TELEVISION NEW ZEALAND LTD v WICKS & ANOR [2022] NZHC 597

TELEVISION NEW ZEALAND LTD v WICKS & ANOR [2022] NZHC 597 [31 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1046[2022] NZHC 597BETWEEN TELEVISION NEW ZEALAND LTDAppellantAND NOLA WICKS & ANORRespondentHearing: 30 September 2021Appearances: J Edwards, H Soar and T Whale for the appellantA Scott-Howman for the Broadcasting Standards AuthorityF Pilditch QC as counsel assistingJudgment: 31 March 2022JUDGMENT OF ROBINSON JThis judgment was delivered by me on 31 March 2022 at 11.00ampursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Russell McVeaghCounsel:F Pilditch QCA Scott-Howman, BarristerIntroduction[1] On 22 September 2021 Television New Zealand Ltd (TVNZ) broadcast a newsitem on 1 News concerning boy-racers who were reported to be "terrorising residentsin a damaged quake suburb in Christchurch" (broadcast). On 13 May 2021 theBroadcasting Standards Authority (Authority) upheld Ms Wicks' complaint that thedepiction of an interviewee included in the broadcast breached Standard 10 (Privacy)of the Free-to-Air Television Code of Broadcasting Practice (Code).1[2] TVNZ appeals. It says the Authority acted on the wrong principle; failed totake relevant matters into account; and was plainly wrong.[3] Ms Wicks is not the interviewee, and she is unknown to the interviewee. Hercomplaint to the Authority was a "third party complaint". Ms Wicks took no steps inthis appeal.[4] The Authority is represented in the appeal but emphasised through counsel thatit abides the decision of the Court. It took no steps to support or defend its decision.Its submissions were brief, neutral, and limited to matters of legislation and factualbackground.[5] Given the importance of the substantive and procedural issues that arise, andin the absence of an effective contradictor, the Court appointed Mr Pilditch QC toassist. TVNZ had responsibly suggested at the outset that such an appointment mightbe appropriate.Statutory and Procedural Framework[6] The statutory and procedural context to this appeal is uncontentious but highlyrelevant. I summarise it in some detail below before dealing with: Ms Wicks'complaint; the Authority's decision; and TVNZ's appeal.1 Wicks v Television New Zealand Limited (BSA Decision number 2020-126, 13 May 2021)[Decision].Programme Standards[7] The first stated object of the Broadcasting Act 1989 (Act) is "to provide forthe maintenance of programme standards in broadcasting in New Zealand".2[8] Section 4 of the Act imposes responsibilities on broadcasters to maintainprogramme standards. These standards are to be consistent with, amongst other things,the privacy of the individual3 and any approved code of broadcasting practice applyingto the programmes.4[9] The Code was issued by the Authority in May 2020. Standard 10 deals withPrivacy (Privacy Standard). It repeats the words of section 4(1)(c) of the Act andprescribes Guidelines relevant to the application of the Privacy Standard (PrivacyGuidelines). In its Codebook the Authority also provides Guidance which is intendedto elaborate on the Privacy Guidelines (Privacy Guidance). The Privacy Standard,Privacy Guidelines and Privacy Guidance are central to this appeal. Relevantprovisions of each are set out at paragraphs [19]–[22] below.The Authority[10] The second stated object of the Act is "to establish the Broadcasting StandardsAuthority and to define its functions and powers".5 Section 26 of the Act providesthat the Authority's board of four members must include a representative from thebroadcasting industry, and a public interest group representative, each to be appointedafter consultation with the responsible Minister.6 The Chairperson must be a lawyer,if not a judge.7 The Authority is to act independently.8 I agree with Mr Pilditch thatthe statutory composition of the Authority confirms Parliament's intention that it is toreflect community values and have the benefit of relevant industry expertise.2 Broadcasting Act 1989, title.3 Broadcasting Act 1989, s 4(1)(c).4 Broadcasting Act 1989, s 4(1)(e).5 5 Broadcasting Act 1989, title.6 Broadcasting Act 1989, ss 26(1A) and 26(1B).7 Broadcasting Act 1989, s 26(2). The current Chairperson is a District Court Judge and waspreviously the Chief Censor appointed under the Films, Videos, and Publications ClassificationAct 1993.8 Broadcasting Act 1989, s 21(5).[11] The Authority's functions include receiving and determining complaints;9 andencouraging and/or devising the development of codes of broadcasting practice,including in relation to the privacy of the individual. 