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You are here: NZLII >> Databases >> Human Rights Review Tribunal of New Zealand >> 2005 >> [2005] NZHRRT 8

RICHARD ANDREW CHARLES SMALL v MINISTRY OF JUSTICE [2005] NZHRRT 8 (10 May 2005)

Last Updated: 13 May 2005

Decision No. 008/2005

Reference No. HRRT 046/03

BETWEEN RICHARD ANDREW CHARLES SMALL

Plaintiff

AND MINISTRY OF JUSTICE

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

R D C Hindle - Chairperson

L Whiu - Member
G J A Kerr - Member

HEARD at WELLINGTON on 16 June 2004

APPEARANCES:

Mr R A C Small, plaintiff in person
Ms J Foster for defendant

Mr R Stevens for Privacy Commissioner

DATE OF DECISION: 10 May 2005

DECISION ON APPLICATION TO STRIKE OUT

Introduction

[1] The plaintiff says that the Registrar of the Lower Hutt Family Court failed to ensure that a Judge of that Court had all relevant personal information about him (i.e., the plaintiff) that was held by the Court, and which the plaintiff says the Judge should have had before making a decision that adversely affected him. The plaintiff says that as a result there has been a breach of his rights under Principle 8 of the Privacy Act 1993 ("the Act").
[2] The defendant (‘the Ministry’) answers that, even if all of those things were to be established in due course, nevertheless it cannot be liable under the Act because in the circumstances in question it was not an agency to which the Act applied. In particular the Ministry relies on the definition of ‘agency’ in section 2(1) of the Act which, insofar as presently relevant, provides:

"agency--

(a) Means any person or body of persons, whether corporate or unincorporate, and whether in the public sector or the private sector; and, for the avoidance of doubt, includes a Department; but

(b) Does not include--

...

(vii) In relation to its judicial functions, a court;

... ."

[3] The matter has been investigated by the Privacy Commissioner. At the time of the hearing in June 2004 it was accepted that we had jurisdiction to deal with the case in terms of sections 82 and 83 of the Act. Subsequently, and in other litigation, the Privacy Commissioner has raised a question about how far the Tribunal’s jurisdiction under sections 82 and 83 extends. By memorandum dated 1 April 2005, however, the Privacy Commissioner has confirmed that in her view the Tribunal does have jurisdiction in this matter.
[4] The argument took place in June 2004. Uncertainties created by the Privacy Commissioner’s suggested interpretation of sections 82 and 83 of the Act have played a part in the delay in delivering this decision, but it would be wrong not to recognise that our decision should have been issued sooner.
[5] As indicated to the parties in a telephone conference with the Chairperson of the Tribunal on 10 March 2005, at least in part the delay reflects the large number of hearings that were conducted by the Tribunal in 2004. The situation has been made more difficult because the Chairperson’s position has to date been a part-time one only.
[6] As from 1 May 2005, however, the Chairperson’s position is a full-time one. It is to be hoped and expected that delays of the sort suffered in this case will not occur in the future. In the meantime, we express our regret to the parties in this matter that it has taken us so long to deliver this decision.

Approach to the Argument

[7] The claim was first filed in late 2003, but an amended claim was later filed on or about 10 January 2004. That claim became the focus of the argument. In its statement of reply dated 16 February 2004, the Ministry made it clear that it did not regard itself as being subject to the Act in any way that was or might be relevant to the plaintiff’s claim. The issues thus raised came before us for hearing as preliminary questions, to be determined before any other steps are taken in the litigation. All of the parties agreed that the hearing should be approached as if the Ministry had filed an application to strike the claim out, and that the principles in relation to applications of that kind are relevant: see, e.g., Attorney-General v Prince & Gardiner [1998] 1 NZLR 262 at 267.
[8] It follows that for present purposes the Tribunal will treat all factual assertions made by the plaintiff as being capable of proof in due course. Nothing in this decision should be taken as indicating any particular view as to matters of fact that may be controversial at a substantive hearing.

The Plaintiff’s Claim

[9] On 13 February 2000 two separate sets of documents were filed at the Lower Hutt Family Court.
[10] The first set of documents was filed by the plaintiff’s estranged wife. She applied ex parte against the plaintiff for protection and other associated property orders under the Domestic Violence Act 1995. She also applied for interim and ongoing custody orders. Her applications were accompanied by an affidavit that she had made in support (we will refer to these documents collectively as "the wife’s applications"). The papers were all stamped, given a file number and entered on the Court’s tracking system. At some point they were also faxed to the Duty Judge, who was sitting in the District Court at Wellington at the time.
[11] The second set of documents that was filed on 13 February 2000 comprised various applications made by the plaintiff. In particular, the plaintiff applied for interim access, for orders preventing removal, and for orders to transfer the proceedings to another Registry of the Court. The plaintiff’s applications were accompanied by affirmations he had made to explain relevant aspects of his relationship with his estranged wife, and other pertinent matters. We do not know exactly what became of these papers, but we were told that they were allocated the same file reference number as was given to the wife’s applications.
[12] The Ministry accepted that the papers filed by the plaintiff were received by the Court before the wife’s applications were sent to the Duty Judge at Wellington. But for some reason the plaintiff’s papers were not sent to the Judge. At 2.52 pm on 14 February 2002 the Judge made orders on the ex parte applications that had been filed by the plaintiff’s wife. The Judge was not aware of the papers that had been filed by the plaintiff at that time.
[13] The plaintiff says that, if the Judge had been aware of the papers that he had also filed, then the outcome of the various applications made by his wife would have been very different. He says that as a result of the orders that were made on an ex parte basis on 14 February 2002 he has suffered considerable harm, including injury to feelings, loss of dignity and humiliation.
[14] We emphasise that the plaintiff has not made any criticism of the way in which the Judge dealt with the papers that were put before him on 14 February 2002. The plaintiff recognises that the Judge could only respond to what was in front of him. The real problem was that the information that the Judge had was incomplete. It is for this reason that the plaintiff relies on Principle 8 of the Act which is in the following terms:

"An agency that holds personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, information is accurate, up to date, complete, relevant, and not misleading."

