5 B r a d l e y v Wingnut Films Ltd

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1 NZLR B r a d l e y v Wingnut Films 4 1 5

High Court Wellington29, 30 July; 11 August 1992Gallen .1

Tort—Intentional infliction o f distress—Elements of tort— Whether effect needs15 t o be more than transient—Whether physical effect necessary— Whether actions

intended to cause emotional distress and/or physical harm—Relevance o fforeseeability.

Tort—Cause o f action—Breach o f privacy— Whether recognised i n New20 Zealand—Elements o f tort—Whether disclosure o f private facts—Whether

offensive and objectionable to reasonable person of ordinary sensibility—Whetherplaintiff cast in a false light.

Tort—Malicious falsehood—Malice— Whether f i lm suggested plaint i ff 's25 involvement—Whether film produced in such a way as to cause harm and distress

to plaintiff

Tort—Trespass—Exclusive possession o f burial plot—Evidence o f trespasscontained in film—Whether film part o f the trespass.

Defamation—Evidence—Innuendo—Whether association o f plaintiff with filmsufficient to support claim o f defamation.

The defendant, Wingnut Films Ltd, was a film producer. The plaintiff, Bradley,35 was the holder of an exclusive right, in perpetuity, to burial in a plot at the Karori

Cemetery. The defendant produced a film which it described as a "comedy horror"and which was shot on various locations in and around Wellington city, includingthe Karori Cemetery; The film satirised a number of attitudes, forms of behaviour,and types of film by showing them in the extreme. The film contained a considerable

40 amount of gore and violence and was described in reviews as a "splatter film".The tombstone marking the plaintiff's burial plot appeared in the film as a

backdrop to a sequence shot at the Karori Cemetery. The tombstone was nevershown in its entirety and only appeared in the film for a total of 14 seconds. I twas not possible to read any writing on the tombstone. During the sequence, the

45 majority of the action centred on events surrounding another tombstone speciallyconstructed for the film. The only time the burial plot was directly involved waswhen one of the actors was seen to sit on the steps leading to the plot.

When the tombstone's appearance in the film was brought to their notice,the plaintiff and his wife were, in their own words, "shocked and upset" by its

50 association with the film, especially in light of its extreme and sometimes offensivenature. The plaintiff sought an injunction restraining the defendant, its servantsor agents from publishing or disseminating any film material depicting or containingimages of the tombstone. In support of his claim, the plaintiff pleaded a numberof causes of action, including intentional infliction of emotional harm and breachof privacy. In the latter it was claimed that the publication of the film amounted to

1416 H i g h Court [ 1 9 9 3 ]

public disclosure of private facts which would be highly offensive and objectionableto a reasonable person of ordinary sensibilities. Alternatively, it was argued thatthe association of the tombstone with the film cast the plaintiff in a false light,because it would be thought that he consented to the tombstone's use in the filmand received payment for his consent. Similar claims were also made in defamation 5and malicious falsehood. Two further claims were made based in negligence andtrespass. The trespass claim was based on the plaintiff's exclusive rights over theburial plot and the contention that the actor sitting on the steps to the plot wasin breach of those rights.

10Held: 1 A cause of action for intentional infliction of emotional distress requireda plaintiff to establish something more than a transient reaction of emotionaldistress, however initially severe. That reaction must translate into somethingphysical which also had a duration which was more than merely transient. Theplaintiff had also to show that the defendant had wilfully done an act calculated 15to cause physical harm to the plaintiff and to show that the shock and illness werenatural consequences of the wrongful act or default (see p 421 line 40, p 422 line 1).

Ravenscroft v Rederiaktiebolaget Transatlantic [1991] 3 All ER 73 applied.Tucker v News Media Ownership Ltd 119861 2 NZLR 716 followed.Wilkinson v Downton [189712 QB 57 and Stevenson v Basham [1922j NZLR 20

225 referred to.

2 The plaintiff had received a shock which had continuing consequences onhis mental state, outlook and general wellbeing. Because the extent to which thefilming of the tombstone could be said to have been associated with the actionsof which the plaintiff complained was minimal, it could not reasonably be saidthat it was foreseeable that the plaintiff would sustain physical damage arisingout of mental shock. Nor was there any evidence to suggest that the defendantintended in the ordinary sense of that word to cause any distress to the plaintiffor his family. The damage, even i f proven, could not be said to have beenintentional. Consequently, it could not be said that the action was directed againstthe plaintiff (see p 421 line 45, p 422 line 1, p 422 line 23, p 422 line 36).

Wilkinson v Downton [1897] 2 QB 57 and Stevenson v Basham [1922] NZLR225 referred to.

3 The tort of invasion of privacy formed part of the law of New Zealand 35but its extent should be regarded with caution. There must be public disclosureof private facts and the disclosure must be one which would be highly offensiveand objectionable to a reasonable person of ordinary sensibility. There couldscarcely be anything less private than a tombstone in a public cemetery and therewas nothing in the sequence showing the tombstone to suggest anything sinister 40or unpleasant in relation to it or to the burial plot nor anything to suggest thatthere was any connection between the action filmed and the plaintiff's tombstoneand grave plot. The publicity had not placed the plaintiff in a false light in thepublic eye. The matter made public was not something highly offensive orobjectionable to a reasonable person of ordinary sensibility. To accept that the 45second cause of action had been made out would be to extend the boundaries ofan emerging tort beyond what was safe (see p 423 line 21, p 423 line 52, p 424line 21, p 425 line 1, p 425 fine 28, p 425 line 39, p 425 line 48).

Tucker v News Media Ownership Ltd [1986] 2 NZLR 716, Bathurst CityCouncil v Saban (1985) 2 NSWLR 704; 55 LGRA 165, Sports and General Press 50Agency Ltd v "Our Dogs" Publishing Co Ltd [1917] 2 KB 125 (CA) and ReMcAllister (1990) NZAR 324 referred to. •

4 As to the cause of action in defamation, the significance of the tombstoneand grave plot in the film was not such as to give rise to the innuendos alleged,

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namely that the plaintiff consented to the use of the tombstone or approved ofthe nature of the film and/or received gain or profit from so doing (see p 426 line5, p 427 line 12).

Tolley v S Fry and Sons Ltd [19311 AC 333, Cassidy v Daily Mirror5 Newspapers Ltd [1929) 2 KB 331, Taylor v Beere [1982] 1 NZLR 81 (CA), Kirk

v A H & A W Reed (1968) NZLR 801 and Mount Cook Group Ltd v JohnstoneMotors Ltd (1990) 2 NZLR 488 referred to.

