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High Court of New Zealand Decisions |
Last Updated: 19 June 2023
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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
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CIV-2022-485-000141
[2023] NZHC 1122 |
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UNDER
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the Privacy Act 1993
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IN THE MATTER OF
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an appeal under section 123 of the Human Rights Act
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BETWEEN
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KIM DOTCOM
Appellant
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AND
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CROWN LAW OFFICE
First Respondent
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Continued over page
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Hearing:
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2 March 2023
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Appearances:
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S L Cogan for appellant
V E Casey KC and A P Lawson for respondents
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Judgment:
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11 May 2023
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JUDGMENT OF VAN BOHEMEN J AND MEMBERS SUSAN ISAACS AND NICOLA SWAIN
This judgment was delivered by me on 11 May 2023 at 3:00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar Date...................................
Counsel/Solicitors:
R M Mansfield KC, Auckland S L Cogan, Auckland
V E Casey KC, Wellington Mackenzie Elvin, Tauranga Crown Law Office, Wellington
DOTCOM v CROWN LAW OFFICE [2023] NZHC 1122 [11 May 2023]
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ATTORNEY-GENERAL
Second Respondent
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DEPARTMENT OF PRIME MINISTER AND CABINET
Third Respondent
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IMMIGRATION NEW ZEALAND
Fourth Respondent
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MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT
Fifth Respondent
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MINISTRY OF FOREIGN AFFAIRS AND TRADE
Sixth Respondent
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MINISTRY OF JUSTICE
Seventh Respondent
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NEW ZEALAND POLICE
Eighth Respondent
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Table of Contents
Background to appeal [4]
United States extradition requests
[5]
Information privacy requests
[10]
Solicitor-General responses
[12]
Extradition hearing commences
[17]
Complaint to Privacy
Commissioner [18]
District Court
finds Mr Dotcom and associates eligible for surrender [19]
Privacy Commissioner’s final views on
Dotcom complaint [21]
Complaint to
Tribunal [22]
High Court dismisses challenges to DC Extradition Judgment, but grants leave to appeal on limited grounds [23]
Tribunal upholds Privacy Complaint [25]
Government agencies start to respond to information privacy requests [30]
Court of Appeal dismisses challenges to HC Extradition Judgment [32]
High Court upholds appeal against HRRT Complaint Judgment [35]
Leave to appeal granted on two questions of law [37] Supreme Court decision on appeals against CA Extradition Judgment [39] Court of Appeal allows Mr Dotcom’s appeal against HC Privacy Judgment [40] Court of Appeal dismisses judicial review appeals [41]
Tribunal declines to award
damages to Mr Dotcom [44]
HRRT
Damages Judgment [45]
Mr
Dotcom’s appeal [54]
[1] Kim Dotcom appeals the decision of the
Human Rights Review Tribunal (the Tribunal) declining to award him damages for
the wrongful
transfer by Government departments and Ministers’ offices
(the Government agencies) of requests by Mr Dotcom under
the Privacy Act
1993 (the Act)1 for all personal information about Mr Dotcom that was
held by the Government agencies (the information privacy
requests).2
[2] Mr Dotcom says the Tribunal made errors in its decision and asks the Court to set aside the decision and to award him damages of $200,000, the maximum sum that may be awarded by the Tribunal.
[3] The Attorney-General opposes Mr Dotcom’s appeal. The Attorney-General says the Tribunal correctly understood its task and reached conclusions that were correct in law and in accordance with the evidence before it.
Background to appeal
[4] The background to the appeal is set out in the decisions of the High Court and Court of Appeal dealing with earlier phases of this proceeding.3 For present purposes, it is sufficient to record the following summary of relevant facts and decisions.
United States extradition requests
[5] In January 2012, the Government of the United States of America requested the Government of New Zealand to extradite Mr Dotcom and three other persons to the United States in accordance with the extradition treaty between the two countries.
2 Dotcom v Crown Law Office (Damages) [2022] NZHRRT 7 [HRRT Damages Judgment]
[6] As stated by the High Court in one of the decisions dealing with the United States’ extradition requests:4
The United States of America claims that Mathias Ortmann, Bram van der Kolk, Kim Dotcom, Finn Batato ... and others were members of a worldwide criminal organisation that engaged in criminal copyright infringement and money laundering on a massive scale with estimated loss to copyright holders well in excess of USD 500 million. The United States terms this the “Mega Conspiracy”. The case has been touted as one of the largest criminal copyright cases ever brought by the United States.
[7] Extensive litigation ensued in which, among other things, Mr Dotcom and his associates challenged the validity of the actions taken by the New Zealand authorities in relation to the United States extradition request. They sought discovery of documents and disclosure of information they considered relevant to the extradition requests, including information on actions they believed had been taken by the United States and New Zealand authorities in relation to them. They also made numerous requests for information under the Official Information Act 1982 (OIA) and under the Privacy Act and brought proceedings to enforce some of those requests. They also sought to stay the extradition proceedings.
[8] Many of the issues raised were pursued until all appeal rights had been exhausted.
[9] Eventually, in May 2015, the hearing of the eligibility of Mr Dotcom and his associates for surrender in accordance with the Extradition Act 1999 was set down to commence in the District Court on 21 September 2015.
[10] In July 2015, Mr Dotcom made information privacy requests of 52 Government Ministers and agencies under s 37 of the Act. He asked that the requests be treated as urgent because the information was required for “pending legal action”.
4 Ortmann v United States of America [2017] NZHC 189 [HC Extradition Judgment] at [1].
[11] At the instigation of the Crown Law Office, most of the information privacy requests were transferred by the Government agencies to the Crown Law Office, purportedly in accordance with s 39(b)(ii) of the Act.5 In letters to Mr Dotcom’s solicitors, some Government agencies advised that they had consulted with the Attorney-General and their view was that the requests were more closely connected with the functions or activities of that office.
[12] On 5 August 2015, the Solicitor-General wrote to Mr Dotcom’s counsel in response to the information privacy request to the Crown Law Office. The letter noted that the request had been sent in identical terms to all Ministers of the Crown and had requested an urgent response. The letter said it was assumed that the “pending legal actions” on which the request for urgency was based referred to applications made to the extradition Court or in contemplation. On that basis it said that the issues ruled on in the High Court’s decision declining judicial review of the District Court’s refusal to make discovery orders in the extradition proceedings6 therefore arose again. The letter advised that the Attorney-General considered that the information sought, to the extent it was held by other agencies, was more closely connected with his functions as Attorney-General and observed that most recipient agencies had transferred the requests to the Attorney-General’s office. The letter advised that the Solicitor-General considered Mr Dotcom had not complied with the requirements of s 37 of the Act to give reasons why the request should be treated as urgent. It stated that, as currently expressed, the request must be declined under s 29(1)(j) on the grounds it was vexatious and, due to its extremely broad scope, included information that was trivial.
[13] In a response dated 17 August 2015, solicitors acting for Mr Dotcom advised they had taken over responsibility for the requests, challenged the transfer of the requests and the right of the Attorney-General to respond to the requests and purported to require the requests to be returned to the targeted agencies. The letter did not accept that the requests could reasonably be considered to be vexatious or only seeking trivial information. While maintaining Mr Dotcom’s right to responses from all agencies,
6 Dotcom v United States of America [2014] NZHC 2550 [HC Judicial Review Judgment].
the letter asked for urgent responses from the third to eighth respondents in this proceeding.
[14] On 31 August 2015, the Solicitor-General responded to Mr Dotcom’s solicitors stating that Crown Law did not accept that the letters were unlawfully transferred or that it was inappropriate for Crown Law to decline the requests. The Solicitor-General included with his letter a copy of a letter, also dated 31 August 2015, sent to the Privacy Commissioner requesting the Commissioner’s advice on the Crown Law Office’s response to date to Mr Dotcom’s requests and on the approach the Crown Law Office proposed to take.
[15] In the accompanying letter to the Privacy Commissioner, the Solicitor-General explained why the Crown Law Office considered it had been appropriate to transfer the requests under s 39 of the Act. Among other things, the letter stated:
In our view, the information requested was more closely connected with the functions of the Attorney-General in the particular context of [the extradition litigation] because it was apparent that the requests were not genuine Privacy Act requests, but rather a litigation tactic and a fishing expedition.
[16] The letter then set out why the Crown Law Office had reached that view. In summary, the reasons were:
(a) The information was required urgently for “pending litigation” but did not specify what that litigation was;
(b) The Crown was involved in multiple legal actions against Mr Dotcom, the most pressing of which was the extradition application which had previously been delayed by interlocutory applications by Mr Dotcom, including applications relating to Privacy Act requests;
(c) The requests were extremely broad and Mr Dotcom’s counsel must have known it would have been impossible for many of the recipients to have responded urgently;
(d) The solicitors who had taken over responsibility for the request had maintained that the requests should be treated urgently and had made no significant attempt to reduce the information to an amount that could realistically be collated prior to the extradition hearing.
[17] On 21 September 2015, the hearing of the application for Mr Dotcom’s surrender for extradition to the United States commenced in the District Court. The hearing concluded on 24 November 2015.
Complaint to Privacy Commissioner
[18] On 28 October 2015, Mr Dotcom’s solicitors made a complaint to the Privacy Commissioner about the transfer and refusal of the information privacy requests.
District Court finds Mr Dotcom and associates eligible for surrender
[19] On 23 December 2015, the District Court issued its judgment finding that Mr Dotcom and his associates were eligible for surrender to the United States on all 13 charges that formed the basis of the United States application for surrender.7 In concluding observations, the District Court Judge noted the very large volume of material presented at the hearing, much of which was not relevant to an eligibility hearing. The Judge also recorded that the overwhelming preponderance of evidence produced by the United States established a prima facie case to answer for all respondents on all counts.8
(a) conspiracy to commit racketeering (count 1);(b) conspiracy to infringe copyright (count 2);
(c) conspiracy to launder monetary instruments (count 3);
(d) criminal copyright infringement by distributing a copyright work being prepared for commercial distribution on a computer network, and aiding and abetting of criminal copyright infringement (count 4);
(e) criminal copyright infringement by electronic means, and aiding and abetting of criminal copyright infringement (counts 5 - 8);
(f) fraud by wire and aiding and abetting fraud by wire (counts 9 – 13).
The charges constituted violations of Title 18 and, in some cases, Title 17 of the United States Code.
