IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV 2014-485-11196
[2015] NZHC 745
IN THE MATTER OF
an appeal under s 123(2) of the Human
Rights Act 1993
BETWEEN
COMMISSIONER OF POLICE
Appellant
AND
SHANNON RICHARD ANDREWS
Respondent
AND
DIRECTOR OF HUMAN RIGHTS
PROCEEDINGS
Intervener
Hearing:
3 February 2015 (further memorandum received 10 February
2015)
Appearances:
D J Perkins and E F Hockly for the Appellant
Respondent appearing in person
R W Kee and J V Emerson for the Intervener
Judgment:
17 April 2015
JUDGMENT OF MALLON J
Table of Contents
Introduction ................................................................................................................................................ [1]
Background ................................................................................................................................................ [5]
Mr Andrews’ privacy complaint ............................................................................................................. [12]
The Commissioner of Police’s claim for costs ........................................................................................ [20]
The Tribunal’s costs decision .................................................................................................................. [22]
The statutory framework ........................................................................................................................ [25]
The existing High Court authority ......................................................................................................... [31]
(1)
Haydock v Gilligan Sheppard ..................................................................................................... [32]
(2)
Herron v Speirs Group Ltd .......................................................................................................... [36]
(3)
Reid v New Zealand Fire Services Commission .......................................................................... [41]
(4)
Attorney-General v IDEA Services Ltd ....................................................................................... [43]
Was it open to the Tribunal to take a view contrary to the existing authority? .................................. [47]
Do the Tribunal’s reasons support a new approach? ............................................................................ [59]
Was there an error on the facts of this case? ......................................................................................... [72]
Result ........................................................................................................................................................ [81]
COMMISSIONER OF POLICE v ANDREWS [2015] NZHC 745 [17 April 2015]
Introduction
[1]
This appeal concerns the correct approach to costs in the Human Rights
Review Tribunal. Traditionally the Tribunal has taken the view that costs will
ordinarily follow the event. Following the appointment of a new Chairperson to the
Tribunal, it now considers that this approach must be treated with considerable
caution if not rejected altogether.
[2]
The issue has arisen in the context of Shannon Andrews’ claim in the
Tribunal against the Commissioner of Police for compensation for breach of privacy.
Mr Andrews’ claim failed. The Commissioner of Police sought costs. The Tribunal
dismissed the claim for costs, concluding that each party should bear their own costs.
[3]
The Commissioner of Police appeals against the Tribunal’s decision
dismissing his application for costs.
He submits that the Tribunal erred by
disregarding binding High Court authority, departing from its own well-established
line of authority and taking into account the irrelevant consideration of whether Mr
Andrews was likely to be able to satisfy an award of costs.
[4]
The Director of Human Rights Proceedings exercised his right to appear and
be heard in respect of the appeal.1 Mr Andrews appeared in person. The Director,
who assumed the principal role in opposition, contends that the Tribunal’s decision
was properly open to it under the broad statutory discretion conferred upon it. Mr
Andrews supports the Director’s position and provided some personal perspectives.
Background
[5]
Mr Andrews’ privacy complaint arose out of a criminal prosecution. At the
time he was 25 years old and living with his partner, with whom he had been in a
relationship since he was about 14 years old. They had two children living with
them. Mr Andrews is the natural father of the youngest of them, and he had also
assumed the father role for the older child.
1
Privacy Act 1993, s 86(1). As a result I declined leave for the Privacy Commissioner to
intervene: Commissioner of Police v Andrews [2014] NZHC 2534.
[6]
Mr Andrews was charged with a number of burglary offences. His partner
was charged with receiving property. Their joint trial was scheduled for 28 March
2011. Three days earlier, on 25 March 2011, a burglary occurred at an address in
Hastings. Mr Andrews, who was on bail at the time, was identified as one of the
offenders. He was initially apprehended by a member of the public but managed to
escape. He failed to appear for the trial on 28 March 2011. His partner appeared and
pleaded guilty to the receiving party charge.