The Argument for the Ministry and the Privacy Commissioner

[15] The essential submissions advanced for the Ministry were these:
[a] The phrase "In relation to its judicial function, a court" in section 2(1)(b)(vii) should be given a wide interpretation, so as to apply not just to a Judge’s adjudicative responsibilities but also to all actions connected with the Court’s judicial functions, regardless that they may be administrative in nature;
[b] Common sense and public policy support the view that the term "In relation to its judicial functions, a court" should be given a wide meaning of that kind;
[c] There are proper means through which errors that may be made by a Court (whether as a result of acts or omissions by registry staff or judicial officers) can be corrected. It was submitted, for example, that there are other more obvious avenues not involving the Privacy Act available to a litigant where orders are made against that litigant on an ex parte basis. It was said that to allow the plaintiff’s claim in this case would be to effectively create an unwarranted and collateral ground to attack the decisions of a Court under the Privacy Act, and would not be consistent with the definition of the word "agency" in the Act.
[d] The reason why the exception for Courts is worded as it is, is to leave open a possibility that complaints can be brought under the Privacy Act where an administrative mishandling of information in relation to non-judicial functions occurs (a suggested example was the improper use, storage, or acquisition of employee records of Court staff).
[e] It was submitted that judicial officers cannot perform their functions without the assistance of Court staff. It was argued that this is reflected in the Act itself, because the exception in section 2(1)(b)(vii) refers to a ‘court’ (that is, the institution) rather than a ‘judge’ (that is, the relevant judicial officer).
[f] There was also an argument that, in any event, the Registrar did not ‘use’ the information when it was supplied to the Judge, with the result that even if the Act were to apply then no breach of Principle 8 could be established in any event.
[16] Mr Stevens appeared for the Privacy Commissioner. His submissions were broadly in sympathy with those made for the Ministry, although he did not accept that the Registrar of the Court (or his or her staff and officers) are ipso facto part of the ‘court’ as referred to in section 2(1)(b)(vii). Nonetheless he submitted that in this case there was a sufficient connection between what the Registrar did (or failed to do) and the judicial function that was being exercised by the Judge to bring the Registrar’s conduct within the exception. Mr Stevens also observed that the receipt of applications of the kind at issue in this case is an indispensable part of the judicial function of a Court when it considers such matters because, unless the material is received via the registry, there would be nothing for the Court to consider.
[17] The submissions for the Privacy Commissioner did not specifically address the terms of Principle 8, but nonetheless concluded (with the Ministry) that the plaintiff’s claim should be dismissed at this stage on the basis that the Act simply does not apply to the Ministry in the circumstances.

Some Preliminary Matters

[18] As we have indicated, the plaintiff makes no complaint about the way in which the Judge dealt with the matter on 14 February 2002. His criticisms are directed towards what the relevant court staff did or failed to do.
[19] Because of the way in which the matter was argued we do not yet know what actually happened to the plaintiff’s papers. In the circumstances we will refer to the steps that were or should have been carried out by court staff as being steps by ‘the Registrar’ or in ‘the registry’, as context requires. There is no significance in this; it is intended only as a way of identifying steps that were taken other than by the Judge.
[20] Both the Privacy Commissioner and the Ministry observed that there is potential for uncertainty about exactly what the words ‘a court’ mean in section 2(1)(b)(viii) of the Act.
[21] At a practical level, those who work in an institution such as ‘the Lower Hutt Family Court’ are employed by the Ministry. The Judges are, of course, independent but they are not retained by the ‘court’ (in the sense of, for example, the Lower Hutt Family Court) either. Notwithstanding these kinds of concerns, we are inclined to accept that the Act is capable of applying to a ‘court’ as that word is used in normal parlance. It is common to talk of a ‘court’ as a recognisable institution (as in this case, ‘the Lower Hutt Family Court’) even if it is not, strictly speaking, a separate legal entity. In this case, for example, we have no doubt that those who practise in the area and whose lives are affected by the work of the Lower Hutt Family Court do not hesitate to talk about that Court as if it did have a distinct identity.
[22] We think that this kind of pragmatic approach is contemplated by the Act. The definition of ‘agency’ begins by making it clear that the Act applies to any ‘body of persons, whether corporate or unincorporate’. We were not referred to any authorities directly relevant to this point, but the plaintiff did draw our attention to the legislative history of the words in section 2(1)(b)(vii). In the Privacy of Information Bill as introduced to Parliament on 5 August 1991 the relevant exception referred simply to ‘a court’. When the Bill was reported back for its second reading on 30 April 1993 the words ‘in relation to its judicial functions’ had been added. The then Minister of Justice made it clear that the change was intended to reflect the traditional constitutional separation of administrative and judicial roles when he said:

"There are some obvious exceptions [to the Act] for constitutional reasons – for example, the Bill does not cover the Governor-General or Judges in their judicial capacity".
(Hansard 20 April 1993; New Zealand Parliamentary Debates, Volume 534 page 14 721 - we will mention this passage from Hansard again later in this decision)

[23] We agree with the plaintiff that the way in which the exception in section 2(1)(b)(vii) is worded makes it clear that the definition of agency does not exclude all activities of a ‘court’ (whatever that is). Both the Ministry and the Privacy Commissioner accepted that there are some functions of a ‘court’ that will not fall within the exception – i.e., in respect of which the ‘court’ clearly is an agency for the purposes of the Act. The example most often referred to was the function of dealing with staff related matters. We think we are also entitled to take notice of the fact that the Ministry is involved in the implementation of policy, and no doubt also in educational activities as well. None of those are activities in respect of which the Ministry would be excepted from the Act, even if they could be identified as being functions of a ‘court’.
[24] For the sake of completeness we should note that when the events at issue took place, the Lower Hutt Family Court was operated under the auspices of what was then the Department for Courts. The Department for Courts was brought into the Ministry of Justice in or about October 2003. Notwithstanding that, and despite some uncertainty as to exactly what a ‘court’ is, the Ministry accepted that it had been properly named as the defendant in this proceeding (without, of course, conceding that the Act applies to it in the circumstances).
[25] The Ministry’s confirmation that it has been correctly named as the defendant means that it is not necessary for us to decide in this case exactly what constitutes ‘the Lower Hutt Family Court’ or (for that matter) a ‘court’.
[26] During argument there was some discussion as to exactly how the plaintiff’s criticisms about what the registry had done with his papers could be brought under Principle 8. The plaintiff accepted that it would not be realistic to expect the registry to check the contents of applications or the content of affidavits and other materials to ensure that they are accurate, up to date, relevant and not misleading. The evaluation of material of that kind is properly the province of the Judge, not the Registrar.
[27] The plaintiff argued, however, that Principle 8 was nonetheless contravened because the information that was forwarded to the Judge was not complete. It did not include the material that he had filed. To the extent that the information put before the Judge was not complete, the plaintiff also submitted that (by reason of being incomplete) it was inaccurate and misleading.
[28] Because the matter has come to us on a preliminary point we have not seen all of the relevant court papers. We therefore proceed on an assumption that in due course it will be established that the wife’s application contained personal information about the plaintiff, and that his papers also contained information of that kind – so that when the Judge had only the wife’s application, he did not have a complete set of all relevant personal information about the plaintiff that had by then been filed at the registry. We make the point because, whatever rights the plaintiff may have under the Act, they must ultimately be related to that which is said to constitute the relevant personal information about him. It will not be enough for him to say that there were other papers that the Judge should have seen unless those other papers contained personal information about him. Of course, all questions about what the information was, whether it was incomplete (and, if so, whether it was therefore inaccurate or misleading in ways that were material to the outcome), and what the consequences for the plaintiff were as a result of any interference with his privacy, await consideration at a substantive hearing.

Is Whatever Happened Beyond the Scope of the Privacy Act?