5 The cause of action based on malicious falsehood failed as there was noevidence to suggest direct malice, or to suggest that the defendant deliberatelyconducted filming in such a way as to cause harm and distress to the plaintiff.The action in the film was not such as to enable malice to be inferred. The suggestionof an involvement in the production could not be substantiated (see p 427 line19, p 427 line 41, p 427 line 50, p 428 line 9).

Kaye v Robertson [1991) FSR 62; [1990) TLR 232 (CA), Bell-Booth GroupLtd v Attorney-General [1989] 3 NZLR 148 (CA) and Balfour v Attorney-General(1991)1 NZLR 519 (CA)referred to.

6 The fact that the plaintiff was not able to rely on the other causes of actionalleged did not necessarily mean that negligence could be relied on as a sort of

20 backstop. Even i f it were possible to establish that there was a duty of care, itcould not be said that the plaintiff had established that it had been breached (seep 428 line 27).

7 To found an action for trespass there must be exclusive possession of theland concerned. The rights of the plaintiff and his family to have the perpetual

25 r ight of burial in the grave was exclusive but not such as to support an actionfor trespass. Even although the action of sitting on the steps of the tombstonemight be seen as unacceptable and perhaps susceptible to prevention by use ofthe law of trespass, i t was not such as to justify an injunction preventing thescreening of the film in which the action was recorded (see p 429 line 5, p 429

30 line 15, p 429 line 46).Reed v Madon (1989) 2 WLR 553; [1989] 2 All ER 431, Lincoln Hunt Australia

Pty L td v Willesee (1986) 4 NSWLR 457 and Emcorp Ply Ltd v AustralianBroadcasting Corporation [1988) 2 Qd R 169 distinguished.

Application for injunction declined.

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1 NZLR B r a d l e y v Wingnut Films 4 1 7

Other cases mentioned in judgmentAnns v Merton London Borough Council [1978] AC 728; [19771 2 All ER 497.McLoughlin v O'Brian (1983) 1 AC 410; [1982] 2 A l l ER 298.Marris v T113 Network Ltd (High Court, Wellington, CP 754/91, 14 October 1991,

40 N e a z o r J).Morgan v Television New Zealand Ltd (High Court, Christchurch, CP 67/90,

1 March 1990, Holland I).South Pacific Manufacturing Co Ltd v New Zealand Security Consultants &

Investigations Ltd [1992) 2 NZLR 282 (CA).45 T v Attorney-General (1988) 5 NZFLR 357.

Tucker v News Media Ownership Ltd (High Court, Wellington, CP 477/86,20 October 1986, Jeffries I).

a n proceedings50 This was an application for an injunction restraining the defendant, its servants

or agents from publishing or disseminating any part of the film "Brain Dead" orany film material depicting or containing images of the plaintiff's tombstone, inNew Zealand or elsewhere. •

Helen Cull and Alison Douglass for the plaintiff.R Allen and T Novitz for the defendant.

Cur adv vult

418 H i g h Court ( 1 9 9 3 j

GALLEN J. The plaintiff seeks an injudction restraining the defendant, itsservants or agents from publishing or disseminating in New Zealand or elsewhere,any part of the film "Brain Dead" or any film material depicting or containingimages of the plaintiff's tombstone. The plaintiff seeks other relief but for thereasons set out in the pretrial ruling, at this stage I deal only with the question 5of the injunction and do so because a decision is required before 13 August 1992.

The film concerned was produced by the defendant and was funded by theNew Zealand Film Commission Avalon Ltd and Japanese Cinema Associates. Ihave seen the film shown on a television screen in the presence of counsel andwas able to view the particular sequence in dispute twice. The film is described 1 0by its makers as a "comedy horror" film. In order to understand the plaintiff'sconcern, it is necessary to give a brief synopsis of the plot as it develops.

The hero is a young man under the domination of his mother. He forms arelationship with a Spanish girl who is employed in the local corner dairy, arelationship of which his mother disapproves. The young man and the girl visit 15the Wellington zoo and in particular the monkey cages. The mother, who issurreptitiously spying on the couple with a view to frustrating their relationship,is bitten by what is described as a "Sumatran rat monkey", as a result of whichshe degenerates both physically and mentally into a zombie and as such becomesimmortal. The son endeavours to disguise her condition and heavily sedates her, 2 0as a result of which she is declared dead. A funeral service follows and she is buriedin the Karori Cemetery. The son being aware that she is not in fact dead at all,goes to the cemetery at night in order to disinter her. As he is about to do this,he is accosted by four louts who begin to bully him. One is seen to urinate onthe grave, an action to which the son not surprisingly takes exception. During 25the course of this activity, a hand appears from the grave and pulls the lout downonto the grave where in a prone position, his body is seen to jerk up and down.

In the statement of claim the plaintiff alleges that the particular activity wasintended to represent sexual intercourse with the corpse. This was denied bywitnesses for the defendant who said that the activity was intended to represent 3 0a response by the youth concerned to being disembowelled by the zombie in thegrave. It is I think unnecessary for me to reach a definite conclusion on the natureof the activity concerned.

The priest who had conducted the funeral and burial ceremonies, hears thefracas and joins in. There is then a kung fu sequence when the priest attacks the 35louts. During the course of this, all the participants with the exception of the son,become in one way or another, bitten by one of the infected participants andthemselves immediately begin to degenerate into zombies. During the course ofthe fracas the priest is thrown through the air and impaled on a tombstone. Thehero sees it as necessary to conceal the steadily increasing band of zombies and 4 0endeavours to do so by incarcerating them all in his large Wellington home. Fromthis point on it is necessary only to refer to the general development of the plot.On each occasion some person is savaged by one of the steadily increasing bandof zombies, that person joins the group. At one stage a deformed and vicious babyis born and eventually the house contains a very large collection of persons whose 45bodies have been savaged or mangled in some way or another and whose behaviourbecomes more and more difficult to contain. Eventually the young man concerneddisposes of his unwanted guests by chopping them up into small pieces with a rotarymower. He and his girlfriend eventually, after a chase involving exit from the housethrough a chimney, succeed in escaping from the by now, monstrous mother and 5 0she and all the other zombies are consumed *hen the house is destroyed by fire.

