THE ATTORNEY-GENERAL v DOTCOM [2018] NZHC 2564

THE ATTORNEY-GENERAL v DOTCOM [2018] NZHC 2564 [1 October 2018]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-286[2018] NZHC 2564BETWEEN THE ATTORNEY-GENERALAppellantAND DOTCOMRespondentHearing: 10-12 September 2018Counsel: V E Casey QC for AppellantR M Mansfield and S L Cogan for RespondentJudgment: 1 October 2018JUDGMENT OF CHURCHMAN J ANDMEMBERS DEBORAH HART AND WENDY GILCHRISTTABLE OF CONTENTSPrivacy rights [1]Summary [6]The Privacy Act [8]What this case is about [10]Factual background [20]Information requests and adjournments [33]Inferences drawn from the facts [16The transfer [86]The statute [86]One request or two [108]Were the requests vexatious? [129]Remedies [189]Damages [193]Damages for loss of dignity or injury to feelings [212]Outcome [239]Privacy rights[1] In the 1990s, the New Zealand Government enacted a number of statutes whichrecognised and articulated various rights which either had not previously existed orhad not been readily legally enforceable.1[2] Among the new rights was an expanded privacy right relating to access topersonal information and the provision of enforceable legal rights in relation toprivacy. The relevant legislation is the Privacy Act 1993 (PA). This Act was a sequelto the Official Information Act 1982 (OIA) and the Local Government OfficialInformation and Meetings Act 1987 which had provided limited rights to accessinformation held by public bodies.[3] A significant feature of the PA includes the fact that it extended the range ofentities that were subject to disclosure duties in relation to personal information fromcentral or local government to "any person or body of persons, whether corporate orunincorporate, and whether in the public sector or the private sector ".2[4] Another significant feature of the PA, relevant to this case, is that an individualmaking a request for disclosure of personal information about them held by an agencydoes not have to justify the request nor explain why they need the information. Neitherdo they need to identify the information sought. They have an absolute right (subjectto limited identified exceptions)3 to make what is sometimes referred to as an"everything" request. In other words, an individual is entitled to ask an agency toprovide them with all personal information that they hold about them without havingto identify the type of information sought, or the purpose for which the requester mightwish to use it.[5] Among the identified exceptions to compliance with a request for personalinformation, is the entitlement to transfer the request to another agency.4 Another is1 See, for example, the New Zealand Bill of Rights 1990 and the Human Rights Act 1993.2 Section 2 PA, definition of "agency".3 Set out in PA, Part 4.4 Section 39 PA.the right to refuse a request where it is vexatious or the information requested istrivial.5 The case focuses on both of these exceptions.Summary[6] We have differed from the conclusions reached by the Human Rights ReviewTribunal (HRRT). One of the principal reasons for that is that we have regarded arequest which seeks urgency and provides a particular justification for the urgency, asbeing one request rather than two separate and disconnected requests. We have cometo the conclusion that a request which incorporates a requirement for an urgentresponse and provides a justification for that requirement, justifies the agencyreceiving the request considering the request as a whole. We consider that, in thepresent case, this is relevant to both the issues of "transfer" and "vexatiousness".[7] In relation to whether a request is vexatious, we have concluded that the test isan objective one and that the HRRT fell into error in focusing on the subjective beliefor motive of the requester. We now set out our analysis.The Privacy Act[8] The structure of the PA has been described as being "principles-based and opentextured, and regulat[ing] in a rather light-handed way".6 The Law Commissiondescribed the Act as:7Rather than setting out strict rules about how personal information may behandled, the Act is based on a set of 12 privacy principles. These principlesprovide agencies with a high degree of flexibility in terms of how they complywith them.[9] The default timeframe for an agency to comply with a request under Principle 6is 20 working days although s 37 provides an individual with a right to ask that theirrequest is dealt with on an urgent basis. It says:5 Section 29(1)(j).6 Taylor v Chief Executive, Department of Corrections [2018] NZHRRT 35 at [91].7 Law Commission Review of the Privacy Act 1993: Review of the Law of Privacy Stage 4(NZLC R123, 2011) at [2.9].If an individual making an information privacy request asks that his or herrequest be treated as urgent, that individual shall give his or her reasons whythe request should be treated as urgent.What this case is about[10] This case involves issues arising from an "everything" request made byMr Dotcom and addressed to every Cabinet Minister and almost all Governmentdepartments (some 52 entities in all). The requests were made between 17 and 31 July2015. Although there were some minor differences in wording, the requests werematerially identical. Mr Dotcom also invoked s 37 and asked that his informationprivacy request be treated with urgency and gave as his reason that: "This informationsought is required urgently because of pending legal action".[11] It was common ground that the "pending legal action" alluded to wasproceedings relating to a hearing on the eligibility of Mr Dotcom for extradition to theUnited States of America, which was scheduled to commence in the District Court on21 September 2015, a matter of seven to nine weeks after the sending of the requests.[12] Almost all of the agencies receiving the requests transferred them to CrownLaw, to be dealt with by the Attorney-General.8 The Attorney-General declined therequests on the basis that they were vexatious.[13] Mr Dotcom complained to the Privacy Commissioner in relation to thedeclining of the requests. However, the complaint related not to all 52 agencies butonly to the actions of nine named agencies.9[14] On 15 June 2016, the Privacy Commissioner rejected Mr Dotcom's complaint.The rejection of Mr Dotcom's complaint by the Privacy Commissioner entitled him totake the matter to the HRRT, which he did.8 Section 39 PA, provides for such transfer with the relevant subsection being s 39(b)(ii).9 Crown Law Office; Department of Prime Minister and Cabinet; The Office of Prime Minister;The Office of the Minister of Immigration; Ministry of Business, Innovation and Employment;Ministry of Foreign Affairs and Trade; Office of the Minister of Justice; Ministry of Justice; andNew Zealand Police.[15] The HRRT heard the matter over 10 days in April and May 2017 and issued adecision dated 26 March 2018 upholding Mr Dotcom's complaint and awarding himvarious remedies, including some $90,000 in damages.[16] It is that decision the Attorney-General has appealed. The appeal gives rise tothree main issues:(a) the lawfulness of the transfer of the requests to Crown Law;(b) whether the requests were vexatious; and(c) whether the remedies awarded by the Tribunal were appropriate, bothin terms of jurisdiction and, in relation to damages, quantum.[17] The appeal is a general appeal10 and the principles confirmed by the SupremeCourt in Austin, Nichols & Co Inc v Stichting Lodestar apply.11[18] The appeal is not confined to issues of law and the Court is required to cometo its own view on the merits. The appellant bears the onus of satisfying the Court thatit should differ from the decision under appeal but it is a matter for this Court to decidethe extent of consideration required to be given to the decision appealed from, subjectto the customary caution appropriate where the HRRT has had an opportunity to assessthe credibility of witnesses.[19] This Court is assisted in its task by having two members drawn from the HRRTPanel sit as part of the Court.Factual background[20] On 20 January 2012, Mr Dotcom burst onto the New Zealand consciousnessas a result of an armed raid on the mansion in which he was residing involving manypolice officers and two helicopters. He was arrested, remanded in prison and had10 See s 89 PA and s 123 of the Human Rights Act 1993.11 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.New Zealand assets worth many millions of dollars seized. International assets worthhundreds of millions of New Zealand dollars were also frozen.[21] The reason for Mr Dotcom's arrest was the laying of indictments against himin the United States on charges relating to his Internet business. The United Statescommenced proceedings to extradite him from New Zealand.[22] Mr Dotcom has been involved as a participant, either as a plaintiff or defendant,in many sets of proceedings throughout all levels of the New Zealand legal systemsince then.[23] Mr Dotcom has also been active in seeking the disclosure of informationagainst him, including the disclosure of information held by the United States ofAmerica.[24] Following his arrest, the initial request for information, made on 22 January2012, was for disclosure/discovery against the Crown. Part of that request wastransferred from Crown Law to the police on 1 February 2012. There was a furtherdisclosure request by Mr Dotcom of Crown Law on 5 March 2012.[25] The eligibility hearing in relation to the extradition application was initially setdown for hearing on 6 August 2012, but was adjourned as a result of Mr Dotcom'scounsel submitting that it was premature due to "disclosure" issues. This was the firstof some nine adjournments of the hearing of this application over the next three years.[26] As well as making regular OIA and disclosure requests, from time to timeMr Dotcom also lodged complaints with the Privacy Commissioner.[27] On 21 March 2012, the Privacy Commissioner advised Mr Dotcom that therehad been no interference with his privacy in relation to an Overseas InvestmentApplication Decision on 16 September 2011.[28] Over the ensuing three years, there were many applications fordisclosure/discovery or OIA requests and complaints by Mr Dotcom to the PrivacyCommissioner. There were also regular legal challenges to rulings by different courtson these matters.[29] In April 2013, Mr Dotcom and others who had been caught up in the January2012 arrest operation commenced proceedings against the Crown seeking "Baigent"damages for Bill of Rights Act breaches, including substantial claims for aggravatedand exemplary damages. Various discovery and disclosure requests were pursued forinformation related to these proceedings. Extensive disclosure was provided and theHigh Court also made further discovery orders. Mr Dotcom's claim was subsequentlysettled.[30] On 29 November 2013, Mr Dotcom and others applied to the District Court inrelation to the extradition proceedings for various disclosure and discovery orders.This application alleged that there had been political interference in the granting ofMr Dotcom's residence application.[31] Mr Dotcom had sought permanent residence status. The New Zealand SecurityIntelligence Service (NZSIS) had lodged an objection to the immigration applicationwhich delayed its processing. Mr Dotcom had issued an ultimatum saying that, unlessthe application was granted by a particular date, it would be withdrawn. Shortly beforethat date, NZSIS withdrew its objection and the application was granted.