SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC CA CA239/03

SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC CA CA239/03 9 December 2004IN THE COURT OF APPEAL OF NEW ZEALAND CA239/03IN THE MATTER OF of an appeal from a determination of the Film and Literature Board of Review dated 1 November 2002 classifying a film entitled Baise-Moi under the Films, Videos, and Publications Classification Act 1993 SOCIETY FOR THE PROMOTION OF COMMUNITY STANDARDS INC Appellant Hearing: 18 November 2004 Court: Anderson P, Chambers and O'Regan JJ Counsel: P D McKenzie QC and L H Pratley for Appellant J A L Oliver and J R Burns for Film and Literature Board of Review E St John for Metropolis Films Limited Judgment: 9 December 2004JUDGMENT OF THE COURT A The outcome of the appeal by the Society on the three questions of law referred to in the notice of appeal is as follows: (i) On the first question, we find the High Court was correct in its finding that the Film and Literature Board of Review did not fail properly to consider the dominant effect of the publication as a whole; (ii) On the second question, we find the High Court was correct in its finding that the Board did not fail to consider matters required to be considered by the Board under s 3(4)(b) and (f) of the Films, Videos, and Publications Classification Act 1993;(iii) On the third question, we find that the High Court was in error in finding that the Board made no error of law in placing different restrictions for classification purposes with respect to different mediums or formats of the same publication. B Accordingly, we allow the appeal in part. In place of the Board's determination of 1 November 2002 (paras [122] and [123]), approved by the High Court, we substitute the following decision: The film "Baise-Moi" is objectionable except if: (a) the availability of the film is restricted to persons who have attained the age of 18 years; and (b) the film is used for the purpose of: (i) theatrical exhibition; or (ii) exhibition to participants in a tertiary media studies course or a tertiary film studies course. "Film" has the meaning given to it in s 2 of the Films, Videos, and Publications Classification Act 1993. C We make no award of costs. REASONS(Given by O'Regan J)Introduction[1] This is an appeal from a decision of the High Court (now reported as Re Society for the Promotion of Community Standards Inc (No 4) [2004] NZAR 82). In that decision, Goddard J dismissed an appeal by the appellant (the Society) from a determination of the Film and Literature Board of Review (the Board) relating to the film Baise-Moi. [2] The appeal is brought under s 70 of the Films, Videos, and Publications Classification Act 1993 (the Act). That section provides that a party to an appeal to the High Court who is dissatisfied with any final determination of the Court in respect of the appeal as being "erroneous in point of law" may appeal to this Court for the opinion of this Court on that question of law. The appeal from the Board to the High Court was brought under s 58 of the Act, which is expressed in similar terms. The respective roles of the High Court and this Court are, therefore, confined to questions of law. The evaluative judgments required under the Act are the responsibility of the Office of Film and Literature Classification (the Classification Office) and, on appeal from the Classification Office, the Board.The film[3] Goddard J described the film as "a graphic and extreme French version of the film Thelma and Louise". It is described in greater detail in the decision of Hammond J in relation to an earlier appeal from the Board: Re Society for the Promotion of Community Standards Inc (No 2) [2002] NZAR 897 at [2]. The decision of the Classification Office on the classification of the film (OFLC Publication Reference No. 100334) says (at 11) that the overwhelming effect of the film "remains the shocking and unrelenting presentation of violence, much of which has been sexualised due to the association of these images with those of explicit sex."History[4] The classification history of the film up to the point of the High Court appeal was summarised by Goddard J (at [2]) as follows:(i) The film was imported in 2002 with the intention that it should be screen as part of Beck's Incredible Film Festival in the middle of that year. The Office of Film and Literature Classification ("the Classification Office") classified Baise-Moi as: Objectionable except if the availability of the publication is limited for the purpose of study in a tertiary media or film studies course or as part of a film festival organised by an incorporated film society, and in both cases to persons who have attained the age of 18 years. (ii) The appellant ("the Society") sought a review of the Classification Office's classification and on 13 March 2002 the Board issued a review decision which effectively removed all of the restrictions that had been imposed by the Classification Office, except for the R18 restriction. The Board also recommended that the film be advertised and screened with the warning that it "Contains frequent disturbing depictions of violence and repeated explicit sexual content". (iii) The Society appealed to the High Court from the Board's decision on a number of questions of law: Re Society for the Promotion of Community Standards Inc (No 2). Pending the hearing of the appeal, Hammond J granted an interim restriction order preventing the film from being screened at the 2002 Beck's Festival [Re Society for the Promotion of Community Standards Inc (No 1) [2002] NZAR 884]. The appeal was allowed on two relatively narrow grounds and the Board was directed to reconsider its classification decision in the light of