During the course of the 103 minutes which the film lasts, a number ofattitudes, forms of behaviour and types of film are made fun of and satirised byshowing them in extreme and therefore quite unreal form. There is for examplea great deal of violence in the film that is portrayed in a way so extreme that it must

1 NZLR Bradley v Wingnut Films (Gallen J) 4 1 9

be intended no one could take it seriously. What appear to be blood and bodyparts are distributed in substantial quantities and the film has been described inreviews as a "splatter film".

The film was shot on various locations in and around Wellington city, including5 the Karori Cemetery and this was done with the permission of the Wellington City

Council, to which body a fee was paid although a reduced fee. I t is contendedthat the Wellington city authorities were not made fully aware of the nature ofthe film or what was intended. After the filming had been completed but beforethe film itself had reached final form, it received some publicity in The Dominion

10 newspaper which included a photograph of the filming at Karori Cemetery.The plaintiff is the holder of an exclusive right of burial in perpetuity to a

burial plot at the Karori Cemetery, Wellington. This right was originally acquiredby the plaintiff's grandfather who acquired it in 1911 when an uncle of the plaintiffdied tragically at the age of 20 years. The plaintiff's grandfather imported a large

15 marble tombstone which consists of a substantial plinth with a cross on top. Theplot has a marble wall around it and is reached by marble steps which lead upfrom the adjacent path. The bottom step which is on the path is concrete. Thefamily name of "Bradley" appears in large letters at the base of the plinth. Thetombstone is said to be something of a landmark in the cemetery and the sexton,

20 M r McKee, indicated that it is sufficiently prominent to be used as a direction pointwhen persons are being given directions as to finding their way around the cemetery.

The article in The Dominion included a photograph of night filming in theKarori Cemetery and to the right of the photograph, the Bradley tombstone canbe seen. It is not possible to read the name, although the letters "BRA" are visible

25 behind a person who is sitting on the wall at the side of the plot. The plaintiffdid not initially see this material but was telephoned by a member of his family,as a result of which he acquired the newspaper and immediately recognised thefamily tombstone. The plaintiff and his wife were, in their own words, shockedand upset that the family tombstone appeared to be associated with what was

30 described as a "splatter movie".The plaintiff and his family have on the evidence, been accustomed to regularly

visit the family plot at the cemetery and there are now five members of the familyburied there, including a son of the plaintiff and his wife who died at the age oftwo and a half weeks some 30 years ago.

35 T h e plaintiff on becoming aware o f the newspaper article, made anappointment to discuss the matter with the family solicitor. Before doing so,however, he and his wife visited the plot and while there claim to have beenapproached by a complete stranger and to have been told that the person concernedhad seen the tombstone on television. That man indicated to the plaintiff and his

40 wife that he had assumed the plaintiff had given permission for the tombstoneto be shown in the film and that the plaintiff had received some payment in respectof that.

At that stage, no member of the plaintiff's family had seen any part of thefilm and indeed the film was not then at a stage which could be shown. It was,

45 however, the intention of the defendant as soon as the film was in a conditionto do so, to forward it to Cannes with a view to international sale.

The plaintiff sought an interim injunction to prevent the dissemination of thefilm. That application was heard by Neazor .1 in March and the application wasdeclined. The film was then completed by the addition of the soundtrack and

50 underwent the grading process which is necessary to ensure that the various sectionshave an appropriate and matching exposure and the whole sent off to Cannes.There it enjoyed a considerable success. I was informed that the audience whichchose to watch the film being screened was very substantial in terms of audiencesat Cannes and it is likely that the film will, i f the plaintiff does not succeed, bewidely purchased and shown. I t has apparently received favourable reviewsincluding a review in Time magazine and in Metro magazine.

420 H i g h Court [ 1 9 9 3 ]

It is no part of the Court's function to criticise the film from any standpointother than to the extent that it may be considered to impinge upon the legal rightsof persons in law affected by it. The nature of the film and the approach whichit adopts are such that there will be those who will regard it in the words of theplaintiff's wife as "disgraceful" and who will see it as totally objectionable. There 5will also be those who see it as extremely funny and perhaps some who will seeit as attacking those kinds of films which it satirises. Members of the plaintiff'sfamily were able to see that in some limited respects the film could be seen ashumorous and I accept that they were also all deeply disturbed and upset by whatthey saw as a grossly offensive association with what to them is an important and 1 0Sacred family area and object.

Dr Veitch from the religious studies department at Victoria University gaveevidence for the plaintiff and indicated that there are many people from varyingreligious backgrounds who see a cemetery generally and a grave in particular asbeing a sacred place and who are vulnerable to any action which may be seen as 15desecrating such a place used for such a purpose. The religious aspects are importantfor the plaintiff and his family who are Roman Catholics and who see theconsecration of the area concerned as particularly significant. •

It is against that background that the various causes o f action must beconsidered. 2 0

The first cause of action is based on an allegation o f intentional inflictionof emotional distress. The plaintiff relies upon the formulation of the tort in thecase of Wilkinson v Downton [1897] 2 QB 57. In that case the defendant hadinformed the plaintiff that the plaintiff's husband while returning from a racemeeting, had met with an accident and had both his legs broken and he had desired 25the defendant to request the plaintiff to go to fetch him home. The story was quiteuntrue but believed by the plaintiff who suffered a violent shock which the Courtaccepted had produced serious and permanent physical consequences, at one timethreatening her reason and entailing weeks of suffering and incapacity to her aswell as expense to her husband for medical attendance. Wright I said at pp 58-59: 3 0

"The defendant has, as I assume for the moment, wilfully done an actcalculated to cause physical harm to the plaintiff—that is to say, to infringeher legal right to personal safety, and has in fact thereby caused physical harmto her. That proposition without more appears to me to state a good causeof action, there being no justification alleged for the act. This wilful injuriais in law malicious, although no malicious purpose to cause the harm whichwas caused nor any motive of spite is imputed to the defendant."That decision was followed in Stevenson v Basham [1922] NZLR 225. In that

case the appellant visited a dwelling-house and demanded possession, threatening 40the male respondent that he would burn him out. The male respondent's wife wasat the time in bed unwell but heard the words and became seriously upset, as aresult o f which she suffered a miscarriage. Herdman J followed Wilkinsonv Downton. The Judge expressed the view that whether the appellant had actednegligently o r wilfully, he was liable even i f the respondent erroneously 45misinterpreted the words used.