[32] Mr Dotcom's lawyers developed an argument, subsequently referred to as the"abuse of process" argument, and claimed that alleged political interference hadcaused the dropping of the opposition and that this amounted to an abuse of processwhich justified a stay of the extradition proceeding. There were numerous OIA andPA requests by Mr Dotcom in relation to this claim. Some of those requests weretransferred from the entity receiving them to other entities.Information requests and adjournments[33] On 26 March 2014, the District Court confirmed a backup fixture for theeligibility hearing in July 2014. The following day, Mr Dotcom made "everything"requests to the Ministry of Justice under the PA and OIA.[34] The following week, on 3 April 2014, Mr Dotcom applied to vacate theeligibility fixture so that the requests for information could be complied with.[35] On 23 May 2014, the District Court dismissed applications for furtherdisclosure noting that the applications were based on Mr Dotcom's "collusion theory"which was said to found the stay of the extradition process. The District Court heldthat the abuse of process arguments lacked "any air of reality" and that the materialsought was not relevant to the extradition proceeding.[36] Mr Dotcom challenged that finding by way of judicial review. Throughout2014, Mr Dotcom continued to make both PA and OIA requests against variousgovernment entities.[37] On 25 August 2014, the District Court issued a further decision on applicationsfor discovery orders against Immigration New Zealand (INZ) and NZSIS, once againconsidering there was no "air of reality" about the requests.[38] In a memorandum to the District Court of 25 September 2014, Mr Dotcomforeshadowed an application to stay the extradition proceedings as an abuse of processon the basis of the alleged claim of political interference. The memorandum alsoasserted that the scheduled eligibility hearing for February 2015 was unrealistic,claiming that the issues relating to the anticipated abuse of process application neededto be resolved first.[39] It was also claimed that the eligibility hearing should not proceed before theappeal to the Supreme Court in relation to the validity of the search warrants, and theHigh Court decision in relation to the judicial review of disclosure.[40] On 17 October 2014, the High Court dismissed Mr Dotcom's application forjudicial review of the District Court decision to refuse disclosure orders.Simon France J made a number of comments about the application. He noted that thedecision by INZ, which was the subject of the judicial review proceedings, had beenavailable for nearly three years without a review being sought.12 He also made some12 Dotcom v The United States of America [2014] NZHC 2550 at [76].observations about the strength of the "abuse of process" argument in respect of whichthe various discovery orders were sought. He said:13I limit myself to observing that it is a far from immediately compellingargument. The basic proposition is that powers were used for an improperpurpose and that is always an abuse of process. However, the reality is that asa result of the alleged abuse, Mr Dotcom got what he was seeking, permanentresidence. Further, it was he who created the time pressure by imposing adeadline on when a decision had to be made. It is not easy in thesecircumstances to see that he is a victim of the alleged abuse.[41] Simon France J also expressed an opinion on the utility of the discovery sought.He said:14Next, it can be observed that the task involved could be quite onerous. A lotof documents are involved and there is no reason to believe the exercise willyield anything of relevance.[42] These observations were made in the context of the requests having been madeof just two entities, INZ and NZSIS.[43] As to the nature of the request itself, Simon France J said:[83] The second application is hopelessly broad being simply a request forall personal information held by all these agencies in relation to eachrespondent. It is a perfectly permissible request, but not one with which anextradition court should concern itself. There is no basis at all to consider thatthe request is relevant to the extradition proceedings. It was rightly describedin the court below as a fishing expedition. All the reasons discussedpreviously apply, but with the added factor of total irrelevance, as cast, to theextradition proceeding. (footnote omitted)[44] In relation to the remedy sought by Mr Dotcom on the basis of the abuse ofprocess argument, Simon France J said:15Standing alone, the claim for a stay based on improper manipulation ofMr Dotcom's residency application could not conceivably support the remedysought, even if it could be shown the requesting state was complicit in theNew Zealand Government's alleged actions.I accept some weight can be given to the fact that it is only one part of theargument, but it still needs to be assessed for its own merit. My own view isthat if I were hearing the extradition case, I would not stop the point being13 At [78].14 At [79].15 At [95] and [96].argued in the sense that it is not wholly irrelevant, but beyond that I cannotimagine it would seriously add anything of significance to an abuse claim.[45] Simon France J also dealt with the separate "air of reality" test whichMr Dotcom alleged had been incorrectly applied in the District Court. He said:16The proposition being advanced is that the United States of America asked theNew Zealand Government to direct its officials to give Mr Dotcom permanentresidency even though he was not entitled to it so that the applicant wouldknow where he was when they came to get him. It is, as the District Courtheld, all supposition and the drawing of links without a basis. Nothingsuggests involvement of the United States of America, and nothing suggeststhe New Zealand Government had turned its mind to extradition issues. Theseare the key matters and there is no support for either contention.[46] The High Court's comments were made in the context of whether or not theDistrict Court should use its authority under s 11 PA. However, the relevance in thepresent case is that the request for disclosure of personal information that this Court isconcerned with is a sequel to this decision, and the requests for the disclosure ofpersonal information were of the very broad "everything" type and the justification forthe urgency requested in relation to the response was the forthcoming eligibilityhearing in respect of which Mr Dotcom was seeking to run the "abuse of process"argument.[47] This is the same argument that both the District Court and High Court had heldto be irrelevant and which "could not conceivably support the remedy sought."17[48] Notwithstanding the comments by Simon France J as to whether an abuse ofprocess argument could ever justify the relief of staying the extradition proceeding,some two weeks after the release of the High Court's decision, on 30 October 2014,Mr Dotcom and others filed a formal application seeking a stay of the extraditionproceedings on the grounds of abuse of process. The alleged abuse of process includedvarious matters which had been the subject of prior litigation but also specificallyrelied on the alleged political interference in the granting of the residency application.16 At [101].17 At [95].[49] Following the filing of the application for a stay, Mr Dotcom applied to theDistrict Court for an adjournment of the extradition hearing.[50] On 17 November 2014, Mr Dotcom's then lawyers sought leave to withdraw,which was granted. A new lawyer, Mr Edgeler, sought an adjournment of theeligibility hearing scheduled for February 2015. That hearing was vacated and afurther fixture set for June 2015.[51] On 23 December 2014, the Supreme Court issued a decision upholding thevalidity of the search warrants.18 The alleged invalidity of the search warrants hadbeen one of the grounds of the abuse of process claim.[52] From as early as 19 December 2014, Mr Dotcom's new legal team(Mr Mansfield and Mr Cogan) had raised the issue of the availability of funding forlegal counsel as a matter affecting the ability of counsel to be ready for the eligibilityfixture.[53] On 12 March 2015, Courtney J issued a decision on an application byMr Dotcom to access frozen funds.[54] That application had been opposed on the basis Mr Dotcom had the ability tomeet his expenses out of property that was not restrained, namely the assets of theTrust Me Trust. Mr Dotcom had set that Trust up and had been a discretionarybeneficiary of it until November 2014 when he relinquished his status as adiscretionary beneficiary. The High Court released $700,000 for living and legalexpenses.[55] On 16 March 2015, the District Court issued a decision on an application byMr Dotcom and others for adjournment of the extradition hearing date. The DistrictCourt declined the application and confirmed the fixture on 2 June 2015. In relationto the claim that lack of funds for legal counsel was impeding trial preparation, theCourt noted that since the freezing of some of his assets, Mr Dotcom had generatednew assets through new companies and had received some $12 million of which he18 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.had spent $4.5 million supporting a political campaign by a political party in thegeneral election that took place in September 2014, and a further $1 million inproducing and marketing a music DVD in 2014.19[56] Three days after the refusal of adjournment, on 19 March 2015, Mr Dotcomapplied for judicial review of that decision.[57] On 1 May 2015, the High Court adjourned the extradition hearing set for June2015 on the basis of the change in legal representation and held that the hearing shouldbe no earlier than 1 September 2015 but otherwise dismissed the challenges.20[58] On 6 May 2015, the District Court confirmed the eligibility hearing fixturewould be on 21 September 2015.[59] On 21 May 2015, Mr Dotcom and others filed a memorandum in the DistrictCourt stating that any timetable for the eligibility hearing could not be set until theCourt of Appeal had decided an appeal against the decision of Katz J of 1 May 2015.However, notwithstanding the implication that such an appeal had been, or would be,filed, no such step was ever taken.[60] On 10 June 2015, Mr Dotcom filed a memorandum seeking an adjournment ofa teleconference in relation to the eligibility hearing arguing that a timetable for theeligibility hearing should not be made. The following day, the District Court issued aminute setting a timetable for remaining steps in preparation for the eligibility hearing.[61] On 26 June 2015, Mr Dotcom and the other respondents sought a recall of theDistrict Court timetable orders and a suspension of the timetable.[62] On 3 June 2015, the Court of Appeal issued a minute following ateleconference which had dealt with two appeals: one by the Commissioner of Policein relation to a High Court decision granting Mr Dotcom's application to vary theterms of registration of two foreign restraining orders; and the other by Mr Dotcom19 United States of America v Dotcom DC North Shore CRI-2012-092-001647, 20 March 2015per Dawson DCJ.20 Ortmann v The District Court at North Shore [2015] NZHC 901 per Katz J.and others in relation to the decision of Katz J on 1 May 2015 directing that theextradition proceedings be heard not before 1 September 2015.21 Harrison J concludedthe minute by stating:22Counsel understand that after all the interlocutory activity which has occurredto date it is essential that the fixture to hear the extradition hearing in theDistrict Court on 21 September 2015 is maintained.[63] On 14 July 2015, Mr Dotcom filed a second stay application in the DistrictCourt seeking to permanently stay the extradition process on the basis of abuse ofprocess. Three days later, on 17 July, Mr Dotcom started sending out the "everything"requests under the PA to every Cabinet minister and most Government departments.