[1] The Privacy Commissioner has given notice under s 91(4) of the Privacy Act 1993 requiring the appellant William Patrick Jeffries, a barrister, to disclose the source of information about the movements into and out of New Zealand of an American family, Mr and Mrs Powell and their children. Such information, contained in letters written by the appellant and a Member of Parliament to the New Zealand Immigration Service (NZIS), could only have come from NZIS records which are the subject of strict confidentiality.
[2] The appellant appeals against a judgment of the High Court delivered by Ronald Young J dismissing his application for judicial review of the decision of the Privacy Commissioner to issue the notice: HC WN CIV 2006-485-860 22 May 2008.

Context of appeal

[3] The Powells obtained consent under the Overseas Investment Act 1973 to buy Waitai Station on D’Urville Island. The circumstances were discussed in a judgment of the High Court (Jeffries v Attorney-General HC WN CIV 2006-485-2161 20 May 2008), against which a judgment on appeal is pending: CA338/2008. Part of the development of the station included the construction of a house on the property. The Powells engaged Interact, a firm providing architectural and building services. It in turn instructed the appellant as counsel in a dispute with the Powells in which Interact claimed fees and the Powells counterclaimed alleging breach of contract by Interact. Interact made an unsuccessful application for summary judgment and the parties went to arbitration. Various tribulations, including illness of the arbitrator and insolvency of Interact, stalled resolution of the case which remains undetermined.
[4] In July and August 2000 the appellant and the Hon Dr Nick Smith MP wrote to NZIS letters in essentially identical terms seeking information under the Official Information Act 1982 about the Powells’ immigration status and activities. At around that time, the appellant, while acting for Interact in litigation, used information as to the Powells’ immigration status and entry into and exit from New Zealand in cross-examination of Mr Powell.
[5] The Powells obtained copies of the Official Information Act requests and complained to the Privacy Commissioner that someone in NZIS or New Zealand Customs Service (Customs) had improperly released the information.
[6] In response to the Privacy Commissioner’s inquiry Customs said it had not been asked for the information and NZIS, while admitting it had been asked for the information, said it had declined to provide it.
[7] The Powells made three complaints to the Privacy Commissioner under s 67 of the Privacy Act that there had been interference with their privacy:

(a) The first, in September 2003, relating to the actions of NZIS and/or Customs, one or both of which the Powells considered had released their entry and exit records to and from New Zealand.

(b) The second in January 2004 concerning the actions of Dr Smith and the appellant.

(c) The third in June 2004 about NZIS and the Ombudsman and Mr Jeffries.

[8] By s 70, on receipt of a complaint the Privacy Commissioner may either investigate it or decide to take no action on it. In either event, the Commissioner is required as soon as practicable to advise the complainant and the person to whom the complaint relates “of the procedure that the Commissioner proposes to adopt” that is to investigate or to decide to take no action.
[9] The Commissioner decided to investigate the first complaint following correspondence with the appellant. The Commissioner concluded that the only way to resolve who had released the information about the Powells’ entry and exit records was to make enquiries of Dr Smith and the appellant. Accordingly, in early 2004 the Commissioner wrote to the appellant telling him about the complaint, assuring him he was not being complained about, and asking him where he obtained the Powells’ records.
[10] About the same time the Commissioner received the second complaint. Since it was essentially the same as the first complaint she decided to defer action upon the second. She did not at the time tell the appellant about the second complaint.
[11] However, given the lack of progress on the first complaint in December 2004 the Commissioner decided also to investigate the second complaint. At that point she informed the appellant for the first time of her receipt of the second complaint and the decision to investigate. She decided not to investigate the third complaint, and advised the Powells accordingly.
[12] As well as corresponding with the other parties, the Commissioner met the appellant in person in an attempt, which was unsuccessful, to resolve matters. On 6 April 2006 the Commissioner wrote to the appellant under s 91(4) which states:

The Commissioner may from time to time, by notice in writing, require any person who in the Commissioner's opinion is able to give information relevant to an investigation being conducted by the Commissioner under Part 8 of this Act, or an inquiry being carried out by the Commissioner under section 13(1)(m) of this Act, to furnish such information, and to produce such documents or things in the possession or under the control of that person, as in the opinion of the Commissioner are relevant to the subject-matter of the investigation or inquiry.

[13] Her letter stated:

... Under s 91(4) of the Privacy Act 1993, I therefore require you to provide me with the information listed below. This is because you are, in my opinion, a person able to give information relevant to an investigation which I am conducting under Part 8 of the Privacy Act.

The information I require you to provide at this stage is as follows:

Which body, organisation or person was the source of the information about the entry into New Zealand and exit from New Zealand of the Powells and their three children;
The name of the individual who supplied this information to you (if known);
The date or approximate date on which this information was supplied to you; Whether you requested this information, or whether it was provided to you on an unsolicited basis;
A copy of any relevant documents, or other information that may assist me to determine who the correct respondent to the Powells’ complaint is, and how the information came to be supplied.

Despite a typographical error, it is clear that the notice related to the first complaint against NZIS and Customs, and not the second complaint which was against the appellant personally.

