Reekie v Mediaworks TV Limited [2018] NZHC 3260 (11 December 2018)

Last Updated: 4 February 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-705 [2018] NZHC 3260

UNDER	the Broadcasting Act 1989
IN THE MATTER OF	an appeal from a decision of the Broadcasting Standards Authority (No 2018-045 dated 10 August 2018)
BETWEEN	NICHOLAS PAUL ALFRED REEKIE Appellant
AND	MEDIAWORKS TV LIMITED Respondent

On the papers
Judgment:	11 December 2018

JUDGMENT OF MALLON J

[1] Mr Reekie has brought an appeal against a decision of the Broadcasting Standards Authority (the BSA) dated 10 August 2018. That decision dismissed his complaint about an episode of the AM Show and a promotion of that show, both broadcast on 20 March 2018.

[2] The show featured an interview with the Hon Kelvin Davis regarding the Government’s scheduled nationwide hui with Māori. It also discussed legal action taken by prisoners against the Department of Corrections concerning strip searches. Mr Reekie’s complaint concerned comments made by the host, Duncan Garner, which he considered were racist slurs against Māori, dismissive of the Crown’s efforts to fulfil its Treaty obligations, and trivialised serious, abusive treatment of prisoners.

REEKIE v MEDIAWORKS TV LTD [2018] NZHC 3260 [11 December 2018]

[3] For the purposes of the appeal the BSA has compiled the Bundle of Documents that were before it when it determined the complaint. The Bundle of Documents does not include two further broadcasts that Mr Reekie considers to be relevant to his appeal. He has applied for leave to adduce these broadcasts as new evidence.¹ They are:

(a) The AM Show when Kelvin Davis next appeared after the 20 March 2018 show. Mr Reekie believes this was on or about 3 April 2018. He recalls that in the first two minutes of this broadcast Mr Davis responded to Mr Garner’s offensive comments made on 20 March 2018.

(b) The Hui broadcast on 26 August 2018. Mr Reekie says this show included a debate about racial hate speech and made reference to racist comments by Mr Garner on the AM Show.

[4] Mr Reekie says the first of these is relevant because he referred to it in his original complaint. He says it is apparent the BSA did not view it, as it should have done, when dismissing his complaint because it has not been included in the BSA’s Bundle of Documents. Mr Reekie says the second of these is relevant essentially because it shows Mr Garner has a platform on which he is habitually a racist and this becomes subliminal for the New Zealand public who view his shows. He considers this provides the context in which to assess his complaint.

[5] The respondent had earlier indicated that this application, if made, would be opposed. On that basis the application, together with an application for security for costs if made, was to be given a hearing date in Auckland and a timetable was set for submissions for that hearing. However, the respondent has not pursued an application for security for costs and has advised that it abides the Court’s decision on the new evidence application. The respondent has further advised that it does not consent to the granting of leave because:

(a) Kelvin Davis was not interviewed on the AM Show on 3 April 2018. He was interviewed on 17 April 2018 but the interview does not include

¹ High Court Rules 2016, r 20.16.

any statements which Mr Reekie has attributed to him and is not relevant to this appeal.

(b) The 26 August 2018 episode of The Hui had not been broadcast when Mr Reekie made his complaint and is not relevant. The respondent says that, while a panel member on the show referred to a comment Mr Garner had made, this was not a comment that was part of the AM Show about which Mr Reekie had complained.

[6] Mr Reekie has not had the opportunity to review these broadcasts to determine their relevance and is going from his memory about when they were broadcast and what they contained. He is seeking information from Mr Davis to try and track down the relevant show that he recalls.

[7] I consider the appropriate way forward is for the respondent to make available to Mr Reekie the 3 and 17 April 2018 broadcasts of the AM Show and the 26 August 2018 broadcast of the Hui. He has raised a sufficient basis as to their possible relevance if the shows are as he recalls them. If, having had the opportunity to see them, Mr Reekie still seeks to rely on any of these shows in support of his appeal, they should be included in a Common Bundle for the appeal. I consider this is the most efficient and fair course in the circumstances and avoids the need for an in person interlocutory hearing on the matter. The Judge hearing the appeal will be in position to consider the relevance or otherwise of these shows in the context of the appeal.

[8] A telephone case management conference is to be scheduled by the Registry on a date in mid-to-late February 2019 to check progress with this and to timetable the appeal to a substantive hearing.

[9] I make directions accordingly.


Mallon J

Counsel:

T Turton, Auckland

Copy to:

The appellant