DOTCOM v CROWN LAW OFFICE [2023] NZHC 1122

DOTCOM v CROWN LAW OFFICE [2023] NZHC 1122 [11 May 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-000141[2023] NZHC 1122UNDER the Privacy Act 1993IN THE MATTER OF an appeal under section 123 of the HumanRights ActBETWEEN KIM DOTCOMAppellantAND CROWN LAW OFFICEFirst RespondentContinued over pageHearing: 2 March 2023Appearances: S L Cogan for appellantV E Casey KC and A P Lawson for respondentsJudgment: 11 May 2023JUDGMENT OF VAN BOHEMEN J ANDMEMBERS SUSAN ISAACS AND NICOLA SWAINThis judgment was delivered by me on 11 May 2023 at 3:00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarDate..Counsel/Solicitors:R M Mansfield KC, AucklandS L Cogan, AucklandV E Casey KC, WellingtonMackenzie Elvin, TaurangaCrown Law Office, WellingtonATTORNEY-GENERALSecond RespondentDEPARTMENT OF PRIME MINISTERAND CABINETThird RespondentIMMIGRATION NEW ZEALANDFourth RespondentMINISTRY OF BUSINESS, INNOVATIONAND EMPLOYMENTFifth RespondentMINISTRY OF FOREIGN AFFAIRS ANDTRADESixth RespondentMINISTRY OF JUSTICESeventh RespondentNEW ZEALAND POLICEEighth RespondentTable of ContentsBackground to appeal ........................................................................................................ [4]United States extradition requests .................................................................................... [5]Information privacy requests .......................................................................................... [10]Solicitor-General responses............................................................................................ [12]Extradition hearing commences ..................................................................................... [17]Complaint to Privacy Commissioner .............................................................................. [18]District Court finds Mr Dotcom and associates eligible for surrender .......................... [19]Privacy Commissioner's final views on Dotcom complaint............................................ [21]Complaint to Tribunal .................................................................................................... [22]High Court dismisses challenges to DC Extradition Judgment, but grants leave to appealon limited grounds .......................................................................................................... [23]Tribunal upholds Privacy Complaint.............................................................................. [25]Government agencies start to respond to information privacy requests ........................ [30]Court of Appeal dismisses challenges to HC Extradition Judgment. ............................. [32]High Court upholds appeal against HRRT Complaint Judgment .................................. [35]Leave to appeal granted on two questions of law........................................................... [37]Supreme Court decision on appeals against CA Extradition Judgment ......................... [39]Court of Appeal allows Mr Dotcom's appeal against HC Privacy Judgment ................ [40]Court of Appeal dismisses judicial review appeals ........................................................ [41]Tribunal declines to award damages to Mr Dotcom ...................................................... [44]HRRT Damages Judgment............................................................................................... [45]Mr Dotcom's appeal .......................................................................................................... [54]Submissions by counsel for Mr Dotcom ............................................................................. 19Submissions by counsel for the Attorney-General ............................................................ 22Nature of appeal ................................................................................................................... 24Questions for determination ............................................................................................... 24Relevant provisions of Privacy Act ..................................................................................... 25Was the Tribunal required to restrict its consideration to damages arising from harmcaused by the transfer of the information privacy requests? ........................................... 29Privacy Complaint ............................................................................................................. 30HRRT Complaint Judgment ............................................................................................... 30HC Privacy Judgment ........................................................................................................ 31Questions of law for the Court of Appeal .......................................................................... 33CA Privacy Judgment ........................................................................................................ 33Consequences of CA Privacy Judgment ............................................................................ 35Was the Tribunal bound by the High Court's finding that there was a proper basis torefuse the information privacy requests because they were vexatious? .......................... 37Was the Tribunal correct in holding that no damages for loss of benefit should beawarded?............................................................................................................................... 38The SC Disclosure Judgment ............................................................................................. 40Other challenges by Mr Dotcom........................................................................................ 43Was the Tribunal correct in holding that no damages for injury to feelings and loss ofdignity should be awarded? ................................................................................................ 44HC Privacy Judgment analysis of loss of dignity and injury to feelings ........................... 45This Court's analysis of loss of dignity and injury to feelings ........................................... 47Concluding observations ..................................................................................................... 51Result..................................................................................................................................... 51Costs ...................................................................................................................................... 52[1] Kim Dotcom appeals the decision of the Human Rights Review Tribunal (theTribunal) declining to award him damages for the wrongful transfer by Governmentdepartments and Ministers' offices (the Government agencies) of requests byMr Dotcom under the Privacy Act 1993 (the Act)1 for all personal information aboutMr Dotcom that was held by the Government agencies (the information privacyrequests).2[2] Mr Dotcom says the Tribunal made errors in its decision and asks the Court toset aside the decision and to award him damages of $200,000, the maximum sum thatmay be awarded by the Tribunal.[3] The Attorney-General opposes Mr Dotcom's appeal. The Attorney-Generalsays the Tribunal correctly understood its task and reached conclusions that werecorrect in law and in accordance with the evidence before it.Background to appeal[4] The background to the appeal is set out in the decisions of the High Court andCourt of Appeal dealing with earlier phases of this proceeding.3 For present purposes,it is sufficient to record the following summary of relevant facts and decisions.United States extradition requests[5] In January 2012, the Government of the United States of America requestedthe Government of New Zealand to extradite Mr Dotcom and three other persons tothe United States in accordance with the extradition treaty between the two countries.1 The Privacy Act 1993 was repealed and replaced by the Privacy Act 2020 with effect from1 December 2020. Under sch 1 cl 9(1) of the Privacy Act 2020, a proceeding commenced beforethe Tribunal under Part 8 of the Privacy Act 1993 before 1 December 2020 is to be continued andcompleted under the Privacy Act 2020. Despite that provision, in this decision, as in earlierdecisions in this proceeding that post-dated the commencement of the Privacy Act 2020, I refer tothe provisions of the Privacy Act 1993, as did counsel in their submissions. In all material relevantrespects, those provisions are substantially equivalent to the relevant provisions of the Privacy Act2020.2 Dotcom v Crown Law Office (Damages) [2022] NZHRRT 7 [HRRT Damages Judgment]3 Attorney-General v Dotcom [2018] NZHC 2564 at [20] – [82] [HC Privacy Judgment]; Dotcom vAttorney-General [2020] NZCA 551 at [15] – [38] [CA Privacy Judgment].[6] As stated by the High Court in one of the decisions dealing with the UnitedStates' extradition requests:4The United States of America claims that Mathias Ortmann, Bram van derKolk, Kim Dotcom, Finn Batato and others were members of a worldwidecriminal organisation that engaged in criminal copyright infringement andmoney laundering on a massive scale with estimated loss to copyright holderswell in excess of USD 500 million. The United States terms this the "MegaConspiracy". The case has been touted as one of the largest criminal copyrightcases ever brought by the United States.[7] Extensive litigation ensued in which, among other things, Mr Dotcom and hisassociates challenged the validity of the actions taken by the New Zealand authoritiesin relation to the United States extradition request. They sought discovery ofdocuments and disclosure of information they considered relevant to the extraditionrequests, including information on actions they believed had been taken by the UnitedStates and New Zealand authorities in relation to them. They also made numerousrequests for information under the Official Information Act 1982 (OIA) and under thePrivacy Act and brought proceedings to enforce some of those requests. They alsosought to stay the extradition proceedings.[8] Many of the issues raised were pursued until all appeal rights had beenexhausted.[9] Eventually, in May 2015, the hearing of the eligibility of Mr Dotcom and hisassociates for surrender in accordance with the Extradition Act 1999 was set down tocommence in the District Court on 21 September 2015.Information privacy requests[10] In July 2015, Mr Dotcom made information privacy requests of52 Government Ministers and agencies under s 37 of the Act. He asked that therequests be treated as urgent because the information was required for "pending legalaction".4 Ortmann v United States of America [2017] NZHC 189 [HC Extradition Judgment] at [1].[11] At the instigation of the Crown Law Office, most of the information privacyrequests were transferred by the Government agencies to the Crown Law Office,purportedly in accordance with s 39(b)(ii) of the Act.5 In letters to Mr Dotcom'ssolicitors, some Government agencies advised that they had consulted with theAttorney-General and their view was that the requests were more closely connectedwith the functions or activities of that office.Solicitor-General responses[12] On 5 August 2015, the Solicitor-General wrote to Mr Dotcom's counsel inresponse to the information privacy request to the Crown Law Office. The letter notedthat the request had been sent in identical terms to all Ministers of the Crown and hadrequested an urgent response. The letter said it was assumed that the "pending legalactions" on which the request for urgency was based referred to applications made tothe extradition Court or in contemplation. On that basis it said that the issues ruled onin the High Court's decision declining judicial review of the District Court's refusal tomake discovery orders in the extradition proceedings6 therefore arose again. The letteradvised that the Attorney-General considered that the information sought, to the extentit was held by other agencies, was more closely connected with his functions asAttorney-General and observed that most recipient agencies had transferred therequests to the Attorney-General's office. The letter advised that the Solicitor-Generalconsidered Mr Dotcom had not complied with the requirements of s 37 of the Act togive reasons why the request should be treated as urgent. It stated that, as currentlyexpressed, the request must be declined under s 29(1)(j) on the grounds it wasvexatious and, due to its extremely broad scope, included information that was trivial.[13] In a response dated 17 August 2015, solicitors acting for Mr Dotcom advisedthey had taken over responsibility for the requests, challenged the transfer of therequests and the right of the Attorney-General to respond to the requests and purportedto require the requests to be returned to the targeted agencies. The letter did not acceptthat the requests could reasonably be considered to be vexatious or only seeking trivialinformation. While maintaining Mr Dotcom's right to responses from all agencies,5 Although letters from some Government agencies referred to s 39(a)(ii) of the Act, it is commonground that the references should have been to s 39(b)(ii).6 Dotcom v United States of America [2014] NZHC 2550 [HC Judicial Review Judgment].the letter asked for urgent responses from the third to eighth respondents in thisproceeding.