[64] Three days after the requests started being sent out, on 25 July 2015,Mr Dotcom and others filed a memorandum in support of the stay application of 14July 2015.[65] On 5 August 2015, shortly after the completion on 31 July 2015 of the sendingout of the 52 requests, Mr Dotcom filed an application for judicial review of theDistrict Court timetabling directions and the declining of the District Court to hear thestay applications ahead of the eligibility hearing. Mr Dotcom and the other applicantssought urgency in the hearing of the judicial review application.[66] The same day, Mr Dotcom filed an interlocutory application and applied tohave the judicial review of the District Court timetabling and the stay of eligibilityproceedings heard together.[67] On 13 August 2015, the High Court declined the application for an urgentfixture, noting that a similar application for urgency in relation to a largely identicalapplication had been declined by Katz J the week prior.2321 Commissioner of Police v Dotcom & Ors; Ortmann & Ors v The District Court at North Shore &Anor CA269/2015, CA302/2015, 3 June 2015 (Minute) at [10] per Harrison J.22 At [10].23 Dotcom v United States of America and the District Court at North Shore HC AucklandCIV-2015-404-1770, 13 August 2015 (Minute), per Peters J.[68] On 21 August 2015, Mr Dotcom filed an appeal against the High Courtdecision. On the same day, he filed an amended misconduct stay application.[69] On 3 and 4 September 2015, just short of a month after Crown Law haddeclined the original requests for personal information, Mr Dotcom made targetedrequests, pursuant to the OIA, of the Attorney-General; the Minister of Arts, Cultureand Heritage; and Crown Law. The requests were made on a urgent basis.[70] On 14 September 2015, the Court of Appeal issued its decision dismissing theappeals relating to the original District Court decision not to hear the stay applicationbefore the extradition hearing commenced on 21 September.[71] Immediately after release of that decision, Mr Dotcom again sought an urgentconference with the District Court, filing a memorandum which annexed a copy of theCourt of Appeal's decision and claiming that the ability of his lawyers to prepare forthe extradition hearing (scheduled to commence in a week's time) had beencompromised. He also sought adjournment of the eligibility fixture in any event dueto counsel's other commitments (counsel indicated he had a fixture in the Court ofAppeal on 22/23 September 2015).[72] On 21 September 2015, the District Court heard arguments about the stayapplication of 21 August relating to alleged unlawful/unreasonable conduct, and afurther stay application of 14 July 2015 relating to the applicant's alleged policy ofdepriving the respondent of the funds required to enable him to conduct a properdefence, and alleged conflict of interest between Crown Law's role as counsel for theapplicant and counsel for the Crown.[73] The Court declined to make the stay orders sought and observed:24This case has now been before this Court for over three and a half years. Anumber of interlocutory hearings have been held. It is now the 10th time thiscase has been set down for hearing. Further interlocutory applicationscontinue to arise. In the normal course of a case interlocutory applicationswill be heard prior to the hearing. That does not act as a bar to further issuesbeing raised during a hearing.24 United States of America v Dotcom & Ors DC North Shore CRI-2012-092-001647, 29 September2015 (Minute) at [7] per Dawson DCJ.[74] The Court held that the interlocutory applications were best heard andconsidered during the eligibility hearing and directed that the eligibility hearingcommence on 24 September 2015.[75] The hearing did so commence and, on 1 October 2015, at the completion of theCrown's evidence and submissions on the issue of eligibility for deportation,Mr Dotcom filed a further memorandum claiming that the Court should hear anddetermine the stay applications before requiring him to respond to the eligibility case.[76] On 2 October 2015, the District Court issued a minute confirming it was notproposing to determine any of the applications before considering eligibility.[77] On 15 October 2015, Mr Dotcom filed a further memorandum seeking deferralof the eligibility hearing until the following year and determination of the stayapplications prior to that. That memorandum finished with the statement:25Counsel for Mr Dotcom respectively [sic] requests that this Court resolve thisissue urgently. Otherwise Counsel for Mr Dotcom is required to raise theseissues with urgency with the High Court.[78] On 29 October 2015, the District Court issued a decision determining that thetwo stay applications would not proceed to a full hearing and that the reasons for thatdecision would be given as part of the substantive judgment on eligibility. The sameday, Mr Dotcom filed a memorandum seeking an adjournment of the next phase of theeligibility hearing to 2 November as he was not ready to proceed. The eligibilityhearing concluded on 24 November 2015.[79] On 23 December 2015, the District Court issued its judgment confirming theeligibility for surrender of Mr Dotcom and the other respondents. The same day,Mr Dotcom and the respondents filed a notice of appeal to the High Court.[80] On 4 March 2016, Mr Dotcom filed an amended statement of claim for judicialreview and application for stay of extradition proceedings.25 Case on appeal, p 5233 at [32].[81] In a judgment of 23 September 2016, the High Court refused an applicationthat Mr Dotcom and others could use material obtained by way of a discovery in theBaigent damages claim for the purposes of appeal against the District Court eligibilitydecision.26[82] Mr Dotcom's appeal against the eligibility decision was dismissed by both theHigh Court and Court of Appeal, and an appeal to the Supreme Court is outstanding.Inferences drawn from the facts[83] We have set out the background to the litigation in which Mr Dotcom has beeninvolved in some considerable detail. Among the inferences we draw from thismaterial is that Mr Dotcom and his advisors were adept in seeking information relevantto the proceedings that he was involved in, either by way of disclosure/discovery, OIAor PA requests.[84] The application on eligibility for extradition was set down for hearing and thenadjourned on an extraordinary number of occasions over a period of some three and ahalf years. The basis upon which adjournments were sought was most often related toclaims that further information was required. Mr Dotcom did not accept indicationsfrom the courts that the type of information that he was seeking disclosure of was notrelevant to his applications for stay of the extradition proceedings and that, even if theclaimed collusion existed, it would not justify the relief he sought. Mr Dotcompersisted in making requests for the stay of the hearing of the eligibility for extraditionapplication (including an application for recall of a decision) well after the time whenthe courts had indicated to him that there was no basis for such a stay.[85] Mr Dotcom could, when it suited him, file targeted requests either fordisclosure/discovery or under the OIA. Requests made by Mr Dotcom of one agencywere often transferred to another agency for response. The Crown Law Office wasthe only agency involved in all of the different legal proceedings that Mr Dotcom wasinvolved in over this period.26 Dotcom & Ors v Attorney-General [2016] NZHC 2251.The transferThe statute[86] Section 39 PA, provides that an agency receiving a request must promptlytransfer the request to another agency: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 the otheragency.[87] Most of the 52 requests made in July 2015 were transferred to Crown Law.Mr Dotcom complained that the transfers arose from what was said to be "unsolicitedadvice from Crown Law". Whether the advice from Crown Law was solicited orunsolicited is immaterial. The Cabinet Ministers and Government departmentsconcerned were entitled to both seek and receive legal advice from Crown Law.[88] Before the HRRT, Mr Dotcom had argued that the various agencies whotransferred the requests to Crown Law had been dictated to do so by Crown Law. TheHRRT did not find that claim established saying;27Our conclusion, however, is that given the paucity of the evidence and furthergiven the peripheral nature of the issue measured against the substantivematters which do fall for consideration, we do not intend resolving the issue.[89] The Tribunal held that the more important issue was whether the Attorney-General was the lawful transferee under s 39(b)(ii) PA. We agree and adopt the sameapproach.[90] When the Privacy Commissioner determined Mr Dotcom's complaint, he cameto the view that a transfer of the requests under s 39 was not necessary; the transfer to27 Dotcom v Crown Law Office [2018] NZHRRT 7 [HRRT Decision] at [51].Crown Law essentially involved the Government's legal team centralising a set ofdifficult requests and that, rather than the relationship being one of transferring agencyto recipient agency, the true relationship was that of solicitor and client.[91] The HRRT noted that many of the agencies had adopted a template suggestedby Crown Law and, in their correspondence to Mr Dotcom, asserted:28We have consulted with the Attorney-General, and our view is that the requestis more closely connected with the functions or activities of his office. Wehave therefore decided to transfer the request to the Attorney-General, inaccordance with s 39(a)(ii) [sic] of the Privacy Act.[92] The HRRT noted that the letters advising Mr Dotcom of the transfer requestdid not explain the grounds on which the conclusion had been reached by the particularagency that the request was believed to be more closely connected with the functionsor activities of the office of the Attorney-General. However, there is no requirementin the Act for the grounds for such a conclusion to be set out.[93] The HRRT referred to the evidence that it heard from Mr Witcombe of MBIEand Mr Child of the Ministry of Justice who indicated that they had insufficientknowledge of the litigation referred to by Mr Dotcom as the basis for the request forurgency and that, in order to properly assess that request, they felt that Crown Lawwas best placed to coordinate the Crown's response.[94] The HRRT acknowledged the Crown's submission that the close linkagebetween the requests and the extradition litigation (both in timing and given the requestfor urgency for that purpose) meant that the request raised Crown-wide issuesrequiring a coordinated and consistent response. Before us that response wasdescribed as a "whole of Government" response.[95] The HRRT also acknowledged the Crown's concession that if Mr Dotcom hadwished to maintain the requests in a manner not linked to the litigation (i.e. abandonthe request for urgency based on the grounds the information was required for the28 At [58].extradition hearing), there would have been no basis to transfer the requests to CrownLaw.29[96] The HRRT held:30The decision to transfer and the decline itself were made for reasons other thanthose related to the assessment of the information itself and what should bedisclosed or withheld.[97] That is undoubtedly correct. However, the issue is whether, in circumstanceswhere the requests made of all 52 agencies specifically sought urgency on the basisthat the documentation was needed urgently in connection with the extraditionhearing, the transfer under s 39(b)(ii) to Crown Law was justified on the basis that itwas the entity conducting that litigation and best placed to analyse and respond to thatrequest.[98] The template letter sent to Mr Dotcom mis-stated the focus of s 39(b)(ii).31 Itis not the request which needs to be believed to more closely connected with thefunctions or activities of the other agency but the information to which the requestrelates.