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HERMAN JANS v MARK GREVIS WINTER [2003] NZHRRT 21 (27 June 2003)

Last Updated: 15 August 2005

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Mr G J Cook Member
Ms P McDonald Member

HEARING 1 October 2002 (Hamilton).

DECISION: 27 June 2003

APPEARANCES

Mr C Grenfell for plaintiffs
Mr J W True for defendant
Ms M Donovan for Privacy Commissioner

DECISION

Introduction

1. In 1997 the ANZ bank exercised its right as mortgagee to sell a property known as Puketawai Lodge that had been owned by the plaintiffs. The bank instructed Bayleys Waikato (Regional Realties) Limited (‘Bayleys’) to advertise the property and to attend to the mortgagee sale. The defendant Mr Winter was and is the managing director of Bayleys.

2. The Jans’ say that, despite a request made in November 2000, Mr Winter has failed to provide them with access to personal information about them which they believe is (or at least was) on the files held by Bayleys in respect of the mortgagee sale. Their complaint was investigated by the Privacy Commissioner as involving a possible breach of Principle 6 of the Privacy Act 1993 (‘the Act’). In September 2001 the Privacy Commissioner notified the Jan’s that he had formed the opinion that the matter ought not to be proceeded with by him. In terms of sections 82 and 83 of the Act we are satisfied that we have jurisdiction to deal with the matter.
3. The case is complicated somewhat because the file which is at issue was lost after these proceedings were commenced.
4. Mr Winter has admitted that his response to the request for information in November 2000 did not comply with Principle 6 of the Act. He has, however, also said that he sent the file (or, more accurately, some 750 pages that were said to have been copied from it) to the Jans’ at some point after the Privacy Commissioner began investigating the matter. The Jans’ say that nothing like that has ever been received. This gives rise to a factual issue the outcome of which depends on an assessment of credibility. There is also a predominantly legal issue which has to do with the correct interpretation of section 66 of the Act.
5. We begin by setting out the factual background in more detail.

Factual Background

6. As we have said, Puketawai Lodge was sold by mortgagee sale in 1997. The Jans’ have a number of concerns about the way in which the sale was carried out. They believe that the property was sold at a significant undervalue. Mr Jans told us that he has had the possibility of court proceedings for recovery of their losses in mind, and that was why he embarked on the process of obtaining information about the sale.
7. However it was not until 29 November 2000 that Mr Jans wrote to Mr Winter to ask for a copy of the file relating to the sale of their property. Mr Winter replied on 1 December 2000 saying that he was unable to provide the file without the authority of his principal, the ANZ bank. However he went on to say that if the bank’s authority were to be obtained then the information would be made available. Neither the Jans’ or Mr Winter appear to have sought permission from the bank for release of the file. Instead Mr Jans wrote to Mr Winter on 4 December 2000 asserting that they (the Jans’) were entitled to have information under the provisions of the Act.
8. Mr Winter replied on 6 December 2000 in the following terms:

"The Privacy Act 1993 applies to official information only and not to private files.
"I have told you our position on this matter and I am not prepared to invest any further time in what was an uneconomic project for us.
"Accordingly this is my last correspondence and any future communication from you will not be replied to. As previously advised we had no contractual relationship with you – only with the ANZ to whom you should address future queries."

9. Mr Winter informed us in evidence that despite what he had written he did not take legal advice at the time. He clearly did not know (nor did he seem to care) whether his assertion that the Act applies only to ‘official information’ was correct. Mr Winter’s assertion about official information and private files is of course quite wrong. We consider that this letter was a deliberate attempt by Mr Winter to discourage Mr Jans from pressing the matter.
10. But Mr Jans was not put off. He referred the matter to the Privacy Commissioner. The following summary of what then transpired represents our assessment of what took place, as best we have been able to glean it from the evidence and the documents that were produced.
11. In December 2000 the office of the Privacy Commissioner made contact with Mr Winter about the matter. That gave rise to a letter from Mr Winter to the Privacy Commissioner dated 8 January 2001 in which Mr Winter said that Bayleys only held publicly available information on Mr Jans. There was also a second letter from Mr Winter to the Privacy Commissioner dated 19 January 2001. It was an intemperate letter which included the following:

"Would you and Jans now stop pestering me with puerile, bureaucratic, time wasting nonsense. I have told you that we hold no personal information on Jans, have absolutely no desire to and will this afternoon destroy all the old, outdated, public records of his past i.e. phone number address and copy of his title which is not personal information and is not surely covered by the Act"

There is nothing in the evidence or in the content of this letter to suggest that Mr Winter had taken any more legal advice before writing it than he had before he had written to the Jans’ on 6 December 2000.
12. On 12 February 2001 Mr Winter wrote to the Privacy Commissioner in response to a letter he had received. Mr Winter described the letter from the Privacy Commissioner as ‘threatening, bullying and time wasting’. He did however go on to answer a number of questions that had been put to him in the Privacy Commissioner’s letter. Mr Winter said that Bayleys did not hold any ‘current’ information on Mr Jans but went on to add:

"If to make this bureaucratic nonsense stop you want our file I will send the whole jolly thing to you. Please advise and please confirm you will pay courier charges."

13. There were some reporting letters written by the Privacy Commissioner to the Jans’ in January and February 2001 but the exact terms of these do not matter for present purposes. On 9 March 2001 Mr Winter wrote to the Privacy Commissioner to say:

"On reflection I cannot send you the whole file because it contains business correspondence between ourselves and our client the ANZ bank.
Accordingly I have been through the file and confirmed there is no personal information relating to Jans.
I have also copied anything relating to Jans and attach it hereto.
Would you now please go away – a long way!"

14. The terms of the letter, its position in the sequence of events, the fact that there was no repeat of the request for payment of courier charges and other evidence that was given at the hearing suggest that, whatever was included, it did not amount to anything like 750 pages or so of photocopying. On the other hand there does not seem to be any other record of Mr Winter having sent the Privacy Commissioner any documents at all. The upshot is that we do not know what documents were sent with this letter.
15. In any event, having seen whatever documents were enclosed the Privacy Commissioner notified Mr Winter on 29 March 2001 that he (Mr Winter) did hold personal information about Mr Jans (this being recorded in the Privacy Commissioner’s provisional opinion dated 24 July 2001).
16. In or about May 2001 the matter was assigned to an investigator at the Privacy Commission. In July 2001 the Privacy Commissioner notified Mr Winter of his provisional opinion, which was that a breach of Principle 6 was established.
17. There was a telephone discussion between the investigator at the Privacy Commissioner’s office and a Ms Coyne on 25 July 2001 (Ms Coyne was a marketing and sales consultant with Bayleys who had been asked by Mr Winter to review the files). The call is referred to in a letter dated 1 August 2001 from the Privacy Commissioner to Ms Coyne. The letter records the return to Bayleys of information relating to Mr Jans, and says that in the absence of any grounds for withholding the information it should be sent by Bayleys directly to Mr Jans.
18. The question arises as to why the material was returned to Bayleys instead of being sent by the Privacy Commissioner on to the Jans’ (which is what Mr Winter said he expected would happen). Ms Donovan explained that in a case such as this staff at the Privacy Commissioner’s office would never as a matter of practice forward such information onto the complainant because it is not for the Privacy Commissioner to judge (at least at that point) whether there are any available grounds for withholding any or all of the information. Instead the Privacy Commissioner obtained the documents for the limited purpose of evaluating whether they contained personal information about the complainant. Having done so the materials would have been sent back to the respondent as a matter of routine practice, so that the respondent (Mr Winter) could then fulfil the statutory obligation of providing the complainant (in this case, the Jans’) with access to any personal information.
19. Whatever the reasons for the practice may be, we are satisfied that when the materials were returned to Mr Winter by the Privacy Commissioner he (Mr Winter) knew that it was up to him to send them on to the Jans; the Privacy Commissioner’s letter is quite clear about that. Furthermore on 27 August 2001 the Privacy Commissioner wrote to Bayleys again. The investigator referred to the 25 July 2001 conversation with Ms Coyne and repeated that the information ought to be made available to Mr Jans directly. The investigator went to say that if the information were to be released then the Privacy Commissioner would be able to close his file. (We add that when this claim in the Tribunal was later commenced by the Jans’ the only relief they sought was a direction requiring Mr Winter to hand a copy of the file over to them. We make the point because it seems to us that even at that stage in the sequence of events Mr Winter might have avoided all that has transpired since by simply sending the material off to the Jans’).
20. In September 2001 the Privacy Commissioner reported that he had come to a final opinion that the refusal to make personal information available was a breach of Principle 6, and that he would not proceed with the matter - thus leaving the Jans’ free to do so.
21. The Jans’ commenced this claim on 20 September 2001. As we have noted, in the original notice of intention to bring proceedings they did not claim damages or any relief other than a direction that a copy of the Bayleys file be provided to them.
22. We have already indicated that we do not know what material had been sent to the Privacy Commissioner in March 2001 and then returned by him to Mr Winter in August 2001. In his evidence in chief Mr Winter told us that in October 2001:

"... I personally undertook a comprehensive review of the files relating to Puketawai Lodge and that any document or correspondence which referred to Mr and Mrs Jans was copied and forwarded to them. The net effect was that Bayley’s entire file (bar a handful of correspondence relating to the marketing of Puketawai Lodge directly between Bayleys and ANZ) was forwarded to Mr and Mrs Jans. ..."