It is the plaintiff's case here that the action of the defendant was plainlycalculated to produce some effect of the kind which was produced so that anintention to produce it ought to be imputed, in the words of Wright J in Wilkinsonv Downton. The plaintiff says that bearing in mind the attitude of a considerable 50number of members of the public towards the sacredness of a burial plot, todeliberately associate that plot with a film of this kind and in particular with thebehaviour which was depicted as having occurred in the cemetery, was plainlycalculated to produce the distress which the plaintiff and his family haveundoubtedly suffered.

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1 NZLR B r a d l e y v Wingnut Films (Gallen .1) 4 2 1

A problem for the plaintiff clearly arises in the use of the word "associated",a word which was itself used by the plaintiff and members of his family in givingevidence. The tombstone appears on film for a total time of 14 seconds. In theparticular sequence, the central action relates to the clergyman who has been

5 impaled on another tombstone altogether. That tombstone was not genuine, havingbeen constructed for the purposes of the film.

The plaintiff's tombstone was originally described as a backdrop. I t in factnever appears in its entirety and except in one respect to which I shall come ina moment, it has no involvement in the action of the film. I t is there as a part

10 o f the cemetery and provides atmosphere, but is not directly associated with theaction at all. It is not possible to read any writing which appears on the tombstoneitself and while I accept that it would be readily identified by the plaintiff and hisfamily and perhaps others who had some association with it, most people wouldsee it as no more than part of the background to the action upon which the attention

15 o f the viewer is directed and would not I think identify it as anything other thana cemetery monument, nor even necessarily be able to identify it i f taken to thecemetery for that purpose. •

The only time during the sequence when any part of the burial plot is directlyinvolved, is at one stage when the hero is seen to sit on one of the steps leading

20 to the plot. Dr Veitch gave evidence that even sitting on the steps could be regardedas unacceptable behaviour. While I accept that that may well be the view of asignificant number of persons, it clearly enough is not the view of all. The sextonwho was called by the plaintiff indicated that he himself had sat on the steps.

Mr Allen for the defendant submitted that the nature of the reaction of which25 the plaintiff and his family gave evidence, was not such as to bring the situation

within that contemplated by those cases where the tort has been considered anddefined. He drew attention to the fact that in Stevenson v Basham the shockrequired was a violent nervous shock which produced serious physical consequences.He referred to a comment in Tucker v News Media Ownership Ltd [1986) 2 NZLR

30 716 where McGeehan i referred to "severe emotional distress provided that bodilyharm results from i t " and also he referred to certain English cases where hecontended i t is clear "something more than mere shock is a requirement inestablishing the tort". In particular he referred to the discussion in Ravenscroftv Rederiaktiebolaget Transatlantic [19911 3 Al l ER 73 at p 76 where Ward J said

35 that the word "shock" describing the immediate response to the unpleasant stimulus,short in duration and subjective in duration, was not the kind of emotional distressfor which the law gives damages. What it is necessary for the plaintiff to proveis a secondary longer-lasting reaction to the tragedy. Mr Allen submitted that therewas no evidence of actual bodily harm being sustained by the plaintiff, Mr Bradley.

40 I accept that on the authorities to which I was referred, it is necessary forthe plaintiff to establish something more than a transient reaction, however initiallysevere. This must translate itself into something physical and having a durationwhich is more than merely transient. Mr Allen submits that there is no evidencein this case which would satisfy those requirements.

45 I should say that I am satisfied on the evidence that Mr Bradley did receivea shock which is at least analogous to those discussed in the authorities and thatit has had continuing consequences on his mental state, outlook and general well-being. There is no medical evidence before me to support any such conclusionand the only material I have to go on is the account given by Mr Bradley himself,

50 supported as it is by his wife. I t the case is to be taken further, then this is anaspect of the matter which may need to be explored. For the purposes of the presentapplication, that is to the issue or non-issue of a perpetual injunction, I proposeto assume that the plaintiff's condition is sufficient to satisfy the requirements ofthe cause of action provided the other requirements are also met. I t thereforebecomes necessary to consider what those other requirements are.

422 H i g h Court [ 1 9 9 3 ]

Wright J referred to proof that the defendant had wilfully done an actcalculated to cause physical harm to the plaintiff. No doubt the defendantphotographed those sequences of the film in which the plaintiff's tombstone appears,deliberately. The question arises as to whether that action or actions was calculatedto cause physical harm to the plaintiff. In Stevenson v Basham, Herdman J accepted 5a formulation in Pollock, The Law of Torts (11th ed, 1920) to the effect that thequestion was whether the shock and the illness were natural consequences of thewrongful act or default. Pollock drew attention in the quotation to which referencehas been made, to the two separate bases of action arising from negligence andwilful false statements. In both cases the terms used give rise to questions of 10foreseeability and foreseeability, in respect of nervous shock induced by negligence,has been considered in detail by the House of Lords in McLoughlin v O'Brian[1983] I AC 410. Herdman J in Stevenson v Basham accepted on the facts as foundby the Magistrate that the person shouting the threats must have known in thecircumstances that Mrs Basham to whom his comments were not directly addressed 15but was known to be in the house could have heard them. Foreseeability in thecases discussed has depended upon some kind of immediate relationship whetherin the literal sense as between for example a mother and child or the more figurativesense which arises in the rescue cases. In considering that the nature of the actioncomplained of will obviously be of relevance and I have already expressed the 2 0view that the extent to which the tombstone could be said to have been associatedwith the actions in the film and of which the plaintiff complains, was minimal.

In those circumstances I do not think that it could reasonably be said thatit was foreseeable that the plaintiff would sustain physical damage arising out ofmental shock by the extent to which the family tombstone appeared in the sequence 25concerned. I note too that the tort depends upon the actions concerned beingintentional. No doubt that distinguishes it from an action based on negligencebut it also has certain elements of direction in it. Intention may be imputed andin this context also, foreseeability is important. There is no evidence in this caseto suggest that the defendant intended in the ordinary sense of that word, to cause 30any distress to the plaintiff or his family in filming the sequence under considerationand in context I do not think that the consequences were so foreseeable in termsof the plaintiff's distress bearing in mind the position occupied by the tombstonein the film and its lack of relation to the action, that the damage even if provencould be said to have been intentional. 3 5

It is therefore my view that in two respects at least the requirements of thecause of action cannot be met. That is, I would not be prepared to find in thecircumstances of this case, that the harm was foreseeable or that the action wasdirected against the plaintiff.

For those reasons I conclude that the plaintiff is unable to make out a case 40for relief under the first cause of action as pleaded.