[7]
Following Mr Andrews’ escape from the scene of the 25 March 2011
burglary, the police made enquiries attempting to locate him. This included making
contact with his partner and conducting searches of her property. This contact also
included an inquiry of his partner on the afternoon of 30 March 2011. At that time
she advised the police that she had heard that Mr Andrews had gone to Wellington.
The police located Mr Andrews on 31 March 2011. At that time he was with her.
[8]
The police charged Mr Andrews’ partner with being an accessory after the
fact. That charge was later replaced with a charge of attempting to pervert the course
of justice. The charge was based on text messages between cell phones used by Mr
Andrews and his partner’s cell phone. The police obtained details of these messages
via search warrants. An analysis of the messages showed that from the time of
Mr Andrews’ escape to his apprehension on 31 March 2011 he had been in contact
with his partner. The text messages included telling her where he was, making
arrangements for her to pick him up, a plan to shift the police enquiries from
Hastings to Wellington and to delete all their texts.
[9]
The partner initially denied any contact with Mr Andrews over this period.
At the time of her first appearance in the District Court on the then accessory after
the fact charge, the officer in charge (Constable Potaka) made initial disclosure under
the Criminal Disclosure Act 2008. This included all the text data which the police
then held in relation to two Telecom cell phone numbers used by Mr Andrews. 2 The
partner’s lawyer subsequently sought “continuing disclosure” and that he receive
“full and appropriate discovery”. He did not provide any indication of her defence.3
2
3
The date range to which this disclosure related is not clear on the material before me.
I also infer that he did not provide any further detail as to the nature of the information he was
seeking.
By way of further disclosure, her lawyer received printouts of all text messages sent
from or received by three cell phones used by Mr Andrews for the period from
24 January 2011 to 22 April 2011, which the police had obtained.4
[10]
Included in the large number of text messages disclosed were texts between
Mr Andrews and third parties.5 These included women with whom Mr Andrews was
either having a relationship or with whom he hoped to establish a relationship. A
number of these texts were sexually explicit. It is the disclosure of these text
messages with other women that gave rise to Mr Andrews’ privacy complaint.
[11]
The partner pleaded guilty to the charge of perverting the course of justice.
On 17 May 2012 she was sentenced to community detention for five months. Mr
Andrews was sentenced to six years imprisonment for burglary and receiving
offences with a minimum non-parole period of three years. At the time of the
hearing before me he was in his sixth year of that sentence.
Mr Andrews’ privacy complaint
[12]
On 1 October 2011 Mr Andrews made a complaint to the Privacy
Commissioner. He completed a privacy complaint form and supplemented that
complaint with a letter providing further details of his complaint. In essence his
complaint was that the police ought not to have disclosed the text messages between
him and other women to his partner. He said that these were personal texts that did
not have any relevance to the charge brought against her. He said that, as a result of
this disclosure, she terminated their relationship and he was now in a Family Court
process to obtain visiting rights to his children. As a result he was stressed and
suffering depression. He said that the disclosure breached his privacy and he sought
compensation for that breach.
[13]
The Privacy Commissioner investigated Mr Andrews’ complaint. By a letter
dated 1 March 2012 the Privacy Commissioner advised Mr Andrews that she
4
5
He also received a summary of text messages between Mr Andrews and his partner on the two
Telecom cell phone numbers. The period to which this summary related is not clear on the
material before me.
Again it is not clear on the material before me whether these messages were during the period
that Mr Andrews was missing or after his apprehension on 31 March 2011.
considered that the police had not interfered with Mr Andrews’ privacy under the
Privacy Act 1993. This was because the police released the information to his
partner under the Criminal Disclosure Act and this overrode principle 11 of the
Privacy Act.6 Mr Andrews was advised that he had the right to take the matter
further by taking a case to the Tribunal. A certificate of investigation was provided
which Mr Andrews was informed he would need to show to the Tribunal.7 Mr
Andrews was also told that unsuccessful claimants in the Tribunal generally have
costs awarded against them.