8 At [699] – [700].
[20] Mr Dotcom and his associates filed an application for judicial review of the DC Extradition Judgment and for a stay of the extradition proceedings and an appeal by way of case stated of the DC Extradition Judgment. The appeal raised over 300 questions of law. The United States also appealed aspects of the DC Extradition Judgment.
Privacy Commissioner’s final views on Dotcom complaint
[21] In June 2016, the Privacy Commissioner provided final views on Mr Dotcom’s complaint. In relation to the transfer of the information privacy requests, the Privacy Commissioner’s letter to Mr Dotcom’s counsel stated that the Commissioner had determined that Crown Law had acted lawfully as legal adviser to the Government agencies. The letter also stated that the Commissioner had not concluded that all personal information held by the Crown about Mr Dotcom was trivial but, because of the breadth of the requests, they included trivial information. The letter also said the overall volume and extent of the information privacy requests indicated that the requests were designed to frustrate or vex the respondents. The letter concluded that, while the Commissioner could not take the issue further, Mr Dotcom was free to take a case to the Tribunal.
[22] In August 2016, Mr Dotcom made a complaint to the Tribunal (the Privacy Complaint). The defendants were the respondents to the present appeal. Mr Dotcom alleged interference with his privacy by the wrongful transfer of the information privacy requests in breach of s 39 of the Act, the wrongful refusal of the requests in breach of s 40 of the Act and the unlawful refusal to deal with the requests urgently.
High Court dismisses challenges to DC Extradition Judgment, but grants leave to appeal on limited grounds
[23] On 20 February 2017, the High Court answered the questions of law in the appeal brought by Mr Dotcom and his associates and by the United States against the DC Extradition Judgment and dismissed the judicial review of that judgment.9 The
9 HC Extradition Judgment, above n 4.
High Court confirmed the District Court’s determination that Mr Dotcom and his associates were eligible for surrender on all counts in the United States indictment.10 In its decision, the High Court rejected the appellants’ contention that they had been denied a fair eligibility hearing.11
[24] On 2 August 2017, the High Court refused to grant leave to Mr Dotcom and his associates to appeal the HC Extradition Judgment on the basis of approximately 130 questions of law but granted leave to appeal on two specific questions of law.12 The High Court also dismissed an application by the United States for leave to appeal.
Tribunal upholds Privacy Complaint
[25] In March 2018, the Tribunal upheld the Privacy Complaint.13 The Tribunal declared that there had been an interference with Mr Dotcom’s privacy by the unlawful transfer of the information privacy requests to the Attorney-General, and that the Attorney-General had no lawful authority to refuse the requests on the grounds that they were vexatious. In the alternative, the Tribunal declared that, if the transfers were lawful, there was no proper basis for refusing the information privacy requests on the grounds they were vexatious.
[26] The Tribunal awarded Mr Dotcom damages against the Attorney-General of
$30,000 for the loss of a benefit Mr Dotcom might reasonably have been expected to obtain but for the interference and $60,000 for loss of dignity and injury to feelings.14 In setting the amount for loss of benefit, the Tribunal had regard to a number of decisions dating from 2000 to 2015 in which damages of between $5,000 and $8,000
10 At [599].
11 At [590].
12 Ortmann v United States of America [2017] NZHC 1809.
The two questions on which leave to appeal was granted were:
(a) Was the High Court Judge correct to find that the essential conduct with which the
appellants are charged in each count constitutes an extradition offence for the purposes of s 24(2)(c) of the Extradition Act 1999?
(b) Was the High Court Judge correct to conclude that copyright in a particular work does not form part of the accused person's conduct constituting the extradition offences correlating to counts 4 to 8; and to conclude that proof of this is not required for the purposes of s 24(2)(d) of the Extradition Act 1999?
13 Dotcom v Crown Law Office [2018] NZHRRT 7 [HRRT Complaint Judgment].
14 At [204] and [255].
had been awarded for the failure to provide requested information.15 It said any assessment of Mr Dotcom’s case must have regard to the fact that Mr Dotcom believed correctly that a wide range of Government agencies had been collecting, storing and using personal information about him; that it had been acknowledged by the New Zealand Government that the Government Communications Security Bureau (GCSB) had been monitoring Mr Dotcom; that it was understandable in these circumstances that Mr Dotcom wanted to monitor the collection, storage and use of his personal information by Government agencies and that the interference with Mr Dotcom’s privacy had been uniform across a wide spectrum of 52 Government agencies.16 The Tribunal considered these factors made Mr Dotcom’s case “exceptional if not unique” and that the level of damages awarded in earlier decisions provided no useful guidance.17
[27] The Tribunal recorded that Mr Dotcom was not seeking damages for humiliation.18 It did not accept the Crown’s submission that Mr Dotcom had adduced no evidence at all of loss of dignity and injury to feelings and referred to the notes of evidence of the Tribunal hearing in which, the Tribunal said, Mr Dotcom had described his injured feelings.19 The Tribunal said that, given it had accepted Mr Dotcom as a
15 At [223] – [233]. The decisions considered by the Tribunal were: Proceedings Commissioner v Health Waikato HC Hamilton AP39/00, 12 July 2000, (2000) 6 HRNZ 274; Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004; Grupen v Director of Human Rights Proceedings [2012] NZHC 580; Director of Human Rights Proceedings v Schubach [2015] NZHRRT 4; Watson v Capital and Coast District Health Board [2015] NZHRRT 27; Director of Human Rights Proceedings v Hamilton [2012] NZHRRT 24; Director of Human Rights Proceedings v Valli and Hughes [2014] NZHRRT 58. .
16 At [239].
17 At [240].
18 At [244].
19 At [246]. The relevant passages of Mr Dotcom’s evidence were:
A. These are very legitimate requests. I’m providing very legitimate reasons why I would like to have the information and the allegation that any of this is vexatious or is designed to frustrate the Government is just completely nonsensical because if one thing becomes clear in all of this, it’s that I have a real desire for this information, for the truth and that I am entitled to it. Under New Zealand law I’m entitled to it and you’re not giving it to me.
A. my entire business had been destroyed, I’ve been put in jail for a month,
I’ve been subject to unlawful surveillance and, you know, my life and my marriage has been destroyed. I was not interested in negotiating, what I’m interested in is the truth because I know I’ve done nothing wrong and I believe you know I have done nothing wrong and I want to have the documents to prove that and then this whole case is done and I can move on with my life. That is what I’m looking for, I’m looking for the truth and I think I’m entitled to it and everything that has happened so far indicates to
credible witness, it was of the view that he had clearly and unambiguously established loss of dignity and injury to feelings as defined in Hammond v Credit Union Baywide.20
[28] The Tribunal said that Mr Dotcom’s circumstances included:21
... the unfounded stigmatisation of his requests as vexatious and the equally unfounded assertion that the requests were not genuine because they were intended to disrupt the extradition hearing. Mr Dotcom’s very genuine pursuit of the truth and his fully justified desire for a fair hearing had taken him first to the Supreme Court and then to the High Court. In both fora he had been told, in effect, to use the Privacy Act by addressing information privacy requests to the relevant state agencies. When he did so, the requests were without justification characterised as not genuine, vexatious and intended to disrupt the extradition hearing. The resulting loss of dignity and injury to feelings was substantial ...
[29] For these reasons, the Tribunal considered that the upper end of the middle band of Hammond applied and that the appropriate award against the Attorney- General, as representing the Crown, was $60,000.22
Government agencies start to respond to information privacy requests
[30] The Attorney-General filed an appeal against the HRRT Complaint Judgment. In addition, from 30 April 2018, Government agencies began to respond to the information privacy requests that Mr Dotcom had filed previously. Some agencies extended the timeframe for responding to the requests, which Mr Dotcom disputed.
[31] From 15 June 2018, tranches of information were released by Government agencies to Mr Dotcom. All requests were eventually responded to, subject to the withholding of some information under s 27 of the Act.
me that there’s no interest at all on the side of the government or the Crown to provide me with the truth.
...
Q. My understanding of your evidence to the tribunal is that one of the reasons that you want your Privacy Act request is so that you can have a fair hearing on the stay application?
A. Yes.
21 At [254].
22 At [254].
Court of Appeal dismisses challenges to HC Extradition Judgment.
[32] After hearings in February 2018, on 5 July 2018, the Court of Appeal dismissed Mr Dotcom’s appeal against the HC Extradition Judgment.23 The Court answered “Yes” to both questions of law framed by the High Court, although its answer to the first question was for different reasons from those of the High Court.
[33] The Court of Appeal also dismissed applications to stay the extradition proceedings on various grounds, including the Attorney-General’s handling of the information privacy requests. The Court also dismissed the appeal against the High Court’s decision to decline judicial review of the DC Extradition Judgment. The Court said the appellants were attempting to circumvent the circumscribed appeal rights under the Extradition Act and considered that to be an abuse of process.24
[34] The appellants subsequently obtained leave from the Supreme Court to appeal the Court of Appeal’s decisions dismissing their appeals against the HC Extradition Judgment and against the High Court’s decision to decline judicial review.25
High Court upholds appeal against HRRT Complaint Judgment
[35] In October 2018, the High Court allowed the Attorney-General’s appeal against the HRRT Complaint Judgment.26 The High Court held that there was a proper and lawful purpose for the transfer of the requests and that, because the requests were required to be responded to urgently on the ground that the information sought was relevant to the eligibility proceedings, the requests were vexatious.27
23 Ortmann v United States of America [2018] NZCA 233, [2018], 3 NZLR 475 [CA Extradition Judgment].
24 At [311].
25 Ortmann v United States of America [2018] NZSC 126. The approved question on appeal was “whether the Court of Appeal was correct to dismiss the appeals (other than the [judicial review appeal])”. However, by minute dated 24 January 2019, the Supreme Court confirmed that “the leave to appeal in relation to the judicial review proceedings was limited to whether the Court of Appeal was correct to dismiss those proceedings as an abuse of process”.
26 HC Privacy Judgment, above n 3.
27 At [239].
[36] The High Court observed that, given its findings, it was not necessary to address the question of remedies. However, it expressed its views on the Tribunal’s award of damages in case it was wrong on its findings.28
Leave to appeal granted on two questions of law
[37] In April 2019, the High Court granted Mr Dotcom leave to appeal the HC Privacy Judgment with respect to a single question of law:29
Can a request for personal information under the Privacy Act 1993 be transferred by the recipient to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly assess but the agency to which the request is transferred is the only agency able to properly evaluate the claimed basis for the urgency request?
