NEW ZEALAND POLICE v WILLIAMS [2022] NZCA 419

NEW ZEALAND POLICE v WILLIAMS [2022] NZCA 419 [8 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA598/2021[2022] NZCA 419BETWEEN NEW ZEALAND POLICEAppellantAND JAMES LEONARD WILLIAMSRespondentHearing: 29 June 2022Court: French, Gilbert and Dobson JJCounsel: M J McKillop and M R G van Alphen Fyfe for AppellantN Levy QC for RespondentJudgment: 8 September 2022 at 2 pmJUDGMENT OF THE COURTA The appeal is allowed.B The answers to the questions of law are set out at [40] of this judgment.C The High Court judgment is set aside.D The decision of the Human Rights Review Tribunal is reinstated.E There is no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Williams brought a claim for breach of privacy in the Human RightsReview Tribunal (the Tribunal) after the Police wrongly provided a copy of hiscriminal record to his ex-wife's lawyer in response to a request made under the OfficialInformation Act 1982 (the OIA). The Tribunal struck out the claim on the basis thePolice were immune from suit in terms of s 48 of the OIA because the information wasmade available in good faith pursuant to its provisions.1[2] The High Court allowed Mr Williams' appeal, finding that the Tribunal couldnot make factual findings in the context of a strike-out application as to whetherthe statutory immunity under s 48 of the OIA applied.2 The High Court remittedthe proceeding back to the Tribunal for determination.3[3] The High Court subsequently granted leave to appeal to this Court onthe following three questions of law:4(a) Can the Tribunal grant summary judgment?(b) Who carries the burden of establishing, or negativing, the elements ofs 48 of the OIA?(c) Is good faith to be presumed from a disclosure of information inresponse to an OIA request?The facts[4] The essential facts are not in dispute. In August 2009, Mr Williams' ex-wifeinstructed her lawyer to make an application to the Family Court for a protection orderagainst Mr Williams. To support that application, the lawyer wrote to thePaeroa Police Station making a request for information pursuant to the OIA.The request was sent by facsimile at 2.55 pm on 20 August 2009 and read as follows:I act for [Mr Williams' ex-wife)] in applying for a Protection Order against[Mr Williams].I understand there is a history of domestic violence between these partiesrequiring police assistance.Under the Official Information Act 1982 would you please forward allinformation held by Police as regards [my client] and Mr Williams.1 Williams v Police [2020] NZHRRT 26 [Tribunal decision].2 Williams v New Zealand Police [2021] NZHC 808, [2021] 2 NZLR 292 [High Court judgment] at[88] and [91].3 At [111].4 Williams v Police [2021] NZHC 2345 [Leave judgment] at [24] and [33].Please note I have a copy of the statement made by [my client] onthe 17th August 2009 so do not require that.[5] The request was actioned by Ms Kelly Ross, a non-sworn member of the Policeworking in the Paeroa watchhouse. At 3.05 pm that day, she accessed and printed outMr Williams' criminal history. This was included with the information sent tothe lawyer later that afternoon by Sergeant Philip Caldwell, who was on duty atthe Paeroa Police Station. The covering facsimile message read:I have faxed 3 x pages of criminal history for [Mr Williams]. There is also11 pages of occurrences for [your client] where she is the complainant and heis the offender.There will also be hard copies of several enquiry and prosecution files that wewould have to request from Hamilton if you require them.Tribunal proceedings[6] Mr Williams did not become aware of this disclosure until five years later,in August 2014, when he received documents from his ex-wife in connection withFamily Court proceedings. These included a copy of his criminal history.[7] Mr Williams then made a complaint to the Privacy Commissioner. The Policeadvised the Commissioner that although they had accessed Mr Williams' criminalhistory in 2009, there was no evidence this was printed out or released to Mr Williams'ex-wife or her lawyer.[8] Mr Williams was adamant that the information had been provided bythe Police. He commenced his claim in the Tribunal in February 2016. At that stage,the Police maintained their position that they had not done so.[9] Ms Levy QC was instructed to act for Mr Williams in connection with his claimin March 2018. She approached Mr Williams' ex-wife's lawyer to find out how shehad obtained the criminal record. It was then that the facsimile exchange referred toin [4]–[5] above was found. Equipped with this email exchange, the Police applied tohave the claim struck out, relying on the jurisdictional immunity provided by s 48 ofthe OIA. This section relevantly reads:48 Protection against certain actions(1) Where any official information is made available in good faithpursuant to this Act,—(a) no proceedings, civil or criminal, shall lie against the Crownor any other person in respect of the making available of thatinformation, or for any consequences that follow fromthe making available of that information; [10] The Police filed two affidavits in support of the strike-out application, one fromMs Kelly and the other from Mr Colin Gibson, a police analyst who described howthe criminal record was accessed from the relevant database. Ms Kelly stated that shedid not specifically recall the matter. This is unsurprising given almost 10 years hadpassed since she received and actioned the request. She attached the facsimilesevidencing the information request and the response. She also attached a copy ofthe electronic access log showing that her police identifier number is recorded asthe user who had accessed and printed out Mr Williams' criminal history.