THE COMMISSIONER OF POLICE v ANDREWS [2014] NZHC 2534

THE COMMISSIONER OF POLICE v ANDREWS [2014] NZHC 2534 [13 October 2014]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2014-485-11196[2014] NZHC 2534UNDER the Privacy Act 1993IN THE MATTER OF an appeal under s 123(2) of the HumanRights Act 1993BETWEEN THE COMMISSIONER OF POLICEAppellantAND SHANNON RICHARD ANDREWSRespondentAND DIRECTOR OF HUMAN RIGHTSPROCEEDINGSIntervenerTeleconference: 13 October 2014 at 2.15 pmAppearances: D J Perkins for the AppellantS R Andrews in personK Evans for the Privacy CommissionerJ Emerson for the Director of Human Rights ProceedingsJudgment: 13 October 2014Reasons: 15 October 2014JUDGMENT OF MALLON J (Interlocutory application to intervene)The Privacy Commissioner's application[1] The respondent (Mr Andrews) made a privacy complaint concerning disclosure of information by the Police. The complaint was first made to the Privacy Commissioner (the Commissioner). Mr Andrews then brought a claim to the Human Rights Review Tribunal (the Tribunal). His claim was unsuccessful.1 The appellant1 Andrews v Commissioner of Police [2013] NZHRRT 6.(the Police) sought an order for costs in an amount of about $7,500-$10,000. The Tribunal dismissed that application.2 The Police appeal against that decision.[2] The issue before me concerns the Commissioner's application to intervene inthe appeal. That application is opposed by the Police. The parties were content for the application to be determined on the papers or on the basis of oral argument at a telephone conference. The latter course was taken. Having heard from counsel andMr Andrews I dismissed the Commissioner's application. I now record my reasons.[3] Pursuant to s 86(1) of the Privacy Act 1993 the Director of Human Rights Proceedings (the Director) has the right to appear and be heard in any proceedings in the High Court that relate to proceedings that were before the Tribunal. Section 86(5) in turn provides that:The Privacy Commissioner may appear and be heard in any proceedings in which the Director of Human Rights Proceedings would be entitled to appearand be heard under this section but declines to do so [4] The Director has exercised his right to appear and be heard in respect of this appeal. On that basis the Police submit that the Commissioner does not have the right to appear and that granting leave to the Commissioner to intervene willcircumvent Parliament's intention that either the Director or the Commissioner butnot both can participate in an appeal.[5] In response the Commissioner submits that, notwithstanding the statutory position, the Court retains the power to grant leave to the Commissioner to intervene. The Commissioner refers to Director of Human Rights Proceedings v Commissioner of Police in which the Commissioner was permitted to intervene in the absence of a statutory right of intervention.3 I note, however, that this was a proceeding before the Tribunal, not an appeal to which s 86 applied. Counsel for the Commissioner also accepted that in that case there were points of disagreement between the Director and the Commissioner.2 Andrews v Commissioner of Police [2014] NZHRRT 31.3 Director of Human Rights Proceedings v Commissioner of Police [2007] NZHRRT 22, (2007) 8 HRNZ 428.[6] The Director supports the Commissioner's position and Mr Andrews in turn supports the Director's position. The Director considers that the appeal is importantbecause it bears on the fundamental rights of New Zealanders to access justice in the human rights context. He considers that if the appeal is allowed it will have a chilling effect on complainants wishing to bring a case in the Tribunal. He says thatthe Commissioner's intervention would assist the Court because he brings a wealth of experience in dealing with lay litigants and has a depth of knowledge of privacy issues that the Director does not have.[7] In my view the starting point is the statute. It envisages that either the Director or the Commissioner can participate in an appeal. It does not provide the Court with the power to grant leave for both the Director and the Commissioner to participate. If leave were to be granted, it would have to be in reliance on theCourt's inherent jurisdiction to grant leave to a party to intervene in a proceeding. Iwill consider the Commissioner's application on that basis.[8] I consider that leave should not be granted because:(a) The starting point in the statute is that either the Director or the Commissioner will participate.(b) Although the correct approach to an application for costs in the Tribunal has general importance beyond this particular case, the issue is confined and without complexity. An appeal of this nature should be conducted efficiently.(c) The respective positions of the Commissioner and the Director are not in conflict. The Director may collaborate with the Commissioner in putting together his submissions and the Commissioner is willing to assist in that way. It is therefore not necessary to have the Commissioner before the Court in order to obtain his input.Composition of the Court[9] Counsel for the Police raised whether the appeal should be heard by a single judge or whether the Court should appoint two additional members. Two additional members must be appointed if a question of fact is involved.4 He submits that the appeal raises only questions of law. He submits that a question of fact might arise if the Court were to allow the appeal and proposed then to exercise the costs jurisdiction itself. If the Court is comprised of a single Judge it might then need to refer the issue back to the Tribunal to determine costs.[10] All parties abide the Court's decision on this. However the partiesacknowledge that the appointment of two additional members is not necessary given the confined and non-complex nature of the appeal and that any question of fact arises only if the appeal is allowed.5 I agree. I direct that the Court will be constituted as a single judge.Standard directions[11] In accordance with the standard schedule 6 directions,6 I direct as follows:(a) The appeal will be heard at a time and date to be allocated by the Registrar in consultation with the parties and the Director, on or after 2 February 2015.(b) One day is set aside for the hearing.(c) Security for costs is not required.(d) The appellant must file and serve not later than 11 November 2014 a common bundle of paginated and indexed copies of all relevant documents, including, if applicable:(i) the reasons for the decision;4 Human Rights Act 1993, ss 123(2) and 126(1)(b).5 Mr Andrews did not have a view and supported the Director's view.6 High Court Rules.(ii) the sealed order or judgment appealed from;(iii) the pleadings;(iv) the statements of evidence or affidavits;(v) the exhibits;(vi) the notes of evidence, to the extent they are relevant to the issues on appeal; and(vii) any other documents, in date sequence if possible.(e) The appellant must file and serve not later than 18 November 2014 its submissions and a chronology.(f) The Director must file and serve not later than 2 December 2014 his submissions and, if necessary, a separate chronology noting areas of disagreement.(g) The respondent must file and serve not later than 16 December 2014 his submissions and, if applicable, a separate chronology noting areas of disagreement.(h) The appellant must prepare a bundle of any authorities referred to in the submissions that the parties and the Director consider ought to be produced to the Court. The bundle may be produced at the hearing or filed before the appeal is heard.[12] I do not make a direction as to the costs category for this appeal. That is better assessed by the Judge who will hear the appeal.[13] I note that Mr Andrews raised whether he could get a lawyer. I said that was a matter for him. He should make his own enquiries about this if he does now wish to have representation.Mallon J