The second cause of action pleaded is breach of privacy. Ms Cull submittedthat as far as New Zealand is concerned, a tort which would protect against theunlawful invasion of privacy has been accepted by the New Zealand Courts andshe relied on the comments of Jeffries J in Tucker v News Media Ownership Ltd 45at first instance (Wellington, CP 477/86, 20 October 1986) and the comments ofMcGechan J reported in Tucker v News Media Ownership Ltd during the courseof which he noted that the Court of Appeal had not rejected the views of Jeffries J.She also referred to the decision of Ellis J in Tv Attorney-General (1988) 5 NZFLR357 and Holland I in Morgan v Television New Zealand Ltd (Christchurch, 5 0CP 67/90, 1 March 1990).

Mr Allen submitted that the question of whether or not a separate tort ofthat nature existed in New Zealand had not been finally determined. Tucker's casereached the Court of Appeal in respect of an appeal against the decision of Jeffries Jgranting an interim injunction and he submits the Court's decision should be seen

I NZLR B r a d l e y v Wingnut Films (Gallen .1) 4 2 3

only as accepting that there was a serious question to be tried, not as definitivelydetermining the legal situation. He submitted that the circumstances in Tucker'scase and Morgan's case were wholly exceptional and involved situations so extremethat they should not be regarded as appropriate to arrive at a conclusion that a

5 movement of this significance in the law had been accepted in New Zealand anddrew attention to the decision o f Neazor J i n Marris v TV3 Network Ltd(Wellington, CP 754/91, 14 October 1991) where Neazor J drew attention to theexceptional nature of Tucker's case and arguably considered it appropriate toproceed with caution in respect of an alleged tort of invasion of privacy. He also

10 drew attention to the decision o f the Court o f Appeal in England in Kayev Robertson 11991) FSR 62 where it was specifically held that there was in Englandno right of action for a breach of personal privacy and referred to an article byDavid Bedingfield, 'Privacy or Publicity? The Enduring Confusion Surroundingthe American Tort of Invasion of Privacy" (1992) 55 MLR 111 which suggested

15 there were real difficulties involved in accepting such a tort and pointed to problemswhich had arisen in the American experience.

I accept that remedies of the kind discussed in the Review article can impingeupon a free press and that while the importance of the rights of the individualshould not be understated, freedom of expression is also an important principle

20 i n our society.The present situation in New Zealand then is that there are three strong

statements in the High Court in favour of the acceptance of the existence of sucha tort in this country and an acceptance by the Court of Appeal that the conceptis at least arguable. I too am prepared to accept that such a cause of action forms

25 part of the law of this country but I also accept at this stage of its developmentits extent should be regarded with caution and I note too the concerns expressedin the article to which Mr Allen drew my attention by David Bedingfield in theModern Law Review so that there is a constant need to bear in mind that the rightsand concerns of the individual must be balanced against the significance in a free

30 country of freedom of expression. I note also the difficulty in formulating boundswhich will ensure that both concerns are appropriately recognised. So far in thiscountry the only two detailed discussions of the nature and extent of the tort appearin Tucker's case in the decisions of Jeffries and McGeehan .1.1. Jeffries J refersto the private aspects of a person's life and to "unwarranted" publicity or public

35 disclosure. Further on in his decision he suggests that the two adjectives protectagainst disclosure of intimate details which are outside the realm of legitimate publicconcern or curiosity. I t is not unimportant to notice, however, that he regardsthe tort as being a natural progression from the tort of intentional infliction ofemotional distress. That may well add aspects of motivation or imputed motivation.

40 McGeehan J did not attempt to define the matter in any greater depth, althoughhe did refer to a basis of the tort being the good sense and social desirability ofthe protective principles enunciated in the American authorities referred to inProsser, The Law of Torts (4th ed, 1971).

Ms Cull also referred to Prosser and Keeton on The Law of Torts—in her45 case the fifth edition (1984) at p 851. She relied in particular on two separate

formulations which in that publication are referred to as in fact amounting todistinct torts: The cases involving public disclosure of private facts, which is highlyoffensive and objectionable to a reasonable person of ordinary sensibilities. Andsecondly at p 863:

50 , t . p u b l i c i t y which places the plaintiff in a false light in the public eye."Ms Cull indicated that three requirements had to be satisfied. First, that the

disclosure of the private facts must be a public disclosure and not a private one.

424 H i g h Court [ 1 9 9 3 )

Clearly enough in this case any disclosure will be public. Secondly, the factsdisclosed to the public must be private facts and not public ones. I t is here thatI think an immediate difficulty arises. As Neazor _I said in his decision in respectof an application for an interim injunction in this case, there could scarcely beanything less private than a tombstone in a public cemetery. I agree with that 5comment. The whole purpose of the stone is as a memorial and a publication toall those who choose to read it of the facts which the inscription is designed topreserve.

Reference can also be made to those cases where photographs were taken onpublic property of private land; see Bathurst City Council v Saban (1985) 2 NSWL,R 1 0704 and such cases as Sports and General Press Agency Ltd v "Our Dogs"Publishing Co Ltd (19171 2 KB 125 and there are dicta to the effect that there isno right to prevent one person photographing another. I do not see on theauthorities that the plaintiff could possibly object to a photograph being takenof the tombstone and in fact what the plaintiff really objects to here is not that 15the tombstone was shown in the film, but that the tombstone is claimed to havebeen associated with activities which the plaintiff and his family find upsetting.When the matter is formulated in that way, i t becomes clear that the situationis much more analogous with an action for defamation than one for breach ofprivacy. 2 0

The third requirement is that the matter made public must be one which wouldbe highly offensive and objectionable to a reasonable person o f ordinarysensibilities. Here too I think the plaintiff has difficulties. There is nothing in thefilm which reflects directly on the tombstone or persons associated with it, assumingthat the plaintiff can properly be so described. No part of the action relates to 25the tombstone or indeed the burial plot or reflects upon it, other than the factthat one of the actors is shown for a very short period, sitting on one of the stepsleading up to it, but there is nothing in the sequence or in this particular shot tosuggest anything sinister or unpleasant in relation to the tombstone or the plot.The actions and incidents which the plaintiff and his family find unsavoury and 30unpleasant take place on or in relation to graves and vaults which were fabricatedfor the purpose. There is no suggestion that there is any connection with theplaintiff's tombstone or burial plot. The actor sits on the steps because they arethere, not because they form any significant part of the sequence or do other thanprovide part of the general background of the cemetery. 3 5

