You are here:
NZLII >>
Databases >>
Human Rights Review Tribunal of New Zealand >>
2005 >>
[2005] NZHRRT 1
Database Search
| Name Search
| Recent Decisions
| Noteup
| LawCite
| Download
| Help
KATHY APOSTOLAKIS v SIEVWRIGHTS Barristers & Solicitors [2005] NZHRRT 1 (14 February 2005)
Last Updated: 13 May 2005
Decision No. 01/05
Reference No. HRRT 44/03
BETWEEN KATHY APOSTOLAKIS
Plaintiff
AND SIEVWRIGHTS
Barristers &
Solicitors
Defendants
BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL
Mr R D C Hindle Chairperson
Ms P A K McDonald Member
Mr W A C
Abbiss Member
HEARING: 5 February 2004 (Wellington)
DECISION: 14 February
2005
APPEARANCES:
Ms K Apostolakis, plaintiff in
person
Mr C Langstone for defendants
Ms M Donovan for Privacy
Commissioner
DECISION
Introduction
| [1] | This is a claim under the
Privacy Act 1993 (‘the Act’). In essence the plaintiff says
she has suffered an interference with her privacy because, contrary to Principle
6 of the Act, the defendants
failed to give her access to personal information
as they should have when she asked for a copy of a letter they had written on
her
behalf in 1997. |
| [2] | Our decision is organised
under the following headings: |
| • | The conduct of the
claim |
| • | Background and findings
of fact |
| • | The competing
contentions |
| • | Does the 3 March 1997
letter contain any personal information about the
plaintiff? |
| • | Was the
plaintiff’s request on 22 April 1997 an information access request such as
to bring the Act into play? |
| • | Are there any grounds
justifying failure to make the information
available? |
| • | Was there an
interference with the plaintiff’s
privacy? |
| • | What remedy is
appropriate? |
| • | Costs in this proceeding
and in HRRT 23/03. |
The conduct of the claim
| [3] | The claim was first filed in
the Tribunal in June 2003 under HRRT No. 23/03. At that time the Privacy
Commissioner had not completed
the investigation of the matter. The defendants
(‘the firm’) filed a statement of reply, but took exception to the
claim
on the basis that the Tribunal did not then have jurisdiction to deal with
it. In due course written submissions were filed. The
Privacy Commissioner
supported the argument for the firm. After receiving a copy of Privacy
Commissioner’s submissions the
plaintiff withdrew her claim. However, the
parties were not able to agree what costs should follow. As a result it is also
necessary
for us to decide what costs should be awarded in respect of the claim
filed in June 2003, if any. |
| [4] | The Privacy Commissioner
concluded the investigation of the plaintiff’s complaint in early August
2003. A new claim was then
commenced in the Tribunal, although it was one in
which effectively the same claim as had earlier been filed was filed again. The
firm responded by filing the same statement of reply as had previously been
filed as well. |
| [5] | A telephone conference with
the Chairperson of the Tribunal took place on 19 December 2003. At that time it
was accepted that the
Tribunal had jurisdiction to deal with the complaint
brought under Privacy Principle 6. Arrangements for the hearing were made,
and
the hearing itself took place on 5 February 2004. As events transpired, the
time allowed for the hearing was only sufficient
for the completion of the
evidence. Submissions were therefore filed in writing later, the last such
submission being filed on 29
March 2004. |
| [6] | In the process the plaintiff
has purported to present a good deal of evidence which was not given at the
hearing. She has complained
that she was taken by surprise when a secretary who
worked for the firm had been called to give evidence at the substantive hearing.
She has also purported to pursue matters under Principles other than Principle
6. For the firm, Mr Langstone objected. He submits
that the firm has not had
the opportunity to test the new evidence that the plaintiff has proffered, and
that in any event the Tribunal
has no jurisdiction to deal with the matter as
under any Principles other than Principle 6. We agree. In any event, having
considered
the new material which the plaintiff has presented, we do not think
that it makes any real difference to the outcome of the case.
Nor do we accept
that the plaintiff was materially prejudiced by the fact that a secretary of the
firm gave evidence at the hearing
(and we note that the objection was not raised
until after the hearing in any event). |
| [7] | In cases where the whole
proceeding (i.e., all evidence and argument) is not completed in the time
allowed for the hearing there is
always an increased risk of delay in the
preparation of the decision, particularly if there are any complex issues to be
evaluated.
As in this case, the Tribunal members involved are often resident in
different parts of the country. Even so, we recognise that
it has taken much
longer than it should have for us to prepare this decision. We regret that, and
apologise to the parties for our
delay. |
| [8] | There is one final
preliminary matter. The case concerns a request made by a client of a legal
firm for access to information held
by the firm in its capacity as the
client’s solicitors. There are of course a number of reasons why the
information should
have been forthcoming, including (but not limited to) the
fact that the firm had effectively written the letter as agent for the
plaintiff
and her husband. There are also professional and other obligations relating to
retention of files and allowing clients’
access to files that are relevant
in the context of a legal practice. |
| [9] | Our only task, however, is
to assess whether the circumstances establish a breach of the privacy rights
conferred upon the plaintiff
by the
Act. |
Background and findings of
fact
| [10] | In the mid-1990’s the
firm acted in respect of a number of different matters for both the plaintiff
and her husband. A secretary
employed by the firm at the time indicated in her
evidence that there may have been as many as twenty or so different matters.
|
| [11] | Mr Sadler was one of the
firm’s partners. He handled commercial matters. Mr Porter was another of
the firm’s partners.
He was responsible for some of the litigation
matters that the plaintiff and her husband were involved in from time to time.
|
| [12] | In 1994 the plaintiff and
her husband bought a commercial building in Courtney Place, Wellington which was
known as ‘the Paradiso
Building’. They took title in their own
names. In order to complete the purchase they borrowed money from the New
Zealand
Guardian Trust Company Limited (‘the Guardian Trust’). As a
result the Guardian Trust was mortgagee of the
property. |
| [13] | At some point (the timing
was not clear to us) the building burnt down. The plaintiff said that the fire
was caused by the negligence
of the tenant. She and her husband made a claim on
the insurance for the building. We were told that the insurer initially paid
out on the claim, but that it subsequently sued the plaintiff and her husband to
recover what had been paid. The insurer said that
the plaintiff and her husband
had made material non-disclosures at the time the insurance cover was arranged.
