recent decisions of the human rights review tribunal and the courts tim mcbride l.
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Recent Decisions of the Human Rights Review Tribunal and the Courts Tim McBride. Privacy Act 1993. HRRT. Recent Trends – Volume & Type Parties – represented / unrepresented Pre-hearing rulings Discovery / inspection Jurisdiction Decisions – quality / length Remedies & Awarding of costs

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slide2
HRRT

Recent Trends –

Volume & Type

Parties – represented / unrepresented

Pre-hearing rulings

Discovery / inspection

Jurisdiction

Decisions – quality / length

Remedies & Awarding of costs

Appeals against HRRT decisions

observations
Observations

Bulk of HRRT’s decisions appear to be in the Privacy Act area

Approximately 70% of the work of the Director of Human Rights Proceedings is in the Privacy Act area

Lay people not understanding how the HRRT’s role under the Privacy Act is intended to operate (eg. Ram; Rodger)

observations ctd
Observations (ctd)

Law firms not understanding their obligations under the Act

(ie. CBN; Apostolakis)

Prisoners / ex-prisoners (+ their spouses / partners) attempting to use the Act – impact of the Prisoners’ and Victims’ Claims Act 2005 (eg. MacMillan; Williams; Marino; Henry; Rodger)

human rights review tribunal name
Human Rights Review Tribunal - Name

Reference to 'Human Rights' confusing

Some people may think that HRRT can deal with any 'HR' issue

Reference to 'Review' also confusing

HRRT '... does not conduct anything like a judicial review of the (Privacy Commissioner's) opinions and processes.... In that sense the inclusion of the word “Review” in the Tribunal's name is misleading and unhelpful...' (Richardson (36/05) para 122).

hrrt name ctd
HRRT – Name (ctd)

'... In every case, the Tribunal hears matters denovo ... (Richardson, para 123)

Fact that the HRRT is a tribunal, and not a court, is regrettable [In this commentator's view]

Opportunity should have been taken in 2001, when the Human Rights Amendment Act was passed, to upgrade the tribunal's status to that of a specialist court [In this commentator's view]

Examples of specialist courts include the Employment Court; the Environment Court; and the Family Court

fundamental purpose of the privacy act
Fundamental Purpose of the Privacy Act

Importance emphasised by HRRT in Lehmann (20/05)

To promote and protect individual privacy

Relevance of the OECD Guidelines (1980)

Guidelines impose obligations on member states

Privacy Act should be interpreted in sympathy with its objectives

This is especially important, given that Privacy Act forms part of NZ's human rights law

How lay people read / attempt to understand the Act, is important (Lehmann, paras 76-77, 96)

privacy act
Privacy Act

“agency” – a key definition (s2)

Exemptions from the above definition include ‘…in relation to its judicial functions, a court…’.

Small v Ministry of Justice (Decision No 08/05)

Strike out application by MoJ

Issue – Was the Registrar of a Family Court covered by the exemption?

HRRT held that, in the particular circumstances, that Registrar was not covered

Appeal by MoJ to HC

Appeal successful - HC (Goddard J) – 7 April 2006

meaning of personal information
Meaning of ‘personal information’

Definition – s2 & early CRT decisions

Harder (CA) – obiter comments

Academic critiques

Subsequent HRRT decisions

Boyle (16/03) / CBN (48/04)

Jans (21/03) / Apostolakis (15/05)

Golden (13/05) / Stevenson (7/06)

HRRT clearly uncomfortable with the obiter statements of members of the CA in Harder

discovery inspection of documents
Discovery / inspection of documents

Director of Human Rights Proceedings vRichardson (36/05)

First time the Director has commenced proceedings

Office created by the Human Rights Amendment Act 2001

Aggrieved individual not a party to the proceedings

director of hrp v richardson ctd
Director of HRP v Richardson (ctd)

Defendant [R] wanted discovery of correspondence the aggrieved person had had with the PC, and the documents comprising the Commissioner’s file on the matter

Privacy Act, Part VIII, +s116

Human Rights Act 1993, ss 105-106

director of hrp v richardson ctd12
Director of HRP v Richardson (ctd)

HRRT decision

Limited to discovery issues (ie. at this stage)

Contains valuable commentary on HRRT approach to discovery / inspection of documents

PC’s different roles in handling complaints discussed –

Assessor, investigator, conciliator, mediator, advisor

Go-between (para 33)

director of hrp v richardson ctd13
Director of HRP v Richardson (ctd)

Key issues –

Can the PC be compelled to make her files available for inspection? (para 57-105)

[answer = no]

Can a party to litigation refuse to make documents which comprise his/her file of communications with the PC, available for inspection? (para 107-125) [answer = in certain circumstances] (para 126-131)]

tribunal s jurisdiction to hear cases under the privacy act
Tribunal’s jurisdiction to hear cases under the Privacy Act

Position has been that an aggrieved individual may come direct to the HRRT, once the PC has exercised the discretion in s71 to take no further action in respect of the individual’s complaint

That position challenged in Lehmann (20/05)

tribunal s jurisdiction to hear cases under privacy act ctd
Tribunal’s jurisdiction to hear cases under Privacy Act (ctd)

By a defendant?

No, by the PC

PC’s argument – the ‘proposed interpretation’

HRRT response – the ‘conventional interpretation’ + flowchart

Is the HRRT correct?

Other recent HRRT decisions discussing aspects of ss 82/83 include Steele (12/02); Waugh (9/03); and DAS (45/04)

ipp3 boyle v manurewa rsa inc 16 03
IPP3 - Boyle v ManurewaRSA Inc (16/03)

How is IPP3 to be interpreted?