[14] On 31 August 2015, the Solicitor-General responded to Mr Dotcom's solicitorsstating that Crown Law did not accept that the letters were unlawfully transferred orthat it was inappropriate for Crown Law to decline the requests. The Solicitor-Generalincluded with his letter a copy of a letter, also dated 31 August 2015, sent to the PrivacyCommissioner requesting the Commissioner's advice on the Crown Law Office'sresponse to date to Mr Dotcom's requests and on the approach the Crown Law Officeproposed to take.[15] In the accompanying letter to the Privacy Commissioner, the Solicitor-Generalexplained why the Crown Law Office considered it had been appropriate to transferthe requests under s 39 of the Act. Among other things, the letter stated:In our view, the information requested was more closely connected with thefunctions of the Attorney-General in the particular context of [the extraditionlitigation] because it was apparent that the requests were not genuine PrivacyAct requests, but rather a litigation tactic and a fishing expedition.[16] The letter then set out why the Crown Law Office had reached that view. Insummary, the reasons were:(a) The information was required urgently for "pending litigation" but didnot specify what that litigation was;(b) The Crown was involved in multiple legal actions against Mr Dotcom,the most pressing of which was the extradition application which hadpreviously been delayed by interlocutory applications by Mr Dotcom,including applications relating to Privacy Act requests;(c) The requests were extremely broad and Mr Dotcom's counsel musthave known it would have been impossible for many of the recipientsto have responded urgently;(d) The solicitors who had taken over responsibility for the request hadmaintained that the requests should be treated urgently and had madeno significant attempt to reduce the information to an amount that couldrealistically be collated prior to the extradition hearing.Extradition hearing commences[17] On 21 September 2015, the hearing of the application for Mr Dotcom'ssurrender for extradition to the United States commenced in the District Court. Thehearing concluded on 24 November 2015.Complaint to Privacy Commissioner[18] On 28 October 2015, Mr Dotcom's solicitors made a complaint to the PrivacyCommissioner about the transfer and refusal of the information privacy requests.District Court finds Mr Dotcom and associates eligible for surrender[19] On 23 December 2015, the District Court issued its judgment finding thatMr Dotcom and his associates were eligible for surrender to the United States on all13 charges that formed the basis of the United States application for surrender.7 Inconcluding observations, the District Court Judge noted the very large volume ofmaterial presented at the hearing, much of which was not relevant to an eligibilityhearing. The Judge also recorded that the overwhelming preponderance of evidenceproduced by the United States established a prima facie case to answer for allrespondents on all counts.87 United States of America v Dotcom DC North Shore CRI-2012-092-001647, 23 December 2015[DC Extradition Judgment]. As recorded at [24], the charges were:(a) conspiracy to commit racketeering (count 1);(b) conspiracy to infringe copyright (count 2);(c) conspiracy to launder monetary instruments (count 3);(d) criminal copyright infringement by distributing a copyright work being prepared forcommercial distribution on a computer network, and aiding and abetting of criminalcopyright infringement (count 4);(e) criminal copyright infringement by electronic means, and aiding and abetting of criminalcopyright infringement (counts 5 - 8);(f) fraud by wire and aiding and abetting fraud by wire (counts 9 – 13).The charges constituted violations of Title 18 and, in some cases, Title 17 of the United StatesCode.8 At [699] – [700].[20] Mr Dotcom and his associates filed an application for judicial review of theDC Extradition Judgment and for a stay of the extradition proceedings and an appealby way of case stated of the DC Extradition Judgment. The appeal raised over 300questions of law. The United States also appealed aspects of the DC ExtraditionJudgment.Privacy Commissioner's final views on Dotcom complaint[21] In June 2016, the Privacy Commissioner provided final views on Mr Dotcom'scomplaint. In relation to the transfer of the information privacy requests, the PrivacyCommissioner's letter to Mr Dotcom's counsel stated that the Commissioner haddetermined that Crown Law had acted lawfully as legal adviser to the Governmentagencies. The letter also stated that the Commissioner had not concluded that allpersonal information held by the Crown about Mr Dotcom was trivial but, because ofthe breadth of the requests, they included trivial information. The letter also said theoverall volume and extent of the information privacy requests indicated that therequests were designed to frustrate or vex the respondents. The letter concluded that,while the Commissioner could not take the issue further, Mr Dotcom was free to takea case to the Tribunal.Complaint to Tribunal[22] In August 2016, Mr Dotcom made a complaint to the Tribunal (the PrivacyComplaint). The defendants were the respondents to the present appeal. Mr Dotcomalleged interference with his privacy by the wrongful transfer of the informationprivacy requests in breach of s 39 of the Act, the wrongful refusal of the requests inbreach of s 40 of the Act and the unlawful refusal to deal with the requests urgently.High Court dismisses challenges to DC Extradition Judgment, but grants leave toappeal on limited grounds[23] On 20 February 2017, the High Court answered the questions of law in theappeal brought by Mr Dotcom and his associates and by the United States against theDC Extradition Judgment and dismissed the judicial review of that judgment.9 The9 HC Extradition Judgment, above n 4.High Court confirmed the District Court's determination that Mr Dotcom and hisassociates were eligible for surrender on all counts in the United States indictment.10In its decision, the High Court rejected the appellants' contention that they had beendenied a fair eligibility hearing.11[24] On 2 August 2017, the High Court refused to grant leave to Mr Dotcom andhis associates to appeal the HC Extradition Judgment on the basis of approximately130 questions of law but granted leave to appeal on two specific questions of law.12The High Court also dismissed an application by the United States for leave to appeal.Tribunal upholds Privacy Complaint[25] In March 2018, the Tribunal upheld the Privacy Complaint.13 The Tribunaldeclared that there had been an interference with Mr Dotcom's privacy by the unlawfultransfer of the information privacy requests to the Attorney-General, and that theAttorney-General had no lawful authority to refuse the requests on the grounds thatthey were vexatious. In the alternative, the Tribunal declared that, if the transfers werelawful, there was no proper basis for refusing the information privacy requests on thegrounds they were vexatious.[26] The Tribunal awarded Mr Dotcom damages against the Attorney-General of$30,000 for the loss of a benefit Mr Dotcom might reasonably have been expected toobtain but for the interference and $60,000 for loss of dignity and injury to feelings.14In setting the amount for loss of benefit, the Tribunal had regard to a number ofdecisions dating from 2000 to 2015 in which damages of between $5,000 and $8,00010 At [599].11 At [590].12 Ortmann v United States of America [2017] NZHC 1809.The two questions on which leave to appeal was granted were:(a) Was the High Court Judge correct to find that the essential conduct with which theappellants are charged in each count constitutes an extradition offence for the purposes ofs 24(2)(c) of the Extradition Act 1999?(b) Was the High Court Judge correct to conclude that copyright in a particular work does notform part of the accused person's conduct constituting the extradition offences correlating tocounts 4 to 8; and to conclude that proof of this is not required for the purposes of s 24(2)(d)of the Extradition Act 1999?13 Dotcom v Crown Law Office [2018] NZHRRT 7 [HRRT Complaint Judgment].14 At [204] and [255].had been awarded for the failure to provide requested information.15 It said anyassessment of Mr Dotcom's case must have regard to the fact that Mr Dotcom believedcorrectly that a wide range of Government agencies had been collecting, storing andusing personal information about him; that it had been acknowledged by the NewZealand Government that the Government Communications Security Bureau (GCSB)had been monitoring Mr Dotcom; that it was understandable in these circumstancesthat Mr Dotcom wanted to monitor the collection, storage and use of his personalinformation by Government agencies and that the interference with Mr Dotcom'sprivacy had been uniform across a wide spectrum of 52 Government agencies.16 TheTribunal considered these factors made Mr Dotcom's case "exceptional if not unique"and that the level of damages awarded in earlier decisions provided no usefulguidance.17[27] The Tribunal recorded that Mr Dotcom was not seeking damages forhumiliation.18 It did not accept the Crown's submission that Mr Dotcom had adducedno evidence at all of loss of dignity and injury to feelings and referred to the notes ofevidence of the Tribunal hearing in which, the Tribunal said, Mr Dotcom had describedhis injured feelings.19 The Tribunal said that, given it had accepted Mr Dotcom as a15 At [223] – [233]. The decisions considered by the Tribunal were: Proceedings Commissioner vHealth Waikato HC Hamilton AP39/00, 12 July 2000, (2000) 6 HRNZ 274; Winter v Jans HCHamilton CIV-2003-419-854, 6 April 2004; Grupen v Director of Human Rights Proceedings[2012] NZHC 580; Director of Human Rights Proceedings v Schubach [2015] NZHRRT 4; Watsonv Capital and Coast District Health Board [2015] NZHRRT 27; Director of Human RightsProceedings v Hamilton [2012] NZHRRT 24; Director of Human Rights Proceedings v Valli andHughes [2014] NZHRRT 58. .16 At [239].17 At [240].18 At [244].19 At [246]. The relevant passages of Mr Dotcom's evidence were:A. These are very legitimate requests. I'm providing very legitimate reasonswhy I would like to have the information and the allegation that any of thisis vexatious or is designed to frustrate the Government is just completelynonsensical because if one thing becomes clear in all of this, it's that I havea real desire for this information, for the truth and that I am entitled to it.Under New Zealand law I'm entitled to it and you're not giving it to me.A. ... my entire business had been destroyed, I've been put in jail for a month,I've been subject to unlawful surveillance and, you know, my life and mymarriage has been destroyed. I was not interested in negotiating, what I'minterested in is the truth because I know I've done nothing wrong and Ibelieve you know I have done nothing wrong and I want to have thedocuments to prove that and then this whole case is done and I can move onwith my life. That is what I'm looking for, I'm looking for the truth and Ithink I'm entitled to it and everything that has happened so far indicates tocredible witness, it was of the view that he had clearly and unambiguously establishedloss of dignity and injury to feelings as defined in Hammond v Credit UnionBaywide.20[28] The Tribunal said that Mr Dotcom's circumstances included:21 the unfounded stigmatisation of his requests as vexatious and the equallyunfounded assertion that the requests were not genuine because they wereintended to disrupt the extradition hearing. Mr Dotcom's very genuine pursuitof the truth and his fully justified desire for a fair hearing had taken him firstto the Supreme Court and then to the High Court. In both fora he had beentold, in effect, to use the Privacy Act by addressing information privacyrequests to the relevant state agencies. When he did so, the requests werewithout justification characterised as not genuine, vexatious and intended todisrupt the extradition hearing. The resulting loss of dignity and injury tofeelings was substantial [29] For these reasons, the Tribunal considered that the upper end of the middleband of Hammond applied and that the appropriate award against the Attorney-General, as representing the Crown, was $60,000.22Government agencies start to respond to information privacy requests[30] The Attorney-General filed an appeal against the HRRT Complaint Judgment.In addition, from 30 April 2018, Government agencies began to respond to theinformation privacy requests that Mr Dotcom had filed previously. Some agenciesextended the timeframe for responding to the requests, which Mr Dotcom disputed.[31] From 15 June 2018, tranches of information were released by Governmentagencies to Mr Dotcom. All requests were eventually responded to, subject to thewithholding of some information under s 27 of the Act.me that there's no interest at all on the side of the government or the Crownto provide me with the truth....Q. My understanding of your evidence to the tribunal is that one of the reasonsthat you want your Privacy Act request is so that you can have a fair hearingon the stay application?A. Yes.20 At [245] – [ 247]. Hammond v Credit Union Baywide [2015] NZHRRT 6 (2015) 10 HRNZ 66 at[170].21 At [254].22 At [254].Court of Appeal dismisses challenges to HC Extradition Judgment.[32] After hearings in February 2018, on 5 July 2018, the Court of Appeal dismissedMr Dotcom's appeal against the HC Extradition Judgment.23 The Court answered"Yes" to both questions of law framed by the High Court, although its answer to thefirst question was for different reasons from those of the High Court.