Litigation in respect
of those matters commenced in August 1996. We gather that
the litigation was resolved as between the insurer and the plaintiff’s
former husband in 2003. To the best of our knowledge, the insurer’s claim
against the plaintiff has not yet been resolved
or determined.
|
| [14] | The outcome of that
litigation is not directly relevant to us, but the litigation is part of the
context relevant to the plaintiff’s
claim under the Privacy Act. We will
refer to the matter as ‘the insurance
litigation’. |
| [15] | At some point before March
1997 the plaintiff and her husband separated. We gather that the separation was
acrimonious. |
| [16] | On 3 March 1997 Mr Porter
wrote a letter to the Guardian Trust. The letter is at the centre of the claims
we have to determine, and
we set it out in full:
|
The Manager
Guardian
Trust
P O Box 913
Wellington
Attn: Mr
Sheppard
Dear Sir,
Re: Apostolakis –
Paradiso Building, Courtney Place, Wellington
I write to confirm my telephone advice of 28 February, to the effect that it
is my understanding the Fire & General Insurance
on the Paradiso building
may have been or is about to be cancelled by the
Insurer.
I note your comment that this is all handled by the Guardian Trust Office in
Auckland, and that your office may well have already
received some notification
of the cancellation of the insurance.
If we can be of any further assistance I am happy for you to contact me
further to discuss.
Yours faithfully,
SIEVWRIGHTS
[signed by John Porter’]
| [17] | The firm did not send a
copy of the letter to the plaintiff at the time. Indeed the firm has never
since been able to find its own
file copy of the letter: we were able to see a
copy of the letter only because it was obtained very much later from the
Guardian
Trust in preparation for the hearing in this Tribunal.
|
| [18] | Nevertheless, not long
after the letter was written, the plaintiff became aware that a letter had been
sent to the Guardian Trust.
Then on 10 April 1997 the Guardian Trust wrote to
the firm about the matter. The response was written by the Guardian Trust to Mr
Sadler (note that the response was not marked for the attention of Mr Porter).
We infer from that letter that, after the Guardian
Trust received the 3 March
1997 letter, an officer of the Guardian Trust made contact with the plaintiff to
discuss the situation.
The Guardian Trust letter records that the plaintiff had
by then advised it that the property did have current insurance cover,
and that
she would provide confirmation of the same. The Guardian Trust letter to Mr
Sadler also says, however, that it had asked
NZI Insurance to insure the
property but that NZI was not willing to do so. The Guardian Trust asked Mr
Sadler to ascertain urgently
whether the property was
covered. |
| [19] | By the time of the hearing
in the Tribunal the plaintiff obviously took a very dim view of the possibility
that her own solicitors
had contacted the Guardian Trust to warn it of problems
with the insurance on the property. She feared disloyalty. As we have noted,
by then she and her husband were estranged although the firm was still acting
for both of them in respect of the insurance litigation.
Mr Porter told us that
at that time his instructions on that matter were, for the most part, coming
from the husband. |
| [20] | Whatever the reasons for
the 3 March 1997 letter may have been, it is common ground that on 22 April 1997
the plaintiff went to the
firm’s offices and spoke with Mr Sadler. She
asked to have a copy of the 3 March 1997 letter. Mr Sadler allowed her to look
through his files, but they did not contain a copy of the letter. The
discussion was left on the basis that Mr Sadler would make
further enquiries
about the letter. The plaintiff said in particular that Mr Sadler was going to
talk to Mr Porter about it. |
| [21] | Mr Sadler did not give
evidence at the hearing in the Tribunal, but Mr Porter did. Mr Porter recalled
being asked about the letter
at the time, but said that he had been unable to
find it. |
| [22] | We are bound to say that
seems odd. At that time the letter had been written less than two months
earlier. If the firm’s filing
systems were as good as we were asked to
believe, then one would have thought that the firm’s file copy should have
been easy
enough to find. The letter itself is a little unusual, in the sense
that it is notification to the mortgagee of the Paradiso building
of
circumstances adverse to the owners, who were the parties represented by the
firm. Furthermore the letter was written against
the background of the
insurance litigation, so the whole question of insurance would have been one of
increased sensitivity. If
there was a commercial or contractual reason why such
a letter was written by the firm at that time, it was not explained to
us. |
| [23] | We would have thought that
there must have been a reason why the letter was written, or at least that the
circumstances would have
enhanced Mr Porter’s ability to recall the
letter, why he had written it, and where it might have been filed at the time.
Mr Porter speculated that his instruction to write the letter might have come
from Mr Apostolakis. The difficulty with that is that
it is hard to see why Mr
Apostolakis would have given such an instruction. At least on the face of
things, the writing of the letter
was not in his interests any more than it was
in the plaintiff’s interests. |
| [24] | We acknowledge that the
events took place many years before the hearing in the Tribunal, but even so we
were not given any explanation
of these matters that we regard as satisfactory.
|
| [25] | There was considerable
disagreement between the plaintiff and Mr Porter about how matters unfolded
after 22 April 1997. The plaintiff
said that she followed up her request for
the letter on different occasions, although her evidence in that respect was
imprecise.
She told us that she was fobbed off with assurances that a copy of
the letter would be sent in future, or she was told that the
letter had not been
found, and could not be found. She also said that she was unable to obtain a
copy direct from the Guardian Trust,
because the Guardian Trust took the view
that it was not entitled to provide her with a copy because of the Privacy Act.
|
| [26] | For the firm, both Mr
Porter and one of the secretaries at the firm gave evidence of lengthy and
diligent searches for the 3 March
1997 letter. We do not doubt their evidence
that, at no cost to the plaintiff, from time to time a very great deal of time
was spent
looking for a copy of the letter. Mr Porter also said, however, that
because a number of other solicitors came to act for the plaintiff
and her
husband in respect of various different matters it was not uncommon for
particular files to be inspected by other solicitors
at the firm’s
offices, or even to be delivered to other solicitors and so to leave the
possession of the firm. Mr Porter was
unable to give any confident explanation,
but he did suggest one possibility as to why the 3 March 1997 letter was never
found on
the firm’s files may have been that it was removed or lost while
the file which contained it was out of the firm’s possession.
|
| [27] | Now that a copy of the
letter has been found, Mr Porter also observed that those searching for it may
simply have been looking in
the wrong places. That is because the Guardian
Trust letter talks about "Your letter dated 3 March 1997 .. " but is
marked for the attention of Mr Sadler not Mr Porter. Apparently the early
efforts to find the letter were primarily directed
towards files kept by Mr
Sadler rather than files kept by Mr Porter. |
| [28] | The plaintiff told us that
in or about October 1998 she made a request for a copy of the 3 March 1997
letter in writing, but she was
unable to produce a copy of her request. She
said that her copy of the request had been lost when her car was broken into and
files
were stolen. She had, however, kept a note of events in her diary,
including a note that reminded her of the letter in question.