[14]
On 5 March 2012 Mr Andrews completed the Tribunal’s form for making a
claim. Mr Andrews stated that his claim was for breach of his privacy. He noted
that the officer was obliged only to disclose “relevant” texts and that the texts
between him and other women were irrelevant. He felt that the officer had disclosed
the irrelevant texts as a deliberate tactic in the hope that his partner would provide
information about Mr Andrews’ criminal activity. Mr Andrews supplemented his
claim with written submissions. These were consistent with his claim. He sought
compensation of $200,000 (being $10,000 for each month he had been emotionally
affected by the privacy breach).
[15]
Mr Andrews’ compensation claim is best described in his own words as
follows:8
Expos[ing] all my personal private information … has caused and created a
significant interference into my personal life and relationship with [my
partner], not only that, it has also reflected on my relationship with my kids,
as now [my partner] won’t let me see or hear from them, whatsoever and I
am now in the process of going through the family court to see and hear how
they are progressing. It has caused significant frustration and depression, as
well as stress and it has made me feel low in spirit, mind and body. … I now
sit in my room all day and cry and stress of what the interference has caused
and it has caused a heavy toll on me and created an enormous impact for me
also my kids …
6
7
8
Privacy Act 1993, s 6.
The issue of a certificate is a practice that has developed to inform the Tribunal that the
complaint has been to the Privacy Commissioner and can therefore be considered by the
Tribunal.
This is from one of Mr Andrews’ letters in support of his complaint to the Privacy
Commissioner. His claim in the Tribunal was to similar effect.
[16]
A hearing before the Tribunal took place on 12 and 13 November 2012. Mr
Andrews represented himself. The Commissioner of Police was represented by two
counsel. The Privacy Commissioner exercised her right to appear at the hearing and
was represented by two counsel.9 In a written decision issued on 4 March 2013 the
Tribunal dismissed Mr Andrews’ claim.10
[17]
In reaching this view the Tribunal noted that this was the first occasion on
which it had been called upon to consider the relationship between the Criminal
Disclosure Act and the Privacy Act. The Tribunal considered two issues. The first
issue was whether a decision to make disclosure under the Criminal Disclosure Act
is reviewable under the Privacy Act at all. The Tribunal accepted the Privacy
Commissioner’s submission that it was.
It considered that where there was
disclosure of personal information which was clearly not “relevant” (as defined in
the Criminal Disclosure Act), the Tribunal did have jurisdiction to grant one of the
remedies available under the Privacy Act for the consequential interference with
privacy.11
[18]
The second issue was whether the text messages between Mr Andrews and
other women were improperly disclosed to his partner. That depended on whether
they were relevant. The Tribunal considered that they were relevant for two reasons.
First, they were relevant in that the police had to establish that the cell phones were
in the possession of Mr Andrews and not some third party.12 Secondly, it was open
to Mr Andrews’ partner to contend that she was in a violent and dysfunctional
relationship and that her offending occurred under duress.
[19]
The Tribunal concluded its decision by stating that it “presume[d] that given
Mr Andrews’ current circumstances no application for costs will be made.” 13 It
nonetheless set out a timetable for an application and submissions in case its
presumption was wrong.
9
10
11
12
13
Privacy Act 1993, s 86(5).
Andrews v Commissioner of Police [2013] NZHRRT 6.
Privacy Act 1993, s 85.
The Tribunal reasoned that the text messages tended to support the prosecution case in that
regard, although some of them were potentially relevant to the defence in that Mr Andrews’
partner might have argued that those of a salacious nature were evidence of someone else using
the phone.
Andrews v Commissioner of Police, above n 10, at [71].
The Commissioner of Police’s claim for costs
[20]
The Commissioner of Police made an application for costs. He sought a
costs order between $7,500 and $10,000 as a reasonable contribution towards actual
costs incurred of $17,537.04 (exclusive of disbursements and legal costs incurred in
seeking costs).
