WILLIAMS v NEW ZEALAND POLICE [2021] NZHC 2345

WILLIAMS v NEW ZEALAND POLICE [2021] NZHC 2345 [8 September 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-420[2021] NZHC 2345UNDER the Privacy Act 1993IN THE MATTER OF a Decision of the Human Rights Review Tribunal Striking Out a Statement of ClaimBETWEEN JAMES LEONARD WILLIAMSAppellantAND NEW ZEALAND POLICERespondentHearing: On the PapersCounsel: N Levy QC for Appellant M McKillop for RespondentJudgment: 8 September 2021JUDGMENT OF ISAC J[Application for leave to appeal]Introduction[1] The respondent seeks leave to appeal this Court's judgment to the Court of Appeal. 1[2] It says the Court erred in two respects:1 Williams v New Zealand Police [2021] NZHC 808. The respondent submits, and I agree, that it is not necessary for the High Court to sit with additional members for the purpose of determining an application for leave to appeal under s 126 of the Human Rights Act 1993. Additional members of the Court are only required when the High Court is exercising its powers under ss 92T and 123, and not, therefore, for this leave application.(a) It wrongly interpreted the scope of the Tribunal's summary jurisdiction, which (properly construed) confers a broad jurisdiction to determine proceedings (whether by strike-out or by summary judgment); and(b) It wrongly interpreted s 48 of the Official Information Act 1982 (the OIA) by:(i) conflating the defendant's pleading onus with an evidentiary onus; and(ii) requiring a defendant to prove a good faith state of mind, when that ought to be presumed from the existence of an official information request and response.[3] The appellant submits neither question raised by the respondent is seriously arguable. Further, if these legal arguments were successful, the Court's factual findings would be determinative in any event. Nor do these questions raise issues of general or public importance that would outweigh the appellant's interest in these already protracted proceedings being finally determined by the Tribunal according to their merits.[4] I have concluded that leave should be granted for the reasons that follow.Background[5] The relevant factual background is set out in the judgment at [4]–[30]. What follows is a summary.[6] Mr Williams' personal information was disclosed in 2009 when his former partner sought a protection order and her solicitor sent an OIA request to Paeroa Police for all information held concerning Mr Williams and herself. A Sergeant Caldwell replied, attaching Mr Williams' complete criminal and traffic history. The personal information disclosed went well beyond the scope of the request made to Police.[7] Mr Williams was unaware of this disclosure until 2014. In August of that year he received documents from his former partner relating to Family Court proceedings. Those papers included a copy of Mr Williams' complete criminal and traffic history.[8] Mr Williams made a complaint to the Privacy Commissioner. The letter in response recorded that Police had advised the Commissioner that while they had accessed Mr Williams' criminal history in 2009, there was no evidence it was ever printed out or released to Mr Williams' former partner, or to her solicitor.[9] Mr Williams did not accept the respondent's position, and on 17 February 2016 he filed a statement of claim in the Human Rights Review Tribunal (Tribunal), which recorded his claim was for a breach of the Privacy Act. On 18 March 2016, the respondent filed a statement of reply. Police continued to deny they had disclosed Mr Williams' criminal history.[10] Delay ensued. It was not until 2019 that Mr Williams learned that his personal information had, in fact, been disclosed to his former partner by Police.[11] On receiving this information the respondent filed an application to strike-out Mr Williams' proceeding under s 115A(1) of the Human Rights Act, on the grounds that the immunity in s 48 of the OIA applied and the information was made available in good faith.[12] The Tribunal granted the strike-out application. 2 Broadly, it said the immunity applied on good faith grounds, and there was no reason to draw adverse inferences in relation to the issues of honesty and ulterior motive. The Tribunal said that good faith was presumed to apply to an OIA disclosure, unless there was a pleading to the contrary.[13] Mr Williams appealed the decision of the Human Rights Review Tribunal striking out his claim for breach of privacy under the Privacy Act 1993. His sole ground of appeal was that the Tribunal was wrong to find that good faith could be2 Williams v New Zealand Police [2020] NZHRRT 26.inferred in the absence of evidence from the person who supplied the information, Sergeant Caldwell.High Court decision[14] The Court found that the appeal should be allowed because there had been an error of approach by the Tribunal. Rather than an orthodox approach to a strike-out contemplated by s 115A of the Human Rights Act, the Tribunal had embarked on a factual inquiry — and drew inferences — similar to the consideration of a summary judgment application, where a greater engagement with factual issues is permitted. Not only does summary judgment require a different approach than strike out, but, most importantly, this Court considered the statutory jurisdiction of the Tribunal under s 115A does not extend to the grant of summary judgment, whether in favour of a claimant or a respondent.