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Legal Aid Review Panel Decision No 210/09 [2009] NZLARP 67 (12 May 2009)

Last Updated: 11 September 2015

LARP NOs: 196/09, 209/09, 210/09, 211/09, 212/09, 213/09 & 214/09

Summary:

Refusal of aid for class action against Department of Corrections

In June 2008 a dossier belonging to the Department of Corrections was found in the street near the Auckland High Court which the finder handed to the NZ Herald. The dossier contained information about many prison inmates including the 7 applicants. The information included parole and release dates, details of pre-release, re-integration and parole accommodation matters, and had references to psychological reports, behaviour and release planning. For each of the 7 applicants there was one page of information. The amount of personal information varied - in one case there was nothing, but in others there was a significant amount. The news media reported the finding of the dossier and the general nature of what it contained, but there was no evidence that any personal information regarding any of the applicants was disclosed. On 1 July the Department wrote to each of the applicants informing them and outlining actions it had taken to prevent any further unauthorized access. These included: Recovery of the originals and all copies Sending letters from the Crown Law Office to news media outlets advising that the information was confidential and seeking undertakings not to publish Appropriate legal follow up with other news media organizations Notifying the Privacy Commissioner Notifying the applicants Taking steps within the Department to reduce the possibility of any recurrence In October 2008 the applicants’ lawyer sought legal aid for a class action against the Department for breach of privacy claiming compensation and exemplary damages. The lawyer noted that the applicants faced a risk of harassment and noted that one applicant had already been contacted by a member of the public. For each applicant $920 was sought, being 5 hours for submissions, an appearance before the court or Privacy Commissioner, research and office expenses. In later letters to the Agency the lawyer advised that aid was sought “to investigate prospects of success further” in either the Human Rights Review Tribunal, the Privacy Commissioner or in the court and gave some advice on prospects of success. The Agency referred the applications to a panel of specialist advisers. This panel reported that there was no assessment of prospects of success; the Department had attempted to ensure no harm was caused and there was no proof that any had been caused; there was no evidence that a complaint had been made to the Privacy Commissioner and it advised that this should be the first step as it could lead to a settlement without litigation. The panel also considered that damages would be at best minimal, and that exemplary damages would be unlikely to be awarded. In the case of one applicant $25,000 compensation for distress and anxiety had been suggested, but the panel considered there was no basis for such a claim. The specialist advisers advised the Agency to decline legal aid. In its subsequent refusal of aid the Agency gave the following reasons. A reasonable self funding litigant would not pursue civil action for damages, but would make a complaint under the Privacy Act 1993 which was low cost and did not require legal representation The facts did not show sufficient prospects of success to justify a grant – s9(4)(d)(i) The facts did not show reasonable grounds for taking court proceedings – s9(3) For the purposes of s9(4)(d)(ii) the existence of a low cost alternative (the Privacy Commissioner) and the nature of the claims, excluded a grant because it would not be justified in relation to the likely costs The circumstances were such that any grant would be unreasonable or undesirable under s9(4)(d)(iii) To the Panel the applicants submitted that it was unreasonable for the Agency to assume that the low cost option of complaint to the Privacy Commissioner would be preferred by a self funding litigant. That option would not result in a damages award and denying the choice would be a breach of natural justice; a group complaint to the Privacy Commissioner might need legal representation where some of the applicants were still in prison; it was arguable that the 2 elements in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) could be met and that therefore aid was needed to investigate the prospects of success of proceedings for damages; it was appropriate for the applicants to choose the option, not the Agency; and damages would be available if the applicants could prove their cases as in Brown v Attorney-General [2006] DCR 630. The Agency submitted that it had adopted the advice of a panel of specialist advisers; under s92(a) it was required to consider the cost effectiveness of the proposed course of action; legal aid was not available for a complaint to the Privacy Commissioner; the test for an invasion of privacy is whether publicity is given to a private fact which is considered offensive by a reasonable person and the applicants have not identified any facts or why it would be offensive; carelessly leaving the dossier in a public place did not amount to publication; a single inadvertent act is not gross or systematic negligence for which exemplary damages could be awarded; and there was no evidence that the extent and nature of the publicity for any of the applicants caused any humiliation or distress. In reply the applicants submitted that their applications were for Step 1 of civil proceedings, to look into prospects of success and it was for them to decide the best course of action. There were also further submissions by the applicant in LARP 213/09 as to his particular case.