23. Mr Winter also said that he personally spent about 4 to 6 hours sifting through files and archives and that the documents that were disclosed amounted to about 750 sheets of paper, all of which were copied and posted to Mr and Mrs Jans at Bayley’s expense.
24. Ms Coyne said that she had personally undertaken a review of the Bayley’s file " ... before it was disclosed to Mr and and Mrs Jans in October 2001". She too said that with all but a few exceptions the materials had been sent off to the Jans’.
25. If the evidence of both Mr Winter and Ms Coyne is accepted it is not at all clear why they both spent so much time on the matter, apparently independently (there was no suggestion that they did this together) but both in the same month. It is also odd that neither was able to say with any precision when they carried out their separate reviews. Furthermore there was no contemporaneous document to record that anything had been sent to the Jans’ by Bayleys in October 2001. Given all of the attention and time that had been demanded of Mr Winter and Ms Coyne to deal with the matter, and given the fact that by October 2001 the matter was the subject of a claim in the Tribunal, we consider that it is significant that there is no covering letter, postal receipt or other record to support the assertion that a very substantial bundle had been sent off to the Jans’, whether in October 2001 or at any other time.
26. When Ms Coyne prepared the statement of reply that was signed and then filed in the Tribunal by Mr Winter on 29 October 2001 she attached about 33 pages from the relevant files to the reply. She also wrote a one-page letter that was attached to the reply. In her letter she said that Bayleys had tried to hand the file over numerous times via the Privacy Commissioner, who had informed Bayleys that he could not do so because of the law. She explained the reluctance that Bayleys felt about dealing with Mr Jans. But she went on to say:

"To expedite matters, I have now handed over the file and request that our reasonable charges be paid by the Jans’, which include postage, photocopying and time in locating the files from our archives. We estimate that a reasonable cost for this to be $160.00
We trust as we have now handed over the file it will not proceed to a hearing but if it does we do not wish to be in the same room as the Jans’ for the above-stated reasons [an allegation of threatening behaviour by Mr Jans had been made earlier in the letter]"

27. The question of why Ms Coyne decided to attach 33 pages to the reply if at or about the same time the entire file had been handed over to the Jans was the subject of examination at the hearing. She was also asked why she chose the 33 or so pages which she copied to attach to the reply. It was her evidence that she was aware at that time that Mr Winter had already arranged for the 750 pages to be sent to the Jans’, although in other parts of her evidence she suggested that it was she who had sent the material. When pressed as to why she chose just those 33 pages to be sent with the reply to the Tribunal, she was unable to give a satisfactory explanation. In her evidence in chief she referred to a request having been made for payment of the costs of locating, copying and posting the file but on further inquiry it was clear that she had no personal knowledge nor any sound recollection of the events which she had deposed to.
28. For his part Mr Jans denied ever receiving anything like 750 pages from Mr Winter, Bayleys or anyone else. He said that the only papers that he has ever received from Mr Winter were the 33 or so pages that were attached to the statement of reply – and that he only got those when he received the statement of reply.
29. The evidence given both by Mr Winter and Ms Coyne as to which of them did what in respect of the 750 pages - and when and how the file was said to have been sent to the Jans - was contradictory, unclear and altogether unconvincing. We find that, contrary to what Mr Winter and Ms Coyne said in evidence, the file was never sent to the Jans by Mr Winter, Ms Coyne or anyone else at Bayleys.
30. It is clear that the original file was still in Mr Winter’s hands in late October 2001. That situation changed in December 2001 when Bayleys moved its offices. We were told by Mr Winter that the file was lost in the move.
31. Mr Winter was examined in some detail as to how it was that the file came to be lost. It was his evidence that he last saw it some days before the move from the old premises to new; that it had been on his desk and that it simply did not turn up when the new offices were opened. He explained that at the time of the move Bayleys had taken the opportunity to discard a very great volume of old papers, and that those who were responsible for removing papers for disposal were in and out of the office at the same time as the people who were responsible for moving the furniture and files to the new offices.
32. Mr Winter said that he does not know what happened to the file. In his evidence in chief he said that when he became aware that it was misplaced he asked his staff to undertake a thorough search for it. When questioned, however, he said that he personally had turned the office upside-down to look for it. Given the central significance of the file to this case, it seems to us surprising that if Mr Winter had indeed looked for it personally then he did not say so in his evidence in chief. This was one of a number of occasions in which the evidence given under cross-examination and examination by the Tribunal differed in material respects from what he had said in his evidence in chief.
33. Mr Jans was and is understandably sceptical about the alleged loss of the file. After all, Mr Winter told us the file had been on his desk in the old premises for the very reason that he needed to have it handy because he had been corresponding with the Privacy Commissioner about it. By December 2001 Mr Jans had filed his claim in the Tribunal, and Mr Winter had filed a reply. Mr Winter could not possibly have misunderstood the importance of the file to the issues that were raised by the proceedings.
34. The case came before the then Chairperson of the Tribunal by way of telephone conferences on 1 February and again on 25 February 2002. Her minute of the 25 February conference refers to inquiries that were being made by Mr Winter of the ANZ bank at the time and then records:

" ... Mr Winter now advises that he is unable to find any file at his office and in fact he had known of the mislaying of the file since Christmas/ New Year but did not think it necessary to tell the Tribunal."

35. At a subsequent telephone conference on 28 May 2002 Mr Winter made it clear that he did not consider that there was anything about the matter to warrant any hearing in the Tribunal. It is difficult to escape an impression that Mr Winter thought that, once the file had been lost, there was no basis on which the matter could or should be heard by the Tribunal.
36. The loss of the file is of course of great significance. As we have noted, all that the Jans’ asked for in their claim as it was initially filed was for the file to be handed over to them. But at the hearing Mr Jans accepted what was in our view inescapable, namely that if the file has indeed been lost then there is not much point in the Tribunal making an order to hand it (or any parts of it) over to them.
37. All that Mr Grenfell (who appeared for the Jans’) could do at the hearing was to ask for a declaration that Mr Winter’s conduct was an interference with his clients’ privacy, for an award of damages and for costs. Although there had been no amendment to the claim to seek these remedies in advance of the hearing, we are satisfied that there was no prejudice to Mr Winter in the way in which the case unfolded. In part this was because of his own exchange with the Tribunal before the hearing. In a letter to the Tribunal in July 2002 Mr Winter had asked what the maximum ‘penalty’ that he might face could be. He made it clear that if the maximum were $500 then he would consider just letting the case proceed ‘ ... to bring an end to this absurd carry on’. As a result the Chairperson of the Tribunal was obliged to issue a minute to set out the Tribunals’ jurisdiction in respect of damages.
38. Mr Winter subsequently instructed counsel. We have no doubt that he well understood by the time of the hearing that the Jans’ would be asking for an award of damages.
39. We have found that the file was never sent to the Jans’. There is also a question as to whether the ‘loss’ of the file was a deliberate attempt by Mr Winter to bring the claim to an end. It is a serious question, because such a finding would involve accepting that there was a knowing attempt to interfere with the outcome of the case by disposing of relevant evidence. Although we have some real reservations about what occurred and the evidence that was given by Mr Winter, in the end we do not feel able to reach a firm finding that there was conduct of that deliberate kind. On the other hand, what is clear is that Mr Winter failed to take any adequate steps to ensure the security of the file at a time when he knew that it was the subject of proceedings, and that a possible outcome of the case was that he might be directed to hand it (or at least parts of it) over to the Jans’. This is a factor to be taken into account in the assessment of damages, if we have power to award any. It will also be relevant in respect of costs.

Evidence as to Harm Suffered

40. At the hearing only Mr Jans gave evidence for the plaintiffs. There was nothing in his written statement of evidence filed in advance of the hearing that mentioned any loss or harm of any other sort that was suffered by the Jans’ as a result of Mr Winter’s conduct. Mr Jans was asked on more than one occasion how Mr Winter’s failure to provide him with access to any personal information held by Bayleys had affected them (the Jans’). The answers are important in view of the legal issue concerning section 66 of the Act which we have to decide.
41. Mr Jans said that they wanted the information in order to assist in the formulation of a claim against the bank and/or Bayleys for the undervalue for which Puketawai Lodge was sold. When asked by his counsel how he felt thinking that he had not had all of the information he was entitled to from Bayleys he said "Well, it, it’s a terrible hold up because after all it’s a long time ago since I asked for the file and that takes the level of stress you know up a notch doesn’t it". He went on to say that he had had a bout of shingles about six weeks before the hearing and that he had suffered a little stroke about three weeks before the hearing – but those were not things that happened immediately or even soon after he got Mr Winter’s letter of 6 December 2000 refusing access to the information that he had asked for.
42. When questioned by Mr True (who appeared for Mr Winter) Mr Jans described his reaction to the refusal to provide information in late 2000 as ‘a great disappointment’, although when Mr True pursued the point Mr Jans went on to say that it was ‘a bit more than that’.
43. Under questioning by Ms Donovan (who appeared for the Privacy Commissioner) Mr Jans gave evidence that he found the process of preparing for the hearing to be stressful, and that if the information had been provided then he would not have suffered that stress.
44. As to the effect of these events on Mrs Jans, the only evidence was that given by Mr Jans who said that she felt the same stress as he did. There was, however, no suggestion of any illness or harm of any other sort in her case.

The section 66 issue is raised

45. After Mr Jans had given his evidence Mr Winter and Ms Coyne were called to give evidence for Mr Winter. Closing submissions were then presented by Mr Grenfell and Mr True.
46. It was central to the submissions made on behalf of Mr Winter that, even acknowledging that there had been a breach of Privacy Principle 6, the evidence did not establish that the Jans’ had suffered any harm that could be attributed to anything Mr Winter had done or omitted to do.
47. Ms Donovan made her submissions for the Privacy Commissioner last. In the course of doing so, she said that the Privacy Commissioner’s final opinion letter dated 14 September 2001 contained a typographical error. The letter records that the Privacy Commissioner had decided that there was an interference with the Jans’ privacy under section 66(1)(a)(i) of the Act On that basis there could have been no argument but that in order for the claim to succeed the Jans’ would have had to establish harm of the kind set out in section 66(1)(b)(i) to (iii) of the Act. As will be clear, there is a very real issue as to whether that threshold has been crossed in this case.
48. Ms Donovan said that the Privacy Commissioner should have referred to section 66(2) of the Act instead, and that as a consequence there is no requirement for proof of any harm under section 66 (1)(b). Since this submission went to the very heart of the defence that had been presented on behalf of Mr Winter, and because Mr True was (understandably) quite unprepared for it, it was agreed that there should be an exchange of written submissions on the point.
49. It was unfortunate that the issue – which is one of the most significant issues in this case - emerged in the way that it did. In the absence of any advance warning we think the parties were entitled to prepare for the hearing on the basis that the Privacy Commissioner’s letter meant what it said, and that the Privacy Commissioner’s position at the hearing would not be too far removed from the opinion he had expressed.
50. The Privacy Commissioner is not, of course, obliged to take the same position at any hearing that he has expressed to the parties before the hearing. It may be that in the process of preparing for a hearing facts emerge which have a bearing on the opinion he has already given. We also appreciate that there will be cases in which it is not possible for the Privacy Commissioner to indicate in advance of a hearing that he will not be arguing for the opinion he has previously expressed. His assessment may legitimately be affected by the evidence as it emerges during the hearing.
51. In this case, however, it ought to have been obvious for some time before the hearing that it would be necessary to tell the Tribunal about the typographical error in the Privacy Commissioner’s letter of 14 September 2001 and that, in correcting the error, a significant issue was likely to emerge. It was regrettable that the parties and the Tribunal were not given advance notice since, when the issue did emerge late in the day, it took everyone including the Tribunal by surprise.
52. Similar problems have occurred during the hearings in Pointu v Employrite (Decision 11/02; 1 October 2002) and in Plumtree v Attorney General (Decision 10/02; 2 October 2002). We therefore think it appropriate to indicate that in future, where the Privacy Commissioner wishes to take a position at any hearing that is materially different from the position that has been expressed in his earlier correspondence with the parties then, wherever possible, he ought to file a memorandum to identify for the parties and the Tribunal what his position at the hearing will be. The memorandum should be filed as soon as practicable after he becomes aware that he will not be taking the same position at the hearing as has previously been communicated to the parties.
53. In any event, submissions on the issues raised in this case have since been received. We have considered them carefully. We take the opportunity to record our appreciation to all counsel for the careful and thorough way in which the argument has been presented.