(Question 1)
[38] In October 2019, the Court of Appeal granted Mr Dotcom special leave to appeal the HC Privacy Judgment with respect to the following further question:30
Is a request for urgency under s 37 of the Privacy Act 1993 a relevant factor for an agency in determining whether to refuse a request for personal information under s 29(1)(j) of that Act?
(Question 2)
Supreme Court decision on appeals against CA Extradition Judgment
[39] On 4 November 2020, the Supreme Court dismissed most aspects of the appeals against the CA Extradition Judgment.31 The Supreme Court also held that the Court of Appeal was in error in concluding that the judicial review proceedings were an abuse of process and allowed the judicial review appeals.32 The Supreme Court subsequently remitted the matter to the Court of Appeal for the purpose of identifying
29 Dotcom v Attorney-General [2019] NZHC 740 [HC Leave Judgment].
30 Dotcom v Attorney-General [2019] NZCA 509 [CA Leave Judgment].
31 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 [Supreme Court Extradition Judgment]. However, it held there was no available extradition pathway in respect of count 3 of the charges and discharged the appellants in respect of count 3.
32 At [588] – [590].
any outstanding issues in relation to the judicial review appeals that had not been addressed as part of the Extradition Act appeals and resolving those issues.33
Court of Appeal allows Mr Dotcom’s appeal against HC Privacy Judgment
[40] On 10 November 2020, the Court of Appeal allowed Mr Dotcom’s appeal against the HC Privacy Judgment to the extent reflected in its answers to the approved questions.34 The Court of Appeal said the fact urgency was sought did not comprise a part of the information that was the subject of a request and did not provide a proper bass for a transfer of the request to another agency. Accordingly, it answered Question 1 in the negative. In response to Question 2, the Court of Appeal said a request for urgency could be a relevant factor in a decision to refuse a request.35 The Court of Appeal also made a number of consequential directions.36
Court of Appeal dismisses judicial review appeals
[41] On 12 July 2021, the Court of Appeal held that there were no issues raised in the judicial review appeals that were not addressed in the CA Extradition Judgment and dismissed the judicial review appeals that had been remitted to it by the Supreme Court.37 In reaching that decision, the Court rejected arguments of alleged breaches of natural justice, including alleged misconduct on the part of the authorities. This included Mr Dotcom's complaint about the Attorney-General's handling of the information privacy requests.38
[42] The Supreme Court subsequently declined an application for leave to appeal the Court of Appeal’s decision.
[43] At that point, all issues relating to the extradition hearing had been resolved. In accordance with the Extradition Act, however, it is for the Minister of Justice to determine whether Mr Dotcom and his associates are surrendered to the United States.
33 Ortmann v United States of America [2021] NZSC 9 at [8].
34 CA Privacy Judgment, above n 3, at [112].
35 At [111].
36 At [107] – [110].
37 Ortmann v United States of America [2021] NZCA 310 [2nd CA Extradition Judgment].
38 At [71].
Tribunal declines to award damages to Mr Dotcom
[44] On 15 February 2022, the Tribunal issued its decision on the referral of the CA Privacy Judgment.39 The Tribunal declined to award any damages to Mr Dotcom.
HRRT Damages Judgment
[45] In the HRRT Damages Judgment, the Tribunal held that, given the terms of the CA Privacy Judgment, the issue of damages it was to determine was not “at large” and as if it were being addressed for the first time as part of the original hearing of the Privacy Complaint.40 It also recorded that no party had filed briefs of evidence, despite being given the opportunity to do so.41
[46] The Tribunal said it was subject to the following primary constraints:42
(a) The Court of Appeal had remitted back to the Tribunal consideration of damages relating to the transfers and not the refusal of the information privacy requests;
(b) The fact the transfers did not meet the requirements of the Act did not make them void as if they had not occurred;
(c) Because the parties had not produced further evidence, the Tribunal’s reconsideration of damages was limited to the evidence at the original hearing;
(d) The Tribunal was bound by the High Court’s finding in the HC Privacy Judgment that there was a proper basis to refuse the information privacy requests; namely, that the requests were vexatious.
[47] The Tribunal considered that the constraints on the scope of the appeal and the limited terms of the remittal by the Court of Appeal precluded it from relying on its
39 HRRT Damages Judgment, above n 2.
40 At [14].
41 At [15]
42 At [16].
earlier findings regarding the assessment of damages and that the CA Privacy Judgment required it to reconsider the issue of damages in respect of the interference with Mr Dotcom’s privacy by the wrongful transfer of the information privacy requests. It said it was not able to assess damages for refusing the requests or the characterisation of them as vexatious, even though the Court of Appeal had held that a refusal to respond to the requests would not be supportable on the basis of the reasons given by the Solicitor-General.43
[48] The Tribunal held that any loss of benefit must be causally linked to the wrongful transfer. It noted that it was no longer necessary to speculate whether the claimed loss of benefit might have reasonably been expected to accrue. In the intervening three years, Government agencies had provided the information requested and Mr Dotcom had failed to identify any specific document that might potentially have made a difference to his extradition hearing. Mr Dotcom’s counsel also argued that the material withheld for national security reasons could be inferred to be relevant to his extradition hearing, but that the Tribunal considered this submission to be “so wide that no such inference can be reasonably drawn”.44 Accordingly, the loss of benefit claim failed by reason of absence of evidence.45
[49] On the claim for loss of dignity and injury to feelings, the Tribunal noted that its original assessment for damages under these heads had been based on the allegations that the information privacy requests had been vexatious and intended to disrupt the extradition hearing.46 However, the scope of its inquiry this time had been considerably narrowed by the terms of the CA Privacy Judgment. It stated:47
The issues previously determined “at large” by the Tribunal in its original decision are now confined to whether Mr Dotcom has established by his evidence given in early 2017 that the wrongful transfer of his information privacy requests caused loss of dignity or injury to his feelings.
[50] The Tribunal noted that Mr Dotcom had not explicitly addressed any loss of dignity or injury to feelings in his evidence at the original hearing. In the HRRT
43 At [23] – [24].
44 At [30].
45 At [25] – [32].
46 At [33].
47 At [34].
Complaint Judgment, it had inferred such loss by reference to the allegation that the requests were vexatious, not genuine and intended to disrupt the extradition hearing. However, the Tribunal considered that the “unfounded allegations” of vexatiousness and attempted disruption of the extradition hearing could not be taken into account because of the limited nature of the CA Privacy Judgment and the terms on which the damages assessment had been remitted to it.48
[51] As a consequence, the Tribunal considered that all that was left were the finding by the Court of Appeal that the transfers of the information privacy requests were invalid and an interference with Mr Dotcom’s privacy and the further finding that a refusal to respond to the requests on the grounds they were vexatious would not be supportable on the basis of the reasons given in the Solicitor-General’s letters of 5 and 31 August 2015. The Tribunal said the highest Mr Dotcom could put his case was that the Attorney-General had no authority, as transferee, to refuse to disclose the requested information. However, because that refusal to disclose had not been set aside, it remained valid in law and of full effect. As such it could not support an award of damages.49
[52] The Tribunal noted that complexity of this kind had not been anticipated when Mr Dotcom had given evidence in 2017 and that, understandably, his evidence had not addressed the point. However, the Tribunal said that because Mr Dotcom had not taken up the opportunity offered to provide further evidence, he had not discharged his burden of establishing that the wrongful transfer of the information privacy requests had caused loss of dignity or injury to his feelings. Consequently, no damages could be awarded.50
[53] The Tribunal said that, because Mr Dotcom’s claim failed for lack of evidence, there was no need to address the obiter and non-binding passages in the HC Privacy Judgment concerning the damages award in the HRRT Complaint Judgment.51 However, the Tribunal did respond on three specific points.52 In its first point, the
48 At [36].
49 At [37] – [39].
50 At [40].
51 At [42].
52 At [43] – [47].
Tribunal observed that the jurisdiction to award damages under s 88(1) was premised on the humiliation, loss of dignity or injury to feelings experienced by the aggrieved individual and not on the experiences of “a person of ordinary fortitude”.53
Mr Dotcom’s appeal
[54] Mr Dotcom alleges that the Tribunal made three errors in its decision:
(a) It found that its assessment of damages was confined to the transfer of the privacy information requests and did not extend to the refusal of the requests;
(b) It found that Mr Dotcom’s claim for damages for loss of benefit failed for lack of evidence; and
(c) It found that Mr Dotcom’s claim for damages for loss of dignity and injury to feelings also failed for lack of evidence.
Submissions by counsel for Mr Dotcom
[55] Mr Cogan, counsel for Mr Dotcom, submits that the Tribunal misdirected itself as to the constraints it was under in respect of the matters remitted back to it by the Court of Appeal. In particular, the Tribunal incorrectly narrowed the scope of its consideration of damages to the transfers and did not consider the damage caused by the refusals of the information requested.
[56] Mr Cogan submits that the Tribunal erred by considering the requests through the lens of administrative law rather than through s 40 of the Privacy Act. That section requires the decision on whether to grant or refuse a privacy request to be made by the agency to which the request was made or transferred in accordance with s 39. Mr Cogan submits that because the Court of Appeal held that the transfers were invalid, it follows the refusals were also invalid. It does not matter that the Court of Appeal did not set aside the refusals. Because the Attorney-General was the wrongful transferee, he had no authority to refuse the requests. It follows that those who were
53 At [47].
authorised to make the decisions on the requests were deemed to have refused them in terms of s 66(3) of the Act, which deems a failure to deal with an information privacy request within the Act’s timeframes as a refusal to make the information available.
[57] Mr Cogan submits that the Tribunal also applied the wrong test when considering the loss of benefit to Mr Dotcom. The test was not whether Mr Dotcom could point to a specific document that might have made a difference at the eligibility hearing. The test was whether, as a result of the interference with his privacy, Mr Dotcom lost his right to a fair eligibility hearing in accordance with the principles of natural justice and a judgment of the Supreme Court which, he says, found that Mr Dotcom was entitled to disclosure.54 Mr Cogan also submits that the Tribunal found, and that the Court of Appeal later confirmed, that Mr Dotcom had been unlawfully deprived of such disclosure until after there had been an opportunity to use the information in the extradition proceedings.
