Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

PACIFIC FERRIES LIMITED V ARTNL HARBOUR BERTHS LIMITED AND ORS HC AK CIV-2004-404-4095 [2006] NZHC 79 (16 February 2006)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV-2004-404-4095



                BETWEEN                       PACIFIC FERRIES LIMITED
                                              Plaintiff

                AND                           ARTNL HARBOUR BERTHS LIMITED
                                              First Defendant

                AND                           SUBRITZKY LIMITED
                                              Second Defendant

                AND                           SUBRITZKY SEALINK LIMITED
                                              Third Defendant

                AND                           WAIHEKE SHIPPING LIMITED
                                              Fourth Defendant


Counsel:        P F Dalkie and G D Stringer for Plaintiff
                I J Thain and G F Weir for First Defendant
         
      B D Gustafson and D M Hughes for Second Defendant
                G M Sandelin and A K Rawlings for Third Defendant

Judgment:
      16 February 2006


                       ORAL RULING (2) OF BARAGWANATH J




Solicitors:
Inder Lynch, Auckland for Plaintiff
Phillips Fox, Auckland for First Defendant
Kensington Swan, Auckland for Second Defendant
Minter Ellison Rudd Watts, Auckland for
Third Defendant
Hesketh Henry, Auckland for Fourth Defendant

Counsel:
P F Dalkie, Auckland

PACIFIC FERRIES LIMITED V ARTNL HARBOUR
BERTHS LIMITED AND ORS HC AK CIV-2004-404-
4095 16 February 2006

[1]    Mr Dalkie has tendered in evidence for the plaintiff the
videotape taken by a
private investigator of the operation of the ferries of the third defendant (Subritzky)
and the new fourth defendant
(Waiheke) at the Half Moon Bay terminus. I accepted
the evidence de bene esse to the extent of the playing of part of the videotape
to
obtain a general idea of its character.


[2]    The purpose of the evidence is to show the practicability of operating
concurrently
ferry services of competitor companies into the two ramps at
Half Moon Bay. If support is led to the plaintiff's contention that
the conduct of the
second and third defendants, in particular, in asserting that concurrent operation
could not be managed was obstructive
and anti-competitive and that the conduct of
the first defendant unreasonably and in breach of its obligations failed to facilitate
the plaintiff's use of the facility concurrently with that of Subritzky.           I take it
therefore that the videotape will show
the smooth operation of the arrival of the
respective ferries of Subritzky and Waiheke to ramps one and two, the discharge of
the
vessels and passengers via the two ramps and their departure across the land
licensed to Subritzky by the first defendant followed
by an orderly loading of each
vessel of vehicles and passengers who had been waiting shoreside.


[3]    Mr Thain's argument relies
upon s 52 of the Private Investigators and
Security Guards Act 1974 which provides:

       52     Private investigator not to take
photographs or make recordings
       without consent

       (1)     Every person who, in the course of or in connection with the
       business of a private investigator,--

               (a)     Takes or causes to be taken, or uses or accepts for use, any
               photograph, cinematographic picture, or videotape recording of
               another person; or

               (b)
    By any mechanical device records or causes to be recorded
               the voice or speech of another person,--

       without
the prior consent in writing of that other person, commits an offence
       against this Act:

       Provided that nothing in this
subsection shall apply to the taking or using by
       any person of any photograph for the purposes of identifying any other
 
     person on whom any legal process is to be or has been served.

        (2)     No photograph or cinematographic film, or videotape
recording
        taken, or other recording made, in contravention of subsection (1) of this
        section shall be admissible as evidence in any civil
proceedings.

[4]     Mr Thain relies also on the definition of private investigator in s 3:

        3       Meaning of "private
investigator"

        (1)     In this Act, private investigator means a person who carries on any
        business, either by himself
or in partnership with any other person,
        whereby--

                (a)      At the request of any person as a client of
the business and
                not as a member of the public or of any section of the public; and

                (b)     For
valuable consideration--

        he seeks or obtains for any person or supplies to any person any information
        described
in subsection (2) of this section.

        (2)      For the purposes of this section, information means any information
       
relating to--

                (a)    The personal character, actions, or behaviour of any
                person;...