She was asked
whether the written request she said that she had sent had made it clear that,
in asking for a copy of the 3 March
1997 letter, she was acting under the
Privacy Act or whether there was anything in the letter that would have drawn
the defendants’
attention to the application of the Privacy Act. She
accepted that her letter did not contain anything of that sort. On its own
that
might not have been particularly relevant, but the discussion led the plaintiff
to make further reference to her diary notes.
|
| [29] | The notes include entries
for 13 and 15 October 1998, which record her as asking the firm for a copy of
the letter. Unfortunately,
the plaintiff had not made her diaries available to
the firm to inspect before the hearing began. When the relevant entries were
inspected by counsel at the hearing, the plaintiff accepted that she had changed
what she had written at some point, and in particular
that she had changed her
record of the date of the letter she was asking for from 4 March 1997 to 3 March
1997. That may have been
capable of a simple explanation, but when she was
pressed to explain when and why her diary notes had been changed she became very
defensive. She gave the surprising evidence that if she had known she was going
to be asked questions about her diaries she would
not have produced them, and
she would have withheld them from counsel and the Tribunal.
|
| [30] | We were left with a clear
impression that the plaintiff did not understand the obligation of pre-hearing
disclosure, and did not see
any need to ensure that all relevant material was
available even if, in her opinion, the material might be used to her
disadvantage.
The exchange also left us with some doubt about the accuracy of
information recorded by the plaintiff in her diaries. All in all,
we are not
willing to accept that there was any discrete written or other request by the
plaintiff for access to personal information
held about her by the firm in
1998. |
| [31] | The only other evidence of
a request for access to the letter that we need to note was in late 2002. We
accept Mr Porter’s
evidence that the firm searched its files thoroughly at
that time. The search involved both Mr Porter and Mr Sadler’s files,
but
the letter was not found. On 14 November 2002 the firm wrote to the plaintiff
explaining that if it had been possible to find
the letter then a copy would
have been provided, but that it could not provide that which it could not find.
(This request was not
relied upon by the plaintiff as the basis of a separate
claim; rather it was offered as evidence of the firm’s ongoing failure
to
provide access to what she had first asked for in
1997). |
| [32] | Beyond that, we do not find
it necessary to record all the detail of the contested evidence, or to determine
exactly what did or did
not happen in the period after 22 April 1997. What is
clear is that the firm did not provide a copy of the 3 March 1997 letter to
the
plaintiff as she asked on 22 April 1997, or at any time after that and before
this claim in the Tribunal was commenced. |
| [33] | The plaintiff told us she
had made contact with the office of the Privacy Commissioner around 1997.
Apparently she was told to keep
trying to get a copy of the letter from the
firm. The details of when and what contact took place between the plaintiff and
the
Office of the Privacy Commissioner are not clear. At some point a complaint
was lodged and investigated. In June 2003 the plaintiff
filed proceedings in
the Tribunal but, as we have said, that claim was premature.
|
| [34] | By letter dated 6 August
2003 the Privacy Commissioner advised the plaintiff that, relying on the
discretion in section 71(2) of the
Act, it had been decided to discontinue
investigation of the matter. That lead to the filing of the second claim in
October 2003,
which is the subject of this
decision. |
| [35] | After the second claim had
been filed there was a telephone conference with the Chairperson of the
Tribunal. The Chairperson suggested
that the parties might co-operate to see
whether the Guardian Trust would be prepared to search its files for a copy of
the 3 March
1997 letter. The firm subsequently contacted the Guardian Trust and
asked it to do so. Mr Porter told us that when he returned
from the summer
break in January 2004 he found a response from Guardian Trust, enclosing a copy
of the 3 March 1997 letter and an
account for $50 for the search.
|
| [36] | There was disagreement as
to why a copy of the letter had not been obtained from Guardian Trust by this
obvious method very much earlier.
As we have noted, the plaintiff’s
position was that she had tried to get a copy from the Guardian Trust but that
was declined
for privacy reasons (we do not know what those may have been
thought to be). From his point of view, Mr Porter said that the firm
had been
willing to give the plaintiff every assistance to secure a copy of the letter.
Be that as it may, it does not seem to have
resulted in any request by the firm
to the Guardian Trust for a copy of the letter before late
2003. |
| [37] | We find it to be surprising
(and more than a little unfortunate) that such an obvious enquiry was not made
of the Guardian Trust in
1997. Whatever the rights and wrongs of the matter, it
is extraordinary that instead of spending hours searching their files for
the
letter the firm did not simply write to the Guardian Trust to ask for a copy.
Since such a request would have been for a copy
of the firm’s own letter
it is inconceivable that the Guardian Trust would have refused to provide a
copy. Indeed if the request
had been made in 1997, it is difficult to imagine
the Guardian Trust would have charged for searching its files to locate a copy
of the letter. |
| [38] | The only reason we can find
to account for this remarkable failure of common sense was a level of animosity
that was clearly already
developing between the firm on the one hand and the
plaintiff on the other, even as early as 1997. But, once again, if the firm
had
written to the Guardian Trust in mid 1997 (as it finally did in December 2003)
we have no doubt that this particular argument
in the Tribunal would not have
eventuated. Furthermore as already noted the letter itself seems to have been a
somewhat curious
communication for the firm to have sent to the Guardian Trust,
since the firm was acting for the plaintiff and her husband. We can
appreciate
why the plaintiff’s perception about the letter was unfavourable, and that
the firm’s failure to provide a
copy of the document that should have been
easy enough to locate can only have inflamed her
suspicions. |
| [39] | On the other hand, the
plaintiff sought to attribute very sinister motives to the firm’s failure
to provide her with a copy
of the 3 March 1997 letter when she asked for it. In
effect she argued that the firm must have understood that their letter had
been
sent without her authority, and represented a serious default in terms of its
professional and ethical obligations towards her.
It is clearly her view that
everything that followed was intended by the firm to cover up the fact that such
a letter had been written
at all. |
| [40] | We do not share the
plaintiff’s assessment. The evidence does not go anywhere near
establishing the very serious allegation
that the firm deliberately destroyed or
misplaced its file copy of the letter to keep it from the plaintiff. At a
practical level
there would have been nothing to be gained by doing so. Once
the letter had been sent it was on the Guardian Trust’s files
and (as the
fact that it was found in late 2003 confirms) it could thereafter always have
been found there. Furthermore, on 15 April
1997 Mr Sadler sent both the
plaintiff and her husband copies of the letter from Guardian Trust dated 10
April 1997, which refers
to the firm’s letter dated 3 March 1997. If the
firm were indeed engaged in the sort of under-handed behaviour that the
plaintiff
alleged then it seems highly unlikely that it would have provided a
copy of the Guardian Trust’s 10 April 1997 letter to the
plaintiff. |
| [41] | In the circumstances we
accept Mr Porter’s evidence that none of the events after 22 April 1997
were intended to cover up anything
that the firm had done, or to deliberately
prevent the plaintiff from having access to a copy of the 3 March 1997
letter. |
| [42] | The plaintiff gave evidence
about the harm she said that she has suffered as a result of not having had
access to the 3 March 1997
letter when she asked for a copy of it in April 1997.
