint is that the Williamsons were not given a proper opportunity to state their case and their side of the situation. The BSA spent considerable time in its decision considering this aspect of the case. Mr Williamson’s point concentrates on his complaint that the feed regime at the new venue was never properly identified in the programme. As I have previously noted the BSA’s view was that the programme did not concentrate on inadequacy of feed but inadequacy of treatment of the horses once it became clear they were in poor condition (for whatever reason). Further, as the BSA noted, the Williamsons were given a chance to state their side. They did so and that was included in the programme. This ground of appeal does not, therefore, focus at all on the limited grounds of appeal available.
[25] Much of the material provided by Mr Williamson to this Court regarding the condition of the horses and the provision of feed was information obtained after the screening of the television programmes and could not therefore be relevant. Further, almost all of the extensive material filed by Mr Williamson is an attempt to debate the merits of what he sees as the pivotal issue, whether he had properly fed and looked after the horses. However, as I attempted to explain to him at the hearing this appeal is not concerned to resolve that question but whether, in the sense I have identified, the BSA made a reviewable error.
[26] My conclusion, therefore, is that there is little or no prospect of Mr Williamson’s appeal succeeding. His notice of appeal makes no attempt to identify how his appeal comes within the limited grounds in s 18. Mr Williamson’s appeal is essentially an attempt to reargue all of the factual issues that he put to TV3 and to the BSA without success. On each ground there is evidence to support the BSA’s decision. It cannot be said their decision is plainly wrong. On each ground the BSA identified the competing claims and reached a rational decision open to
them on the facts. This appeal is not intended to be a third level merits argument
save for the “plainly wrong” ground.
[27] For the reasons given, therefore, although the delay in filing the appeal was modest, there is little or no merit that I can identify in Mr Williamson’s argument. I consider the interests of justice fall on the side of refusing leave to extend time for the filing of the appeal given it is very difficult to see how the applicant could succeed on any substantive appeal.
[28] Leave is refused.
Addendum
[29] In his minute of 29 November 2010 Simon France J said at paragraph [6] as follows:
[6] I note for the record the tone of the document filed by Mr Williamson on 22 October 2010. I advise him that the Court Registry is instructed not to accept from him any documents which contain any of the type of abuse contained in that document.
[30] Regretfully Mr Williamson did not let that direction from the Judge to the Court staff influence the content of some of the material subsequently filed by him. In his submission dated 10 February 2011 and filed 15 February 2011 he made allegations of corruption and criminal conduct against unnamed Judges, lawyers and “the Government” (local and national). He made abusive comments regarding the chairperson of the BSA. I note also that a significant portion of the submissions of
10 February had nothing to do with these proceedings.
[31] Given Mr Williamson’s apparent refusal to accept that abusive allegations have no part in Court documents I direct that the Registrar at Wellington accept further documents filed by Mr Williamson in these proceedings on a provisional basis only. The documents wish to be filed by Mr Williamson are to be referred to a
Judge who will decide whether they can be accepted for filing.
Ronald Young J
Solicitors:
D J Williamson, 56 Cholmondeley Avenue, Christchurch, email: [email protected]
C Bradley, TVWorks Limited, email: [email protected]
A Scott-Howman, Luke Cunningham & Clere, PO Box 10357, Wellington, email: [email protected]
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