[11] Mr Williams filed an affidavit in opposition from an experienced family lawyerto the effect that the provision of the full criminal history in response to such a requestwas not in accordance with her experience of usual police practice at the relevant time.[12] The strike-out application came before the Tribunal on 29 June 2020.Counsel were in agreement that the Police had the initial evidential burden ofestablishing, "albeit to a low standard", that s 48 applied.5 This required showing thatofficial information was made available under the OIA and there was no evidence ofdishonesty or of an ulterior motive.6 If that "low threshold" was met, the jurisdictionalbar could only be overcome if Mr Williams alleged, with sufficient supportingparticulars, that the Police had breached their duty of good faith.7 Mr Williams madeit clear that he did not allege bad faith on the part of the Police. It followed that ifthe Tribunal found the initial threshold was met, the proceeding would have to bestruck out.85 Tribunal decision, above n 1, at [41].6 At [41].7 At [42].8 At [48].[13] The Tribunal accepted the agreed position of counsel as to the correctapproach9 and described the issue for determination as a narrow one:[47] As a consequence the narrow issue for determination by the Tribunalis whether it can be inferred from the circumstances that the officialinformation made available by the Police on 20 August 2009 was madeavailable in good faith.[48] If that threshold is passed the proceedings must be struck out asMr Williams does not allege bad faith on the part of the Police.[14] Mr Williams submitted that the Police needed to provide evidence ofSergeant Caldwell's reasoning processes, or lack of them, to enable the Tribunal toassess whether the information was made available in good faith and with an honest,even if mistaken, belief that its provision was appropriate. The Tribunal consideredthis submission was answered by the High Court's decision in Director of HumanRights Proceedings v Commissioner of Police.10 In that case, the Director made asimilar submission that an examination of the decision-making process was required.After reviewing the authorities and the purpose of the provision, the High Courtrejected this submission:11[44] In our view, that accords with the language used in s 48 and giveseffect to the legislative intention to confer a wide immunity as evidenced bythe 1987 amendment. In our view, it also accords with the policy ofthe Official Information Act. The purpose of the immunity is to ensureofficials are not inhibited from releasing information. In our view,the Director's interpretation would have an inhibiting effect and wouldundermine the benefit of the immunity. It would also have the potential tocreate arguments about the process that was adopted — witness the divergentviews of the Director and the police about public interest in the present case.An immunity provision needs to be straightforward, and provide a clearcuttest readily understood and readily applied.[15] The Tribunal was not persuaded that the evidence of the experiencedfamily lawyer as to usual practice established that the circumstances were so unusualor extraordinary that an explanation from Sergeant Caldwell was required.12The Tribunal readily drew the inference from the evidence that the information wasmade available in good faith:9 At [46].10 At [59], considering Director of Human Rights Proceedings v Commissioner of Police (2008)HRNZ 749 (HC).11 Director OF Human Rights Proceedings v Commissioner of Police, above n 11.12 Tribunal decision, above n 1, at [63].[57] On the face of the circumstances established by the evidence, the factsare unexceptional and allow the straightforward application of the principlethat inferences can be drawn from facts. We see no basis to draw any inferenceother than that the information was made available in good faith. That is,shortly before 3pm on 20 August 2009 the Police received a request for officialinformation relating to Mr Williams and his then partner. Almost immediatelyMs Ross accessed and printed Mr Williams' then criminal history and thatsame afternoon the document along with the rest of the requested informationwas dispatched by Sergeant Caldwell in response to the request. In thesecircumstances it is difficult to see what rational impediment can be found tothe conclusion that the official information was made available in good faith.[16] There being no allegation of bad faith, the Tribunal concluded thatthe immunity applied and accordingly the proceedings had to be struck out:[64] In the result we see nothing to inhibit the drawing of an inferencewhich flows naturally from the evidence namely, that the criminal history ofMr Williams as at August 2009 was provided under the OIA in good faith tothe lawyer representing his then partner in proceedings beforethe Family Court. None of the evidence or submissions presented on behalfof Mr Williams is adequate to challenge this inference.