10 The Authority issued the Codein exercise of that function.Complaints[12] Part 2 of the Act requires broadcasters to have proper procedures to receive andaddress complaints about their broadcast. Section 6 requires broadcasters to considercomplaints and section 7 sets out how broadcasters are to make decisions in relationto those complaints. Section 8 allows a person who is dissatisfied with a broadcaster'sdecision to refer the complaint to the Authority. Section 8(1A) provides thatcomplaints about breaches of privacy standards may be made directly to the Authority.That is how Ms Wicks made her complaint in the present case.[13] As noted, Ms Wicks is a third party complainant. The facility for a person tocomplain about a perceived breach of the privacy of another reflects that the legislationis focused on the maintenance of standards, not the enforcement of rights. Counselfor the Authority refers to annual report data showing that: in 2021 four out of nineprivacy complaints were made by third parties; in 2020 three out of fifteen; and in2019 six out of thirteen (not counting multiple complaints about one particularbroadcast).[14] It is significant that when the Authority is dealing with complaints the Actprovides it with the broad powers set out in ss 4B, 4C, 5, 6, 7, 8 and 9 of theCommissions of Inquiry Act 1908. Amongst other things, the Authority may: receiveany evidence in any form whether admissible in a Court of Law; take evidence onoath; conduct investigations and require production of documents and other things;and summons witnesses.[15] In terms of procedure, the Authority may deal with complaints, with or withouta hearing, as it sees fit.11 Even if there is no hearing the complainant and broadcaster9 Broadcasting Act 1989, s 21(1)(a)-(b).10 Broadcasting Act 1989, s 21(1)(d)-(e).11 Broadcasting Act 1989, s 10(1).must each have a reasonable opportunity to make written submissions. In consideringcomplaints the Authority is to "provide for as little formality and technicality as ispermitted by – the requirements of the Acta proper consideration of the complaint;and the principles of natural justice.12Appeals[16] Section 18 of the Act provides a right to appeal the Authority's decisions to thisCourt. Significantly, the Court is to hear and determine the appeal as if the decisionor order appealed against had been made in the exercise of a discretion.13 This meansthat the appeal should only be allowed if the Authority has proceeded on a wrongprinciple, failed to consider a relevant matter or took into account somethingirrelevant, or is plainly wrong.14 The determination of the High Court on any appealunder s 18 is final.15[17] Subject to s 18 of the Act, the procedure in respect of an appeal shall be inaccordance with rules of Court.16 Part 20 of the High Court Rules applies to statutoryrights of appeal. Rule 20.16 permits further evidence to adduced with the leave of theCourt, which may be granted only if there are special reasons to hear the evidence.Leave has previously been granted for TVNZ to adduce further evidence here, asdiscussed further below.[18] In terms of remedies, s 18(5) provides that the Court may: confirm, modify, orreverse the decision or order appealed against, or any part of that decision or order; orexercise any powers the Authority could have exercised in the proceedings to whichthe appeal relates. High Court Rule 20.19(1)(b) empowers the Court to direct theAuthority to rehear the proceedings, or to consider or determine (whether for thefirst time or again) any matters the court directs. The Court must state its reasonsfor any such direction.1712 Broadcasting Act 1989, s 10(2).13 Broadcasting Act 1989, s 18(4).14 Kacem v Bashir [2010] NZSC 112, 2 NZLR 1, at [32]; May v May [1992] 1 NZFLR 165 (CA)15 Broadcasting Act 1989, s 19.16 Broadcasting Act 1989, s 18(7).17 High Court Rules 2016, r 20.18(2).Privacy Standard/Guidelines/Guidance[19] The Privacy Standard uses the language of s 4(1)(c) of the Act to simply statethat: Broadcasters should maintain standards consistent with the privacy of theindividual.[20] The Authority's Privacy Guidelines relevant to this appeal are:10a The privacy standard applies only to identifiable individuals. In somecases an individual may be identifiable even if they are not named or shown.10b Broadcasters should not disclose private information or material aboutan individual in a way that is highly offensive to an objective reasonableperson in the position of the person affected.10c There must be a reasonable expectation of privacy in relation to theinformation or material disclosed. Factors to consider include, but are notlimited to, whether the information or material is not in the public domain;and/or is intimate or sensitive in nature; and/or the individual could reasonablyexpect it would not be disclosed.10g It is not a breach of privacy where the person concerned has giveninformed consent to the disclosure or intrusion.