The Panel made a number of preliminary points. It noted that although aid was sought for a class action against the Department, no attempt had been made to bring a representative type of proceeding. Instead there were 7 individual applications for aid, and then for review. With the amount sought for each review, the total was $6,440. The Panel also noted the contradiction in the letters to the Agency. The first letters said that the amounts sought would cover drafting submissions and appearing before the Privacy Commissioner or the court. Later letters said that aid was to investigate prospects of success. In the application to the Panel for review, the Panel noted that the applicants had not identified any specific way in which the Agency’s actions were manifestly unreasonable or wrong in law. Their argument appeared to be simply that the Agency should have granted aid which was not a sufficient basis for intervention by the Panel. If the statutory grounds were not made out the Panel could not review the Agency’s decision. The Panel noted that the specialist advice given to the Agency had been comprehensive, and that the Agency had pointed out that the appropriate remedy was to make a complaint to the Privacy Commissioner. The applicant had not provided any convincing arguments to show that court proceedings would be successful, or that the quantum of damages would justify the court proceedings contemplated based on cost considerations. The applicant had provided no detail as to the likely costs and benefits of the proposed proceedings. In the Panel’s view the Agency’s decision was consistent with its obligations under s92 to administer the legal aid scheme in an inexpensive and efficient manner. The Panel found that the Agency’s decisions were not manifestly unreasonable or wrong in law and confirmed them.


THE PANEL’S DECISION

The Outcome

The Agency's decision is to confirm the Agency’s decision.

Index Paragraph No.

Introduction [1]
Grounds of the Application [2 - 3]
The Facts [4 - 17]
The Applicant’s Submissions [18]
The Agency’s Submissions [19]
The Applicant’s Submissions in Reply [20]
The Further Submissions by One of the Applicants [21]
The Issue [22]
The Law [13 - 27]
Discussion [28 - 39]
Decision [40]

Introduction

[1] Seven applicants for legal aid (the “Applicants”) have applied for a review of decisions of the Legal Services Agency (the “Agency”) dated 5 February 2009 by which the Agency refused legal aid for a “class action” against the Department of Corrections (the “Department”).

Grounds of the Application

[2] A decision may be reviewed on the grounds that it is either manifestly unreasonable or wrong in law.

[3] The Applicant submits the Agency’s decision was either manifestly unreasonable or wrong in law or both.

The Facts

[4] Late in June 2008 a 30 page dossier belonging to the Department was found on the street near the Auckland High Court building. The finder handed the dossier to the New Zealand Herald newspaper.

[5] The dossier contained information about many prison inmates including the seven Applicants. That information concerned their parole and key release dates, parole accommodation matters, pre-release and reintegration matters, references to psychological reports, comments about attitude and behaviour, and other information about offending and release planning. This information, which varied for each applicant, was contained on one page each for each of the seven Applicants. For one of the Applicants, there was no information of a personal nature at all while for others there was a significant amount.

[6] The fact of the finding of the dossier and the general nature of what it contained were widely reported by the news media, however there is no evidence that any of the reports disclosed any of the specific personal information contained in the dossier concerning any of the Applicants.