Preliminary Matters

54. Before dealing with the legal and factual issues concerning harm we deal with a number of miscellaneous points that emerged during the hearing. The points are taken in no particular order of significance.
55. First, as the narrative of facts indicates, it was not just Mr Winter who was involved in the matter at Bayleys. At various stages other members of the staff of Bayleys were involved, including Ms Coyne. None of those staff or the company were named as defendants. But Mr Winter is the majority shareholder in Bayleys and he is also its managing director. Mr Winter made it clear that he would accept responsibility for what has happened. As a result we have not been called upon to draw any distinctions between the company and Mr Winter in our decision.
56. Insofar as relevant to this case, Principle 6 is in the following terms:

"(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled –

(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..."

57. By the time of the hearing Mr Winter had accepted that the Act applied to him. There was no suggestion that be was not bound to comply with Principle 6 when he received the request from Mr Jans for access to information in December 2000. Indeed at the hearing Mr True conceded that the way in which Mr Winter dealt with the Jans’ request for access to personal information was in breach of Principle 6. Instead Mr True anchored his defence of the case on the proposition that, even so, the Jans’ had not suffered any harm of a kind identified in section 66(1)(b) as a result.
58. When the claim was filed Mr Jans attached a copy of the Privacy Commissioner’s letter dated 14 September 2000. That letter identified the complaint which had been the subject of the Privacy Commissioner’s investigation as the request for access to personal information that was contained in Mr Jans’ letter of 29 November 2000 to Mr Winter. During argument Ms Donovan submitted that there was also a second breach of Principle 6 when, despite the letters from the Privacy Commissioner in August 2001, Mr Winter failed to send the material that had been considered by the Privacy Commissioner on to Mr Jans.
59. We are satisfied that we ought not to approach this case on that basis for several reasons:

(a) There does not appear to have been any new request by the Jans’ for access to personal information about them. The argument would have to be that in some way the Privacy Commissioner was acting as their agent or on their behalf, and that his letters in August 2001 should be interpreted as including a request by them for access to personal information. That would of course be at odds with the expressed reluctance of the Privacy Commissioner to act as an intermediary in this type of situation. We do not wish to exclude the possibility that there may be cases where a request for access to information can effectively be made by the Privacy Commissioner on behalf of someone else, but the issue is really too remote to be seriously raised on the facts in this case;
(b) Perhaps more importantly, there is nothing we can see on the files or in the evidence that would have put Mr Winter squarely on notice that the issue was going to be raised in this case in this way. While we accept that the Tribunal must accommodate some flexibility in the way in which cases are presented, it ought not to do so in a way which is unfair. We think it unfair to allow the Privacy Commissioner to advance the argument in this case without any prior notification and when the point has not been taken by the Jans’. (This is not to say that Mr Winter’s behaviour in respect of the August correspondence from the Privacy Commissioner cannot be taken into account as evidence of ongoing failure to meet the original request of 29 November 2000);
(c) There is also a more technical point, namely that it was not suggested at any stage that any complaint by the Jans’ about what occurred in August 2001 (if in fact such a complaint was made at all) has ever been investigated by the Privacy Commissioner. In view of sections 82 and 83 of the Act, if there has been no investigation then it seems unlikely that we would have jurisdiction to deal with the issue in any event.

60. One curious aspect of the case is that we do not know what personal information about the Jans’ was on the Bayley’s file. The file has been lost. If some 750 or so pages were ever copied from it, then we do not know what has become of them either.
61. Against that:

(a) We do know that some part of the file (perhaps even the 750 pages, although this was not the evidence given by Mr Winter) was sent to the office of the Privacy Commissioner by Bayleys on 9 March 2001. After reviewing whatever it was that was received, on 29 March 2001 the investigator at the Office of the Privacy Commissioner wrote to Bayleys to say that the material did contain personal information about the Jans’;
(b) Mr Winter’s evidence was that in selecting the 750 pages that he says he copied he included ‘... any document or correspondence which referred to Mr and Mrs Jans ...";
(c) Some 33 pages from the file have survived the loss of the file, because they were attached to Mr Winter’s statement of reply to the Tribunal. There is personal information about the Jans’ amongst that material, although we accept that it is no more than the sort of information one might expect to find on a file such as this one was (it does not include anything that seems likely, for example, to have had any dramatic effect on the assessment by the Jans’ of their prospective claim against either the bank or Bayleys);
(d) We think we are entitled to infer from the concession that a breach of Principle 6 has occurred that Mr Winter accepts that the file did contain personal information about the Jans’ to which they were entitled to have had access. (We add that on the evidence we heard we consider that in the circumstances of this case the concession of a breach of principle 6 was properly made).

62. Beyond this, however, we simply do not know what was on the file or what the personal information (to which access is now impossible) was.
63. It may be, as Mr Winter tried to reassure us, that there was nothing of any great moment on the file. He also said that for all intents and purposes all of the information on it could have been (and presumably still can be) obtained from the files held by the bank. However Mr Winter had to accept that we now only have his word for that. Because the file is lost it will never be possible to check the position.
64. If one looks at the situation from the Jans’ perspective, what has happened is that their request for access was not dealt with as it ought to have been, and now it can never be fulfilled because the file is said to have been lost. Worse than that, the file was lost at a time when this proceeding was under way and when it must have been obvious to Mr Winter that it was at the very centre of the relief sought by the Jans’ in their claim. When one puts all of that against the background of the mortgagee sale and the Jans’ view of the way in which that was handled, it is understandable that they suspect that the files held by Bayleys contained something like a ‘smoking gun’, i.e., a document or documents that would have substantially assisted them in any claim against Bayleys or the bank. They cannot be blamed for suspecting that the file was deliberately ‘lost’ by Mr Winter in an attempt to avoid having to show it to them.
65. The fact that they will never know what they might have found if they had been given access to the file is perhaps the greatest burden that they have to bear as a result of what has happened.
66. Finally, during the hearing it was suggested on behalf of Mr Winter that the Jans’ could have obtained the same information (and perhaps a more than just personal information) if instead of pursuing the matter under the Privacy Act they had filed court proceedings in respect of the mortgagee sale and then sought discovery of the relevant papers in that context. That is probably true. In response Mr Jans said that he has been reluctant to initiate proceedings without first having the information we had asked for. That is an understandable position as well. In the end, however, we regard this whole question of what other avenues may have been available to obtain the information as being largely irrelevant to the issues before the Tribunal. We are concerned with the infringement of the Jans’ privacy rights under the Act. In our view it does little to answer the case by saying that the Jans’ could or should have taken other steps, when they were plainly entitled to take the steps that they did take under the Act.

Section 66 and the issue of harm

67. One of the most important issues in this case is whether Mr and Mrs Jans’ have suffered any harm as a result of Mr Winter’s breach of Principle 6.

68. Ms Donovan and Mr Grenfell submitted that it would not matter even if no harm were found. This is because of the view they take of the interpretation of section 66. Mr True submitted to the contrary.

69. The issue was identified in the Tribunal’s decision in Plumtree v Attorney-General (Decision 11/02; 2 October 2002) at paragraphs 147-151. Before the Tribunal can grant any of the remedies set out in section 85 of the Act it must first be satisfied that the conduct of the defendant amounts to an interference with the privacy of the plaintiff. The definition of ‘interference with privacy’ is contained in section 66 of the Act which provides:

Interference with privacy

(1)For the purposes of this Part of this Act, an action is an interference with the privacy of an individual if, and only if,--

(a) In relation to that individual,--

(i) The action breaches an information privacy principle; or

(ii) The action breaches a code of practice issued under section 63 of this Act (which relates to public registers); or

(iii) The provisions of Part 10 of this Act (which relates to information matching) have not been complied with; 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.

(2) Without limiting subsection (1) of this section, an action is an interference with the privacy of an individual if, in relation to an information privacy request made by the individual,--
(a)The action consists of a decision made under Part 4 or Part 5 of this Act in relation to the request, including--

(i) A refusal to make information available in response to the request; or

(ii) A decision by which an agency decides, in accordance with section 42 or section 43 of this Act, in what manner or, in accordance with section 40 of this Act, for what charge the request is to be granted; or

(iii) A decision by which an agency imposes conditions on the use, communication, or publication of information made available pursuant to the request; or

(iv A decision by which an agency gives a notice under section 32 of this Act; or

(v) A decision by which an agency extends any time limit under section 41 of this Act; or

(vi) A refusal to correct personal information; and

(b) The Commissioner or, as the case may be, the Tribunal is of the opinion that there is no proper basis for that decision.

(3) If, in relation to any information privacy request, any agency fails within the time limit fixed by section 40(1) of this Act (or, where that time limit has been extended under this Act, within that time limit as so extended) to comply with paragraph (a) or paragraph (b) of section 40(1) of this Act, that failure shall be deemed, for the purposes of subsection (2)(a)(i) of this section, to be a refusal to make available the information to which the request relates.

(4) Undue delay in making information available in response to an information privacy request for that information shall be deemed, for the purposes of subsection (2)(a)(i) of this section, to be a refusal to make that information available."

67. Section 66(1)(b) sets out the kinds of loss or other adverse effects that need to be established before any interference with the privacy of an individual exists. It is convenient to refer to the effect of this subsection in a shorthand way as requiring ‘proof of harm’.

