CHRISTISON v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 309

CHRISTISON v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 309 [27 February 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-001235[2023] NZHC 309IN THE MATTER of an application for summary judgmentUNDER the High Court Rules 2016BETWEEN MARIKA CHRISTISONApplicantAND THE CHIEF EXECUTIVE OF ORANGATAMARIKIRespondentHearing: 16 February 2023Appearances: Applicant self-represented (with T F Dunstan as McKenzieFriend)L M Jackson for RespondentJudgment: 27 February 2023JUDGMENT OF ASSOCIATE JUDGE LESTER(application for summary judgment)This judgment was delivered by me on 27 February 2023Pursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarDate..[1] In June 2019, Ms Christison requested her personal information from OrangaTamariki (OT) pursuant to the Privacy Act 2020 and the OfficialInformation Act 1982.[2] OT accepts it did not meet its obligations under the Privacy Act 2020 in how itdealt with Ms Christison's request for her personal information.[3] Ms Christison raised OT's actions with the Privacy Commissioner whodetermined, and these findings are accepted by OT, that OT did not comply withprivacy principle 6 under the Privacy Act 2020. Pursuant to privacy principle 6, OThad to:(a) make a decision within 20 working days whether the request is to begranted (section 40 – unless OT extended time to respond under s 41);(b) make the information available without undue delay (s 66(4)); and(c) if it was going to refuse, the given reasons for the refusal (s 44).[4] As OT did not comply with these obligations under s 66 of the Act, each failurewas deemed to be a refusal to supply information and was therefore an interferencewith Ms Christison's privacy.[5] The Privacy Commissioner determined that Ms Christison's complaint hadsubstance and should be referred to the Director of Human Rights Proceedings (theDirector). The Director recorded in a letter to OT dated 26 August 2021 that OT hadadmitted an interference with Ms Christison's privacy, meaning the only materialissued for resolution was remedy. However, due to Ms Christison and the Directordisagreeing over what a reasonable level of compensation would be, theDirector declined to accept the referral, leaving Ms Christison to pursue her ownproceedings. The Director, in a subsequent letter, concluded that he was disappointedthat he was unable to secure a settlement for Ms Christison " as clearly OT's actionsand omissions were unlawful."Ms Christison issues proceedings in the High Court[6] Ms Christison did not seek to pursue relief under pt 5 of the Privacy Act byseeking damages before the Human Rights Review Tribunal (the Tribunal). Duringthe hearing, Ms Christison advised that she had engaged solicitors to commencea claim before the Tribunal but that they let the six month time limit for the issuing ofproceedings in the Tribunal lapse.1 I will return to the issue of limitation in theTribunal below.[7] In this proceeding, Ms Christison seeks summary judgment against OT inrelation to a claim described as involving the "tort of privacy".What the breaches by OT of the Privacy Act involved[8] In her submissions, Ms Christison referred to OT concealing crucialinformation from her and intentionally withholding information she requested.[9] These claims reflect the conclusions of the Commissioner that OT did not makea decision on Ms Christison's request within 20 working days, OT unduly delayedsupplying Ms Christison with information, and that OT did not have a proper basis forits decision to release some information to Ms Christison.[10] In a nutshell, Ms Christison's complaint is of delay and/or refusal to provideher with her personal information.The tort of privacy[11] In relation to the tort of invasion of privacy, the Court of Appeal recentlyconfirmed what a plaintiff has to establish to make out the tort. The Court said inPeters v Attorney-General:2[46] As the Judge noted, this Court confirmed the existence of a tort ofinvasion of privacy under New Zealand law in Hosking v Runting.3 In that1 Privacy Act 2020, 98(1)(h).2 Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 at [46].3 Hosking v Runting [2005] 1 NZLR 1 (CA) at [117].case, Gault P and Blanchard J (two of the three Judges in the majority)identified two elements that a plaintiff must make out:4(a) the existence of facts in respect of which there is a reasonableexpectation of privacy; and(b) publicity given to those private facts that would be considered highlyoffensive to an objective reasonable person.[12] The tort is concerned with publicity of information.