[7] On 1 July 2008 the Department wrote to each of the Applicants informing them about what had happened, and that it had taken or was taking the following actions to stop any further unauthorised access to or use of the information:

(a) Recovery of the original dossier papers and all copies of them. Department staff had worked with a senior police officer to find and take possession of the papers and copies. It said:
“As a result, the originals and five copies were uplifted from the Auckland offices of the NZ Herald by search warrant on 20 June 2008 by the Police. The originals and copies are now back in the Department of Corrections’ control.”
(b) Arranging for Crown Law Office letters to be sent to news media outlets advising them that the information was confidential, and seeking undertakings from them not to publish or disclose any of the information, and seeking the return to the Department of any copies of the dossier papers held.
(c) “Appropriate legal follow up” with the news media organisations which had not given the undertakings and who may have had copies of the dossier papers.
(d) Notifying the Privacy Commissioner to advise what had happened and to seek advice on to how to stop any harm arising from any unauthorised use of the information.
(e) Notifying the Applicants (but not apologising to any of them).
(f) Taking steps within the Department to reduce the possibility of any recurrence.

[8] On 22 October 2008 the Applicants’ lawyer wrote to the Agency enclosing applications for civil legal aid for a class action against the Department for breach of privacy in which compensation and exemplary damages were to be claimed. This letter, dated 1 October 2008, also enclosed identical covering letters in respect of each of the Applicants. They said (inter alia) that “(t)he consequences of the disclosure of the information contained in the file are potentially significant”, that as a result the Applicants “faced a greater risk of retaliation and harassment” and that one offender who was named in the dossier had been contacted by a member of the public since leaving prison. It also said that the prospects of success were good.

[9] Each application sought five hours to cover preparation of submissions and an appearance before either the Court or the Privacy Commissioner, together with $100 for research and $50 office expenses. This would total $920.00 for each of the Applicants.

[10] In later letters to the Agency, the Applicants’ lawyer advised that legal aid was sought for a class action against the Department, “to investigate prospects of success further” for proceedings either in the Human Rights Review Tribunal through the Privacy Commissioner, or in the Court for “invasion of privacy”. He gave some advice on the prospects of success, referring to the privacy principles contained in the Privacy Act 1993 and to the Department’s policy as stated in its Operations Manual. He also briefly reviewed the law, referring to P v D [2000] 2 NZLR, Hosking v Runting and Pacific Magazines NZ Limited [2004] NZCA 34; [2005] 1 NZLR 1 (CA), and to the damages which can be claimed under s 88 of the Privacy Act 1993. He said that damages were available for humiliation, loss of dignity, and injury to feelings and to loss of benefit of privacy.

[11] The Agency referred the applications to a panel of specialist advisers, who on 21 January 2009 reported on each application. Its report on each of them was similar. It stated that no assessment on the prospects of success had been given. It also noted the actions taken by the Department to mitigate any possible loss or harm, and that no proof that there had been any such harm or injury had been provided. Nor was there any evidence that a complaint had been made to the Privacy Commissioner, who might have been able to secure a settlement, and opined that this process should reasonably be followed before resort to litigation as it offered the possibility of “a non financial no cost of process outcome ... appropriate to the degree of harm (if any) and the principle involved”.

[12] It concluded:

“It is unrealistic to now focus on damages and the notion of punitive damages particularly where there is an act of negligence, an inability to restore the person to the pre “disclosure” position, no evidence of any adverse outcome or harm or hurt or loss or injury or humiliation, and extensive mitigation and precautionary process taken by the Department” and, “based on privacy principles 5 and/or 11 ... the level of damages would be unlikely to stray from the awards enabled and foreseeable in respect of S 88”; and that in the circumstances it was “probable that damages would at best be minimal: see Hamilton HRRT 36/02 (28/03), Feather v ACC HRRT 17/03 and CBN v McKenzie HRRT 020/04 (48/04) for guidance on the scale of seriousness.”

[13] On the issue of exemplary damages the specialist adviser panel advised that it considered it an implausible remedy against the Crown for a suit based on negligence even if other remedies were regarded as insufficient. In its view, the panel advised that it would be unreasonable to expect that the court would punish the Department for negligence, particularly when no adverse effect on any of the Applicants had been shown because there had not been any publicity of the details relating to any of them.