[65] As Mr Williams does not allege bad faith it follows the immunityconferred by OIA s 48(1) applies and the Tribunal has no jurisdiction to hearthese proceedings. They must be struck out pursuant to the Human Rights Act1993, s 115A(1)(a) which is incorporated into proceedings under thePrivacy Act by virtue of s 89 of the latter Act.High Court judgment[17] Mr Williams appealed to the High Court on the sole ground that the Tribunalwas wrong in determining that good faith could be inferred in the absence of evidencefrom Sergeant Caldwell.[18] However, at the hearing of the appeal, the High Court raised what it consideredwas a more fundamental question, namely whether the Tribunal had followedthe correct approach in exercising its jurisdiction to strike out proceedings.13The Court observed that the statutory immunity in s 48 did not form part ofMr Williams' claim for breach of privacy; it was an affirmative defence that must beraised by a defendant who seeks to rely on it.14 In the Court's view, the effect ofthe Tribunal's decision was to treat the immunity as an element of Mr Williams'13 High Court judgment, above n 2, at [42].14 At [49].privacy claim.15 However, good faith must be pleaded and proved by the defendant.16The Court concluded:[67] So, while there is no doubt the [Police are] entitled to rely on the s 48immunity in response to Mr Williams' claim for breach of privacy,the immunity itself represents an important incursion into the rights conferredunder the Privacy Act. If applied too broadly, s 48 might inappropriatelyundermine the protections that the Privacy Act seeks to achieve.Accordingly, it is appropriate in our view to require the [Police] to establish,on the basis of evidence, that the breach of Mr Williams' privacy interests wasjustified.[68] It follows from our analysis that the Tribunal was wrong to considerthat a burden fell on Mr Williams to establish the disclosure of his personalinformation was other than in good faith. That obligation remained onthe [Police].[19] This conclusion was sufficient to dispose of the appeal.17 However, the Courtturned to address the scope and nature of the Tribunal's strike-out jurisdiction unders 115A of the Human Rights Act 1993. This section relevantly reads:115A Tribunal may strike out, determine, or adjourn proceedings(1) The Tribunal may strike out, in whole or in part, a proceeding ifsatisfied that it—(a) discloses no reasonable cause of action; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of process.[20] The Court observed that strike-out applications are generally determined byassessing a pleading against the legal elements of a cause of action or defence.18 It isonly if the pleaded facts are incapable of making out the cause of action that it isvulnerable to being struck out as untenable.19 So long as the pleading survives scrutiny15 At [50].16 At [52].17 At [69].18 At [79].19 At [79].on this basis, it is generally inappropriate to strike it out.20 The Court therefore foundthat the Tribunal erred in its approach:21[82] Given the Tribunal's strike out jurisdiction brings an end toproceedings summarily and without affording a claimant a hearing, it has apotentially significant impact on access to justice. In order to ensurethe correct balance is struck between access and the avoidance of abuse, it isnecessary to exercise some discipline in relation to its application to a claim.We find that the Tribunal erred by failing to have sufficient regard to the natureand scope of its statutory jurisdiction, informed by the principles and approachapplicable in the High Court and elsewhere.[83] In its decision the Tribunal did not clearly identify the nature ofMr Williams' claim or its essential elements. It did not then go on to considerwhether the claim as pleaded disclosed no reasonable cause of action.[21] The Court considered that instead of following the orthodox approach on astrike-out application of presuming that pleaded facts are capable of proof,the Tribunal wrongly embarked on a factual inquiry.22 The "closest proceduralanalogue" would be "an application by a defendant for summary judgment",but Parliament had not conferred "this additional and significant jurisdiction" onthe Tribunal.23 Accordingly, the Tribunal "fell into error by examining the evidencein order to draw inferences as part of a striking out enquiry".24[22] Although not strictly relevant to the appeal, the Court observed thatthe evidence provided by the Police would not have met the requirements for summaryjudgment, even if that jurisdiction had been available.25 For a defendant to obtainsummary judgment, it is required to establish that no other inference is availablewhereas the Tribunal appeared to apply a lesser standard in inferring thatthe information was provided in good faith.26[23] Finally, the Court addressed the argument presented by Ms Levy on behalf ofMr Williams. The Court accepted that the initial and unexplained denials by the Policethat they were responsible for the disclosure combined with the apparently excessive20 At [79].21 Footnote omitted.22 At [85].23 At [86]–[87].24 At [88].25 At [89].26 At [89].disclosure and the absence of any evidence