[33] The Court of Appeal also dismissed applications to stay the extraditionproceedings on various grounds, including the Attorney-General's handling of theinformation privacy requests. The Court also dismissed the appeal against the HighCourt's decision to decline judicial review of the DC Extradition Judgment. The Courtsaid the appellants were attempting to circumvent the circumscribed appeal rightsunder the Extradition Act and considered that to be an abuse of process.24[34] The appellants subsequently obtained leave from the Supreme Court to appealthe Court of Appeal's decisions dismissing their appeals against the HC ExtraditionJudgment and against the High Court's decision to decline judicial review.25High Court upholds appeal against HRRT Complaint Judgment[35] In October 2018, the High Court allowed the Attorney-General's appeal againstthe HRRT Complaint Judgment.26 The High Court held that there was a proper andlawful purpose for the transfer of the requests and that, because the requests wererequired to be responded to urgently on the ground that the information sought wasrelevant to the eligibility proceedings, the requests were vexatious.2723 Ortmann v United States of America [2018] NZCA 233, [2018], 3 NZLR 475 [CA ExtraditionJudgment].24 At [311].25 Ortmann v United States of America [2018] NZSC 126. The approved question on appeal was"whether the Court of Appeal was correct to dismiss the appeals (other than the [judicial reviewappeal])". However, by minute dated 24 January 2019, the Supreme Court confirmed that "theleave to appeal in relation to the judicial review proceedings was limited to whether the Court ofAppeal was correct to dismiss those proceedings as an abuse of process".26 HC Privacy Judgment, above n 3.27 At [239].[36] The High Court observed that, given its findings, it was not necessary toaddress the question of remedies. However, it expressed its views on the Tribunal'saward of damages in case it was wrong on its findings.28Leave to appeal granted on two questions of law[37] In April 2019, the High Court granted Mr Dotcom leave to appeal the HCPrivacy Judgment with respect to a single question of law:29Can a request for personal information under the Privacy Act 1993 betransferred by the recipient to another agency where the request seeks urgencyand the basis for the urgency request is not a matter that the recipient is ableto sensibly assess but the agency to which the request is transferred is the onlyagency able to properly evaluate the claimed basis for the urgency request?(Question 1)[38] In October 2019, the Court of Appeal granted Mr Dotcom special leave toappeal the HC Privacy Judgment with respect to the following further question:30Is a request for urgency under s 37 of the Privacy Act 1993 a relevant factorfor an agency in determining whether to refuse a request for personalinformation under s 29(1)(j) of that Act?(Question 2)Supreme Court decision on appeals against CA Extradition Judgment[39] On 4 November 2020, the Supreme Court dismissed most aspects of theappeals against the CA Extradition Judgment.31 The Supreme Court also held that theCourt of Appeal was in error in concluding that the judicial review proceedings werean abuse of process and allowed the judicial review appeals.32 The Supreme Courtsubsequently remitted the matter to the Court of Appeal for the purpose of identifying28 At [189]. The High Court's views on the Tribunal's award on damages are discussed later in thisjudgment.29 Dotcom v Attorney-General [2019] NZHC 740 [HC Leave Judgment].30 Dotcom v Attorney-General [2019] NZCA 509 [CA Leave Judgment].31 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 [Supreme CourtExtradition Judgment]. However, it held there was no available extradition pathway in respect ofcount 3 of the charges and discharged the appellants in respect of count 3.32 At [588] – [590].any outstanding issues in relation to the judicial review appeals that had not beenaddressed as part of the Extradition Act appeals and resolving those issues.33Court of Appeal allows Mr Dotcom's appeal against HC Privacy Judgment[40] On 10 November 2020, the Court of Appeal allowed Mr Dotcom's appealagainst the HC Privacy Judgment to the extent reflected in its answers to the approvedquestions.34 The Court of Appeal said the fact urgency was sought did not comprise apart of the information that was the subject of a request and did not provide a properbass for a transfer of the request to another agency. Accordingly, it answeredQuestion 1 in the negative. In response to Question 2, the Court of Appeal said arequest for urgency could be a relevant factor in a decision to refuse a request.35 TheCourt of Appeal also made a number of consequential directions.36Court of Appeal dismisses judicial review appeals[41] On 12 July 2021, the Court of Appeal held that there were no issues raised inthe judicial review appeals that were not addressed in the CA Extradition Judgmentand dismissed the judicial review appeals that had been remitted to it by the SupremeCourt.37 In reaching that decision, the Court rejected arguments of alleged breachesof natural justice, including alleged misconduct on the part of the authorities. Thisincluded Mr Dotcom's complaint about the Attorney-General's handling of theinformation privacy requests.38[42] The Supreme Court subsequently declined an application for leave to appealthe Court of Appeal's decision.[43] At that point, all issues relating to the extradition hearing had been resolved.In accordance with the Extradition Act, however, it is for the Minister of Justice todetermine whether Mr Dotcom and his associates are surrendered to the United States.33 Ortmann v United States of America [2021] NZSC 9 at [8].34 CA Privacy Judgment, above n 3, at [112].35 At [111].36 At [107] – [110].37 Ortmann v United States of America [2021] NZCA 310 [2nd CA Extradition Judgment].38 At [71].Tribunal declines to award damages to Mr Dotcom[44] On 15 February 2022, the Tribunal issued its decision on the referral of the CAPrivacy Judgment.39 The Tribunal declined to award any damages to Mr Dotcom.HRRT Damages Judgment[45] In the HRRT Damages Judgment, the Tribunal held that, given the terms of theCA Privacy Judgment, the issue of damages it was to determine was not "at large" andas if it were being addressed for the first time as part of the original hearing of thePrivacy Complaint.40 It also recorded that no party had filed briefs of evidence, despitebeing given the opportunity to do so.41[46] The Tribunal said it was subject to the following primary constraints:42(a) The Court of Appeal had remitted back to the Tribunal consideration ofdamages relating to the transfers and not the refusal of the informationprivacy requests;(b) The fact the transfers did not meet the requirements of the Act did notmake them void as if they had not occurred;(c) Because the parties had not produced further evidence, the Tribunal'sreconsideration of damages was limited to the evidence at the originalhearing;(d) The Tribunal was bound by the High Court's finding in the HC PrivacyJudgment that there was a proper basis to refuse the information privacyrequests; namely, that the requests were vexatious.[47] The Tribunal considered that the constraints on the scope of the appeal and thelimited terms of the remittal by the Court of Appeal precluded it from relying on its39 HRRT Damages Judgment, above n 2.40 At [14].41 At [15]42 At [16].earlier findings regarding the assessment of damages and that the CA PrivacyJudgment required it to reconsider the issue of damages in respect of the interferencewith Mr Dotcom's privacy by the wrongful transfer of the information privacyrequests. It said it was not able to assess damages for refusing the requests or thecharacterisation of them as vexatious, even though the Court of Appeal had held thata refusal to respond to the requests would not be supportable on the basis of the reasonsgiven by the Solicitor-General.43[48] The Tribunal held that any loss of benefit must be causally linked to thewrongful transfer. It noted that it was no longer necessary to speculate whether theclaimed loss of benefit might have reasonably been expected to accrue. In theintervening three years, Government agencies had provided the information requestedand Mr Dotcom had failed to identify any specific document that might potentiallyhave made a difference to his extradition hearing. Mr Dotcom's counsel also arguedthat the material withheld for national security reasons could be inferred to be relevantto his extradition hearing, but that the Tribunal considered this submission to be "sowide that no such inference can be reasonably drawn".44 Accordingly, the loss ofbenefit claim failed by reason of absence of evidence.45[49] On the claim for loss of dignity and injury to feelings, the Tribunal noted thatits original assessment for damages under these heads had been based on theallegations that the information privacy requests had been vexatious and intended todisrupt the extradition hearing.46 However, the scope of its inquiry this time had beenconsiderably narrowed by the terms of the CA Privacy Judgment. It stated:47The issues previously determined "at large" by the Tribunal in its originaldecision are now confined to whether Mr Dotcom has established by hisevidence given in early 2017 that the wrongful transfer of his informationprivacy requests caused loss of dignity or injury to his feelings.[50] The Tribunal noted that Mr Dotcom had not explicitly addressed any loss ofdignity or injury to feelings in his evidence at the original hearing. In the HRRT43 At [23] – [24].44 At [30].45 At [25] – [32].46 At [33].47 At [34].Complaint Judgment, it had inferred such loss by reference to the allegation that therequests were vexatious, not genuine and intended to disrupt the extradition hearing.However, the Tribunal considered that the "unfounded allegations" of vexatiousnessand attempted disruption of the extradition hearing could not be taken into accountbecause of the limited nature of the CA Privacy Judgment and the terms on which thedamages assessment had been remitted to it.48[51] As a consequence, the Tribunal considered that all that was left were thefinding by the Court of Appeal that the transfers of the information privacy requestswere invalid and an interference with Mr Dotcom's privacy and the further findingthat a refusal to respond to the requests on the grounds they were vexatious would notbe supportable on the basis of the reasons given in the Solicitor-General's letters of5 and 31 August 2015. The Tribunal said the highest Mr Dotcom could put his casewas that the Attorney-General had no authority, as transferee, to refuse to disclose therequested information. However, because that refusal to disclose had not been setaside, it remained valid in law and of full effect. As such it could not support an awardof damages.49[52] The Tribunal noted that complexity of this kind had not been anticipated whenMr Dotcom had given evidence in 2017 and that, understandably, his evidence had notaddressed the point. However, the Tribunal said that because Mr Dotcom had nottaken up the opportunity offered to provide further evidence, he had not dischargedhis burden of establishing that the wrongful transfer of the information privacyrequests had caused loss of dignity or injury to his feelings. Consequently, no damagescould be awarded.50[53] The Tribunal said that, because Mr Dotcom's claim failed for lack of evidence,there was no need to address the obiter and non-binding passages in the HC PrivacyJudgment concerning the damages award in the HRRT Complaint Judgment.51However, the Tribunal did respond on three specific points.52 In its first point, the48 At [36].49 At [37] – [39].50 At [40].51 At [42].52 At [43] – [47].Tribunal observed that the jurisdiction to award damages under s 88(1) was premisedon the humiliation, loss of dignity or injury to feelings experienced by the aggrievedindividual and not on the experiences of "a person of ordinary fortitude".53Mr Dotcom's appeal[54] Mr Dotcom alleges that the Tribunal made three errors in its decision:(a) It found that its assessment of damages was confined to the transfer ofthe privacy information requests and did not extend to the refusal of therequests;(b) It found that Mr Dotcom's claim for damages for loss of benefit failedfor lack of evidence; and(c) It found that Mr Dotcom's claim for damages for loss of dignity andinjury to feelings also failed for lack of evidence.Submissions by counsel for Mr Dotcom[55] Mr Cogan, counsel for Mr Dotcom, submits that the Tribunal misdirected itselfas to the constraints it was under in respect of the matters remitted back to it by theCourt of Appeal. In particular, the Tribunal incorrectly narrowed the scope of itsconsideration of damages to the transfers and did not consider the damage caused bythe refusals of the information requested.[56] Mr Cogan submits that the Tribunal erred by considering the requests throughthe lens of administrative law rather than through s 40 of the Privacy Act. That sectionrequires the decision on whether to grant or refuse a privacy request to be made by theagency to which the request was made or transferred in accordance with s 39.Mr Cogan submits that because the Court of Appeal held that the transfers wereinvalid, it follows the refusals were also invalid. It does not matter that the Court ofAppeal did not set aside the refusals. Because the Attorney-General was the wrongfultransferee, he had no authority to refuse the requests. It follows that those who were53 At [47].authorised to make the decisions on the requests were deemed to have refused them interms of s 66(3) of the Act, which deems a failure to deal with an information privacyrequest within the Act's timeframes as a refusal to make the information available.