Ms Cull referred to the decision of the Broadcasting Standards Authority inRe McAllister [1990] NZAR 324, but I note that in that decision the BroadcastingStandards Authority also referred to comments in Prosser and Keeton on The Lawo f Torts at pp 855-856 where an emphasis occurs on the need to establish thatthere must be something in the nature o f prying or intrusion. The comment is 4 0made that on the public street or in any other public place, the plaintiff has nolegal right to be let alone and it is no invasion of his privacy to follow him aboutand watch him there, neither is it such an invasion to take his photograph in sucha place since this amounts to nothing more than making a record not differingessentially from a full written description of a public site which anyone would 45be free to see. •

However, I also accept that it is conceivable that in certain circumstances thefact that something occurred or exists in a public place does not necessarily meanthat it should receive widespread publicity if it does not involve a matter of publicconcern. It was an application of this principle which was significant in Tucker's 50case. Had the defendant chosen to involve the plaintiff's tombstone directly in theaction of the film as i f for example the clergyman had been impaled upon it orthe zombie had been seen to appear out of it, the situation might have been different.In this case, however, the tombstone appears as no more than part of the generalambience of the cemetery. As such, it perhaps provides atmosphere for the filmbut is not significantly involved in the action.

I NZLR B r a d l e y v Wingnut Films (Gallen J) 4 2 5

The question also arises as to whether it is even recognisable. I accept thatthe tombstone and its surrounds are distinctive and recognisable to the plaintiffand his family and perhaps to other persons who have some close association withthat family, but by the general public I do not think it could possibly be recognised.

5 I t appears for a comparatively short time. I t is not prominent on the film norassociated with the action and it appears at a time when the attention of the vieweris directed to the extraordinary situation involving the impalement of the clergyman.Even if one concentrated on the tombstone, it would be impossible to make outany name. Not all of the tombstone is shown and I should have thought that the

10 ordinary viewer looking at the matter would be hard put to it on the basis of thematerial shown in the film, to identify the tombstone in the cemetery subsequently.This is not to suggest for a moment that the plaintiff would not recognise it, butthen the plaintiff's attention has been specifically drawn to i t and i t is notunimportant to note that it was drawn to it in a newspaper photograph which

15 was not itself an excerpt from the film, but a photograph taken while filming wasunderway. The tombstone is very much more prominent in that photograph asit appeared in the newspaper than it is in the film itself.

- Ms Cull also referred to that form of the tort which refers to publicity whichplaces the plaintiff in a false light in the public eye. This aspect of the matter will

20 need to be considered again in connection with that cause of action based ondefamation.

Ms Cull drew attention to the fact that there is a distinction from aspectsbased on defamation in that the false light required for a cause of action basedon breach of privacy need not necessarily be a defamatory one. She again quotes

25 Prosser and Keeton where the point is made that an action for breach of privacyis to protect the person's interest in being let alone and is available where therehas been publicity of a kind which is highly offensive.

I f the tombstone or the burial plot had been shown as directly involved inthe particular incidents which occur in the cemetery and as having a significance

30 beyond being part of the background, there might have been more to support thisargument, but even then it is difficult to see how that places the plaintiff in a falselight in the public eye. Ms Cull referred again to Prosser and Keeton on The Lawo f Torts at p 864 where the illustration given is the use of the plaintiff's pictureto illustrate a book or an article with which he has no reasonable connection, with

35 the implication that such a connection exists. I t is important to note that thereference is to the implication that a connection exists. There is nothing in thesequence in the cemetery to suggest that there is any connection between the actionfilmed as taking place and the plaintiff's tombstone and grave plot.

lam of the view that the plaintiff in this case is not on the facts abM to satisfy40 the second and third requirements as set out in Prosser and Keeton and on which

Ms Cull relies.I f the matter were looked at in terms of the formulation by Jeffries J, I do

not think that a tombstone in a public cemetery containing information whichappears to be directed at the public, can be said to be a private aspect of the

45 plaintiff's life, nor do I think that it is subjected in the film to unwarranted publicityor public disclosure bearing in mind the limited extent to which it appears andthe limited significance attached to it.

I do not think that the second cause of action has been made out and it seemsto me that in the circumstances of this case, to accept that the tort was satisfied

50 would be to extend the boundaries of an emerging tort far beyond what is safeand would impose restrictions on the freedom of expression which would alterthe balance against such freedom more than could be justified.

The plaintiff's real concern is not so much the disclosure of the tombstoneand associated grave plot, but rather its association with activities of which henot unreasonably disapproves but as in the case of the first cause of action, the

426 H i g h Court [ 1 9 9 3 )

association would not be sufficient in my view to justify the intervention of thelaw on the basis to which the plaintiff contends and in any event for the reasonsalready expressed, I do not think the requirements of the tort in its present stageof development can be said to be met in the circumstances of this case.

The third cause of action upon which the plaintiff relies is based on defamation 5and involves a contention that the appearance of the tombstone in the film duringthe course of the particular incidents, "gives rise to innuendoes that the plaintiffconsented to the use of the tombstone, approved of the nature of the film and/orreceived gain or profit from so doing". Ms Cull referred to Tolley v J S Fry andSons Ltd (1931) AC 333 and Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 1 0331. In both those cases the innuendo was much more direct and obvious thanit would be in this. The plaintiff relies on the evidence of Mr and Mrs Bradleywhere they refer to the incident when an unidentified stranger is said to havesuggested to them that Mr Bradley must have consented to the tombstone appearingon television publicity material and received some payment therefor. I accept the 15evidence of Mr and Mrs Bradley that such an incident took place, but I must alsoproceed on the basis that the person concerned was not called and the commentsmust, as hearsay, be regarded with some caution. I accept of course that the plaintiffis in a difficult position with regard to this evidence. It has not been possible toidentify or locate the person concerned and to the layman, the occurrence of the 20incident must be much more significant than some legal principle relating to thestatus of evidence. I am also, however, obliged to take into account that the onlyevidence before me as to television material was from Mr Booth who stated thatthe tombstone had never appeared on any television material and his evidence wasuncontradicted in this regard. It seems most likely to me that in fact the stranger 25had seen the newspaper material which excited the concern of the plaintiff andhis family and it is for this reason that the hearsay nature of the evidence givesrise to concern, for i f it was the newspaper photograph which gave rise to thecomment, then this was a photograph taken by the newspaper and not an excerptfrom the film at all. 3 0