observations Hammond J made on the two questions of law involved. Of particular relevance to this appeal was Hammond J's direction that the Board consider the impact of the various mediums or format in which Baise-Moi might be presented. I will refer in more detail to that issue shortly. (iv) On 1 November 2002 the Board issued a fresh determination, from which this appeal has been brought. The classification determined by the Board on this second occasion was in the following terms: The Board has reconsidered in full its previous decision dated 2 February 2002 in respect of the film Baise-Moi. The Board's current decision is that the film Baise-Moi is objectionable if made available to persons under the age of 18 years. The Board decision in respect of videos or DVDs of Baise-Moi is that these are objectionable unless restricted to theatrical exhibition or are exhibited as part of a tertiary media studies or film studies course, and in all cases to persons who have attained the age of 18 years.Baise-Moi is to be advertised as "Contains frequent disturbing depictions of violence and repeated explicit sexual content and sexual violence". (v) Pending the hearing of this appeal, the Society sought an interim restriction order to prevent the film being screened in mainstream cinemas but that was declined by France J on 5 December 2002 [Re Society for the Promotion of Community Standards Inc (No 3) [2003] NZAR 200]. Baise- Moi has since been shown in mainstream cinemas with an 18 year age restriction and its season has apparently now ended.The High Court decision[5] The Society's notice of appeal to the High Court set out eight alleged errors of law made by the Board in its determination relating to the film, after the matter had been remitted to the Board by Hammond J for reconsideration. In each case, a specific question of law to be resolved by the High Court was set out. Only four of these points were pursued in the High Court, and Goddard J found against the Society on all four. In this Court, the Society pursues three of the four points raised in the High Court.Alleged errors of law[6] The Society contends that the Board made three errors of law in its re- determination, and that the High Court was, in each case, in error in determining that no such error had been made. [7] The three errors of law which the Society says were made in the High Court judgment, and which are the foundation for the present appeal are: (a) The High Court's finding that the Board, when making its finding in relation to s 3(4)(a) did not fail to properly consider the dominant effect of the publication as a whole; (b) The High Court finding that the Board did not fail to apply and consider matters required to be considered by the Board under s 3(4)(b) and (f) of the Act in relation to the medium of television, contrary to the directiongiven by Hammond J in Re Society for the Protection of Community Standards Inc (No.2); (c) The High Court wrongly found that the Board made no error of law in placing different restrictions for classification purposes with respect to different mediums or formats of the same publication. [8] We will deal with each of these in turn.First question: Dominant effectSubmissions of the Society[9] Mr McKenzie said that s 3(4)(a) of the Act required the Board to consider "the dominant effect of the publication as a whole" in determining whether or not the publication was objectionable or should be given a classification other than objectionable under s 3(3) of the Act. He said that this was not only a mandatory requirement in itself, but also a foundational matter to which the Board was required to give consideration when forming its view on the matters referred to in s 3(4)(b) – (f). [10] Mr McKenzie said this requirement mirrored similar requirements in the legislation which pre-dated the Act, the Indecent Publications Act 1963 (s 11(1)(a)), the Films Act 1983 (s 13(2)(a)) and the Video Recordings Act 1987 (s 21(2)(a)). [11] Mr McKenzie said the Board had failed to consider dominant effect in its decision after the matter had been referred back to it by the High Court. He pointed to para [151] of the Board's decision, where the topic is explicitly addressed, and said that what the Board had said in that paragraph failed to meet the requirements of the Act for the determination of "dominant effect". The paragraph says:[151] After making its findings in relation to s 3(3) of the Act the Board has to consider s 3(4)(a) of the Act in making its decision. The dominant effect of the publication is a bleak story with a view that just deserts are meted out in the end to Nadine and Manu. The perpetrators have a certain self-awareness – "we are leaving a trail". [12] Mr McKenzie said this did not represent a statement of dominant effect, but was rather a description of the content of the film. He referred us to the decision of the Full Court of the High Court in Society for the Promotion of Community Standards Inc v Waverley International (1988) Limited [1993] 2 NZLR 709. In that case Tipping J said, in a majority judgment for himself and Jaine J (at 718):When speaking in s 11(1)(a) of the dominant effect of material Parliament was clearly speaking of the effect of the material on the minds of those persons to whom it was intended or into whose hands it was likely to go. There is a material distinction between the dominant effect of the material and its content. Effect looks at the effect on the mind of the reader. Content looks of course to what the material in question contains or portrays.