[57] Mr Cogan submits that the Tribunal also applied the wrong test whenconsidering the loss of benefit to Mr Dotcom. The test was not whether Mr Dotcomcould point to a specific document that might have made a difference at the eligibilityhearing. The test was whether, as a result of the interference with his privacy,Mr Dotcom lost his right to a fair eligibility hearing in accordance with the principlesof natural justice and a judgment of the Supreme Court which, he says, found thatMr Dotcom was entitled to disclosure.54 Mr Cogan also submits that the Tribunalfound, and that the Court of Appeal later confirmed, that Mr Dotcom had beenunlawfully deprived of such disclosure until after there had been an opportunity to usethe information in the extradition proceedings.[58] Mr Cogan draws an analogy with the Criminal Disclosure Act 2008 andsubmits that, if a prosecutor unlawfully withheld information they were required todisclose under that Act, it would not be open for them to assert that the informationwas not potentially relevant. Mr Cogan says further that the Tribunal, being of limitedjurisdiction and not seized of the eligibility hearing, was in no position to assess whatmight or might not have made a difference at the eligibility hearing. He says the causalconnection required is between the privacy breach and the pleaded loss. The loss inthis case was the loss of a fair eligibility hearing in accordance with the principles ofnatural justice and the SC Disclosure Judgment. Mr Dotcom was not required to dothe impossible and show that the withheld information would likely have influencedthe outcome of the extradition proceedings which, by then, had run their course.[59] Mr Cogan says no further evidence was required. It is plain from thechronology of events that, by the time Mr Dotcom had received the responses to theinformation privacy requests, he had lost the opportunity to use the information in theextradition proceedings. However, if further evidence was needed that the informationwas potentially relevant to the eligibility hearing, Mr Cogan submits that the fact some54 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 [SC DisclosureJudgment].information was withheld - on grounds of national security or prejudice to theentrusting of information on a confidential basis to the Government of New Zealandby another Government - confirms the requested information included informationprovided to Government agencies by the United States in connection with the requestfor Mr Dotcom's surrender.[60] Mr Cogan submits that the Tribunal was wrong to hold that Mr Dotcom'sevidence in 2017 did not address loss of dignity and injury to feelings. The Tribunalwas also wrong to hold that it could no longer take into account its findings in theHRRT Complaint Judgment that loss of dignity could be inferred from the allegationsthat Mr Dotcom's requests were vexatious, not genuine and or intended to disrupt theextradition hearing, because of the findings in the HC Privacy Judgment and becauseof the limited scope of the questions addressed in the CA Privacy Judgment. He alsosays the Tribunal was not constrained by the High Court's findings on damages, giventheir findings on the transfer and refusal of the requests, because they were obiter dicta.He says that Mr Dotcom had been stigmatised as having sought to engage infrustrating and delaying tactics and that there was more than sufficient evidence fromwhich the Tribunal could have inferred evidence of loss of dignity.[61] Mr Cogan submits that the maximum quantum of damages, $200,000, shouldbe awarded having regard to:(a) the profound implications of the extradition proceedings forMr Dotcom; the fact the requests were the only means of obtaining theinformation sought;(b) the fact there were five unlawful transfers by the agencies most directlyinvolved in the extradition;(c) the involvement of the Attorney-General in an effort to denyMr Dotcom a perceived opportunity to seek an adjournment of theextradition proceedings; and(d) the fact Mr Dotcom was stigmatised as acting strategically in seekingdisclosure to which he was entitled.Submissions by counsel for the Attorney-General[62] Ms Casey KC submits that the Tribunal was correct in considering only theharm to Mr Dotcom said to have arisen from the wrongful transfers of the informationprivacy requests and was correct to have excluded the effects of the refusals of therequests. There was a final and binding decision of the High Court that there wereproper grounds on which to decline the requests and Mr Dotcom failed to overturnthat finding on appeal. In addition, the Court of Appeal's decision expressly limiteddamages to those arising from the wrongful transfers.[63] Ms Casey submits that transfers that did not meet the requirements of the Actwere not void and they were not set aside by the Court of Appeal, which had nojurisdiction to do so under the Act. Even if there had been such jurisdiction, it is awell-established principle of administrative law that decisions of a competentdecision-maker are treated as valid until set aside by the Court of competentjurisdiction. No court has set aside the transfers or the refusals of the requests.[64] Ms Casey says further that, even if the transfers were void from the start sothat the Attorney-General was not the correct decision-maker, refusal of a privacyrequest is not an interference just because it was made by the wrong decision-maker.Under s 66(4), the substantive refusal is to be assessed on the basis of whether therewas no proper basis for the refusal, irrespective of who made that decision. In thiscase, the High Court had decided that there was such a proper basis.[65] Ms Casey submits it is significant that Mr Dotcom has not identified any harmsuffered by him because of the transfer decisions themselves. His claims areinextricably linked to the refusal of the requests, which meant he did not have accessto the information in the extradition proceedings. Losses arising from the refusal ofthe requests were outside the scope of the CA Privacy Judgment and are notrecoverable in this proceeding.[66] Ms Casey submits that the above disposes of Mr Dotcom's appeal. However,if the Court considers damages arising from the refusal of the information privacyrequests, Ms Casey submits that the Tribunal correctly applied the test identified bythe High Court by considering whether the requested information was likely to haveactually affected the outcome of the extradition hearing and whether there was someevidential basis for assuming that the information was potentially relevant. Ms Caseysubmits that this approach is consistent with the language of s 88(1)(b) of the Act andthe approach adopted by the Tribunal in other cases.[67] Ms Casey says the Tribunal was correct in recording that Mr Dotcom has failedto identify any specific document that potentially could have made a difference in hisextradition hearing. Ms Casey submits that the claim for damages as framed byMr Cogan – that Mr Dotcom was deprived of material to which he was entitled –appears to argue for a Baigent approach to damages,55 which would be outside theheads of damages allowed for under the Act. Ms Casey submits the regime in theCriminal Disclosure Act is not apt and says this Court has already ruled on theinterpretation of the SC Disclosure Decision.[68] More generally, Ms Casey submits that Mr Dotcom's claims of unfairness inrelation to the extradition proceedings are unfounded and a collateral attack on thoseproceedings. She says the extradition courts were fully aware of Mr Dotcom'sposition. Mr Dotcom's challenges to the fairness of the extradition proceedings,including on the basis of allegations of procedural misconduct, were considered anddismissed by the District Court, High Court and Court of Appeal.56[69] With regard to damages for injury to feelings and loss of dignity, Ms Caseysays the Tribunal accepted in its original decision that there was no direct evidence onthis point but inferred such harm. The High Court had been critical of the Tribunal'sprojection that Mr Dotcom must have felt stigmatised and had observed thatMr Dotcom's evidence had not been directed to any loss of dignity or injury to feelingsarising in relation to the information privacy requests. While that finding was strictly55 Simpson v Attorney-General [1994] 3 NZLR 667 – generally referred to as "Baigent's case".56 DC Extradition Judgment, above n 7, at [579] and [688]; HC Extradition Judgment, above n 4, at[552] – [553]; CA Extradition Judgment, above n 23, at [301].obiter, it was a fully considered observation of the Court and, Ms Casey says, confirmsthat actual evidence is required to justify an award of damages.[70] Lastly, Ms Casey says the quantum of damages Mr Dotcom seeks is excessiveand grossly out of step with other awards involving state wrong-doing.Nature of appeal[71] Under s 123(5) of the Human Rights Act 1993, when determining an appealfrom a decision of the Tribunal, the High Court has the powers conferred on theTribunal by ss 105 and 106, and those sections apply with such modifications as arenecessary.[72] Under s 105, the Tribunal must act according to the substantial merits of thecase, without regard to technicalities and, in exercising its powers and functions, theTribunal must act in accordance with the principles of natural justice, in a manner thatis fair and reasonable, and according to equity and good conscience.[73] Under s 123(6), in its determination of the appeal, the Court may confirm,modify or reverse any decision of the Tribunal.[74] Under s 123(7), the Court may, instead of determining an appeal, refer to theTribunal for further consideration the whole or any part of the matter to which theappeal relates.Questions for determination[75] The notice of appeal and submissions advanced on behalf of Mr Dotcom giverise to the following questions for determination:(a) Was the Tribunal required by the CA Privacy Judgment to restrict itsconsideration to damages arising from harm caused by the transfer ofthe information privacy requests?(b) Was the Tribunal bound by the High Court's finding that there was aproper basis to refuse the information privacy requests; namely, thatthey were vexatious?(c) Was the Tribunal correct in holding that no damages for loss of benefitshould be awarded?(d) Was the Tribunal correct in holding that no damages for loss of dignityor injury to feelings should be awarded?(e) If the Tribunal was not correct in its decisions on the award of damages,what damages should be awarded to Mr Dotcom?[76] Each of these questions is considered below. First, however, it is useful torecall relevant provisions of the Act as they related to Mr Dotcom's PrivacyComplaint.Relevant provisions of Privacy Act[77] Section 6 of the Act set out the information privacy principles around whichthe Act was structured. These included Principle 6 which provided:Principle 6Access to personal information(1) Where an agency holds personal information in such a way that it canreadily be retrieved, the individual concerned shall be entitled—(a) to obtain from the agency confirmation of whether or not theagency holds such personal information; and(b) to have access to that information.(2) Where, in accordance with subclause (1)(b), an individual is givenaccess to personal information, the individual shall be advised that,under principle 7, the individual may request the correction of thatinformation.(3) The application of this principle is subject to the provisions of Parts 4and 5.[78] Section 11 of the Act provided:(1) The entitlements conferred on an individual by subclause (1)of principle 6, in so far as that subclause relates to personalinformation held by a public sector agency, are legal rights, and areenforceable accordingly in a court of law.(2) Subject to subsection (1), the information privacy principles do notconfer on any person any legal right that is enforceable in a court oflaw.[79] Part 4 set out reasons on which requests for information may be refused. Theseincluded reasons of security, defence and international relations (s 27), protection oftrade secrets and other information that would be likely unreasonably to prejudice thecommercial position of the person who supplied or was the subject of the information(s 28) and other reasons (s 29). Under s 30, but subject to ss 7, 31 and 32, no reasonsother than those provided for in ss 27 to 29 justified a refusal to provide informationrequested pursuant to Principle 6.[80] Under s 29(1)(j), an agency could refuse to disclose requested informationpursuant to Principle 6 if the request was frivolous or vexatious, or the informationrequested was trivial. The term "vexatious" was not defined.[81] Part 5 included s 39, dealing with the transfer of requests, s 40, dealing withdecisions on requests and s 44, regarding reasons for the refusal.[82] Section 39 provided:Where—(a) an information privacy request is made to an agency or is transferredto an agency in accordance with this section; and(b) the information to which the request relates—(i) is not held by the agency but is believed by the person dealingwith the request to be held by another agency; or(ii) is believed by the person dealing with the request to be moreclosely connected with the functions or activities of anotheragency,—the agency to which the request is made shall promptly, and in any case notlater than 10 working days after the day on which the request is received,transfer the request to the other agency and inform the individual making therequest accordingly.