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Jeffries v The Privacy Commissioner HC WN CIV 2006-485-860 [2008] NZHC 2341 (22 May 2008)

Last Updated: 28 January 2015

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV 2006-485-860}

UNDER the Judicature Amendment Act 1972 and s

27(1) New Zealand Bill of Rights Act 1990

IN THE MATTER OF decisions under the Privacy Act 1993

BETWEEN WILLIAM PATRICK JEFFRIES Plaintiff

AND THE PRIVACY COMMISSIONER Defendant

Hearing: 8 May 2008

Appearances: D O'Leary for Plaintiff

C Gwyn and D Baltakmens for Defendant

Judgment: 22 May 2008 at 12 pm

_{RESERVED JUDGMENT OF RONALD YOUNG J}

Introduction

[1] Mr and Mrs Powell, American citizens, complained (pursuant to s 67 Privacy Act 1993) to the Privacy Commissioner that someone had unlawfully released information to Mr Jeffries about their entry and exit to and from New Zealand. When the Privacy Commissioner asked Mr Jeffries who had given him the information he refused to respond. When she invoked s 91(4) of the Privacy Act and required him to tell her, he issued these judicial review proceedings.

[2] Mr Jeffries says the decision of the Privacy Commissioner to request and then require such information was:

_{(a) Beyond the jurisdiction of the Commissioner because:}

JEFFRIES V THE PRIVACY COMMISSIONER HC WN CIV 2006-485-860 22 May 2008

(i) Mr Jeffries was acting as a barrister at the time of the request and was therefore outside the ambit of the Privacy Act;

(ii) Barristerial immunity from civil suit prevented the Privacy

Commissioner from requiring him to provide the information. (b) If within jurisdiction then:

(i) The Privacy Commissioner’s decision to investigate the

Powells’ complaint was based on a mistake of fact;

(ii) The decision to request and then require the source of the information from Mr Jeffries was in error because the Privacy Commissioner failed to take into account relevant matters, made decisions no reasonable decision-maker could make and was in breach of the principles of natural justice;

(c) In breach of s 27(1) of the New Zealand Bill of Rights Act, for which the plaintiff seeks damages.

Background facts

[3] Mr Paul and Mrs Ivy Powell are American citizens. In 1999 they sought Overseas Investment Commission permission to purchase a farm of 2012 hectares in the Marlborough Sounds known as “Waitai”. Permission was given. Part of the development of the farm involved the construction of a house on the property. The Powells instructed Interact, a firm providing architectural and building services. The work did not go well and the parties fell out. Interact sued the Powells for professional fees. The plaintiff was instructed as counsel for Interact. The Powells refused to pay the fees and counterclaimed for damages arising from Interact’s claimed failure to perform its contractual obligations. Interact unsuccessfully sought summary judgment and the proceedings were sent to arbitration. The arbitrator became unwell. Interact then unsuccessfully applied to set aside the reference to arbitration. By this stage it seems Interact was insolvent, owing the Powells court

costs and disbursements. Given Interact’s insolvency, the litigation has stalled and the parties’ claims remain unresolved.

[4] In July and August 2003 the Honourable Dr Nick Smith a member of Parliament and Mr Jeffries wrote essentially identical letters to the New Zealand Immigration Service seeking disclosure under the Official Information Act 1982 of information about the Powells’ immigration status and activities. In that letter Dr Smith and Mr Jeffries revealed that they had information about the Powells’ entry and exit from New Zealand from 1999 to 2002. The Powells obtained copies of Official Information Act requests by Dr Smith and Mr Jeffries and, believing their privacy had been interfered with, complained to the Privacy Commissioner that they believed someone in either the New Zealand Immigration Service or Customs had improperly released the information to Dr Smith or Mr Jeffries, or both.

[5] The relevant portion of the Smith/Jeffries letter states:

The writer particularly notes the entry/exit record for the Powells and their three children shows they spent just four and a half months (16 June 1999-01 July 1999 and 17 October 1999-10 February 2000) in New Zealand after entering New Zealand on 16 June 1999 on residency visas and after obtaining residency permits in the second half of June 1999. The Powells and their three children left Waitai Station, and New Zealand, on 10 February 2000. Apart from brief visits to New Zealand commencing

23 August 2001 and 06 September 2002, these “permanent residents” have actually resided in Woody Creek, Colorado, USA, ever since

10 February 2000, which place has always been, and remains, their actual

place of permanent residence.

