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Christison v Chief Executive of Oranga Tamariki [2023] NZHC 309 (27 February 2023)

Last Updated: 6 April 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(application for summary judgment)

This judgment was delivered by me on 27 February 2023 Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date...................................

CHRISTISON v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2023] NZHC 309 [27 February 2023]

[1] In June 2019, Ms Christison requested her personal information from Oranga Tamariki (OT) pursuant to the Privacy Act 2020 and the Official Information Act 1982.

[2] OT accepts it did not meet its obligations under the Privacy Act 2020 in how it dealt with Ms Christison’s request for her personal information.

[3] Ms Christison raised OT’s actions with the Privacy Commissioner who determined, and these findings are accepted by OT, that OT did not comply with privacy principle 6 under the Privacy Act 2020. Pursuant to privacy principle 6, OT had to:

(a) make a decision within 20 working days whether the request is to be granted (section 40 – unless OT extended time to respond under s 41);

(b) make the information available without undue delay (s 66(4)); and

(c) if it was going to refuse, the given reasons for the refusal (s 44).

[4] As OT did not comply with these obligations under s 66 of the Act, each failure was deemed to be a refusal to supply information and was therefore an interference with Ms Christison’s privacy.

[5] The Privacy Commissioner determined that Ms Christison’s complaint had substance and should be referred to the Director of Human Rights Proceedings (the Director). The Director recorded in a letter to OT dated 26 August 2021 that OT had admitted an interference with Ms Christison’s privacy, meaning the only material issued for resolution was remedy. However, due to Ms Christison and the Director disagreeing over what a reasonable level of compensation would be, the Director declined to accept the referral, leaving Ms Christison to pursue her own proceedings. The Director, in a subsequent letter, concluded that he was disappointed that he was unable to secure a settlement for Ms Christison “... as clearly OT’s actions and omissions were unlawful.”

Ms Christison issues proceedings in the High Court

[6] Ms Christison did not seek to pursue relief under pt 5 of the Privacy Act by seeking damages before the Human Rights Review Tribunal (the Tribunal). During the hearing, Ms Christison advised that she had engaged solicitors to commence a claim before the Tribunal but that they let the six month time limit for the issuing of proceedings in the Tribunal lapse.¹ I will return to the issue of limitation in the Tribunal below.

[7] In this proceeding, Ms Christison seeks summary judgment against OT in relation to a claim described as involving the “tort of privacy”.

What the breaches by OT of the Privacy Act involved

[8] In her submissions, Ms Christison referred to OT concealing crucial information from her and intentionally withholding information she requested.

[9] These claims reflect the conclusions of the Commissioner that OT did not make a decision on Ms Christison’s request within 20 working days, OT unduly delayed supplying Ms Christison with information, and that OT did not have a proper basis for its decision to release some information to Ms Christison.

[10] In a nutshell, Ms Christison’s complaint is of delay and/or refusal to provide her with her personal information.

The tort of privacy

[11] In relation to the tort of invasion of privacy, the Court of Appeal recently confirmed what a plaintiff has to establish to make out the tort. The Court said in Peters v Attorney-General:²

[46] As the Judge noted, this Court confirmed the existence of a tort of invasion of privacy under New Zealand law in Hosking v Runting.³ In that

¹ Privacy Act 2020, 98(1)(h).

² Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 at [46].

³ Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [117].

case, Gault P and Blanchard J (two of the three Judges in the majority) identified two elements that a plaintiff must make out:⁴

(a) the existence of facts in respect of which there is a reasonable expectation of privacy; and

(b) publicity given to those private facts that would be considered highly offensive to an objective reasonable person.

[12] The tort is concerned with publicity of information.

[13] As Ms Christison’s claim is presently framed, she does not rely on publication by OT of her personal information to third parties. I confirmed with Ms Christison at the commencement of the hearing that the facts upon which her case was based are those that I have referred to above namely, delay by OT in providing information and OT withholding information without a proper basis.