[15] The Court also found that s 48 OIA was a statutory immunity that was not part of Mr Williams' claim for breach of privacy, but an affirmative defence to be raised by a defendant seeking to rely on it. The respondent needed to plead, then prove, the defence. However, the effect of the Tribunal's approach meant Mr Williams was required to prove a negative: that the disclosure was not in good faith, when the onus of proof remained on the respondent.Approach to leave applications[16] Section 124(1) of the Human Rights Act 1993 states that any party may appeal from a decision of the High Court on a question of law with leave of the High Court, or special leave of the Court of Appeal. The High Court may grant leave "if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision". 33 Human Rights Act, s 124(2).[17] The requirements for grant of leave are: 4(a) the questions posed are ones of law;(b) the questions are capable of bond fide and serious argument; and(c) the appeal involves some public or private interest of sufficient importance to outweigh the delay and cost of a further appeal.DiscussionCan the Tribunal grant summary judgment?[18] As noted, the respondent's position is that this Court wrongly interpreted the scope of the Tribunal's jurisdiction which, properly construed, confers a broad power to summarily determine proceedings whether by strike-out or by summary judgment. It says:This Court's decision significantly limits the Tribunal's capacity to summarily determine proceedings if only minimal evidence is necessary to establish why a party's case must succeed. This interpretation of the Tribunal's powers was contrary to the Tribunal's "wide discretion", and its nature as an inferior court. A limited reading of the Tribunal's powers should not be inferred by mere implication following Parliament's 2018 amendments to the Human Rights Act. When its powers are properly construed, the Tribunal had a jurisdiction equivalent to summary judgment prior to 2018 and continues to have one.[19] To support its position that the Tribunal does have a summary jurisdiction, the respondent points to the fact that the Tribunal is empowered to regulate its procedure "as it thinks fit";5 that it must determine proceedings in accordance with the substantial merits of a case, without regard to technicalities; 6 and that the Regulations governing4 This approach was adopted in Geary v New Zealand Psychologists Board [2012] NZHC 2403 at [12], citing Waller v Hider [1998] 1 NZLR 412 (CA). See also Cook v Housing New Zealand Corporation [2018] NZCA 270 at [3] where the Court of Appeal discussed an equivalent leave provision in the Residential Tenancies Act 1986.5 Human Rights Act, s 104(5).6 Section 105(1).its procedure empower it to determine proceedings "as fairly, efficiently, simply, and speedily as is consistent with justice". 7 And, it says while courts of this nature lack an inherent jurisdiction, they are generally regarded as having all the implied or ancillary powers necessary to enable the effective exercise of that jurisdiction, including the power "to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its process."8[20] As I see it, there are some difficulties with the respondent's position on appeal.[21] Parliament has explicitly enacted a strike-out jurisdiction. It has not conferred a summary judgment jurisdiction on the Tribunal. If Parliament intended the Tribunal to have a summary judgment jurisdiction, it might be expected to have included such a provision. And if, as the respondent submits, the Tribunal already had an implied power to both strike-out and grant summary judgment, why did Parliament enact only one of them?[22] While the Tribunal undoubtedly has powers to regulate its own procedure, it cannot exercise powers that go beyond the scope of its jurisdiction. And given strike out and summary judgment are different in nature, and appear to serve different functions, there is a real question as to whether, in the absence of an express provision, the Tribunal does have a power to grant summary judgment.[23] Nevertheless, at issue here may be a question of classification and the difference between the Tribunal's powers — that allow it to function and work effectively — and its jurisdiction, which has a more substantive quality. 9[24] Despite the difficulties with the respondent's position, I accept the question posed is one of law, and that an alternative view is capable of serious argument. I also acknowledge the question involves a matter of public interest of sufficient importance7 Human Rights Review Tribunal Regulations 2002, reg 4(1)(c). Similarly, reg 16(1)(a) empowers the Tribunal to "give any directions and do any other things that are necessary or desirable for the proceedings to be heard, determined, or otherwise dealt with, as fairly, efficiently, simply, and speedily as is consistent with justice".8 Citing Attorney-General v Otahuhu District Court [2001] 3 NZLR 740 (CA) at [16].9 In this regard, the Court of Appeal's recent judgment, District Court at Christchurch v McDonald[2021] NZCA 353, may be relevant.that outweighs the delay and cost of a further appeal. After all, the issue goes to the jurisdiction of the Tribunal, and therefore has the potential to affect all cases coming before it. However, I consider the question for the Court of Appeal is better framed in these terms:Can the Tribunal grant summary judgment?