[58] Mr Cogan draws an analogy with the Criminal Disclosure Act 2008 and submits that, if a prosecutor unlawfully withheld information they were required to disclose under that Act, it would not be open for them to assert that the information was not potentially relevant. Mr Cogan says further that the Tribunal, being of limited jurisdiction and not seized of the eligibility hearing, was in no position to assess what might or might not have made a difference at the eligibility hearing. He says the causal connection required is between the privacy breach and the pleaded loss. The loss in this case was the loss of a fair eligibility hearing in accordance with the principles of natural justice and the SC Disclosure Judgment. Mr Dotcom was not required to do the impossible and show that the withheld information would likely have influenced the outcome of the extradition proceedings which, by then, had run their course.
[59] Mr Cogan says no further evidence was required. It is plain from the chronology of events that, by the time Mr Dotcom had received the responses to the information privacy requests, he had lost the opportunity to use the information in the extradition proceedings. However, if further evidence was needed that the information was potentially relevant to the eligibility hearing, Mr Cogan submits that the fact some
information was withheld - on grounds of national security or prejudice to the entrusting of information on a confidential basis to the Government of New Zealand by another Government - confirms the requested information included information provided to Government agencies by the United States in connection with the request for Mr Dotcom’s surrender.
[60] Mr Cogan submits that the Tribunal was wrong to hold that Mr Dotcom’s evidence in 2017 did not address loss of dignity and injury to feelings. The Tribunal was also wrong to hold that it could no longer take into account its findings in the HRRT Complaint Judgment that loss of dignity could be inferred from the allegations that Mr Dotcom’s requests were vexatious, not genuine and or intended to disrupt the extradition hearing, because of the findings in the HC Privacy Judgment and because of the limited scope of the questions addressed in the CA Privacy Judgment. He also says the Tribunal was not constrained by the High Court’s findings on damages, given their findings on the transfer and refusal of the requests, because they were obiter dicta. He says that Mr Dotcom had been stigmatised as having sought to engage in frustrating and delaying tactics and that there was more than sufficient evidence from which the Tribunal could have inferred evidence of loss of dignity.
[61] Mr Cogan submits that the maximum quantum of damages, $200,000, should be awarded having regard to:
(a) the profound implications of the extradition proceedings for Mr Dotcom; the fact the requests were the only means of obtaining the information sought;
(b) the fact there were five unlawful transfers by the agencies most directly involved in the extradition;
(c) the involvement of the Attorney-General in an effort to deny Mr Dotcom a perceived opportunity to seek an adjournment of the extradition proceedings; and
(d) the fact Mr Dotcom was stigmatised as acting strategically in seeking disclosure to which he was entitled.
Submissions by counsel for the Attorney-General
[62] Ms Casey KC submits that the Tribunal was correct in considering only the harm to Mr Dotcom said to have arisen from the wrongful transfers of the information privacy requests and was correct to have excluded the effects of the refusals of the requests. There was a final and binding decision of the High Court that there were proper grounds on which to decline the requests and Mr Dotcom failed to overturn that finding on appeal. In addition, the Court of Appeal’s decision expressly limited damages to those arising from the wrongful transfers.
[63] Ms Casey submits that transfers that did not meet the requirements of the Act were not void and they were not set aside by the Court of Appeal, which had no jurisdiction to do so under the Act. Even if there had been such jurisdiction, it is a well-established principle of administrative law that decisions of a competent decision-maker are treated as valid until set aside by the Court of competent jurisdiction. No court has set aside the transfers or the refusals of the requests.
[64] Ms Casey says further that, even if the transfers were void from the start so that the Attorney-General was not the correct decision-maker, refusal of a privacy request is not an interference just because it was made by the wrong decision-maker. Under s 66(4), the substantive refusal is to be assessed on the basis of whether there was no proper basis for the refusal, irrespective of who made that decision. In this case, the High Court had decided that there was such a proper basis.
[65] Ms Casey submits it is significant that Mr Dotcom has not identified any harm suffered by him because of the transfer decisions themselves. His claims are inextricably linked to the refusal of the requests, which meant he did not have access to the information in the extradition proceedings. Losses arising from the refusal of the requests were outside the scope of the CA Privacy Judgment and are not recoverable in this proceeding.
[66] Ms Casey submits that the above disposes of Mr Dotcom’s appeal. However, if the Court considers damages arising from the refusal of the information privacy requests, Ms Casey submits that the Tribunal correctly applied the test identified by the High Court by considering whether the requested information was likely to have actually affected the outcome of the extradition hearing and whether there was some evidential basis for assuming that the information was potentially relevant. Ms Casey submits that this approach is consistent with the language of s 88(1)(b) of the Act and the approach adopted by the Tribunal in other cases.
[67] Ms Casey says the Tribunal was correct in recording that Mr Dotcom has failed to identify any specific document that potentially could have made a difference in his extradition hearing. Ms Casey submits that the claim for damages as framed by Mr Cogan – that Mr Dotcom was deprived of material to which he was entitled – appears to argue for a Baigent approach to damages,55 which would be outside the heads of damages allowed for under the Act. Ms Casey submits the regime in the Criminal Disclosure Act is not apt and says this Court has already ruled on the interpretation of the SC Disclosure Decision.
[68] More generally, Ms Casey submits that Mr Dotcom’s claims of unfairness in relation to the extradition proceedings are unfounded and a collateral attack on those proceedings. She says the extradition courts were fully aware of Mr Dotcom’s position. Mr Dotcom’s challenges to the fairness of the extradition proceedings, including on the basis of allegations of procedural misconduct, were considered and dismissed by the District Court, High Court and Court of Appeal.56
[69] With regard to damages for injury to feelings and loss of dignity, Ms Casey says the Tribunal accepted in its original decision that there was no direct evidence on this point but inferred such harm. The High Court had been critical of the Tribunal’s projection that Mr Dotcom must have felt stigmatised and had observed that Mr Dotcom’s evidence had not been directed to any loss of dignity or injury to feelings arising in relation to the information privacy requests. While that finding was strictly
55 Simpson v Attorney-General [1994] 3 NZLR 667 – generally referred to as “Baigent’s case”.
56 DC Extradition Judgment, above n 7, at [579] and [688]; HC Extradition Judgment, above n 4, at
[552] – [553]; CA Extradition Judgment, above n 23, at [301].
obiter, it was a fully considered observation of the Court and, Ms Casey says, confirms that actual evidence is required to justify an award of damages.
[70] Lastly, Ms Casey says the quantum of damages Mr Dotcom seeks is excessive and grossly out of step with other awards involving state wrong-doing.
Nature of appeal
[71] Under s 123(5) of the Human Rights Act 1993, when determining an appeal from a decision of the Tribunal, the High Court has the powers conferred on the Tribunal by ss 105 and 106, and those sections apply with such modifications as are necessary.
[72] Under s 105, the Tribunal must act according to the substantial merits of the case, without regard to technicalities and, in exercising its powers and functions, the Tribunal must act in accordance with the principles of natural justice, in a manner that is fair and reasonable, and according to equity and good conscience.
[73] Under s 123(6), in its determination of the appeal, the Court may confirm, modify or reverse any decision of the Tribunal.
[74] Under s 123(7), the Court may, instead of determining an appeal, refer to the Tribunal for further consideration the whole or any part of the matter to which the appeal relates.
Questions for determination
[75] The notice of appeal and submissions advanced on behalf of Mr Dotcom give rise to the following questions for determination:
(a) Was the Tribunal required by the CA Privacy Judgment to restrict its consideration to damages arising from harm caused by the transfer of the information privacy requests?
(b) Was the Tribunal bound by the High Court’s finding that there was a proper basis to refuse the information privacy requests; namely, that they were vexatious?
(c) Was the Tribunal correct in holding that no damages for loss of benefit should be awarded?
(d) Was the Tribunal correct in holding that no damages for loss of dignity or injury to feelings should be awarded?
(e) If the Tribunal was not correct in its decisions on the award of damages, what damages should be awarded to Mr Dotcom?
[76] Each of these questions is considered below. First, however, it is useful to recall relevant provisions of the Act as they related to Mr Dotcom’s Privacy Complaint.
Relevant provisions of Privacy Act
[77] Section 6 of the Act set out the information privacy principles around which the Act was structured. These included Principle 6 which provided:
Principle 6
Access to personal information
(a) to obtain from the agency confirmation of whether or not the agency holds such personal information; and
(b) to have access to that information.
[78] Section 11 of the Act provided:
[79] Part 4 set out reasons on which requests for information may be refused. These included reasons of security, defence and international relations (s 27), protection of trade secrets and other information that would be likely unreasonably to prejudice the commercial position of the person who supplied or was the subject of the information (s 28) and other reasons (s 29). Under s 30, but subject to ss 7, 31 and 32, no reasons other than those provided for in ss 27 to 29 justified a refusal to provide information requested pursuant to Principle 6.
[80] Under s 29(1)(j), an agency could refuse to disclose requested information pursuant to Principle 6 if the request was frivolous or vexatious, or the information requested was trivial. The term “vexatious” was not defined.
[81] Part 5 included s 39, dealing with the transfer of requests, s 40, dealing with decisions on requests and s 44, regarding reasons for the refusal.
[82] Section 39 provided:
Where—
(a) an information privacy request is made to an agency or is transferred to 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 dealing with the request to be held by another agency; or
(ii) is believed by the person dealing with the request to be more closely connected with the functions or activities of another agency,—
the agency to which the request is made shall promptly, and in any case not later than 10 working days after the day on which the request is received,
transfer the request to the other agency and inform the individual making the request accordingly.
[83] Section 40(1) relevantly provided:
(a) decide whether the request is to be granted and, if it is to be granted, in what manner and, subject to sections 35 and 36, for what charge (if any); and
(b) give or post to the individual who made the request notice of the decision on the request.
[84] Section 41 allowed an agency to extend the timeframes for a response in certain circumstances.
[85] Section 44 provided that, where an information privacy request was refused, reasons had to be given to the requesting individual except in rare circumstances that did not arise in the present case.
[86] Part 8 dealt with complaints. It defined what constituted an interference with privacy (s 66), how a complaint was to be made (s 67), and, if a complaint was pursued as far as the Tribunal, the powers of the Tribunal in relation to complaints (ss 84 and 85).