[14] In Ms Christison’s submissions to the Court, she referred to OT providing information to Lawyer for the Child in respect of Family Court proceedings concerning Ms Christison’s children. The provision of this information was not the basis of Ms Christison’s claim, but in any event, OT providing relevant information to Lawyer for the Child is likely to be within how OT would be permitted to use the information. A legitimate disclosure of information will not be a tort given OT, in all likelihood, will have a statutory duty to disclose information it holds, depending on the circumstances.

[15] Ms Christison’s claim is based on OT’s delays and refusal to provide information, not of it providing information to third parties when it should not have done so. No provision of information to third parties arises out of the material from the Privacy Commissioner and the Director.

[16] Information must have been published before the tort of breach of privacy can be engaged. The fact that there was no publication here is enough for me to conclude that Ms Christison has not established an unarguable case in relation to the tort of privacy, as it has been defined by the Court of Appeal whose decision is binding on me.

⁴ Hosking v Runing, above n 3 at [117].

A new tort: breach of Privacy Entitlements

[17] Ms Christison however, submitted that she was not pursuing the tort of invasion of privacy but instead that she was asserting the “tort of privacy”. In substance, Ms Christison’s claim was that the Court should recognise a tort of breach of privacy entitlements. That tort would apply where a right to obtain information under the Privacy Act was breached, as opposed to the tort of invasion of privacy which, as I have said, concerns publication.

[18] The difficulty for Ms Christison in a summary judgment context is that the tort she advocates for is entirely novel.

[19] The tort Ms Christison advocates for amounts to making a breach of privacy principles actionable as a tort. Ms Christison did not say whether liability under her proposed tort should be strict or whether it would be dependent on negligence but, from her submissions as a whole, I apprehend she intended the tort to be actionable without negligence, that is, liability would be strict.

[20] Ms Jackson, counsel for OT, referred me to the Peters decision where the Court referred to the submissions of Mr Henry, counsel for Mr Peters. The Court said:⁵

[162] First, the underlying premise of Mr Henry’s submission is that liability in tort should be imposed whenever a person acts in a manner that is inconsistent with Principle 11 in the Privacy Act. But the courts have consistently rejected the creation of a tort that is co-extensive with liability under the Privacy Act. Such a tort would be difficult to reconcile with s 11(2) of the Privacy Act.⁶ It would cut across the specific complaints procedure under that Act, and the tailored institutional arrangements for bringing a claim for breach of those Principles.

[21] Ms Jackson noted in respect of the last sentence from the above paragraph, the tort would cut across the specific complaints procedure in the Privacy Act, that in respect of the breach of privacy principle 6, s 31(2) provides:

(a) The entitlements conferred on an individual by IPP 6(1), to the extent that those entitlements relate to personal information held by a public sector agency, are legal rights and are enforceable in a court of law.

⁵ Peters v Attorney-General, above n 2, at [162].

⁶ Privacy Act 2020, s 31.

[22] However, Ms Jackson submitted that the exact scope of the remedies available in a “Court of law” in respect of a breach of privacy principle 6 was uncertain.

[23] As a matter of principle, it is certainly far from clear that the Court needs to recognise a tort that creates strict liability for a breach of privacy principle 6 when, if a breach occurs, the aggrieved person has remedies available to them under pt 5 of the Privacy Act. Where the Privacy Act provides a comprehensive regime for redress, including civil proceedings for damages before the Human Rights Tribunal with appeals to the High Court, that structure is a strong factor against the Court superimposing tort liability for breach of privacy principle 6. Rhetorically, why would the process in pt 5 of the Privacy Act exist if an aggrieved person could bypass that process and seek relief in the Court as in tort.