[99] It is therefore necessary to consider whether, on the facts, it can be said that theinformation to which the request related was more closely connected with thefunctions and activities of the Attorney-General. The two witnesses called by theAttorney-General on this point did not address their evidence to how the informationthat was the subject of the request was connected with the functions and activities ofCrown Law. Instead, both Mr Witcombe and Child gave evidence to the HRRT ofwhy they believed that the request, and specifically, the application for urgency andreasons given for it, were more closely connected with the functions and activities ofCrown Law. They do not seem to have applied their minds to where it could be saidthat the information subject to the request was most closely connected with thefunctions and activities of Crown Law.29 At [66.7].30 At [67].31 See [88] above.[100] The question for determination is whether it can be said that the request forurgency and the justification for that by reference to the impending extradition hearingmeans that the information that is the subject of the request is more closely connectedwith the functions and activities of Crown Law rather than the agencies holding theinformation.[101] Crown Law certainly had information relevant to the request that the otheragencies did not. It was Crown Law that was involved in the extradition proceedingsin respect of which urgency was sought and, realistically, Crown Law was the onlyentity that could make a sensible decision as to whether or not the request for urgencywas justified given the requests' express link to those proceedings.[102] The central reasoning of the HRRT in relation to s 39(b)(ii) is set out at [91.3]where the HRRT said:The phrase "more closely connected" must be given proper weight. It is thepersonal information to which the request relates which must be believed tohave that closer connection with the functions or activities of the proposedtransferee. It is our view that given the scheme of the Act that connectionmust come from prior engagement (by way of function or activity) with therequested personal information and the context of the information privacyprinciples.[103] This last sentence puts an unwarranted gloss on the wording of the Act. Thereis no requirement in the Act that the agency to whom the request is transferred willhave had a prior engagement with the requested personal information. The critical testis whether the information requested is believed to be more closely connected with thefunctions or activities of the other agencies.[104] Before us, Mr Mansfield complained that, at the time of the transfer of therequests to Crown Law, it was the agencies who held the information requested ofthem and not Crown Law, and that there was no basis for the agencies thinking thatCrown Law held the information or had reviewed it.[105] However, this submission overlooks the fact that what is required in terms ofs 39(b)(ii) is not a belief on the part of the transferor that the other agency holds theinformation (that is the ground dealt with by s 39(b)(i)) but that the information that isthe subject of the request is more closely connected with the functions or activities ofthe other agency. Here, part of the information that was the subject of the request(because of the explicit justification for the claim of urgency) was information aboutthe eligibility proceedings.[106] In the context of this request and, specifically, in relation to the linking of therequest for urgency with the need to have the information for the purposes of theextradition hearing, we find that there is a plausible basis upon which the transferringagencies could have concluded that the information that was the subject of the requestwas more closely connected with the functions or activities of the other agencies. Inthis case, the functions or activities were the conduct by Crown Law of the litigationin respect of which the claim for urgency was made.[107] Indeed, it is difficult to see how any sensible decision on the urgency aspect ofthe request could have been made by any of the agencies who were not involved in thelitigation.One request or two[108] One of the important questions to answer is whether the requests could be seenas two separate and distinct requests (as urged upon us by Mr Mansfield) or whetherthere was in reality only one request which, as a component of that request, sought theinformation urgently because of the pending extradition hearing.[109] We have come to the conclusion that the seeking of urgency was not a separaterequest. In this case it was an integral component of each of the 52 requests. Therequests were for "all personal information that you hold about Kim Dotcom,including under his previous names Kim Schmitz and Kim Vestor."[110] The request also sought not just information held by the receiving agency butthat held by "any agency that you have contracted to do work". The search was alsoexpressed as being "not limited to just the information recovered as a result of a searchacross your email system". The request sought all personal information and was statedto include "information including communications that mention Kim Dotcom'sname".[111] The same document contained the reference to urgency. After setting out thescope and breadth of the request, it said, "This information sought is required urgentlybecause of pending legal action. Therefore, please treat this request as urgent pursuantto s 37 of the Privacy Act."[112] The information was asked to be sent "as soon as possible".[113] We have come to the conclusion that because an integral component of theinformation request was that of urgency, it was open to the receiving agencies totransfer the request for a coordinated response to come from the Attorney-General.The Act does not require that the Attorney-General holds the information nor that hehad held it previously.[114] If the Attorney-General had come to the conclusion that the request was notvexatious, and that the request for urgency was one which should be complied with bysome or all of the transferring agencies, he would likely have conveyed that responseand coordinated the provision by the agencies of the requested information.[115] There is nothing in the text, context or purpose of the PA that would precludea receiving agency from transferring the request to the only other agency that is in anyposition to make a considered evaluation of the aspect of the request relating tourgency.[116] The HRRT held that there must be a connection between the transferee and therequested personal information, and that connection must be one arising from theapplication of one or more of the information privacy principles. It then said, "Beinglegal advisor to an agency is not enough to provide that contextualised connection."32[117] Although the Privacy Commissioner chose to analyse the transfer as if it weresimply a request for legal advice and assistance from Crown Law, that is not howCrown Law had presented the case to the Commissioner.33 That is not why eitherMr Witcombe or Mr Child said they made the transfer.32 HRRT Decision, above n 27, at [85].33 The HRRT at [107] notes that, while the statement in reply did not plead an "alternative defence",counsel had submitted that the Privacy Commissioner's approach was valid.[118] The HRRT said:34On this interpretation PA, s 39(b)(ii) does not permit a "transfer" to a legaladviser for the purpose of taking legal advice. Nor does it permit transfer to alegal adviser so that the adviser can make a decision on the request or for thepurpose of communicating the client's decision on the request. As pointed outby the Privacy Commissioner, a transfer to a legal adviser under s 39 is notnecessary for the purpose of taking legal advice or for communicating aclient's decision to the requester. That being so there is no reason to strain thelanguage of s 39(b)(ii).[119] We agree with this analysis. If all the agencies had been doing was obtaininglegal advice, there would have been no need for a "transfer". On the facts, the PrivacyCommissioner's analysis is also unfounded. The recipient agencies transferred therequest because they believed that the information that was a critical component of therequest (namely the requirement to treat the request with urgency because of pendinglegal action) was most closely connected with the functions and activities of CrownLaw.[120] They did not transfer the requests to get legal advice. If Crown Law's onlyinvolvement was to provide legal advice, the Attorney-General would not have beenauthorised to make the decision to decline the request on the ground of vexatiousness.[121] The HRRT focused on the issue of whether or not the Attorney-General hadphysical possession of the information requested or had previously had engagementwith the information. It said:35It was not claimed the decline decision was made by the Attorney-General asholder of the information or as an agency which had prior engagement withthe information under one or more of the information privacy principles.None of the agencies had transferred to the Attorney-General the personalinformation held by them.[122] However, for the reasons set out above, we have concluded that there was norequirement that, in order for s 39(b)(ii) to apply, the Attorney-General held theinformation or had previously had engagement with it.34 HRRT Decision, above n 27, at [96.6].35 At [101].[123] It is clear that the only component of the request made by Mr Dotcom of theagencies that justified the transfer to the Attorney-General was the request for urgency.[124] The HRRT actually set out the relevant passage from the letter of the Solicitor-General to the Privacy Commissioner on 31 August 2015 where the Solicitor-Generalsaid:36[44] If Mr Dotcom and his lawyers wish to maintain the requests in amanner not linked to the litigation, we would agree that there would be nobasis to transfer the requests to Crown Law.[125] In its decision, the HRRT appears to have overlooked the fact that all of the 52recipients of the requests had to address the request for urgency and the justificationput forward for it by Mr Dotcom, namely that the information requested was requiredurgently because of the pending eligibility for extradition hearing.[126] The HRRT concluded:37In these circumstances it is inescapable that the transfer to the Attorney-General was a transfer to him as the Law Officer representing the Crown inlitigation against Mr Dotcom.[127] The use of the word "as" is problematic. The use of the words "because hewas" in its place would be more accurate. Requests were transferred because theAttorney-General was the only one in a position to sensibly respond to the componentof the request relating to urgency. That is because none of the agencies to whom therequests were made could sensibly analyse that aspect of the requests.[128] If Mr Dotcom had withdrawn the requests and resubmitted them with onewhich did not seek urgency or justified the seeking of urgency on some basis otherthan the extradition proceeding then, as properly conceded by the Solicitor-General inhis letter of 31 August 2015, there would have been no lawful basis to transfer therequests.36 At [102].37 At [103].Were the requests vexatious?[129] The reasons given by the Attorney-General for refusal of the requests were setout in the letter of the Solicitor-General to Mr Dotcom's then lawyer, Mr Edgeler, on5 August 2015, which said:Further, it is my view, considering the s 37 request in its context, that ascurrently expressed your request must be declined under section 29(1)(j), onthe grounds that it is vexatious and includes, due to its extremely broad scope,information that is trivial.