[6] Upon enquiry by the Privacy Commissioner, Customs said it had not been asked for the information and the New Zealand Immigration Service said that while it had been asked for the information it had declined to provide it.

[7] Over the following few years the Powells made three complaints to the

Privacy Commissioner under s 67 of the Privacy Act:

(i) In December 2003, regarding the actions of the New Zealand Immigration Service and/or the New Zealand Customs Service, which the Powells considered had released their entry and exit records to

and from New Zealand and had thus interfered with their privacy (the first complaint).

(ii) In January 2004, regarding the same basic facts but concerning the actions of Dr Smith and Mr Jeffries (the second complaint).

(iii) In June 2004, about the New Zealand Immigration Service, the Ombudsman and Mr Jeffries. The Privacy Commissioner decided not to investigate this complaint (s 71(2)) (the third complaint).

[8] The Privacy Commissioner decided to investigate the first complaint. There was considerable correspondence between Mr Jeffries and the Privacy Commissioner regarding this complaint. The Privacy Commissioner concluded the only way she could resolve who had released the information about the Powells’ entry and exist records was by way of information from either Dr Smith or Mr Jeffries. And so in early 2004 the Privacy Commissioner wrote to Mr Jeffries telling him about the complaint, assuring him he was not being complained about and asking him where he obtained the Powells’ records.

[9] About this time the Privacy Commissioner received the second complaint from the Powells. The Privacy Commissioner decided to defer action on the second complaint given it was essentially the same as the first complaint and given investigation of the first complaint would likely reveal if there were any grounds to investigate what Mr Jeffries himself had done. She did not tell Mr Jeffries about the second complaint at that time.

[10] The correspondence about the Privacy Commissioner’s request for information, and about various Official Information requests Mr Jeffries made of her, continued between Mr Jeffries and the Privacy Commissioner throughout 2004. Eventually in December 2004 the Privacy Commissioner decided to also investigate the second complaint given the lack of progress on the first complaint. At that point, the Commissioner informed Mr Jeffries for the first time of receipt of the second complaint and of her decision to investigate this complaint.

[11] Further correspondence between the parties continued. The Privacy Commissioner met Mr Jeffries in person in an attempt (unsuccessfully) to resolve the matters. Mr Jeffries continued to resist responding to the Privacy Commissioner’s enquiries.

[12] On 6 April 2006 the Privacy Commissioner wrote to Mr Jeffries requiring that he provide the information sought pursuant to s 91(4). The letter said as relevant:

. . . 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.

Mr Jeffries did not comply with the notice. These proceedings then followed.

The “decisions” for review

[13] The plaintiff says three decisions of the Privacy Commissioner are reviewable;

(i) the decision of 8 January 2004 and thereafter to “interrogate” the plaintiff as to who provided the relevant information relating to the first complaint;

(ii) the decision after 28 January 2004 to “interrogate” the plaintiff as to who provided the relevant information relating to the second complaint; and

(iii) the decision to issue the s 91(4) notice.

[14] The defendant submits the first two “decisions” are not decisions at all and are not reviewable. I agree. On 8 January 2004 and on further occasions the Privacy Commissioner (in relation to the first complaint) asked Mr Jeffries to tell her who had given him the information. After the second complaint was made and the Privacy Commissioner decided to take action on it (in December 2004) the Commissioner also asked Mr Jeffries the same question, who had told him about the Powells’ exit and entry details. As the Privacy Commissioner told Mr Jeffries, without that information she could not investigate the Powells’ complaint.

[15] The Privacy Commissioner is required to investigate a complaint where, in terms of s 69, she considers there appears to be an interference with the privacy of an individual. When responding to a complaint the Privacy Commissioner may either investigate, or take no action on the complaint. Section 71 sets out those factors relevant in deciding if no action should be taken by the Privacy Commissioner. If a complaint is accepted then ss 70-73 require certain actions to be taken before an investigation commences. Sections 90, 91, 94 and 95 outline the procedure for an investigation, the evidence, protection and privilege of witnesses and the disclosure of information in such an investigation.

[16] The Privacy Commissioner did ask Mr Jeffries where the information relating to the Powells came from, and that request was in the context of an investigation being conducted by the Privacy Commissioner pursuant to the Privacy Act. In my view, however, no statutory power has been exercised by the Commissioner in asking Mr Jeffries who gave him the information. This situation can be contrasted with the decision to require Mr Jeffries to respond to the s 91(4) notice. That was clearly a statutory power of decision.