[21] The Authority's Privacy Guidance elaborates on the Privacy Guidelines. TheAuthority notes that the Guidance is not exhaustive and may require elaboration orrefinement when applied to a complaint. The specific facts of each complaint areespecially important when considering whether an individual's privacy has beenbreached.[22] The Privacy Guidance in relation to identification, highly offensive intrusionsand disclosures, and informed consent is relevant here:2. Identification required2.1 Privacy will only be breached where the individual whose privacy isat issue is identifiable in the broadcast. Individuals must be identifiablebeyond family and close friends who would reasonably be expected to knowabout the matter dealt with in the broadcast.2.2 Broadcasters that take steps to mask a person's identity to avoid aprivacy breach must take care that the masking is effective. In some cases,where there is a unique combination of identifying features within thebroadcast, merely masking the person's face will sometimes be inadequate.2.3 In some circumstances, a combination of information inside thebroadcast and other readily available material or information from outside thebroadcast may enable identification.6. Highly offensive intrusions and disclosures6.1 The means by which private material is gathered affects theoffensiveness of the intrusion or disclosure. 6.2 Disclosure of private facts is likely to be highly offensive where:• the material is particularly embarrassing, sensitive or traumatic, or hasthe potential to impact negatively on reputation• the person is particularly vulnerable• the person concerned has made efforts to protect his or her privacy, orhas not consented to the broadcast.7. Informed Consent7.1 Informed consent is provided where a person identifiable in abroadcast:• is aware he or she is contributing to the broadcast• understands the true context and purpose of the contribution• understands the nature of the consent and its duration• freely agrees to contribute.7.2 The level of consent required may vary depending on the type ofprogramme and the particular circumstances in each case.7.5 In general, consent must be written, recorded, or obvious from thecircumstances. What is 'obvious from the circumstances' will be a matter forinterpretation and depend on the specific facts of the case.7.6 The greater the invasiveness of the broadcast, the more care thebroadcaster must take to ensure informed consent is obtained.Facts[23] With this legislative and procedural framework in mind I turn now to thesubstance of Ms Wick's complaint and TVNZ's appeal.The Broadcast[24] The broadcast was approximately 2.5 minutes long. It featured interviews withlocal residents, including the interviewee, who were concerned about boy racers. Theinterview in issue lasted approximately 30 seconds. The broadcast reported that theinterviewee was "too scared to be identified" because she feared retaliation from theboy racers for speaking out.[25] The broadcast did not mention the interviewee's name. It did not include front-on coverage of the interviewee's face, or coverage of the interviewee's property.However, the Authority found (and TVNZ does not dispute) that coverage of theinterviewee included a side-on view of part of her face (unblurred) and revealed hergender, demographic, the length and colour of her hair, the profile of her nose, hervoice, clothes, watch, a distinctive ring on her right hand and the side of her glasses.18The broadcast also referred to boy racers driving their cars in a named suburb inChristchurch, in a particular "almost abandoned" area, in which only "about 25"occupied houses remain.The complaint[26] Ms Wicks watched the article on 1 News. Later that night Ms Wickscomplained to the Authority that although the reporter had said the interviewee wouldnot be named to protect her privacy, she had been filmed in such a way that Ms Wicksfelt "she may now be in danger for speaking out about the boy-racers".[27] The respondent submitted her complaint directly to the Authority rather thanTVNZ. She was entitled to proceed in that way because her essential complaint is thatTVNZ did not maintain standards consistent with the interviewee's privacy.19[28] On 23 September 2020 the Authority referred the complaint to TVNZ. TheAuthority requested from TVNZ a copy of the broadcast and any relevantcorrespondence, and it invited TVNZ's response to Ms Wick's complaint.18 Decision, above n 1, at [2].19 Broadcasting Act 1989, ss 8(1)(a), 4(1)(c).