That evidence is also controversial, but we find it convenient to leave the
analysis of that to be dealt with in the context of the discussion as to what
remedy might be appropriate. |
| [43] | If the essential facts are
clear, their legal consequences are not. In our view the case raises difficult
questions on topics that
are of significant importance to the way in which the
Act works. We turn to deal with those. |
The
competing contentions
| [44] | The claim is brought under
Principle 6 of the Act which, insofar as relevant, provides as
follows: |
"Access to personal information
(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."
| [45] | The firm accepted that it
is an agency for the purposes of Principle 6. Mr Langstone submitted, however,
that there was no personal
information about the plaintiff in the 3 March 1997
letter, with a result that the firm’s failure to give the plaintiff access
to it could not be a breach of the Act. It was also submitted that, even if the
letter were found to contain personal information
about the plaintiff, the terms
in which she asked for the document in April 1997 were not such as to constitute
a request for access
to personal information sufficient to bring the procedural
requirements of Part 5 of the Act into play. Mr Langstone submitted
as well
that at relevant times the letter was either not readily retrievable, or that it
could not be found, so that the firm had
reason under section 29(2) of the Act
to refuse the plaintiff’s requests for
access. |
| [46] | The issues thus raised are
of a legal nature. The plaintiff (who represented herself) was at a significant
disadvantage in dealing
with them. However Ms Donovan took up the challenge.
She argued that the 3 March 1997 letter did contain personal information about
the plaintiff, and that the request made on 22 April 1997 was sufficient to
trigger the obligations set out in Part 5 of the Act.
She also submitted that
it was open to the Tribunal to reject the defences based on the assertion that
the letter was not readily
retrievable or that it could not be found. In her
submission there are sufficient grounds for the Tribunal to find that the
plaintiff
has suffered an interference with her privacy, and to warrant the
making of a declaration in her favour. |
Does
the 3 March 1997 letter contain any personal information about the
plaintiff?
| [47] | Both Mr Langstone and Ms
Donovan agreed that if the 3 March 1997 letter does not contain any personal
information about the plaintiff
then the plaintiff does not have any claim under
Principle 6. |
| [48] | ‘Personal
information’ is defined in section 2 of the Act as
follows: |
"personal information means information about an identifiable individual;
and includes information relating to a death that is maintained
by the
Registrar-General pursuant to the Births, Deaths, and Marriages Registration Act
1995, or any former Act."
| [49] | Definitions are also are
given for "individual’ and ‘individual concerned’ as
follows: |
"individual means a natural person,
other than a deceased natural person."
"individual concerned, in relation to personal information, means the
individual to whom the information relates."
| [50] | In Harder v The
Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 the Court of Appeal considered the
application of Principle 3 to the 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
observations: |
"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". (at page 89 para
23).
| [51] | As the Tribunal said in
Boyle v Manurewa RSA Inc (HRRT Decision 16/2003; 4 June 2003), the
way in which the Court of Appeal has addressed the issue suggests that the words
‘personal
information’ ought to be read down in some way, although
it is not altogether clear how that should be done.
|
| [52] | Mr Langstone also drew our
attention to the Tribunal’s decision in C v ASB Bank Limited [1997] NZCRT 21; (1997)
4 HRNZ 306. In that case the question was whether the defendant’s
unauthorised disclosure of bank statements of the plaintiff’s
company to
the plaintiff’s former wife constituted a disclosure of "personal
information" within the meaning of section 2 of
the Privacy Act. The plaintiff
was sole director and owner of all but one of the shares of the company. He
argued that because
he used the company bank account for personal as well as
business transactions the bank statements were to some degree personal
information
about him. The Tribunal did not accept the
argument: |
"In our view the bank statements which were disclosed contain information
about the financial transactions of the company. As such
they stand alone. We
do not accept that the conclusions that may be drawn about an identifiable
individual by the combination of
different categories of information can affect
the status of the information from which those conclusions are drawn, for the
purposes
of the Privacy Act. To do so would render the issue of what is
personal information a completely subjective exercise and the definition
in the
Act, meaningless." (page 311).
| [53] | Against the backdrop of
these two decisions, Mr Langstone argued that there is nothing in the 3 March
1997 letter that can be said
to amount to personal information about the
plaintiff. The letter is not about her at all, it is about a building and the
insurance
status of that building. |
| [54] | Mr Langstone did, however,
properly refer us to the academic commentary in relation to what the Court of
Appeal had to say in the
Harder case, and in particular to the discussion
of that subject in Butterworth’s text on Privacy Law and Practice.
In the text, the author argues for a very much less restrictive approach to the
meaning of the words "personal information" in
the Act. In her argument Ms
Donovan referred us to cases such as Proceedings Commissioner v
Commissioner of Police (CRT Decision 37/99; 16 December 1999 in which the
Tribunal held that as long as information has the capacity to identify an
individual
to some members of the public then it is ‘personal
information’, and Cornelius and Ors v Commissioner of Police and
Anor [1998] 3 NZLR 373, in which the High Court discussed whether
information held by the Police concerning the prosecution of individuals could
be characterised
as including both official and personal information. At page
380 of the decision the Court found that: |
". . .any information which relates to a criminal prosecution can be
described as "personal" to the suspect or accused because he
or she is
implicated in the offending. Such information does not have to be "about" the
suspect or defendant in a directly personal
way . . .".
| [55] | Ms Donovan also referred us
to Commissioner of Police v Ombudsman [1985] 1 NZLR 578 in which Jeffries
J found that the word "information" is not confined to the written word but
embraces any knowledge, however gained
or held. In the Court of Appeal in the
same case, McMullan J referred to the ordinary dictionary meaning of
"information" as denoting
"that which informs, instructs, tells or
makes aware" ([1988] 1 NZLR 385 at p.402).
|
| [56] | In Ms Donovan’s
submission the wider approach advocated by the academic commentators, and
supported by authorities such as Commissioner of Police v Ombudsman, is
to be preferred to the narrower (and obiter) comments of the Court of Appeal in
the Harder case. She submitted that the 3 March 1997 letter begins by
naming the plaintiff (or at least identifying her surname) in the heading.