[17] The enquiries by the Privacy Commissioner of Mr Jeffries as to who gave him the information were not, as the plaintiff claims, “an interrogation”. They were no more than questions. The Privacy Commissioner did not claim that Mr Jeffries was obliged to answer them. She tried, by negotiation, to convince Mr Jeffries to respond to the questions. This illustrates that these were no more than questions the Privacy Commissioner hoped Mr Jeffries would reply to, but which he was not obliged to reply to. Other than, in the broadest sense of undertaking an investigation, no statutory power of decision-making was involved in her decision to ask Mr Jeffries who gave him the information.

[18] I am satisfied, therefore, that merely asking questions in this context falls short of the exercise of a statutory power of decision-making. I do not, therefore, consider that judicial review is available with regard to the Privacy Commissioner’s decision to ask those questions ([13](i)(ii)) of Mr Jeffries. In the circumstances, however, even if I had concluded that the decision to ask these questions by the Privacy Commissioner was a statutory power of decision, the result in this case would not have changed. The reasoning in relation to the s 91(4) requirement in this judgment as to judicial review applies equally to the earlier requests. The only decision for review is, therefore, the decision to issue the s 91(4) notice.

Which complaint?

[19] Before I turn to the causes of action, one further factual matter needs to be resolved. The defendant says that the s 91(4) notice was only given with respect to the first complaint. The plaintiff says the notice was given by the Privacy Commissioner with respect to either the first and second complaint or the second complaint only.

[20] This mismatch of views arises from the letter from the Privacy Commissioner giving the s 91(4) notice. The letter is dated 6 April 2006 and was therefore written some time after both the first and second complaints were received, accepted and notified by the Commissioner. The letter was headed “Privacy Act complaint, Mark and Ivy Powell (our reference 8659)”. The number 8659 is a reference to the Privacy Commissioner’s referencing system. As I understand it, a unique number is

given to each complaint. The number 8659 was given to the second complaint made by the Powells.

[21] The Privacy Commissioner, in her affidavit of 29 January 2008, as to this letter, states:

I note that the subject heading of this letter refers to complaint 8659 (the Powells’ second complaint). This is a typographical error. It is clear from the body of the letter that the information required by way of notice under s 91(4) of the Act was in relation to complaint 7825, the Powells’ first complaint against the government agencies.

[22] The plaintiff says I should reject the Privacy Commissioner’s evidence and conclude that there was no mistake in her letter of 6 April 2006. The correspondence immediately preceding the letter of 6 April 2006 was, the plaintiff says, about the second complaint. The correspondence between the parties around this time was headed “Privacy Complaints”. This, the plaintiff says, all supports his view that the Privacy Commissioner intended to make the s 91(4) notice about the second complaint.

[23] The letter of 6 April 2006 however, makes it clear that reference to 8659 is an error and that the reference should have been to the first complaint. The first part of the letter details why the Privacy Commissioner is seeking the information from Mr Jeffries, that is, her justification for the request. The Privacy Commissioner then writes:

Most importantly, the Powells do not know which agency was responsible for the release of the information. Without knowing the proper respondent to their complaint, this Office cannot advance its investigation, and the Powells would be unable to take the matter to the Human Rights Review Tribunal.

. . .

Until I receive your explanation of who gave you the information about the Powells, and under what circumstances, I am not able to make any decisions on the Powells’ complaint against the government agencies. You have effectively refused to provide that explanation.

[24] These references make it clear that the Privacy Commissioner’s concern was with the complaint that government agencies had released the information, but until Mr Jeffries co-operates she would not know which government agency was the

“proper respondent”. The letter expressly refers to the “Powells complaint against the government agencies”.

[25] These are all references to the first complaint. I therefore consider that this material supports the Privacy Commissioner’s assertion that a reference to the second complaint in her letter of 6 April 2006 was a typographical error and it was intended to refer to the first complaint. I am therefore satisfied the s 91(4) request relates solely to the Powells’ first complaint.

Causes of action

[26] The plaintiff’s first proposition is that for two separate reasons the Privacy Commissioner had no jurisdiction to issue the s 91(4) notice. I consider, therefore, each assertion in turn.

(i) Application of the Privacy Act

[27] The plaintiff’s case is that when the two requests ([13](i)(ii)) and the one s 91(4) requirement ([13](iii)) were made the plaintiff was not an “agency” in terms of the Privacy Act and not being an agency he was not, therefore, covered by the provisions of the Privacy Act. Thus, the plaintiff argues, the Privacy Commissioner had no right to require him to answer any questions by the issue of a s 91(4) notice.