[29] TVNZ did not consider it breached the Privacy Standard. It says the broadcastdoes not identify the interviewee; and that even if it does she gave her informedconsent. In its response to the Authority dated 22 October 2020 TVNZ invoked thelanguage of the Privacy Guidelines in asserting that:We do not agree that the limited information given about the women [sic] asdescribed, under the programme, would lead to her being identified beyondfamily and close friends who would reasonably be expected to know about thematter dealt with in the broadcast.However, even if we were to consider that the woman is identifiable, we notethat the woman gave informed consent concerning the way that she would beportrayed in the 1 News item and it is not a breach of privacy where the personconcerned has given informed consent to the disclosure or intrusion.We further note that the woman has not subsequently contacted the Reporteror cameraperson, whom she met with or the TVNZ Complaints Committee;to revoke her consent or voice any displeasure with the way she was depictedin the item.Accordingly, TVNZ does not agree that the Privacy Standard has beenbreached.[30] On 15 January 2021 the Authority advised TVNZ that it would be determiningMs Wicks' complaint on 27 January 2021. It sought further details of TVNZ'ssubmission that 'the woman gave informed consent concerning the way she would beportrayed in the 1 News item'. In particular, the Authority asked TVNZ: "can youplease provide details and evidence of the informed consent obtained, to assist theAuthority's consideration of applicable defences under the privacy standard". TheAuthority asked to receive that information by 5pm on Tuesday 19 January 2021 "ifat all possible"; but added "if that is not possible just let us know, so we can arrangeanother date of receipt before the meeting".[31] On Wednesday 20 January 2021 TVNZ emailed the Authority as follows:Hi DanielFurther to your question below, the Reporter has advised that they talked aboutthe shots which would be used – that 1 News would use close-ups of her handsetc, but nothing showing her front on and that she agreed to this depiction. Healso advises she has not contacted me or the camera man about any concerns.Cheers, Andrea(original emphasis)The provisional decision[32] On 22 February 2021 the Authority provided TVNZ with its provisionaldecision to uphold the complaint. For reasons that it ultimately finalised, and whichare discussed further below it found that:(a) The interviewee was identifiable in the broadcast;(b) The interviewee had a reasonable expectation of privacy in relation toinformation that was disclosed during the broadcast, namely heridentity; and(c) The disclosure was be highly offensive to an objective reasonableperson in the position of the interviewee. Disclosure of theinterviewee's identity in connection with her concerns about the "boyracers" was particularly sensitive, and she was particularly vulnerable.She had also made efforts to protect her privacy by agreeing to beinterviewed on the condition that she would not be identified. She didnot consent to the disclosure of her identity.20(d) The defence of informed consent did not apply. The Authorityconcluded that:21In this case, the interviewee clearly did not want to beidentified and participated on that condition. Neverthelessshe was identifiable for the purposes of the standards. Thefact the interviewee reportedly agreed to "close-ups of herhands etc but nothing showing her front on" is not sufficientevidence the interviewee understood and consented to thenumerous identifying features ultimately shown in the item.There is no written or recorded evidence the woman gaveinformed consent to being depicted in the manner shown.[33] The Authority sought submissions by 8 March 2021 as to what (if any) orderswould be appropriate. However, in its response TVNZ went further than that andchallenged the Authority's provisional findings.20 Wicks v Television New Zealand Limited (BSA Provisional Decision number 2020-126, 22February 2021), at [22]–[23] (Provisional Decision).21 At [29].[34] On 5 March 2021 TVNZ advised the Authority that since receiving theAuthority's provisional decision the Reporter (Ryan Boswell) had visited theinterviewee and she had provided him with a handwritten note as follows:TO WHOM IT MAY CONCERNI was comfortable with the article on TV about the boy racers and how I wasportrayed in Sept 2020 I can be contacted directly on [ ] or [ ] if requestedthank you.