68. In her written submissions Ms Donovan placed considerable emphasis on the context within which section 66 appears in the Act, the legislative history of the Act and the international background against which the Privacy Act was enacted. We have also been referred to all of the authorities that are said to be relevant. Arising out of that analysis, it is the essential submission for the Privacy Commissioner and the Jans’ that section 66(2) should be read as being independent of section 66(1). From this it follows, so it is argued, that if there is a breach falling under section 66(2) then there is no need for the plaintiff to prove any harm before the Tribunal has the jurisdiction to award a remedy.

69. For Mr Winter, Mr True submits that the clear wording and logical application of section 66 are quite to the contrary. He has pointed to various anomalies which he submits arise if the argument for the Privacy Commissioner and the plaintiffs were to succeed.

70. We propose to analyse the question under the following broad headings:

(a) Wording of the Act

(b) Relevant authorities

(c) Policy of the Act

(d) Other Submissions for the Privacy Commissioner/ Jans’

(e) Interpretation of section 66: Conclusion

Wording of the Act

71. We begin by considering the words used in the Act. On that basis it seems to us clear that subsection 66(1) and subsection 66(2) are not independent in the way that has been contended for the Jans and the Privacy Commissioner.

72. An immediately obvious problem with the argument is that the two subsections appear in the same section. Furthermore subsection (1) appears before subsection (2). If the legislature had intended that the two subsections were to import quite different rules in relation to proof of harm for each of the kinds of cases they deal with, then one would have thought that the subsections might have been inserted as independent sections.

73. Section 66(1) begins with the words "For the purposes of this Part of this Act, an action is an interference with the privacy of an individual if, and only if, ..". Two things may be noted about this. First, subsection 66(1) is expressly stated to apply to the whole of the Part of the Act within which it is found. There is nothing in those words to suggest that the very next subsection should somehow be treated as an exception. The second point is that the introductory words conclude with the phrase " ... if and only if, ... ". We find it difficult to see what else Parliament might have intended by this if not to identify the essential requirements for every case in which an interference with privacy can be found.

74. The opening words of subsection 66(2) are also important: ‘Without limiting subsection (1) of this section ...’. The argument that subsections (1) and (2) are independent seems to us to ignore these words altogether. If subsection 66(1) identifies the essential requirements for a finding of an interference with privacy, the opening words of subsection 66(2) make it clear that nothing in that subsection is intended to limit the way in which subsection (1) is to be applied.

75. We agree with the submission made by Mr True, namely that the Privacy Commissioner/Jans’ interpretation of the Act gives rise to anomalies which we do not believe Parliament would have intended. The point is demonstrated by reference to the various kinds of breaches listed in subsection 66(2)(a). All are concerned with certain decisions that an agency is obliged to make under Parts 4 and 5 of the Act. If the Privacy Commissioner’s argument is correct then the Act allows for the possibility that the Tribunal can award damages where there is no proof of harm for breach in those kinds of case, but not for a breach of the privacy principles themselves.

76. An example illustrates the point. Take first the case of an individual who has suffered a breach of their rights under (say) Principle 11 because personal information has been improperly disclosed to a third party. It is accepted that such a person cannot ask the Tribunal to award a remedy of any sort unless he or she can show harm of the kind listed in section 66(1)(b). Compare that with an individual who has made a request for access to information under Principle 6. The agency involved decides under section 41 of the Act that the time limits set out in section 40(1) (which generally allows 20 working days within which to decide whether the access will be granted) should be extended: see section 66(2)(a)(v). The requester is then notified after, say, 23 days that the request will be granted in its entirety, and the access is given forthwith. The Tribunal later decides that there was no proper basis for the decision to extend the time limit. Despite the fact that the access request has been allowed in full, there is nevertheless a breach which comes under section 66(2). The Tribunal in that case would have the power to award a remedy, including damages. One may ask, why would the Act intend the requester in that case to be in a better position than the individual who has suffered a breach under Principle 11?

77. We do not see why breaches of the kind identified in subsection 66(2) should have been singled out by Parliament as being situations in which it is appropriate to overlook any requirement for proof of harm. As Mr True submitted, if the Legislature intended to identify a class of breaches which will give rise to damages without proof of harm then the list in section 66(2) appears to be a very narrow and ad hoc selection.

78. A far better and more logical explanation for the fact that a list of specific breaches has been set out in subsection 66(2) is that it is intended to catch conduct that might not otherwise obviously fall within subsection 66(1); in other words, that the purpose of subsection 66(2) is to make it clear that breaches of the kind it refers to are to be treated as being within the umbrella of subsection 66(1) rather than to exclude them from subsection 66(1).

79. We have considered section 66 in the context of the Act as a whole, including the purposes of the Act as stated in the long title. We have also taken account of the requirement of the Acts Interpretation Act 1999 that ‘the meaning of an enactment must be ascertained from its text and in the light of its purpose’ (section 5(1)). We regard the meaning that emerges from the text of section 66 to be clear. We will consider the purposes of the Act later in this decision; it suffices to say here that nothing in that analysis has altered our view of the section.

80. We are satisfied that if one looks at the Act as a whole, and the words of section 66 in particular, it is clear that subsections (1) and (2) are not independent. In our view the plain meaning of section 66 is that the Act requires proof of harm in every privacy case. Indeed, but for the detailed argument urged upon us by the Privacy Commissioner, we would not have thought that this conclusion could be really be very controversial.

Relevant Authorities

81. We turn to consider the relevant authorities.

82. It was an important part of the argument for the Privacy Commissioner that Principles 6 and 7 are given special attention in the Act, an aspect of which is that there are there are specific provisions relating to breaches of either one of those principles in Parts 4 and 5 of the Act. We take the Privacy Commissioner to have accepted that for breaches of any principles other than Principles 6 and 7 section 66 (1) (b) applies and proof of harm is required. On that basis attention turns to the cases which have involved allegations of breach of either or both of Principles 6 and 7.

83. Ms Donovan informed us that there are a total of 16 such cases. One is the Plumtree decision (supra) in which the issue about the correct interpretation of section 66 was identified but not decided. Of the other 15 cases, Ms Donovan’s submission was as follows:

"... only three held that for an interference with the privacy of an individual to be established it was necessary to show harm of that kind to be set out in subsection 66 (1) (b). Of the remaining 13, 12 are decided on the basis that an interference under ss 66 (2) does not require proof of separate harm under ss 66 (1) (b)..."

84. After considering the three cases which are said to have supported the requirement for proof of harm in every case, Ms Donovan’s submission was that "the Tribunal has since rejected the position in those early decisions".

85. Having read every one of the decisions to which we referred, we do not find any real support for the Privacy Commissioner’s submission.

86. In view of the importance attached to this issue by the Privacy Commissioner, we think it proper to refer briefly to each one of the decisions. We do not propose to provide any more information about each case than is necessary for the purpose of the present issue. We have, however, attempted to address each of the decisions (including the two cases in which there was an appeal to the High Court) in chronological order.

87. The first case is Mitchell v The Police Commissioner (1994) 1 HRNZ 399. In that case it was held that the Police had refused to provide access to personal information in breach of Principle 6. There had been a refusal to make the information available, so section 66 (2)(a)(i) was relevant. It was not, however, specifically mentioned in the decision. The Tribunal looked for evidence of harm, which it found. Although we accept that the unexpressed premise behind the decision was that proof of harm was required, nevertheless we think it goes too far to say that the decision held that for an interference with privacy to be established under section 66(2) it is necessary to establish harm under section subsection 66 (1) (b).

88. The second case is O v N (No.2) (1996) 3 HRNZ 636. The focus of that case concerned whether there were good reasons for refusing to disclose information that had been requested. We think it better to describe the case as having assumed that proof of harm was required to establish an interference with privacy notwithstanding that the refusal to provide information fell under section 66 (2)(a)(i). As with the Mitchell case, we think it goes too far to suggest that the Tribunal in O v N (No.2) decided the issue which now confronts us one way or the other.

89. The next case is H v New Zealand Police & Another [1996] NZCRT 15; (1996) 3 HRNZ 115. The plaintiff wanted to access to information following an allegation of sexual abuse which he believed had been made about him. The Tribunal noted that the phrase "interference with the privacy of an individual" in section 66 includes the breach of an information privacy principle (section 66 (1) (a) (i)). It went on to say that section 66 (2) (a) (1) "further defines this term in relation to an information privacy request as including decisions made under Part IV or Part V of the Act refusing to make information available" (we have supplied emphasis because the words emphasised seem to us to encapsulate the operation of section 66(2) well). Thus in this case section 66 (2) was expressly referred to. But the Tribunal went on to decide that the information sought by the plaintiff could not be found and so it was not readily retrievable. Although the Tribunal mentioned the possibility of an application for correction under principle 7 plainly that did not occur at the time of the hearing. Because of the finding that the information could not be found or was not readily retrievable the issue of damages was not reached. We do not think that anything in this decision touches upon the issue that we are called upon to decide in the present case at all.

90. The fourth case is Mayes v Owairaka School Board of Trustees (1996) 3 HRNZ 707. The plaintiff sought a declaration and damages because of a failure by the defendant to make certain notes available. The defendant argued (amongst other things) that there was no interference with privacy because the provisions of section 66(1)(b) were not met. In the result, the Tribunal made a declaration pursuant to section 85(1)(a) of the Act, but refused to award any damages having regard to the history of the matter. The issue we have to decide is not the subject of any direct discussion in the decision.

91. In April 1997 the Tribunal decided L v N (1997) 3 HRNZ 721. Like H v NZ Police, this was another case where an allegation of unlawful conduct on the part of the plaintiff had been made. The plaintiff was seeking access to information about that. The Tribunal held that the defendant had failed to comply with the obligation in Principle 6 to confirm the existence of certain personal information. The Tribunal also held that the actions of the defendant constituted an interference with the plaintiff’s privacy pursuant to section 66(1) of the Act. Section 66(2) is not mentioned at all. Whether or not the Tribunal might or ought to have mentioned section 66(2), it went on to find that the harm was "self evident". As with Mitchell and O v N, the underlying assumption in this case appears to have been that proof of some harm was required before a remedy could be granted.