[28] In support of his case, the plaintiff points to the definition of “agency”. The

Act defines “agency” as relevant in this way:

agency—

(a) Means any person or body of persons, whether corporate or unincorporate, 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; or

[29] The plaintiff submits that given he was acting as a barrister in District Court proceedings involving the Powells (the complainants under s 67 of the Privacy Act), he was part of the judicial functions of a court and was therefore not an agency for the purpose of the Act. The plaintiff submits that the intention of the Act is to exclude from its ambit those who are outside the definition of “agency”. Thus the plaintiff maintains that a s 91(4) notice requiring response to a request for information cannot be made of a person or organisation that is not an agency. The plaintiff says he is not an “agency” and therefore such a request could not have been made of him.

[30] There are, in my view, two fundamental problems with the plaintiff’s interpretation of the Privacy Act. Section 91(4) provides as follows:

91 Evidence

. . .

(4) 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.

[31] This section refers to any “person”. It does not refer to “agency” or “agencies”. Section 91 gives the Privacy Commissioner power to obtain evidence for her investigation of a complaint. A summons can be issued and witnesses administered an oath. The examination is subject to the Crimes Act provisions as to perjury. Any “person” can be required to provide the information. Section 94 provides for the protection and privilege of such witnesses. They are given the same protection as witnesses in a Court. Even those who are bound to maintain statutory secrecy are required to respond to the Privacy Commissioner in certain circumstances (s 95). None of these sections dealing with the Privacy Commissioner’s investigation of a complaint and her powers to do so use the term “agency”.

[32] The use of the word “agency” in the Privacy Act is primarily concerned with the 12 information privacy principles set out in s 6 of the Act. These principles deal with such matters as what personal information can be collected by agencies, how they should collect personal information, protections as to the collection of such personal information, how the information is to be collected and stored, who can access the personal information and what it may be used for. The only overt reference to Court proceedings comes at Principle 3. That principle is concerned with ensuring generally that those agencies that collect information from a person advise the person the information is in fact being collected.

[33] Principle 3, as is relevant, provides as follows:

Principle 3

Collection of information from subject

(1) Where an agency collects personal information directly from the individual concerned, the agency shall take such steps (if any) as are, in the circumstances, reasonable to ensure that the individual concerned is aware of—

(a) The fact that the information is being collected; and

(b) The purpose for which the information is being collected;

and

(c) The intended recipients of the information; and

(d) The name and address of—

(i) The agency that is collecting the information; and

(ii) The agency that will hold the information; and

(e) If the collection of the information is authorised or required by or under law,—

(i) The particular law by or under which the collection of the information is so authorised or required; and

(ii) Whether or not the supply of the information by that individual is voluntary or mandatory; and

(f) The consequences (if any) for that individual if all or any part of the requested information is not provided; and

(g) The rights of access to, and correction of, personal information provided by these principles.

. . .

(4) It is not necessary for an agency to comply with subclause (1) of this principle if the agency believes, on reasonable grounds,—

. . .

(c) That non-compliance is necessary—

. . .

(iv) For the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation).

[34] Thus, where an “agency” has collected information from a person it need not comply with the principle, by giving the person information about the fact of collection and the use of that information, if it believes that non-disclosure is necessary for the conduct of Court proceedings. This exception has no relevance to the current proceedings.

[35] There is no reason inherent in the Act why “person” should be read as “agency” as the plaintiff asserts. There will be many occasions when individuals have relevant information about an investigation by the Privacy Commissioner but are not themselves agencies. There seems no logical reason why Parliament could have intended to limit the Privacy Commissioner’s powers of investigation in such an artificial way. Nor, as I have said, could the plaintiff offer any reason why, if Parliament intended to restrict the application of s 91(4) to agencies, it did not use “agency” rather than “person” in s 91. I am satisfied, therefore, that “person” means “person” in s 91, and that, in this sense, the Privacy Commissioner had jurisdiction to make the s 91(4) request of the plaintiff.

[36] The second point raised by the plaintiff, that he was not an “agency” because he was exempt as being part of the judicial functions of a Court, given my conclusions, does not need to be resolved by me. However, in deference to counsel’s arguments I make the following brief comments. I am satisfied that the plaintiff cannot bring himself within the exceptions to the definitions of “agency”. He is not part of a Court, in relation to its judicial functions, when acting as a barrister.