[87] Section 66(1) relevantly provided that an action was an interference with the privacy of an individual, if in relation to that individual, the action breached an information privacy principle and:
(b) in the opinion of the Commissioner or, as the case may be, the Tribunal, the action—
(i) has caused, or may cause, loss, detriment, damage, or injury to that individual; or
(ii) has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or
(iii) has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.
[88] Under s 66(2), an action was an interference with the privacy of an individual if the action consisted of a decision made under pt 4 or pt 5 of the Act, including a refusal to make information available in response to the request and the Commissioner or, as the case may be, the Tribunal is of the opinion that there is no proper basis for that decision.
[89] Under s 66(4), undue delay in making information available in response to an information privacy request was deemed to be a refusal to make the information available.
[90] Under ss 84 and 85, an aggrieved individual could seek any of the following remedies for proceedings under ss 82 or 83, which could be granted by the Tribunal if it was satisfied on the balance of probabilities that any action of a defendant was an interference with the privacy of an individual:
(a) a declaration that the action of the defendant is an interference with the privacy of an individual:
(b) an order restraining the defendant from continuing or repeating the interference, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the interference, or conduct of any similar kind specified in the order:
(c) damages in accordance with section 88:
(d) an order that the defendant perform any acts specified in the order with a view to remedying the interference, or redressing any loss or damage suffered by the aggrieved individual as a result of the interference, or both:
(e) such other relief as the Tribunal thinks fit.
[91] Section 88 relevantly provided:
(a) pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved individual for the purpose of, the transaction or activity out of which the interference arose:
(b) loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:
(c) humiliation, loss of dignity and injury to the feelings of the aggrieved individual.
Was the Tribunal required to restrict its consideration to damages arising from harm caused by the transfer of the information privacy requests?
[92] Both Mr Cogan and Ms Casey address the question of validity – the validity of the transfers of the information privacy requests and the validity of the refusals of those requests, and whether the CA Privacy Judgment affected the validity of either or both decisions. They each analyse the effects of the CA Privacy Judgment with respect to such validity to support their respective cases. With respect to both counsel, we do not consider that analysis to be helpful.
[93] As Ms Casey says, the Act was not concerned with the validity of decisions to which it applied. Rather, the Act’s focus was on whether a decision or action was an interference with privacy, as is apparent from the provisions set out above.
[94] Importantly:
(a) The ability to bring a complaint under s 66(1) and to obtain relief under s 85 depended on establishing there had been an interference with privacy; and
(b) Under s 66(2), a decision to transfer a request where there was no proper basis for that decision, and a decision to refuse a request where there was no proper basis for that decision, was each, of itself, an interference with privacy without the need to prove any of the consequences in s 66(1)(b)(i)-(iii).
[95] We agree with Ms Casey that, despite the breadth of the term “such other relief as the Tribunal thinks fit” in s 85(1)(e), the Act did not confer powers to strike down or set aside actions that constituted an interference with privacy. We also agree with Ms Casey that, for these reasons, the Court of Appeal was not making a determination
about the continued effect of the transfer decisions when it said that it followed from its answer to Question 1 that the transfers of Mr Dotcom's information privacy requests to the Attorney-General were invalid. We take the word “invalid” in this context to mean “not permissible” – a term used in the Court’s answer to Question 1.
[96] For these reasons, we see no reason for distinguishing between an “invalid” decision to transfer the information privacy requests and continuing “valid” decisions to refuse those requests. The decisions on transfer and on refusal both remained in effect after the CA Privacy Judgment. The question in both cases is whether those actions constituted an interference with Mr Dotcom’s privacy, having regard to the terms of the CA Privacy Judgment.
[97] Before considering that judgment, it is relevant to recall the relevant terms of the Privacy Complaint, the HRRT Complaint Judgment, the HC Privacy Judgment and the terms on which leave to appeal the HC Privacy Judgment were granted. We consider that, through that process, the meaning and effect of the CA Privacy Judgment become more apparent.
[98] In the first cause of action in his Privacy Complaint, Mr Dotcom pleaded that the transfers of the information privacy requests were unlawful and, as a result of the transfers being unlawful, the third to eight respondents breached s 40 of the Act by failing to make the requested information available. By way of relief, Mr Dotcom sought a declaration that the transfer of the requests and the refusals of the requests amounted to an interference with his privacy. In other words, the Privacy Complaint directly linked the actions of transfer and refusal and alleged that the unlawfulness of the refusals followed from the unlawfulness of the transfers.
[99] In considering Mr Dotcom’s Privacy Complaint, the Tribunal gave much greater attention to the transfers of the information privacy requests than to the refusals. The section dealing with both questions was headed “The Transfer Issue –
Legal Analysis” and covered paragraphs [69] to [111], almost all of which dealt with the transfers.
[100] Towards the conclusion of that analysis, the Tribunal said:
[104] For the reasons given our overall conclusion on the law is that [the Act], s 39(b)(ii) does not permit a transfer for the purpose put forward by the Crown, namely the obtaining of legal advice or for the purpose of coordinating the response to the request with the Crown's litigation strategy. Consequently our two key conclusions on the facts are:
[104.1] The information to which the requests related was not more closely connected with the functions or activities of the Attorney- General than with the functions or activities of the transferring agencies.
[104.2] The transfers took place in the absence of a properly grounded belief by the transferors that the information to which the requests related was more closely connected with the functions or activities of the Attorney-General.
[105] As the transfers were not made in accordance with the Act the Attorney-General was not the lawful transferee under ... s 39(b)(ii). The Attorney-General accordingly had no authority, as transferee, to refuse to disclose the requested information. In these circumstances Mr Dotcom has established that in terms of ... s 66(2)(b) there was no proper basis for the refusal.
[101] Paragraph [105] was the only discussion of the refusals. The decision that there was no proper basis for the refusals flowed directly from the decision that the Attorney-General was not the lawful transferee. It is plain, therefore, that the Tribunal’s finding that Mr Dotcom’s privacy was breached by the Attorney-General’s refusals of the requests was directly related to and contingent on its finding that the transfers of the requests were not lawful.
[102] Similarly, the HC Privacy Judgment was concerned predominantly with the lawfulness of the transfers. The focus of the judgment was on whether, as the High Court found, the request for urgency could be regarded as forming part of the information privacy request and as justifying the transfer of the requests to the Attorney-General. Apart from its consideration of whether the requests could be refused on the grounds they were vexatious, the High Court did not separately consider
whether the refusals of the requests amounted to an interference with Mr Dotcom’s privacy.
[103] On the question of vexatiousness, the High Court noted that the Crown case before the Tribunal had been based on the narrow contention that Mr Dotcom had an improper motive in making the requests.57 The High Court then noted that the Crown case before it had not been so narrowly focussed and had relied on nine factors referred to by Crown counsel.58 The Court accepted that, on the basis of those nine factors, there had been a proper basis under s 29(1)(j) for the Attorney-General to have concluded that in the particular contexts of the requests they were vexatious. 59
[104] On that basis, the High Court appeared to accept that all of the nine factors referred to by Crown counsel justified refusals of the requests on the grounds of vexatiousness. However, as the Court of Appeal later observed, the High Court also drew attention to the fact that, in his letter of 5 August 2015 declining the requests, the Solicitor-General had made it clear that the only component of the request that made it vexatious was that of urgency.60
[105] In addition, at the conclusion of its judgment, when recording the Court’s outcomes, the High Court said:
57 HC Privacy Judgment, above n 3, at [162], noting HRRT Complaint Judgment, above n 13, at [160].
58 At [163]. See also [160].
In summary, those factors were:
(a) the close proximity of the eligibility hearing;(b) delay between an application to stay the extradition proceedings based on alleged misconduct by Crown agencies that had been filed in October 2014 and the information privacy requests made in July 2015;
(c) the blanket targeting of every Minister and almost every Government department;
(d) the blanket claim for urgency for all information and across all agencies;
(e) the breadth of the requests and the insistence on the widest possible application;
(f) the refusal to narrow the requests;
(g) earlier findings by the District Court and the High Court that such disclosure from even the most closely involved agencies would be “totally irrelevant” to the extradition proceedings;
(h) the fact that, for a number of agencies, full compliance within 20 days would not be possible;
(i) the history of earlier Privacy Act and OIA requests indicating that timely and more sensibly focused and co-operative requests had been made where the requested information was genuinely sought for the purposes of the litigation.
59 At [174].
60 CA Privacy Judgment, above n 3, at [54]; HC Privacy Judgment, above n 3, at [186].
[239] The appeal is allowed. We find that there was a proper and lawful purpose for the transfer of the requests and that, because of the insistence that all 52 requests were required to be responded to urgently, on the ground that the information sought was relevant to the eligibility proceedings, the requests were vexatious.
Questions of law for the Court of Appeal
[106] In its consideration of Mr Dotcom’s application for leave to appeal the HC Privacy Judgment, the High Court recorded that, following revision of the original questions in respect of which leave had been sought, leave was sought with respect to four questions.61 One of those questions addressed the issue of refusal. However, because that question called into issue the High Court’s factual finding that the request for information and the request for urgency were not separate requests, the Court held that the question did not meet the criteria for leave.62 As a result of that and associated rulings, the only question of law on which the High Court granted leave to appeal, Question 1, was limited to the issues of transfer and urgency.
[107] Question 2, for which the Court of Appeal granted special leave, was addressed only to the issues of urgency and vexatiousness.
[108] The net result of the HC and CA Leave Judgments was that the only questions before the Court of Appeal for substantive decision were limited to whether:
(a) a decision on transfer could take a request for urgency into account; and
(b) a request for urgency could be relevant to a decision that a request was vexatious.