[35] TVNZ provided the Authority with a copy of that handwritten note. Itconcluded: "I assume that now that the Authority has this confirmation the complaintwill not be upheld. Please let me know if the Authority requires anything further onthe complaint".The final decision[36] The interviewee's handwritten note did not dissuade the Authority. On 13 May2021 the Authority released its Decision upholding the complaint for the same reasonsset out in its provisional decision.[37] The Authority noted that the onus is on TVNZ to demonstrate that it hadobtained the interviewee's fully informed consent prior to the broadcast to depict herin the manner shown. The Authority did not consider that TVNZ's email (set out at[31] above) to be sufficient evidence of informed consent. As for the interviewee'ssubsequent handwritten note, the Authority concluded:[38] The note obtained and provided to us after the fact does not change thisview [i.e. that TVNZ had not demonstrated it had obtained the interviewee'sinformed consent prior to the broadcast]. A statement showing the intervieweeconfirmed, well after the broadcast and after the risk of identification hadlikely passed, that she was comfortable with how she was portrayed, is not inour view sufficient evidence she fully understood and consented to the imagesof her that would be used (as well as the potential ramifications), prior to thebroadcast.[39] We are not suggesting written evidence of consent is required in everycase (and the Code Book recognises this). We acknowledge the broadcaster'ssubmissions about the nature of news gathering, the relationships betweenthose involved, and what is reasonable in such circumstances to obtain anddemonstrate evidence of informed consent. We are concerned in particularthat extra care is taken by broadcasters where members of the public agree toparticipate in the programme conditional on anonymity.[40] We therefore stand by our finding the informed consent defence does notapply in this case. We also stand by our decision to uphold the privacycomplaint on the basis the interviewee participated on the condition she wouldnot be identified, but ultimately was able to be identified through thecombination of features disclosed in the item.[38] Although the Authority upheld the complaint, it declined to make any orders.It considered publication of its decision to be the most effective and appropriateremedy.22 In reaching this conclusion the Authority considered that the interviewee'sconfirmation, subsequent to broadcast, that she was comfortable with the footageshown tended to suggest that any actual harm to her privacy interests was minimal.Although this did not ultimately alter its Decision that TVNZ had breached the PrivacyStandard, the Authority accepted this to be a relevant mitigating factor.Issues on Appeal[39] TVNZ appeals the Authority's decision in its entirety. It says that indetermining that the Broadcast breached the Privacy Standard the Authority: acted onthe wrong principle; failed to take into account relevant matters either sufficiently orat all; and/or was plainly wrong.[40] More particularly, TVNZ submits that the Authority erred in some or all ofthese ways in finding that:(a) the interviewee was identifiable in the Broadcast (Issue 1).(b) the interviewee had a reasonable expectation of privacy regarding heridentity (Issue 2).(c) the (alleged) disclosure of the interviewee's identity was highlyoffensive (Issue 3).(d) the defence of informed consent was unavailable to TVNZ (Issue 4).22 Decision, above n 1, at [44].TVNZ's further evidence[41] Shortly after TVNZ filed its appeal it applied for leave to adduce furtherevidence23 in the form of affidavits from each of: Phillip O'Sullivan, TVNZ's Editorof Newsgathering; Ryan Boswell, the broadcast journalist who interviewed theinterviewee; Michael Fitzgerald, the cameraman who filmed the interview; and theinterviewee.[42] The Authority did not oppose TVNZ's application. The Court dealt with it onthe papers.24 In doing so Powell J accepted that the evidence was directly relevant toissues in the appeal. He also accepted TVNZ's submissions that the further evidenceprovides important context to broader issues; and that the procedure at first instancewas such that it would not have been practicable for TVNZ to put the affidavits beforethe Authority.