House of David Healing Centre and anor v Fairfax New Zealand Limited [2007] NZCA 160 (30 April 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA84/06
[2007] NZCA 160

BETWEEN HOUSE OF DAVID HEALING CENTRE TRUST
First Appellant

AND DAVID EDWARD COXHEAD
Second Appellant

AND FAIRFAX NEW ZEALAND LIMITED
Respondent

Court: Hammond, Robertson and Arnold JJ

Counsel: D E Coxhead in person
J B M Smith for Respondent

Judgment: 30 April 2007 at 11 am

(on the papers)

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by Hammond J)

Table of Contents

Para No
Introduction [1]
The facts [5]
The proceedings [10]
There is no tenable cause of action
Breach of contract [14]
The retention of copies [15]
The statutory claims [16]
Conclusion [17]

Introduction

[1]	By a judgment delivered on 7 April 2006, Associate Judge Christiansen struck out, as disclosing no reasonable cause of action, the appellants’ proceeding against the respondent in HC CHCH CIV 2005-409-2274. The appellants appealed to this Court against that decision.
[2]	With a view to keeping costs to a minimum, Mr Coxhead on behalf of both appellants asked that the appeal be dealt with on the papers. The solicitors for the respondent confirmed in writing that they had "no particular objection" to that request. The President thereafter directed that the appeal be dealt with on the papers. The panel has before it a case on appeal which was prepared by Mr Coxhead, and 26 pages of written submissions by him. The respondent has filed written submissions.
[3]	On 14 March 2007 this Court was advised by Russell McVeagh, solicitors for the respondent, that Mr Coxhead died in Christchurch on Friday, 23 February 2007. The Court has not received any communication from any legal representative in Mr Coxhead’s estate. In the High Court, Mr Coxhead appeared in his personal capacity and on behalf of the first plaintiff which, by the statement of claim, purports to be a charitable trust incorporated under the provisions of the Charitable Trusts Act 1957. No point appears to have been taken in the High Court about the ability of Mr Coxhead to formally represent the Trust and no such point has been taken before us either.
[4]	The Court is therefore in the position that it has before it a case which is in all respects ready for determination, in a manner contemplated by the parties. It is doubtless important to the respondent to know where it stands with respect to this matter. Although Fairfax is a substantial commercial concern, a claim which, as lodged, was for $5 million is in some sense a contingent liability on its books. The legal representatives in Mr Coxhead’s estate, whoever they may be, will doubtless wish to know what the status of the claim is. Finally, there is the interest of this Court to consider: if the claim is not abandoned or determined then it has to be carried forward on the books of this Court until it is somehow disposed of. In all the circumstances we are of the view that we should now proceed to determine the appeal, on the papers.

The facts

[5]	The appellants sought to have The Sunday Star Times, a Fairfax publication, publish as a full-page advertisement a lengthy piece of religious writing setting out a new Covenant for Mankind, in seven parts.
[6]	Clause 5 of Fairfax’s usual terms and conditions for advertising provides that it may refuse to publish, or withdraw an advertisement for publication, without having to give a reason.
[7]	Fairfax considered this advertisement for publication. It rejected it as unsuitable. It did not in fact appear in the newspaper. Mr Coxhead was informed accordingly, and no charge was made to the appellants.
[8]	Fairfax’s stated reasons for declining to publish this article were that it was lengthy, unsuitable, poorly written, and likely to be considered offensive by some readers of the newspaper.
[9]	Eventually, all copies of the advertisement in the possession of Fairfax were returned to Mr Coxhead.

The proceedings

[10]	The statement of claim was cast as a breach of contract in failing to print the advertisement. Mr Coxhead was alleged to have suffered extreme mental stress as a result of this breach. He claimed $5 million in damages.
[11]	Fairfax promptly applied for summary judgment and, in the alternative, for a strike out of the proceedings. Faced with the overwhelming obstacle of clause 5, the appellants filed a notice of opposition raising various statutory provisions under the Contractual Remedies Act 1979, the Copyright Act 1994, the Human Rights Act 1993, the Privacy Act 1993, the Consumer Guarantees Act 1993, the New Zealand Bill of Rights Act 1990, and the Crimes Act 1961.
[12]	At a judicial conference on 14 November 2005, an Associate Judge allowed the appellants’ Notice of Opposition to be taken as introducing new causes of action pursuant to the various statutes which we have recited.
[13]	There were then a number of affidavits filed with the Court, difficulties over late filings and the like, adjournments, and eventually a hearing in the High Court on 29 March 2006.

There is no tenable cause of action

Breach of contract

[14]

Associate Judge Christiansen found that Mr Coxhead signed Fairfax’s terms and conditions of advertising which contained clause 5, and that Mr Coxhead was aware of the clause when he signed those terms. Any agreement to publish was defeasible in terms of that clause. There cannot therefore be a claim under this head.

The retention of copies

[15]

The essential assertion here was one of conversion of copies of the proposed advertisement for the limited amount of copying which the respondent had to carry out in deciding whether to publish or not. As the Associate Judge rightly said, clearly there was an implied licence to copy for this purpose. And any delay in returning the copies to the appellants was "minor". There is no claim here either.

The statutory claims

[16]

The lack of a proper statement of claim made it difficult to deal with these multifarious issues. Briefly stated, we agree with the Associate Judge that the Crimes Act 1961 did not apply because no offence of dishonesty was committed; there was no misrepresentation or other factor to trigger the Contractual Remedies Act 1979; there was no "service" to trigger the Consumer Guarantees Act 1993; and the Privacy Act 1993 did not apply to the circumstances of this claim. The New Zealand Bill of Rights Act 1990 does not apply to an entirely private regime which had no public function, power or duty conferred on it by or pursuant to law. The reference to the Human Rights Act 1993 was a vague assertion of discrimination by refusing to advertise the appellants’ religious message. The Associate Judge found that no evidence was provided in support of this claim.

Conclusion

[17]	The Associate Judge was entirely correct to strike out this misconceived proceeding. The appeal is accordingly dismissed.

Solicitors:
Russell McVeagh, Wellington for Respondent