[109] In relation to Question 1, the Court of Appeal noted that, while the privacy principles did not, for the most part, create rights enforceable through the courts, different considerations applied with respect to Principle 6 as a consequence of s 11.63 The Court noted that, consistent with the status of an enforceable right, pt 5 provided
61 HC Leave Judgment, above n 29, at [3] – [7].
62 At [18].
63 CA Privacy Judgment, above n 3, at [68].
specific procedural provisions to facilitate responses made pursuant to Principle 6. The Court noted that these provisions and procedures were provided for the effective and accountable operation of the Act with the objective of ensuring that a recipient agency was focused on the request and upon the information sought in accordance with the rights that underpin the Act.64
[110] The Court of Appeal agreed with counsel for the Privacy Commissioner that the procedural requirements of s 39(b)(ii) had to be met before a transfer was permitted under the section.65 The Court also held that the fact that urgency was sought did not comprise a part of the information sought in an information privacy request and did not provide a proper basis for a transfer of the request to another agency.66
[111] Accordingly, the Court answered Question 1 as follows:67
No. A transfer of an information privacy request under s 39(b)(ii) is permissible only if the person dealing with the request believes the information to which the request relates to be more closely connected with the functions or activities of the transferee agency. The fact that a requestor seeks urgent treatment of an information request, whether or not in the same document as the request, does not comprise part of the information to which the information request relates.
[112] In relation to Question 2, the Court of Appeal said that the reasons advanced for seeking urgency could inform the decision-maker on the issue of whether the information privacy request was vexatious and, in that manner, a request for urgency could be a relevant factor for consideration in a decision to refuse the request. However, the mere fact of a request for urgency would not alone be a proper basis for refusal.68
[113] Accordingly, the Court answered Question 2 as follows:69
Yes, it may be a relevant factor. Although the mere fact of a request for urgency would not of itself generally be a proper basis for a finding of vexatiousness, we cannot exclude the possibility of there being circumstances where an inference of vexatiousness could be drawn from a request for urgency.
64 At [73].
65 At [93].
66 At [96].
67 At [111].
68 At [106].
69 At [111].
Examples of such circumstances might include a grossly excessive number of requests for urgency or reasons given for urgency that are not credible. All will depend on the context in which the request for urgency is made.
[114] In addition to answering the two questions, the Court of Appeal made a number of consequential directions. In particular, it said:
[107] It follows from our answer to Question 1 that the transfers of Mr Dotcom's information privacy requests to the Attorney-General were invalid and, on the face of it, an interference with Mr Dotcom's privacy.
[108] It follows from our answer to Question 2 that a refusal to respond to Mr Dotcom's requests on the grounds that they were vexatious would not be supportable on the basis of the reasons given by the Solicitor-General in his letters of 5 and 31 August 2015. Ms Casey submitted that the High Court did not find that the request for urgency was the only relevant ground to support the assessment that the request was vexatious. However the issue whether the decision to decline the information requests in reliance on s 29(1)(j) for reasons different from those which were proffered at the time is not a matter before us on this confined appeal.
[115] The Court of Appeal declined to reinstate the Tribunal’s decision on the transfer issue because:70
... the Tribunal's decision on the transfer issue was based on the different argument then advanced on behalf of the Crown that the transfer was for the obtaining of legal advice as well as the co-ordination of the Crown's response.
[116] At the conclusion of its judgment, the Court of Appeal stated:
[110] We consider that the appropriate order is to allow the appeal from the High Court judgment to the extent reflected in our answers to the two approved questions. The issue of damages should be remitted to the Tribunal for reconsideration in the light of this judgment.
Consequences of CA Privacy Judgment
[117] As is clear from the above passages, the Court of Appeal allowed the appeal “to the extent” reflected in its answers to the two questions and directed the Tribunal to reconsider the issue of damages “in light of this judgment”.
[118] We are satisfied that, in making these directions, the Court was not limiting the Tribunal to the strict confines of its answers to the two questions. We consider that
70 At [109].
the direction of the Court to the Tribunal to reconsider the issue of damages “in light of this judgment” authorised the Tribunal to take into account not only the strict terms of the answers to the two questions but also any necessary consequences of those answers in the light of its judgment.
[119] In its answer to Question 1, the Court of Appeal held explicitly that a transfer of an information privacy request under s 39(b)(ii) was permissible only if the person dealing with the request believed, on some objective basis, the information to which the request related to be more closely connected with the functions or activities of the transferee agency.71 As held by the Tribunal and accepted by the High Court, the decision to transfer the privacy information requests (and the decision to refuse the requests) had been for reasons other than those that related to the assessment of the information itself.72
[120] The Court of Appeal’s answer to Question 1 established that the transfer of the information privacy requests was an interference with Mr Dotcom’s privacy. In terms of s 66(2) of the Act, it was a decision made under pt 5 for which there was no proper basis. While the Court of Appeal did not address separately the lawfulness of the refusals other than in relation to Question 2, it necessarily follows that, if there was no proper basis for the transfers, then there was no proper basis for the refusals of the information requests that had been made to agencies other than the Crown Law Office. Because those requests had been made to other agencies and because the transfers of those requests were not permissible, the Attorney-General had no authority under the Act to make the refusal decisions. Accordingly, the refusals were also impermissible. In terms of s 66(2), if the refusals were not permissible, there was no proper basis upon which the Attorney-General could have taken the refusal decisions and those decisions were also, as a matter of law, an interference with Mr Dotcom’s privacy.
[121] These conclusions do not depend on any notional invalidity of the transfer decisions or on the notional refusal of the requests by those who should have made decisions on the requests if they had not been transferred. Rather, they follow from
71 At [92].
72 HRRT Complaint Judgment, above n 13, at [67]; HC Privacy Judgment, above n 3, at [97].
the logic of the Act and the CA Privacy Judgment. They are also consistent with the terms on which the Privacy Complaint was brought and decided.
[122] As noted above, the Court of Appeal observed that the provisions and procedures in pt 5 were provided for the effective and accountable operation of the Act. We are satisfied that it would not be consistent with that purpose or with the enforcement of rights under the Act or with the terms of Mr Dotcom’s complaint or with the CA Privacy Judgment, for the Tribunal to consider the effect of the transfer decisions on Mr Dotcom without also considering the effect of the refusals on him.
[123] For these reasons, we consider that the Tribunal misdirected itself when it held it was unable to consider damages for the refusal of the requests because, in the Tribunal’s view, the Court of Appeal had only remitted back to the Tribunal consideration of damages relating to the transfers. We are satisfied that the Court of Appeal’s direction that the issue of damages should be remitted to the Tribunal for reconsideration in the light of its judgment included consideration of damages in relation to the refusal of the requests.
Was the Tribunal bound by the High Court’s finding that there was a proper basis to refuse the information privacy requests because they were vexatious?
[124] As noted above, in one part of its judgment, the High Court found that there were grounds for finding the requests vexatious by reference to the nine factors referred to by Crown counsel. Later, the Court drew attention to the fact that the Solicitor-General’s letter declining the requests had made it clear that the only component of the request that made it vexatious was that of urgency.73 The effect of those two findings is not clear.
[125] We are satisfied, however, that, for the purposes of this judgment, what matters is not what the High Court held as justifying the Solicitor-General’s refusal on the grounds of vexatiousness but what the Solicitor-General himself put forward as his reasons for refusal in fulfilment of his obligations under s 44. As the Court of Appeal observed, whether information requests could be refused for different reasons from
73 HC Privacy Judgment, above n 3, at [186].
those proffered at the time was not before it and it took that question no further.74 If the Court of Appeal declined to rule on that question, then we do not consider the Tribunal should have accepted that it was bound by the High Court’s finding that there was a proper basis to refuse the information privacy requests for different reasons from those given at the time the requests were refused.
[126] Whether or not other reasons may be adduced subsequently in support of a decision to decline a request, s 40(1) required that reasons for refusing an information privacy request be given within the 20 working days provided for in that section – unless the timeframe was extended in accordance with s 41.
[127] The reasons given by the Solicitor-General for refusing to provide the information were those stated in his letters of 5 and 31 August 2015. As already noted, the Court of Appeal in its consequential directions held that a refusal to respond to Mr Dotcom's requests on the grounds that they were vexatious would not be supportable on the basis of the reasons given by the Solicitor-General in those letters. We consider, therefore, that a decision to refuse the requests on the grounds of vexatiousness as stated by the Solicitor-General in his letters of 5 and 31 August 2015, which were the only reasons given to Mr Dotcom at the time, would not provide a proper basis for that decision.
[128] For these reasons, we are satisfied that the Tribunal erred when it held that it was bound by the High Court’s finding that there was a proper basis to refuse the information privacy requests because they were vexatious. The basis on which the requests had been refused was set out in the Solicitor-General’s letter of 5 and 31 August 2015 and the Court of Appeal held that refusal on that basis was “not supportable”.
Was the Tribunal correct in holding that no damages for loss of benefit should be awarded?
[129] It follows that we consider that the Tribunal erred in excluding from consideration any loss of benefit that Mr Dotcom might have been expected to obtain
74 CA Privacy Judgment, above n 3, at [108].
from the refusal of the information requests and in limiting its consideration to such loss of benefit that Mr Dotcom might have been expected to obtain from the transfer of the information requests. Accordingly, we now consider whether Mr Dotcom might have expected to obtain a benefit from the information that had been denied to him by the transfer and the refusal of his requests, both of which were an interference with Mr Dotcom’s privacy under s 66(2).
[130] It is well established that any loss of benefit must be causally linked to the refusal of the requests; that is, the interference with privacy. However, that causal link is conditioned by the language of s 88(1)(b), which requires that the loss of benefit was one which Mr Dotcom “might reasonably have been expected to obtain” but for the interference with his privacy.
[131] Accordingly, we agree with Mr Cogan that loss of benefit can include the loss of being able to use the information in the extradition proceedings. We do not consider that this strains the language of s 88(1) or raises the risk of establishing some new category of Baigent damages outside the heads of damages allowed for under the Act. However, we do not accept that all that is required is to establish a causal connection between the breach and the pleaded loss. That would leave it open to a defendant to plead any loss it chose, however fanciful.
[132] We agree that Mr Dotcom does not have to establish that the requested information was likely to have actually affected the outcome of the extradition hearing. We consider that puts the bar too high, having regard to the language of s 88(1)(b). As the High Court held in Proceedings Commissioner v Health Waikato Ltd, for loss of benefit to be established, it does not have to be proven that the withheld information would have made a difference in subsequent litigation.75 It is enough to show that it could have been put to some use, such as in cross-examination or in submissions.76
[133] We consider that, in order to justify an award of damages under s 88(1)(b), Mr Dotcom must show that there was an objective basis for concluding that the
75 Proceedings Commissioner v Health Waikato Ltd, above n 15, at [70].
76 At [71].
requested information would have been relevant to the extradition proceedings and could have been put to some use in those proceedings.