Although the plaintiff is not the subject of the letter, Ms Donovan argued that
the content of the letter is about a property owned
by her, and that the link
between the property and the plaintiff is signalled by the reference to her name
in the title to the letter.
Ms Donovan says that naming the plaintiff must be
taken to have been necessary in order to identify the subject of the letter to
its intended recipient. The information in the letter was given on behalf of an
individual (more correctly, the two individuals
who owned the building), and was
written to the mortgagee of a building owned by them concerning a mortgage which
secured a debt
owed by them. Ms Donovan submitted that those elements give the
letter sufficient connection to the plaintiff to justify the conclusion
that
what was written in the letter incorporated personal information about the
plaintiff. |
| [57] | As Mr Langstone correctly
submits, the observations of the majority of the Court of Appeal in the
Harder decision may have been obiter dicta, but they are
nonetheless observations that were made by the Court of Appeal in order to
inform thinking about what is or is not "personal
information" under the Act.
The Court of Appeal’s commentary can hardly be dismissed by the Tribunal;
to the contrary, what
the Court of Appeal has had to say must at least be highly
persuasive in any argument on the matter in the Tribunal. In addition,
the
principal authorities referred to by Ms Donovan pre-date the enactment of the
Act , so that there is a limit as to how far the
discussion in those cases can
help to inform the proper approach to the interpretation given in section 2 of
the Act. |
| [58] | On the other hand, we
acknowledge the force of the observations made by the authors of Privacy Law
and Practice on the issue. To adopt too restrictive an approach to
the interpretation of "personal information" may limit the operation of the Act
in a way
that Parliament did not intend. In this kind of case, it must also be
remembered that the legislation in issue is legislation that
deals in a broad
way with human rights’ issues. It has often been said that legislation of
that kind should be given a broad
and liberal interpretation, rather than a
narrow and restrictive one: see, e.g., Coburn v Human Rights Commission
[1994] 3 NZLR 323 at pages 333 to 336, King-Ansell v Police [1979] 2
NZLR 531 at page 537 and, in the Equal Opportunities Tribunal, in H v E
(1985) 5 NZAR 333 at page 347 per Mr R P Smellie QC (as he then was).
|
| [59] | The matter is further
complicated because the answer to the question ‘Is this personal
information?’ can, we suspect,
depend on how the question is asked. If
one were to approach an observer and ask: "A owns a building which is
insured. Is the fact that the building is insured "personal information"
about A?", the answer might well be "no, it is information about the
building". On the other hand, if one were to approach the same person but
ask "Is the fact that A has insurance on her building "personal
information" about A?" then the answer might well be "yes – it is
information which tells me something about A’s rights in respect of the
building that she owns’. |
| [60] | Although the question of
how section 2 of the Act should be interpreted is a question of law, the
application of that definition in
any given case is a question of fact: having
regard to the information at issue, can it be said to be or include personal
information
about the plaintiff? In a case decided since the hearing of this
matter, the Tribunal noted: |
". . . there is no "bright line" test which separates that which is
obviously personal information about an identifiable individual from
that which
is not. Much will depend in any given case on the context in which the
information is found. There may be particular
factors in different settings
that compel a conclusion that, although the requesting individual is not named
in the information,
nonetheless there is a sufficient connection between the
information and the requester to justify a conclusion that the information
is
personal information ‘about’ the requester": see CBN v
McKenzie Associates (HRRT Decision 48/04; 30 September 2004 at para 41, and
para’s 32 to 44).
| [61] | We have come to the
conclusion that in this case it would be wrong to dismiss the plaintiff’s
claim on the basis that the letter
of 3 March 1997 does not contain any personal
information about her. We accept Ms Donovan’s submission that the
plaintiff’s
name appears in the letter, and that the letter does give some
information to the reader about the status of her insurance rights
in respect of
her building. We cannot find any reason of the kind suggested by the Court of
Appeal in Harder sufficient to conclude that 3 March 1997 letter did not
contain any ‘ ... personal information about ... ’ the
plaintiff. |
| [62] | For these reasons we
conclude that the 3 March 1997 letter does contain personal information about
the plaintiff. |
Was the plaintiff’s
request on 22 April 1997 an information access request such as to bring the Act
into play?
| [63] | It follows that when the
plaintiff asked for the letter she had all the rights of access contained in
Principle 6 of the Act. But
Principle 6 only sets the standard of access to
which agencies must adhere. The procedural provisions for enforcement of the
rights
conferred by Principle 6 are contained in Parts 4 and 5 of the Act.
Amongst other things, before a plaintiff can establish that
there has been a
breach of his or her Principle 6 rights, it must be shown that a request for
access to the information at issue
has been
made. |
| [64] | The requirements for
dealing with an information access request are set out in sections 33 to 45 of
the Act. The word "request" is
not defined. It is clear that a request can be
made informally, and there is no need for the request to be put in writing. Nor
is there any explicit requirement that the Act must be expressly invoked, or
even referred to by an individual who is asking for
access to personal
information. |
| [65] | Where an individual wishes
to have access to information and rely upon their rights under the Privacy Act
for that purpose, then obviously
the best and most effective way of
communicating the request will be in terms that expressly draw attention to the
suggested application
of the Act. In some cases, of course, the subject matter
of the request will make it perfectly clear that the requester is asking
for
access to personal information even though the Act is not expressly referred to
(an obvious example is the case of a patient
asking for access to his or her
medical records). But of course it goes too far to say that any and every
request by an individual
to an agency for access to information must be treated
by the agency as a request to which the Act applies. In our view, if there
is
no express reference to the Privacy Act in a request made by an individual to an
agency for access to information then, to be
effective as an information access
request to which the Act applies, there must at least be something about the
terms of the request
that make it reasonably clear that personal information
about the requester is or may be included in the request.
|
| [66] | Furthermore, the question
of whether or not a particular request for access to information amounts to an
information access request
under the Act must in our view be judged on the basis
of the request and the circumstances that apply at the time of the request.
Assume, for example, that a request is made for access to a document but that no
mention of the Privacy Act is made and there is
nothing in the request to signal
that the information being sought may be or may include personal information
about the requester.
Later, when information is found by the agency, it
transpires that the information was of a personal kind about the requester.