[24] Ms Christison confirmed to me at the commencement of the hearing that she did not wish to pursue a claim in this Court for breach of privacy principle 6 which may arguably be open to her pursuant to s 31(2) of the Privacy Act. Ms Jackson submitted there may well be limitation issues in that regard which would bring into play the correct interpretation of s 98 of the Act along with the nature of the relief that the Court can grant under s 31(2). I need not consider those issues here as Ms Christison was quite clear that she did not wish to pursue a claim based on breach of privacy principle 6, instead wishing to pursue her claim in tort.

[25] I am satisfied that Ms Christison’s claim in tort is unsuitable for the summary judgment process. The reason being it cannot be suggested there is no real question to be tried in respect of the cause of action Ms Christison seeks to advance.⁷ The creation of the new tort as sought by Ms Christison, runs directly into the fact “... the courts have consistently rejected the creation of a tort that is co-extensive with liability under the Privacy Act” which is what Ms Christison is asking the Court to do.⁸ That s 66 of the Act deems OT’s breaches of the Act to be an interference with Ms Christison’s privacy does not mean such deemed interference can found a new tort.

7. Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307, (2008) 19 PRNZ 162 at [26].

⁸ Peters v Attorney-General, above n 2, at [162].

Damages, causation and remoteness

[26] Ms Christison’s claim sought damages of $1.5m but during the hearing she said she would leave quantum to the Court.

[27] It was very clear to me that many events in Ms Christison’s life, including the Family Court proceedings I have briefly referred to above, have caused her great stress and duress. She referred to the failure by OT to provide information to her in this case “leaking over” to other situations, that is, it had flow-on effects that have caused or added to her hardship.

[28] The types of damages that are recoverable in tort are generally only those that are a reasonably foreseeable consequence of the wrong. There comes a point when the flow-on effects of a wrong become too remote from the wrong to be compensatable. The complexities of the serious issues Ms Christison has faced, and continues to have to deal with, are such that a calculation of damages, assuming the tort she asserts existed, would not be a matter for summary judgment.

[29] I am conscious that this outcome will be very disappointing for Ms Christison. As I have said, the Court appreciates that she has been through a lot and more than once she said she wanted to have this matter dealt with.

[30] Ms Jackson submitted the proper venue for Ms Christison to obtain a remedy for the wrongs OT accepts, is the Human Rights Review Tribunal. Ms Jackson responsibly submitted that OT would not oppose an application under s 98(8) of the Privacy Act that time for bringing such a claim be extended. If, as Ms Christison advises, she intended early on in the piece to go to the Tribunal but lost that opportunity because she was let down by her then solicitors, I would expect an application for extension of time on those grounds may well be favourably considered, particularly in the absence of opposition.

[31] In blunt terms, Ms Christison’s claim for damages of $1.5m is seriously inflated. Ms Christison’s interactions with OT have been traumatic for her, irrespective of the privacy breach. Compensation for something not directly relating to the privacy principle 6 breach will not be available either in this Court or in the

Tribunal. Trying to identify the effects of OT’s breach isolated from the consequences of the many difficult events that Ms Christison has had to deal with, would be a difficult exercise.

[32] Ms Christison also raised with me that she was wanting directions that OT review its information systems and improve its training in respect of Privacy Act requests. That is not something that would be available as relief for breach of a tort. Engagement with OT through the Tribunal process may provide the opportunity for OT to address some of these concerns.

Decision

[33] It follows from what I have said that Ms Christison’s application for summary judgment is declined.

Costs

[34] Costs are reserved.

Observation

[35] Continuing these proceedings poses a very real risk that Ms Christison may become liable to a costs award should her claim fail. Her claim, as I have described it, faces major, if not insurmountable, difficulties. OT wants to resolve its breach of Ms Christison’s privacy rights and Ms Christison wants to get this issue out of her life. Reconsideration of bringing this claim in the Tribunal would see the claim resolved far quicker than could occur in this Court, given the issue facing the claim as it is presently framed.

Associate Judge Lester

Solicitors:

Rachel Dewar Law, Wellington (for Respondent)

Copy to:

The applicant – Ms M Christison