[14] In the case of one of the Applicants the specialist adviser panel referred to a specific statement made on behalf of the Applicant that he had suffered distress and anxiety resulting from the unintended disclosure of the information by the Department, and that a claim for compensatory damages of $25,000 had been suggested. The specialist adviser panel stated in its report (21 January 2009) that there had been no basis shown for such a claim and considered that this sum would be “beyond what would ordinarily be contemplated in the context of damage awards by the Human Rights Tribunal”.

[15] For these reasons the specialist adviser panel advised the Agency to decline a grant of legal aid.

[16] The Agency accordingly wrote to all of the Applicants on 5 February 2009 refusing legal aid, based upon the reasoning given in the specialist adviser panel’s report. The specific reasons given for refusal are summarised as follows:

(a) A reasonable self funding litigant would not pursue civil action for damages in the circumstances relating to each application, but instead would make a complaint under the Privacy Act 1993, which is a low cost process not requiring legal representation.
(b) The facts disclosed by the Applicants did not show sufficient prospects of success for court proceedings to justify a grant of legal aid for the purposes of s 9(4)(d)(i) of the Legal Services Act 2000 (the “Act”).
(c) The facts disclosed by the Applicants did not show reasonable grounds under s 9(3) of the Act for taking the court proceedings contemplated by any of the Applicants.
(d) For the purposes of s 9(4)(d)(ii) of the Act, the existence of an effective low cost alternative (complaint to the Privacy Commissioner) to court proceedings, and the nature of the Applicants’ claims, excluded any grant of legal aid because none would be required for a complaint to the Privacy Commissioner, and a grant for court proceedings would not be justified in relation to the likely costs thereof.
(e) The circumstances were such that any grant of legal aid would be unreasonable or undesirable under s 9(4)(d)(iii) of the Act.

[17] The application for this review followed.

The Applicant’s Submissions

[18] The Applicants submit:

(a) They applied for legal aid on the basis that there were two options to obtain the redress sought against the Department: the Privacy Commissioner complaint procedure, and court proceedings.
(b) It is unreasonable for the Agency to assume that the low cost option of complaint to the Privacy Commissioner would be preferred by a self funding litigant. While that option may deliver vindication of the principles involved, it would not meet the Applicants’ reasonable expectations of damages where they had suffered humiliation or other damage. To deny them that option is a breach of natural justice.
(c) The process of complaint to the Privacy Commissioner may also reasonably require legal representation for a class action in circumstances where some of the Applicants remain in prison and therefore would have limited resources with which to proceed in an effective and efficient way.
(d) In the circumstances it is arguable that both of the two elements set out in Hosking v Runting (above) for a successful action based on invasion of privacy can be met by the Applicants. A grant of legal aid is therefore justified to investigate the prospects of success of legal proceedings for damages. It is therefore appropriate for the Applicants to choose the option of such an action, not the Agency. The two elements referred to are (1) a situation where there is a reasonable expectation of privacy, and (2) publicity given to private information which would be considered to be highly offensive to a reasonable person. In the cases of all of the Applicants it is clear that there would be a reasonable expectation of privacy in respect of the information concerned. This is evident from the Department’s own established policy on such matters. Very significant publicity “was given to the information when it was released”. Any reasonable person would regard this to be highly offensive because it included sensitive personal information on parole matters the release of which was “truly humiliating, distressful and otherwise harmful” to the Applicants.
(e) There is no legitimate public interest in the information released.
(f) Damages would be available if the Applicants prove their cases. In Brown v The Attorney General [2006] DCR 630 a sum of $25,000 was awarded for serious hardship resulting from an invasion of privacy, and “there can be seen to be some analogies to the Brown v The Attorney General case” and the circumstances of the Applicants’ cases because “(m)embers of the public were able to contact inmates due to the release of the information and the media picked up on the story and spread the information further”.