[25] Leave to appeal on this question of law is therefore granted.The s 48 question[26] The respondent says this Court wrongly interpreted s 48 of the OIA by conflating the defendant's pleading onus with an evidentiary onus, and requiring a defendant to prove a good faith state of mind, when that ought to be presumed from the existence of an official information request and a disclosure of information in response to it. The respondent's position is that there is a serious case to be made that this was an error of law, and that this Court's approach undermines s 48's efficacy. It adds that s 48 ought not require a defendant to prove "good faith" on the part of the person releasing information. Instead, good faith ought to be presumed from a request for information having been made, and a corresponding release of information having occurred. Effectively, the respondent contends that s 48 creates a reverse onus, where a claimant before the Tribunal must as part of its case both plead and prove that the disclosure of information was made in bad faith (or other than in good faith, if there is a distinction between those two formulations).[27] Again, I consider the respondent's position faces difficulties.[28] Section 48 of the OIA reads:(1) Where any official information is made available in good faith pursuant to this Act,—(a) no proceedings, civil or criminal, shall lie against the Crown or any other person in respect of the making available of that information, or for any consequences that follow from the making available of that information; and(b) no proceedings, civil or criminal, in respect of any publication involved in, or resulting from, the making available of that information shall lie against the author of the information or any other person by reason of that author or other person having supplied the information to a public service agency or Minister of the Crown or organisation.[29] Subsections (a) and (b) are predicated on the information being made available in good faith. While they do not contain an additional "good faith" requirement on the part of a person seeking to take advantage of the immunity, it is clear from subs (1) that good faith is a pre-condition for the immunity to crystallise. Section 48 also appears to be an immunity from liability that would otherwise exist. As such, it appears to be an affirmative defence, with the onus of proof on the party taking the point.[30] The second contention under this ground of appeal — that good faith ought to be presumed from the existence of an official information request and a disclosure in response to it — is also questionable. Although the threshold for a finding of good faith may be low, some evidence of good faith ought to be required. 10 The respondent's view of s 48 is presumptive and ignores the circumstances relating to the disclosure, which may give rise to an inference inconsistent with good faith. In effect, the approach would suggest an unlawful disclosure is justified unless and until the individual concerned establishes otherwise.[31] It seems more appropriate to suggest that if a party wishes to rely on s 48, it must establish the elements of the immunity are made out. That will normally be straightforward. But the immunity must nonetheless be made out; one cannot place the s 48 card on table and do nothing with it. That could amount to an immunity on top of an immunity.10 See Williams v New Zealand Police, above n 1, at [108] where this Court accepted that "a mandatory requirement for evidence from the official who made disclosure of the personal information asserting the disclosure was made in good faith could place the threshold too high. In some instances, it may not be possible to identify the individual who was responsible for the disclosure of relevant information. Nevertheless, the surrounding circumstances, and the contemporaneous documentary evidence may leave the Tribunal in no doubt that the disclosure was in good faith".[32] However, the fact these questions warrant such discussion simply underscores they are questions of law that are capable of serious argument. They also engage the public interest concerning the s 48 immunity and whether good faith is presumed in every case where there has been an otherwise unlawful disclosure of information in response to an OIA request.[33] Leave is therefore granted. I consider the questions of law should be:(a) Who carries the burden of establishing, or negativing, the elements of s 48 of the OIA?(b) Is good faith to be presumed from a disclosure of information in response to an OIA request?[34] I do not accept the appellant's submission that leave should be refused because the Court made factual findings that would be determinative of an appeal even if the respondent succeeded in its legal argument. Any factual finding made was based on questions of law the respondent now seeks to challenge. And, on appeal the "Court of Appeal shall have the same power to adjudicate on the proceedings as the High Court had", 11 which includes exercising any power the Tribunal could have exercised. 12[35] I do agree with the appellant's submission that these have been "extremely protracted proceedings", and what should have been a straightforward application in the Tribunal has turned into a complex and technical argument on appeal. Equally, it has been around five and a half years since Mr Williams brought his case to the Tribunal, and 12 years since his personal information was disclosed. But considerations of further delay and expense must ultimately yield to the importance of the questions of law.11 Human Rights Act, s 124(4).12 Section 123(6)(b).Result[36] Leave to appeal is granted on the basis of the questions as formulated at [24] and [33] of this judgment.Isac JSolicitors:Ord Legal, WellingtonCrown Law Office, Wellington