[14] The appellant did not comply with the notice and commenced the proceedings for judicial review.
[15] The final statement of claim complained of breach of s 70 in relation to the second complaint by reason of the delay in notifying the appellant of it and of the Commissioner’s decision under s 71.
[16] Ronald Young J dismissed the appellant’s claim in the High Court, along with several other procedural points.

Discussion

[17] We accept at the outset the appellant’s submission that the High Court erred in finding that the Commissioner’s decisions to “interrogate” the appellant prior to the issue of the s 91(4) notice were not reviewable as not being an exercise of a statutory power of decision. Clearly the Commissioner was exercising her power to investigate the complaints under s 70(1) of the Privacy Act. She had no other basis on which to write to and meet with the appellant. Her actions entailed exercise both of a statutory power of decision and of a public function. They are therefore reviewable under the Judicature Amendment Act 1972.
[18] The issue is whether the appellant is a “person” from whom information can be sought under s 91(4).
[19] In this Court Mr McKenzie QC focused on two main submissions. The first was whether the appellant, when acting as a barrister, was part of “a Court” “in relation to its judicial functions” so as to fall within exception (vii) to the definition of “agency” in s 2 of the Privacy Act. The second was whether the appellant, when acting as a barrister, was entitled to legal professional privilege in relation to the Privacy Commissioner when seeking to exercise powers under s 91(4).

Was the appellant excluded both from the definition of “agency” and from that of “person” because he was acting as “a court”?

[20] The appellant argued that he was outside the jurisdiction of the Commissioner because he was not an “agency”, being part of the judicial functions of a “court” while acting as a barrister. The Commissioner was therefore unable to issue him with a notice under s 91(4).
[21] The argument assumes that “person” is synonymous with “agency”; and that if one is not an agency one is not relevantly a “person”. The argument is flawed because one may not be an “agency” and yet be a “person” subject to s 91(4).
[22] Section 2(1) provides:

Agency–

(a) means any person or body of persons, whether corporate or unincorporated, and whether in the public sector or the private sector; and, for the avoidance of doubt, includes a department; but

(b) does not include–

...

(vii) in relation to its judicial functions, a court; ...

We repeat for convenience s 91(4) of the Privacy Act:

The Commissioner may from time to time, by notice in writing, require any person who in the Commissioner's opinion is able to give information relevant to an investigation being conducted by the Commissioner under Part 8 of this Act, or an inquiry being carried out by the Commissioner under section 13(1)(m) of this Act, to furnish such information, and to produce such documents or things in the possession or under the control of that person, as in the opinion of the Commissioner are relevant to the subject-matter of the investigation or inquiry.

(Emphasis added.)

[23] The purpose of the Privacy Act is to regulate the collection, storage and dissemination of personal information. “Agency”, while defined broadly, is intended to catch any entity which deals with personal information and subject that entity to the Privacy Principles stated in the Act. “Person” embraces persons not involved in the collection of personal information. Unlike the definition of “agency” it does not in terms exclude the Sovereign and Members of Parliament. A notice may be given to a “person” to secure information about the conduct of an “agency”.
[24] It follows that we do not accept the appellant’s submission that “agency” and “person” have the same meaning. If Parliament had intended them to have the same meaning, it would not have used different words. Indeed, it had good reason to use different words. An entity not involved in the collection of personal information, and therefore not an agency, might have information about the conduct of an agency. In such a situation the Commissioner should be able to seek that information from that entity, which would be a “person”, but not an “agency”.
[25] “Agency” is expressed to exclude the Sovereign, MPs, courts and other entities. Insofar as the appellant submitted that the same entities which are excluded from the definition of “agency” are necessarily excluded from the definition of “person”, we disagree. There is a good reason why the 13 categories excluded from the definition of “agency” should not be subject to the Privacy Principles and the Act as a whole when dealing with information they hold. But that list says nothing about whether or not those categories named should have to provide information to the Privacy Commissioner when conducting an investigation as to whether an agency, that is an entity subject to the Act and the Principles, has acted improperly.
[26] The appellant submitted that if agency and person did not have the same meaning, then the Commissioner could potentially require the Sovereign or MPs to provide information to the Commissioner. We reject that contention for the reasons that follow.
[27] Parliament has taken care to limit the obligation of a “person” to respond to a s 91(4) notice. Section 94(1) states:

Protection and privileges of witnesses, etc

(1) Except as provided in section 119 [which is not relevant], every person shall have the same privileges in relation to the giving of information to, the answering of questions put by, and the production of documents and things to, the Commissioner or any employee of the Commissioner as witnesses have in any court.

[28] Those privileges which existed at common law are now set out in ss 53-59 of the Evidence Act 2006. Section 74, confirming the common law, states that neither the Sovereign, nor judges, in respect of their conduct as a judge, are compellable to give evidence. MPs are entitled to protection by parliamentary privilege, discussed by Professor Joseph in Constitutional and Administrative Law in New Zealand (3ed 2007) at [12.1]. Dr Smith is not party to these proceedings and we are not called upon to determine whether he is entitled to any such protection.
[29] The appellant is not excepted from being a “person”. It is irrelevant whether he is a “in relation to its judicial functions, a court” and thus excluded from being an “agency”. While we would incline to the view that he is not a “court”, we need not make a finding on this point. Because he is a “person”, unless he has a relevant privilege in terms of s 91(1), the appellant is within the Commissioner’s jurisdiction and the Privacy Commissioner was entitled to issue the s 91(4) notice to him.