[5]     In
opposing the application Mr Dalkie emphasises the Long Title to the Act
describing it as:

        An Act to provide for the licensing
of private investigators as a means of
        affording greater protection to the individual's right to privacy against
       
possible invasion by private investigators, and to provide for the licensing of
        security guards as a means of ensuring so
far as possible that those carrying
        on business as security guards are fit and proper persons to do so, and to
        regulate
the conduct of business by private investigators and security guards

[6]     He submits in terms of s 5 of the Interpretation Act
1999 that in ascertaining
"the meaning of [the] enactment... from its text and in the light of its purpose" and
"the indications
provided in the enactment" the Long Title is directed to "affording
greater protection to the individual's right to privacy against
possible invasion by
private investigators...". In this case, he argues, the videotape was simply of the
general view of the public
place at Half Moon Bay which any interested person
could visit at any time. There is no element of privacy that could possibly be
engaged. As Lord Phillips MR observed in Campbell v MGM Ltd [2003] QB 633 at
[33]:

       ...the photographs published by the Mirror
were of a street scene they did
       not convey any information that was confidential...

On appeal to the House of Lords [2004] UKHL 22;  [2004] 2 AC 457 at  [154] Baroness Hale said:

       We have not so far held that the mere fact of covert photography is sufficient
       to make the information
contained in the photograph confidential.
       The activity photographed must be private. If this had been, and had been
     
 presented as, a picture of Naomi Campbell going about her business in a
       public street, there could have been no complaint.
She makes a substantial
       part of her living out of being photographed looking stunning in designer
       clothing. Readers
will obviously be interested to see how she looks if and
       when she pops out to the shops for a bottle of milk. There is nothing
       essentially private about that information nor can it be expected to damage
       her private life.

[7]    The same can
be said, Mr Dalkie argues, of the conduct of the ferries as they
entered Half Moon Bay, unloaded, reloaded and departed.


[8]  
 Mr Thain submitted that the language of s 52 is categorical. Parliament has
plainly proscribed private investigators' making videotape
recordings of any person
without that person's prior consent.


[9]    Mr Dalkie responds that the definition in s 29 of the Interpretation
Act that
"person" includes a body corporate is inapplicable in the present context and the
general definition is overwhelmed within
the context of s 52 which concerns
personal privacy which cannot be of concern to a corporation which in
Lord Thurlow's phrase "has
no body to be kicked and no soul to be damned".


[10]   I find it unnecessary to determine that issue for the purposes of decision
in
this case. The second amended statement of claim pleads at para 103 that the
fourth defendant is a friendly associated party which
provides the outward
appearance of independence and competition. What matters is the conduct not of the
companies as such, or the
characteristics of the vessels as inanimate objects, but the
manner in which the controlling minds of the Subritzky and Waiheke businesses
are
carrying out their tasks: that is the conduct of the respective skippers of the vessels
being videotaped.     Mr Dalkie submitted
that s 52 is concerned solely with the
physical person of the individual being videotaped. Read in isolation s 52 could be
so construed.
But s 3 makes clear that the Act is aimed at securing the conduct of

"information" relating to "...actions or behaviour of any
person". The focus of
attention must be not on any abstraction but on the conduct of those persons whose
behaviour is attributed
to the parties: Meridian Global Funds Management Asia Ltd
v Securities Commission [1995] 3 NZLR 7,  [1995] 2 AC 500.


[11]   I have reflected on the submission that the focus on the Long Title of
"the individual's right to privacy against possible
invasion" requires there to be read
into s 52 a proviso that it has no application to conduct performed in a public place.
That is
the position taken by the common law in the Campbell case and by the
New Zealand Courts in Hosking v Runting  [2003] 3 NZLR 385;  [2005] 1 NZLR
1 (CA).


[12]   Because, in my view, the plaintiff's argument is tenable only by a reading
down of s 52 in the line of the Long Title
it is legitimate to consult Hansard: (30 July
 1974) 392 NZPD 3300ff. It is plain from the speech of Dr Finlay QC as Minister
supporting the Bill that the House had in contemplation the case of the worker
who
receives compensation alleging industrial accident and who can be shown by
photographic record to be engaging in conduct inconsistent
with that claim.
The contribution of the National member, Mr Holland, records the Opposition
concern that the proposed s 52 was too
wide as excluding evidence of such conduct.
Dr Finlay acknowledged the difficulty but no change was made.             There is no
suggestion that the section would exclude photographic evidence taken in a public
place such as a golf course.


[13]   My conclusion
in summary is that Parliament has applied a per se rule to
those accorded the status of private investigator and that s 52 is to
be read without
the implied gloss which the plaintiff's argument requires.


[14]   It follows that I uphold Mr Thain's argument
and as required by subsection 2
of s 52 rule that the video recording is inadmissible.



                                      
              ___________________________
                                                                   W D Baragwanath J