[43] The further evidence is considerably more extensive than that which TVNZplaced before the Authority. Messrs Boswell and Fitzgerald both give evidenceconcerning the interview. Mr Boswell says that the interviewee told him she wouldbe comfortable sharing her views on camera but that she did not want to be identifiableto the boy racers. He says he talked her through some options of camera shots thatcould be used to protect her identity, including that the broadcast could show onlyclose-ups of the side of her face, back of her head and her hands instead of showingher face front on. Mr Boswell says the interviewee told him she was comfortable withthis. He says that based on his conversation with the interviewee it was clear to himthat she understood what was being asked and he explained it was her choice.[44] Mr Boswell explains that the interview followed TVNZ's standard andthorough process for conducting interviews with members of the public for newsbroadcasts. Mr Boswell remains of the view that he took appropriate steps to protectthe interviewee from being identified by boy racers.23 High Court Rules 2016, r 20.1624 Television New Zealand Ltd v Wicks HC Auckland CIV-2021-404-001046, 5 July 2021 (Minuteno 2 of Powell J).[45] Mr Fitzgerald essentially confirms Mr Boswell's evidence. He says that theinterviewee told him and Mr Boswell that she was comfortable with them using shotsonly of her hands and the sides and back of her face. Mr Fitzgerald thinks that he andMr Boswell protected the interviewee and her identity. He does not think that the shotsthat were used in the interview would enable the interviewee to be identified bystrangers such as the boy racers.[46] As noted, Mr O'Sullivan is the editor of news gathering at TVNZ. He had readMr Boswell's and Mr Fitzgerald's affidavits and confirms that their engagement withthe interviewee was in accordance with TVNZ's expectations of news reporters andoperations staff when conducting interviews. Mr Fitzgerald considers that the stepstaken by Mr Boswell and Mr Fitzgerald were appropriate to protect the interviewee'sidentity, and also to ensure she was fully aware that she was contributing to theinterview and understood how she would be portrayed on 1 News.[47] Mr O'Sullivan says he was shocked at the Authority's Decision. He says theDecision has had a "chilling effect" on TVNZ's ability to gather news. Mr O'Sullivanthinks the decision will also adversely affect other news gatherers because a numberof them follow the same processes that Messrs Boswell and Fitzgerald followed inorder to protect members of the public who contribute to news stories. He says theDecision will therefore affect everyone in the news industry because the Decision:(a) Makes it difficult to show any images of anyone being interviewed evenwhere they are happy for certain footage and shots to be shown and thatthey will not be identified by certain groups of people.(b) Hinders TVNZ's ability to do public interest stories. Viewers want toknow things like the age group or gender of a person being interviewedand this can be provided without revealing the interviewee's identity tocertain groups.(c) Mr Fitzgerald considers the Decision makes it seem as though TVNZdoes not protect its sources when in fact it does. He says TVNZ is ahighly trusted news organisation and the Decision will reduce that trustand hinder its ability to gather news in the future.[48] In her affidavit the interviewee confirms that she told Messrs Boswell andFitzgerald that she was not concerned about her family, friends or neighboursrecognising her, but she did not want the boy racers to know who she was becausethey could cause damage. She discussed with them how her identity could beprotected. Her main concern was that she did not want Mr Fitzgerald to film any shotsof her face front on.[49] The interviewee says that she watched 1 News item and was happy with theinterview. She says the way she was shown matched the way she was expected to beshown and she felt she could not be identified by any boy racers. She says she remainshappy with the interview and how she was portrayed.Discussion[50] As noted, the appeal is to be treated as though it were an appeal from adiscretion. TVNZ must show that the Appellant acted on a wrong principle; gaveundue weight to one factor or insufficient weight to another; or was plainly wrong.This recognises the specialist expertise that qualifies the Authority to deal withcomplaints such as those made by Ms Wicks. It is not for this Court to substitute itsview of the merits of such complaints.Issue 1 – Was the interviewee identifiable?