DAVE HENDERSON AGAINST NATIONAL BUSINESS REVIEW
Case Number: 3106
Council Meeting: DECEMBER 2021
Decision: Not Upheld
Publication: National Business Review
Ruling Categories:
Accuracy
Balance, Lack Of
Columnists Opinion
Misleading
Unfair Coverage
Overview
1. A complaint by Dave Henderson about an article published in the National Business Review on September 10, 2021, headlined A suspended accountant and a conspiracy theory. He said the story implied that he conspired to get at a company liquidator, that he was not given an opportunity to respond to quotes attributed to him and that the NBR had no interest in correcting the story. The complaint was not upheld.
Background
2. The article was an opinion piece by NBR co-editor Tim Hunter which criticised the decision of the Institute of Chartered Accountants Disciplinary Tribunal to suspend liquidator Robert Walker’s membership of the institute – effectively ending his ability to practice.
3. As a liquidator Mr Walker had led a lawsuit against the accountancy firm PwC alleging breach of contract and negligence in its audit of failed property development firm Property Ventures. The claim was settled out of court in 2017 with PwC, or its insurers paying out more than $30 million to the Property Ventures liquidation.
4. The article added that the former managing director of Property Ventures, Dave Henderson, battled the liquidator all the way and filed a complaint against him with the Institute in April 2019. It noted that as a condition of his bankruptcy in 2016 Mr Henderson was banned from directly or indirectly managing a business or serving as a company director or being employed by any entity managed by a relative until December 2022. It also noted an Appeal Court ruling on Mr Henderson’s unsuccessful appeal against the discharge conditions noted his 37 convictions for taxation-related offences.
5. The Institute suspended Mr Walker in August this year “to protect the interests of the public, the reputation of the institute and the integrity of the profession.”
6. The Institute added it was “also satisfied that such an order ought to be made at this stage, having regard to the member’s failure to cooperate in the investigation of the complaint against him, his ongoing mental health issues and the nature and tone of his recent communications to the Institute and others.
7. The writer of the article commented “In short, a liquidator who successfully challenged the competence of a big four accountancy firm has been suspended by the Institute of Chartered Accountants following a complaint by a banned director and convicted tax offender.
8. “When you put it like that you have to wonder whose interests the Institute is trying to protect.”
9. The article described Mr Walker as one of the more eccentric and able accountants, but it would be fair to say he suffered a severe mental breakdown last year, the effects of which are continuing.
10. “The burden of the Property Ventures liquidation, in train since 2012, and its associated litigation with PwC and Mr Henderson, among others, has no doubt contributed to Walker’s mental ill health.”
11. The article then went on to examine one facet of “the sprawling mess left behind by Property Ventures” – its subsidiary Lichfield Ventures, a company that was put into liquidation by IRD. Through a sequence of transactions its property and the benefits of an insurance payment were sold to a company called 100 Investments, whose beneficial owners are hidden by trusts. The sole director of 100 Investments Rodney Hide, is a long-time friend of Mr Henderson.
12. The article said it appeared the assets were sold at less than half their value and asked the question “was there some underlying scheme to help Henderson recover assets?”
13. It said that according to Mr Walker others should have benefited from those assets but didn’t.
14. The writer asked whether the Institute had unwittingly helped to shut down a dogged investigator and added that one day it should investigate Walker’s complaints, not just Henderson’s.
The Complaint
15. Mr Henderson complained that the article implied that he, the Institute and PwC all conspired to get at Mr Walker. He said had no communications for many years with anyone from PwC and certainly no communications to PwC about his complaint to the institute. The only communication with the institute was his complaint and providing them with information relating to that complaint.
16. The Disciplinary Tribunal’s decision to suspend Mr Walker did not turn on his complaint but on the behaviour visited on them by Mr Walker. None of this was mentioned in the article.
17. There were other issues with the story for which he sought corrections, in particular the use of quotes attributed to him which “make claims, that, on their face, amount to me claiming I would break the law.”
18. It was a central complaint that Mr Hunter never gave him an opportunity to respond to the claims regarding those statement.
19. Mr Henderson said the story implicitly attacked him and explicitly promoted Mr Walker by omission of key and highly pertinent facts.
20. He then laid out a long listed of allegations against Mr Walker and claimed NBR’s “bias and obsession with me are unacceptable.”
21. He said he was sorry Mr Hunter was so determined to protect his friend and that he would take a complaint to the Media Council if NBR were unwilling to redress his concerns regarding the story.
The Response
22. Mr Hunter said a great deal of information had to be left out of the article. Otherwise, it would have been unfeasibly long, “but I take issue with your suggestion that I have somehow skewed the narrative.”
23. “The facts explicitly discussed in the article are a tiny fraction of the information that went into my analysis and you are wrong to assume that I have not considered all the issues you raise “
24. He said “I have no obsession with you. Today’s article was not about you. It was about Robert Walker and the Institute’s disciplinary procedures. “
25. “If I have made any errors I will obviously correct the, and I am happy to do so. But as you have your views, I have mine.”
Further Correspondence
26. In another letter Mr Henderson said the article’s accounts of the Lichfield Ventures’ transactions was false and published solely to caste a bad light on him and said this was part of “your mad conspiracy thesis.”
27. “NBR has signed up to a code of ethics. This includes a commitment in every story to demonstrate accuracy, fairness and balance. This includes an obligation to not mislead through omission.