Ms Cult referred to those decisions where the juxtaposition of photographshas been regarded as having been objectionable. She referred to Taylor v Beere[19821 1 NZLR 81 and Kirk vA H & A W Reed [19681 NZLR 801, but those weremuch stronger cases than this. In Taylor v Beere, a photograph of the plaintiffreceived a much greater degree of prominence than the tombstone does in the film 35in this case and the circumstances clearly suggested participation in the purposeof the book. In any event the jury, having found in favour of the plaintiff, hadaccepted the innuendo as pleaded was justified so that this aspect of the matterdid not need to be further considered. Ms Cull relied strongly on the decision inMount Cook Group Ltd v Johnstone Motors Ltd [19901 2 NZLR 488. In that 40case a poster depicted a bride and groom in a pose with a caption which was seenas being offensive by a number of persons. The poster made a specific referenceto a particular ski-field and Tipping J was able to conclude that the poster suggestedthe plaintiff was using the poster for advertising purposes, or at least had aninvolvement in its production. Tipping J was able to say at p 501 that those reading 45the poster:

". w i l l naturally assume that Mount Cook has published it or has at leastapproved its publication."The circumstances o f that case were far stronger than this. The caption 5 0

indicated that the ski-field operated by the defendant was directly involved in, andthe motivation for, the behaviour and comments of those depicted. In this casethe tombstone is as I have already said, no more than a part of the ambience ofthe cemetery. I t neither has prominence nor significance in the action and isidentifiable only to those who are already familiar with it and whose attention

1 NZLR Bradley v Wingnut Films (Gallen J) 4 2 7

is specifically drawn to it when the action of the film does not so draw the attentionof the viewer.

Mr Allen submits that in any event the partial appearance of the tombstonecannot be seen as a reference to the plaintiff. At most it is a reference to the persons

5 whose memorial it is. The plaintiff meets this allegation by the nature o f theinnuendo pleaded which is that the plaintiff as the person present exercising rightsin respect of the plot, must have consented to the photography of the tombstoneor plot and refused money therefor. That on the evidence is not substantiated andof course there is the difficulty which Mr Allen's submission does raise, that people

10 who were able to identify the tombstone because for example it is seen as a landmarkin the cemetery, would not necessarily identify it with the plaintiff.

I am of the view that the significance of the tombstone and grave plot in thefilm is not such that the innuendos upon which the plaintiff relies, can be saidto be substantiated, particularly when it is borne in mind that other memorials

15 and monuments appear as part of the general ambience of the film. I do not thinkthat the cause of action can succeed and in any event do not accept that this wouldbe one of those where the reluctance of the Court to give injunctions in defamationcases would be overcome.

The next cause of action alleged is malicious falsehood and Ms Cull rightly20 points out that it is an alternative to defamation and an alternative to breach of

privacy. Clearly it has analogies with both. Ms Cull relied upon the recent decisionin Kaye v Robertson already referred to. That case of course is authority for theproposition that in England the tort of invasion of privacy does not exist. Theplaintiff was nevertheless able to succeed in allegations of malicious falsehood.

25 The plaintiff, a well-known actor, was interviewed by journalists from the defendantafter operative treatment to his head and when he was in no mental state toparticipate in such an interview. The Court indicated that the essentials of thetort were that the words were false, that they were published maliciously and thatspecial damages followed as a direct and natural result of their publication. Ms

30 Cul l placed an emphasis upon those words in the decision which indicated thatmalice would be inferred if it was proved that the words were calculated to producedamage and that the defendant knew when it published them that they were false.She submits that in this case, malice can be found because of the reckless disregardwhich the defendant showed to the plaintiff in conducting the filming of the scenes

35 complained o f and the consequent harm and distress caused to the plaintiff.Certainly there could on the evidence be no suggestion of direct malice. Thereis nothing to suggest that the defendant deliberately conducted the filming in sucha way as to cause harm and distress to the plaintiff, but Ms Cull submits that thenature of the incidents concerned filmed in relation to the plaintiff's tombstone

40 and the family grave plot, are such that malice can be inferred.The difficulty with this argument is that it comes up against the same problems

as the earlier causes of action already discussed. The action is not directed at, nordoes it involve the plaintiff's tombstone or family plot to the extent which wouldbe necessary to justify the plaintiff's contention. The tombstone is merely a part

45 o f the ambient cemetery. It is not significantly involved in the pint or the incidentsat all. When the actor sits on the steps leading to it, no significance is given tothe action by the tombstone or the grave plot. There is no juxtaposition of theaction with the tombstone or grave plot in such a way as to relate or connect thetwo other than as part of the background.

50 T h e plaintiff's contention here must be that the very appearance o f thetombstone and grave plot in the film suggests an involvement in that film or itsproduction which is false. In my view, that cannot be substantiated and I do notthink there is sufficient material to justify the contention that in the circumstancesof this case the publication could be said to be malicious.

There are also problems for the plaintiff in establishing falsity as far as the

428 H i g h Court [ 1 9 9 3 1

representation is concerned. Particulars in the statement of claim allege falsityin similar terms to those alleged in respect of the allegations of defamation, thatis that the plaintiff approved of the contents of the film and consented to the useof the family tombstone for gain or reward and had no regard to or respect forthe members of his family buried in the grave plot. In my view the evidence falls 5far short of establishing those allegations and I do not think such inferences couldbe drawn from the appearance of the tombstone in the film bearing in mind thelack of prominence given to i t and the fact that i t is not associated with thesignificant action in the film. This cause of action cannot succeed.

The fifth cause of action is an allegation of negligence. Both plaintiff and 1 0defendant referred to and relied upon the decision of the Court of Appeal in SouthPacific Manufacturing Co Ltd v New Zealand Security Consultants & InvestigationsLtd (19921 2 NZLR 282. Ms Cull contends that following the two-stage approachin Anns v Merton London Borough Council [19781 AC 728, the degree of proximityand foreseeability of harm are such in the circumstances of this case as to establish 15the existence of a duty of care which the plaintiff contends has been breached.I accept that the Court of Appeal did not reject a two-stage approach, nor howevercould it be said to have simply adopted that as a simple means whereby the existenceor otherwise of a duty of care can be determined. The Court has rather indicatedthat the process is pragmatic and must take into account all relevant factors. Those 2 0factors may have varying weight in different situations and I note also as Mr Allensubmitted, that the Court of Appeal in Bell-Booth Group Ltd v Attorney-General[19891 3 NZLR 148 accepted that negligence law did not need to be imported intothat class of case, the remedies were already available in the form of actions fordefamation. A similar view was taken in Balfour v Attorney-General (19911 251 NZLR 519.