[83] Section 40(1) relevantly provided:(1) Subject to this Act, the agency to which an information privacyrequest is made or transferred in accordance with this Act shall, assoon as reasonably practicable, and in any case not later than 20working days after the day on which the request is received by thatagency,—(a) decide whether the request is to be granted and, if it is to begranted, in what manner and, subject to sections 35 and 36,for what charge (if any); and(b) give or post to the individual who made the request notice ofthe decision on the request.[84] Section 41 allowed an agency to extend the timeframes for a response in certaincircumstances.[85] Section 44 provided that, where an information privacy request was refused,reasons had to be given to the requesting individual except in rare circumstances thatdid not arise in the present case.[86] Part 8 dealt with complaints. It defined what constituted an interference withprivacy (s 66), how a complaint was to be made (s 67), and, if a complaint was pursuedas far as the Tribunal, the powers of the Tribunal in relation to complaints (ss 84 and85).[87] Section 66(1) relevantly provided that an action was an interference with theprivacy of an individual, if in relation to that individual, the action breached aninformation privacy principle and:(b) in the opinion of the Commissioner or, as the case may be, theTribunal, the action—(i) has caused, or may cause, loss, detriment, damage, or injuryto that individual; or(ii) has adversely affected, or may adversely affect, the rights,benefits, privileges, obligations, or interests of that individual;or(iii) has resulted in, or may result in, significant humiliation,significant loss of dignity, or significant injury to the feelingsof that individual.[88] Under s 66(2), an action was an interference with the privacy of an individualif the action consisted of a decision made under pt 4 or pt 5 of the Act, includinga refusal to make information available in response to the request and theCommissioner or, as the case may be, the Tribunal is of the opinion that there is noproper basis for that decision.[89] Under s 66(4), undue delay in making information available in response to aninformation privacy request was deemed to be a refusal to make the informationavailable.[90] Under ss 84 and 85, an aggrieved individual could seek any of the followingremedies for proceedings under ss 82 or 83, which could be granted by the Tribunal ifit was satisfied on the balance of probabilities that any action of a defendant was aninterference with the privacy of an individual:(a) a declaration that the action of the defendant is an interference withthe privacy of an individual:(b) an order restraining the defendant from continuing or repeating theinterference, or from engaging in, or causing or permitting others toengage in, conduct of the same kind as that constituting theinterference, or conduct of any similar kind specified in the order:(c) damages in accordance with section 88:(d) an order that the defendant perform any acts specified in the orderwith a view to remedying the interference, or redressing any loss ordamage suffered by the aggrieved individual as a result of theinterference, or both:(e) such other relief as the Tribunal thinks fit.[91] Section 88 relevantly provided:(1) In any proceedings under section 82 or section 83, the Tribunal mayaward damages against the defendant for an interference with theprivacy of an individual in respect of any 1 or more of the following:(a) pecuniary loss suffered as a result of, and expenses reasonablyincurred by the aggrieved individual for the purpose of, thetransaction or activity out of which the interference arose:(b) loss of any benefit, whether or not of a monetary kind, whichthe aggrieved individual might reasonably have beenexpected to obtain but for the interference:(c) humiliation, loss of dignity and injury to the feelings of theaggrieved individual.Was the Tribunal required to restrict its consideration to damages arising fromharm caused by the transfer of the information privacy requests?[92] Both Mr Cogan and Ms Casey address the question of validity – the validity ofthe transfers of the information privacy requests and the validity of the refusals ofthose requests, and whether the CA Privacy Judgment affected the validity of either orboth decisions. They each analyse the effects of the CA Privacy Judgment with respectto such validity to support their respective cases. With respect to both counsel, we donot consider that analysis to be helpful.[93] As Ms Casey says, the Act was not concerned with the validity of decisions towhich it applied. Rather, the Act's focus was on whether a decision or action was aninterference with privacy, as is apparent from the provisions set out above.[94] Importantly:(a) The ability to bring a complaint under s 66(1) and to obtain relief unders 85 depended on establishing there had been an interference withprivacy; and(b) Under s 66(2), a decision to transfer a request where there was noproper basis for that decision, and a decision to refuse a request wherethere was no proper basis for that decision, was each, of itself, aninterference with privacy without the need to prove any of theconsequences in s 66(1)(b)(i)-(iii).[95] We agree with Ms Casey that, despite the breadth of the term "such other reliefas the Tribunal thinks fit" in s 85(1)(e), the Act did not confer powers to strike downor set aside actions that constituted an interference with privacy. We also agree withMs Casey that, for these reasons, the Court of Appeal was not making a determinationabout the continued effect of the transfer decisions when it said that it followed fromits answer to Question 1 that the transfers of Mr Dotcom's information privacyrequests to the Attorney-General were invalid. We take the word "invalid" in thiscontext to mean "not permissible" – a term used in the Court's answer to Question 1.[96] For these reasons, we see no reason for distinguishing between an "invalid"decision to transfer the information privacy requests and continuing "valid" decisionsto refuse those requests. The decisions on transfer and on refusal both remained ineffect after the CA Privacy Judgment. The question in both cases is whether thoseactions constituted an interference with Mr Dotcom's privacy, having regard to theterms of the CA Privacy Judgment.[97] Before considering that judgment, it is relevant to recall the relevant terms ofthe Privacy Complaint, the HRRT Complaint Judgment, the HC Privacy Judgment andthe terms on which leave to appeal the HC Privacy Judgment were granted. Weconsider that, through that process, the meaning and effect of the CA Privacy Judgmentbecome more apparent.Privacy Complaint[98] In the first cause of action in his Privacy Complaint, Mr Dotcom pleaded thatthe transfers of the information privacy requests were unlawful and, as a result of thetransfers being unlawful, the third to eight respondents breached s 40 of the Act byfailing to make the requested information available. By way of relief, Mr Dotcomsought a declaration that the transfer of the requests and the refusals of the requestsamounted to an interference with his privacy. In other words, the Privacy Complaintdirectly linked the actions of transfer and refusal and alleged that the unlawfulness ofthe refusals followed from the unlawfulness of the transfers.HRRT Complaint Judgment[99] In considering Mr Dotcom's Privacy Complaint, the Tribunal gave muchgreater attention to the transfers of the information privacy requests than to therefusals. The section dealing with both questions was headed "The Transfer Issue –Legal Analysis" and covered paragraphs [69] to [111], almost all of which dealt withthe transfers.[100] Towards the conclusion of that analysis, the Tribunal said:[104] For the reasons given our overall conclusion on the law is that [theAct], s 39(b)(ii) does not permit a transfer for the purpose put forward by theCrown, namely the obtaining of legal advice or for the purpose of coordinatingthe response to the request with the Crown's litigation strategy. Consequentlyour two key conclusions on the facts are:[104.1] The information to which the requests related was not moreclosely connected with the functions or activities of the Attorney-General than with the functions or activities of the transferringagencies.[104.2] The transfers took place in the absence of a properly groundedbelief by the transferors that the information to which the requestsrelated was more closely connected with the functions or activities ofthe Attorney-General.[105] As the transfers were not made in accordance with the Act theAttorney-General was not the lawful transferee under s 39(b)(ii). TheAttorney-General accordingly had no authority, as transferee, to refuse todisclose the requested information. In these circumstances Mr Dotcom hasestablished that in terms of s 66(2)(b) there was no proper basis for therefusal.[101] Paragraph [105] was the only discussion of the refusals. The decision that therewas no proper basis for the refusals flowed directly from the decision that theAttorney-General was not the lawful transferee. It is plain, therefore, that theTribunal's finding that Mr Dotcom's privacy was breached by the Attorney-General'srefusals of the requests was directly related to and contingent on its finding that thetransfers of the requests were not lawful.HC Privacy Judgment[102] Similarly, the HC Privacy Judgment was concerned predominantly with thelawfulness of the transfers. The focus of the judgment was on whether, as the HighCourt found, the request for urgency could be regarded as forming part of theinformation privacy request and as justifying the transfer of the requests to theAttorney-General. Apart from its consideration of whether the requests could berefused on the grounds they were vexatious, the High Court did not separately considerwhether the refusals of the requests amounted to an interference with Mr Dotcom'sprivacy.[103] On the question of vexatiousness, the High Court noted that the Crown casebefore the Tribunal had been based on the narrow contention that Mr Dotcom had animproper motive in making the requests.57 The High Court then noted that the Crowncase before it had not been so narrowly focussed and had relied on nine factors referredto by Crown counsel.58 The Court accepted that, on the basis of those nine factors,there had been a proper basis under s 29(1)(j) for the Attorney-General to haveconcluded that in the particular contexts of the requests they were vexatious. 59[104] On that basis, the High Court appeared to accept that all of the nine factorsreferred to by Crown counsel justified refusals of the requests on the grounds ofvexatiousness. However, as the Court of Appeal later observed, the High Court alsodrew attention to the fact that, in his letter of 5 August 2015 declining the requests, theSolicitor-General had made it clear that the only component of the request that madeit vexatious was that of urgency.60[105] In addition, at the conclusion of its judgment, when recording the Court'soutcomes, the High Court said:57 HC Privacy Judgment, above n 3, at [162], noting HRRT Complaint Judgment, above n 13, at[160].58 At [163]. See also [160].In summary, those factors were:(a) the close proximity of the eligibility hearing;(b) delay between an application to stay the extradition proceedings based on allegedmisconduct by Crown agencies that had been filed in October 2014 and theinformation privacy requests made in July 2015;(c) the blanket targeting of every Minister and almost every Government department;(d) the blanket claim for urgency for all information and across all agencies;(e) the breadth of the requests and the insistence on the widest possible application;(f) the refusal to narrow the requests;(g) earlier findings by the District Court and the High Court that such disclosure fromeven the most closely involved agencies would be "totally irrelevant" to theextradition proceedings;(h) the fact that, for a number of agencies, full compliance within 20 days would not bepossible;(i) the history of earlier Privacy Act and OIA requests indicating that timely and more sensiblyfocused and co-operative requests had been made where the requested information wasgenuinely sought for the purposes of the litigation.59 At [174].60 CA Privacy Judgment, above n 3, at [54]; HC Privacy Judgment, above n 3, at [186].[239] The appeal is allowed. We find that there was a proper and lawfulpurpose for the transfer of the requests and that, because of the insistence thatall 52 requests were required to be responded to urgently, on the ground thatthe information sought was relevant to the eligibility proceedings, the requestswere vexatious.Questions of law for the Court of Appeal[106] In its consideration of Mr Dotcom's application for leave to appeal the HCPrivacy Judgment, the High Court recorded that, following revision of the originalquestions in respect of which leave had been sought, leave was sought with respect tofour questions.61 One of those questions addressed the issue of refusal. However,because that question called into issue the High Court's factual finding that the requestfor information and the request for urgency were not separate requests, the Court heldthat the question did not meet the criteria for leave.62 As a result of that and associatedrulings, the only question of law on which the High Court granted leave to appeal,Question 1, was limited to the issues of transfer and urgency.