[29] We turn to deal with the central question: Is what the registry did (or failed to do) with the plaintiff’s papers sufficiently closely connected with the court’s judicial function as to be beyond the scope of the Act?
[30] During argument we were referred to a number of authorities that have discussed the distinction between functions that can be described as ‘administrative’ and those that can be described as ‘judicial’. Broadly speaking, the Ministry and the Privacy Commissioner invited us to categorise the acts or omissions of the registry as being sufficiently close to the judicial function to bring them within the words which exclude the judicial functions of a court from the operation of the Act. The plaintiff, on the other hand, invited us to hold that what the registry staff did or omitted to do is better categorised as ‘administrative’ in nature.
[31] In the end, our task is to interpret the Privacy Act having regard to the words that are used and the purposes for which the legislation was enacted. We accept of course that the Act does not expressly limit the exception to that which is done or omitted by a Judge (although as noted that was the way in which the exception was described by the Minister of Justice when the Privacy of Information Bill was reported to the House for its second reading).
[32] Even so we are inclined to think that, although what is excepted is that which is related to the judicial functions of a court, the use and the juxtaposition of the words ‘judicial’ and ‘court’ in section 2(1)(b)(vii) indicate that the exception ought not be stretched to include that which is essentially administrative in nature.
[33] Any application of the kind of functional analysis that was undertaken in CIR v B [2001] 2 NZLR 566 to the circumstances at issue here must lead to the conclusion that the tasks of receiving papers, logging them and referring them to the appropriate judicial officer are administrative tasks. Indeed the Ministry and the Privacy Commissioner accepted that the tasks are administrative, but submitted that they are nonetheless so essential a part of the judicial task that they must be treated as being within the exception anyway. The Ministry in particular submitted that the administrative tasks here should not be seen as distinct from the judicial function of the court because, without the registry, there would be nothing for the Judges to do.
[34] We do not accept that. There are no doubt many judicial functions which could not be carried out in the absence of a proper administrative platform, but in our view it does not follow that the administrative task therefore has so close a relationship to the judicial function to warrant the conclusion that it is excepted from the scope of the Act. In this respect, we consider that there is force in the plaintiff’s submissions as to the proper approach to the interpretation of an Act such as the Privacy Act.
[35] The Privacy Act is part of the package of New Zealand’s human rights legislation. It was common ground that it ought to be interpreted liberally in accordance with its objectives. Where Parliament has seen fit to introduce an exception, of course that exception must be identified and applied on the basis that Parliament intended it to exist and to be respected. But in cases in the margin, where the extent of an exception is not clear-cut, then we think it is appropriate to err on the side of limiting rather than expanding the exception. The effect of the interpretation for which the Ministry and the Privacy Commissioner argued would, of course, be to limit the application of the Act somewhat. It is a factor that we regard as relevant to the assessment of how the exception should be interpreted, and one which supports the outcome for which the plaintiff contends.
[36] During the course of argument we were referred to a number of authorities. We deal with the more significant ones.
[37] In support of its argument the Ministry referred to Baigent’s Case (Simpson v Attorney-General [1994] 3 NZLR 667). That case concerned allegations arising out of the execution by a police officer of a search warrant that had been issued by a Registrar of the District Court. The focus of the case had to do with the conduct of the police officer rather than the Registrar, but amongst the points taken by the defendant was that the police officer was protected by section 6(5) of the Crown Proceedings Act 1950:

"No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process"

[38] The Court of Appeal held that (absent bad faith) the section would prevent any claim against the Crown on the basis that the search warrant had been executed unreasonably. It was submitted that the reasoning was consistent with the Ministry’s submission in this case which asks us to recognise that what might appear to be a non-judicial function (in Baigent’s Case, a police officer purporting to execute a search warrant) is nonetheless within the scope of an immunity given for responsibilities that are of a judicial nature.
[39] But in our view there are several difficulties with that submission. Amongst other things, Baigent’s Case considers the position of a police officer who was acting after what clearly was a judicial process (i.e., the exercise of the Registrar’s discretion to issue a search warrant) had been carried out. The warrant was the authority upon which the officers were acting. By contrast, in the present case there was no judicial process before the papers were sent to the Judge. Nor can the registry staff say that they were acting pursuant to any judicial authority.
[40] A sense of what the Court of Appeal had in mind when using the word ‘judicial’ is conveyed by a passage in the judgment of Casey, J. His Honour referred to the decision of Lopes L J in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431; 452:

"The word ‘judicial’ has two meanings. It may refer to the discharge of duties exercisable by a judge or by justices in court, or to administrative duties which need not be performed in court, but in respect of which it is necessary to bring to bear a judicial mind – that is, a mind to determine what is fair and just in respect of the matters under consideration."

Of this Casey, J said:

"Section 6(5) refers to ‘judicial process’ which is broader than ‘judicial act’ or ‘judicial order’. Accordingly it seems appropriate to adopt the second of Lopes L J’s meanings and I agree with Greig, J that the issue of the warrant is such a process ..."

[41] We cannot see that there was anything that was done or that should have been done by the Registrar in this case before the papers were delivered to the Judge that could possibly be described as ‘judicial’ in the sense in which that word is discussed in Baigent’s Case.
[42] The Ministry also referred us to Crispin v Registrar of the District Court [1986] 2 NZLR 246. The decision predates the enactment of the Privacy Act and needs to be approached with that in mind. But in any event, like Baigent, the case deals with something that was done (namely recording the plaintiff’s name as a judgment debtor) after and as a consequence of the exercise by the Registrar of a discretion as to whether or not to enter a default judgment. Furthermore McGechan J made it clear in his decision that he was not saying that the immunity in section 6(5) of the Crown Proceedings Act 1950 was to be applied to purely administrative tasks carried out by the Registrar without any judicial element, and not in themselves being part of a judicial step: see also Seatrans (Fiji) Ltd v Attorney-General [1986] NZHC 42; [1986] 2 NZLR 240.
[43] We accept that as a matter of logic and policy there are good reasons to treat the steps taken in the execution of the outcome of a judicial process as being part of that process for the purposes of immunity. The point is illustrated by the decision in Quinland v Governor of Swaleside Prison & Ors [2002] EWHC 396; [2003] 1 All ER 1173, to which we were also referred by the Ministry. There a prisoner was held in custody for longer than he should have been, but the error which led to that outcome was ultimately that of the Judge who had first sentenced the plaintiff. The defendant prison governor could not therefore be liable for false imprisonment in respect of the period after which the prison term should have ended.
[44] In the present case, however, on the information provided to us we are unable to find any ‘judicial’ process, or discretionary step required of the Registrar, before the papers were delivered to the Judge.
[45] The plaintiff drew our attention to a number of other authorities, including one that has some particular relevance because it deals with issues under comparable privacy legislation in Australia. It is not directly on point, but in our assessment the decision does go some way to supporting the interpretation of section 2(1)(b)(vii) for which the plaintiff in this case argued.
[46] The decision is that of the Australian Administrative Appeals Tribunal in Re Altman and the Family Court of Australia (1992) 27 ALD 369. The plaintiff there successfully invoked the Freedom of Information Act 1982 (Cth) to secure access to the transcript of a decision that had been given orally by a Family Court Judge in respect of proceedings in which she (the plaintiff) was involved as a party (the plaintiff had a copy of the settled version of the decision, but nonetheless wanted to see the transcript of what had been said when it was delivered orally). Unlike the Privacy Act in New Zealand, the legislation in question includes a definition of ‘a court’, and the statutory context of the discussion is not quite the same as in the present case. Nonetheless the plaintiff in this case drew our attention to the following:

[a] The Tribunal found that the Principal Registrar of the Family Court, when acting as the Principal Registrar of the Family Court, is clearly not acting in a quasi-judicial capacity for the purposes of the Freedom of Information Act (the situation would be otherwise if, for example, he were granting a dissolution of marriage);
[b] The Tribunal noted that registry staff acting as registry staff (‘that is, as the administrative arm of the court’) are expressly included in the definition of ‘agency’ in the Australian Act. (We add that the relevant definition excludes those who hold judicial office by reference to the fact that they hold judicial office, rather than because of the nature of the function that is in issue);
[c] The Tribunal drew attention to the fact that ultimately the question is one of interpretation:
"The FOI Act is, as its name suggests, concerned with the freedom of information. The FOI Act does not simply create a right of access where no positive right of access existed before; it may also create a right of access where access was actually denied in the past on a specific ground. Information or documents which may not be available through other channels will on occasion be available through the FOI Act. When deciding whether a document of an agency is an exempt document or is not subject to the FOI Act it is necessary to refer this decision to some provision of the FOI Act. ... This is not to say that the policy considerations underlying ... refusals of access [in other contexts] will never be relevant, but they will be relevant only in so far as they are relevant to the FOI Act. The fact that access has not been given to a document in the past is of itself of no significance";

[47] We are dealing in the present case with the different topic of whether what the registry staff did or failed to do with the plaintiff’s papers was sufficiently closely connected to the court’s judicial function that it should be treated as being beyond the scope of the Privacy Act. But we think there is force in the submission that our approach should be in line with the approach of the Administrative Appeals Tribunal. Certainly we respectfully agree with and adopt the proposition that, in a case of this kind, the analysis of authorities taken from other contexts must give way to an appropriate interpretation of what the Act actually says.
[48] Part of the argument for the Ministry was that, if we were to decide that the exception in section 2(1)(b)(vii) of the Act is not applicable in this case, then the Privacy Act might intrude into the operation of Court practice in a way that was unmanageable.
[49] We do not accept that. It needs to be remembered that whatever occurred in this case only occurred because the Court was dealing with the unusual and urgent situation of an ex parte application. In a majority of cases, of course, the Court will not make orders that are adverse to any given party without first hearing from that party. Such a hearing provides a mechanism by which the party that stands to be affected can ensure that the Court has received all of the information that ought to be before it before adjudication. Even in the case of ex parte applications, Court staff who handle papers can be expected to recognise and take the responsibility of making sure that the Judge who will deal with the matter has all the relevant information before having to deal with the application.
[50] For these reasons we doubt that whatever happened in this case is likely to be a common problem. We do not expect that a decision that the Privacy Act can apply in this case will give rise to any great number of claims. In any event, we think that it is only consistent with the policy of the Act to recognise that the Act applies to administrative activities of Court staff. Imagine, for example, that instead of failing to pass the plaintiff’s papers to the Judge the allegation was that court staff had disclosed the information to a third party in contravention of Principle 11 (as in, for example, Steele v Department of Work and Income HRRT Decision 12/02; 21 October 2002). We do not see how it could sensibly be argued in such a case that, because the administrative process of receiving information and logging it and passing it to the Judge is so closely connected to the judicial function itself, Parliament should be understood as having intended that the provisions of Principle 11 would not apply at all.
[51] We deal finally with the argument that there are other means through which errors made by a court (whether as a result of acts or omissions by registry staff or judicial officers) can be corrected – and that to accept that the Act applies in present circumstances gives rise to a possibility of collateral attack of Court decisions that ought not be countenanced. Again, we do not accept the argument. There is nothing in this decision that can or should be taken as suggesting that the exception in section 2(1)(b)(vii) will not apply when a court exercises a judicial function. Furthermore, the fact that there may be a remedy against the Ministry under the Act says nothing about how the dispute between the litigants in question can or should be dealt with.
[52] We accept that, as a general proposition, the existence of other ways of addressing the consequences of any contravention of the Act by court staff may be relevant to an assessment as to what harm was done, or what other remedies under the Act should be considered. If the present matter comes to a substantive hearing, for instance, we expect that there will be evidence about what the plaintiff did to address the situation he found himself in after the ex parte orders had been made by the Judge. But these are considerations that go to the issue of remedy, not whether or not, on a proper interpretation, the Act applies.
[53] For these reasons we consider that the conduct of the Registrar in receiving papers from the plaintiff and his wife, but then transferring only those received from the wife to the Judge for decision, were not activities or omissions that fall within the exception in section 2(1)(b)(vii) of the Act. They were non-judicial functions, and we consider that the Act applies to the Ministry in respect of them.

Was the Information Used?

[54] As we have noted, it was also argued that the information was not "used" by the Registrar at any time before it was passed to the Judge for decision – with a result that Principle 8 has no application in any event.
[55] The question of what constitutes "use" of information in the context of Principle 8 has been discussed in Tribunal cases such as C D v Hawkes Bay District Health Board HRRT Decision 15/02; 19 December 2002, and Henderson v CIR HRRT Decision 27/04; 10 June 2004. Those cases also refer to the authorities in the United Kingdom, including R v Brown [1996] 1 All ER 545. Despite argument on the issue in this case, however, in the application of the principles that inform this kind of decision (see Attorney-General v Prince & Gardner, supra) we think that it is premature to decide the matter. As we have said, we do not know exactly what was filed by the plaintiff, or what happened to whatever he filed after receipt by the court staff (save that the papers were not received by the Judge before he dealt with the wife’s applications).
[56] The plaintiff submitted that there is sufficient evidence that the Registrar ‘used’ personal information about him because such information about him as was contained in the papers filed by his wife was ‘used’ when it was transferred to the Judge. Although we can see it is almost certain that the wife’s applications did contain personal information about the plaintiff, we do not yet know what it was. Furthermore, the Ministry submits that simply passing the information onto the Judge was not a ‘use’ of it under Principle 8.
[57] Assuming (without deciding) that the plaintiff’s argument were to be accepted, we will still have to assess what steps were reasonable in those circumstances for the Registrar to take in transferring the information in order to meet the standards required by Principle 8. As we have already said, we cannot imagine that the Registrar had any obligation to check the information for accuracy, currency, relevance and as to whether or not it was misleading. The highest that the plaintiff can put his claim in this case is to say that under Principle 8 the Registrar at least had an obligation to check that the information was complete.
[58] Because this case comes to us on a preliminary basis, we do not know whether an assessment of the information that was in fact transferred to the Judge (and a comparison of that with the further information that had been filed by the plaintiff but was not transferred to the Judge) would lead to a conclusion that what was transferred to the Judge was incomplete in any material respect.
[59] At this point, it suffices to say that if the Act applies to the Registrar’s activities in this matter (as we have found it does), then we accept that the plaintiff has a tenable case on the issue of use that should be allowed to proceed to a substantive hearing.

