DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V THE CATHOLIC CHURCH FOR NEW ZEALAND HC AK CIV 2006-404-006162

DIRECTOR OF HUMAN RIGHTS PROCEEDINGS V THE CATHOLIC CHURCH FOR NEW ZEALAND HC AK CIV 2006-404-006162 14 April 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-006162UNDER Part 11 of the High Court Rules IN THE MATTER OF the Privacy Act 1993 AND IN THE MATTER OF a Case Stated by the Human Rights Review Tribunal under s122 of the Human Rights Act 1993 BETWEEN THE DIRECTOR OF HUMAN RIGHTS PROCEEDINGS Plaintiff AND THE CATHOLIC CHURCH FOR NEW ZEALAND Defendant Hearing: 14 April 2008 Appearances: R Stevens for Plaintiff P D McKenzie QC for Defendant Judgment: 14 April 2008JUDGMENT OF COOPER J ON APPLICATION FOR LEAVE TO APPEALSolicitors: R Stevens, 36 Church Street, Devonport, Auckland Michael Burrowes & Co., PO Box 32146, Wellington Copy to: P D McKenzie QC, PO Box 10048, Wellington[1] This is an application for leave to appeal made by the defendant following my judgment of 19 February 2008. In that decision, I answered a case stated by the Human Rights Review Tribunal under s 122 of the Human Rights Act 1993 by expressing my opinion that the word "tribunal" in paragraph (b)(viii) of the definition of "agency" in s 21 of the Privacy Act 1993 is not capable of applying to a non-statutory tribunal. [2] As explained at the outset of the judgment the case was stated by the Human Rights Review Tribunal for reasons that it gave in its decision dated 13 June 2006. The case was stated against the opposition of the Director of Human Rights Proceedings who had brought a case before the Tribunal on behalf of a complainant who alleged that the defendant had failed to answer her request for access to personal information held about her by the Catholic Tribunal. [3] The Catholic Tribunal is said to be an entity within the Catholic Church for New Zealand. Amongst other things it decides whether or not marriages that have been solemnised by the Church may be annulled. It is an entity not created or recognised by any statutory provision and the defendant argued before this Court that for a variety of reasons it fell within the exclusion from the definition of "agency" in s 2(1) of the Privacy Act expressed as "in relation to its judicial functions, a tribunal". [4] In my judgment of 19 February I held for reasons that I gave that the word "tribunal" was not capable in this statutory setting of applying to a non-statutory tribunal. The result of the judgment was that a tribunal such as the Catholic Tribunal would remain within the definition of the word "agency" with all the duties of such bodies under the Privacy Act. [5] The defendant now wishes to pursue that same issue on appeal to the Court of Appeal. It contends that the judgment was wrong in law, and that I was in error in stating that no policy reason existed for excluding non-statutory bodies from the definition of "agency", when the question to which the Court should have directedattention was whether there was any policy favouring treating statutory tribunals as being within the definition and excluding non-statutory tribunals. [6] Mr McKenzie QC also contends that the Court erred in holding that there were no real policy justifications for the exclusion of church tribunals from the definition of agency and in holding that making a body such as the Catholic Tribunal subject to the Privacy Act would not raise any issue of doctrine or belief or in any real sense hamper the proper functioning of such a body. The defendant is concerned, amongst other things, about the implications of my decision for the proper functioning of tribunals in the position of the Catholic Tribunal receiving from time to time sensitive information related to questions of doctrine and belief. [7] The defendant submits overall that the questions of law involved in the appeal are ones which by reason of their general or public importance ought to be submitted to the Court of Appeal for decision. [8] The application for leave to appeal is opposed by the plaintiff. A formal notice of opposition was filed out of time, by approximately two days, but the point was not taken by the defendant, and I now enlarge the time for filing it. In the notice of opposition it was contended that the grounds upon which it is sought to appeal to the Court of Appeal go no further than to record the defendant's disagreement with the decision. It is argued that the judgment was thorough, closely reasoned and displayed no error of law on its face. The plaintiff argues that the question of law involved in the appeal is not one which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision. [9] That ground of opposition reflects the wording of s 124(2) of the Human Rights Act and echoes in part the general test for applications for leave to appeal that has been set out by the Court of Appeal in a number of decisions. They includeWaller v Hider [1998] 1 NZLR 412 and Snee v Snee [1999] 13 PRNZ 609. Under those authorities, it must be shown that the application raises a question of law capable of bona fide and serious argument in a case which involves some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal. Notwithstanding the somewhat narrower statement of the relevantconsiderations for the grant of leave to appeal in s 124(2) of the Human Rights Act, I consider it will be appropriate in most cases under that statute, to adopt the same approach to applications for leave in this setting. There could be no justification as Mr Stevens submits, for example, for granting leave to pursue a hopeless argument on appeal. [10] On the question of whether there is here a question of law capable of bona fide and serious argument, I stated in the judgment that the question raised by the case stated was not one which had an obvious answer or at least not one which was to be easily arrived at. I fully summarised the rival arguments in my judgment. I observed that there was merit in the position adopted by both parties. I was then, and remain of the view, that notwithstanding my clear preference for the position of the plaintiff, the defendant's case was plainly arguable. [11] The proper interpretation of the definition of "agency" in the Privacy Act and the exclusion for tribunals which it contains, is in my view a matter of sufficient importance in general terms to justify consideration by the Court of Appeal. It is to be noted that this is not the normal case where the question of whether or not the issue should be determined by the Court of Appeal arises in the context of a prospective second appeal. This Court's decision is the only one that has been made in the matter having regard to the procedure that has been adopted. The matter arose by way of a case stated without any formal decision by the Human Rights Review Tribunal on the question that was raised. Under s 124 of the Human Rights Act, leave to appeal to the Court of Appeal must be obtained in the case of any decision of the High Court on a question of law, notwithstanding its genesis. Having regard to the way in which this case arose, I consider that it would be wrong to over- emphasise considerations of cost and delay that would be the consequence of a second appeal. [12] Nor is this a case where reference can be made to an individual bearing unnecessary or disproportionate costs of further litigation of a matter of purely private interest to the litigants. On the contrary, the matter raises public law issues and the issues at stake are important. They include for example the potential relevance of s 15 of the New Zealand Bill of Rights Act 1990, and they affect apotentially significant class of non-statutory bodies. I consider it would be desirable to obtain the opinion of the Court of Appeal on the proper interpretation of "tribunal" in this context. In addition, a decision of that Court might have the effect of forestalling the issues being raised by other litigants in future cases. [13] For these reasons I have decided that leave to appeal should be granted, and it is granted accordingly. In broad terms the question to be determined on the appeal will be whether or not my opinion as to the meaning of the word "tribunal" (which I have set out at the commencement of this judgment) is correct.