92. The next case is M v Ministry of Health [1997] NZCRT 12; (1997) 4 HRNZ 79. It was a case which focussed on the question of whether there were proper grounds to refuse to disclose information. Section 66(2) was referred to. The Tribunal said:

"Our task is to determine whether the defendant had a proper basis for the decision to withhold personal information from the plaintiff. If we find that it did not have a proper basis for so withholding then, pursuant to section 66(2) of the Act we are required to find that an interference with the privacy of the plaintiff has been established, which in turn, pursuant to section 85, gives us the power to determine whether any of the remedies which the plaintiff has sought or ought to be granted. We do not require any evidence of damage to be established, as was required in an earlier decision of this Tribunal, O v N (No. 2) (1996) 3 HRNZ 636, because our jurisdiction in this case arises from section 66(2) of the Act and not section 66 (1)." (emphasis added)

This seems to us to be the first case in the sequence that clearly supports the Privacy Commissioner’s argument. We note, however, that in the result good grounds for refusal to disclose were found, so that the issue of remedy was not reached. We also note that, apart from referring to section 66(2), the Tribunal’s decision does not make any attempt to explain why no proof of harm is required under the section. Nor does the Tribunal appear to have appreciated that in O v N (No. 2) section 66 (2) was available and could have been mentioned and relied upon had the Tribunal wished to do that.

93. M v The Police [1997] NZCRT 12; (1997) 4 HRNZ 79 was another case in which the question was whether the defendant agency had good grounds to refuse to allow access to information (in fact the case involved the same plaintiff as in M v Ministry of Health (supra), concerned related facts and was heard and then decided on the same days as the hearing and decision in M v Ministry of Health). Under heading ‘Findings’ the Tribunal repeated its observation about section 66(2) in exactly the same words as it was expressed in M v The Ministry of Health. As with M v The Ministry of Health, the Tribunal ultimately found that there were good grounds to refuse access to the information - so that the issue of remedies was not reached. Certainly this case takes the same approach as was taken in M v The Ministry of Health but (apart from being a second expression of the same point) it does not otherwise add to the issue we have to decide.

94. In Adams v New Zealand Police (Decision 16/97; CRT3/97, 12 June 1997) the allegations related to breaches of both Principles 6 and 7. Again under the heading ‘Findings’ the Tribunal repeated in exactly the same words the point made in M v The Ministry of Health and M v Police. Again, in the result the Tribunal found that there was no breach of Principle 6 because in each case there was a proper basis on which the defendant was entitled to withhold information from the plaintiff. The Principle 7 issue was not addressed at the hearing. As with M v Police, the Tribunal asserted the power to grant remedy notwithstanding the absence of any proof of harm under section 66(1)(b), but then did not go on to do so.

95. In 1997 Mayes v Owairaka School Board of Trustees returned to the Tribunal on a different issue: see [1997] NZCRT 25; (1997) 4 HRNZ 312. The case related to a dispute between parents and a school board of trustees. The plaintiffs sought access to minutes of a meeting they had attended with the school’s headmaster. The Tribunal was called upon to consider the effect of section 66(4) which deems undue delay in making information available in response to a privacy request to amount to a refusal to supply the information. There was also a subsidiary issue relating to minutes of a different meeting, the issue in that case being whether there were good grounds to withhold the minutes. The Tribunal held that there was undue delay in making the minutes of the meeting with the headmaster available, with the consequence that there was a refusal under section 66(2)(a)(i). However, it declined to impose an injunction that had been sought, or even to award any damages against the defendant (to the contrary, this was one of those rare cases where costs were ultimately awarded in favour of the unsuccessful defendant). But the Tribunal did issue a declaration. The Tribunal only has jurisdiction to issue a declaration under section 85(1) of the Act if an interference with the privacy of an individual has been established. The Tribunal did not refer to the point that it had made in the three previous cases, but equally there is nothing in the decision that records the finding of any harm. Since the defendants succeeded in obtaining a declaration, this is an example of a situation in which the Tribunal has exercised powers under section 85(1) in respect of a breach under section 66(2) and without any discussion about or, apparently, evidence of, harm.

96. The next case is L v T (Decision 1/98: CRT 25/97, 12 February 1998). It involved a request for access to personal information. The Tribunal held that prior to the hearing the plaintiff had been given access to all information held about her by the defendant. The question was then whether the time taken to provide the information amounted to undue delay under section 66(4). On the facts the Tribunal held that there was no undue delay. The claim was dismissed. The issue of whether a remedy might be granted in the absence of any evidence of harm was not raised.

97. The Tribunal’s decision in L v T was appealed to the High Court: see [1998] NZHC 746; (1999) 5 HRNZ 30. There is no discussion of the point we have to decide, although the decision ends with the following passage:

"Ms Joychild submitted that if the appeal were allowed then the Court should make an award of general damages for hurt, anxiety, etc. On questioning from the Bench she accepted that there was no evidence at all in relation to any hurt, anxiety etc before the Tribunal. She then advised the Court the Tribunal awarded such damages even though no evidence had been heard.

How accurate Ms Joychild’s statement was, though we understand she has extensive experience before the Tribunal. If what she says is correct, it indicates an unsatisfactory situation. A plaintiff must always prove his or her loss. ..."

98. Next comes Sissons v Capper (Decision 22/99; CRT 5/99, 10 August 1999). In this decision, the Tribunal set out section 66 in its entirety. The Tribunal referred to and followed its first decision in Mayes v Owairaka School Board of Trustees. With respect to the allegation of improper disclosure under principle 11, the Tribunal held that whatever had occurred took place against a background of personal animosity and tension between the parties resulting from matters over which the Tribunal did not have jurisdiction. It observed that the fact that the matters at issue were important for the plaintiff did not mean that they were not trivial or that pursuit of them was not vexatious. It concluded "for these reasons there is no chance at all of the plaintiff convincing us that either the provisions of section 66(1)(b) would be met or, if they were, that any remedy should be ordered". The Tribunal then went on to deal with the Principle 6 access complaint. After identifying the issue it concluded: "It is possible that the Tribunal would conclude that the absence of a decision following the receipt of the first request for access constituted a breach of section 66(2)(a)(i) via section 66(3). For the reasons set out above, it would not, however, be possible for the defendant to obtain a remedy".

As we read the Tribunal’s conclusion it was in effect that it would not have granted the remedy under section 85(1) to the plaintiff but (at least in part) that was because it had concluded that there was no chance of the plaintiff establishing any harm under section 66(1)(b). We recognise that it may also have been of the view that the complaint was in any event trivial, but at least at first sight in this case the Tribunal appears to have overlooked what it said in M v The Ministry of Health, M v The Police and Adams v New Zealand Police. The impression from this decision is that the Tribunal would not have granted a remedy even in respect of any section 66(2) breach without proof of harm. Having said that, however, we think one needs to be careful before reading too much into the decision in this respect. The reality is that the issue presently before us was not considered.

99. The next case was another of the two cases that have been appealed to the High Court. The Tribunal’s decision in Proceedings Commissioner v Health Waikato is Decision 3/2000; CRT 24/99, 14 March 2000. In this case the defendant failed to disclose two letters to the plaintiff notwithstanding that they were or might have been relevant to other litigation that the plaintiff and the defendant were engaged in. The Tribunal held that in terms of section 66(2)(a)(i) there was a refusal to make the letters available. Under the heading ‘Was there a loss of a Benefit?’ the Tribunal went on to consider in some detail whether the plaintiff had been able to establish any harm of a kind set out in section 66(1)(b). This case seems to be at odds with the approach suggested by the Tribunal in M v The Ministry of Health, M v The Police and Adams v New Zealand Police. The Tribunal addressed the issue of humiliation, loss of dignity or injury to feelings notwithstanding that it had not specifically been pleaded. It was held that no damages for humiliation were warranted. A declaration (which is an exercise of the Tribunal’s powers under section 85(1)) was granted, but nothing else.

It may be that the Tribunal’s attention to the question of harm was focussed not on the issue of whether or not an interference with privacy existed, but on the issue as to whether damages ought to be granted as a remedy. That said, it is not at all clear from the way the decision is written that that was the only purpose of referring to the issue of harm.

100. In S v Department of Child Youth & Family Services (Decision 12/2000; CRT 13/00, 30 June 2000) the plaintiff was trying to find information he thought to be held by the defendant in connection with his birth parents. The Tribunal found that in respect of a request made in 1998 for access there had been a refusal to make the information available in terms of section 66(2)(a)(i) of the Act. On that basis the Tribunal held that the plaintiff had suffered an interference with his privacy. The Tribunal then went on to find that the plaintiff had suffered humiliation as a result of the way in which his request for access was dealt with. Damages were awarded. Although the reasoning is not repeated, it is conceivable that this case is consistent with the approach articulated in M v Ministry of Health, because there is a finding of interference with privacy before the issue of humiliation is raised. On the other hand the plaintiff was found to have suffered harm of a kind covered by section 66(1)(b) so that the distinction was not important in that case. Certainly the Tribunal did not take the opportunity to repeat what it had said in M v Ministry of Health.

101. The next case is Proceedings Commissioner v Police Commissioner (Decision 18/00; CRT10/00 10 July 2000). The case involved a victim of two assaults who sought access to information held by the Police about the two assailants on the basis that the information was personal information about him (the complainant). After finding that the information sought was personal information about the complainant, and rejecting an argument that the request for access was vexatious, the Tribunal made a declaration that there had been an interference with the complainant’s privacy. Section 66(2)(a)(i) was referred to. The Tribunal went on to award damages of $200.00 for the humiliation, loss of dignity and injury to feelings suffered by the complainant. There is no discussion in the decision about the relationship between section 66(1) and section 66(2), and (save for the terms in which damages were awarded) no discussion about the evidence of harm. It is, however, safe to infer that the Tribunal must have been satisfied that some qualifying harm had been suffered, albeit of a limited kind. Our comment in respect of S v Department of Child Youth & Family Services applies to this case as well.

102. The High Court decision in respect of the appeal in Proceedings Commissioner v Health Waikato Limited was given on 12 July 2000: (2000) 6 HRNZ 274. The Court disagreed with the Tribunal’s assessment of harm on the facts of the case. Mr Grenfell drew our attention to a passage at paragraph 62 in the judgment, which he submitted demonstrates at least a willingness by the Court to treat a breach of Principle 6 as in and of itself amounting to an interference with privacy. But, as Mr Grenfell properly recognised, the High Court’s remarks in that respect were not squarely directed to the issue we have to decide. Furthermore, although the case concerned a breach of section 66(2)(a)(i) there was no suggestion that damages could have been awarded in the absence of proof of harm. Indeed the greater part of the High Court’s decision deals with the way in which the Tribunal had approached the question of the harm that was found to have been suffered. Again, we do not regard this case as having addressed the issue now before us.