[13] As Ms Christison's claim is presently framed, she does not rely on publicationby OT of her personal information to third parties. I confirmed with Ms Christison atthe commencement of the hearing that the facts upon which her case was based arethose that I have referred to above namely, delay by OT in providing information andOT withholding information without a proper basis.[14] In Ms Christison's submissions to the Court, she referred to OT providinginformation to Lawyer for the Child in respect of Family Court proceedingsconcerning Ms Christison's children. The provision of this information was not thebasis of Ms Christison's claim, but in any event, OT providing relevant information toLawyer for the Child is likely to be within how OT would be permitted to use theinformation. A legitimate disclosure of information will not be a tort given OT, in alllikelihood, will have a statutory duty to disclose information it holds, depending onthe circumstances.[15] Ms Christison's claim is based on OT's delays and refusal to provideinformation, not of it providing information to third parties when it should not havedone so. No provision of information to third parties arises out of the material fromthe Privacy Commissioner and the Director.[16] Information must have been published before the tort of breach of privacy canbe engaged. The fact that there was no publication here is enough for me to concludethat Ms Christison has not established an unarguable case in relation to the tort ofprivacy, as it has been defined by the Court of Appeal whose decision is binding onme.4 Hosking v Runing, above n 3 at [117].A new tort: breach of Privacy Entitlements[17] Ms Christison however, submitted that she was not pursuing the tort ofinvasion of privacy but instead that she was asserting the "tort of privacy". Insubstance, Ms Christison's claim was that the Court should recognise a tort of breachof privacy entitlements. That tort would apply where a right to obtain informationunder the Privacy Act was breached, as opposed to the tort of invasion of privacywhich, as I have said, concerns publication.[18] The difficulty for Ms Christison in a summary judgment context is that the tortshe advocates for is entirely novel.[19] The tort Ms Christison advocates for amounts to making a breach of privacyprinciples actionable as a tort. Ms Christison did not say whether liability under herproposed tort should be strict or whether it would be dependent on negligence but,from her submissions as a whole, I apprehend she intended the tort to be actionablewithout negligence, that is, liability would be strict.[20] Ms Jackson, counsel for OT, referred me to the Peters decision where the Courtreferred to the submissions of Mr Henry, counsel for Mr Peters. The Court said:5[162] First, the underlying premise of Mr Henry's submission is thatliability in tort should be imposed whenever a person acts in a manner that isinconsistent with Principle 11 in the Privacy Act. But the courts haveconsistently rejected the creation of a tort that is co-extensive with liabilityunder the Privacy Act. Such a tort would be difficult to reconcile with s 11(2)of the Privacy Act.6 It would cut across the specific complaints procedureunder that Act, and the tailored institutional arrangements for bringing a claimfor breach of those Principles.[21] Ms Jackson noted in respect of the last sentence from the above paragraph, thetort would cut across the specific complaints procedure in the Privacy Act, that inrespect of the breach of privacy principle 6, s 31(2) provides:(a) The entitlements conferred on an individual by IPP 6(1), to the extentthat those entitlements relate to personal information held by a publicsector agency, are legal rights and are enforceable in a court of law.5 Peters v Attorney-General, above n 2, at [162].6 Privacy Act 2020, s 31.[22] However, Ms Jackson submitted that the exact scope of the remedies availablein a "Court of law" in respect of a breach of privacy principle 6 was uncertain.[23] As a matter of principle, it is certainly far from clear that the Court needs torecognise a tort that creates strict liability for a breach of privacy principle 6 when, ifa breach occurs, the aggrieved person has remedies available to them under pt 5 of thePrivacy Act. Where the Privacy Act provides a comprehensive regime for redress,including civil proceedings for damages before the Human Rights Tribunal withappeals to the High Court, that structure is a strong factor against the Courtsuperimposing tort liability for breach of privacy principle 6. Rhetorically, why wouldthe process in pt 5 of the Privacy Act exist if an aggrieved person could bypass thatprocess and seek relief in the Court as in tort.