[37] The plaintiff’s case is that a barrister participates in the judicial functioning of a Court. He or she represents a party, calls evidence, makes submissions on the law and fact and acknowledges and performs any duty owed to the Court while preparing for or conducting a case before the Court. These functions, the plaintiff says, are essential to and therefore part of the judicial functions of a Court.

[38] A “Court” is only exempt from the definition of “agency” in relation to its judicial functions. The Courts judicial functions are primarily adjudicative. They include “running” a trial according to the rules and giving a decision at the end. They may include administrative decisions which have a judicial flavour ((Hay (ed) “Words and Phrases Legally Defined” (4th ed, 2007)) and they may include administrative functions performed directly on behalf of an adjudicator: Crispin v Registrar of the District Court [1986] 2 NZLR 246 and Ministry of Justice v S [2006] NZHC 357; (2006) 8 HRNZ 328.

[39] Other organisations or individuals excluded from the definition of “agency” include the Governor-General, Parliament, Members of Parliament, and the Sovereign. These illustrate that high level constitutional bodies are typically exempt. This supports the view that “...in relation to its judicial functions, a Court” should be given its ordinary meaning of Judges or adjudicators and their administrative assistants if acting as the agency of the Judge or adjudicator.

[40] As well, other adjudicative bodies are contained in the exception to agency.

[41] For example;

agency— . . .

(b) Does not include—

(x) a Royal Commission; or

(xi) a commission of inquiry appointed by an Order in Council made under the Commissions of Inquiry Act 1908.

[42] These bodies, although adjudicative do not include the lawyers who appear before them as part of the agency exemption. For example, no reading of the words

“Royal Commission” could suggest it includes lawyers who appear before the

Commission. This context, therefore, supports a narrow definition of “Courts”.

[43] The other difficulty in the plaintiff’s interpretation is in identifying which barristers come within the definition “in relation to its judicial function, a Court”. If the plaintiff is correct, any barrister who is at any time preparing for or conducting any case in Court is for all purposes not an agency and therefore not subject, at least, to the privacy principles of the Act. This seems a remarkably wide exemption for no apparent purpose. It also illustrates the difficulty with the plaintiff’s interpretation.

[44] In summary, therefore:

(1) The plain words of s 91(4) illustrate it covers any “person” and not just an agency;

(2) The “judicial function” does not include the function of a barrister;

(3) To include barristers in the definition of a Court would be inconsistent with other parts of the exclusions to the definition of agency;

(4) If the plaintiff’s submissions are correct, this would create a very wide exception to the Act without apparent rationale.

[45] I therefore reject the plaintiff’s interpretation. I am satisfied that a barrister does not come within the “Court” definition as an exclusion to “agency”. I am satisfied Mr Jeffries was subject to s 91(4).

(ii) Barristerial immunity – Jurisdiction

[46] The second ground on which the plaintiff challenges the Privacy Commissioner’s right to interrogate him pursuant to s 91(4) is based on the proposition that he is immune from such action because he was acting as a barrister at the time of the s 91(4) notice. I assume, although it is far from clear, that at the

time of the section 91(4) notice (6 April 2006) Mr Jeffries was acting for Interact in a dispute with the Powells which was before the District Court in Wellington.

[47] The plaintiff submits that the correct factual analysis is to recognise that the Powells have made a Privacy Act complaint relating to the involvement of Mr Jeffries in the release of what was claimed to be private information about the Powells. I have however rejected the plaintiff’s claim that the s 91(4) notice related to the second complaint (and was therefore a complaint about Mr Jeffries’ conduct directly). However, the plaintiff submits that the first complaint closely involved Mr Jeffries’ conduct at a time when he was representing an opponent of the Powells before the Courts. This is the relevant background, Mr Jeffries says, that should be brought to an examination of the principles of barristerial immunity for acts done in the preparation for, and in the conduct of, litigation.

[48] The plaintiff submits that the Courts have jealously guarded the right and obligation of a barrister to fearlessly conduct litigation essential to the administration of justice. He says that part of the way in which that right and obligation is guarded is by providing immunity from civil action to barristers for the preparation and conduct of litigation (see Arthur J S Hall & Co v Simons [2002] 1 AC 615). This general immunity from civil suit, the plaintiff says, attaches to all Court participants including barristers (Saif Ali v Sydney Mitchell & Co [1980] AC 198).