103. The final case in the sequence is DAS v Department of Child Youth & Family Services (Decision 24/2000; CRT26/00 30 September 2000). In this case a teacher of special needs students was confronted with an allegation of sexual abuse. As a result he sought access to personal information held about him by the defendant. He identified various different interferences with his privacy. The defendant admitted the allegations . The only issue for the Tribunal was the quantification of damages and other related relief. Since the defendant conceded that there was an interference with privacy, the Tribunal was not required to consider whether proof of harm was an essential part of a finding of interference with privacy. The decision nevertheless discussed the humiliation suffered by the plaintiff in the context of making its award of damages.

104. The following conclusions emerge from this analysis of the cases:

(a) Three of the earlier cases (Mitchell, O v N (No.2) and L v N) do suggest at least by the approach they adopted that proof of harm is necessary in all cases.

(b) The issue has not been raised in most of the later cases.

(c) In some cases interference with privacy has been found and damages have then been considered on the basis of evidence including evidence of humiliation, etc. There have, however, been no cases at all in which the Tribunal has awarded damages (even nominal damages) without there having been some evidence of harm.

(d) There are three cases in the Tribunal (Mayes v Owairaka No1 and No2 and Proceedings Commissioner v Health Waikato) in which the Tribunal’s section 85(1) jurisdiction has been engaged for the purpose of granting a declaration without awarding damages. None of those cases appear to have considered the question that is raised in the present case. Curiously, although two of the cases (Mayes v Owairaka (No2) and Health Waikato) were decided after M v Police, M v Ministry of Health and Adams v New Zealand Police, neither of them refer to what was said in those earlier cases where the Tribunal asserted the jurisdiction to grant remedies under section 85(1) notwithstanding the absence of any proof of harm.

(e) There are only three cases (M v Ministry of Health, M v Police and Adams v New Zealand Police) in which the Tribunal has asserted that an interference with privacy can be established under section 66(2) without the need to prove harm of a section 66(1)(b) kind. In fact, although the jurisdiction is asserted, in each of those three cases it was not exercised.

(f) The Tribunal’s assertion of such a jurisdiction is expressed in one sentence and in precisely the same wording in each of the three cases of M v Ministry of Health, M v Police and Adams v New Zealand Police. None of the cases contains any analysis of the words used in the section. None of the decisions makes any attempt explain why the jurisdiction asserted by the Tribunal exists notwithstanding the words in section 66 (1) (.... "if and only if ...") and the opening words of section 66 (2) ("Without limiting subsection (i) of this section ...").

105. What is clear is that there has been considerable inconsistency in approach and in practice. The analysis of the cases demonstrates that the time is right for the present analysis of the issue, and a that decision which clearly addresses the question is required.

106. There is nothing in the authorities that deals with the issue of statutory interpretation that confronts us in this case in any considered way. We conclude there is nothing in any of the previous Tribunal decisions or the decisions of the High Court that can or ought to prevent us from applying what seems to us to be the plain meaning of the words used in the Act.

Policy of the Act

107. We turn to consider the question of the wider policy of the Act: Is there something about the Act as a result of which we ought to adopt what we would consider to be a strained interpretation in order to meet some more fundamental statutory purpose?

108. The submissions for the defendant and the Privacy Commissioner made much of the international context against which the Privacy Act was brought into force in New Zealand, and the history of the debates in relation to it. The thrust of the argument was that if the interpretation which appears to us to be correct were adopted, then the effect of the Act may be unduly limited because there are cases in which individuals who might otherwise have been entitled to a remedy without proof of harm will not be able to obtain a remedy.

109. We have studied all of the material to which we were referred. Having done so we do not agree that the interpretation of the legislation which we consider to be correct offends against any of objectives of the Act.

110. It must be obvious from subsection 66(1) alone that there is a legislative concern to prevent cases where any breach is of no real consequence . The whole purpose of section 66(1)(b) is to ensure that even where there is a breach of the Act, it is still necessary to show that there is some harm that has flowed from the breach which warrants an award of damages or some other relief. If that were not so then claims could be brought to the Tribunal in cases where no real harm had been done. We see section 66(1)(b) as the legislative expression of a concern to prevent that sort of situation arising.

111. Having regard to that legislative objective we cannot see any reason why it might not have been intended to apply to cases that fall under section 66(2) as well all other kinds of cases governed by the Act.

112. The threshold for proof of harm set out in section 66(1)(b) is not high. To show loss or even just ‘detriment’ is caught by (i). Any adverse effect on grants, benefits, privileges or interests of the individual are caught by (ii). Even if no actual loss or detriment can be established, and even if there is no question of any benefit having been prejudiced or lost, an individual can still claim damages under (iii) if the breach has resulted in or may result in significant humiliation, loss of dignity or injury to the feelings.

113. This modest threshold for what needs to be proved to establish harm under section 66(1)(b) provides support for our view that the real purpose behind section 66 is to prevent the Tribunal from making awards in any privacy cases where no real harm has been established.

114. We find further support for the interpretation we consider to be correct in the provisions of sections 85 and 88 of the Act. Section 85(1) specifies the kinds of remedies that the Tribunal may grant if it has been satisfied that any action of the defendant is an interference with the privacy of an individual. In turn the Tribunal may grant a declaration, a restraining order, damages, orders for the defendant to take certain steps and such other relief as the Tribunal thinks fit. Damages can only be awarded under section 85(1)(c) in accordance with section 88 of the Act. Section 88(1) refers again to the need for a finding of an interference with privacy, and then sets out various headings under which damages can be awarded, namely:

"(a) Pecuniary loss 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."

115. These items correspond broadly with section 66 (1)(b)(i) to (iii). It was part of the argument for the Privacy Commissioner that the effect of these sections is such that (in the case of breach of Principle 6 or 7 in respect of which section 66(2) applies) the Tribunal could award a declaration, restraining order, order to perform specific acts or such other relief as it sees fit, but not damages. The reason for this, so it was argued, is that even in a section 66(2) kind of case, when it comes to awarding damages it is implicit in section 88 that there will have to be proof of the kinds of harm that are listed in section 88(1)(c).

116. It seems to us that this is an unnecessarily complex approach to the sections in question.

117. The submission for the Privacy Commissioner left us wondering why Parliament might have contemplated a situation in which it is not necessary to prove harm under section 66 (1)(b) in respect of cases coming under section 66(2) for the purpose of giving the Tribunal jurisdiction to award a remedy – but then requiring proof of exactly those things before the Tribunal can award damages even in a case under section 66(2). It may be theoretically possible that a litigant might be willing to confine themselves to the remedy of a declaration, a restraining order, or some other direction but we would have thought that in most cases an individual would want at least to leave open the possibility of an award of damages. The whole approach to the interrelationship between these sections seems to us to be unnecessarily convoluted if the words " . . .an interference with the privacy of an individual" in section 66 are not interpreted to mean what they appear to us to mean.

118. Finally, we note an observation made by the Court of Appeal in Harder v The Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (at page 89 para 23). The Court of Appeal was considering the application of Principle 3 to a tape recording of a telephone conversation between a lawyer and a witness, where the witness concerned was not aware that the conversation was being taped. The majority of the Court made the following observation about the words ‘personal information’:

"It is, in the circumstances, unnecessary to address the personal information issue. The case does not turn on this point which must remain open for determination when it directly arises. Nevertheless we consider it appropriate to make the following observations. The information privacy principles are all concerned with personal information. That concept is a central feature of the Act. An unqualified approach to what constitutes ‘information about an identifiable individual’ will lead readily to breaches of one or more of the information privacy principles. It is a feature of the Act that there can be a breach of an information privacy principle, yet whether that breach becomes an interference with privacy in terms of section 66 is dependent on the opinion of the Commissioner or the tribunal as to whether the action of the alleged contravener has had one or more of the results referred to in section 66 (1) (b). The approach of the Commissioner and the tribunal in the present case does not suggest that this provision has been viewed alongside the balancing provisions of section 14(a). They require the Commissioner, and impliedly others involved in the interpretation and administration of the Act, to have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way. Those concepts are thus relevant to the scope of the definition of personal information".

119. With respect, we have some reservations about the suggestion that a narrow meaning ought be given to the definition of ‘personal information’. But the concern which appears to lie behind this observation seems to us to be relevant and important. The Privacy Act is to be applied in a pragmatic and realistic way. We see the requirement that harm must be proved in every case (whether under section 66(2)(a) or otherwise) as an important aspect of the legislative scheme. Cases where no harm has been done ought not to be the subject of any award for damages, even if only nominal. We note that in the passage referred to the Court of Appeal does not make any exception for section 66(2)(a) cases when referring to the need to prove harm (although the present issue was not before it for decision).

Other Submissions for the Privacy Commissioner

120. We turn to deal with the detail of the submissions presented by the Privacy Commissioner on this issue.

121. The Privacy Commissioner began by describing the rights of access to personal information as they stood before the enactment of the Privacy Act in 1993 – namely the Official Information Act 1992 and the Local Government Official Information and Meetings Act 1987 (which effectively mirrored the Official Information Act). The Privacy Commissioner’s argument drew attention to the scheme and purpose of the Official Information Act and observed that Part 4 of that Act still applies to non natural persons who seek access to information. The argument recognised, however, that although the Official Information Act contained a complaints procedure which could lead to a determination by the Ombudsman, wrongful refusal to supply information in response to a request could not result in an award of damages in favour of the requester.

122. In these circumstances it is clear that the Privacy Act was intended to introduce new remedy, at least in the case of natural persons. Beyond that, however, we do not see that the argument about the state of the legislation before 1993 really assists to understand the detail of the new damages regime which was introduced in the 1993 Act.

123. Counsel for the Privacy Commissioner and for the Jans’ also emphasised the international context against which the Privacy Act was enacted; specifically, that the Act was designed to implement the OECD Guidelines on the Protection of Privacy and Trans-border Flows of Personal Data. The long title of the Privacy Act makes the connection between that Act and the OECD Guidelines explicit. The Privacy Commissioner reminded us that the Act also enshrines New Zealand’s commitment under Article 17 of the International Covenant on Civil and Political Rights which protects against (amongst other things) arbitrary interference with privacy.

124. From this analysis, the Privacy Commissioner submitted:

"Prior to the enactment of the Act the approach, both nationally and internationally, was that an individual's interest in protecting, as private, personal information about them should be constituted as a right. A corollary of that approach was to ensure that agencies dealing with personal information were not accountable for the ways in which they complied with their obligations in respect of those rights, but providing that a remedy should be available for an infringement of the right itself without the need to show adverse consequences arising from the infringement." (Emphasis added).