[130] It was not alleged that the reason the request was vexatious was because itincluded information that was trivial due to its extremely broad scope. The inclusionof trivial information was in addition to the claim of vexatiousness.[131] Mr Mansfield, for the respondent, submitted that the Attorney-General hadattempted to "rewrite the refusal letter of 5 August 2015" in the email from theSolicitor-General to Crown Law of 31 August 2015. He challenged that part of the31 August 2015 letter which he said: " sought to re-cast Crown Law'scorrespondence with ACL as an attempt to enter into constructive dialogue with theRespondent". He submitted that this was "at best, a strained reading of thecorrespondence".[132] We do not accept that categorisation of the letter of 5 August 2015.[133] That letter specifically said:Accordingly, should your client wish to obtain personal information unders 37 urgently, I would suggest that he gives specific information as to thenature, time and basis of the legal proceeding sufficient to allow me to identifyand obtain any reasonably relevant information, wherever that may be held.[134] The letter also referred to the recent decision of Simon France J which hadrelated to two discovery applications in the extradition proceedings, one againstNZSIS and the other against INZ.38 The requests had been "everything" requestssimilar to the ones relevant here.38 Dotcom v The United States of America, above n 12.[135] Simon France J described the application as being:39 hopelessly broad being simply a request for all personal information heldby all these agencies in relation to each respondent. There is no basis atall to consider that the request is relevant to the extradition proceedings. Itwas rightly described in the court below as a fishing expedition. All thereasons discussed previously apply, but with the added factor of totalirrelevance, as cast, to the extradition proceeding.[136] At [9] of the 5 August 2015 letter, the Solicitor-General said:If the request is maintained as urgent and does relate to [Mr Dotcom's]allegations of abuse of process, the comments of Justice Simon France as toadvancing "an air of reality" as a foundation for identifying specificinformation may assist in narrowing the enquiry for s 37 purposes.[137] In the circumstances, there is nothing strained about a description of this letteras being an attempt to enter into constructive dialogue with Mr Dotcom.[138] Neither is there any basis for Mr Mansfield's criticism of the letter of31 August 2015 on the basis that it expanded on the reasons given by the Attorney-General for declining the request under s 29(1)(j). Consistent with "open textured"structure of the Act, s 29(1)(j) is not prescriptive as to the manner in which that sectionis to be invoked.[139] In any event, the letter of 31 August 2015 does not proffer different reasonswhy the request was declined, it expands the reasons already given.[140] All of the explanations given in the 31 August 2015 letter focus on the urgencyaspect of the requests. Even the issues relating to the breadth of the request were tiedto the urgency component. The relevant paragraph in the letter says:The requests were extremely broad. Mr Edgeler must have known that itwould be impossible for many of the recipients to respond to the requestsurgently.[141] In his submissions, Mr Mansfield claimed that it was unclear as to the basisupon which Crown Law asserted that the information sought by the requests wasvoluminous. However, this is self-evident. The requests sought all information held39 At [83].by the agency, as well as any agency that the agency had contracted to do work. AsMs Casey submitted in argument, in relation to the Ministry of Health, this wouldinclude every DHB throughout the country. The request was also "not limited to justthe information recovered as a result of a search across your email system". Ittherefore required a manual search of all records. There were no date limits aroundthe information sought, and the request gave, as an example of the level of informationsought, "information including communications that mention Kim Dotcom's name".[142] The HRRT rejected Mr Mansfield's submissions that it could only look at theinformation given in the letter of 5 August 2015 to ascertain the reasons for theAttorney-General declining the request. It acknowledged that the relevant date thatthe agency must have good reason under s 29 for refusing access to personalinformation is the date on which the decision is made but noted that a number of caseshad established the principle that, provided a good reason existed on the date of thedecision, a failure by the agency to offer that reason at the time did not amount to aninterference or the privacy of the individual. We agree with that approach.[143] The HRRT noted that, in the letter of 31 August 2015 from the Solicitor-General to Mr Dotcom's solicitor, an additional explanation, not in the original letterof 5 August 2015 had been included. This was:We declined the transfer requests on the basis they were vexatious andincluded, due to their extremely broad scope, information that was trivial. Itis apparent from the very broad and unfocused nature of the requests, and therequest for urgency, that the requests were not genuine and were intended todisrupt the extradition hearing.[144] The HRRT noted that when counsel for the Attorney-General was askedwhether it was the Crown's submission that Mr Dotcom was conducting his defenceto the extradition hearing in a vexatious manner, she replied "absolutely not".40 It isnot clear why this question was asked. It does not appear to have been any part of theCrown's case that Mr Dotcom was conducting his defence to the extraditionproceedings in a vexatious manner. Indeed, the HRRT acknowledges:4140 HRRT Decision, above n 27, at [125].41 At [126].The Crown written submissions confirm that its case is that it was only thisparticular request, made at this particular time and in this particular mannerthat led to the conclusion the request was vexatious and to be declined.[145] It is the request itself which the declining party has to establish was vexatious,not any aspect of the proceedings to which the individual requester of the informationmay wish to use the information for.[146] Whether or not a request is vexatious is simply to be determined objectively.It is not necessary for an agency relying on s 29(1)(j) to establish that the requesteracted with an intention to vex. The Court of Appeal in Brogden v Attorney-Generaladdressed the concept of commencement of vexatious proceedings set out in s 88B ofthe Judicature Act:42Of course, if the litigant is found to have had an improper purpose incommencing proceedings, a finding that the litigation was vexatious is morelikely. The test is, however, whether, overall, the various proceedings havebeen conducted by the litigant in a manner which properly attracts that epithet.[147] Were it otherwise, the Act could become unworkable.[148] Unfortunately, a number of litigants who come before the Court appear tobecome obsessed with the subject matter of their litigation. They are often, but by nomeans always, self-represented. They will not infrequently make requests fordisclosure of information. Sometimes they impose timeframes that are unreasonablein relation to urgency given the extensive nature of their requests.[149] Such people often believe intensely in the righteousness of their cause, and thereasonableness of their actions. Some are convinced that there are conspiracies atwork against them.[150] If it were necessary to establish that, before s 29(1)(j) could be invoked, sucha requester had an intention of being vexatious or had an "ulterior motive" in makingthe request, the purpose of including in the Act a specific ground of refusal in relationto frivolous and vexatious requests would be undermined.42 Brogden v Attorney-General [2001] NZAR 809 at [22].[151] The HRRT acknowledged that the test for vexatiousness was objective andeven set out an extract from the decision in Attorney-General v Hill where in relationto vexatious litigants in civil litigation the Court had said:43 the Court can and must look at the totality of all of the proceedings. TheCourt is not concerned with whether the proceeding was instituted vexatiouslybut whether it is properly described as a vexatious proceeding.[152] Given the acknowledgement that the test for vexatiousness was objective, it issurprising that the HRRT made specific findings about the subjective intent ofMr Dotcom in making the requests. It said: 44We make the specific finding that Mr Dotcom has amply satisfied us, to thecivil standard, that contrary to the assertion by the Crown, he had no ulteriormotive in making the information privacy requests. The requests were entirelygenuine and not intended to disrupt the extradition hearing.[153] That finding is not determinative of an objective assessment of whether or notthe request could properly be described as vexatious.[154] The HRRT made the valid point that:45 the "frivolous or vexatious" ground is not an all-encompassing groundwhich swallows the other grounds. It cannot be deployed if another, moreappropriate ground has application.[155] Obviously, if the information cannot readily be retrieved, it falls outside theambit of privacy principle 6 and any refusal to disclose it should refer to that principle.Similarly, refusal to disclose on the basis that legal professional privilege would bebreached, should rely specifically on s 29(1)(f).[156] The HRRT went on to say:46An agency is not well placed to determine what is in fact "frivolous" or"vexatious" or "trivial". The agency is not aware of the personalcircumstances of the requester nor is it aware of the use to which theinformation is to be put.43 HRRT Decision, above n 27, at [146.3], citing Attorney-General v Hill (1993) 7 PRNZ 20 at [22].44 At [143].45 At [147.2].46 At [147.4].[157] As a general statement of principle, this, in most cases, is likely to be correct.However, following the transfer of the request to the Attorney-General, the agency, onthe particular facts of this case, was well placed to determine what was frivolous,vexatious or trivial. It was aware of the personal circumstances of the requester and,because the requests specifically indicated the purpose for which the information waswanted urgently, it was also aware of the use to which the information was to be put.[158] In assessing whether a request is vexatious, the context of the request isimportant.47[159] The context of this case includes the eligibility proceedings and this basis asthe foundation for requesting an urgent response.[160] Ms Casey set out in her submissions what she said were the relevant factorswhich support an objective assessment that the request was vexatious. These were:(a) the close proximity to the (by then 10th) fixture for the substantiveeligibility hearing, and the concurrent efforts to vacate or delay thehearing;(b) the delay between the "misconduct" stay application filed on30 October 2014 (and formally raised with the Court in November2013) and these urgent requests in July 2015;(c) the blanket approach of targeting every Minister and almost everyGovernment department;(d) the blanket claim for urgency for all information and across allagencies;47 See, for example, Attorney-General v O'Neill [2008] NZAR 93; Chief Executive of the Ministryof Social Development v Shandey [2015] NZFC 1728 at [25].