Refusal to publish advertisement

House of David Healing Centre Trust & Coxhead v Fairfax NZ Limited

A newspaper which declined to publish a religious advertisement was sued for $5 million in damages for breach of contract. The Court of Appeal had to consider the merits of the claims.

The appellants, House of David Healing Centre Trust and Mr Coxhead, sought to have the Sunday Star Times, a Fairfax publication, publish as a full-page advertisement a lengthy piece of religious writing setting out, in seven parts, a new "Covenant for Mankind".

Fairfax decided not to publish this particular advertisement, reasoning that it was lengthy, unsuitable, poorly written and likely to be considered offensive by some readers of the newspaper. Unfortunately, the text of the proposed advertisement is not reproduced in the Court of Appeal's judgment so we are not able to judge its literary merits for ourselves.

Fairfax's usual terms and conditions for advertising provided that they could refuse to publish advertisements without the need explain their refusal. After the decision not to publish had been made all copies of the advertisement were returned to Mr Coxhead. He issued proceedings for breach of contract, claiming to have suffered extreme mental stress as a result of the breach and seeking $5 million in damages.

In the High Court Fairfax applied for summary judgment on the basis of their standard terms, or alternatively for an order striking out the claim. In response, the appellants raised various statutory provisions under the Contractual Remedies Act, the Copyright Act, the Human Rights Act, the Privacy Act, the Consumer Guarantees Act, the New Zealand Bill of Rights Act, and the Crimes Act. Notwithstanding the many and varied statutes relied upon by the appellants in support of their claim, the High Court struck out the proceeding as disclosing no reasonable cause of action.

The appellants took their case to the Court of Appeal. The Court of Appeal concluded that the newspaper's standard terms and conditions precluded any claim in contract; that on the facts there was no copyright claim based on alleged conversion of copies of the proposed advertisement; that no offence of dishonesty was committed under the Crimes Act; that there was no misrepresentation to trigger the Contractual Remedies Act and no "service" to trigger the Consumer Guarantees Act; that the Privacy Act did not apply to the circumstances of this claim; that the New Zealand Bill of Rights Act does not apply to an entirely private regime which had no public function, power or duty conferred on it; and that there was no evidence to support any discrimination under the Human Rights Act.

The Court of Appeal concluded that the High Court had been correct to strike out the proceeding; describing it as "misconceived".

While the nature and conduct of this particular case was clearly unusual, the result is nevertheless comforting for publishers, who need to consider, from time to time, their ability to refuse to publish various unusual kinds of material.

Enquiries and information

For more information please contact Alan Ringwood, Partner.