Human Rights Proceedings

[60] When the claim was originally filed in the Tribunal, it was accompanied by a separate claim under HRRT No. 45/03 in which the plaintiff contended that the way in which his case had been managed by the Ministry amounted to a breach of the provisions of the Human Rights Act 1993. He subsequently withdrew that claim. We understand that the parties have since reached an agreement in respect of costs on that matter. We are not required to make a determination.
[61] The plaintiff has, however, asked us to consider whether we should direct the matter be referred back to the Human Rights Commission for further evaluation by the Commission. As we understand it, his primary concern is that the case management procedures employed by the Lower Hutt Family Court are so deficient that they give rise to a serious issue as to whether or not there is appropriate access to justice, having regard to relevant domestic legislation and relevant international instruments.
[62] A decision by the Tribunal under section 92D(2) of the Human Rights Act 1993 to refer something to the Commission for further consideration involves an exercise of a statutory discretion. In the present case, the plaintiff has not been able to articulate his concerns in such a way as to persuade us that it would be proper to exercise the discretion in favour of making such a direction. We are not entirely sure what the Human Rights Commission would be asked to consider (or to consider again). In the circumstances we decline the plaintiff’s invitation to make such an order.

Costs in this Matter

[63] There remains only the question of costs.
[64] The plaintiff has been successful and is in our view entitled to costs. He has, however, brought the claim on his own behalf and he represented himself at the hearing. On the application of orthodox principles, it seems unlikely that he is entitled to an order of costs to compensate him for the value of his time in the matter. Unless there are special circumstances that we are not aware of, it is likely his claim will have to be confined to a claim for out of pocket expenses. In addition, it may well be that at this stage of the process the proper approach should be to fix costs as costs in the cause, so that they will not be payable before the final result of the litigation is known. We have no final view of these matters, but we raise them for the parties to consider if submissions are to be filed.
[65] Having made those observations, we reserve the question of costs to be dealt with according to the following timetable:
[a] Any application for costs by the plaintiff to be filed and served within 21 days of the date of this decision;
[b] Any reply by either the Ministry or the Privacy Commissioner to be filed and served within a further 21 days.

Formal Orders

[66] The Ministry’s application to dismiss or strike out the claim at this stage is dismissed.
[67] Costs are reserved to be dealt with according to the timetable set out above.
[68] The Secretary of the Tribunal is asked to convene a telephone conference between the parties and the Chairperson of the Tribunal so that further steps in the litigation can be time-tabled.

_________________ _________________ _______________
Mr R D C Hindle Ms L Whiu Mr G J A Kerr
Chairperson Member Member

HRRT 046-03.doc(na)

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[3]	The matter has been investigated by the Privacy Commissioner. At the time of the hearing in June 2004 it was accepted that we had jurisdiction to deal with the case in terms of sections 82 and 83 of the Act. Subsequently, and in other litigation, the Privacy Commissioner has raised a question about how far the Tribunal’s jurisdiction under sections 82 and 83 extends. By memorandum dated 1 April 2005, however, the Privacy Commissioner has confirmed that in her view the Tribunal does have jurisdiction in this matter.
[4]	The argument took place in June 2004. Uncertainties created by the Privacy Commissioner’s suggested interpretation of sections 82 and 83 of the Act have played a part in the delay in delivering this decision, but it would be wrong not to recognise that our decision should have been issued sooner.
[5]	As indicated to the parties in a telephone conference with the Chairperson of the Tribunal on 10 March 2005, at least in part the delay reflects the large number of hearings that were conducted by the Tribunal in 2004. The situation has been made more difficult because the Chairperson’s position has to date been a part-time one only.
[6]	As from 1 May 2005, however, the Chairperson’s position is a full-time one. It is to be hoped and expected that delays of the sort suffered in this case will not occur in the future. In the meantime, we express our regret to the parties in this matter that it has taken us so long to deliver this decision.

[9]	On 13 February 2000 two separate sets of documents were filed at the Lower Hutt Family Court.
[10]	The first set of documents was filed by the plaintiff’s estranged wife. She applied ex parte against the plaintiff for protection and other associated property orders under the Domestic Violence Act 1995. She also applied for interim and ongoing custody orders. Her applications were accompanied by an affidavit that she had made in support (we will refer to these documents collectively as "the wife’s applications"). The papers were all stamped, given a file number and entered on the Court’s tracking system. At some point they were also faxed to the Duty Judge, who was sitting in the District Court at Wellington at the time.
[11]	The second set of documents that was filed on 13 February 2000 comprised various applications made by the plaintiff. In particular, the plaintiff applied for interim access, for orders preventing removal, and for orders to transfer the proceedings to another Registry of the Court. The plaintiff’s applications were accompanied by affirmations he had made to explain relevant aspects of his relationship with his estranged wife, and other pertinent matters. We do not know exactly what became of these papers, but we were told that they were allocated the same file reference number as was given to the wife’s applications.
[12]	The Ministry accepted that the papers filed by the plaintiff were received by the Court before the wife’s applications were sent to the Duty Judge at Wellington. But for some reason the plaintiff’s papers were not sent to the Judge. At 2.52 pm on 14 February 2002 the Judge made orders on the ex parte applications that had been filed by the plaintiff’s wife. The Judge was not aware of the papers that had been filed by the plaintiff at that time.
[13]	The plaintiff says that, if the Judge had been aware of the papers that he had also filed, then the outcome of the various applications made by his wife would have been very different. He says that as a result of the orders that were made on an ex parte basis on 14 February 2002 he has suffered considerable harm, including injury to feelings, loss of dignity and humiliation.
[14]	We emphasise that the plaintiff has not made any criticism of the way in which the Judge dealt with the papers that were put before him on 14 February 2002. The plaintiff recognises that the Judge could only respond to what was in front of him. The real problem was that the information that the Judge had was incomplete. It is for this reason that the plaintiff relies on Principle 8 of the Act which is in the following terms:

[15]	The essential submissions advanced for the Ministry were these:
[a]	The phrase "In relation to its judicial function, a court" in section 2(1)(b)(vii) should be given a wide interpretation, so as to apply not just to a Judge’s adjudicative responsibilities but also to all actions connected with the Court’s judicial functions, regardless that they may be administrative in nature;
[b]	Common sense and public policy support the view that the term "In relation to its judicial functions, a court" should be given a wide meaning of that kind;
[c]	There are proper means through which errors that may be made by a Court (whether as a result of acts or omissions by registry staff or judicial officers) can be corrected. It was submitted, for example, that there are other more obvious avenues not involving the Privacy Act available to a litigant where orders are made against that litigant on an ex parte basis. It was said that to allow the plaintiff’s claim in this case would be to effectively create an unwarranted and collateral ground to attack the decisions of a Court under the Privacy Act, and would not be consistent with the definition of the word "agency" in the Act.
[d]	The reason why the exception for Courts is worded as it is, is to leave open a possibility that complaints can be brought under the Privacy Act where an administrative mishandling of information in relation to non-judicial functions occurs (a suggested example was the improper use, storage, or acquisition of employee records of Court staff).
[e]	It was submitted that judicial officers cannot perform their functions without the assistance of Court staff. It was argued that this is reflected in the Act itself, because the exception in section 2(1)(b)(vii) refers to a ‘court’ (that is, the institution) rather than a ‘judge’ (that is, the relevant judicial officer).
[f]	There was also an argument that, in any event, the Registrar did not ‘use’ the information when it was supplied to the Judge, with the result that even if the Act were to apply then no breach of Principle 8 could be established in any event.
[16]	Mr Stevens appeared for the Privacy Commissioner. His submissions were broadly in sympathy with those made for the Ministry, although he did not accept that the Registrar of the Court (or his or her staff and officers) are ipso facto part of the ‘court’ as referred to in section 2(1)(b)(vii). Nonetheless he submitted that in this case there was a sufficient connection between what the Registrar did (or failed to do) and the judicial function that was being exercised by the Judge to bring the Registrar’s conduct within the exception. Mr Stevens also observed that the receipt of applications of the kind at issue in this case is an indispensable part of the judicial function of a Court when it considers such matters because, unless the material is received via the registry, there would be nothing for the Court to consider.
[17]	The submissions for the Privacy Commissioner did not specifically address the terms of Principle 8, but nonetheless concluded (with the Ministry) that the plaintiff’s claim should be dismissed at this stage on the basis that the Act simply does not apply to the Ministry in the circumstances.

[18]	As we have indicated, the plaintiff makes no complaint about the way in which the Judge dealt with the matter on 14 February 2002. His criticisms are directed towards what the relevant court staff did or failed to do.
[19]	Because of the way in which the matter was argued we do not yet know what actually happened to the plaintiff’s papers. In the circumstances we will refer to the steps that were or should have been carried out by court staff as being steps by ‘the Registrar’ or in ‘the registry’, as context requires. There is no significance in this; it is intended only as a way of identifying steps that were taken other than by the Judge.
[20]	Both the Privacy Commissioner and the Ministry observed that there is potential for uncertainty about exactly what the words ‘a court’ mean in section 2(1)(b)(viii) of the Act.
[21]	At a practical level, those who work in an institution such as ‘the Lower Hutt Family Court’ are employed by the Ministry. The Judges are, of course, independent but they are not retained by the ‘court’ (in the sense of, for example, the Lower Hutt Family Court) either. Notwithstanding these kinds of concerns, we are inclined to accept that the Act is capable of applying to a ‘court’ as that word is used in normal parlance. It is common to talk of a ‘court’ as a recognisable institution (as in this case, ‘the Lower Hutt Family Court’) even if it is not, strictly speaking, a separate legal entity. In this case, for example, we have no doubt that those who practise in the area and whose lives are affected by the work of the Lower Hutt Family Court do not hesitate to talk about that Court as if it did have a distinct identity.
[22]	We think that this kind of pragmatic approach is contemplated by the Act. The definition of ‘agency’ begins by making it clear that the Act applies to any ‘body of persons, whether corporate or unincorporate’. We were not referred to any authorities directly relevant to this point, but the plaintiff did draw our attention to the legislative history of the words in section 2(1)(b)(vii). In the Privacy of Information Bill as introduced to Parliament on 5 August 1991 the relevant exception referred simply to ‘a court’. When the Bill was reported back for its second reading on 30 April 1993 the words ‘in relation to its judicial functions’ had been added. The then Minister of Justice made it clear that the change was intended to reflect the traditional constitutional separation of administrative and judicial roles when he said:

[23]	We agree with the plaintiff that the way in which the exception in section 2(1)(b)(vii) is worded makes it clear that the definition of agency does not exclude all activities of a ‘court’ (whatever that is). Both the Ministry and the Privacy Commissioner accepted that there are some functions of a ‘court’ that will not fall within the exception – i.e., in respect of which the ‘court’ clearly is an agency for the purposes of the Act. The example most often referred to was the function of dealing with staff related matters. We think we are also entitled to take notice of the fact that the Ministry is involved in the implementation of policy, and no doubt also in educational activities as well. None of those are activities in respect of which the Ministry would be excepted from the Act, even if they could be identified as being functions of a ‘court’.
[24]	For the sake of completeness we should note that when the events at issue took place, the Lower Hutt Family Court was operated under the auspices of what was then the Department for Courts. The Department for Courts was brought into the Ministry of Justice in or about October 2003. Notwithstanding that, and despite some uncertainty as to exactly what a ‘court’ is, the Ministry accepted that it had been properly named as the defendant in this proceeding (without, of course, conceding that the Act applies to it in the circumstances).
[25]	The Ministry’s confirmation that it has been correctly named as the defendant means that it is not necessary for us to decide in this case exactly what constitutes ‘the Lower Hutt Family Court’ or (for that matter) a ‘court’.
[26]	During argument there was some discussion as to exactly how the plaintiff’s criticisms about what the registry had done with his papers could be brought under Principle 8. The plaintiff accepted that it would not be realistic to expect the registry to check the contents of applications or the content of affidavits and other materials to ensure that they are accurate, up to date, relevant and not misleading. The evaluation of material of that kind is properly the province of the Judge, not the Registrar.
[27]	The plaintiff argued, however, that Principle 8 was nonetheless contravened because the information that was forwarded to the Judge was not complete. It did not include the material that he had filed. To the extent that the information put before the Judge was not complete, the plaintiff also submitted that (by reason of being incomplete) it was inaccurate and misleading.
[28]	Because the matter has come to us on a preliminary point we have not seen all of the relevant court papers. We therefore proceed on an assumption that in due course it will be established that the wife’s application contained personal information about the plaintiff, and that his papers also contained information of that kind – so that when the Judge had only the wife’s application, he did not have a complete set of all relevant personal information about the plaintiff that had by then been filed at the registry. We make the point because, whatever rights the plaintiff may have under the Act, they must ultimately be related to that which is said to constitute the relevant personal information about him. It will not be enough for him to say that there were other papers that the Judge should have seen unless those other papers contained personal information about him. Of course, all questions about what the information was, whether it was incomplete (and, if so, whether it was therefore inaccurate or misleading in ways that were material to the outcome), and what the consequences for the plaintiff were as a result of any interference with his privacy, await consideration at a substantive hearing.