(e) the breadth of the request and the explicit insistence on its widestpossible application, including demanding disclosure of informationthat would be trivial and information that was not personal information;(f) the refusal to narrow the request or engage in a co-operative process toallow practical responses to be made in a sensible timeframe;(g) the District Court and High Court's prior findings that such disclosurefrom even the more closely involved agencies would be "totallyirrelevant" to the extradition litigation;(h) the obvious fact that for a number of agencies full compliance with therequest would not be possible within 20 days (let alone urgently); and(i) the history of extensive prior Privacy Act and Official Information Act1982 requests (including a number phrased in similar terms to this, butto specific agencies only) indicating that timely and more sensiblyfocused and co-operative requests had been made where the requestedinformation was genuinely sought for the purposes of the litigation.[161] When analysed objectively, such a broad request for information from theagencies and any agency that they had contracted to do work, unbounded by any timelimit, not limited to email searches and extending as far as communicationsmentioning Mr Dotcom's name, coupled with the requirement that this information bemade available urgently, could be seen to be vexatious. Undoubtedly, the scope ofsuch a search would have involved much information that was trivial. In the presentcase, the Attorney-General was well placed to determine that, in the context of therequest for urgency, much of the information sought would indeed be trivial, if notcompletely irrelevant.[162] At [160], the HRRT stated:The Crown case is based on the narrow contention that in making the requestsMr Dotcom had an improper motive, namely to disrupt the extradition hearingand the Crown had a legitimate and important goal of bringing the eligibilityhearing to a conclusion without delay.[163] The Crown's case was certainly not that narrowly focused before us. As setout above, the Crown relied on some nine separate factors which were said to supporta conclusion that the requests were vexatious in the sense of having the effect of vexingor frustrating.[164] As noted by Simon France J, an "everything request" is perfectly permissibleunder the PA which does not require requests to be specific.48[165] If Mr Dotcom had made the request without the component of urgency relatedto the extradition litigation, it would not have been vexatious and the agencies wouldhave had to comply with it, subject to there being no other valid ground for refusal toprovide the information such as it being trivial, not able to be readily retrieved or thesubject of legal privilege.[166] In determining that the request was not vexatious, the HRRT appears to havelargely ignored the relevance of the urgency component of the request given the statedjustification and the breadth of the request. Instead, it has focused on the issue ofsubjective intention.[167] The HRRT introduced a new, and in our view unwarranted, element to theconcept of "vexatious" as used in s 29(1)(j) PA. It said, "A key component to'vexatious' is an element of impropriety."49[168] Somewhat confusingly, in the next paragraph, it went on to say, "[we] wouldnot wish to be understood as saying an indirect motive is always essential".50[169] The HRRT further indicates that it sees the requirement for "impropriety" inthis context as connoting serious misconduct such as would render a lawyer whoparticipated in it subject to disciplinary processes under the Lawyers andConveyancers Act 2006.5148 Dotcom v The United States of America, above n 12, at [83].49 HRRT Decision, above n 27, at [146.1].50 At [146.2].51 At [161].[170] In articulating the concept of impropriety as the equivalent of misconduct by alawyer, the HRRT implies that in declining the request on the ground of vexatiousness,the Attorney-General impugns the integrity of Mr Dotcom's legal team. It says:52The attribution to Mr Dotcom of an improper motive ("to disrupt theextradition hearing") in making the information requests on their advice mightunintentionally suggest that Mr Dotcom's second legal team would actotherwise than as officers of court who owe explicit duties under the Lawyersand Conveyancers Act 2006 and the Lawyers and Conveyancers Act(Lawyers: Conduct and Client Care) Rules 2008. As will be seen we find therewas simply no basis for any improper motive to be attributed to Mr Dotcomor to his legal team.[171] It is difficult to see why the HRRT would feel the need to make this commentwhen they had earlier in their decision expressly noted Ms Casey's concession that theAttorney-General did not allege that Mr Dotcom had been conducting the extraditionlitigation vexatiously.[172] In claiming that the concept "vexatious" in s 29(1)(j) required impropriety orserious misconduct on the part of the requester, the HRRT is setting the test muchhigher than the Act does.[173] While the Attorney-General might have been of the view that Mr Dotcom'srequest was motivated by an ulterior motive, he was not required to prove that. Thequestion the HRRT was required to address was whether, on an objective basis, therewas "no proper basis" for the Attorney-General concluding that these particularrequests, made at this time and in this manner, including the requests for urgency, werevexatious.[174] For the factors set out by Ms Casey in her submissions,53 we accept that therewas a proper basis under s 29(1)(j) for the Attorney-General to have concluded that,in the particular context of this request, it was vexatious.52 At [161].53 Referred to at [160] above.[175] The HRRT decision proceeds on the premise that the request for urgencyrelying on the extradition case was somehow distinct and separable from the requestfor personal information. The HRRT says:54If, however, the air of reality and relevance points were made solely in relationto the request for urgency, then it was open for that request to be declined butit was not open for the information privacy request itself to be declined aswell.[176] The facts of this case do not support unpicking the request like this. Indeed webelieve it is illogical to do so such was the strength and nature of the urgency request.It was an integral component of all of the requests that all of the information soughtwas required urgently and the only reason given for that urgency was the connectionof the information sought to the extradition proceeding.[177] Mr Dotcom never resiled from the request that all of the information wasrequired urgently although he did by letter of 17 August 2015 from Anderson CreaghLai to the Solicitor-General state at [21]:However, we do recognise that some of the requests are more urgent thanothers in that they are directly linked to the extradition hearing. Accordinglywhile not resiling from or withdrawing any of the requests made, or theappropriateness of the urgency sought, we seek your assistance with providingan urgent response particularly in respect of the following requests [to eightidentified individual agencies].[178] It was Mr Dotcom's choice to continue to maintain that all of the informationwas required urgently but, having done that, he cannot complain that the Attorney-General regarded such a request as vexatious.[179] The HRRT sought to separate out the request for urgency from the balance ofthe claim going so far as to say:55 it is our view the implicit assertion in the decline letter that the Privacy Actrequests had to demonstrate an "air of reality" and that the requestedinformation was "relevant" is justified neither by the Privacy Act nor by theHigh Court judgment.54 HRRT Decision, above n 27, at [172].55 At [172].[180] It is clear that there is no such implicit assertion in the decline letter of 5 August2015 where the declining on the basis of the request being vexatious and relating totrivial material was specifically and solely grounded in the claim for urgency on thebasis of the extradition litigation. The Solicitor-General said in the letter of 5 August2015:If the request is maintained as urgent and does relate to [Mr Dotcom's]allegations of abuse of process, the comments of Justice Simon France as toadvancing "an air of reality" as a foundation for identifying specificinformation may assist in narrowing the enquiry for s 37 purposes.[181] The HRRT concluded that, in terms of scope and volume, "[t]he informationprivacy requests by Mr Dotcom were not in any way out of the ordinary either in termsof the Privacy Act or in terms of the OIA."56[182] This statement ignores the fact that the terms of a request for personalinformation directed at every Cabinet Minister and nearly every Government agency,of an extraordinarily broad nature and insisting that the response was requiredurgently, were "out of the ordinary".[183] Having sought urgency, and having justified that request for urgency on thebasis of the relevance of the information sought to the extradition hearing, and havingrefused to resile from the urgency request, Mr Dotcom cannot complain that therequest was regarded as vexatious.[184] At the heart of its decision, is the HRRT's statement that, "decline of theurgency request did not justify or require also the blanket decline of the informationprivacy requests themselves on the grounds of vexatiousness".57[185] The Solicitor-General's letter of 5 August 2015 did not purport to separate outthe urgency component of the request from the request for disclosure of information.56 At [177.5].57 At [193].[186] The Solicitor-General made it clear that the only component of the request thatmade it vexatious was that of urgency. At [7] of the letter of 5 August 2015, heexpressly said:Further, it is my view, considering the s 37 request in its context, that ascurrently expressed your request must be declined under section 29(1)(j), onthe grounds that it is vexatious and includes, due to its extremely broad scope,information that is trivial.[187] All that Mr Dotcom had to do, to avoid a failure to respond on the ground ofvexatiousness, was to resubmit the request without the urgency component. He madethe deliberate choice not to do that.[188] It is our conclusion that it cannot be said that there was "no proper basis" forthe decision conveyed in the letter of 5 August 2015 to decline the request on the basisthat, when viewed in its totality, it was vexatious.Remedies[189] Given the findings that we have already come to, it is not necessary to addressthe question of remedies. However, in case we are wrong in relation to our findings,we will express our views.[190] We have particular concerns about the manner in which the HRRT went aboutsetting damages for loss of a benefit, and loss of dignity and injury to feelings.58[191] We also note that, at [255.2], the HRRT purported to make an order unders 85(1)(d) and (e) PA, that all 52 agencies to whom the requests were made, includingall Cabinet Ministers, comply with those requests.[192] The HRRT's power to grant remedies is expressly restricted by s 85(1) PA todefendants in the proceedings before it. There were only eight named defendants inthe proceedings before the HRRT.59 To the extent that the HRRT has purported togrant remedies against agencies other than the named defendants in these proceedings,58 Section 88(1)(b) and (c) PA.59 As the HRRT acknowledged at [11], there was a "degree of untidiness in the naming of thedefendants" and one of the named defendants, Immigration New Zealand, was not a separate legalentity.it has acted beyond its jurisdiction. Mr Mansfield did not seriously challenge thatproposition. Accordingly, those remedies must be set aside.Damages[193] In relation to the interference with the privacy right of an individual, s 88(1)(b)PA authorises the HRRT to award damages for "loss of any benefit, whether or not ofa monetary kind, which the aggrieved individual might reasonably have been expectedto obtain but for the interference".