[107] Question 2, for which the Court of Appeal granted special leave, was addressedonly to the issues of urgency and vexatiousness.[108] The net result of the HC and CA Leave Judgments was that the only questionsbefore the Court of Appeal for substantive decision were limited to whether:(a) a decision on transfer could take a request for urgency into account; and(b) a request for urgency could be relevant to a decision that a request wasvexatious.CA Privacy Judgment[109] In relation to Question 1, the Court of Appeal noted that, while the privacyprinciples did not, for the most part, create rights enforceable through the courts,different considerations applied with respect to Principle 6 as a consequence of s 11.63The Court noted that, consistent with the status of an enforceable right, pt 5 provided61 HC Leave Judgment, above n 29, at [3] – [7].62 At [18].63 CA Privacy Judgment, above n 3, at [68].specific procedural provisions to facilitate responses made pursuant to Principle 6.The Court noted that these provisions and procedures were provided for the effectiveand accountable operation of the Act with the objective of ensuring that a recipientagency was focused on the request and upon the information sought in accordancewith the rights that underpin the Act.64[110] The Court of Appeal agreed with counsel for the Privacy Commissioner thatthe procedural requirements of s 39(b)(ii) had to be met before a transfer was permittedunder the section.65 The Court also held that the fact that urgency was sought did notcomprise a part of the information sought in an information privacy request and didnot provide a proper basis for a transfer of the request to another agency.66[111] Accordingly, the Court answered Question 1 as follows:67No. A transfer of an information privacy request under s 39(b)(ii) ispermissible only if the person dealing with the request believes theinformation to which the request relates to be more closely connected with thefunctions or activities of the transferee agency. The fact that a requestor seeksurgent treatment of an information request, whether or not in the samedocument as the request, does not comprise part of the information to whichthe information request relates.[112] In relation to Question 2, the Court of Appeal said that the reasons advancedfor seeking urgency could inform the decision-maker on the issue of whether theinformation privacy request was vexatious and, in that manner, a request for urgencycould be a relevant factor for consideration in a decision to refuse the request.However, the mere fact of a request for urgency would not alone be a proper basis forrefusal.68[113] Accordingly, the Court answered Question 2 as follows:69Yes, it may be a relevant factor. Although the mere fact of a request for urgencywould not of itself generally be a proper basis for a finding of vexatiousness,we cannot exclude the possibility of there being circumstances where aninference of vexatiousness could be drawn from a request for urgency.64 At [73].65 At [93].66 At [96].67 At [111].68 At [106].69 At [111].Examples of such circumstances might include a grossly excessive number ofrequests for urgency or reasons given for urgency that are not credible. Allwill depend on the context in which the request for urgency is made.[114] In addition to answering the two questions, the Court of Appeal made a numberof consequential directions. In particular, it said:[107] It follows from our answer to Question 1 that the transfers ofMr Dotcom's information privacy requests to the Attorney-General wereinvalid and, on the face of it, an interference with Mr Dotcom's privacy.[108] It follows from our answer to Question 2 that a refusal to respond toMr Dotcom's requests on the grounds that they were vexatious would not besupportable on the basis of the reasons given by the Solicitor-General in hisletters of 5 and 31 August 2015. Ms Casey submitted that the High Court didnot find that the request for urgency was the only relevant ground to supportthe assessment that the request was vexatious. However the issue whether thedecision to decline the information requests in reliance on s 29(1)(j) forreasons different from those which were proffered at the time is not a matterbefore us on this confined appeal.[115] The Court of Appeal declined to reinstate the Tribunal's decision on thetransfer issue because:70 the Tribunal's decision on the transfer issue was based on the differentargument then advanced on behalf of the Crown that the transfer was for theobtaining of legal advice as well as the co-ordination of the Crown's response.[116] At the conclusion of its judgment, the Court of Appeal stated:[110] We consider that the appropriate order is to allow the appeal from theHigh Court judgment to the extent reflected in our answers to the twoapproved questions. The issue of damages should be remitted to the Tribunalfor reconsideration in the light of this judgment.Consequences of CA Privacy Judgment[117] As is clear from the above passages, the Court of Appeal allowed the appeal"to the extent" reflected in its answers to the two questions and directed the Tribunalto reconsider the issue of damages "in light of this judgment".[118] We are satisfied that, in making these directions, the Court was not limiting theTribunal to the strict confines of its answers to the two questions. We consider that70 At [109].the direction of the Court to the Tribunal to reconsider the issue of damages "in lightof this judgment" authorised the Tribunal to take into account not only the strict termsof the answers to the two questions but also any necessary consequences of thoseanswers in the light of its judgment.[119] In its answer to Question 1, the Court of Appeal held explicitly that a transferof an information privacy request under s 39(b)(ii) was permissible only if the persondealing with the request believed, on some objective basis, the information to whichthe request related to be more closely connected with the functions or activities of thetransferee agency.71 As held by the Tribunal and accepted by the High Court, thedecision to transfer the privacy information requests (and the decision to refuse therequests) had been for reasons other than those that related to the assessment of theinformation itself.72[120] The Court of Appeal's answer to Question 1 established that the transfer of theinformation privacy requests was an interference with Mr Dotcom's privacy. In termsof s 66(2) of the Act, it was a decision made under pt 5 for which there was no properbasis. While the Court of Appeal did not address separately the lawfulness of therefusals other than in relation to Question 2, it necessarily follows that, if there was noproper basis for the transfers, then there was no proper basis for the refusals of theinformation requests that had been made to agencies other than the Crown Law Office.Because those requests had been made to other agencies and because the transfers ofthose requests were not permissible, the Attorney-General had no authority under theAct to make the refusal decisions. Accordingly, the refusals were also impermissible.In terms of s 66(2), if the refusals were not permissible, there was no proper basis uponwhich the Attorney-General could have taken the refusal decisions and those decisionswere also, as a matter of law, an interference with Mr Dotcom's privacy.[121] These conclusions do not depend on any notional invalidity of the transferdecisions or on the notional refusal of the requests by those who should have madedecisions on the requests if they had not been transferred. Rather, they follow from71 At [92].72 HRRT Complaint Judgment, above n 13, at [67]; HC Privacy Judgment, above n 3, at [97].the logic of the Act and the CA Privacy Judgment. They are also consistent with theterms on which the Privacy Complaint was brought and decided.[122] As noted above, the Court of Appeal observed that the provisions andprocedures in pt 5 were provided for the effective and accountable operation of theAct. We are satisfied that it would not be consistent with that purpose or with theenforcement of rights under the Act or with the terms of Mr Dotcom's complaint orwith the CA Privacy Judgment, for the Tribunal to consider the effect of the transferdecisions on Mr Dotcom without also considering the effect of the refusals on him.[123] For these reasons, we consider that the Tribunal misdirected itself when it heldit was unable to consider damages for the refusal of the requests because, in theTribunal's view, the Court of Appeal had only remitted back to the Tribunalconsideration of damages relating to the transfers. We are satisfied that the Court ofAppeal's direction that the issue of damages should be remitted to the Tribunal forreconsideration in the light of its judgment included consideration of damages inrelation to the refusal of the requests.Was the Tribunal bound by the High Court's finding that there was a properbasis to refuse the information privacy requests because they were vexatious?[124] As noted above, in one part of its judgment, the High Court found that therewere grounds for finding the requests vexatious by reference to the nine factorsreferred to by Crown counsel. Later, the Court drew attention to the fact that theSolicitor-General's letter declining the requests had made it clear that the onlycomponent of the request that made it vexatious was that of urgency.73 The effect ofthose two findings is not clear.[125] We are satisfied, however, that, for the purposes of this judgment, what mattersis not what the High Court held as justifying the Solicitor-General's refusal on thegrounds of vexatiousness but what the Solicitor-General himself put forward as hisreasons for refusal in fulfilment of his obligations under s 44. As the Court of Appealobserved, whether information requests could be refused for different reasons from73 HC Privacy Judgment, above n 3, at [186].those proffered at the time was not before it and it took that question no further.74 Ifthe Court of Appeal declined to rule on that question, then we do not consider theTribunal should have accepted that it was bound by the High Court's finding that therewas a proper basis to refuse the information privacy requests for different reasons fromthose given at the time the requests were refused.[126] Whether or not other reasons may be adduced subsequently in support of adecision to decline a request, s 40(1) required that reasons for refusing an informationprivacy request be given within the 20 working days provided for in that section –unless the timeframe was extended in accordance with s 41.[127] The reasons given by the Solicitor-General for refusing to provide theinformation were those stated in his letters of 5 and 31 August 2015. As already noted,the Court of Appeal in its consequential directions held that a refusal to respond toMr Dotcom's requests on the grounds that they were vexatious would not besupportable on the basis of the reasons given by the Solicitor-General in those letters.We consider, therefore, that a decision to refuse the requests on the grounds ofvexatiousness as stated by the Solicitor-General in his letters of 5 and 31 August 2015,which were the only reasons given to Mr Dotcom at the time, would not provide aproper basis for that decision.[128] For these reasons, we are satisfied that the Tribunal erred when it held that itwas bound by the High Court's finding that there was a proper basis to refuse theinformation privacy requests because they were vexatious. The basis on which therequests had been refused was set out in the Solicitor-General's letter of 5 and31 August 2015 and the Court of Appeal held that refusal on that basis was "notsupportable".Was the Tribunal correct in holding that no damages for loss of benefit should beawarded?[129] It follows that we consider that the Tribunal erred in excluding fromconsideration any loss of benefit that Mr Dotcom might have been expected to obtain74 CA Privacy Judgment, above n 3, at [108].from the refusal of the information requests and in limiting its consideration to suchloss of benefit that Mr Dotcom might have been expected to obtain from the transferof the information requests. Accordingly, we now consider whether Mr Dotcom mighthave expected to obtain a benefit from the information that had been denied to him bythe transfer and the refusal of his requests, both of which were an interference withMr Dotcom's privacy under s 66(2).[130] It is well established that any loss of benefit must be causally linked to therefusal of the requests; that is, the interference with privacy. However, that causal linkis conditioned by the language of s 88(1)(b), which requires that the loss of benefitwas one which Mr Dotcom "might reasonably have been expected to obtain" but forthe interference with his privacy.[131] Accordingly, we agree with Mr Cogan that loss of benefit can include the lossof being able to use the information in the extradition proceedings. We do not considerthat this strains the language of s 88(1) or raises the risk of establishing some newcategory of Baigent damages outside the heads of damages allowed for under the Act.However, we do not accept that all that is required is to establish a causal connectionbetween the breach and the pleaded loss. That would leave it open to a defendant toplead any loss it chose, however fanciful.