[24] Ms Christison confirmed to me at the commencement of the hearing that shedid not wish to pursue a claim in this Court for breach of privacy principle 6 whichmay arguably be open to her pursuant to s 31(2) of the Privacy Act. Ms Jacksonsubmitted there may well be limitation issues in that regard which would bring intoplay the correct interpretation of s 98 of the Act along with the nature of the relief thatthe Court can grant under s 31(2). I need not consider those issues here asMs Christison was quite clear that she did not wish to pursue a claim based on breachof privacy principle 6, instead wishing to pursue her claim in tort.[25] I am satisfied that Ms Christison's claim in tort is unsuitable for thesummary judgment process. The reason being it cannot be suggested there is no realquestion to be tried in respect of the cause of action Ms Christison seeks to advance.7The creation of the new tort as sought by Ms Christison, runs directly into the fact" the courts have consistently rejected the creation of a tort that is co-extensive withliability under the Privacy Act" which is what Ms Christison is asking the Court todo.8 That s 66 of the Act deems OT's breaches of the Act to be an interference withMs Christison's privacy does not mean such deemed interference can found a new tort.7 Krukziener v Hanover Finance Ltd[2008] NZCA 187, [2010] NZAR 307, (2008) 19 PRNZ 162at [26].8 Peters v Attorney-General, above n 2, at [162].Damages, causation and remoteness[26] Ms Christison's claim sought damages of $1.5m but during the hearing she saidshe would leave quantum to the Court.[27] It was very clear to me that many events in Ms Christison's life, including theFamily Court proceedings I have briefly referred to above, have caused her great stressand duress. She referred to the failure by OT to provide information to her in this case"leaking over" to other situations, that is, it had flow-on effects that have caused oradded to her hardship.[28] The types of damages that are recoverable in tort are generally only those thatare a reasonably foreseeable consequence of the wrong. There comes a point whenthe flow-on effects of a wrong become too remote from the wrong to becompensatable. The complexities of the serious issues Ms Christison has faced, andcontinues to have to deal with, are such that a calculation of damages, assuming thetort she asserts existed, would not be a matter for summary judgment.[29] I am conscious that this outcome will be very disappointing for Ms Christison.As I have said, the Court appreciates that she has been through a lot and more thanonce she said she wanted to have this matter dealt with.[30] Ms Jackson submitted the proper venue for Ms Christison to obtain a remedyfor the wrongs OT accepts, is the Human Rights Review Tribunal. Ms Jacksonresponsibly submitted that OT would not oppose an application under s 98(8) of thePrivacy Act that time for bringing such a claim be extended. If, as Ms Christisonadvises, she intended early on in the piece to go to the Tribunal but lost that opportunitybecause she was let down by her then solicitors, I would expect an application forextension of time on those grounds may well be favourably considered, particularly inthe absence of opposition.[31] In blunt terms, Ms Christison's claim for damages of $1.5m is seriouslyinflated. Ms Christison's interactions with OT have been traumatic for her,irrespective of the privacy breach. Compensation for something not directly relatingto the privacy principle 6 breach will not be available either in this Court or in theTribunal. Trying to identify the effects of OT's breach isolated from the consequencesof the many difficult events that Ms Christison has had to deal with, would bea difficult exercise.[32] Ms Christison also raised with me that she was wanting directions that OTreview its information systems and improve its training in respect of Privacy Actrequests. That is not something that would be available as relief for breach of a tort.Engagement with OT through the Tribunal process may provide the opportunity forOT to address some of these concerns.Decision[33] It follows from what I have said that Ms Christison's application for summaryjudgment is declined.Costs[34] Costs are reserved.Observation[35] Continuing these proceedings poses a very real risk that Ms Christison maybecome liable to a costs award should her claim fail. Her claim, as I have describedit, faces major, if not insurmountable, difficulties. OT wants to resolve its breach ofMs Christison's privacy rights and Ms Christison wants to get this issue out of her life.Reconsideration of bringing this claim in the Tribunal would see the claim resolvedfar quicker than could occur in this Court, given the issue facing the claim as it ispresently framed._________________________________Associate Judge LesterSolicitors:Rachel Dewar Law, Wellington (for Respondent)Copy to:The applicant – Ms M Christison