[194] Section 88(1)(c) authorises the HRRT to award damages for " humiliation,loss of dignity, and injury to the feelings of the aggrieved individual".[195] The HRRT awarded $30,000 damages to Mr Dotcom for loss of a benefit. TheHRRT did not expressly say precisely what benefits it found Mr Dotcom had lost.However, it discussed a number of cases where damages had been awarded in caseswhere the requested information had been sought in connection with litigation inwhich the requester had been involved. It is safe to assume that the HRRT saw thiscase as falling in the same category. This is consistent with the statement by theHRRT:60He also wants to have access to the information so he can be satisfied he hasmost effectively deployed it in defence of the extradition application and inpursuit of the related litigation either in train or in contemplation.[196] The HRRT also referred to an earlier instance where the GovernmentCommunications Security Bureau had acknowledged, in 2012, that it had unlawfullycollected personal information about him which had resulted in the then PrimeMinister of New Zealand making an apology to him. Of this matter, the HRRT said:61It is understandable that in these circumstances Mr Dotcom wants to monitorthe collection, storage and use of his personal information by state agencies ofNew Zealand.60 HRRT Decision, above n 27, at [239.3].61 At [239.3].[197] In its decision, the HRRT referred to six cases where damages in the sum of$5,000 had been awarded in relation to requesters who wanted information for thepurposes of conducting litigation.62[198] It also referred to one case where two requesters were awarded $4,000 each.63[199] The HRRT concluded that the awards in the cases discussed (consistently$4,000-5,000) were unhelpful and said that Mr Dotcom's case was unique. It alsonoted that the earliest of the cases discussed (Proceedings Commissioner v HealthWaikato Ltd) dated from 2000 and said that:64According to the Reserve Bank of New Zealand Inflation Calculator, $5,000in 2000 would today be worth $7,317. The Tribunal's calculation is that werethe same $5,000 [to] be compounded at 3%it would presently be worth $8,264.If compounded interest at 5% is applied the adjusted figure is $11,460.[200] There is no doubt that the HRRT can, in appropriate cases, review whether aparticular quantum of award, set in the distant past, needs to be adjusted for inflationor other factors. However, the most likely criterion to be applied is the Reserve Bankof New Zealand Inflation Calculator rather than the figure of 5 per cent compoundinginterest. It is also significant that, in the present case, all but two of the decisionscanvassed by the HRRT dated from 2012 or later.[201] However, the more important criticism of the HRRT is that they did notconsider the effect that the information sought was likely to have actually had on theproceedings in respect of which Mr Dotcom said it was sought.[202] The HRRT dismissed the Attorney-General's submission that, in assessingdamages, it was necessary to consider how the requested information might haveaffected the outcome of the litigation by saying that the law did not require Mr Dotcomto establish that the information would actually have had an effect on the litigation.62 Proceedings Commissioner v Health Waikato Ltd (2000) 6 HRNZ 274; Grupen v Director ofHuman Rights Proceedings [2012] NZHC 580; Director of Human Rights Proceedings v Schubach[2015] NZHRRT 4; Watson v Capital and Coast District Health Boards [2015] NZHRRT 27;Director of Human Rights Proceedings v Hamilton [2012] NZHRRT 24; and Director of HumanRights Proceedings v Valli and Hughes [2014] NZHRRT 58.63 Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004.64 HRRT Decision, above n 27, at [240].[203] In this context, the HRRT cites the High Court decision of ProceedingsCommissioner v Health Waikato Ltd65 as authority for the proposition that it is notnecessary for a plaintiff to prove that the withheld information would, if available,have meant a different result before the Court or the HRRT, or on appeal.66[204] However, that seems to overstate what the High Court in that case actuallyfound. That case does support the proposition that a requester does not have toestablish that the requested information would "inevitably" have meant a differentresult in the litigation, merely that that was a possible outcome. At [48], the HighCourt in that case said:So, as Mr Illingworth realistically accepted on this appeal, it could not beargued that these letters would inevitably, if available, have meant a differentresult before either the Tribunal or on appeal. Had they been available,however, at the end of what the CRT correctly described as "protracted" and"stressful" litigation, [the requester] would have felt that all that could havebeen done, had been done, to win his major point and either succeed on thegrievance issues before the Employment Tribunal, or alternatively achieve abetter result than $5,000 and $3,000 respectively on the appeal.[205] The HRRT correctly accepted that:67Before damages can be awarded for an interference with the privacy of anindividual there must be a causal connection between that interference and oneof the forms of loss or harm listed in the PA, s 88(1)(a), (b) or (c).[206] Mr Mansfield, in his written submissions, identified the benefit he saidMr Dotcom lost as being:He lost the opportunity to refer to this information in his defence of theextradition proceeding in the District Court, High Court and Court of Appealand related proceedings challenging the validity of the arrest warrant and thejurisdiction of the extradition court.[207] As part of analysing the issue of causation, it is therefore necessary to considerthe extent to which the information requested is likely to have actually affected theoutcome of the litigation for which it was said by Mr Dotcom to be required. Thatlitigation was the forthcoming eligibility hearing in the District Court. It was not65 Above n 62.66 HRRT Decision, above n 27, at [226].67 At [221].necessary for Mr Dotcom to show that the information sought would inevitably haveinfluenced the outcome but there must be at least some evidential basis for assumingthat it was potentially relevant.[208] In making that assessment, it is necessary to consider the view expressed bythe courts that had previously considered "everything" requests by Mr Dotcom of thenature made here. Perhaps the most significant judgment in this regard is that ofSimon France J.68 His view was that the information sought was totally irrelevant tothe extradition proceeding. In these circumstances, it is difficult to see how thenecessary element of causation has been established.[209] It may be possible that Mr Dotcom could establish the other loss of benefitreferred to by the HRRT at [239.3], namely a need to monitor the collection storageand use it as personal information by State agencies given his prior experience withthe GCSB. However, when considering that issue, it would be necessary to haveregard to the fact that, as set out earlier in this decision, Mr Dotcom was regularly andfrequently making requests under both the OIA and PA prior to this request and, as setout in annexure E to the appellant's submissions, continued to regularly make suchrequests (and had them complied with) right up until the date of the HRRT hearing.[210] On an appeal, there are limits around the ability of an appellate court tointerfere with the quantum of general damages fixed by the lower court. The SupremeCourt in Taunoa v Attorney-General said:69[I]t was not the function of an appellate court to substitute its own assessmentof general damages for that of the trial judge. A different award should bemade on appeal only if the court was satisfied "that the trial Judge's awardwas so low (or so high) as to amount to a wholly erroneous figure".[211] Were we required, for the purposes of this decision, to come to a concludedview in relation to damages under s 88(1)(b) PA, our conclusion would have been thatthis was the case where a wholly erroneous figure had been arrived at. We would havedirected that this aspect of the matter be remitted to the HRRT for consideration interms of the principles that we have set out in this decision.68 Dotcom v The United States of America, above n 12, at [78], [79] and [83].69 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [331] per Tipping J.Damages for loss of dignity or injury to feelings[212] The HRRT awarded damages of $60,000 under s 88(1)(c) PA for loss of dignityand injury to feelings. Mr Dotcom had specifically disclaimed any claim for"humiliation" which is the first of the three grounds covered by s 88(1)(c).[213] The issue both before the HRRT and us on appeal was the extent to whichMr Dotcom was obliged to adduce evidence in support of his claim for this type ofdamages.[214] The HRRT got around the fact that the evidence submitted by Mr Dotcom didnot specifically address the basis of this claim by saying:70It is correct that his brief of evidence does not have a discreet heading whichreads "loss of dignity or injury to feelings" followed by a neatly packagedstatement to the effect that the Crown caused these forms of harm. But as withall evidence, one needs to listen closely to what is being said behind the wordsin which the testimony is framed.[215] The HRRT relied on the High Court decision of Winter v Jans as authority forthe proposition that loss of dignity and injury to feelings can be assumed or inferrednotwithstanding an absence of evidence.71[216] The HRRT rejected the Attorney-General's submissions that such an approachshould be limited to those cases where harm of this type was so obvious as to notrequire proof as being "not supported by the decision or by principle".72[217] It is therefore necessary to examine what the High Court in Winter v Jansactually said. It is helpful to set out the relevant passages from Winter v Jans. TheHigh Court said:73[34] In our view, while the normal rule is that an applicant must establisha causal connection between the breach and the damage, in appropriate casesthe Tribunal or this Court may assume from the nature of the breach that suchdamages will follow. This is, in effect, what the Tribunal did in this case. Ifthere were evidence which the Tribunal accepted, which led to the inferenceswhich it drew, this Court on appeal should not interfere. We note, however,70 HRRT Decision, above n 27, at [245].71 Winter v Jans, above n 63.72 HRRT Decision, above n 27, at [248].73 Winter v Jans, above n 63.that as the finding was based on inferences, this Court is in the same positionas the Tribunal to assess whether the inference can properly be drawn fromthe facts, and if they cannot, the finding can be reversed. This is not a findingbased on credibility findings of witnesses, which an appellate Court will notnormally interfere with.[35] Whether the finding is based on "humiliation", "loss of dignity", or"injury to the feelings of that individual", the mental condition which wascaused must be "significant". If "significant" is given its normal dictionarymeaning, the impact caused must have been "important" or "notable" or"considerable" for it to have been significant.[37] There are also difficulties in inferring "significant" injury to feelings,or "significant" humiliation, or "significant" loss of dignity where theclaimant does not give evidence. [38] We do not draw the inevitable inference from the facts that the injuryto the feelings was significant. In the circumstances, we conclude thatwhile there would naturally be some anxiety and stress from not knowing whatadditional information may have been on the file the circumstances were suchthat it cannot be inferred that the "injury to feelings" was "significant".