125. Save for the last words of the submission (which we have emphasised) there is nothing controversial about this submission. We express no conclusion as to whether or not the words that have been emphasised are justified on a full analysis of all the relevant national and international materials that were available at the time of the enactment of the Act. What we do know is that when the Act was passed it included section 66 – which, putting aside the issues of Principle 6 and 7 for the moment, plainly does require proof of harm before the Tribunal has the right to award a remedy.

126. In this respect we think it relevant to refer to the decision of the High Court in BHP New Zealand Steel Limited and Anor v O’Dea [1997] ERNZ 667. That case concerned New Zealand’s Human Rights legislation. Amongst other things, the High Court discussed the correct approach to the interpretation of New Zealand’s domestic human rights legislation. After traversing relevant authorities the High Court observed (at pages 681/682):

"In the present case the question is not whether the covenants conflict with the Human Rights Act nor whether they should effectively override the Act. Rather it relates to the extent to which the provisions of the Human Rights Act can be interpreted so as to more comprehensively adopt or implement applicable international standards.

In our view the Court cannot ignore the fact that the New Zealand Parliament in the Human Rights Act has chosen to incorporate into domestic law only some of the rights recognised in various international covenants and conventions. In those circumstances the Court cannot use the generality of provisions in the international instruments to increase the scope of what our sovereign Parliament has decided should apply domestically. Further, although in a sensitive and important area such as this words should not be read down, where Parliament has deliberately provided protection for some rights which enjoy international recognition, but not others, it would be wrong for a Court to stretch or manipulate the clear words of a statute so as to provide protection in a greater or different area than Parliament has determined should apply. Where there is any room for interpretation the international obligations will be given full weight. But in the absence of uncertainty or ambiguity the Courts are not able to introduce into domestic law rights which are beyond the scope of a reasonable and sensible interpretation of the actual words of the relevant statute".

127. In our view the sense of that observation applies with equal force to the Privacy Act. In fact we are far from convinced that section 66 does represent any significant departure from a proper domestic application of the relevant international standards in this area. But even assuming that section 66 does represent a restriction that might arguably be at odds with the relevant international standards, the hard fact is that we have to apply the words used in the Act.

128. The next part of the Privacy Commissioner’s submissions dealt with the scheme of the Privacy Act. The submission referred to passages from Hansard and also advanced detailed argument to establish that Privacy Principles 6 and 7 ought to be treated on a different footing from the other privacy principles contained in section 6 of the Act. Given our view that the meaning of section 66 is clear, we have some hesitation about referring to the Parliamentary debates at all. We have, however, read all of the material that was included with the Privacy Commissioner’s submissions. Having done so we do not think that there is anything in the Parliamentary debates to suggest that, in respect of the specific point that we are now asked to decide, section 66 ought to be given an interpretation which is different from that which seems to us to emerge as the plain meaning of the words used.

129. With respect to the privacy principles themselves, we accept that Principles 6 and 7 are very important in the scheme of things. With respect to Principle 6, there are detailed provisions in Part 4 of the Act which govern the practical application of the principle. With respect to both Principles 6 and 7, Part 5 contains further detailed provisions which impose obligations that define the way in which an agency which holds personal information is to respond to a request for access or correction (as the case may be).

130. We accept the Privacy Commissioner’s submission that Parliament anticipated that in respect of Principles 6 and 7 detailed procedural provisions would be required because, absent such provisions, the effectiveness of the rights contained in Principles 6 and 7 might be in jeopardy. We take the question of an agency’s decision upon the receipt of a request for access to personal information as an example. Section 40 imposes specific time limits within which an agency must respond. Without that section there would be no legislative requirement to deal with an access request in a timely way. Similarly, section 66(4) (which deems undue delay in making information available in response to a request to be a refusal to make the information available) is an important safeguard without which the value of the right to request information might be doubtful.

131. We have no wish to downplay the significance of Principles 6 and 7, but it does seem to us that the reason why the Act contains Parts 4 and 5 has as much to do with the need to provide those kinds of mechanical and procedural safeguards as it has to do with the importance of the principles. Furthermore, we think it goes too far to draw from these provisions a conclusion that subsections 66(1) and (2) should be given an interpretation which strains against the plain meaning of the words used.

132. The next submission advanced by the Privacy Commissioner drew attention to the way in which section 66 developed out of clause 59 of the Privacy of Information Bill (which was ultimately enacted as the Privacy Act). Again, we have some reservations about resorting to early drafts of the legislation when the words that were used in the Act that was passed seem to us to be clear. We have, however, considered clause 59 of the Privacy Information Bill (at least as it was in the draft clause that was made available to us). Although the test for what would amount to an interference with privacy is somewhat different in clause 59 when compared to section 66, the clause is broadly speaking set out in a way that is consistent with section 66. In particular, clause 59(1) begins by identifying actions that amount to an interference with the privacy of an individual ". . .if and only if ..." the various elements which follow are established. Clause 59(2) begins with the words "Without limiting sub-section (1)(a) of this section ... "

133. If clause 59 had been enacted in the form of the draft we were supplied with, then the reference in clause 59(2) would have been to clause 59(1)(a) only, and not to the whole of clause 59(1). As it was enacted, the whole of section 66(1)(b) is ‘new’, i.e. there was no corresponding list of items amounting to harm in the draft legislation. Thus the fact that section 66(2) refers to section 66(1) in its entirety (and not just section 66(1)(a)) seems to us to suggest that there was a deliberate legislative decision that section 66(2) should be subject to the whole of section 66(1) including section 66(1)(b) which lists the types of harm that must be established. In the end the analysis seems to us to confirm that the interpretation which appears from the plain meaning of the words used was exactly what was intended.

134. Putting the fact that section 66(2) does not refer to section 66(1)(a) only, even if clause 59 had been enacted as it was (i.e., with clause 59(1) using the words ‘if and only if’ and clause 59(2) beginning with the words "Without limiting ...’) we would still have been confronted with exactly the same issue as is now raised in respect of section 66. Our conclusion would have been the same as for section 66 in its present form, and for the same reasons. We do not think that reference to clause 59 assists the Privacy Commissioner’s argument in respect of section 66.

Interpretation of section 66: Conclusion

135. For all of these reasons, it is our view that there is nothing in the authorities or in the legislative and contextual background against which the Privacy Act was enacted that prevents us from approaching the interpretation of sections 66(1) and (2) in a way which accords with the plain meaning of the words used.

136. The subsections are not independent. It follows that in our view the Tribunal must be satisfied that there has been some harm (that is, adverse consequences of a kind specified in section 66(1)(b)(i) to (iii)) in every privacy case before there is any power to grant a remedy under section 85 (1) of the Act.

Was there any harm in this case?

137. We have set out the evidence in relation to harm at the time that the access request was refused at paragraph 42 above.

138. We do not regard the disappointment which the Jans’ felt in late 2000 when they were not given access to personal information to be sufficient to establish ‘significant’ humiliation, loss of dignity or injury to feelings. Furthermore, although we appreciate that there is inevitably some stress associated with bringing a claim to the Tribunal, we do not think that Parliament intended to include that kind of stress in section 66(1)(b)(i) to (iii) or (for that matter) section 88(1)(a) to (c).

139. There is, however, an unusual feature in this case. With the loss of the file, the Jans’ will never be able to know what might have been. We agree with the submission by Mr Grenfell that there are some similarities in this respect with the facts in Proceedings Commissioner v Health Waikato Ltd. In that case the defendant had failed to provide access to two letters which might have formed the basis of cross-examination of one of the defendant’s witnesses in the context of Employment Tribunal proceedings. After considering the Tribunal’s approach, the High Court held:

"...we are of the clear view that the evidence establishes that there was a loss of a benefit of a non-monetary kind occasioned by the denial of the opportunity to cross-examine Mr Dibble and make submissions on the letters at the Tribunal hearing. That disadvantage was exacerbated by the necessity to have to make a contested application to use the letters as fresh evidence on the appeal. The failure to take those matters into account, and to consider the loss of a non-monetary benefit in relation to them, amounts, in our judgement, to an error of law which justifies this Court interfering with the exercise of the CRT’s discretion as to remedy."

140. In our view the real detriment suffered by the Jans’ in this case is the burden of not knowing (nor now ever being able to find out) whatever it was that access to personal information about them on the Bayleys’ file might have revealed to them. It may be that if they had had access to the personal information in accordance with their request, they would have found nothing of any moment whatsoever. But given the way the matter has been handled by Mr Winter we would not expect them to accept his reassurance that there was nothing of any moment on the file.

141. In the Health Waikato case, the High Court awarded $5,000.00 on account of the loss of the benefit of being able to use the two letters in cross-examination and in submissions in the Employment Tribunal case. Had the letters been available then, as the High Court put it, the plaintiff would have felt satisfied that his case had had the best presentation possible and that he had had "... a fair crack of the whip ...". Although the circumstances are not identical, we think that the same underlying concern applies in this case.

142. Now that the file has been lost, even if litigation follows, the Jans’ will always wonder whether the outcome might have been different had they been able to have access to the personal information about them on the file held by Mr Winter. They have lost the benefit of the certainty that would have come from having access to that information. Unlike the plaintiff in Health Waikato, they will never now be able to have access to the information. In this respect their situation seems to us to be considerably worse that that of the plaintiff in Health Waikato.

143. In Health Waikato, the High Court also held that the plaintiff had suffered an injury to his feelings. On the evidence in that case it was found that he was inflamed, upset and distressed when he learned of the letters too late to be of value to him in the litigation he was involved with. In the present case, Mr Jans’ was asked more than once how he felt about what had happened in November 2000. He described his reaction as one of "great disappointment" and later "a bit more than that". As we have said, we are not persuaded that his disappointment at that time (even if it was a bit more than that) is sufficient to justify a finding of interference with privacy relying on section 66(1)(b)(iii).

144. On the other hand we think that the fact that the Jans’ will never now know what personal information there was about them in the lost file must inevitably give rise to significant humiliation, and loss of dignity and injury to feelings under section 66(1)(b)(iii). Something of the same concern was recognised by the Tribunal in Mayes v Owairaka (No.1) when it said:

"It is difficult to accept that anyone who has had information collected about them without their knowledge and then withheld from them will suffer the anxiety of wondering what is contained in that information. Acknowledging the existence of that anxiety is a small step away from accepting that humiliation, distress and loss of dignity is the probable result of such actions and that the wrongdoers must be held to account..."