Was the appellant entitled to any privilege in relation to the Commissioner when the Commissioner issued a notice under s 91(4)?

[30] In considering whether Mr Jeffries is entitled to privilege under s 94(1) in response to the Commissioner’s notice it is first necessary to deal with the appellant’s application to admit fresh evidence.

The application to admit fresh evidence

[31] The importance of the issue not only in principle but to the persons involved in supply of the information is such that, unusually, we indicated we would consider on the papers an application for leave to adduce further evidence disclosing the precise circumstances in which the appellant received the relevant information. But an affidavit tendered by the appellant after the hearing in support of such application states no more than that “I do not possess and never possessed any document from any Governmental entity recording such information” and that the applicant “received unsolicited information which included some information which I did not previously have about the complainants’ movements into and out of New Zealand”. It does not state whether or not that was the sole source of information about the complainants’ movements.
[32] The Commissioner opposes leave on the ground that the evidence is not fresh, is not relevant, and is not sufficiently cogent.
[33] Notwithstanding these objections, we have decided to admit the appellant’s affidavit given that the information source is potentially relevant to what appears on its face to be a breach of the Privacy Act by an unidentified third party. Since that party has not been heard, our comment is necessarily provisional.
[34] However, the admission of the affidavit does not help the appellant as we will shortly show.

Privilege

[35] The appellant deposes that he received many unsolicited telephone calls while acting for Interact in litigation against the Powells. In one or more of these calls, he received the information about the Powells’ entry into and exit from New Zealand.
[36] Under the common law, which was in force at the time of the Commissioner’s notice and the appellant’s refusal to comply, there were two subheads of legal professional privilege. In Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at [105] (HL) Lord Carswell said:

the cases establish that, so far from legal advice privilege being an outgrowth and extension of litigation privilege, legal professional privilege is a single integral privilege, whose sub-heads are legal advice privilege and litigation privilege, and that it is litigation privilege which is restricted to proceedings in a court of law.

Sections 53 to 56 of the Evidence Act 2006 which now deal with these topics, came into force on 1 August 2007. While this case turns on the common law in force at the time of the Commissioner’s notice, it is sensible to consider also the position now in case any further notice were to be given.

Legal advice privilege

[37] At common law, legal advice privilege attached to communications between lawyer and client for the purpose of giving and receiving legal advice: see B v Auckland District Law Society [2004] 1 NZLR 326 at 344 (PC).
[38] Section 54 of the Evidence Act states:

Privilege for communications with legal advisers

(1) A person who obtains professional legal services from a legal adviser has a privilege in respect of any communication between the person and the legal adviser if the communication was—

(a) intended to be confidential; and
(b) made in the course of and for the purpose of—

(i) the person obtaining professional legal services from the legal adviser; or

(ii) the legal adviser giving such services to the person.

[39] It is obvious that a communication between a third party and a lawyer, such as the unsolicited information in this case, falls outside the scope of legal advice privilege at common law. The position is unchanged under the Evidence Act.

Litigation privilege

[40] Communications between lawyer and third party, or client and third party, may attract litigation privilege if the dominant purpose was conducting actual or apprehended litigation. The common law “dominant purpose” test was applied by the Court of Appeal in Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart [1985] 1 NZLR 596 at 601-602 (per Cooke J), at 605 (per Richardson J) and at 606 (per Tompkins J). Cooke J said at 602:

when litigation is in progress or reasonably apprehended, a report or other document obtained by a party or his legal adviser should be privileged from inspection or production in evidence if the dominant purpose of its preparation is to enable the legal adviser to conduct or advise regarding the litigation.

[41] The test is now codified in s 56 of the Evidence Act:

Privilege for preparatory materials for proceedings

(1) Subsection (2) applies to a communication or information only if the communication or information is made, received, compiled, or prepared for the dominant purpose of preparing for a proceeding or an apprehended proceeding (the “proceeding”).

(2) A person (the “party”) who is, or on reasonable grounds contemplates becoming, a party to the proceeding has a privilege in respect of—

(a) a communication between the party and any other person:

(b) a communication between the party's legal adviser and any other person:

(d) information compiled or prepared at the request of the party, or the party's legal adviser, by any other person.

[42] Here, the communications cannot attract litigation privilege. Being unsolicited, they were not received by either the appellant or Interact for the purpose of conducting the litigation.

Decision

[43] It follows that the appeal is dismissed. The appellant cannot assert privilege in response to the Commissioner’s notice under s 91(4) in respect of the source of the information. He is bound by the Privacy Act to provide the information, and any further particulars, that the Commissioner seeks.
[44] The appellant must pay the respondent costs on a Band A basis for a standard appeal and usual disbursements.

Solicitors:
Duncan Cotterill, Wellington for Appellant
Crown Law Office for Respondent

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