[13] Mr McKenzie said the Board had failed to grasp that distinction in the present case, and had not directed its attention to the effect of the material in question on the mind of the viewer. He contrasted para [151] with the statement of dominant effect in the decision of the Classification Office in relation to the film (to which we have referred at [2] above).High Court decision[14] In the High Court, Goddard J found that the Board did consider dominant effect as required by s 3(4)(a). She said this was illustrated by para [151] of the Board's decision, to which we have referred above. Goddard J said that, in reality, the Society's challenge was directed to the weight that the Board accorded to the dominant effect factor when reaching its ultimate classification decision.Submissions of the Board[15] On behalf of the Board Mr Oliver supported the High Court's analysis. He said that para [151] was almost identical in form to para [60] of the Board's first decision in relation to the film dated 13 March 2002. He said that no fault was found with its analysis in the judgment of Hammond J in Re Society for the Promotion of Community Standards Inc (No 2). He pointed out that, although the matter was referred back to the Board by Hammond J, this was only in relation to two relatively narrow issues.[16] Mr Oliver also argued that the whole of the Board's decision should be considered when determining the adequacy of its assessment of the dominant effect of the film.Submissions of Metropolis[17] On behalf of Metropolis Mr St John supported the submissions made on behalf of the Board.Discussion[18] We agree with Goddard J that the criticism made of the Board by the Society is really only criticism of the conclusion the Board reached as to what the dominant effect of the film was, rather than the identification of an error of law. While the Board's statement as to dominant effect in para [151] is brief and superficial, we do not think it can fairly be categorised as a statement of content only. It is directed to the effect of the film on the mind of the viewer. It refers to the film as "bleak", which is a statement of how it appears to the viewer, and then describes the "view" that just deserts are meted out to the main characters: that is also more than a mere summary of content. Nor do we think that the statement in para [151] can be taken in isolation: it is clear from a reading of the decision as a whole that the Board addressed its mind to s 3(4)(a), and applied its judgement to that issue. We do not accept that the Board made any error of law, and accordingly we reject the Society's contention that the High Court was in error in reaching the same conclusion.Result[19] Accordingly, the first ground of appeal fails.Second question: Impact of the television mediumSubmissions of the Society[20] Mr McKenzie submitted that the Board had made an error in failing to consider the impact of the television medium and the possible television broadcast of the film in its redetermination. The Board said in its decision at [192]:The High Court has made reference to the potential release of "Baise-Moi" on television. The Board considers it has no jurisdiction to deal with television which is legislated for in the Broadcasting Act 1989.[21] Mr McKenzie said this was not only an error of law, but also a failure to act on the direction given by Hammond J when he referred the matter back to the Board for re-consideration. In his substantive decision (Re Society for the Promotion of Community Standards (No 2)) Hammond J had held: (a) Section 3(4)(b) of the Act requires the Board to consider the impact of the medium in which the publication is presented. (b) Under s 26, a classification given to a publication is required to "apply to every copy of that publication that is identical in content with it". Accordingly, where a film has been classified, a videotape or DVD with identical content must get the same classification. (c) A videotape or DVD subject to the same classification as the Board gave to the film in its first decision, (objectionable unless restricted to persons who have attained the age of 18 years) could come into the possession of a television broadcaster and could be screened on television. (d) Although there is a separate regime for maintaining the standard of programmes which are broadcast on television in New Zealand (in the Broadcasting Act 1989) the Act can still have relevance to television broadcasting. This is because, if a film is classified as objectionable by the Classification Office or the Board under s 23(2) of the Act, the film may not be broadcast except with the consent of the Chief Censor of Film andLiterature (the Chief Censor): s 4(2) of the Broadcasting Act. Similarly, if the Classification Office or the Board has made a decision classifying a film as if certain excisions have been made from it under s 33(2) of the Act, then the content which has been excised cannot be broadcast without the consent of the Chief Censor. (e) Thus, if the film had been classified as objectionable, it could not have been broadcast on television in New Zealand except with the consent of Chief Censor. If conditions like those imposed by the Classification Office had been kept in place, the film could not lawfully have come into the possession of a broadcaster so that it could not be screened on television. (f) The Board was required to take into account under s 3(4)(b) the impact of the medium in which the film is presented and under s 3(4)(f) other relevant circumstances relating to the intended or likely use of the publication. (g) Accordingly the Board ought to have taken into account the potential use of the film in video or DVD format and the possibility that it could be televised. Its failure to do this was an error of law. [22] Hammond J therefore remitted the matter to the Board for re-consideration on that basis. [23] In this Court, Mr