from Sergeant Caldwell were "anunfortunate starting point from which to draw an inference of good faith conduct".27However, the Court accepted Mr McKillop's submissions for the Police that there isno mandatory requirement for evidence from the official who made the disclosure;that would "place the threshold too high".28 Had it been open to the Tribunal toundertake a factual investigation in the context of a strike-out application, the Courtwould have concluded that a good faith inference could be drawn but that this was notthe only available inference on the evidence provided.29 The Court therefore remittedthe proceeding back to the Tribunal for determination at a hearing at which all relevantevidence would be adduced and examined.30Submissions[24] Mr McKillop and Ms van Alphen Fyfe's submissions can be summarised asfollows. First, they submit that the Tribunal has inherent power to determineproceedings summarily, including by way of summary judgment. That inherent powerwas not removed or limited by the statutory clarification of the Tribunal's strike-outpowers with the enactment of s 115A of the Human Rights Act. Secondly, s 48(1) ofthe OIA provides a broad immunity from jurisdiction which prevents the Tribunalhearing a claim; it is not a justification for infringing privacy and does not form partof a substantive privacy breach assessment. Thirdly, a defendant seeking to rely onthe immunity in s 48(1) must prove the existence of a relevant OIA request andresponse, but good faith is to be assumed from the fact of that response. A claimantseeking to displace the immunity has the burden of showing the absence of good faithis properly in issue.[25] Ms Levy makes the following broad submissions in response. First, shesubmits that the Tribunal has no power to grant summary judgment. However, sheagrees that s 115A(1)(a) of the Human Rights Act enables the Tribunal to strike out acause of action if s 48(1) of the OIA applies. Secondly, Ms Levy does not supportthe High Court's assessment that the immunity provided by s 48(1) is an affirmative27 At [107].28 At [108].29 At [109].30 At [110]–[111].defence; she agrees with the appellant that the immunity deprives the Tribunal ofjurisdiction regardless of whether the point is pleaded by the Crown agency.Thirdly, Ms Levy submits that the relevant Crown agency carries the burden ofestablishing the elements of s 48(1). She says it should not be presumed from adisclosure of information in response to an OIA request that the information wasreleased "in good faith pursuant to the Act". Any such presumption would effectivelyreverse the burden. She submits that the evidence required to activate the immunitywould usually be limited to proof that the person tasked with responding to the requestmade an honest attempt at compliance with a known policy or practice as to howofficial information requests are to be processed so as to balance the competing rightsof access to official information and privacy. A claimant would then be entitled torespond with evidence or submissions in rebuttal for the purposes of a strike-outhearing, as occurred in this case.[26] Applying these principles to the present case, Ms Levy submits thatthe proceedings should not have been struck out by the Tribunal. For the immunityto apply, the Police would need to show an honest belief on the part of the disclosingofficer (Sergeant Caldwell) that the OIA allowed such disclosure. This would requiredirect or inferential evidence of a reasoning process or policy that facilitatedrecognition of the potential for conflict between the request and an individual's privacyrights and a scheme for resolving that conflict. In this case, there was no directevidence of the process followed, nor any evidence of any police policy or practicethat should have been followed. The speedy disclosure of the entire criminal recordwithout redaction indicates that Sergeant Caldwell did not "mentally refer to a processor policy requiring consideration of privacy interests". Ms Levy submits thatSergeant Caldwell was most likely grossly negligent or indifferent and so lacked agood faith belief that the OIA permitted release of the information. She agrees withthe outcome in the High Court, albeit for different reasons, that the proceeding shouldbe remitted to the Tribunal to enable the Police a further opportunity to provideevidence in support of the immunity, if such evidence exists.Our assessment[27] Like many seeking to vindicate their rights before the Tribunal, Mr Williamswas unrepresented at the time he completed his statement of claim against the Policealleging a breach of privacy. The full circumstances were not known at that stage.Mr Williams claimed that a constable at the Hamilton Police Station gave a copy ofhis criminal and traffic history to his ex-wife. Mr Williams was unaware at that stagethat the information had been provided by staff at the Paeroa Police Station in responseto a request under the OIA. That remained the position following the filing and serviceof the statement of reply because the Police denied that they had providedthe information. There was therefore no reason for Mr Williams or the Police toaddress in their pleadings the question of jurisdictional immunity under s 48 ofthe OIA; the issue simply did not arise on the facts as pleaded by either party.