[21]
The submissions for the Commissioner of Police contended that there were
no features of the proceeding which ought to displace the presumption that costs
should follow the event. It was submitted that, with reference to the average award
in the Tribunal in 2011, an award of 30 per cent of actual costs incurred (amounting
to $6,300) would be appropriate. However, it was submitted that an uplift from that
sum was appropriate because Mr Andrews made allegations of bad faith against the
police officer concerned, he made over-inflated and unrealistic monetary claims, and
because of the work involved in defending the matter, including that the legal issues
were “of some novelty and complexity.”
The Tribunal’s costs decision
[22]
The Tribunal decision on costs was given on 5 August 2014.14 In dismissing
the claim the Tribunal expressed its views about the approach taken by the Tribunal
under its previous chairperson. It considered that the High Court had taken the
Tribunal’s “(then) jurisprudence … at face value” and that its view was that “an
assumption that costs follow the event must be approached with considerable
caution, if not rejected altogether.”15
[23]
The Tribunal went on to make the following comments:
(a)
The statutory discretion in respects of costs is conferred in broad
terms and cannot be fettered by applying a presumption that costs are
to be awarded to the successful party.
14
15
Andrews v Commissioner of Police [2014] NZHRRT 31.
At [7].
(b)
Little or no attention has been given to s 105 of the Human Rights Act
1993. Section 105 emphasises that a broad range of factors should be
considered when determining an application for costs, including the
human rights character of the jurisdiction and the particular
circumstances of the case. This jurisdiction is different from the
conventional civil regime in the Courts where costs usually follow the
event.
(c)
It is “deeply problematical” to incorporate a civil litigation rule into
this jurisdiction when it involves not the determination of disputes
between citizen and citizen in relation to private law, but of
quintessentially public law or constitutional issues.16
(d)
As to those public law or constitutional issues, the State must expect
and tolerate individuals to challenge the exercise of state power and
such challenges should not be inhibited by the fear of potentially
ruinous financial consequences.
[24]
In relation to Mr Andrews in particular, the Tribunal considered that his
means were relevant. As he was presently in prison and his rehabilitation on release
was likely to be challenging, the Tribunal saw no sense in burdening him with an
award of costs well beyond his means and which he was unlikely to pay. Mr
Andrews sought damages at an unrealistic level and his allegation of bad faith
against the police officer was not made out. However “as a self-represented litigant
with a low level of education, these features … are not surprising or unique and
should not be used to disadvantage or punish him.”17 His case raised an “important
and novel point.”18 Even under the High Court Rules that would justify a refusal of
costs. One of the overarching purposes of human rights was to protect the powerless
and vulnerable.
The prospect of a costs penalty should not discourage such
individuals from accessing that protection. It was fair and reasonable for each party
to bear his own costs.
16
17
18
At [7.3].
At [8].
At [9].
The statutory framework
[25]
The Tribunal has jurisdiction in respect of:
(a)
civil proceedings under Part 1A (discrimination by the Government)
and Part 2 (other unlawful discrimination) of the Human Rights Act;19
(b)
proceedings under the Privacy Act;20 and
(c)
proceedings under the Health and Disability Commissioner Act
1994.21
[26]
The method by which proceedings may come before the Tribunal is not
completely identical in respect of each of these jurisdictions. However in each case
there is a prior process through which an issue may be resolved. In the absence of
resolution, the Director of Human Rights Proceedings (in respect of Human Rights
or Privacy Act matters22) and the Director of Proceedings (in respect of the Health
and Disability Commissioner Act) may bring or be involved in a proceeding before
the Tribunal. An aggrieved person may also bring a proceeding before the Tribunal
directly without their involvement.