[39] We therefore conclude that not knowing what may have been on thelost file did not allow the Tribunal to assume that there was significant injuryto the feelings of Mr and Mrs Jans. [218] Section 66(1)(b)(iii) PA says that, for the purposes of Part 8 of the Act, anaction is an interference with the privacy of an individual if, and only if, in relation tothat individual, the action "has resulted in, or may result in, significant humiliation,significant loss of dignity, or significant injury to the feelings of that individual".[219] Part 8 of the Act includes s 88. As the High Court in Winter v Jans noted, inrelation to the issue of whether or not there has been an interference with privacy rightsunder s 66, in the absence of evidence, there are difficulties in inferring significantinjury to feelings or loss of dignity where a claimant does not give evidence becauseof the use of the word "significant" in s 66. Section 88 does not use that word.[220] We conclude that this means that if, notwithstanding the lack of evidence, thisis one of the rare cases where the Court can infer that there has been a significantinterference with the privacy rights, the assessment of the damages under s 88(1)(c)does not require significant loss of dignity or injury to feelings. The question then iswhether or not the facts of this case get beyond the thresholds set out in s 66.[221] The HRRT actually set out the passages in the evidence from Mr Dotcomwhich it relied on to draw the inference that Mr Dotcom had suffered loss of dignityand injury to feelings. It said:74It was with considerable feeling (genuine, in our view) that he described hisinjured feelings. See for example the following passages taken from the notesof evidence at pp 51, 139 and 140:A These are very legitimate requests. I'm providing verylegitimate reasons why I would like to have the informationand the allegation that any of this is vexatious or is designedto frustrate the Government is just completely nonsensicalbecause 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 amentitled to it. Under New Zealand law I'm entitled to it andyou're not giving it to me.A my entire business has been destroyed, I've been put in jailfor a month, I've been subject to unlawful surveillance and,you know, my life and my marriage has been destroyed. I wasnot interested in negotiating, what I'm interested in is the truthbecause I know I've done nothing wrong and I believe youknow I have done nothing wrong and I want to have thedocuments to prove that and then this whole case is done andI can move on with my life. That is what I'm looking for, I'mlooking for the truth and I think I'm entitled to it andeverything that has happened so far indicates to me thatthere's no interest at all on the side of the government or theCrown to provide me with the truth.Q My understanding of your evidence to the tribunal is that oneof the reasons that you want your Privacy Act request is sothat you can have a fair hearing on the stay application?A Yes.[222] It is clear that in the passages of Mr Dotcom's evidence set out by the HRRT,Mr Dotcom is not directing his evidence as to any loss of dignity or injury to feelingsarising in relation to this particular request. What he is expressing is his emotionalresponse to a whole raft of matters, many of which occurred some years before thisrequest. Some (such as the manner in which he was initially arrested and remandedin custody) were the subject of litigation and settlement.74 HRRT Decision, above n 27, at [246].[223] The HRRT has fallen into the error of regarding Mr Dotcom's unhappiness ata whole range of disparate issues as being relevant to its assessment of exactly whatloss of dignity and injury to feelings he sustained in relation to the request that was thesubject of his complaint to the HRRT.[224] The HRRT has compounded this error by using emotive language such as"stigmatised" in reference to the Attorney-General describing the request as vexatious.The HRRT said, "The unjustified allegation that his requests were vexatious, notgenuine and intended to disrupt the extradition hearing contained a real sting."75[225] The use of this emotive language is inappropriate.[226] The Attorney-General did not say that Mr Dotcom was conducting theextradition litigation vexatiously. He did not even say that he was vexatious. Whathe said was that the request was vexatious for the purposes of s 29(1)(j). As explainedabove, the particular element of vexatiousness relied on was Mr Dotcom's request thatthis very broad "everything" request directed at 52 agencies was urgent. That is notsomething that stigmatises him, nor does it have a "real sting".[227] The approach adopted by the HRRT in effectively ignoring the requirement forevidence of loss of dignity and injury to feelings is at odds with the approach taken inother New Zealand jurisdictions to damages for humiliation, loss of dignity and injuryto feelings. The most analogous jurisdiction is the employment one wheres 123(1)(c)(i) of the Employment Relations Act 2000 also provides for the award ofgeneral damages as compensation for "humiliation, loss of dignity and injury to feelings".[228] The Employment Courts have long emphasised the importance of callingevidence in respect of claims for such damages. Chief Judge Inglis in the case ofWaikato District Health Board v Archibald confirmed that higher awards are generallysupported by evidence from third parties who have had the opportunity to observe the75 At [249].impact on the claimant although it was not mandatory that there be evidence other thanthat of the complainant.76[229] The HRRT referred to the case of Hammond v Credit Union Baywide77 for theproposition that the nature of the harm for which damages can be awarded unders 88(1)(c) PA means that there is an inevitably subjective element to their assessmentand that each case is fact-specific in terms of the personality of the aggrievedindividual.78[230] We agree with this observation. However, there is little analysis of the specificeffect on Mr Dotcom. The obvious reason for that is that, in relation to this particularrequest, he gave no evidence at all as to its effect on him. He certainly did not claimthat its effect had been "stigmatising" as the HRRT concluded.[231] Standing back and looking at the evidence as a whole, there is no evidence thatMr Dotcom was emotionally fragile, or that his feelings were affected in any particularway as a result of the refusal of this request. The context indicates that this was justone request in a long series of requests stretching over several years where this wasthe only instance of a request having been declined on the ground of being vexatious.The evidence also disclosed that, over the years, he had used requests for informationtactically and, with the assistance of skilled professional advisers, had managed todelay the extradition hearing some three and a half years. In those circumstances, itwould be difficult to infer that a person of ordinary fortitude would have sufferedsignificant loss of dignity or injury to feelings, let alone a person of the obviousfortitude of Mr Dotcom.[232] A further concern with the HRRT's award under this head is that although theHRRT in Part 2 acknowledged that an award of damages under s 88(1)(c) PA, is tocompensate for loss of dignity and injury to feelings and not to punish the defendant,it justified its award of $60,000 on the basis of what it said was "stigmatisation".79Particularly in the situation where Mr Dotcom had not, in his evidence, ever claimed76 Waikato District Health Board v Archibald [2017] NZEmpC 132 at [62]-[66].77 Hammond v Credit Union Baywide [2015] NZHRRT 6.78 See HRRT Decision, above n 27, at [250].79 At [252] and [254].that he was stigmatised, or that there was "a real sting" in the Attorney-General'sdecision to decline his request, it is inescapable that the HRRT had lost sight of thefact that s 88(1)(c) damages are designed for consequences that have either beenestablished by evidence or which, in limited cases, can be inferred, and thatpunishment of the defendant has no part in such damages.[233] The Employment Court in the recent case of Stormont v Peddle Thorpe AitkenLtd confirmed the principles in relation to s 123(1)(c)(i) when it said:80The purpose of an award under s 123(1)(c)(i) is to compensate for loss, not topunish. That means that the egregiousness of the employer's conduct willonly be relevant to the extent to which it actually increased the level of loss orharm suffered. While the subjective effect on the employee is the focus of theinquiry, along with causation, the loss to be compensated for must beobjectively assessed and quantified. It is the employee who must prove, onthe balance of probabilities, that they suffered loss; that the employer's breachwas a material factor in the loss they sustained; and quantification of that loss.Direct evidence, rather than inference, is generally required.[234] There was no evidence that Mr Dotcom had a particularly sensitive personalityor was likely to have experienced an emotional response to the declining of his requestout of the ordinary range. Indeed, far from being overly sensitive, the evidence wouldseem to indicate that Mr Dotcom is a particularly robust character, likely to be wellable to take disappointments like the refusal of this request on the grounds that it wasvexatious, in his stride. Such strength of character would be consistent with himhaving specifically disclaimed any reliance on the "humiliation" ground of s 88(1)(c).[235] This case seems to fall into the same category as Winter v Jans where, whilethere would naturally be some anxiety and stress from not knowing what information,additional to that already disclosed to him, might have been found in the records ofthe 52 recipients, the circumstances was such that it cannot be inferred that the injuryto feelings was significant.[236] Given that this case does not meet the threshold for implying significantconsequences, the absence of any direct evidence relating to Mr Dotcom having80 Stormont v Peddle Thorpe Aitken Ltd [2017] NZEmpC 71, (2017) 14 NZELR 789 at [116].suffered loss of dignity or injury to feelings means that there is no basis for an awardunder s 88(1)(c).[237] We therefore find that the figure for compensation arrived at under s 88(1)(c)is "wholly erroneous".[238] As with the damages awarded under s 88(1)(b), had we upheld the substantiveappeal, we would have directed that this aspect of the matter be remitted to the HRRTfor consideration in terms of the principles we have set out in this decision.Outcome[239] The appeal is allowed. We find that there was a proper and lawful purpose forthe transfer of the requests and that, because of the insistence that all 52 requests wererequired to be responded to urgently, on the ground that the information sought wasrelevant to the eligibility proceedings, they were vexatious.[240] Had we been required to determine the issues of remedies, we would havequashed the remedies ordered against those entities that were not defendants; set theawards of damages aside on the basis they were wholly erroneous and remitted thequestion of damages to the HRRT for determination in accordance with the principlesoutlined in this decision.[241] We invite the parties to settle costs themselves but, in the absence of agreement,the appellant is to file a memorandum within 14 days of this decision, with therespondent to file a memorandum in reply within 14 days of receipt of the appellant'smemorandum.Churchman J Deborah Hart Wendy GilchristSolicitors:Crown Law Office, Wellington for AppellantAnderson Creagh Lai Limited, Auckland for Respondent