We
have real reservations as to whether that could fairly be taken into account in
determining whether the request was of a kind
that brought the provisions of the
Act into play. |
| [67] | The present case
illustrates some of these difficulties. The plaintiff went to the firm’s
offices and asked to see a copy of
a particular letter which was identified by a
date and the name of the recipient (i.e, what Mrs Apostolakis told Mr Sadler she
was
looking for was a copy of the firm’s letter to the Guardian Trust
dated 3 March 1997). The letter was known to relate to the
insurance status of
a commercial property partly owned by the plaintiff. The plaintiff did not
mention the Privacy Act, nor did
she put her request on the basis that she was
looking for access to personal information about her.
|
| [68] | In the circumstances, Mr
Langstone submitted that there was nothing about what the plaintiff asked for in
April 1997 that would or
should have alerted the defendants to the fact that her
request was an information access request to which the Act applied.
|
| [69] | On the other hand Ms
Donovan submitted that the plaintiff’s request for a copy of the 3 March
1997 letter was an information
privacy request because it was a request for
access to a document that, by the description of its content in the heading to
the letter
(i.e., the words "Re: Apostolakis – Paradiso Building, Courtney
Place, Wellington"), was likely to contain personal information
about the
requester. But one difficulty with that submission is that it presumes
knowledge of what the letter contained at the time
the request was made, and
before either the plaintiff or Mr Sadler had seen the letter or knew exactly
what it said. In particular
they could not then have been certain that the
plaintiff was named in the letter. |
| [70] | The plaintiff’s
evidence was that when she met Mr Sadler on 22 April 1997 she asked him to
provide her with a copy of the firm’s
3 March 1997 letter to the Guardian
Trust. If there had been nothing more than that, we are inclined to think that
her request would
have been insufficient to constitute an information access
request to which the Act applied. The plaintiff asked for access to a
document
which she described in terms of a reference to a specific date. One would
expect the document itself to have been on a
file kept for the plaintiff in
respect of commercial matters. We do not think that an agency who is asked to
provide a document
identified in that way and in those circumstances can
reasonably be expected to understand that the request carries with it all of
the
obligations of the Privacy Act. |
| [71] | However, in this case we
think it is safe to infer that Mr Sadler must have had some more information
about the letter than simply
the date on which it was written and its recipient.
He had, after all, sent a copy of the Guardian Trust’s letter of 10 April
1997 to the plaintiff on 15 April 1997. His letter asked the plaintiff to
contact him urgently so that he could respond to the Guardian
Trust’s
letter. Mr Sadler knew or must have had sufficient information to understand
that the plaintiff was asking him what
his firm had said to the Guardian Trust
about the status of insurance over the Paradiso building. We also note the
evidence that
Mr Sadler allowed the plaintiff to look through his files to
satisfy herself that the 3 March 1997 letter was not there. It is not
standard
for a solicitor to offer to show a client the entirety of his or her file. The
fact that Mr Sadler did so suggests that
he had been put under some pressure to
satisfy the plaintiff that he truly did not have the letter she was looking for.
|
| [72] | In the circumstances, we
conclude that Mr Sadler did know enough about the letter he was asked to look
for to understand that it would
almost certainly contain some information
relevant to the insurance status of the Paradiso building. For reasons we have
already
given we consider that to have been a kind of personal information about
the plaintiff. |
| [73] | In the circumstances we
have concluded that the plaintiff’s oral request on 22 April 1997 for a
copy of the 3 March 1997 letter
written by the firm to the Guardian Trust does
just qualify as an information access request to which the Privacy Act applied.
|
Are there any grounds justifying failure to
make the information available?
| [74] | To this point we have
concluded that the plaintiff’s request on 22 April 1997 for a copy of the
3 March 1997 letter was a request
for access to personal information held by the
firm about her. It is clear that the firm did not provide her with access to
the
letter, at least not until well after the litigation in the Tribunal had
commenced. Clearly none of the time limits allowed in sections
40 and 41 of the
Act were achieved by the firm. |
| [75] | Mr Langstone took the point
that the 3 March 1997 letter was not held by the agency in such a way that it
was readily capable of being
retrieved. On that basis he submitted that
Principle 6 did not apply at all. |
| [76] | The submission depends on
the proposition that in April 1997 the letter was not held by the firm in such a
way that it was readily
capable of being retrieved. There can be no doubt that
a letter such as the 3 March 1997 letter ought to have been retrievable from
the
firm’s files. Indeed, given that it had been written a matter of some 7
or so weeks earlier, when the plaintiff asked
for a copy of it on 22 April 1997
we would have thought that the firm should have been capable of finding it and
providing it without
any trouble. |
| [77] | There is, of course, a
possibility that the letter was mis-filed at the time it was written. Perhaps
even now it is still sitting
undiscovered in the firm’s files for an
altogether different client. But such a conclusion is at odds with the evidence
that
was given by one of the secretaries of the firm as to the competent
standard of practice in the firm’s filing systems. Furthermore,
the
evidence of exactly what was done in 1997 to try and find this letter for the
plaintiff is not clear. The secretary who gave
evidence was clearly focussing
her attention on enquiries that were later made in late 2002, when the plaintiff
was again looking
for a copy of the 3 March 1997 letter along with other
documents as well. |
| [78] | Given that the events took
place so long ago Mr Porter’s evidence about what he did to look for the
letter at the time was understandably
imprecise. It was, however, his
suggestion that the file copy of the letter may have been placed on the wrong
file at the outset,
or that it was perhaps removed while the relevant file was
out of the possession of the firm at some later time. But there is nothing
in
the evidence to establish that the files in question left Mr Porter’s
possession some time between 3 March 1997 and 22 April
1997. In these
circumstances, we find on a balance of probabilities that the letter was most
likely filed where it should have been
amongst Mr Porter’s files for the
plaintiff and her husband in 1997. Such a finding is consistent with the
evidence that the
firm had good filing systems, and also with Mr Porter’s
observation that the letter may have later been taken from the file.
|
| [79] | On that basis we consider
that the most probable explanation for the firm’s failure to find its copy
of the letter in April
1997 was that it simply did not look on the right file
for it. On that basis we have concluded that it is more likely than not that
the letter was readily retrievable at the time of the request, even though we
accept that it was not in fact retrieved. |
| [80] | In her submissions, Ms
Donovan made a suggestion that the letter might also have been readily
retrievable because (as subsequent events
have proved) a copy could always have
been obtained from the Guardian Trust. That argument seems to us to raise
difficult issues
as to whether the sources of information which an agency is
obliged to consider upon receipt of an information access request can
include
sources which are outside the agency. At first blush, that would seem to be
inconsistent with the opening words of Principle
6 ("Where an agency holds
personal information . . ."). However our conclusion that in April 1997 the
firm did in fact hold a copy of the 3 March 1997 letter in such a way that it
was
readily retrievable (even though it was not in fact retrieved at the time)
means that we are not called upon to decide this issue.
