Dialogue:Steven Price

Umpires might find TVNZ's appeal against the odds


Most lawyers, I think it's fair to say, belong to the John Bracewell school of appeals.

Hey, it hit the pads, didn't it? Worth a shout.

Of course, when commercial reputations and millions of dollars are on the line, they are even more inclined to say "howzat?" to a judge.

So perhaps it's not surprising that Television New Zealand has appealed against the arbitration award ordering it to pay John Hawkesby's company more than $5.5 million (not including costs).

But this appeal looks to be of the polite inquiry variety rather than a hot-blooded, full-throated, leap-in-the-air demand.

Now, I haven't seen most of the contract between TVNZ and Hawkesby's company, and I don't know the detail of TVNZ's arguments. But I do know that courts are very reluctant to overturn arbitral decisions. And this one was written by Sir David Tompkins QC, a highly regarded former High Court judge.

"It's not easy to upset an award," says Phillip Green, a barrister who specialises in arbitration. "The general policy of the courts is to protect the integrity of the arbitral process."

That's because parties usually turn to arbitration to avoid the expense, publicity and delays that often go with litigation. They effectively pick their own judge and have the flexibility to control the argument process themselves. If it was easy for anyone disgruntled with an arbitration award to rush off to court and argue it out again, the whole point of arbitration would be frustrated.

Besides, the issues in the award were fairly straightforward. The contract said Hawkesby could be sacked for "serious or gross incompetence ... which has materially affected or has the potential to materially affect the business of TVNZ." Despite the three-point ratings dip and the extraordinary evidence of TV One's general manager, Shaun Brown, that Hawkesby performed 80 per cent below expectation, Sir David found Hawkesby's on-air performance was not "seriously incompetent."

But he came breathtakingly close to awarding the decision to TVNZ anyway, finding that Hawkesby's off-air performance was seriously incompetent. Hawkesby couldn't get to grips with the computer system, didn't contribute to editorial meetings and was difficult to work with, he found.

"If that situation continued to last for a long time, the quality of the news may have been affected," he wrote, "which, in turn, could cause a drop in the ratings and thereby affect TVNZ's business."

In the end, though, he concluded that Hawkesby's difficulties were due to stress and depression triggered by the public reaction to the dumping of Richard Long, and Hawkesby would have recovered within weeks.

If it was so close, you might be wondering, why the enormous damages award?

Actually, that bit isn't legally very controversial at all. TVNZ generously agreed in the contract to pay Hawkesby out in full if it fired him wrongfully.

Strangely, the arbitration agreement allowed both sides to appeal on questions of law to the High Court, otherwise TVNZ might have faced problems even persuading the court to hear its case.

Now, most lawyers could find an arguable point of law in a Little Golden Book, but it seems to me that TVNZ had to stretch to find legal screw-ups in Sir David's closely reasoned arbitration award, in which he actually accepted most of TVNZ's legal submissions about the correct interpretation of the contract.

Mostly, TVNZ is claiming Sir David failed to give due weight to the evidence that favoured TVNZ, an argument courts are notoriously loathe to accept.

Looks like a tough sell.

What about this "enticement" business? TV3 says it will sue TVNZ for luring Hawkesby away. Will it win? After all, as far back as 1853, the Queen's Theatre successfully sued a rival opera company for head-hunting Richard Wagner's niece, who had been signed up for the season.

TV3 will have to prove TVNZ knew about Hawkesby's contract and actively encouraged him to break it. Given that Hawkesby had stitched together a deal with TVNZ the day before he resigned at TV3, that shouldn't present much of a problem for TV3. Except for one thing. Hawkesby reckons TV3 had itself welshed on his contract earlier that month by adding a co-presenter.

If he's right, TVNZ may be off the hook, too. Some judges have said you can't induce people to breach their contracts if they are entitled to back out anyway.

But TV3 says Hawkesby's contract simply described him as "principle newsreader," so its management was free to add a co-presenter. Therefore, TVNZ induced him to break a valid contract.

This one may trouble the umpires a little more.


sxprice@hotmail.com