28. In his letter to the Media Council Mr Hunter said he was at a loss to understand how there could be any grounds for complaint.
29. “This piece was a column, it is entirely factually accurate and presents a point of view based on the facts, as I am entitled to do.”
30. As to Mr Henderson’s letter saying the column implied there was a conspiracy to get Robert Walker, the column stated, “The idea of such a plot seems far-fetched.”
31. As for the claim that he should have put to Mr Henderson quotes attributed to him, Mr Hunter said the column did not include quotes from Mr Henderson. It quoted legal files notes containing one reference to a contact with Mr Henderson. It was hard to see how anyone’s recollection of conversations from 10 years earlier would be more accurate than a contemporary document drafted by a lawyer, but the article said the note was ambiguous, open to interpretation and could be merely a reference to advice on the law and no indication of intent.
32. The article made no attempt to make more of those documents than was merited and required no correction.
33. He said Mr Henderson’s emails contained several false or misleading statements.
34. Mr Hunter said that judges involved in the copious litigation between Henderson and Walker over the years had commented the relationship between the two was extremely acrimonious and every assertion by either party was inevitably subject to some rebuttal by the other, ‘hence my decision to avoid going down the rabbit hole of their tortuous claims.”
35. Mr Hunter said the article was not about Mr Henderson. It was about the background to a highly unusual professional disciplinary procedure.
Final comment
36. In his final comment to the Media Council Mr Henderson said Mr Hunter should have been fair and balanced in allowing him the opportunity to respond to a lawyer’s file notes mentioned in the article.
37. He also denied making any false claims as Mr Hunter asserted.
38. In a closing comment to the Media Council he said: “I accept entirely that it is Mr Hunter’s prerogative what he chooses to publish, but I consider that so long as he is committed to the standards of the Media Council he has an obligation, amongst other things, to allow me a response to a story that transparently has one of its objectives the aim of discrediting me.”
The Discussion
39. This article in the NBR was a strong commentary on a decision to bar a liquidator from continuing in his practice. It is a matter of significant public interest, particularly to the business community in which Mr Henderson has a long history and in which he and the liquidator clashed.
40. Mr Henderson’s complaint to the Media Council said the article was aimed at discrediting him.
41. His case was based primarily on a list of claims relating to the liquidator. The Council has set aside those claims for the following reasons. The liquidator was not a party to this complaint, many of the claims were untested assertions and it was not clear how they related directly to the issues the Council must consider; that is whether NBR breached any of the Media Council’s principles.
42. The Council notes Mr Henderson mentioned Principle 1 (accuracy, fairness and balance) and correctly noted its key points. This principle, which generally applies to news articles and features - rather than columns and opinion pieces - states that: Publications should be bound at all times by accuracy, fairness and balance and should not deliberately mislead or misinform readers by commission or omission.
43. However, as this article was a column or commentary the most relevant principle is No 5 (columns, blogs, opinions and letters) which requires opinion pieces to be clearly identified as such or widely understood to consist largely of the writer’s own opinions. The requirement is for such opinions to have a foundation of fact, but balance is not essential.
44. Mr Henderson complaint did not detail any inaccuracies or offer evidence that the facts set out were wrong. Mr Henderson said the article attacked him by omitting key and highly pertinent facts but to the Media Council these “facts” appeared to be a series of unproven claims and assertions against the liquidator, Mr Walker.
45. Although Mr Henderson said the article’s brief account of Lichfield Ventures’ transactions was false and a fabrication, he did not offer evidence to the Media Council to show how it was wrong. It is also notable that he did not respond to Mr Hunter’s offer to correct any errors.
46. The Media Council considered Mr Henderson’s point that Mr Hunter should have been fair and balanced in allowing him the chance to respond to lawyer’s file notes attributed to him. As this was an opinion piece there was no requirement to be balanced as there would have been if this was a news article or feature. We take Mr Hunter’s point that it was hard to see how anyone’s recollections of conversations 10 years earlier could be more accurate than a contemporary document drafted by a lawyer. We also note Mr Henderson has not offered information to challenge the veracity of the notes.
47. However, the Council also accepts Mr Henderson’s point that the NBR is making serious claims about him in a column that is very selective in the facts it chooses to use. While it is not enough for us to uphold a complaint against an opinion piece and the right for a publication to express robust views, the NBR’s single source implication the Mr Henderson may have breached the terms of his bankruptcy certainly flirts with unfairness.
48. Mr Henderson though does acknowledge this was an opinion piece in which Mr Hunter was allowed to express his views when he said in his final comment to the Media Council that “I accept entirely that it is Mr Hunter’s prerogative what he chooses to publish.”
49. This can be read as a concession that he has no basis for complaint. In the absence of evidence that the column had no foundation in fact, the Media Council concurs.
50. A final point raised in Mr Henderson’s last email to the Council was his suggestion Mr Hunter had an obligation to allow him a response to the story.
51. He did not raise that point three months earlier, when he first complained to NBR. Nor was it asked for or offered in any of the subsequent emails between Mr Henderson and Mr Hunter. It was only raised belatedly in Mr Henderson’s final comment to the Media Council. This is not a matter the Media Council needs to be involved in. However, Mr Henderson is free to discuss this directly with the NBR if he wishes.
For the reasons set out above the complaint is not upheld.
Media Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Sandy Gill, Jonathan MacKenzie, Hank Schouten, Marie Shroff and Tim Watkin.