McKenzie supported the approach taken by Hammond J (Hammond J had accepted Mr McKenzie's argument in adopting that approach) and urged us to take the same approach. He said the Board's failure to follow the direction made by Hammond J was an error of law, and that Goddard J made an error of law in determining to the contrary.High Court decision[24] Goddard J accepted the submission made on behalf of the Board that the Board does not have jurisdiction over the classification of programmes for television,as television is subject to the separate regime provided for in the Broadcasting Act. She said the only overlap between the Act and the Broadcasting Act occurs when a publication is classified as "objectionable" under s 23(2)(b) of the Act (though there is a similar overlap where excisions are required to be made). She said that, in circumstances where a film is a restricted publication (i.e. it is classified under s 23(2)(c) as objectionable except in one or more of the circumstances referred to in that provision), no overlap exists. Both the Classification Office and the Board classified Baise-Moi under s 23(2)(c) though, of course, the conditions which they specified were substantially different. Nevertheless, it is clear that, under the classification made by the Classification Office and that made by the Board, the requirement under s 4(2) of the Broadcasting Act to obtain the permission of the Chief Censor to broadcast a film on television would not be triggered.Submissions of the Board[25] On behalf of the Board, Mr Oliver supported Goddard J's decision. He said that the only link between the Act and the Broadcasting Act was where a publication is "objectionable" i.e. classified as such under s 23(2)(b). He said a film which is classified is objectionable except in specified circumstances under s 23(2)(c) is a "restricted publication" in terms of the Act. Once a film has been given a restricted classification, no matter what the restriction may be, the classification has no relevance to the Broadcasting Act. He accepted that Hammond J was correct in stating that the classification of a film as "objectionable" would be relevant to the potential for it to be screened on television. But he said the Judge was wrong in attributing any relevance to the nature of the restriction applied under s 23(2)(c) to television broadcast.Submissions of Metropolis[26] Mr St John also submitted that the Board had been correct in saying that it had no jurisdiction in relation to television broadcast, and therefore no obligation to consider the potential for television broadcast.Discussion[27] We accept Mr Oliver's submission that the overlap between the Act and the Broadcasting Act is confined to the very limited class of films which are classified as objectionable, or in respect of which excisions have been required. Only then does s 4(2) of the Broadcasting Act apply. In any other case, the decision made by the Classification Office or the Board in relation to a film does not have any impact on the legal requirements relating to its broadcast on television. It may well be that the restrictions imposed by the Classification Office or the Board would be taken into account by, and, indeed, given significant weight by, an executive of a television broadcaster when considering the possibility of broadcasting the film on television. But it is of no legal significance. [28] Accordingly, we agree with Goddard J that the Board was correct in determining that it had no jurisdiction in relation to television broadcasting. The corollary of that is that the Board is not required to take into account the possibility of television broadcasting when determining the nature of the restrictions which it intended to impose under s 23(3)(c). To that extent, we differ from the conclusion reached by Hammond J in Re Society for the Protection of Community Standards (No 2). [29] Section 3(4)(f) directs the Classification Office and the Board to consider relevant circumstances relating to the intended or likely use of a publication. In the present case there was no indication that television broadcast was "intended" or "likely". Indeed, given the film's content, there was every reason to believe that television broadcast was unlikely, given the responsibility imposed on television broadcasters under s 4(1) of the Broadcasting Act to maintain programme standards, and the serious consequences for failing to do so. Thus, even if we were wrong in our conclusion that television broadcasting is not relevant to the Board's classification of a film, it would not have been a relevant consideration in relation to this film in any event. [30] In our view, a finding to the contrary would lead to the situation where a possible consequence of a finding that a film is objectionable (the need to obtain thepermission of the Chief Censor to broadcast it on television) would be turned around and become a determining factor in the decision as to whether the film ought to be classified as objectionable. The tail would be wagging the dog. We do not see any indication in either the Act or the Broadcasting Act that that was Parliament's intention.Result[31] The second ground of appeal fails.Third question: Different restrictions for different formats[32] The Board expressed its decision in relation to the film at [122] – [123] of its determination dated 1 November 2003. Those paragraphs say:[122] The Board has reconsidered in full its previous decision dated 2 February 2002 in respect to the film "Baise-Moi". The Board's current decision is that the film "Baise-Moi" is objectionable if made available to persons under the age of 18 years. [123] The Board decision in respect to videos or DVDs of "Baise-Moi" is that these are objectionable unless restricted to theatrical exhibition or are exhibited as part of a tertiary media studies or film studies course, and in all cases to persons who have attained the age of 18 years.