[49] The plaintiff stresses that unless such immunity is available barristers will be distracted by the need to protect themselves from civil suit rather than fearlessly representing their clients (see Rondel v Worsley [1966] 1 All ER 467). While the plaintiff acknowledges that immunity from actions in negligence has now gone in New Zealand (see Lai v Chamberlains [2006] NZSC 70; [2007] 2 NZLR 7 (SC)) the principle remains and is applied in appropriate cases.

[50] Here, the plaintiff says without immunity he could be liable for damages for up to $200,000 through proceedings brought before the Human Rights Review Tribunal. Therefore, the plaintiff says, the same policy principles that underlie a barrister’s immunity from a defamation suit with respect to his conduct of court

proceedings also underlie the need for protection from the Privacy Commissioner’s proposed interrogation under s 91(4) of the Privacy Act.

[51] I reject the proposition that there is any barristerial immunity arising from the facts of this case relating to the Privacy Commissioner’s s 91(4) notice.

[52] Firstly, I doubt that the remnants of immunity from civil suit, now that immunity from suit for negligence has been abolished in New Zealand, extends to an immunity for a barrister from a statutory obligation to provide information. The Privacy Act does not recognise such an immunity. Indeed, the thrust of s 90 and the sections following is to insist on compliance with s 91(4) and more generally to insist on the provision of information sought. For example, even secrecy required by statute is set aside (s 95) in certain circumstances.

[53] Section 94 of the Act gives protection and privileges to those who are required to give information but it does not allow refusal to provide the information. Interpretation of the statutory regime in the Privacy Act is therefore clearly against the granting of any such immunity. If Parliament had intended that such immunity could apply then it could have said so.

[54] Secondly, requiring, as here, adherence to a statutory requirement for information does not fit easily within the description of “civil suit” relating to barristerial immunity. Even less so given the only enforcement of the requirement to comply with s 91(4) is pursuant to s 127 of the Act, a penal provision with sanctions.

[55] Thirdly, I can see no need for such a protection on the facts of this case. The plaintiff wanted information about the Powells’ movements to argue that their damages claim for loss suffered from allegedly being forced to leave New Zealand, could not stand up to an examination of the facts of their entry and exit to and from New Zealand. Whatever the source of that information, Mr Jeffries had the information to use in Court, no matter what, as he saw fit.

[56] It is proper to keep in mind that the request under s 91(4) related to the first complaint when Mr Jeffries was not the person being complained about. Mr Jeffries’

objection to complying with the s 91(4) notice cannot be based on any form of assertion of self-incrimination. Given these circumstances, I can see nothing in the request which could in fact have interfered with Mr Jeffries’ conduct of the litigation on behalf of his client. In any event, for all intents and purposes the litigation is now over and no interference with the plaintiff’s conduct of this case can occur. It is therefore difficult to identify the basis on which Mr Jeffries can now object to compliance. There seems, therefore, to be no impediment based on these grounds to Mr Jeffries complying with the s 91(4) notice.

[57] Fourthly, the plaintiff has been unable to point to any case where any similar protection has been afforded a barrister. By itself, that would not be determinative. The Chief Justice stressed in Lai v Chamberlains that immunity from suit must be tightly curtailed and no more than can be properly justified.

[58] She said

[1] Access to the Courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.

[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.

[59] Fifthly, a “close connection” test has been advanced by the plaintiff. In this case, there is no real connection at all between the litigation and the requirement to answer the Privacy Commissioner’s enquiry.

[60] Sixthly, Mr Jeffries’ claim of vulnerability to Human Rights Review Tribunal damages is speculative. Before any damages claim could be filed a number of bodies would have to exercise their discretion to pursue Mr Jeffries. This first complaint is not in any event a complaint about Mr Jeffries at all. The sanction for

refusing to submit to the s 91(4) notice is criminal. Mr Jeffries would not be liable for Human Rights Review Tribunal damages for refusing to respond to the s 91(4) request. Even if that request was concerned with the second complaint, Mr Jeffries has self-incrimination protection rights (s 94).

[61] I am therefore satisfied that Mr Jeffries had no barristerial immunity and that therefore the Privacy Commissioner had jurisdiction to make the s 91(4) request.

Grounds of review assuming jurisdiction

[62] The plaintiff, assuming jurisdiction by the Privacy Commissioner to issue the s 91(4) notice, challenges the decision to do so on the following grounds:

(i) mistake of fact;

(ii) failing to take into account relevant considerations; (iii) unreasonableness; and

(iv) breach of natural justice.

[63] I consider each ground of review in turn.