In this case the plaintiff relies on other causes of action generally speaking,more appropriate to the resolution of the matters in issue here. The fact that theplaintiff is not in my view able in any of those so far discussed to make out acase, does not necessarily mean that negligence can be relied upon as a sort of 30backstop. The plaintiff's problem here is not that there is no established categorywith which the claim can be associated and therefore it needs to be consideredwhether or not concepts of negligence are appropriate but rather that the evidencefalls short of establishing the requirements of those categories within which theplaintiff's claims would normally be seen to fall. Even if, however, it were possible 35to establish that there was a duty of care here, I do not think in the circumstancesthe plaintiff can be said to have established that it has been breached. The plaintiffagain comes up against the difficulty that he cannot establish a sufficient involvementof the tombstone or grave plot in the incidents to which exception is taken. I donot think that negligence provides an appropriate cause of action in this case and 40that even i f it did, that the plaintiff has established a case based on it.

That brings me to the last cause of action based on allegations of trespass.The plaintiff's case here is that the plaintiff holds exclusive possessory rights tothe plot on which the tombstone has been erected and that in terms of s 10 ofthe Burial and Cremation Act 1964, the person for the time being entitled to the 45rights contemplated is referred to as "owner". Ms Cull referred to Reed v Madon(1989) 2 All ER 431 where it was held that a statutory right of burial in a reserveplot pursuant to $ 48 of the Cemeteries Clauses Act 1847 (UK) was to be equatedwith a right o f property and that the right extended to prevent burials andencroachments. Ms Cull therefore contends that the plaintiff has a sufficient right 50to be protected against trespass and that a trespass has occurred in this case andin this regard she relies upon the fact that an actor is seen during the course ofthe film, to sit on the steps leading up to the plot. She also draws attention tothe evidence of Dr Veitch when he suggested that the steps are in circumstancessuch as this, an important part of the whole with certain special connotations.

I NZLR Bradley v Wingnut Films (Gallen .1) 4 2 9

Mr Allen points to the fact that the plaintiff is not the owner of the plot.He has an exclusive right of burial in perpetuity but not to exclusive possessionof the land. He submits that at the most the plaintiff has a licence and that hedoes not have sufficient interest in the gravesite to support a claim in trespass.

5 T o found an action for trespass, the general statement of the law is to theeffect that there must be exclusive possession of the land concerned. A lodger orboarder does not have sufficient possession of the room in which he is lodged,nor does the person who has the use of a seat in a theatre or a railway carriage.My attention has not been drawn to any authority which deals with the specific

10 situation in this case. The plaintiff and his family do have the perpetual right ofburial in the grave plot concerned and I think that right could reasonably bedescribed as exclusive. I should require some persuading that the plaintiff and hisfamily could not prevent by injunction, the interment of some person of whoseburial they did not approve, within the family grave plot.

15 I n this case I rather incline to the view that the plaintiff's rights are such asto support an action in trespass. Reed v Madon does accept that encroachmentcan be prevented, but of course the encroachment contemplated in that case wasof a permanent nature and may well be different in kind from a casual walkingacross or sitting on the site concerned. The evidence of Dr Veitch makes it clear

20 that a grave plot has a significant status and that even in a secular society, suchplaces have associated with them a character which militates against behaviouron them, seen as inconsistent with the rights conferred in respect of them.

Even if, however, it were possible to establish that the plaintiff had a sufficientright of exclusive possession to prevent trespass, the film may be evidence of such

25 a trespass but would not I think amount to trespass itself. The remedy of injunctioncan scarcely be appropriate to prevent a repetition of the trespass of an actor sittingon the steps of the grave plot.

Ms Cull submits that there is a line of authorities where the Courts will preventby injunction the use of information obtained during a trespass and she referred

30 t o Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 and EmcorpPly Ltd v Australian Broadcasting Corporation (198812 Qd R 169. The difficultyis that in this case the film was not taken as a part of the trespass. Trespass i fit has been established and Mr Allen contends that it has not, was that of the actorsitting on the steps. I should say here that the only evidence before me is that

35 o f Mr Bradley which is to the effect that the steps are a part of the plot. This hasnot been controverted and I accept that the steps were a part of the area whichthe plaintiff was entitled to protect. Whatever might have been the case in respectof other shots, the part of the film which shows the tombstone was clearly nottaken by way of trespass.

40 T h e nature of the action, that is the sitting on the steps, also needs to be takeninto account. Dr Veitch gave evidence that this could in the eyes of many peopleamount to a desecration, but it also seems that this is not necessarily so. The sextonwhose evidence I found impressive and helpful, said that he had sat on the stepson occasions and other evidence suggests that persons who were not associated

45 wi th the filming, may have sat on graves or vaults in the area.I do not accept that the action, even although seen as unacceptable and perhaps

susceptible to prevention by use of the law of trespass, is such as to justify aninjunction preventing the screening of the film in which the action is recorded.I f a case has been made out and furtherargument may well be necessary in respect

50 o f this aspect of the matter, then I think it would be an appropriate case to bemet by an award of damages rather than by an injunction bearing in mind theconsequences of the injunction in the situation before the Court.

Ms Cull opened the case for the plaintiff with the words that it was one wherethe plaintiff deserved a remedy. She closed this submission by the very apt wordsof the plaintiff's daughter where she said "a grave is not comical, a grave is not

430 H i g h Court E 1 9 9 3 1

a horror, a grave is not entertainment. A grave is a personal and private thing".agree with all those comments and I accept that the plaintiff and his family have

found the appearance of the family tombstone, which is an object of considerablesacredness and significance to them, in this film as being offensive, objectionableand deeply disturbing, but that is not to say that the law allows the issue of an 5injunction on any of the bases upon which the plaintiff stands his case.

The real concern of the plaintiff which appeared from his evidence and thatof his wife and also the evidence of Dr Veitch, is that activity of the kind whichwas filmed and forms the subject of the film should have been allowed to occurin a public cemetery, but that is another matter entirely. There is of course a 1 0considerable dispute as to the extent to which the Wellington City Councilauthorities were aware of the nature of the activities for which consent was given.That is a quite separate matter.

It follows then that I find the plaintiff is not entitled to the issue o f aninjunction, which will be declined. Al l other aspects of the matter are reserved 15for further argument.

Application declined.• Solicitors for the plaintiff: Tripe Matthews & Feist (Wellington).

Solicitors for the defendant: Rudd Watts & Stone (Wellington).

Reported by: M K Mahuika, Barrister

20