[29]	We turn to deal with the central question: Is what the registry did (or failed to do) with the plaintiff’s papers sufficiently closely connected with the court’s judicial function as to be beyond the scope of the Act?
[30]	During argument we were referred to a number of authorities that have discussed the distinction between functions that can be described as ‘administrative’ and those that can be described as ‘judicial’. Broadly speaking, the Ministry and the Privacy Commissioner invited us to categorise the acts or omissions of the registry as being sufficiently close to the judicial function to bring them within the words which exclude the judicial functions of a court from the operation of the Act. The plaintiff, on the other hand, invited us to hold that what the registry staff did or omitted to do is better categorised as ‘administrative’ in nature.
[31]	In the end, our task is to interpret the Privacy Act having regard to the words that are used and the purposes for which the legislation was enacted. We accept of course that the Act does not expressly limit the exception to that which is done or omitted by a Judge (although as noted that was the way in which the exception was described by the Minister of Justice when the Privacy of Information Bill was reported to the House for its second reading).
[32]	Even so we are inclined to think that, although what is excepted is that which is related to the judicial functions of a court, the use and the juxtaposition of the words ‘judicial’ and ‘court’ in section 2(1)(b)(vii) indicate that the exception ought not be stretched to include that which is essentially administrative in nature.
[33]	Any application of the kind of functional analysis that was undertaken in CIR v B [2001] 2 NZLR 566 to the circumstances at issue here must lead to the conclusion that the tasks of receiving papers, logging them and referring them to the appropriate judicial officer are administrative tasks. Indeed the Ministry and the Privacy Commissioner accepted that the tasks are administrative, but submitted that they are nonetheless so essential a part of the judicial task that they must be treated as being within the exception anyway. The Ministry in particular submitted that the administrative tasks here should not be seen as distinct from the judicial function of the court because, without the registry, there would be nothing for the Judges to do.
[34]	We do not accept that. There are no doubt many judicial functions which could not be carried out in the absence of a proper administrative platform, but in our view it does not follow that the administrative task therefore has so close a relationship to the judicial function to warrant the conclusion that it is excepted from the scope of the Act. In this respect, we consider that there is force in the plaintiff’s submissions as to the proper approach to the interpretation of an Act such as the Privacy Act.
[35]	The Privacy Act is part of the package of New Zealand’s human rights legislation. It was common ground that it ought to be interpreted liberally in accordance with its objectives. Where Parliament has seen fit to introduce an exception, of course that exception must be identified and applied on the basis that Parliament intended it to exist and to be respected. But in cases in the margin, where the extent of an exception is not clear-cut, then we think it is appropriate to err on the side of limiting rather than expanding the exception. The effect of the interpretation for which the Ministry and the Privacy Commissioner argued would, of course, be to limit the application of the Act somewhat. It is a factor that we regard as relevant to the assessment of how the exception should be interpreted, and one which supports the outcome for which the plaintiff contends.
[36]	During the course of argument we were referred to a number of authorities. We deal with the more significant ones.
[37]	In support of its argument the Ministry referred to Baigent’s Case (Simpson v Attorney-General [1994] 3 NZLR 667). That case concerned allegations arising out of the execution by a police officer of a search warrant that had been issued by a Registrar of the District Court. The focus of the case had to do with the conduct of the police officer rather than the Registrar, but amongst the points taken by the defendant was that the police officer was protected by section 6(5) of the Crown Proceedings Act 1950:

[38]	The Court of Appeal held that (absent bad faith) the section would prevent any claim against the Crown on the basis that the search warrant had been executed unreasonably. It was submitted that the reasoning was consistent with the Ministry’s submission in this case which asks us to recognise that what might appear to be a non-judicial function (in Baigent’s Case, a police officer purporting to execute a search warrant) is nonetheless within the scope of an immunity given for responsibilities that are of a judicial nature.
[39]	But in our view there are several difficulties with that submission. Amongst other things, Baigent’s Case considers the position of a police officer who was acting after what clearly was a judicial process (i.e., the exercise of the Registrar’s discretion to issue a search warrant) had been carried out. The warrant was the authority upon which the officers were acting. By contrast, in the present case there was no judicial process before the papers were sent to the Judge. Nor can the registry staff say that they were acting pursuant to any judicial authority.
[40]	A sense of what the Court of Appeal had in mind when using the word ‘judicial’ is conveyed by a passage in the judgment of Casey, J. His Honour referred to the decision of Lopes L J in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431; 452:

[41]	We cannot see that there was anything that was done or that should have been done by the Registrar in this case before the papers were delivered to the Judge that could possibly be described as ‘judicial’ in the sense in which that word is discussed in Baigent’s Case.
[42]	The Ministry also referred us to Crispin v Registrar of the District Court [1986] 2 NZLR 246. The decision predates the enactment of the Privacy Act and needs to be approached with that in mind. But in any event, like Baigent, the case deals with something that was done (namely recording the plaintiff’s name as a judgment debtor) after and as a consequence of the exercise by the Registrar of a discretion as to whether or not to enter a default judgment. Furthermore McGechan J made it clear in his decision that he was not saying that the immunity in section 6(5) of the Crown Proceedings Act 1950 was to be applied to purely administrative tasks carried out by the Registrar without any judicial element, and not in themselves being part of a judicial step: see also Seatrans (Fiji) Ltd v Attorney-General [1986] NZHC 42; [1986] 2 NZLR 240.
[43]	We accept that as a matter of logic and policy there are good reasons to treat the steps taken in the execution of the outcome of a judicial process as being part of that process for the purposes of immunity. The point is illustrated by the decision in Quinland v Governor of Swaleside Prison & Ors [2002] EWHC 396; [2003] 1 All ER 1173, to which we were also referred by the Ministry. There a prisoner was held in custody for longer than he should have been, but the error which led to that outcome was ultimately that of the Judge who had first sentenced the plaintiff. The defendant prison governor could not therefore be liable for false imprisonment in respect of the period after which the prison term should have ended.
[44]	In the present case, however, on the information provided to us we are unable to find any ‘judicial’ process, or discretionary step required of the Registrar, before the papers were delivered to the Judge.
[45]	The plaintiff drew our attention to a number of other authorities, including one that has some particular relevance because it deals with issues under comparable privacy legislation in Australia. It is not directly on point, but in our assessment the decision does go some way to supporting the interpretation of section 2(1)(b)(vii) for which the plaintiff in this case argued.
[46]	The decision is that of the Australian Administrative Appeals Tribunal in Re Altman and the Family Court of Australia (1992) 27 ALD 369. The plaintiff there successfully invoked the Freedom of Information Act 1982 (Cth) to secure access to the transcript of a decision that had been given orally by a Family Court Judge in respect of proceedings in which she (the plaintiff) was involved as a party (the plaintiff had a copy of the settled version of the decision, but nonetheless wanted to see the transcript of what had been said when it was delivered orally). Unlike the Privacy Act in New Zealand, the legislation in question includes a definition of ‘a court’, and the statutory context of the discussion is not quite the same as in the present case. Nonetheless the plaintiff in this case drew our attention to the following:

[47]	We are dealing in the present case with the different topic of whether what the registry staff did or failed to do with the plaintiff’s papers was sufficiently closely connected to the court’s judicial function that it should be treated as being beyond the scope of the Privacy Act. But we think there is force in the submission that our approach should be in line with the approach of the Administrative Appeals Tribunal. Certainly we respectfully agree with and adopt the proposition that, in a case of this kind, the analysis of authorities taken from other contexts must give way to an appropriate interpretation of what the Act actually says.
[48]	Part of the argument for the Ministry was that, if we were to decide that the exception in section 2(1)(b)(vii) of the Act is not applicable in this case, then the Privacy Act might intrude into the operation of Court practice in a way that was unmanageable.
[49]	We do not accept that. It needs to be remembered that whatever occurred in this case only occurred because the Court was dealing with the unusual and urgent situation of an ex parte application. In a majority of cases, of course, the Court will not make orders that are adverse to any given party without first hearing from that party. Such a hearing provides a mechanism by which the party that stands to be affected can ensure that the Court has received all of the information that ought to be before it before adjudication. Even in the case of ex parte applications, Court staff who handle papers can be expected to recognise and take the responsibility of making sure that the Judge who will deal with the matter has all the relevant information before having to deal with the application.
[50]	For these reasons we doubt that whatever happened in this case is likely to be a common problem. We do not expect that a decision that the Privacy Act can apply in this case will give rise to any great number of claims. In any event, we think that it is only consistent with the policy of the Act to recognise that the Act applies to administrative activities of Court staff. Imagine, for example, that instead of failing to pass the plaintiff’s papers to the Judge the allegation was that court staff had disclosed the information to a third party in contravention of Principle 11 (as in, for example, Steele v Department of Work and Income HRRT Decision 12/02; 21 October 2002). We do not see how it could sensibly be argued in such a case that, because the administrative process of receiving information and logging it and passing it to the Judge is so closely connected to the judicial function itself, Parliament should be understood as having intended that the provisions of Principle 11 would not apply at all.
[51]	We deal finally with the argument that there are other means through which errors made by a court (whether as a result of acts or omissions by registry staff or judicial officers) can be corrected – and that to accept that the Act applies in present circumstances gives rise to a possibility of collateral attack of Court decisions that ought not be countenanced. Again, we do not accept the argument. There is nothing in this decision that can or should be taken as suggesting that the exception in section 2(1)(b)(vii) will not apply when a court exercises a judicial function. Furthermore, the fact that there may be a remedy against the Ministry under the Act says nothing about how the dispute between the litigants in question can or should be dealt with.
[52]	We accept that, as a general proposition, the existence of other ways of addressing the consequences of any contravention of the Act by court staff may be relevant to an assessment as to what harm was done, or what other remedies under the Act should be considered. If the present matter comes to a substantive hearing, for instance, we expect that there will be evidence about what the plaintiff did to address the situation he found himself in after the ex parte orders had been made by the Judge. But these are considerations that go to the issue of remedy, not whether or not, on a proper interpretation, the Act applies.
[53]	For these reasons we consider that the conduct of the Registrar in receiving papers from the plaintiff and his wife, but then transferring only those received from the wife to the Judge for decision, were not activities or omissions that fall within the exception in section 2(1)(b)(vii) of the Act. They were non-judicial functions, and we consider that the Act applies to the Ministry in respect of them.

[54]	As we have noted, it was also argued that the information was not "used" by the Registrar at any time before it was passed to the Judge for decision – with a result that Principle 8 has no application in any event.
[55]	The question of what constitutes "use" of information in the context of Principle 8 has been discussed in Tribunal cases such as C D v Hawkes Bay District Health Board HRRT Decision 15/02; 19 December 2002, and Henderson v CIR HRRT Decision 27/04; 10 June 2004. Those cases also refer to the authorities in the United Kingdom, including R v Brown [1996] 1 All ER 545. Despite argument on the issue in this case, however, in the application of the principles that inform this kind of decision (see Attorney-General v Prince & Gardner, supra) we think that it is premature to decide the matter. As we have said, we do not know exactly what was filed by the plaintiff, or what happened to whatever he filed after receipt by the court staff (save that the papers were not received by the Judge before he dealt with the wife’s applications).
[56]	The plaintiff submitted that there is sufficient evidence that the Registrar ‘used’ personal information about him because such information about him as was contained in the papers filed by his wife was ‘used’ when it was transferred to the Judge. Although we can see it is almost certain that the wife’s applications did contain personal information about the plaintiff, we do not yet know what it was. Furthermore, the Ministry submits that simply passing the information onto the Judge was not a ‘use’ of it under Principle 8.
[57]	Assuming (without deciding) that the plaintiff’s argument were to be accepted, we will still have to assess what steps were reasonable in those circumstances for the Registrar to take in transferring the information in order to meet the standards required by Principle 8. As we have already said, we cannot imagine that the Registrar had any obligation to check the information for accuracy, currency, relevance and as to whether or not it was misleading. The highest that the plaintiff can put his claim in this case is to say that under Principle 8 the Registrar at least had an obligation to check that the information was complete.
[58]	Because this case comes to us on a preliminary basis, we do not know whether an assessment of the information that was in fact transferred to the Judge (and a comparison of that with the further information that had been filed by the plaintiff but was not transferred to the Judge) would lead to a conclusion that what was transferred to the Judge was incomplete in any material respect.
[59]	At this point, it suffices to say that if the Act applies to the Registrar’s activities in this matter (as we have found it does), then we accept that the plaintiff has a tenable case on the issue of use that should be allowed to proceed to a substantive hearing.

[60]	When the claim was originally filed in the Tribunal, it was accompanied by a separate claim under HRRT No. 45/03 in which the plaintiff contended that the way in which his case had been managed by the Ministry amounted to a breach of the provisions of the Human Rights Act 1993. He subsequently withdrew that claim. We understand that the parties have since reached an agreement in respect of costs on that matter. We are not required to make a determination.
[61]	The plaintiff has, however, asked us to consider whether we should direct the matter be referred back to the Human Rights Commission for further evaluation by the Commission. As we understand it, his primary concern is that the case management procedures employed by the Lower Hutt Family Court are so deficient that they give rise to a serious issue as to whether or not there is appropriate access to justice, having regard to relevant domestic legislation and relevant international instruments.
[62]	A decision by the Tribunal under section 92D(2) of the Human Rights Act 1993 to refer something to the Commission for further consideration involves an exercise of a statutory discretion. In the present case, the plaintiff has not been able to articulate his concerns in such a way as to persuade us that it would be proper to exercise the discretion in favour of making such a direction. We are not entirely sure what the Human Rights Commission would be asked to consider (or to consider again). In the circumstances we decline the plaintiff’s invitation to make such an order.

[63]	There remains only the question of costs.
[64]	The plaintiff has been successful and is in our view entitled to costs. He has, however, brought the claim on his own behalf and he represented himself at the hearing. On the application of orthodox principles, it seems unlikely that he is entitled to an order of costs to compensate him for the value of his time in the matter. Unless there are special circumstances that we are not aware of, it is likely his claim will have to be confined to a claim for out of pocket expenses. In addition, it may well be that at this stage of the process the proper approach should be to fix costs as costs in the cause, so that they will not be payable before the final result of the litigation is known. We have no final view of these matters, but we raise them for the parties to consider if submissions are to be filed.
[65]	Having made those observations, we reserve the question of costs to be dealt with according to the following timetable:
[a]	Any application for costs by the plaintiff to be filed and served within 21 days of the date of this decision;
[b]	Any reply by either the Ministry or the Privacy Commissioner to be filed and served within a further 21 days.

[66]	The Ministry’s application to dismiss or strike out the claim at this stage is dismissed.
[67]	Costs are reserved to be dealt with according to the timetable set out above.
[68]	The Secretary of the Tribunal is asked to convene a telephone conference between the parties and the Chairperson of the Tribunal so that further steps in the litigation can be time-tabled.