[28] As noted, it was not until Ms Levy became involved that it was discovered thatthe information had in fact been provided by the Police in response to an OIA request.Once that discovery was made, the question of the jurisdictional immunity in s 48 hadto be confronted. The issue was raised by the Police in their strike-out application.The application was made on the sole ground that the Tribunal lacked jurisdiction.This had to be addressed as a preliminary issue given the Tribunal's jurisdiction todetermine the claim turned on whether the immunity applied.[29] We agree with the High Court's observation that the immunity did not formpart of Mr Williams' claim for breach of privacy. However, we disagree with itsassessment that the Tribunal in effect treated the immunity as an element ofMr Williams' privacy claim. The Tribunal made no such error and appropriatelyconfined its attention to whether it had jurisdiction to determine the claim. Contrary tothe view taken in the High Court, the Tribunal was not required, for the purposes ofthe strike-out application, to identify the elements of Mr Williams' claim and considerwhether the claim as pleaded disclosed a reasonable cause of action. That was notthe issue.[30] We also consider the High Court erred in describing the immunity as anaffirmative defence to the claim. Rather, we see the s 48 as providing an exemptionfrom jurisdiction, akin to diplomatic immunity, not merely an exemption fromliability.31 In our view, the failure to recognise this important distinction ledthe High Court into error.[31] The High Court also considered that the Tribunal was wrong to embark on anyfactual inquiry in the context of a strike-out application. Again, we respectfullydisagree. In exercising its jurisdiction, the Tribunal has broad powers to regulate itsprocedure as it thinks fit in accordance with the principles of natural justice, in amanner that is fair and reasonable, and according to equity and good conscience.32The Tribunal is directed to act according to the substantial merits of the case andwithout regard to technicalities.33 Consistent with these important objectives,the purpose of the Human Rights Review Tribunal Regulations 2002 is to enableproceedings before the Tribunal to be determined in harmony with the purpose andspirit of the Acts under which the proceedings arise.34 Regulation 16(1)(a) specificallyempowers the Tribunal to: give any directions and do any other things that are necessary ordesirable for the proceedings to be heard, determined, or otherwise dealt with,as fairly, efficiently, simply, and speedily as is consistent with justice [32] We see nothing wrong with the approach taken by the Tribunal and agreed toby the parties (both represented by experienced counsel), in conducting a preliminaryhearing to determine whether it had jurisdiction to hear the claim. Indeed, we considerthis process was entirely appropriate. The determination was not in the nature ofa summary judgment on the claim, rather, it was a finding that the Tribunal had nojurisdiction to determine it.[33] We turn now to consider who has the burden of proving that s 48 applies.31 For a helpful discussion of the distinction, see Law Commission Crown Liability and JudicialImmunity: A response to Baigent's case and Harvey v Derrick (NZLC R37, 1997) at [C31], citingDickinson v Del Solar [1930] 1 KB 376 at 380.32 Human Rights Act 1993, ss 104(5) and 105(2).33 Section 105(1).34 Human Rights Review Tribunal Regulations 2002, reg 4(1).[34] A case directly on point is Ilich v Accident Rehabilitation and CompensationInsurance Corporation, a decision of the High Court concerning s 115(1)(a) ofthe Privacy Act 1993,35 which is in materially the same terms as s 48(1)(a) of the OIA:115 Protection against certain actions(1) Where any personal information is made available in good faithpursuant to principle 6, —(a) no proceedings, civil or criminal, shall lie against the Crown orany other person in respect of the making available of thatinformation, or for any consequences that follow from the makingavailable of that information [35] Tompkins J held that information is made available in good faith forthe purposes of this provision if it is made available honestly and with no ulteriormotive, even though it may have been made available negligently.36 The Judgeconsidered that the person claiming the absence of good faith was required toestablish this.37 The agreed statement of facts established that the information wasmade available in response to a request coming within the scope of s 115. This wassufficient for the Judge to draw the inference that, in providing the information,the respondent was acting honestly, without any ulterior motive and in compliancewith what it considered to be its obligations under principle 6 of the Privacy Act.38The Tribunal therefore lacked jurisdiction to hear the complaint.39 It can be seen thatIlich provides strong support for both the approach taken and the conclusion reachedby the Tribunal in this case.