[33] Given the statutory definition of "film", which includes video and DVD, it could be argued that the para [122] classification includes videos and DVDs. Presumably para [122] is intended to refer to the publication in cinematographic film format only, but this is not entirely clear from the terminology used.Submissions of the Society[34] Mr McKenzie said that it was clear that the Board had made two separate classifications for the publication: one for the film version and one for the DVD/video. He said that this appeared to respond to a submission made to theBoard by the Classification Office that different conclusions could be reached in relation to different mediums. [35] Mr McKenzie said that the Board was not entitled to make different classifications for different mediums. He said the scheme of the Act, in particular ss 11, 23, 26, 27 and 28, and the definition of "film" in s 2 require one classification to be made of the same publication. [36] He relied in particular on the definition of "film" in s 2 and on s 26. The definition of "film" is "a cinematographic film, a video recording and other material record of visual moving images that is capable of being used for the subsequent display of those images". Section 26 says that a classification given to a publication "shall apply to every copy of that publication that is identical in content with it". He said it was clear that the definition of "film" included videotapes and DVDs, and that a videotape or DVD containing the same content as a cinematographic film had to be given the same classification as the film under s 26. [37] Mr McKenzie said this interpretation was supported by the other sections mentioned above, which all contemplate that there will be only one classification for a particular publication. [38] Mr McKenzie said that Goddard J had been wrong to rely on an undertaking from Metropolis that it would not make the film available for non-cinematic release without first resubmitting it for classification in relation to both DVD and video formats. He said that even if Metropolis acted in that way, the Board would be obliged to classify the DVD and video in the same way as it classified the film, and so no practical advantage would be obtained from the separate submission of the film and other mediums. Mr McKenzie also said that it was wrong to take into account the fact that a DVD or video of the film would be likely to include additional material (such as trailers or advertisements), thus making it a different "publication" from the film. He said the Board could not be sure that that would always be the case.High Court decision[39] Goddard J took an essentially practical approach to this issue. She noted the undertaking given by Metropolis to re-submit the video or DVD before distributing the film in that format, and the likelihood that additional material on the video and DVD would make the video/DVD a different "publication". In view of those factors, she concluded that there was no practical likelihood of a DVD or video of the film being distributed without a separate classification taking place. Ultimately, she accepted the submission made on the Board's behalf that all it had done in relation to the video/DVD format was give an indication of the likely result if the film were submitted for classification in that format: in other words, if it had not finally decided the issue.Submissions of the Board[40] Mr Oliver supported the High Court judgment. He said the Board did not have before it a video or DVD to be classified, and had not done more than indicate the likely result if the film in video or DVD format were submitted for classification. He also relied on the practical point that the undertaking had been given by Metropolis and that videos and DVDs almost invariably have additional material which means that they are, technically speaking, different publications from the film version of the same title.Submissions of Metropolis[41] Mr St John accepted that s 26 required the Board to make one classification for a publication, regardless of the format in which the publication is presented. However he said that the practical position was that DVDs and videos invariably had promotional material not present in the film format, and therefore required re- classification. He said that, in practice, the reclassification of a video or DVD was done at a purely administrative level by the Film and Video Labelling Body unless the promotional material included in the video or DVD version was, itself, of anature that called into question the appropriateness of the classification for the main feature being applied to the whole video/DVD. [42] Mr St John said the Board was entitled to rely on the undertaking by Metropolis, and to classify the film on the basis that it would be available only for theatrical release, and not available for rent in video stores. He said that if a video or DVD release were contemplated, the Board could consider the appropriate classification in the light of the possibility that, once a video is rented, it could become available for viewing by those under the age of 18 years.Discussion[43] We accept Mr McKenzie's submission that the Board made two decisions: one in relation to the film version and one in relation to videos/DVDs. We are unable to accept Mr Oliver's suggestion that the decision in relation to videos/DVDs was no more than an indication of what the Board would decide if it were asked to do so. The wording of para [123] ("The Board decision in respect