|
| [81] | Mr Langstone put the issue
of the retrievability of the 3 March 1997 letter in a different way as well. He
argued that even if Principle
6 applied the firm was entitled to decline the
access request because the information that was requested was not readily
retrievable
(see section 29(2)(a) of the Act), or that the information requested
did not exist or could not be found (see section 29(2)(b) of
the
Act). |
| [82] | In our view the argument
under section 29(2)(a) that the letter was not readily retrievable must fail for
the same reasons as the
argument that Principle 6 does not apply. We have
concluded that at the time in question the letter could readily have been
retrieved
if the firm had only looked for it in the right place.
|
| [83] | No doubt anticipating the
possibility of such a conclusion, Mr Langstone placed some emphasis in the
alternative on the fact that
the letter was not in fact found: section 29(1)(b).
|
| [84] | The evidence about the
searches that were undertaken in 1997 was far less clear and unambiguous than
the evidence of the searches
undertaken in the year 2002. Our assessment is
that it is more probable than not that in April 1997 the firm still did have its
file copy of the 3 March 1997 letter, and that it could have been found at the
firm had those who were looking for it looked in the
right place. Again, the
evidence about what searches were carried out in 1997 must be kept distinct from
the evidence of more systematic
and detailed searches that were carried out in
the year 2002. We are willing to accept Mr Porter’s hypothesis that by
2002
the document may have gone astray when relevant files were inspected by
other solicitors, perhaps when they were taken from the firm
from time to time
for that purpose. We accept that when the files were searched in a very
thorough way in late 2002 the letter was
no longer on the file, and at that time
could no longer have been found on the firm’s files for the plaintiff.
|
| [85] | But, as with the issue of
retrievability, we do not accept that the fact that a document is not found
necessarily establishes that
it could not have been found at some earlier point.
We think that the letter in this case could have been found in April 1997 when
the plaintiff first asked for it. |
| [86] | In summary, to this point
we have concluded: |
| [a] | In or about April 1997 the
firm held personal information about the plaintiff, namely a copy of its letter
dated 3 March 1997 to the
Guardian Trust regarding the insurance status of the
Paradiso building; |
| [b] | The
plaintiff’s request on 22 April 1997 for a copy of the letter amounted to
an information access request which brought the
provisions of the Privacy Act
into play; |
| [c] | The firm failed to provide
the plaintiff with access to the information as it was obliged by the Act to
do; |
| [d] | Even though the letter was
not retrieved, we consider that in or about April 1997 it was readily
retrievable; |
| [e] | The firm did not have any
good reason for its failure to provide the plaintiff with access to the
information as it should have done. |
| [87] | It follows from these
conclusions that the firm did not comply with its obligations under the Act in
respect of the plaintiff’s
information access request. There has been
undue delay in meeting the request which, by virtue of section 66(4) of the Act,
amounts
to a refusal to make the information
available. |
Was there an interference with the
plaintiff’s privacy?
| [88] | At the time the hearing in
this matter took place the High Court had not determined an appeal from the
Tribunal’s decision in
Jans v Winter (HRRT Decision 21/2003; 27
June 2003). The High Court subsequently disagreed with the Tribunal’s
conclusions in respect of
the interpretation of section 66 of the Act : see
Winter v Jans (High Court, Hamilton, CIV–
2003–419–000854, 6 April 2004, Patterson J, P J Davies and L Whiu).
The High Court
decision instructs us that despite the words "... if, and only
if, ..." in the opening part of section 66(1), when it comes to establishing
that there has been an interference with privacy under Principles
6 or 7 a
plaintiff does not need to establish that he or she has suffered harm of any of
the kinds set out in section 66(1)(b). |
| [89] | It follows that we have
been satisfied that the firm’s failure to provide the plaintiff with a
copy of the letter written to
the Guardian Trust on 3 March 1997 was an
interference with her privacy. |
What remedy
is appropriate?
| [90] | In view of our findings, we
think it clear that there should be a declaration under section 85(1)(a) of the
Act in terms that the
firm’s failure to provide the plaintiff with a copy
of its letter to the Guardian Trust dated 3 March 1997 was an interference
with
her privacy. |
| [91] | In her claim the plaintiff
sought awards of damages under section 88(1)(a) of the Act in the sum of
$100,000, and a further award
of $50,000 under section 88 (1)(c) of the
Act. |
| [92] | The best sense we were able
to make of claim for an award under section 88(1)(a) of the Act was that, in the
plaintiff’s view,
if she had had the 3 March 1997 letter in (say) April or
May of 1997 she would have known that her solicitors were being disloyal
to her
and she would have moved to other solicitors. |
| [93] | The plaintiff was asked
why, if she harboured fears that the firm might not be acting in her best
interests, she did not simply confront
it and (if necessary) withdraw her
instructions and go elsewhere. She explained that she did not feel that she was
able to do that.
She referred to a document that she thought the firm was
holding in its deeds system for safe-keeping. She told us that she feared
that
if she were to change solicitors she would have no prospect of getting that
document back. She also thought that payments that
had been made to the firm on
account of future fees in the insurance litigation might effectively have to be
forfeited. Thus, although
she told us that she harboured serious doubts about
the loyalty of her solicitors, in the result she did nothing more than to try
to
secure a copy of the letter from the firm. In fact she remained as a client of
the firm for several years after April 1997. |
| [94] | This part of the claim can
be dealt with in a summary way. We do not accept that receipt by the plaintiff
of the 3 March 1997 letter
at that time would have made any real difference
to what happened. In particular we are not persuaded that she would have moved
away from the defendant as she said she would have. In our view, if she really
did have the concerns that she reported to us at
the time of the events (i.e.,
in or about April 1997), then she would already have had ample grounds to
justify moving from the firm.
She plainly knew from her discussion with the
Guardian Trust that it had been notified of a possible breach of the insurance
covenant
in the mortgage by the defendant. |
| [95] | The evidence about monies
that had apparently been paid by the plaintiff to the firm on account of costs
was disputed. Whatever the
situation was, we do not see how moving from the
firm would have avoided the costs that were incurred in the insurance
litigation.
Furthermore, even if she had moved from the firm, it seems clear
(particularly now that we are able to see the 3 March 1997 letter)
that having
access to it would have had no bearing on the outcome of the insurance
litigation. It was irrelevant to that. Nor do
we accept that the firm could
(or would) have simply seized any money that it was holding in trust on account
of fees in the litigation.