The Agency’s Submissions

[19] The Agency submits:

(a) It obtained the advice of a specialist adviser panel and adopted the reasoning and recommendations contained in its report of 21 January 2009 (summarised above). It repeats this as part of its submission on this review.
(b) It has an obligation under s 92(a) of the Act to administer the legal aid scheme in as inexpensive and efficient a manner as is consistent with the purposes of the Act. It must therefore consider the cost effectiveness of the courses of action available to the Applicants.
(c) Legal aid is not available for a complaint to the Privacy Commissioner who is not an administrative tribunal or judicial authority.
(d) The test for an action for invasion of privacy is whether publicity is given to a private fact, which would be considered offensive by a reasonable person. The Applicants have not identified the private information which was published, the manner of publication, or why the publication of the information would be offensive to a reasonable person.
(e) While the Department may have carelessly left the dossier in a public place where it was found by a member of the public, this does not constitute publication for the purposes of the test in Hosking v Runting (above).
(f) While the Department may have carelessly left the dossier in a public place where it was found by a member of the public, this was a single inadvertent act and does not amount to gross or systematic negligence by the Department for which exemplary damages could be awarded (see A v Bottrill [2003] 2 NZLR 721).
(g) The Court of Appeal in Hosking v Runting (above) has established that for an action for invasion of privacy the publicity must be such that it is truly humiliating, distressful or otherwise harmful. At paragraph 9 of the its letter of 25 March 2009:
“Any right of action, therefore should be only in respect of publicity determined objectively, by reference to its extent ornature, to be offensive causing real hurt or harm”.
(h) There is no evidence that the extent and nature of the publicity in the cases of any of the Applicants caused any humiliation or distress, hurt or harm.

The Applicants’ Submissions in Reply

[20] The Applicants submit:

(a) The applications were for legal aid for step 1 of the civil proceedings contemplated, to look into prospects of success. The Agency’s decision denies the Applicants the opportunity to do this and to decide the best course of action to obtain redress for them.
(b) It is for the Applicants to decide how to pursue their claim and they should not be denied the opportunity to commence proceedings because there is a complaints procedure in place.

The Further Submissions by One of the Applicants

[21] One of the Applicants (LARP 213/09) provided further submissions received after the receipt of the Agency’s above submissions in response. Some of these further submissions seek to correct statements of fact made by the specialist adviser panel and need not be referred to here. Otherwise these submissions are briefly summarised as follows:

(a) It is difficult to tell how many members of the public may have read the papers left by a member of the Department’s staff in the street.
(b) The meaning of the information in them is readily understandable without specialised knowledge.
(c) Some of the information released has been with-held from him under ss 27 and 28 of the Privacy Act 1993, thus creating a barrier for him and his counsel to assess the full impact of the information read by one or more members of the public.
(d) The impact of the information seen by members of the public and by the staff of some news media organisations includes the fact that his family felt it necessary to move to another house as a result of their address having been revealed in the confidential papers released. An investigation of the effects of the release of personal information on him has yet to be carried out so that an effective assessment of prospects of success of the contemplated proceedings can be carried out.
(e) While the Department has notified the Privacy Commissioner, there has been no such notification concerning the effects on his supporters or family members of the disclosure of the information about him.
(f) It is appropriate that court proceedings be commenced because the court is best able to assess the harm caused by the Department’s transgression and to sanction it for that transgression.
(g) He is entitled to redress and compensation under s 27 of the New Zealand Bill of Rights Act 1990.
(h) He cannot be restored to the pre-disclosure position by any of the actions in mitigation taken by the Department. Therefore a claim for damages and punitive damages is justified.
(i) The Department breached its duty of care to him.
(j) The Department did not put reasonable safeguards in place to prevent the unauthorised disclosure of the information.
(k) A claim against the Crown for punitive or exemplary damages is plausible in a suit founded on negligence. The Department is vicariously liable for the negligence of a member of its staff (see Couch v Attorney General [2008] NZSC 45; [2008] 3 NZLR 725 (SC). The Department has admitted this.
(l) The nature of the highly sensitive personal information which has been publicly disclosed meets the threshold of ‘truly exceptional and outrageous conduct’ by the Department.
(m) In these circumstances it reasonably likely that a court will award punitive damages.
(n) The attendant publicity surrounding the contemplated legal proceedings is acceptable in order to sanction the Department for its conduct.