[51] TVNZ says that the Authority was plainly wrong to determine that theinterviewee was identifiable by people other than her family, friends and neighbourswho were already aware of the issues. It points out that the broadcast did not includethe interviewee's name, front on coverage of the interviewee, or coverage of herproperty. It says the interviewee was visible for less than 30 seconds of a 2.5-minutebroadcast and submits that a viewer would not be likely to ascertain her identity unlessthe viewer already knew the interviewee and her concerns as dealt with in thebroadcast. The appellant relies on the Authority's earlier decision in Moore v TVWorks in which the Authority declined to uphold a privacy complaint in relation to awoman who had been a hostage in an armed robbery at her workplace.25 In that casethe Authority found that the Complainant's appearance had been sufficiently maskedand that she would not be identifiable to anyone beyond those who already knew her,and were aware of the incident.[52] I do not accept TVNZ's submission. The Authority's finding that theinterviewee could be identified in this way was reasoned, reasonable and available toit on the evidence. Nine features of the interviewee's identity could be seen in thebroadcast.26 The broadcast included a detailed description of the thinly populated areawhere she lived.[53] There was nothing in the evidence before the Authority to contradict theAuthority's findings. In fact, there is nothing in the further evidence on this issuebeyond the deponents' statements that they disagree with the Authority. I agree withMr Pilditch's submission that TVNZ's submissions are largely directed at offering analternative interpretation of the evidence, rather than identifying how the Decision isplainly wrong.[54] For these reasons I dismiss TVNZ's appeal in so far as it relates to the firstissue concerning identification.Issues 2-4: Reasonable expectation of privacy – highly offensive disclosure – defenceof informed consent[55] In relation to the other issues, TVNZ's submissions rely heavily on the furtherevidence. In an attempt to bring its submissions within the principles that apply toappeals from the exercise of a discretion, TVNZ submits that the Authority failed totake further evidence into account, and that as a result its decision is plainly wrong.In making that submission TVNZ acknowledges, as it must, that the Authority did nottake TVNZ's evidence into account because TVNZ had not place that evidence beforethe Authority.25 Moore v TV Works Limited (BSA Decision 2009-036, 8 July 2009), referred to in the Privacy Guidein the Code Book at 61.26 Decision, above n 1, at [2] and [14].[56] It is hardly a failure by the Authority not to consider evidence it did not have.TVNZ's submission illustrates the difficulties that arise when an appeal Court receivesfurther evidence. The appeal Court becomes a first instance decision maker in respectof that evidence. These difficulties are particularly acute in the context of an appealfrom the exercise of a discretion by a specialist body.[57] But for the further evidence, I would also dismiss the balance of TVNZ'sappeal. The Authority's findings were reasoned, reasonable and available on theevidence before it. In my view it was open to the Authority to find on the evidencebefore it that the interviewee had a reasonable expectation of privacy; that disclosureof her identity would have been highly offensive to an objective reasonable person inthe interviewee's position; and that she had not given her informed consent to any suchdisclosure.[58] Mr Pilditch submits that even taking the further evidence into account there aregood grounds upon which I might dismiss the appeal. That may or may not be so. Iwill not express a view on that because I consider it is appropriate that the Authorityconsider the second, third and fourth issues in light of the further evidence TVNZ hasfiled on appeal.[59] In Telecom Corporation of New Zealand Limited v Commerce Commission theCourt of Appeal declined to grant leave to Telecom to appeal the High Court'sdiscretionary decision not to allow Telecom to adduce further evidence in an appealfrom a decision of the Commerce Commission.27 The Court of Appeal observed that:28But in exercising these powers [i.e. to allow further evidence] the Court mustbe alert against the danger of allowing what the Legislature intends to be agenuine appeal against a decision of an expert body – and a decision reached,it may be added, after a somewhat distinctive procedure of investigation, draftdetermination, and conference – to be converted into a new trial, the priorproceedings being but a prelude or, as some counsel put it in argument, adummy run. This consideration must weigh strongly against the allowance ofany evidence which is little more than an improvement on, or a revised versionof, material that was before the Commission.27 Telecom Corporation of New Zealand v Commerce Commission (1991) 3 PRNZ 259.28 At 260.