(a) Mistake of fact

[64] The plaintiff says when the Privacy Commissioner made her decision to proceed with the s 91(4) notice she was labouring under a mistake of fact that the Powells had a legitimate privacy interest to protect. The plaintiff says the Powells put their movements in and out of New Zealand in issue in the District Court proceedings and thereby effectively waived their right to assert a claim to privacy.

[65] I reject this ground of review. There is no evidence as to when Mr Jeffries came into possession of the Powells’ entry and exit details set out in his letter to the New Zealand Immigration Service of August 2003. Mr Jeffries did not include that

information in his affidavit. His receipt of the information, and therefore the interference with the Powells’ privacy, could have occurred well before the District Court hearing at which it is alleged the Powells put their exit and entry details in issue. In those circumstances, the release of private information would have occurred before the alleged mistake of fact.

[66] If those were the facts then the alleged mistake of fact would not be relevant to the investigation and would be irrelevant in considering whether to issue the s

91(4) notice. The burden of proof is on the plaintiff to establish the mistake of fact occurred before the investigation. He has not done so. This cause of action on that ground alone must fail.

[67] The other impediment to the claim is the terms of the Privacy Act and the misapprehension by the plaintiff as to the time at which any such alleged mistake of fact might be relevant in the process following a complaint.

[68] By virtue of ss 69 and 70, when the Privacy Commissioner receives a complaint about an interference with the privacy of a person she has to decide whether or not to investigate the complaint. If she decides to investigate the complaint then she needs to obtain information about the events that gave rise to the complaint. Here, the Privacy Commissioner decided to investigate the complaint. The plaintiff apparently had vital information about who may have committed a possible interference with the privacy of the Powells. Once the Privacy Commissioner decided to investigate the complaint, an enquiry of Mr Jeffries was inevitable. The purpose of that enquiry was to obtain evidence as to whether an interference with the Powells’ privacy had occurred. The plaintiff’s assertion that the Powells had waived their privacy right could be relevant in deciding whether an interference with privacy had occurred. But it could not be used to try and block or prevent investigation of a complaint.

[69] In those circumstances, therefore, even if there had been a mistake of fact it could not have been relevant to the s 91(4) request. For those reasons, the plaintiff’s claim fails under this heading.

(b) Failure to take into account relevant considerations

[70] The plaintiff says the Privacy Commissioner failed to take into account the following relevant considerations in deciding to issue the s 91(4) notice.

(i) That the Powells had waived their right to privacy when they disclosed their entry and exit details in the District Court litigation. For reasons I have given in paras [64] to [69] I reject this claim.

(ii) The delay in the Privacy Commissioner advising the plaintiff of receipt of the second complaint. The complaint was received in January 2004 but not communicated to the plaintiff until December

2004.

[71] As to [70](ii) the plaintiff submits that if the Privacy Commissioner had taken into account s 70(2) of the Act^* and s 73 (advice of intention to investigate and details of the complaint) then she would not have issued the s 91(4) notice because of her delay between receipt and notification of the second complaint. I have already concluded that the s 91(4) notice relates to the first and not the second complaint. This ground of review, therefore, must fail on that ground alone.

[72] Even if the s 91(4) notice had related to the second complaint, this ground of review would also fail. While it would have been preferable for the Privacy Commissioner to have told Mr Jeffries about the second complaint immediately upon receipt, it is understandable that the Privacy Commissioner did not do so. She had received and was investigating an identical complaint save for differing identified persons who were being complained about. She took the view that if she could identify who had supplied the information to Mr Jeffries, by enquiry relating to the first complaint, then she would not need to investigate the second complaint. It was only after Mr Jeffries refused to co-operate with her request for information arising from the first complaint that she decided she should independently

^* (requiring Commission, as soon as practicable, to advise person to whom claim relates of proposed procedure)

investigate the second complaint. When she made that decision she immediately contacted Mr Jeffries and told him about that complaint.

[73] As I have said, it would have been better to have told Mr Jeffries about the complaint as soon as the Privacy Commissioner received it. She could have told Mr Jeffries, consistent with her decision-making about the first complaint, that she was not proposing to immediately investigate the second complaint and would make decisions depending upon progress with regard to the first complaint. However, there was, in any event, no prejudice that counsel for the plaintiff could identify from the delay in informing Mr Jeffries of the second complaint. Mr Jeffries was already intimately aware of all of the relevant facts relating to the complaint from the first complaint.