The Issue

[22] The issue before the Panel is whether the Agency’s decision of 5 February 2009 to refuse legal aid was manifestly unreasonable or wrong in law or both.

The Law

[23] A decision is “manifestly unreasonable” if it is shown “clearly and unmistakably” that the Agency’s decision “went beyond what was reasonable or was irrational or logically flawed” (Legal Services Agency v Fainu (2002) 17 PRNZ 433).

[24] A decision may be wrong in law for a variety of reasons. It may be wrong in law, for example, if it derives from an inaccurate application or interpretation of a statute, or is wrong in principle. It may be wrong in law if a decision-maker has failed to take into account some relevant matter or takes into account some irrelevant matter, or if the decision depends on findings which are unsupported by the evidence (Legal Services Agency v Fainu (above)).

[25] In Legal Services Agency v A and O (2003) 17 PRNZ 443 John Hansen J said at paragraph 11 that manifestly unreasonable meant “something different from what is “wrong in law””, and would be made out “where it is shown, clearly and unmistakably, that the decision made by the Agency went beyond what was reasonable, or was irrational or logically flawed”. His Honour also said that “manifestly unreasonable” required “not only that the decision be found to be unreasonable but that LARP forms the view that the decision is so clearly unreasonable that the intervention of the Panel is called for”. His Honour added that “the determination of what is “manifestly unreasonable” is to be made objectively by the members of LARP applying their judgment to the matter in accordance with the principles state” and that it was “not for LARP to substitute its view of what the decision should have been for that of the Agency”.

[26] Section 9(3) of the Act is as follows:

“The Agency must refuse legal aid if the applicant has not shown that the applicant has reasonable grounds for taking or defending the proceedings or being a party to the proceedings.”

[27] Section 9(4)(d)(i), (ii) and (iii) of the Act are as follows:

“The Agency may refuse to grant legal aid to an applicant in any of the following circumstances:
...
(d) In the case of original proceedings,-
(i) the applicant’s prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant’s interest in them (financial or otherwise), in relation to the likely cost of the proceedings;
(iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case”.

Discussion

[28] The applications for civil legal aid refused by the Agency and now the subject of this review are those enclosed with the Applicants’ lawyer’s letter to the Agency of 22 October 2008. There were then 11 applicants including the seven who have applied for this review. Also enclosed were separate letters to the Agency dated 1 October 2008 for each of the Applicants seeking legal aid for a “class action” against the Department for breach of privacy, in which compensation and exemplary damages were to be claimed. While the applications make reference to a “class action”, no attempt has been made to bring a representative type of proceeding. Aid has been sought for seven individual proceedings, and there are seven individual applications for review. As the same issues arise in respect of each application, it is convenient to deal with them all together.

[29] Each of the seven applications sought 5 hours to cover preparation of submissions and an appearance before either the Court or the Privacy Commissioner, together with $100 for research and $50 office expenses. This is $920.00 for each of the Applicants. Therefore the total amount for these seven Applicants is $6,440.00.

[30] The letters were specific about what the applications were for: “This will cover the drafting of submissions and appearing before either the Court or the Privacy Commissioner”. It was only in later correspondence that the Applicants said that the legal aid was sought was “to investigate prospects of success further” for proceedings either in the Human Rights Review Tribunal through the Privacy Commissioner, or in the Court for invasion of privacy.

[31] The subject of this review therefore is the applications by the seven Applicants for civil legal aid in proceedings against the Department for compensatory and exemplary damages, or alternatively for a complaint process to or through the Privacy Commissioner. It is not limited to applications for legal aid for investigation into prospects of success only. In any event, were the applications limited in this way, the same considerations would apply.

[32] Under s 9(3) of the Act “(t)he Agency must refuse legal aid if the applicant has not shown that the applicant has reasonable grounds for taking ... the proceedings ...”; and under s 9(4)(d)(i)(ii) and (iii) of the Act the Agency has a discretion to refuse to grant legal aid if:

“(i) the applicant’s prospects of success are not sufficient to justify the grant of legal aid; or
(ii) the grant of legal aid is not justified, having regard to the nature of the proceedings and the applicant’s interest in them (financial or otherwise), in relation to the likely cost of the proceedings;
(iii) for any other cause where it appears unreasonable or undesirable that the applicant should receive legal aid in the particular circumstances of the case.”