We expect that the firm would have accounted for its
costs to the point of her leaving the firm, and that (subject to any other
legitimate liens or calls on the funds being held) any surplus would have been
returned to her. |
| [96] | As a result we did not find
her evidence that she felt unable to move from the firm at the time of the
events in question to be convincing.
There is no basis for any award under
section 88(1)(a) of the Act. It follows that this part of the claim must be
dismissed irrespective
of the outcome of the other issues
raised. |
| [97] | The more difficult question
is whether and to what extent the plaintiff has established whether she has
suffered harm by way of humiliation,
loss of dignity and/or injury to her
feelings such as to justify an award under sections 85(1)(c) and 88(1)(c) of the
Act. |
| [98] | Mrs Apostolakis drew our
attention to the way in which she said she has been treated by the firm over the
years since April 1997.
She gave evidence that she came to be seen as a
nuisance, and that she was treated as a difficult individual. Amongst the steps
she has taken to address her concerns, we gather that at some point after 1997
she complained to the Wellington District Law Society
about the
defendants’ conduct. In a letter responding to one of her complaints the
firm apparently described her as having
a ‘fixation’ about the
matter. She says that description was humiliating. She said that she had
become the subject
of ridicule (we take that to mean by the firm), and spoke of
the stress of suspicion and uncertainty of not knowing exactly what
her lawyers
had written to the Guardian Trust. |
[101] We
have expressed some reservations as to whether, in assessing if there is
liability under the Act, an agency such as the firm
should be expected to go to
external sources to retrieve information that it cannot find in its own files in
order to meet an information
access request under the Act (see para [80] above).
But when it comes to dealing with the question of remedy once liability is
established,
the Tribunal can take the conduct of the defendant into account in
assessing what remedy is appropriate. In Winter v Jans (supra), for
example, the High Court commented:
"... in assessing damages, the Tribunal has a discretion and a correct
exercise of that discretion would allow it to take into account
"aggravating
features". Although there are different statutory provisions in the United
Kingdom which may differentiate both the
human rights legislation there and the
Court’s approach to damages, it is noted that exemplary damages are not
awarded for
this type of statutory tort in the United Kingdom (see McGregor at
para 42-043). The Tribunal has a discretion to assess appropriate
damages. In
doing so, it should take into account all facts surrounding the breach.
...
Behaviour is a factor which can obviously be taken into account in assessing
the seriousness of the humiliation, loss of dignity and
injury to the feelings
suffered by the aggrieved individual, if the Tribunal is satisfied that that
behaviour increased the seriousness
of the impact upon the complaint."
(para’s [53] and [54]).
[102] One of the most striking features of this case is that the
whole problem could have been fixed so easily. The firm would have
saved both
Mrs Apostolakis and itself a very great deal of aggravation if it had simply
written to ask the Guardian Trust to supply
a copy of the letter. Alternatively
it could have given Mrs Apostolakis whatever authority she needed to approach
the Guardian Trust
directly. We consider that the firm’s failure to meet
Mrs Apostolakis’ request in that obvious way is relevant to an
assessment
of the extent of her humiliation, loss of dignity and injury to feelings. As we
have said, we can understand how the
firm’s conduct has inflamed her
suspicions about the letter, and given rise to her perception that the firm was
trying to obscure
what had really been done.
[103] It was also clear from
the evidence given for the firm that the firm had come to see Mrs Apostolakis as
unreasonable in the
way in which she made her requests and in the persistence
with which she pursued the matter. Perhaps some of her behaviours justified
such a conclusion but, in amongst all of the inter-actions between the firm and
the plaintiff, we think the firm has come to place
less importance than it
should on the fact that the plaintiff was quite entitled to ask it to provide
her with a copy of the letter.
We therefore accept her evidence that she came
to be treated as a nuisance. We also accept that has caused her some injury to
her
feelings. We consider that the circumstances do warrant a modest award of
compensatory damages under sections 85(1)(c) and 88(1)(c)
of the
Act.
[104] On the other hand there are mitigating factors to be taken
into account as well. First and foremost, we found the plaintiff’s
evidence about what she had done to follow up her request for a copy of the
letter after April 1997 to be confused and imprecise.
She referred the matter
to the Privacy Commissioner later in 1997, but aside from that there is a
reasonably long period after April
1997 during which there is no satisfactory
evidence to support her assertion that she held fundamental concerns about the
loyalty
of her solicitors, or that she was under stress specifically because of
lack of access to the letter in question. The evidence did
make it clear that a
number of disagreements emerged between the firm and the plaintiff over time,
but we have no doubt that a good
deal of the frustration and enmity expressed by
the plaintiff at the Tribunal hearing was the result of matters other than her
unsuccessful
requests to have access to the March 1997
letter.
[105] There is a collection of recent cases in the Tribunal in
which awards have been made under sections 85(1)(c) and 88(1)(c) of
the Privacy
Act in a schedule to the decision in CBN v McKenzie Associates (HRRT
Decision 48/04; 30 September 2004). Having regard to the evidence in this case
and the awards in those matters, we assess damages
in this matter in a sum of
$2,500.00.
Costs in this proceeding and in the proceedings under
23/03
[106] The plaintiff has represented herself throughout this
matter. As a result it seems unlikely that she will have incurred any
significant costs for which a claim for costs could be sustained in this
litigation. In any event, although she has succeeded in
obtaining a declaration
and a modest award of compensatory damages, her claims for a very substantial
award of damages have not succeeded.
In the circumstances, we are not inclined
to make any additional award in her favour for costs in the
litigation.
[107] With respect to the question of costs in the
proceedings filed under HRRT 23/03, we note that the papers filed in that claim
are to all intents and purposes the same as the papers filed in the later claim
in respect of which jurisdiction was accepted. There
are no filing fees payable
in the Tribunal, so neither side was put to any unnecessary cost in filing their
documents. In the circumstances,
we decline to award costs to either side in
respect of the proceedings in HRRT 23/03.
Formal
Orders
[108] Our formal orders are as follows:
(a) There is a declaration made pursuant to section 85(1)(a) of the Act in
terms that the defendants’ failure to provide the
plaintiff with a copy of
its letter to the Guardian Trust dated 3 March 1997 was an interference with her
privacy;
| (b) | The plaintiff is awarded
damages under sections 85(1)(c) and 88(1)(c) of the Act in the sum of
$2,500.00; |
(c) There will be no order for costs in
this proceeding, or in respect of the claim that was filed under HRRT 23/03.
_________________________ _____________________
Mr R D C Hindle Mr W A C Abbiss
Chairperson Member
_____________________
Ms P A K McDonald
Member
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHRRT/2005/1.html
