JOHN WALSH AND KILKELLY DEVELOPMENTS AGAINST THE DOMINION POST
The Dominion Post on 10 August 2002 published an article headlined “Agreement reached on link road”. Above the article was a large photograph (in relation to the length of article) of a somewhat disconsolate-looking woman gazing directly at the camera through thick wire netting behind which an apparently unused formed roadway winds off into the distance. The essence of the article was that as a result of an agreement reached between the complainant Walsh, and the Wellington City Council as local authority, a link road was to be opened allowing, it said, 600 households to the east of No1 State Highway motorway a second access route to the motorway. Behind the agreement revealed by the article is a quite complex set of circumstances stretching over many years and many local body hearings about several subdivisions in the area of Tawa, a suburb to the north of Wellington.The Council upheld the complaint.
The by-lined article centred on an interview with the person pictured in the photograph concerning the history of the roadway and the inconvenience encountered through the inability of residents to have had access in the past. In the course of the interview it was stated “the access problem would be a recipe for disaster if there were an earthquake or other emergency”. The developer of the subdivision was named as John Walsh through his company Kilkelly Developments. The interviewee said residents had bought into the area after assurances that the link road would be put through. It was not stated who gave the assurances but it was implied the developer was responsible. It was further stated that Mr. Walsh had been in dispute with the Wellington City Council about the width of a link road and that progress was halted when Mr Walsh appealed to the Environmental Court against conditions the council had imposed. An enquiry of the court revealed an agreement had been reached and this was recorded in the article. The tone of the article was to hold Mr Walsh as developer responsible for the roadway and the delay. There was no response contained within the article from the developer, but this will be dealt with hereafter.
Mr Walsh instructed his lawyers to lay a complaint with the Press Council on the grounds that the article lacked accuracy, fairness and balance and a failure to correct promptly the errors made. An important aspect of the complaint as it unfolded was the failure of the reporter to consult with Mr. Walsh before publication. There was a dispute of fact on this issue, which will be dealt with hereafter.
On investigation it turns out that the true position in regard to the link road is materially different from the contents of the article. One matter may be disposed of immediately and that is Kilkelly Developments Ltd has had nothing to do with the overall subdivisions which have been carried out by Mr Walsh and his wife.
Over the past 9 or so years the complainant has carried out subdivisions in stages in the area. As stated there were reasonably complex issues involved but for the purposes of this adjudication they need not be explored in detail. Mr Walsh’s lawyers laid the complaint and the newspaper instructed its own lawyers and negotiations on behalf of their respective clients took place.
The Council deals first with the issue of attempts to communicate with Mr Walsh before publication. It is an accepted fact no communication was established and the article was published without the opportunity being given to Mr Walsh to answer the inaccuracies and fairly trenchant criticisms levelled at him. The newspaper says the reporter made several attempts over 3 days but was thwarted by an answer-phone message which said the mailbox was full and could not accept messages. Mr Walsh
points out that his name telephone number and fax number are in the book and over the period prior to publication he was available.
The Council is unable to resolve the factual dispute at this stage. However it makes these observations. The newspaper was preparing to publish an article that was critical of Mr Walsh and the principal source of the information apparently was the resident who could not have been expected to be able to supply reliable information about the history of the several stages of sub-divisional developments. Obviously she was recounting local talk. Apparently no effort was made to verify the criticisms from an independent source. It was a story that called loudly for independent verification, and for the developer’s input. Furthermore it was not such an article that carried any particular urgency to get the matter before the public. The newspaper does not claim it followed any other course than the said telephone calls to establish communication with the developer. On this issue the Council criticises the newspaper for not making more determined efforts to get Mr Walsh’s answers before publication.
To return to the substance of the complaint. There are 3 main issues about which the complainant argues he was wrongly treated by the article which are:
1. The central point of the article that it had been the developer’s responsibility to provide the link road in the first place and by not doing so he had put many residents at risk.
2. It had been Mr Walsh who had held up the opening of the road in order to settle his own problems over conditions he had been asked to meet and that he had caused further delay by appeals to the Environment Court.
3. The giving of assurances of such a link road to would-be purchasers at the time of sale of the sections.
Mr Walsh and his lawyer appeared and supported the vehement denials contained in the submitted papers. They also presented further oral submissions. The newspaper was invited to appear but declined.
The first point that emerged at the hearing was that the photograph (described above) had virtually nothing to do with the link road between Woodman Drive and Bing Lucas Drive. The strong inference of the photograph together with the article was that the wire netting prevented access to an already formed roadway. It was wrong to describe the roadway behind the woman in the photograph as a “Road to nowhere” as it is the main road servicing stages 2,3 & 4 of the subdivision. The photograph was of a gate at a completely different location south on Bing Lucas Drive and Mr Walsh said it had been erected to prevent derelict vehicles from being dumped on the land.
At all times the papers supplied to the Press Council by the complainant showed that Mr Walsh never had any obligation to form the link road as the Council had accepted it was their liability so to do. However in the course of negotiations over a further subdivision (stage 4 that was not connected with the link road subdivisions) Mr Walsh reached a conditional agreement on 1 August 2002 that he would commence and complete the link road. It is important to note the conditional agreement was reached only 9 days before the published article and it has yet to be finalised. Obviously the link road has not been constructed.
The newspaper’s position, after being placed in possession of the material supplied by the complainant and his lawyer, is not to hold steadfastly to the allegations contained in the article and to concede that “some aspects of the details in the article … are inaccurate – albeit that they are not defamatory”. However the newspaper does claim that some of the inferences from the article claimed by the complainant do not exist.
The negotiations between the lawyers reached a deadlock, which centres around how best to meet the complaints of Mr Walsh by correcting publicly the aspersions he said the article cast on him. The complainant’s lawyers advanced a fairly strict and detailed set of conditions for publication by the newspaper. The position of the complainant is that the newspaper is wrong and should not itself decide the way corrections would be dealt with.
The newspaper refuses to be dictated to in this way by the complainant and instead offered to have another senior reporter interview Mr Walsh when he could answer the allegations. Alternatively the newspaper would publish a longer letter than usual from the complainant about the article. In short the newspaper wants to retain control of the contents of the corrections that it acknowledges are required.
The dispute comes before the Council without the parties, or their lawyers, really confronting the issues, which are in dispute because they have created for themselves a stand-off about how the remedy is to be achieved. At this point it is now going on for 6 months since publication of the disputed article and the public might be confused about a sudden reappearance of a dispute about the article on the link road.
The Council does uphold the complaint on the grounds that the article was inaccurate on many material points, but especially that Mr. Walsh had failed in his obligations.
It follows that the other grounds numbered 2 and 3 are also upheld.