[33] The Applicants have not identified any specific way in which the Agency’s actions are manifestly unreasonable, nor have they pointed to any identifiable errors of law. Their principal argument appears to be that the Agency ought to have granted aid for the proceedings. That is not a sufficient basis for intervention by the Panel. If the statutory grounds are not made out, the Panel cannot review the Agency’s decision.

[34] The Agency’s specialist advice on whether the applications met the s 9(3) requirement, and whether the Agency should to exercise its s 9(4)(d) discretion to refuse legal aid, was comprehensive. It pointed out that the news media had only reported the fact of the Department's carelessness in that the files were left on a street in Auckland, and that none of the personal information in the files was published; and it seems that only a few members of the public, including the person who found the dossier on the street, and no doubt some news media personnel, saw that information. The small number of unauthorised people who saw the information, and the lack of publication of personal details were important factors in the specialist adviser report and the Agency's decision to refuse legal aid.

[35] In its decision to refuse legal aid, the Agency pointed out that an appropriate remedy in cases of this kind is for the aggrieved party to make a complaint to the Privacy Commissioner. The Applicants have, instead, taken the view that they prefer court proceedings for breach of privacy so that both compensatory and exemplary damages could be pursued, although they have also retained the Privacy Commissioner option.

[36] The Agency's decision in its letter of 5 February 2009 was to refuse legal aid because:

(a) A reasonable self funding person would not take civil action for damages in these circumstances but would make a complaint to the Privacy Commissioner, having regard to costs and benefits.
(b) The process of complaint to the Privacy Commissioner does not require legal aid.
(c) While vindication of a principle alone can justify proceedings and legal aid for them, this can be achieved without the need for court action where the complaints procedure through the Privacy Commissioner is available.
(d) Based on its specialist adviser’s recommendations and reasoning, the prospects of success were assessed as insufficient to justly a grant of legal aid under s 9(4)(d)(i) of the Act.
(e) For the same reasons there were not reasonable grounds for taking proceedings for the purposes of s 9(3) of the Act.
(f) Under s 9(4)(d)(ii) of the Act legal aid was not justified for court proceedings on the basis of cost when the likely damages (if any) awarded would be minimal at best.
(g) The application was also declined under s 9(4)(d)(iii) of the Act because it was not reasonable or desirable for legal aid be granted in the particular circumstances.

[37] The Applicants have neither provided any convincing arguments to show that the court proceedings for breach of privacy would be successful, nor been able to show that the quantum of any damages, especially exemplary damages (if any are available against the Crown for a claim based on negligence), would justify the court proceedings contemplated based on cost considerations. The Applicants have provided no detail as to the likely costs and benefits of the proposed proceedings.

[38] While the Department was at fault in leaving a dossier in a public place for all to see, the Agency has taken the approach that a reasonable way of dealing with this would be by way of a complaint to the Privacy Commissioner. Given that, by virtue of s 83 of the Privacy Act 1993, a matter can only be taken to the Human Rights Review Tribunal if the Privacy Commissioner takes no action following a complaint or agrees to the proceedings being brought, this approach does not appear to be unreasonable. It is consistent with the Agency’s obligations under s 92 of the Act to administer the legal aid scheme in an inexpensive and efficient manner.

[39] The Agency’s decision in finding that:

(a) reasonable grounds for the contemplated court proceedings had not been shown under s 9(3) of the Act, and
(b) legal aid was not justified under s 9(4)(d)(i)(ii) and (iii) of the Act,

has not been demonstrated to be wrong in law or manifestly unreasonable.

Decision

[40] For the reasons set out above, the Agency’s decision of 5 February 2009 is confirmed.


Dated this 12th day of May 2009

(original signed by)
__________________________
D.J. Maze, Convenor