[132] We agree that Mr Dotcom does not have to establish that the requestedinformation was likely to have actually affected the outcome of the extradition hearing.We consider that puts the bar too high, having regard to the language of s 88(1)(b). Asthe High Court held in Proceedings Commissioner v Health Waikato Ltd, for loss ofbenefit to be established, it does not have to be proven that the withheld informationwould have made a difference in subsequent litigation.75 It is enough to show that itcould have been put to some use, such as in cross-examination or in submissions.76[133] We consider that, in order to justify an award of damages under s 88(1)(b),Mr Dotcom must show that there was an objective basis for concluding that the75 Proceedings Commissioner v Health Waikato Ltd, above n 15, at [70].76 At [71].requested information would have been relevant to the extradition proceedings andcould have been put to some use in those proceedings.[134] The difficulty with the case advanced by Mr Cogan is that it presumesrelevance but provides no basis for the Court to be satisfied on that point. Nor doesthe case advanced by Mr Cogan accurately reflect the findings of the Supreme Courtin the SC Disclosure Judgment or take into account clear findings by the Courts aboutthe information to which Mr Dotcom was entitled in those proceedings and the risksto the fairness of those proceedings if the information was not available to him.The SC Disclosure Judgment[135] The SC Disclosure Judgment is not authority for the broad propositionsasserted by Mr Cogan. The decision concerned an appeal by Mr Dotcom against adecision by the Court of Appeal overturning disclosure orders made by the DistrictCourt, and upheld by the High Court, in the extradition proceedings. Four SupremeCourt judges dismissed the appeal; the then Chief Justice, Elias CJ, would haveallowed it. However, even though Elias CJ would have allowed the appeal, HerHonour made it clear that the rights of disclosure in an extradition proceeding must beconsidered in their context:[87] Because the requirements of natural justice in respect of the eligibilityhearing are shaped by that hearing, disclosure relevant not to the determinationof eligibility but to matters in issue at trial may not be appropriate for pre-hearing disclosure. I also accept, too, that in establishing a prima facie casethe requesting country is entitled to identify the evidence it relies on. I see thescope of disclosure as generally limited to that evidence and material whichbears on its reliability. [136] The other four judges upheld the Court of Appeal's decision and dismissedMr Dotcom's appeal in terms considerably more constrained than was suggested byMr Cogan.[137] McGrath and Blanchard JJ agreed that Mr Dotcom had the right to observanceof the principles of natural justice in the Court's processes under s 27(1) of the NewZealand Bill of Rights Act.77 However, they went on to observe that the content of the77 SC Disclosure Judgment, above n 54, at [118].right to natural justice was always contextual and that the question was, what form ofprocedure was necessary to achieve justice without frustrating the apparent purpose ofthe legislation – in that context, the Extradition Act.78[138] McGrath and Blanchard JJ later considered the more particular question ofwhat information or degree of information was required by natural justice in theextradition process.79 After considering relevant Canadian authorities, in which theCanadian Courts had contemplated that an extradition judge might have the power toorder disclosure of material where there was "an air of reality" to allegations of aviolation of the Canadian Charter of Rights and Freedoms, McGrath and Blanchard JJstated:[190] A person the subject of extradition proceedings in New Zealand is notentitled to disclosure of the kind available in domestic criminal proceedings.The entitlement is no more than to receive, in advance of the extraditionhearing, the material on which the requesting state will rely before theextradition court.[139] In his separate judgment, William Young J observed that the appellants werenot seeking any particular disclosure and had made no attempt to show that there wasany particular aspect in which they would be prejudiced if particular documents werenot provided.80 His Honour agreed that s 27 of the New Zealand Bill of Rights Actwas applicable and that the appellants were entitled to the observance of the principlesof natural justice and that an extradition court must provide a person facing extraditionwith a fair opportunity to respond to the case presented by the requesting state.81[140] William Young J noted that a person whose extradition is sought may, underthe OIA, seek prehearing disclosure against any New Zealand agencies involved inthe extradition process and considered that the extradition court had the right toenforce the right of access to personal information under the OIA.82 However, outsidethose provisions, His Honour saw no obvious source of power to require disclosure of78 At [120].79 At [185].80 At [203].81 At [212].82 At [231].material that was not to be relied upon by the requesting state and no necessity forsuch a power to be implied.83[141] Glazebrook J observed that it was for the requesting state to decide whatinformation it put forward and it took the risk that, if insufficient material wasprovided, the extradition judge would not be satisfied that a prima facie case existed.84Her Honour also observed that the appellants had requested general disclosure andasserted that they would be unable to participate in the extradition hearing fully, fairlyand properly. However, that had been argued at the level of principle rather than bythe appellants identifying the respects in which they would be affected by particularinformation.85 Her Honour agreed with McGrath and Blanchard JJ that, because ofthe nature of the case against them, and their possession of information on their ownpersonal affairs, the appellants did not appear to be prejudiced in their conduct of theextradition hearing by any lack of access to further information.86[142] It is clear from these passages that none of the Supreme Court judges statedfairness principles of the breadth asserted by Mr Cogan. It is also clear that nothingin those passages provides a basis for concluding that Mr Dotcom was prejudiced inany way in the extradition hearing by not receiving the requested information, bearingin mind that the decision on whether Mr Dotcom was eligible for surrender dependedon the sufficiency of the evidence put forward by the United States and not on anyinformation Mr Dotcom might obtain from Government agencies. It is also clear fromthese passages that the analogy that Mr Cogan seeks to draw with the CriminalDisclosure Act is not applicable. The inference that Mr Cogan invites us to draw fromthe grounds on which some information had been withheld – that it must have beenprovided by the United States – goes nowhere. If there was such information and itwas not used in the extradition proceeding, it is entirely speculative to believe it mayhave been relevant.83 At [238].84 At [261].85 At [302].86 At [306].Other challenges by Mr Dotcom[143] As discussed in the HC Privacy Judgment,87 shortly after the release of the SCDisclosure Judgment, Mr Dotcom made requests for information under the OIA,applied to vacate the eligibility hearing, which had been set down for July 2014, andsought judicial review of the District Court's refusal to make further discovery orders.[144] In the HC Judicial Review Judgment, the High Court dismissed Mr Dotcom'sapplication for judicial review, which, among other things, challenged a DistrictCourt's decision to dismiss an application for discovery by various Governmentagencies of all information held by them concerning Mr Dotcom and the others whoseextradition had been sought by the United States.88 Simon France J held that therequest for all personal information held by the Government agencies was apermissible request but was not one with which the extradition Court should concernitself and that there was no basis at all to consider that the request was relevant to theextradition proceedings.89[145] As discussed above, Mr Dotcom also raised the information privacy requestsbefore the Court of Appeal to support his application to stay the extraditionproceedings. The Court of Appeal took note of the award of damages in the HRRTComplaint Judgment but did not accept that the decision confirmed an abuse of processthat would undermine public confidence in the judicial system.90 The Court said:91The conduct at issue does not come close to establishing the high thresholdrequired and to attempt to rely on it for the purposes of staying anextradition is misconceived."[146] The Court of Appeal had regard to Mr Dotcom's allegations about theinformation privacy requests again when, at the Supreme Court's direction, itconsidered whether there were any outstanding issues in relation to the judicial reviewappeals that had not been addressed as part of the Extradition Act appeals.92 The Court87 HC Privacy Judgment, above n 3, at [33] – [68],88 HC Judicial Review Judgment, above n 6. The discovery orders were sought against the Ministerof Justice, the Ministry of Justice, the New Zealand Police, the Government CommunicationsSecurity Bureau, New Zealand Customs and the Department of Corrections89 At [83].90 CA Extradition Judgment, above n 23, at [302] – [303].91 At [303].92 2nd CA Extradition Judgment, above n 37.said the merits of those allegations had been addressed in the CA Extradition Judgmentand said, "We concluded the conduct relied on did not "come close to" amounting toan abuse of process warranting a stay."93[147] Given this history of specific judicial rejection of Mr Dotcom's allegations ofprejudice or of a lack of fairness in relation to the earlier requests for disclosure ofpersonal information and in relation to the lack of a response to the informationprivacy requests, it is not sufficient for Mr Dotcom simply to assert the possibility ofa benefit from having access to the information requested at the extraditionproceedings. That is particularly so where, as here, Mr Dotcom has had access to thatinformation, albeit after the event. In order to demonstrate he might reasonably havebeen expected to obtain a benefit from having such access, Mr Dotcom must show thatthere was something in the documents that might have had some relevance to and putto some use at the extradition hearing. Beyond making the general and vague assertionthat there might be something relevant behind the black lines of redacted informationwithheld in accordance with s 27 of the Act, Mr Cogan has provided nothing at all.[148] For these reasons, we agree with the Tribunal that Mr Dotcom has notestablished that there was any benefit that he might reasonably have been expected toobtain but for the interference with his privacy, whether by the transfer of theinformation privacy requests or the refusal of the requests.[149] Accordingly, we consider the Tribunal was correct in finding that no damagesshould be awarded for loss of benefit.Was the Tribunal correct in holding that no damages for injury to feelings andloss of dignity should be awarded?[150] The Tribunal considered that, in light of the High Court's findings onvexatiousness, it was not open to it to infer any loss of dignity or injury to feelings byreference to the allegation that the requests were vexatious, not genuine and intendedto disrupt the extradition hearing. Because we have held that the characterisation ofthe requests as vexatious cannot stand in light of the Court of Appeal's further93 At [70].directions, that constraint no longer applies. Accordingly, we now consider whetherthe evidence establishes that the refusal of the requests caused Mr Dotcom loss ofdignity or injury to feelings or establishes a basis for inferring loss of dignity or injuryto feelings.