[36] While there is a material difference between "no jurisdiction" and "no liability"provisions, a similarly protective approach has been taken in respect of the onus andburden of proof where "no liability" provisions have been engaged in comparablecontexts. For example, in Stockman v Health and Disability Commissioner,the High Court struck out claims against the Health and Disability Commissioner and35 Ilich v Accident Rehabilitation and Compensation Insurance Corp [2000] 1 NZLR 380 (HC).36 At 383, citing X v Attorney-General [1994] NZFLR 433 (HC) at 435; and Central Estates(Belgravia) Ltd v Woolgar [1972] 1 QB 48 (CA) at 55 per Lord Denning MR.37 At 383.38 At 383; and Privacy Act 1993, s 6, principle 6.39 At 384.another office holder in reliance on the no liability provision in s 121(2) of theCrown Entities Act 2004.40 This section provides that an office holder is not liable toany person in respect of any act or omission by the office holder in good faith and inperformance or intended performance of the entity's functions.41 Because the plaintiff,Mr Stockman, did not plead or produce any evidence to show that the defendantoffice holders acted in bad faith, the claim was struck out.42 This outcome wasconfirmed on appeal.43 This Court held that a plaintiff can only overcome a defenceunder s 121 by pleading adequate particulars of facts to establish bad faith.44There must be a proper basis before any such allegation can be made. The pleadingand initial evidential burden therefore rested with the plaintiff seeking to overcomethe defence.[37] A more recent example is this Court's decision in Peters v Attorney-General,which was concerned with the immunity in s 86 of the State Sector Act 1988.45This section provides that "Public Service chief executives and employees are immunefrom liability in civil proceedings for good-faith actions or omissions in pursuance orintended pursuance of their duties, functions or powers".46 This Court considered thatthe purpose of the provision was to protect "the ability of public servants to carry outtheir functions impartially and fearlessly, without being deflected from doing so bythe threat of proceedings".47 This purpose would be "undermined if proceedings arebrought against public servants without a proper basis for alleging bad faith".48This Court agreed with the High Court that in the absence of any evidence to supportan allegation of bad faith, the claims should not have been brought against theChief Executives personally.49 Again, the burden of pleading and proving absence ofgood faith was found to rest with the plaintiff even though the immunity from liabilitywas predicated on the acts or omissions being done in good faith.40 Stockman v Health and Disability Commissioner [2019] NZHC 1098 [Stockman High Courtjudgment].41 Crown Entities Act 2004, ss 121(2) and 126 definition of "excluded act or omission".42 Stockman High Court judgment, above n 40, at [53]–[55].43 Stockman v Health and Disability Commissioner [2020] NZCA 588.44 At [79].45 Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191.46 Sector Act 1988, s 86(1).47 Peters v Attorney-General, above n 45, at [147].48 At [147].49 At [150].[38] In the present case, the Police properly raised the jurisdictional immunity intheir strike-out application. They also discharged the initial evidential onus byshowing that the information was provided in response to a request under the OIA.This was sufficient to show that s 48 was engaged absent any indication of bad faith.We agree with the Tribunal that there was no basis to infer bad faith from the evidenceprovided. The onus then shifted to Mr Williams to plead and prove bad faith.Quite properly, he acknowledged that he could not make any such allegation.It inevitably followed that the Tribunal had no jurisdiction to determine the claim andit had to be struck out.[39] We do not accept Ms Levy's submission that good faith could not be inferredwithout evidence from Sergeant Caldwell of his reasoning process with reference to aknown policy or practice. Any failure on the part of Sergeant Caldwell to addressrelevant factors under an established practice or policy could not be sufficient to negatethe jurisdictional immunity. He may have been negligent, even grossly negligent,but that does not amount to bad faith. The approach urged by Ms Levy wouldsubstantially undermine the protective purpose of the provision.Answers to questions of law[40] We answer the questions of law as follows:Can the Tribunal grant summary judgment?Answer: Yes, in appropriate cases where it is shown that a claim cannot succeed.Who carries the burden of establishing, or negativing, the elements of s 48 of the OIA?Answer: The party seeking to overcome the statutory immunity carries the burden ofshowing bad faith once it is shown that the information was provided in response to arequest under the OIA in circumstances giving no indication that this was done otherthan in good faith.Is good faith to be presumed from a disclosure of information in response to an OIArequest?Answer: Yes, absent any indication of bad faith.Costs[41] The Crown, responsibly in all the circumstances, does not seek costs onthe appeal. We accordingly make no order for costs.Result[42] The appeal is allowed.[43] The answers to the questions of law are set out at [40] of this judgment.[44] The High Court judgment is set aside.[45] The decision of the Human Rights Review Tribunal is reinstated.[46] There is no order for costs.Solicitors:Crown Law Office, Wellington for Appellant