[74] I am satisfied, therefore, that the Privacy Commissioner did not fail to take into account any relevant consideration when she issued the s 91(4) notice.

[75] Finally, the plaintiff complains that the Privacy Commissioner failed to take into account that the plaintiff could not be compelled to be a witness in a case where the complaint was directed against him. He says that the proposed interrogation is effectively requiring him to be a witness against himself. Firstly, I have found that the s 91(4) notice was in relation to the first complaint only and therefore the complaint which gave rise to the issue of the notice was not against Mr Jeffries personally.

[76] Secondly, even if I had found the s 91(4) notice related to the second complaint the plaintiff is wrong in asserting the Privacy Commissioner could not issue, or had to take into account as a relevant consideration in deciding whether to issue, the s 91(4) notice, the fact that the notice was against the person who has been complained against. Whether the person complained against does or does not have a right to refuse to answer questions asked in a s 91(4) notice is hardly relevant to the Privacy Commissioner’s decision to examine a witness. The Privacy Commissioner is entitled to invoke s 91(4). Whether the person complained about is entitled to refuse to answer, or refuse to give evidence, will be resolved by reference to the statutory immunity provisions in the Act. It is, however, for the person being asked

the questions to assert the immunity. It would hardly be appropriate for the Privacy Commissioner to in some way try to anticipate whether or not such privilege or immunity applied and decide on that basis whether to issue the s 91(4) notice. The Privacy Commissioner correctly did not take this factor into account.

(c) Unreasonableness

[77] The first ground of unreasonableness alleges that the Privacy Commissioner in deciding to use her investigative powers under the Act (s 91(4)) was acting ultra vires the Act and therefore unreasonably. The allegation of acting ultra vires is based on the proposition that:

(a) Mr Jeffries had barristerial immunity because he was counsel in

District Court proceedings and/or

(b) The Privacy Act did not apply because Mr Jeffries was not an agency in terms of the Act.

[78] I have already dealt with and rejected these propositions see [27] to [61].

[79] The second allegation of acting unreasonably also repeats the claims that the plaintiff enjoyed barristerial immunity, that the Privacy Commissioner lacked jurisdiction to bring the proceedings by virtue of the definition of agency, and that her failure to advise the plaintiff of the second complaint as soon as reasonably possible was a misuse of the Privacy Commissioner’s powers and therefore she acted unreasonably. I have dealt with all of the factual allegations contained in this ground of review and have already rejected them.

[80] Thirdly, the plaintiff repeats these allegations and alleges the Privacy Commissioner’s decision of 6 April 2006 to examine the plaintiff was susceptible to the same criticisms and was also unreasonable. I have already rejected these allegations.

[81] The plaintiff says that the Privacy Commissioner breached natural justice and acted “unfairly” because in deciding to issue the s 91 notice she:

(i) was acting ultra vires;

(ii) failed to acknowledge the plaintiff’s barristerial immunity; (iii) was acting under a mistake of fact;

(iv) failed to take relevant considerations into account; (v) was acting unreasonably;

(vi) failed to accord the plaintiff the required 20 working days to respond to her notice.

[82] As to the first five grounds alleged, I have dealt with and rejected each. In those circumstances, there is no need for me to discuss in detail the circumstances in which natural justice would apply. The Privacy Commissioner accepts that she, along with all decision-makers, must apply the principles of natural justice.

[83] As to the time ground (vi), the Privacy Commissioner first asked Mr Jeffries to respond to her enquiry in December 2004. Two years and four months later she issued the s 91(4) notice. Mr Jeffries can hardly complain that the Privacy Commissioner acted unfairly and breached natural justice when he knew about the request and had two years within which to make a response if he had chosen to do so.

[84] Finally, the plaintiff says that in the circumstances the Commissioner’s exercise of her statutory powers against the plaintiff was in breach of her jurisdiction, failed to take into account relevant matters, was unreasonable and breached natural justice. As a result, the plaintiff says the Commissioner breached her obligation of fairness towards the plaintiff such that damages under the New Zealand Bill of Rights Act should be awarded. I have already rejected the grounds upon which the plaintiff claims a breach of s 27(1) of the Bill of Rights. This cause of action must therefore fail.

Costs

[85] The plaintiff has been unsuccessful on all grounds. If the respondent seeks costs it should file a memorandum within 14 days and the plaintiff should reply within a further 14 days.

“Ronald Young J”

Solicitors:

Duncan Cotterill Lawyers, Wellington, for Plaintiff

Crown Law Office, Wellington