[134] The difficulty with the case advanced by Mr Cogan is that it presumes relevance but provides no basis for the Court to be satisfied on that point. Nor does the case advanced by Mr Cogan accurately reflect the findings of the Supreme Court in the SC Disclosure Judgment or take into account clear findings by the Courts about the information to which Mr Dotcom was entitled in those proceedings and the risks to the fairness of those proceedings if the information was not available to him.
[135] The SC Disclosure Judgment is not authority for the broad propositions asserted by Mr Cogan. The decision concerned an appeal by Mr Dotcom against a decision by the Court of Appeal overturning disclosure orders made by the District Court, and upheld by the High Court, in the extradition proceedings. Four Supreme Court judges dismissed the appeal; the then Chief Justice, Elias CJ, would have allowed it. However, even though Elias CJ would have allowed the appeal, Her Honour made it clear that the rights of disclosure in an extradition proceeding must be considered in their context:
[87] Because the requirements of natural justice in respect of the eligibility hearing are shaped by that hearing, disclosure relevant not to the determination of eligibility but to matters in issue at trial may not be appropriate for pre- hearing disclosure. I also accept, too, that in establishing a prima facie case the requesting country is entitled to identify the evidence it relies on. I see the scope of disclosure as generally limited to that evidence and material which bears on its reliability. ...
[136] The other four judges upheld the Court of Appeal’s decision and dismissed Mr Dotcom’s appeal in terms considerably more constrained than was suggested by Mr Cogan.
[137] McGrath and Blanchard JJ agreed that Mr Dotcom had the right to observance of the principles of natural justice in the Court’s processes under s 27(1) of the New Zealand Bill of Rights Act.77 However, they went on to observe that the content of the
77 SC Disclosure Judgment, above n 54, at [118].
right to natural justice was always contextual and that the question was, what form of procedure was necessary to achieve justice without frustrating the apparent purpose of the legislation – in that context, the Extradition Act.78
[138] McGrath and Blanchard JJ later considered the more particular question of what information or degree of information was required by natural justice in the extradition process.79 After considering relevant Canadian authorities, in which the Canadian Courts had contemplated that an extradition judge might have the power to order disclosure of material where there was “an air of reality” to allegations of a violation of the Canadian Charter of Rights and Freedoms, McGrath and Blanchard JJ stated:
[190] A person the subject of extradition proceedings in New Zealand is not entitled to disclosure of the kind available in domestic criminal proceedings. The entitlement is no more than to receive, in advance of the extradition hearing, the material on which the requesting state will rely before the extradition court.
[139] In his separate judgment, William Young J observed that the appellants were not seeking any particular disclosure and had made no attempt to show that there was any particular aspect in which they would be prejudiced if particular documents were not provided.80 His Honour agreed that s 27 of the New Zealand Bill of Rights Act was applicable and that the appellants were entitled to the observance of the principles of natural justice and that an extradition court must provide a person facing extradition with a fair opportunity to respond to the case presented by the requesting state.81
[140] William Young J noted that a person whose extradition is sought may, under the OIA, seek prehearing disclosure against any New Zealand agencies involved in the extradition process and considered that the extradition court had the right to enforce the right of access to personal information under the OIA.82 However, outside those provisions, His Honour saw no obvious source of power to require disclosure of
78 At [120].
79 At [185].
80 At [203].
81 At [212].
82 At [231].
material that was not to be relied upon by the requesting state and no necessity for such a power to be implied.83
[141] Glazebrook J observed that it was for the requesting state to decide what information it put forward and it took the risk that, if insufficient material was provided, the extradition judge would not be satisfied that a prima facie case existed.84 Her Honour also observed that the appellants had requested general disclosure and asserted that they would be unable to participate in the extradition hearing fully, fairly and properly. However, that had been argued at the level of principle rather than by the appellants identifying the respects in which they would be affected by particular information.85 Her Honour agreed with McGrath and Blanchard JJ that, because of the nature of the case against them, and their possession of information on their own personal affairs, the appellants did not appear to be prejudiced in their conduct of the extradition hearing by any lack of access to further information.86
[142] It is clear from these passages that none of the Supreme Court judges stated fairness principles of the breadth asserted by Mr Cogan. It is also clear that nothing in those passages provides a basis for concluding that Mr Dotcom was prejudiced in any way in the extradition hearing by not receiving the requested information, bearing in mind that the decision on whether Mr Dotcom was eligible for surrender depended on the sufficiency of the evidence put forward by the United States and not on any information Mr Dotcom might obtain from Government agencies. It is also clear from these passages that the analogy that Mr Cogan seeks to draw with the Criminal Disclosure Act is not applicable. The inference that Mr Cogan invites us to draw from the grounds on which some information had been withheld – that it must have been provided by the United States – goes nowhere. If there was such information and it was not used in the extradition proceeding, it is entirely speculative to believe it may have been relevant.
83 At [238].
84 At [261].
85 At [302].
86 At [306].
[143] As discussed in the HC Privacy Judgment,87 shortly after the release of the SC Disclosure Judgment, Mr Dotcom made requests for information under the OIA, applied to vacate the eligibility hearing, which had been set down for July 2014, and sought judicial review of the District Court’s refusal to make further discovery orders.
[144] In the HC Judicial Review Judgment, the High Court dismissed Mr Dotcom’s application for judicial review, which, among other things, challenged a District Court’s decision to dismiss an application for discovery by various Government agencies of all information held by them concerning Mr Dotcom and the others whose extradition had been sought by the United States.88 Simon France J held that the request for all personal information held by the Government agencies was a permissible request but was not one with which the extradition Court should concern itself and that there was no basis at all to consider that the request was relevant to the extradition proceedings.89
[145] As discussed above, Mr Dotcom also raised the information privacy requests before the Court of Appeal to support his application to stay the extradition proceedings. The Court of Appeal took note of the award of damages in the HRRT Complaint Judgment but did not accept that the decision confirmed an abuse of process that would undermine public confidence in the judicial system.90 The Court said:91
The conduct at issue does not come close to establishing the high threshold required ... and to attempt to rely on it for the purposes of staying an extradition is misconceived.”
[146] The Court of Appeal had regard to Mr Dotcom’s allegations about the information privacy requests again when, at the Supreme Court’s direction, it considered whether there were any outstanding issues in relation to the judicial review appeals that had not been addressed as part of the Extradition Act appeals.92 The Court
87 HC Privacy Judgment, above n 3, at [33] – [68],
88 HC Judicial Review Judgment, above n 6. The discovery orders were sought against the Minister of Justice, the Ministry of Justice, the New Zealand Police, the Government Communications Security Bureau, New Zealand Customs and the Department of Corrections
89 At [83].
90 CA Extradition Judgment, above n 23, at [302] – [303].
91 At [303].
92 2nd CA Extradition Judgment, above n 37.
said the merits of those allegations had been addressed in the CA Extradition Judgment and said, “We concluded the conduct relied on did not “come close to” amounting to an abuse of process warranting a stay.”93
[147] Given this history of specific judicial rejection of Mr Dotcom’s allegations of prejudice or of a lack of fairness in relation to the earlier requests for disclosure of personal information and in relation to the lack of a response to the information privacy requests, it is not sufficient for Mr Dotcom simply to assert the possibility of a benefit from having access to the information requested at the extradition proceedings. That is particularly so where, as here, Mr Dotcom has had access to that information, albeit after the event. In order to demonstrate he might reasonably have been expected to obtain a benefit from having such access, Mr Dotcom must show that there was something in the documents that might have had some relevance to and put to some use at the extradition hearing. Beyond making the general and vague assertion that there might be something relevant behind the black lines of redacted information withheld in accordance with s 27 of the Act, Mr Cogan has provided nothing at all.
[148] For these reasons, we agree with the Tribunal that Mr Dotcom has not established that there was any benefit that he might reasonably have been expected to obtain but for the interference with his privacy, whether by the transfer of the information privacy requests or the refusal of the requests.
[149] Accordingly, we consider the Tribunal was correct in finding that no damages should be awarded for loss of benefit.
Was the Tribunal correct in holding that no damages for injury to feelings and loss of dignity should be awarded?
[150] The Tribunal considered that, in light of the High Court’s findings on vexatiousness, it was not open to it to infer any loss of dignity or injury to feelings by reference to the allegation that the requests were vexatious, not genuine and intended to disrupt the extradition hearing. Because we have held that the characterisation of the requests as vexatious cannot stand in light of the Court of Appeal’s further
93 At [70].
directions, that constraint no longer applies. Accordingly, we now consider whether the evidence establishes that the refusal of the requests caused Mr Dotcom loss of dignity or injury to feelings or establishes a basis for inferring loss of dignity or injury to feelings.
[151] In that regard, it is useful to recall what the High Court said about the Tribunal’s decision on damages for loss of dignity and injury to feelings in the HRRT Complaint Judgment. While the High Court’s observations and findings were obiter and, in any event, not binding on this Court, we have considered that analysis.
HC Privacy Judgment analysis of loss of dignity and injury to feelings
[152] The High Court considered that, in the paragraphs in Mr Dotcom’s evidence from which the Tribunal had inferred that Mr Dotcom had suffered loss of dignity and injury to feelings, Mr Dotcom was not directing his evidence to any loss of dignity or injury to feelings in relation to the information privacy requests but was expressing an emotional response to “a whole raft of matters”, many of which occurred some years before the requests.94 The Court considered the Tribunal had fallen into the error of regarding Mr Dotcom’s unhappiness at “a whole range of disparate issues” as being relevant to its assessment of what loss of dignity and injury to feelings he sustained in relation to his requests.95
[153] The High Court considered the Tribunal had compounded that error by using emotive language such as “stigmatised” in relation to the Attorney-General describing the requests as “vexatious”. The Court noted that the Attorney-General had not said Mr Dotcom was vexatious or had been conducting the extradition litigation vexatiously. The Attorney-General had said the request was vexatious for the purposes of s 29(1)(j) of the Act. The Court said that was not something that stigmatised Mr Dotcom and did not have a “real sting”.96
[154] The High Court said there had been little analysis of the specific effect on Mr Dotcom, which was because he had given “no evidence at all” as to its effect on
94 HC Privacy Judgment, above n 3, at [222].
95 At [223].
96 At [224] – [ 226].
him. The Court observed that Mr Dotcom had not claimed that the effect was stigmatising as the Tribunal had concluded.97 The Court then stated:
[231] Standing back and looking at the evidence as a whole, there is no evidence that Mr Dotcom was emotionally fragile, or that his feelings were affected in any particular way as a result of the refusal of this request. The context indicates that this was just one request in a long series of requests stretching over several years where this was the 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 information tactically and, with the assistance of skilled professional advisers, had managed to delay the extradition hearing some three and a half years. In those circumstances, it would be difficult to infer that a person of ordinary fortitude would have suffered significant loss of dignity or injury to feelings, let alone a person of the obvious fortitude of Mr Dotcom.