[27]
More specifically, in the case of the Privacy Act, a person may make a
complaint to the Privacy Commissioner that there has been an interference with their
privacy.23 The Privacy Commissioner may investigate the complaint or decide to
take no further action.24 If the Privacy Commissioner decides to investigate the
complaint they must inform the parties of the outcome of the investigation and what
further action they propose to take.25 If they decide that the complaint has substance,
they endeavour to secure a settlement.26 If they are unable to secure a satisfactory
settlement they may refer the matter to the Director of Human Rights Proceedings
19
20
21
22
23
24
25
26
Human Rights Act 1993, s 94(a).
Human Rights Act 1993, s 94(b); Privacy Act 1993, ss 82 and 83.
Human Rights Act 1993, s 94(b); Health and Disability Commissioner Act 1994, ss 50 and 51.
The Director of Human Rights Proceedings will only become involved via a referral from the
Privacy Commissioner.
Privacy Act 1993, s 68.
Section 70.
Section 75.
Section 77(1).
for the purpose of deciding whether proceedings should be brought in the Tribunal.27
Irrespective of the Privacy Commissioner’s and the Director of Human Rights
Proceeding’s view on the substance of the complaint, an aggrieved individual may
themselves bring a proceeding in the Tribunal.28 Where an aggrieved individual
brings a proceeding, the Director of Human Rights Proceedings may still appear and
be heard.29 If the Director of Human Rights Proceedings does not do so, the Privacy
Commissioner may appear and be heard.30
[28]
In proceedings under the Privacy Act the Tribunal’s powers in relation to
costs are set out in s 85(2) of that Act. It provides:
In any proceedings under section 82 or section 83, the Tribunal may award
such costs against the defendant as the Tribunal thinks fit, whether or not the
Tribunal makes any other order, or may award costs against the plaintiff, or
may decline to award costs against either party.
[29]
The Tribunal’s power to award costs in respect of proceedings under the
Health and Disability Commissioner Act is framed in identical terms. 31 In respect of
proceedings under the Human Rights Act 1993 it is in the following terms:
27
28
29
30
31
92L
Costs
(1)
In any proceedings under section 92B or section 92E or section 97,
the Tribunal may make any award as to costs that it thinks fit,
whether or not it grants any other remedy.
(2)
Without limiting the matters that the Tribunal may consider in
determining whether to make an award of costs under this section,
the Tribunal may take into account whether, and to what extent, any
party to the proceedings—
(a)
has participated in good faith in the process of information
gathering by the Commission:
(b)
has facilitated or obstructed that information-gathering
process:
(c)
has acted in a manner that facilitated the resolution of the
issues that were the subject of the proceedings.
Section 77(2).
Section 83.
Section 86(1).
Section 86(5).
Health and Disability Commissioner Act 1994, s 54(2).
[30]
There is a right of appeal to the High Court from decisions of the Tribunal.32
However, as an appeal from a costs decision is an appeal from the exercise of a
discretion, this Court will interfere only if the Tribunal made an error of law or
principle, took into account an irrelevant consideration, failed to take into account a
relevant consideration, or made a plainly wrong decision.33
The existing High Court authority
[31]
The Commissioner of Police relies on four decision of the High Court as
providing binding authority on the Tribunal which it failed to follow in this case.
(1)
Haydock v Gilligan Sheppard
[32]
The first of these is Haydock v Gilligan Sheppard.34 That case involved a
claim for breach of privacy by a private individual against an accounting firm which
had carried out a credit check on the individual. The claim was dismissed and the
Tribunal ordered the individual to pay costs to the firm of $20,000. The individual
appealed that costs order. In dismissing that appeal the High Court Judge said this:35
[38]
Neither Ms Haydock nor Mr Stevens challenges the principles
formulated by the Tribunal for the purposes of determining costs (Herron v
Speirs Group Ltd HRRT Decision 29/06; 4 August 2006) which was applied
in Ms Haydock’s case. Those principles are helpfully summarised by Mr
Grace as follows: (1) the Tribunal’s power under s 85(2) to award costs is
largely unfettered but is to be exercised judicially; (2) reference to High
Court or other costs scales are useful as a guide only; (3) an award of costs
may be reduced in appropriate circumstances; (4) an assessment of costs
takes account of the relevant features of each particular case; and (5)
settlement offers are a relevant consideration. I would add (6), and most
importantly, that the Tribunal usually finds costs should follow the event and
in an amount reflecting a reasonable contribution to the costs actually
incurred by the successful party. I am satisfied that these principles are
consistent with the broad discretionary powers vested by the statute.
