DAVID HINGSTON AGAINST STUFF
Case Number: 3452
Council Meeting: OCTOBER 2023
Decision: Upheld
Publication: Stuff
Principle:
Accuracy, Fairness and Balance
Comment and Fact
Corrections
Ruling Categories:
Court Reporting
Defamation/Damaging To Reputation
Errors
Unfair Coverage
Overview
- This is a complaint against a Stuff article of 18 April 2023 reporting on a Wellington doctor’s property dispute with his father. The dispute had found its way to court. The complaint is upheld on the basis of lack of balance, inaccuracy and unfairness.
The Article
- The article in question was published on 18 April 2023 under the heading “Wellington Doctor’s Property Dispute with Dad Drags on More Than a Decade”. The article briefly traces the history of a decade long property dispute between a father (“Keith”) and his doctor son (“David”). Keith at the start of the relevant period had been living with his second wife who was not the mother of David, but that relationship had collapsed. Keith faced the prospect of losing his home to meet the relationship property settlement of his second wife. In order to achieve that while allowing Keith to stay living in his home, in a complex arrangement Keith transferred the property to a Trust of which David, his wife and child were beneficiaries, and in return received sufficient cash arranged by David to pay out his second wife. Keith also transferred some other assets to the trust as part of the arrangement.
- The arrangement had involved the first wife, David’s mother, going back to live with Keith. However, this did not work out and another third woman moved in with Keith, and David’s mother left. It was then that Keith and David fell out and ultimately Keith took Court action against David and the Trust to set aside the arrangement, with the Trust in turn counterclaiming against Keith. The case was heard in the High Court and on 23 December 2021 judgment was given in favour of Keith, the judge finding that the transfers of Keith’s property to the trust were a result of undue influence by David. The trust was held liable for breach of contract in relation to the agreement with Keith.
- These events had been reported by Stuff in an article published on 9 February 2022 headed “Father and Son in Bitter Dispute over Tauranga House”. There was no complaint about this first article which recorded Keith’s successful undue influence claim.
- David appealed the High Court decision to the Court of Appeal. In a decision dated 22 November 2022 the appeal was upheld, and the High Court decision reversed. Keith had to leave the home. The case was sent back to the High Court for the consideration of the Trust’s counterclaim against Keith, (which has since been heard and which was not successful).
- In second article of 18 April 2023 some 6 months after the Court of Appeal decision, (which is the subject of this complaint by David), the story was again picked up. This article was headed: “Wellington doctor’s property dispute with dad drags on more than a decade.” The background was set out over the preliminary paragraphs. It was reported that when David’s mother had left the home and Keith was cohabitating with another woman, there was a period of “some bizarre behaviour on David’s part, including once hiding in a cupboard of the house while the couple were absent and jumping out at them when they returned”. It is reported in the article that the Court of Appeal said this. It is also reported in a way that would lead a reader to assume that the Court in question was the Court of Appeal “he also stayed at the house and videoed the couple going about their daily lives, the Court said”.
- It is then reported:
Keith was supposed to have a right to occupy the house for life, but he lasted about 16 months under the agreements.
He was in his mid-70s when his son took steps to evict him, apparently because the woman was living at the house with Keith without the permission of the trust. A High Court judge found the presence of Keith’s companion from April 2010 did not breach the terms of the agreement, and she wasn’t obliged to pay rent.
Early in 2011 David served eviction notices on his father and the woman. Keith arrived home to find the locks changed and two security guards posted outside the house. Police helped him get back into the house.
- There is then a summary of the court proceedings in the article:
In 2012 Keith took court action against his son and the trust, and a counterclaim was also made. In December 2021 Justice Cheryl Gwyn found the 2009 agreement was the result of David’s undue influence on Keith; and the trust was liable for breach of contract in relation to the agreement to occupy. At the parties’ request that first decision did not deal with what the consequences should be for the trust breaching the agreement to occupy.
David and the trust appealed against the decision and the undue influence part of the earlier decision was overturned.
The Court of Appeal sent the case back to the High Court for a decision on the counterclaim of David and the trust. In a recent decision Justice Gwyn dismissed the counter claim.
- It was then reported that the Tauranga house had been sold.
The Complaint
- There has been a protracted correspondence in relation to this complaint, both with Stuff and more latterly with the Media Council.
- .In his initial complaint to Stuff, David put forward a number of grounds. He complained that Stuff, having alerted the public to the dispute in its original 2022 article and the adverse High Court decision, failed to report the Court of Appeal decision which was in David’s favour in the months that followed its release on 22 November 2022. He considered this failure to not report his success in a timely manner “an utter failure to report the matter with balance”.
- He also complained that certain persons who were also involved in the disputes were not named, with the focus of the article being purely on him as the party representing the trust. David considered it to have been unbalanced to have picked on him.
- He also complained that the original 2022 article should have had an updating link to show the court milestones, presumably the successful appeal to the Court of Appeal.
- In later correspondence David also complained that there was a factual error in the 18 April 2023 article. The Court of Appeal did not determine that there had indeed been an instance where he hid in a cupboard and jumped out and at other times took a video recording. The High Court had recorded that, but it was not the finding of the Court of Appeal. Thus, it can be said that the complaint is focussed on lack of balance and fairness, and inaccuracy.
The Response
- The responses from Stuff do not specifically address the lack of balance issue. It is said that the editor has spoken to the court reporter and as a result there would be a clarification of the story making a distinction between the earlier High Court judgment and that of the Court of Appeal. The assertion that other trustees should have been also named was refuted, as those other persons were not prominent in the judgment. It was accepted that the article had inadvertently attributed the statement about hiding in the cupboard and videoing to the Court of Appeal, whereas it was a statement of the High Court. The story has now been corrected to reflect this, but only after some months.