[155] The Court considered that the Tribunal had lost sight of the fact that damages under s 88 were designed for consequences that have either been established by evidence or which, in limited cases, can be inferred, and that punishment of the defendant had no part in such damages.98
[156] The High Court considered that the case seemed to fall into the same category as Winter v Jans where, while there 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 of the 52 recipients, the circumstances was such that it could not be inferred that the injury to feelings was significant. It said that given that the case did not meet the threshold for implying significant consequences, the absence of any direct evidence relating to Mr Dotcom having suffered loss of dignity or injury to feelings meant there was no basis for an award under s 88(1)(c).99
[157] It therefore found that the figure for compensation for loss of dignity and injury to feelings was also “wholly erroneous” and said it would also have remitted this matter to the Tribunal for consideration.100
97 At [230].
98 At [232].
99 At [235] – [236]. Winter v Jans, above n 15.
100 At [237] – [238].
This Court’s analysis of loss of dignity and injury to feelings
[158] We agree with some aspects of the High Court’s analysis in the HC Privacy Judgment. However, we depart from that analysis in a number of important respects.
[159] First, we agree with the High Court that the causal connection between the interference with privacy and the claimed loss of dignity or injury to feelings must be established from the evidence, either directly or by inference. We do not agree, however, that inferences can be drawn only in a limited number of cases or that the Court must be satisfied that the loss of dignity or injury to feelings must be significant before damages can be awarded. Each case must turn on its own circumstances. Section 88(1)(c) provides that damages may be awarded for humiliation, loss of dignity and injury to the feelings of the aggrieved individual. It does not establish any threshold of significance.
[160] Next, we agree with the High Court that loss of dignity or injury to feelings should not be inferred from the “stigmatisation” of the allegation of “vexatiousness”. Section 29(1) of the Act specifically provides that an information privacy request may be refused on the grounds it is vexatious. We do not accept that reliance on that statutory ground of refusal automatically gives rise to stigmatisation or constitutes a basis for inferring stigmatisation and, therefore, a loss of dignity.
[161] Related to the above point, we do not agree with the Tribunal's view in the HRRT Complaint Judgment that the Solicitor-General’s statements in his letter of 31 August 2015 to the Privacy Commissioner that Mr Dotcom’s requests were not genuine and had been intended to disrupt the extradition hearing were unfounded.
[162] First, given the history of applications by Mr Dotcom for the evident purpose of challenging and delaying the extradition process, we see nothing unfounded or inappropriate in the Solicitor-General expressing those views in his letter of 31 August 2015 to the Privacy Commissioner. Our reasons are:
(a) given the lengthy history of the litigation, including various applications to stay the extradition proceedings, it was obvious that Mr Dotcom had been trying to delay the extradition proceedings;
(b) given that the information requests were made within two months of the extradition proceedings being set down for hearing and two months before that hearing was to begin, it was not unreasonable for the Solicitor-General to conclude the requests were being made to delay that hearing;
(c) given that Mr Dotcom had been told by the Supreme Court in the SC Disclosure Judgment that the extradition application would be decided on the basis of the evidence adduced by the United States and, as a consequence, not on the basis of information held by the New Zealand Government, and given that Simon France J had told Mr Dotcom that there was no basis at all to consider that the request in his later discovery application was relevant to the extradition proceedings, it was not unreasonable for the Solicitor-General to conclude the requests were not genuine Privacy Act requests;
(d) given that Mr Dotcom’s counsel had referred to pending litigation when naming the requests and that the use of tactics, including fishing expeditions, are not uncommon in litigation, we do not consider it unreasonable for the Solicitor-General to have seen the requests in that light.
[163] Secondly, the Solicitor-General’s views were stated to the Privacy Commissioner and not to the world at large. Moreover, the Privacy Commissioner himself said, in his letter of June 2016 to Mr Dotcom’s counsel, that the overall volume and extent of the information privacy requests indicated that the requests were designed to frustrate or vex the respondents.
[164] For these reasons, we agree with the High Court that the Tribunal was in error in inferring loss of dignity and injury to feelings because the information requests had been refused on the grounds of vexatiousness and because of the Solicitor-General’s characterisation of the information requests in his letter to the Privacy Commissioner. The fact that the Court of Appeal has since held that the refusal of the requests on the grounds that they were vexatious would not be supportable on the basis of the reasons
given by the Solicitor-General does not alter our assessment that refusal on the statutory ground of vexatiousness was not, in Mr Dotcom’s circumstances, a sufficient basis to infer loss of dignity and injury to feelings.
[165] We do not agree, however, with the conclusion of the High Court that Mr Dotcom’s evidence at the Tribunal hearing in 2017 did not address the refusal of the information privacy requests. In that evidence, Mr Dotcom referred directly to the information privacy requests and the fact they had been refused on the grounds of vexatiousness. While he also referred to other matters that were not relevant to the requests, he said he wanted the documents to prove he had done nothing wrong and wanted the Crown to provide him with the truth.
[166] If, by these references to proving he had done nothing wrong and wanting the truth, Mr Dotcom was meaning that the information might help him in the extradition proceeding, he was plainly in error and was paying no regard to the decisions of the Supreme Court and the High Court. However, the fact Mr Dotcom was wrong and was not having regard to the Courts’ decisions does not mean that he did not refer to or give reasons for his information privacy requests in the evidence he gave in 2017.
[167] The question, therefore, is whether that evidence is sufficient to infer that Mr Dotcom suffered some loss of dignity or injury to feelings simply from the refusal of the requests. We are satisfied that it does not. We consider the evidence is sufficient to draw the inference that Mr Dotcom disagreed with the refusal of the requests. We do not consider it is sufficient to draw inferences of any greater impact.
[168] As the Tribunal said in its comments on the High Court’s observations on damages in the HC Privacy Judgment, the jurisdiction to award damages under s 88(1) was premised on the loss of dignity or injury to feelings experienced by the aggrieved individual.101 That is, in considering whether damages should be awarded, we must consider the effect of the refusals on Mr Dotcom and not some hypothetical individual. That is confirmed by the High Court’s decision in Chief Executive of the Ministry of Social Development v Holmes, where the Court reduced the damages that had been awarded by the Tribunal because the Tribunal had based its award on “an objective
101 HRRT Damages Judgment, above n 2, at [44].
approach” as opposed to looking at the particular context of the case and the capabilities and experience of the complainant.102
[169] In O’Hagan v Police, the Tribunal, with reference to the High Court’s findings in Holmes, made the following observation:103
Where an individual has been in an antagonistic relationship with an agency, he or she may experience ongoing feelings of anger, impotence and insignificance that are in no way caused by that agency’s failure to provide information in accordance with the Privacy Act. Where this is the case those feelings are not compensable by any award of damages for a breach.
[170] When Mr Dotcom made the information privacy requests, he had been involved in numerous and extensive proceedings relating to the United States’ application for his extradition and the steps the New Zealand authorities had taken in response to that application. While Mr Dotcom had some success in those proceedings, for the most part, his various challenges to the actions of the New Zealand authorities did not succeed. He had considerable experience with setbacks. In addition, he had been told by two Senior Courts that the information held by New Zealand Government agencies would have no relevance to the extradition proceedings, which would be determined on the basis of the evidence adduced by the Government of the United States. Mr Dotcom chose to make the information requests regardless, as was his right. However, given the history leading up to those requests, it strains credulity to accept that Mr Dotcom would have suffered any actual loss of dignity or injury to feelings when the requests were refused.
[171] Having regard to the discussion of the meaning of human dignity and injury to feelings in Hammond v Credit Union Baywide,104 we do not consider there is evidence to conclude, on the balance of probabilities, that Mr Dotcom’s self-respect or self- worth or psychological integrity or sense of empowerment were affected by the refusal of the requests. While there is evidence that he considered he had been treated unfairly, that alleged unfairness did not relate to the refusal of the requests but to the other things that had happened to him. For the same reasons, we are satisfied, on the
102 Chief Executive of the Ministry of Social Development v Holmes [2013] NZHC 672 at [161].
103 O’Hagan v Police [2020] NZHRRT 22 at [67].
104 Hammond v Credit Union Baywide, above n 20, at [170].
balance of probabilities, that the refusal of the requests would not have caused Mr Dotcom any real fear, grief, sense of loss, anxiety, anger, despair or alarm.
[172] We do not consider there is any parallel with Mr Dotcom’s circumstances and those where complainants have been awarded damages for the failure to provide information in response to an information privacy request:
(a) Unlike the complainant in Vivash v Accident Compensation Corporation, there is no evidence to indicate the refusal caused Mr Dotcom anguish, dismay, unhappiness, stress or depression;105
(b) Unlike the complainant in Patel v Dean, there is no evidence to indicate the refusal caused Mr Dotcom to feel helpless and hopeless or that it affected his health;106
[173] For these reasons, we agree with the Tribunal, albeit for different reasons, that Mr Dotcom has not established that he suffered any loss of dignity or injury to feelings simply because of the transfer and refusal of the information privacy requests. Accordingly, we agree that Mr Dotcom is not entitled to damages under s 88(1)(c) of the Act.
Concluding observations
[174] The above conclusions do not mean that the Government agencies were free to disregard the requirements of the Act or that Mr Dotcom was without effective remedies for their non-compliance with the Act. However, damages are only one of the remedies that could have been ordered under s 85. The purpose of damages is to compensate for actual humiliation, loss of dignity or injury to feelings. It is not to punish.
Result
[175] Mr Dotcom’s appeal is dismissed.
105 Vivash v Accident Compensation Corporation [2020] NZHRRT 16 at [93] – [102].
106 Patel v Dean [2020] NZHRRT 37 at [60].
Costs
[176] As the Attorney-General has been the substantially successful party, he is entitled to 2B costs.
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