145. There are differences between that case and the present one. In this case there is no allegation that information has been collected without the knowledge of the plaintiffs. Furthermore in Mayes the Tribunal ultimately refused to award damages because, on the facts, it did not consider it appropriate to do so. Despite these differences, we think that the passage referred to encapsulates part of the real injury to the plaintiffs in this case. We emphasise again that our conclusion depends on the unusual situation that applies here, namely that nothing can now be done to provide the Jans’ with the access to which they were entitled.

146. We therefore find that there has been detriment of a non monetary kind falling within section 66(1)(b)(i) in that the plaintiffs have lost the benefit of the certainty that would have come from having access to whatever personal information there was on the defendant’s file about them. In addition we find that there is significant humiliation, loss of dignity and injury to feelings under section 66(1)(b)(iii), which has been and is caused by the uncertainly of wondering what might have been contained in any personal information on the defendant’s file about them.

147. It follows that we consider that we have jurisdiction to award a remedy, including damages, in this case.

Remedy: Declaration and Damages

148. There will be a declaration pursuant to section 85(1)(a) of the Act that Mr Winter’s failure in December 2000 to provide Mr and Mrs Jans’ with access to the personal information that he held about them was in breach of Principle 6.

149. We are also satisfied that there should be an award of damages in favour of the Jans’.

150. Section 85 is the starting point in fixing damages. We have already referred to section 85(1), but note here that section 85(4) provides:

"It shall not be a defence to proceedings under section 82 or section 83 of this Act that the interference was unintentional or without negligence, but the Tribunal shall take the conduct of the defendant into account in deciding what, if any, remedy to grant."

151. In submissions at the hearing Ms Donovan suggested that Mr Winter’s conduct was such that an order for exemplary damages ought to be made against him. That gives rise to a question as to whether we have the jurisdiction to grant exemplary damages under the Act. At least at first sight section 88 suggests to us that awards of damages in the Tribunal’s privacy jurisdiction are to be fundamentally compensatory in nature, i.e., to put the harm that has been suffered to rights (in as far as money can do so).

152. That said, section 85(4) makes it clear that the Tribunal must take account of the conduct of the defendant in assessing damages. Thus although we are inclined to think that any assessment of the defendant’s conduct is primarily intended to be relevant to an assessment of the harm suffered (and for which compensation should be awarded) we do not exclude the possibility that in an appropriate case it might be proper to award damages going beyond that. Mr Grenfell used the phrase ‘aggravated damages’, and that may well be apt to describe the power that section 85(4) is intended to confer.

153. Whether our power to award damages goes so far as to allow us to award damages that are truly in the nature of a penalty is even less clear. Putting the section 85(4) aside, there is nothing in the Act which indicates to us that we might be able to impose an award of damages the underlying purpose of which is to punish or ‘fine’ a defendant for outrageous conduct. The relevant sections of the Privacy Act can be compared with section 57(1)(d) of the Health and Disability Commissioner Act 1994, which expressly provides the Tribunal with power to award damages for any action by a defendant that is in flagrant disregard of the rights of the aggrieved person. Whether that is exactly the same thing as conferring a power to award exemplary damages may be open to debate, but the absence of such a provision in the Privacy Act seems to indicate that no similar jurisdiction was intended to exist in privacy cases.

154. Because the plaintiffs did not press for exemplary damages in this case we do not, however, need to decide the point. We prefer to leave the matter open for argument in another case. Instead we propose to consider the question of what remedy is appropriate starting with a view to assessing an appropriate level of compensation, but in the process also taking into account the conduct of the defendant (as section 85(4) obliges us to do).

155. Section 85(1)(c) refers to section 88. Insofar as relevant, section 88 allows the Tribunal to award damages in respect of the loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have expected to obtain but for the defendant’s interference with his or her privacy (section 88(1)(b)). The section also allows the Tribunal to award damages for humiliation, loss of dignity and injury to feelings.

156. In this case both loss of a benefit of a non-monetary kind, and humiliation, loss of dignity and injury to feelings, have been established.

157. We consider the following matters operate to mitigate in Mr Winter’s favour in the assessment of the lost benefit and the humiliation, injury to feelings and loss of dignity suffered by the Jans’:

(a) We can only speculate what the Jans’ might have found had they had access to the personal information held about them by Mr Winter. The file may have contained a ‘smoking gun’, or not. It may be that the material it contained was entirely mundane, as Mr Winter argued. It may also be that all of the information either could have been (or can now be) re-constituted by access to the bank’s files. The award of damages needs to reflect these uncertainties, at least in the sense that if it had been established that there was some relevant and important information that had deliberately been withheld, then the award would have been higher;

(b) We have not been persuaded on the evidence that the loss of the file was deliberate;

(c) At least by the time of the hearing, Mr Winter accepted that there had been a breach of Principle 6;

(d) At least at the time that the request for access was first denied the evidence of Mr Jans went little further than to say that they (the Jans’) suffered some disappointment (although that was before the file had been lost, and therefore before they were placed in a position of permanent uncertainty about what might have been if they had been able to see whatever personal information there was about them on the file).

158. Against that, there are other factors which serve to raise the level of compensation required to reflect the loss of benefit and the humiliation, injury to feelings and loss of dignity suffered by the Jans’.

159. When confronted with the access request by the plaintiffs in late 2000 it would have been understandable if Mr Winter had been uncertain about exactly what he was obliged to do. After all, the definition of personal information is not always easy to apply. But it was quite wrong for him to try to deal with the request by writing a letter which had no basis in law, and which we have no doubt was intended to discourage the plaintiffs from pursuing their perfectly legitimate request. Certainly his attitude - as reflected in all his correspondence until shortly before the hearing will have done nothing to provide any comfort to the Jans’ about the situation they now find themselves in. In our assessment, Mr Winter dealt with the matter in a dismissive and high handed matter that can only have served to compound the humiliation, loss of dignity and injury to feelings suffered by the Jans’.

160. Although Mr Winter urged upon us that effectively all of the same information that had once been on his file could be recovered by inspecting files held by the ANZ bank, he had to accept that in the end there was no independent way of knowing whether that is so without actually being able to check one file against the other. Since that is no longer possible, the plaintiffs are left his (Mr Winter’s) word for the fact that he did not have any other personal information about them on his file and which they will never now see because the file has been lost. That is highly unsatisfactory. Again, there is nothing about the way in which Mr Winter has conducted himself throughout this matter which is likely to give the plaintiffs any comfort about that situation. Indeed it would be entirely understandable if the plaintiffs were to have the view that refusal to make the file available and the subsequent loss of the file was no more than a device to avoid making information available to them which might have been adverse to Mr Winter. We recognise that such a state of uncertainty will in itself cause considerable anxiety.

161. We award damages under section 88 for the loss of the benefit of the certainty that the plaintiffs would have had had they been given access to personal information held on Mr Winter’s files about them in the sum of $15,000.

162. We recognise that in practical terms there is likely to be some overlap between that heading of damages and the loss that has been suffered in the form of humiliation, loss of dignity and injury to feelings. Nevertheless the two are dealt with separately in the Act and we will deal with them as such.

163. We award a further $5,000 on account of the humiliation, loss of dignity and injury to feelings suffered by the plaintiffs.

Costs

164. The parties made submissions on costs at the hearing.

165. The Tribunal’s jurisdiction to award costs is contained in section 85(2) of the Act. Unlike section 85(1), section 85 (2) does not begin with a requirement for proof of an interference with privacy. We are entitled to award costs whether or not we have jurisdiction to award any other remedy under section 85(1).

166. Mr Jans’ represented himself during all of the preliminary stages of the case. Mr Grenfell was in effect retained to deal with the hearing only. At the end of the hearing Mr Grenfell informed us that to that point the actual costs incurred by the plaintiffs were in the vicinity of $1,800.00. No doubt there will have been some further expenditure because of the need to file submissions to deal with the section 66 issue.

167. We are satisfied that the Jans’ would not have pursued this matter had the Mr Winter done what he ought to have done when the privacy request was first received in November 2000. Indeed we are satisfied that even in late 2001 the Jans’ would likely have dropped their Privacy complaint had they been given access to personal information on the file - which Mr Winter still had in his possession at the time. Furthermore we consider that Mr Winter’s conduct, including but not limited to the letters that he has written and the fact that he has lost the file, makes this one of those rare cases which warrants an award of costs in favour of the Jans’ that will fully reimburse them for their actual and reasonable costs incurred in connection with the proceedings in the Tribunal.

168. Pursuant to section 85(2) we therefore order that Mr Winter is to pay all of the Jans’ actual and reasonable expenses incurred in connection with the proceedings in the Tribunal. If there are any issues about the amount to be paid in accordance with this direction then memoranda may be filed.

169. The Privacy Commissioner also asked for costs.

170. As the Privacy Commissioner’s letter of 14 September 2001 demonstrates, the Privacy Commissioner decided at that time that he would not commence proceedings against Mr Winter. Notwithstanding that he is of course entitled to appear in any privacy case.

171. We think that the Tribunal ought to approach a claim for costs by the Privacy Commissioner differently having regard to whether he (or the Director of Human Rights Proceedings) has brought the proceedings himself, or whether he has simply participated, as he is entitled to do, as an interested party in proceedings brought by an aggrieved individual. In the former case the ordinary principles in relation to costs would apply to the Commissioner as the plaintiff or the plaintiff’s representative. But in the latter situation we suspect it will be less common for the Privacy Commissioner to apply for costs and, as a general rule, we think the Tribunal ought to be more cautious about awarding costs to the Privacy Commissioner in that kind of situation as well.

172. We have come to the conclusion that as between the Privacy Commissioner and Mr Winter costs should lie where they have fallen.

Formal Orders

173. The formal orders we make are as follows:

(a) There is declaration pursuant to section 85(1)(a) of the Act that Mr Winter’s failure in November 2000 to provide Mr and Mrs Jans’ with access to the personal information that he held about them was in breach of Principle 6;

(b) Damages are awarded against Mr Winter under section 85(1)(c) and 88(1)(b) of the Act in the sum of $15,000;

(c) Damages are awarded against Mr Winter under sections 85(1)(c) and 88(1)(c) of the Act in the sum of $5,000;

(d) Pursuant to section 85(2) of the Act Mr Winter is to pay all of the Jans’ actual and reasonable expenses incurred in connection with this proceeding in the Tribunal;

(e) The application by the Privacy Commissioner for costs is dismissed.

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RDC Hindle - Chairman



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P McDonald – Member

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G J Cook - Member