[33]
In dismissing the appeal the Judge noted that it was not disputed that it was
open to the Tribunal to award costs in favour of the accounting firm. The challenge
was to whether there was a proper basis for determining a reasonable contribution to
32
33
34
35
Human Rights Act 1993, s 123.
May v May (1982) 1 NZFLR 165 (CA); Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at
[32].
Haydock v Gilligan Sheppard HC Auckland CIV-2007-404-2929, 22 September 2008.
Harrison J (now a Judge of the Court of Appeal).
the accounting firm’s costs and whether there were exceptional circumstances
justifying an award of costs at a level above the contribution to the grant of legal aid
she had received to bring the claim. The appeal on these grounds was unsuccessful.
[34]
The differences between that case and the present are evident in the reasons
given by the Tribunal as to why there were exceptional circumstances.
The
individual’s claim was regarded as making a “mountain out of a molehill” and being
without any merit.36 She had unreasonably refused an offer of settlement, made
allegations of professional misconduct which prolonged the substantive hearing
significantly, acted uncooperatively during the hearing and provided inadequate
discovery. The High Court Judge did not revisit these findings but considered that
the accounting firm could have made out “a very strong case” for an award of
solicitor/client costs given the Tribunal’s finding of the hopeless nature of [the]
claim” and the individual’s “conduct in its pursuit.”37
[35]
Given the nature of the grounds on which the costs appeal was argued, the
High Court was not asked to and did not need to endorse the Tribunal’s principles for
determining costs. It would appear that there were no submissions on whether they
were or were not appropriate principles. The Judge nevertheless expressed the view
that they were consistent with the broad statutory discretion conferred on the
Tribunal.38 The Judge’s endorsement of the Tribunal’s principles was not in these
circumstances binding authority on the Tribunal, although it was entitled to some
weight.
(2)
Herron v Speirs Group Ltd
[36]
The second of the cases is Herron v Speirs Group Ltd.39 That case concerned
a claim for breach of privacy made by an individual against a company in relation to
the individual’s credit history. The Tribunal held that a breach of privacy had
occurred and gave a declaration to that effect. However, as the individual had not
36
37
38
39
Haydock v Gilligan Sheppard NZHRRT 02/04, 23 April 2007 at [37].
Haydock v Gilligan Sheppard, above n 34, at [36].
The Judge had earlier noted at [4] that the appeal “does not raise any important issues of
principle and I have formed a view sufficient to enable delivery of judgment orally in the
presence of the parties.”
Herron v Speirs Group Ltd (2008) 8 HRNZ 669 (HC).
suffered any harm from the breach, no other relief was appropriate. The Tribunal
ordered costs against the individual. The amount set was $3,000 for the period up to
the date at which an offer made by the defendant was available for acceptance.
Thereafter the costs were set at the actual and reasonable solicitor/client costs of the
defendant, being $32,503.82.
[37]
The individual appealed against the costs order. The issues on appeal were
whether the Tribunal was entitled to take into account the offer as a ground for
awarding indemnity costs and whether the Tribunal had failed to take into account
that the individual had partially succeeded by obtaining a declaration. The High
Court allowed the appeal but only to the extent of reducing the indemnity component
of the costs from $32,503.82 to $27,628 (being 85 per cent of the actual and
reasonable solicitor/client costs of the defendant for that period).40
[38]
In reaching that view the High Court summarised the cost principles usually
applied by the Tribunal as being that the discretion is largely unfettered but must be
exercised judicially; costs will usually follow the event and will be fixed to reflect a
reasonable contribution; the Tribunal’s approach is not much different from that
which applies in the Courts, although scale costs in the Courts are no more than a
guide; partial success may result in a reduction of costs; although costs must take
into account the circumstances of the case there must be some consistency in the
approach and assessment of costs; and that offers of settlement “without prejudice
except as to costs” are a relevant consideration.41 The High Court also noted that the
Tribunal expressly recognised that it was relevant that it exercises jurisdiction in part
to protect access to justice for litigants who might otherwise be deterred by the costs
and complexities of court proceedings.42
[39]
Counsel for the individual submitted that it was an error to hold that costs
usually follow the event.