(see para 42-49)

HRRT concerned about the approach taken by the PC

Despite this, no breach of IPP3

IPP11 breached

However, interference with privacy (PA, s66),

not established

ipp4 stevenson v hastings dc 7 06
IPP4 – Stevenson v Hastings DC (7/06)

The “barking dogs” decision

Decision delivered 14 March 2006

Monitoring devices set up by Council, following complaints

Purpose was to record barking of plaintiff’s dogs

Plaintiff received standard form ‘noisy dog’ letter from Council, but never told of monitoring

stevenson v hastings dc ctd
Stevenson v Hastings DC (ctd)

Key issues included –

What harm did S suffer?

Does IPP4 apply to attempts to collect PI, where no PI is in fact recorded?

Was any PI about the plaintiff collected by the Council?

Was the manner of collection such as to contravene IPP4?

ipp6 need for evidence
IPP6 – Need for evidence

Henry v McCarthy (and others) (12/04)

Plaintiff required to –

Identify when s/he asked for the information

What PI s/he asked for

What the defendant did/did not do in response to his/her request (para 11)

slide20
IPP6

Other decisions include –

CBN v McKenzie Associates (48/04) – plaintiff successful

Flynn v Work & Income (& Others) (36/04) – plaintiff struck out

Rodger v NZ Police (4/05) – plaintiff unsuccessful

Apostolakis v Sievwrights (01/05) – plaintiff successful

privacy act 1993
Privacy Act 1993

Part IV – ‘Good reasons for refusing access to personal information’

Nicholl v Chief Executive of the Dept of Work & Income [2003] 3 NZLR 426 (HC)

Access request for PI held by Dept

Request for informant’s identity refused

Section 27(1)(a) applied

Dept’s decision upheld by HRRT & on appeal by HC

HC held that the Dept’s ‘fears that disclosure of the identity of the informant could discourage other potential informants from giving evidence’ were ‘fully justified’

privacy act 199322
Privacy Act 1993

Marino v Dept of Corrections

(AP 276/00 – 4 Feb 2003 – HC – Jurie J) – successful appeal to HC re-striking out of IPP6 proceedings – subsequent HRRT proceedings unsuccessful

ipps 6 7 access to correction of personal information
IPPs 6/7 – Access to / correction of personal information

Issue: When a breach of one of these IPPs has occurred, what, if any, harm is required to be established (ie. to amount to an interference with the plaintiff’s privacy)?

Wording of s66 (1) + (2)

CRT decisions

HRRT decision in Jans v Winter (21/03)

ipps 6 7 ctd
IPPs 6/7 (ctd)

HC decision in Winter v Jans

(CIV – 2003-419-854)

Subsequent significant HRRT decisions

Macmillan (8/04) (para 16-32)

Apostolakis (01/05) (para 88)

Waugh (24/05) (para 154)

Lehmann (20/05) (para 44)

ipp 11 need for evidence
IPP 11Need for evidence

Application of approach set out in

L v L (HC)

Has there been a disclosure?

Onus of proof is on the plaintiff

If satisfied, next step is to consider whether any exceptions to IPP 11 apply

Onus of proof re any exception is on the defendant (PA, s87)

ipp 11 ctd
IPP 11(ctd)

If no exception applicable, the next step is to consider whether there has been any harm to the plaintiff (ie. of the kind contemplated by the PA, s66)

Onus of proof to establish harm is on the plaintiff

ipp 11 need for evidence ctd
IPP 11 – Need for evidence (ctd)

Steps outlined by the HC in L v L

Adopted by the HRRT in Steele v DWI (12/02)

Applied more recently in

Ram (27/03) – see paras 34-49

Clearwater (02/04) – paras 72-133

Golden (13/05) – para 32

what constitutes an interference with privacy
What constitutes an interference with privacy?

IPPs 1-5, 8-11

PA, s66 (1)

Causal link must be established between the adverse consequences (ie. the harm), the plaintiff has suffered AND the breach of one or more IPPs (or equivalent rules in a code of practice)

Plaintiff can only be compensated for harm that was actually caused by that breach (or breaches)

‘Harm’ can only be of the type / level contained in

s66 (1)

(see Hamilton v The Deanery (2000) Ltd) (28/03)

calculation of damages
Calculation of damages

Section 88

How done?

Hamilton v The Deanery (2000) Ltd (28/03) (para 41-58)

Clear signal from the HRRT that it will be willing to re-assess the level of damages awards made under the Privacy Act

(see para 54-57)

calculation of damages30
Calculation of damages

Feather v ACC (29/03) – factors for the assessment of damages – (see para 24)

CBN (48/04) – valuable appendix summarising earlier decisions where damages have been awarded under s88 (1) [c], for breaches of IPP6

Apostolakis (01/05) – (see para 103-104)

recent costs awards against unsuccessful plaintiffs
Recent costs awards against unsuccessful plaintiffs

Ram (27/03) - $3,000

CD (15/02) - $10,000

O’Neill (43/04) - $3,000

Henderson (42/04) - $12,500

Williams (28/04) - $1,529.86

Marino (46/04) - $1,990

Henry (38/04) - $1,200

Yakas (30/04) - $1,250

tim mcbride barrister legal consultant timmcbride@xtra co nz
Tim McBride

Barrister & Legal Consultant

timmcbride@xtra.co.nz

Conclusion