to videos or DVDs of "Baise-Moi" is") simply does not leave open that interpretation. [44] We also accept Mr McKenzie's submission that the Board was wrong to make two separate classifications. In our view s 26 is clear in its terms, and the Board is not permitted to classify a publication in film format differently from the same publication in video or DVD format. The Board made an error of law in doing so. [45] It may well be that, in view of the undertaking given by Metropolis and the fact that DVDs and videos almost always have additional content requiring separate classification, the error of law made by the Board has had minimal practical effect. Nevertheless, the decision which the Board made was one which was not open to it, and the Society is entitled to relief. [46] Mr McKenzie urged us to remit the matter to the Board for re-consideration in the light of our conclusion on this point. That is certainly one course of action open to us. However, r 19(4) of the Court of Appeal (Civil) Rules 1997 gives thisCourt power to give any judgment and make any order which ought to have been given or made, and make such further or other orders as the case may require. That means that we can make any order which was open to the High Court in relation to the appeal from the Board. Under r 718A of the High Court Rules, the High Court has power to "make any decisions that it thinks should have been made [by the Board]": r 718A(1)(a). [47] Although the Board wrongly purported to make separate classifications for the publication in film form and the publication in video/DVD form, the Board could have achieved the same practical result lawfully. It could have made one classification for the film, imposing restrictions that meant that it could not be viewed in any medium except by persons over the age of 18 years, and could be viewed only through theatrical exhibition or as part of a tertiary media studies or film studies course. In those circumstances, we consider that the appropriate course for us to take is to quash the Board's decision and substitute a new decision having the same practical effect, but which complies with the requirements of the Act. We would not be disposed to do this if it meant that we were substituting our views for those of the Board's on the merits of the classification, but we are satisfied that we are not doing so in this case.Result[48] Accordingly, we allow the appeal in part. In place of the Board's determination of 1 November 2002 (paras [122] and [123]), approved by the High Court, we substitute the following decision:The film "Baise-Moi" is objectionable except if: (a) the availability of the film is restricted to persons who have attained the age of 18 years; and (b) the film is used for the purpose of: (i) theatrical exhibition; or (ii) exhibition to participants in a tertiary media studies course or a tertiary film studies course. "Film" has the meaning given to it in s 2 of the Films, Videos, and Publications Classification Act 1993.[49] Paragraph [124] of the Board's decision is unaffected by this decision.Costs[50] We make no award of costs.Postscript[51] We make one final observation. The determination of the Board dated 1 November 2002 effectively ignores the direction given to the Board by the High Court in Re Society for the Promotion of Community Standards (No.2). We have now concluded that the Board is not required to take into account the possibility of television broadcasting when determining the nature of the restrictions which it intends to impose on a film under s 23(3)(c). But, at the time of the Board's redetermination, it was bound by a direction of the High Court to the opposite effect. We agree with the statement of France J in Re Society for the Promotion of Community Standards Inc., (No 3) at [33] that "It appears at least at first blush, that the Board has not taken on board the ruling of the High Court". In our view, the Board ought to have done so. [52] That raises the difficulty faced by an entity such as the Board where it disagrees with the outcome of a High Court appeal, but has no right to appeal the decision to this Court. Under the High Court Rules, the Board is not, and should not be named as, a respondent: r 709(2) and Moonen v Broadcasting Standards Authority (1995) 8 PRNZ 335. However, it is entitled to be represented and heard on the appeal: r 709(3) and r 717. Although it is represented and heard on an appeal, it is not a party, and therefore has no right of appeal. In that situation, where important issues of public interest arise, it may be that consideration needs to be given to the Attorney-General being added as a party under r 97 of the High Court Rules, and, if thought appropriate, exercising rights of appeal to this Court. It would not be appropriate for the Board itself to seek party status or to appeal, for reasons which have been given in cases such as Licensing Control Commission v Lion Breweries Limited (1983) 3 NZAR 468 at 471.[53] We were told by counsel for the Board that the Attorney-General had intervened in relation to another appeal against the decision of the Board, Living Word Distributors Limited v Human Rights Action Group Inc (Wellington) [2000] 3 NZLR 570. In Re Erebus Royal Commission [1983] NZLR 662 (PC) at 670, it is noted that the Attorney-General was made a respondent in order to represent the public interest. See also Thompson v Commission of Inquiry into Administration of the District Court at Wellington [1983] NZLR 98 at 101 and Auckland Area Health Board v Attorney-General [1993] 1 NZLR 235.Solicitors: Bryson & Co, Raumati Beach for Appellant Crown Law Office, Wellington for Film and Literature Board Review Stephen McDonald, Auckland for Metropolis Films Limited