- In terms of updating the first 2022 story, Stuff says that each story stands alone which is standard industry practice. A basic search of the key words puts the most recent version recording David’s success at the top of the list chronologically. In response to this the David says that searchers use a variety of search tools and search phrases which will not be guaranteed to produce the later article, and he points out that Stuff ignores the fact that the second 2023 article includes a reference URL to the predecessor first article, but that is not done in reverse in relation to the 2022 article.
- Also, there was a later complaint by David that there was something manipulative in a Christchurch reporter having reported on the original High Court case and a Wellington reporter having reported on the second round in the Court of Appeal. Stuff said that it is natural for Wellington based court reporters to report on an appeal, because that is where they are geographically placed.
- In its final response the complainant also raised the fact that the High Court decision in itself was only in Keith’s favour in two respects, and the majority of other claims was in his favour.
The Discussion
- The first article reporting on the High Court decision does not warrant any criticism. And indeed, there was no complaint about that article, based as it was on the then extant judgment.
- However, an overall reading of the second 18 April 2023 article against which the complaint is directed, does give an impression sympathetic to Keith and unsympathetic to David. It highlights “some bizarre behaviour on David’s part” going into detail and attributing the statements to the Court of Appeal. It says that Keith was “supposed” to have a right to occupy the house for life but he lasted about 16 months. It refers to him being “in his mid-70s” when his son took steps to evict him because there was a woman living in the house without the trust’s permission, and him coming home to be met by security guards. It refers to the High Court judge having found the agreement to have been the result of David’s undue influence over Keith.
- There is no reference to any of the substantive remarks in the Court of Appeal decision in David’s favour, such as there could be seen to be a reasonable basis for the fixing of the value of the house when it was paid for by the Trust, and the fact that the transfer was in return for the discharge of Keith’s debts, particularly that to his second wife. Some of the assets transferred were applied to reduce Keith’s debt, and he had the full use of other assets including the home. The Trust’s wide discretion to terminate the agreement was designed to provide some protection for David’s mother, Keith’s first wife.
- It is only in the last section of the article that there is reference to the results of the specific court cases. There is reference to the High Court decision finding that the 2009 agreement was a result of David’s undue influence on Keith. It is then stated in a single sentence that David and the trust appealed against the decision and “the undue influence part of the earlier decision was overturned”, the case being sent back to the High Court to consider the counterclaim, which ultimately failed.
- In fact, David had achieved a complete victory in the Court of Appeal in relation to the claim against him. The essence of the High Court decision was that David had exercised undue influence, and the essence of the Court of Appeal decision was that was not so. There was no criticism of David’s behaviour in relation to the agreement in the Court of Appeal decision, the criticisms of the High Court being considered and not being accepted. By any analysis, David has achieved a major victory in the appeal proceedings.
- The essence of the Court of Appeal’s decision is that Keith knew what he was doing and was not subject to any immoral or unfair pressure, when he entered into the agreement. Keith had his own very good reasons accepting he arrangement, because it would give him possession of the house while he was able to pay out his second wife. If he had stayed with his first wife it he would likely have had possession of his home for the rest of his life, while being able to pay out his second wife.
- This important and complete reversal is not adequately recognised in the second article, given the reporting of the reversed decision against David a year earlier. We are of the view that the second article was unbalanced. It would have been far more fair for the theme of the article to be that undue influence allegations by Keith against David had failed. Instead the impression given was that Keith was an old man harshly dispossessed of his house by an unsympathetic son. That is not the tenor of the Court of Appeal judgment, which was the last word.
- We also accept that, (as indeed did Stuff), that it was wrong to say that the Court of Appeal had described David’s behaviour in hiding in a cupboard and jumping out on the couple and staying in the house and videoing them, when in fact it was the High Court that said this and not the Court of Appeal, which was more sympathetic to David. The Court of Appeal used more general language in covering this aspect of matters, saying at paragraph 23 that:
The judge referred to a series of events in 2010 and 2011 which are unnecessary to detail here except to note they involve some bizarre behaviour by David, primarily during visits to the property with the police being called on several occasions.
- Stuff said it would correct the inaccuracy of the attribution but took months to do so and we do not regard its efforts to correct the error as diffusing the inaccuracy. However, we regard the error in attribution of the remark as relatively minor, as we read the Court of Appeal decision as not disagreeing with the judge’s findings of fact on this point. We consider it a fair reading of the above paragraph that the Court of Appeal did regard some behaviour of David as “bizarre”. But the Court of Appeal did not focus on this and it was misleading to say that the Court of Appeal made these findings.
- Other aspects of the complaint we do not uphold. We do not accept that the other trustee or other persons should have been named in the article. The court decisions focussed almost entirely on the behaviour of Keith and David, not any other party. It would not have changed the nature of the report to have referred to other persons being involved.
- We do not see anything manipulative in the choice of reporters. Clearly the convenient and appropriately skilled reporter was chosen in relation to each of the articles, the difference in reporters appearing to turn on convenience and specialisation. Nor do we see anything in the point raised by David that the original High Court decision did not find against him on all claims. It found against him on the claim that mattered.
- Decision: The complaint is upheld on the basis of lack of balance, unfairness and inaccuracy.
Council members considering the complaint were Hon Raynor Asher (chair), Hank Schouten, Rosemary Barraclough, Scott Inglis, Jo Cribb, Alison Thom, Judi Jones.