[151] In that regard, it is useful to recall what the High Court said about the Tribunal'sdecision on damages for loss of dignity and injury to feelings in the HRRT ComplaintJudgment. While the High Court's observations and findings were obiter and, in anyevent, not binding on this Court, we have considered that analysis.HC Privacy Judgment analysis of loss of dignity and injury to feelings[152] The High Court considered that, in the paragraphs in Mr Dotcom's evidencefrom which the Tribunal had inferred that Mr Dotcom had suffered loss of dignity andinjury to feelings, Mr Dotcom was not directing his evidence to any loss of dignity orinjury to feelings in relation to the information privacy requests but was expressing anemotional response to "a whole raft of matters", many of which occurred some yearsbefore the requests.94 The Court considered the Tribunal had fallen into the error ofregarding Mr Dotcom's unhappiness at "a whole range of disparate issues" as beingrelevant to its assessment of what loss of dignity and injury to feelings he sustained inrelation to his requests.95[153] The High Court considered the Tribunal had compounded that error by usingemotive language such as "stigmatised" in relation to the Attorney-General describingthe requests as "vexatious". The Court noted that the Attorney-General had not saidMr Dotcom was vexatious or had been conducting the extradition litigationvexatiously. The Attorney-General had said the request was vexatious for the purposesof s 29(1)(j) of the Act. The Court said that was not something that stigmatisedMr Dotcom and did not have a "real sting".96[154] The High Court said there had been little analysis of the specific effect onMr Dotcom, which was because he had given "no evidence at all" as to its effect on94 HC Privacy Judgment, above n 3, at [222].95 At [223].96 At [224] – [ 226].him. The Court observed that Mr Dotcom had not claimed that the effect wasstigmatising as the Tribunal had concluded.97 The Court then stated:[231] Standing back and looking at the evidence as a whole, there is noevidence that Mr Dotcom was emotionally fragile, or that his feelings wereaffected in any particular way as a result of the refusal of this request. Thecontext indicates that this was just one request in a long series of requestsstretching over several years where this was the only instance of a requesthaving been declined on the ground of being vexatious. The evidence alsodisclosed that, over the years, he had used requests for information tacticallyand, with the assistance of skilled professional advisers, had managed to delaythe extradition hearing some three and a half years. In those circumstances, itwould be difficult to infer that a person of ordinary fortitude would havesuffered significant loss of dignity or injury to feelings, let alone a person ofthe obvious fortitude of Mr Dotcom.[155] The Court considered that the Tribunal had lost sight of the fact that damagesunder s 88 were designed for consequences that have either been established byevidence or which, in limited cases, can be inferred, and that punishment of thedefendant had no part in such damages.98[156] The High Court considered that the case seemed to fall into the same categoryas Winter v Jans where, while there would naturally be some anxiety and stress fromnot knowing what information, additional to that already disclosed to him, might havebeen found in the records of the 52 recipients, the circumstances was such that it couldnot be inferred that the injury to feelings was significant. It said that given that thecase did not meet the threshold for implying significant consequences, the absence ofany direct evidence relating to Mr Dotcom having suffered loss of dignity or injury tofeelings meant there was no basis for an award under s 88(1)(c).99[157] It therefore found that the figure for compensation for loss of dignity and injuryto feelings was also "wholly erroneous" and said it would also have remitted thismatter to the Tribunal for consideration.10097 At [230].98 At [232].99 At [235] – [236]. Winter v Jans, above n 15.100 At [237] – [238].This Court's analysis of loss of dignity and injury to feelings[158] We agree with some aspects of the High Court's analysis in the HC PrivacyJudgment. However, we depart from that analysis in a number of important respects.[159] First, we agree with the High Court that the causal connection between theinterference with privacy and the claimed loss of dignity or injury to feelings must beestablished from the evidence, either directly or by inference. We do not agree,however, that inferences can be drawn only in a limited number of cases or that theCourt must be satisfied that the loss of dignity or injury to feelings must be significantbefore damages can be awarded. Each case must turn on its own circumstances.Section 88(1)(c) provides that damages may be awarded for humiliation, loss ofdignity and injury to the feelings of the aggrieved individual. It does not establish anythreshold of significance.[160] Next, we agree with the High Court that loss of dignity or injury to feelingsshould not be inferred from the "stigmatisation" of the allegation of "vexatiousness".Section 29(1) of the Act specifically provides that an information privacy request maybe refused on the grounds it is vexatious. We do not accept that reliance on thatstatutory ground of refusal automatically gives rise to stigmatisation or constitutes abasis for inferring stigmatisation and, therefore, a loss of dignity.[161] Related to the above point, we do not agree with the Tribunal's view in theHRRT Complaint Judgment that the Solicitor-General's statements in his letter of31 August 2015 to the Privacy Commissioner that Mr Dotcom's requests were notgenuine and had been intended to disrupt the extradition hearing were unfounded.[162] First, given the history of applications by Mr Dotcom for the evident purposeof challenging and delaying the extradition process, we see nothing unfounded orinappropriate in the Solicitor-General expressing those views in his letter of 31 August2015 to the Privacy Commissioner. Our reasons are:(a) given the lengthy history of the litigation, including variousapplications to stay the extradition proceedings, it was obvious thatMr Dotcom had been trying to delay the extradition proceedings;(b) given that the information requests were made within two months ofthe extradition proceedings being set down for hearing and two monthsbefore that hearing was to begin, it was not unreasonable for theSolicitor-General to conclude the requests were being made to delaythat hearing;(c) given that Mr Dotcom had been told by the Supreme Court in theSC Disclosure Judgment that the extradition application would bedecided on the basis of the evidence adduced by the United States and,as a consequence, not on the basis of information held by the NewZealand Government, and given that Simon France J had toldMr Dotcom that there was no basis at all to consider that the request inhis later discovery application was relevant to the extraditionproceedings, it was not unreasonable for the Solicitor-General toconclude the requests were not genuine Privacy Act requests;(d) given that Mr Dotcom's counsel had referred to pending litigation whennaming the requests and that the use of tactics, including fishingexpeditions, are not uncommon in litigation, we do not consider itunreasonable for the Solicitor-General to have seen the requests in thatlight.[163] Secondly, the Solicitor-General's views were stated to the PrivacyCommissioner and not to the world at large. Moreover, the Privacy Commissionerhimself said, in his letter of June 2016 to Mr Dotcom's counsel, that the overall volumeand extent of the information privacy requests indicated that the requests weredesigned to frustrate or vex the respondents.[164] For these reasons, we agree with the High Court that the Tribunal was in errorin inferring loss of dignity and injury to feelings because the information requests hadbeen refused on the grounds of vexatiousness and because of the Solicitor-General'scharacterisation of the information requests in his letter to the Privacy Commissioner.The fact that the Court of Appeal has since held that the refusal of the requests on thegrounds that they were vexatious would not be supportable on the basis of the reasonsgiven by the Solicitor-General does not alter our assessment that refusal on thestatutory ground of vexatiousness was not, in Mr Dotcom's circumstances, a sufficientbasis to infer loss of dignity and injury to feelings.[165] We do not agree, however, with the conclusion of the High Court thatMr Dotcom's evidence at the Tribunal hearing in 2017 did not address the refusal ofthe information privacy requests. In that evidence, Mr Dotcom referred directly to theinformation privacy requests and the fact they had been refused on the grounds ofvexatiousness. While he also referred to other matters that were not relevant to therequests, he said he wanted the documents to prove he had done nothing wrong andwanted the Crown to provide him with the truth.[166] If, by these references to proving he had done nothing wrong and wanting thetruth, Mr Dotcom was meaning that the information might help him in the extraditionproceeding, he was plainly in error and was paying no regard to the decisions of theSupreme Court and the High Court. However, the fact Mr Dotcom was wrong andwas not having regard to the Courts' decisions does not mean that he did not refer toor give reasons for his information privacy requests in the evidence he gave in 2017.[167] The question, therefore, is whether that evidence is sufficient to infer thatMr Dotcom suffered some loss of dignity or injury to feelings simply from the refusalof the requests. We are satisfied that it does not. We consider the evidence is sufficientto draw the inference that Mr Dotcom disagreed with the refusal of the requests. Wedo not consider it is sufficient to draw inferences of any greater impact.[168] As the Tribunal said in its comments on the High Court's observations ondamages in the HC Privacy Judgment, the jurisdiction to award damages under s 88(1)was premised on the loss of dignity or injury to feelings experienced by the aggrievedindividual.101 That is, in considering whether damages should be awarded, we mustconsider the effect of the refusals on Mr Dotcom and not some hypothetical individual.That is confirmed by the High Court's decision in Chief Executive of the Ministry ofSocial Development v Holmes, where the Court reduced the damages that had beenawarded by the Tribunal because the Tribunal had based its award on "an objective101 HRRT Damages Judgment, above n 2, at [44].approach" as opposed to looking at the particular context of the case and thecapabilities and experience of the complainant.102[169] In O'Hagan v Police, the Tribunal, with reference to the High Court's findingsin Holmes, made the following observation:103Where an individual has been in an antagonistic relationship with an agency,he or she may experience ongoing feelings of anger, impotence andinsignificance that are in no way caused by that agency's failure to provideinformation in accordance with the Privacy Act. Where this is the case thosefeelings are not compensable by any award of damages for a breach.[170] When Mr Dotcom made the information privacy requests, he had beeninvolved in numerous and extensive proceedings relating to the United States'application for his extradition and the steps the New Zealand authorities had taken inresponse to that application. While Mr Dotcom had some success in thoseproceedings, for the most part, his various challenges to the actions of the NewZealand authorities did not succeed. He had considerable experience with setbacks.In addition, he had been told by two Senior Courts that the information held byNew Zealand Government agencies would have no relevance to the extraditionproceedings, which would be determined on the basis of the evidence adduced by theGovernment of the United States. Mr Dotcom chose to make the information requestsregardless, as was his right. However, given the history leading up to those requests,it strains credulity to accept that Mr Dotcom would have suffered any actual loss ofdignity or injury to feelings when the requests were refused.[171] Having regard to the discussion of the meaning of human dignity and injury tofeelings in Hammond v Credit Union Baywide,104 we do not consider there is evidenceto conclude, on the balance of probabilities, that Mr Dotcom's self-respect or self-worth or psychological integrity or sense of empowerment were affected by the refusalof the requests. While there is evidence that he considered he had been treatedunfairly, that alleged unfairness did not relate to the refusal of the requests but to theother things that had happened to him. For the same reasons, we are satisfied, on the102 Chief Executive of the Ministry of Social Development v Holmes [2013] NZHC 672 at [161].103 O'Hagan v Police [2020] NZHRRT 22 at [67].104 Hammond v Credit Union Baywide, above n 20, at [170].balance of probabilities, that the refusal of the requests would not have causedMr Dotcom any real fear, grief, sense of loss, anxiety, anger, despair or alarm.[172] We do not consider there is any parallel with Mr Dotcom's circumstances andthose where complainants have been awarded damages for the failure to provideinformation in response to an information privacy request:(a) Unlike the complainant in Vivash v Accident CompensationCorporation, there is no evidence to indicate the refusal causedMr Dotcom anguish, dismay, unhappiness, stress or depression;105(b) Unlike the complainant in Patel v Dean, there is no evidence to indicatethe refusal caused Mr Dotcom to feel helpless and hopeless or that itaffected his health;106[173] For these reasons, we agree with the Tribunal, albeit for different reasons, thatMr Dotcom has not established that he suffered any loss of dignity or injury to feelingssimply because of the transfer and refusal of the information privacy requests.Accordingly, we agree that Mr Dotcom is not entitled to damages under s 88(1)(c) ofthe Act.Concluding observations[174] The above conclusions do not mean that the Government agencies were free todisregard the requirements of the Act or that Mr Dotcom was without effectiveremedies for their non-compliance with the Act. However, damages are only one ofthe remedies that could have been ordered under s 85. The purpose of damages is tocompensate for actual humiliation, loss of dignity or injury to feelings. It is not topunish.Result[175] Mr Dotcom's appeal is dismissed.105 Vivash v Accident Compensation Corporation [2020] NZHRRT 16 at [93] – [102].106 Patel v Dean [2020] NZHRRT 37 at [60].Costs[176] As the Attorney-General has been the substantially successful party, he isentitled to 2B costs.____________________ ____________________ ____________________G J van Bohemen J S Isaacs Dr N Swain