Section 85(2) of the Privacy Act contained no such
presumption. He submitted that costs orders should not exceed what would be
reasonable costs in the District Court so that access to the Tribunal for litigants is not
40
41
42
Andrews J sitting with two lay members.
At [14].
At [15].
deterred by costs orders.43 The High Court concluded “[w]e can find no error in the
Tribunal’s general approach to costs.”44 The Court noted the endorsement of that
approach in Haydock v Gilligan Sheppard and said “[w]ith respect, we agree.”45
[40]
This case therefore is High Court authority that the then Tribunal’s general
approach to costs is correct in principle. It did not involve a claim without all merit,
in that a breach of privacy was found and a declaration to that effect was made. Nor
was it suggested that the proceeding was conducted in a way that caused additional
costs to the defendant. The only reasons for ordering costs at a high level (85 per
cent of actual and reasonable costs) were the refusal to accept a settlement offer and
the failure to obtain damages. It can therefore be viewed as a relatively stern
approach to costs for an unsuccessful litigant. There are however differences from
the present case: it did not involve an individual against the state, it did not involve
an important and novel point, and it did not involve a prisoner where issues of ability
to pay and rehabilitation arise.
(3)
Reid v New Zealand Fire Services Commission
[41]
The third case is Reid v New Zealand Fire Services Commission.46 That case
involved an appeal from an order against an individual to pay costs of $3,000 (a
reasonable contribution to actual costs). The individual had failed in the Tribunal in
challenging a ruling of the Privacy Commissioner in relation to documents held by
the Fire Service and the Crown Law Office. The High Court referred to the nature of
the costs discretion as discussed in Haydock v Gilligan Sheppard.47 The Court went
on to say that the “basic principle” is that “costs generally follow the ultimate
outcome.”48 And further, the Court said that “[t]he other principle underpinning the
approach to costs by Courts and Tribunals in New Zealand is that generally the
losing party is to make a reasonable contribution, but not to indemnify the winning
party for all costs incurred …”.49
43
44
45
46
47
48
49
At [16].
At [19].
At [19].
Reid v New Zealand Fire Service Commission HC Wellington CIV-2008-485-2043, 21 April
2009.
Dobson J at [6].
At [9].
At [10].
[42]
The case, like Herron v Speirs Group Ltd, therefore endorses the approach in
the Tribunal that costs usually follow the event and costs should usually be ordered
on a reasonable contribution basis. The particular feature of that case, which is not
present here, is that it involved a very litigious individual. The litigation against the
Fire Service had an “extremely protracted history” and was unsuccessful.50 At that
time the Attorney-General was seeking to have the individual declared a vexatious
litigant. That proceeding was withdrawn by the time of the High Court costs appeal
but the Court nevertheless noted that “[t]his is but one of a substantial number of
chapters in Mr Reid’s litigious campaigns, and substantial judicial resources are
being committed to considering and determining diverse propositions advanced by
him in numerous proceedings.”51 Since then Mr Reid has been declared vexatious.52
(4)
Attorney-General v IDEA Services Ltd
[43]
The fourth case is Attorney-General v IDEA Services Ltd.53 This proceeding
concerned a claim by a provider of disability support services that a decision of the
Ministry of Health was an unjustified discrimination on the basis of age and thereby
breached part 1A of the Human Rights Act 1993. The Tribunal upheld the provider’s
claim and ordered costs in its favour of $165,000. The Attorney-General appealed
against both the substantive finding and the costs order.