[60] This observation was made in the context of an application to adduce furtherevidence. I consider the reasoning applies equally to my assessment of how best todeal with further evidence that has been admitted. The Court (on appeal] is beingasked to make a first instance decision in relation to the further evidence. But theCourt does not have the benefit of the Authority's specialist view; and the unsuccessfulparty will have no right of appeal. That is undesirable in both respects, and even moreso in combination.[61] I also note that the Authority considered the most appropriate and effectiveremedy to be publication of its Decision, which it said would "provide guidance toTVNZ and all broadcasters" on the important issues that arise.29 This reinforces myview that it is appropriate for the Authority to consider the further evidence - includingMr Fitzgerald's evidence that to uphold the complaint will have a "chilling effect" onnews gathering, not just for TVNZ but across the news industry. It appears that TVNZdid not make that submission to the Authority previously.[62] At the risk of labouring the point, I emphasise that by directing the Authorityto reconsider these issues in light of the further evidence, I am neither allowing theappeal nor expressing any view as to what the outcome of the Authority'sreconsideration might be. The directions simply reflect my view that the specialistAuthority should consider the further evidence before this Court does so on anyappeal. I also consider that the Authority should receive a copy of Mr Pilditch'swritten submissions. These dealt in part with the further evidence in the context of theissues that the Authority is to reconsider. It is of course for the Authority to decidewhat it makes of those submissions.[63] Finally, without wishing to revisit Powell J's decision to grant TVNZ leave toadduce that evidence,30 it is unclear to me why TVNZ did not provide the furtherevidence (or equivalent statements) to the Authority during the complaint process. Iaccept that it may not be appropriate in the context of many (perhaps most) complaintsto file affidavits. But here the Authority asked TVNZ to provide evidence of informed29 Decision, above, n 1, at [44].30 I note that when he made that decision Powell J had neither the Common Bundle nor the benefitof submissions from counsel to assist.consent and indicated flexibility as to timing for TVNZ to do so. TVNZ passed on avery brief summary of comments from Mr Boswell. Subsequently, in response to theAuthority's provisional decision to uphold the complaint, TVNZ took steps to obtainthe handwritten note (but not the more detailed statement/affidavit) from theinterviewee. The Authority then took that note into account in reaching its finalDecision. All this is consistent with the Authority's obligation pursuant to s 10 of theAct to implement an informal but thorough complaint process that is consistent withthe principles of natural justice. That process may differ depending on the particularcircumstances of each complaint. The complaint process should always providebroadcasters such as TVNZ with the opportunity to provide the Authority with theevidence and submissions upon which it would rely to respond to a complaint. Factualmatters should not be left to be raised for the first time on appeal.Result[64] In so far as the appeal concerns the issue of whether the broadcast identifiedthe interviewee, the appeal is dismissed.[65] Pursuant to High Court Rule 20.19(1)(b)(ii), and for the reasons set out above,I direct the Authority to reconsider the following questions in light of the furtherevidence that TVNZ has filed in this appeal:(a) Whether the broadcast disclosed information about which theinterviewee had a reasonable expectation of privacy.(b) Whether the disclosure would be highly offensive to an objectivereasonable person in the position of the interviewee.(c) Whether the defence of informed consent was available to TVNZ.[66] Counsel for the Authority is to ensure it has received a copy of the writtensubmissions Mr Pilditch filed in this proceeding.[67] An order is made preventing the publication of any information likely to leadto the identification of the interviewee without leave of the Court, in particularprecluding any person seeking access to the Court file having access to the affidavitor other information such as minutes that may identify the interviewee.Costs[68] Mr Pilditch suggests there may be grounds upon which the Court should directTVNZ to contribute to costs. He is to file a memorandum in that regard within 15working days of the date of this Judgment. TVNZ is to file any memoranda within afurther 10 working days. I will deal with that issue on the papers.__________________Robinson J