[44]
It was accepted by the Attorney-General, both in the Tribunal and on appeal,
that an order for costs would be made against it. The issue was one of quantum. The
submissions in the High Court proceeded on the basis that the relevant principles to
the exercise of the costs discretion were those set out in Herron v Speirs Group Ltd.54
The principal submission for the Attorney-General on the appeal was that a costs
order at the level made was not consistent with previous costs orders of the Tribunal
and it was not warranted by the circumstances of the case. The High Court was not
asked to reconsider whether the principles applied by the Tribunal should be
revisited and the Court did not do so.55 The Court was satisfied that the order was
50
51
52
53
54
55
At [16].
At [5].
Attorney-General v Reid [2012] NZHC 2119, [2012] 3 NZLR 630.
Attorney-General v IDEA Services Ltd [2012] NZHC 3229, [2013] 2 NZLR 512.
At [240].
The Court was comprised of myself and two lay members.
consistent with previous costs orders. With some adjustments for particular errors,
the Tribunal’s order was a reasonable contribution to actual and reasonable costs and,
given the complexities of the case, High Court category 3C costs provided an
appropriate guide.56
[45]
One of the submissions made for the Attorney-General was that an award at
the level that the Tribunal ordered would have a chilling effect on the Director’s
decision to represent complainants and potentially to affect the budget of the Office
of Human Rights Proceedings. In response to that submission the Court said:
[265] The tribunal expressly considered this issue. In the end it considered
that costs awards should not be tailored to provide the Director with a
protection that the legislation did not confer. It also considered that awards
of costs against a government agency would not necessarily be the same as
awards of costs against unsuccessful plaintiffs. We see no error of principle
in the tribunal’s approach on this topic. Its view was not plainly wrong. We
agree that costs in a particular case will depend on its particular
circumstances. The tribunal’s approach to costs in this case was appropriate.
[46]
The case is quite different from the present. It involved complex litigation by
a not for profit organisation against a government agency. A substantial amount of
funding was at issue. A breach of Part 1A of the Human Rights Act was established.
The High Court’s focus was on whether the costs order was inconsistent with
previous orders of the Tribunal given the nature of the case. The possibility of a
different approach to costs for an unsuccessful plaintiff was noted.
Was it open to the Tribunal to take a view contrary to the existing authority?
[47]
These four cases proceed on the basis that the Tribunal’s approach was that
costs will usually follow the event and that the approach to the amount of costs is
guided by the approach in the civil courts. This means that the unsuccessful party
will usually be ordered to pay a reasonable contribution to the costs of the successful
party, and this is usually assessed by way of a percentage on actual and reasonable
costs.
56
The order was reduced to $115,000 on account of the particular errors.
[48]
That approach was endorsed in the first three cases discussed above.57 In one
of the cases the Court was asked to depart from that approach at least partly because
of access to justice concerns.58 The fourth case proceeded on the basis that there was
no challenge to the Tribunal’s principles for determining costs. The issue was
whether the amount ordered was a reasonable contribution. In that case access to
justice concerns were also raised, but by a government agency seeking to resist the
substantial costs order made against it.59
[49]
The Tribunal departed from that approach to costs in the present case. It did
not set out the principles established in previous cases and endeavour to apply
them.60 Rather it set out reasons why it disagreed with the former approach. It
considered that it was not fair and reasonable to order costs because of the nature of
the claim which was important and novel, that individuals (often self-represented,
powerless and vulnerable) should not be deterred from accessing the Tribunal, and
there was no sense in burdening Mr Andrews with costs in view of his position and
means.61
[50]
The Tribunal considered that the approach to costs had not been “interrogated
to any degree”, at least in two of the four cases discussed above. 62
There is
something in this point. In all of these cases the Court was reviewing the exercise of
the Tribunal’s discretion. The Tribunal had itself set out the principles it considered
relevant to the exercise of that discretion. On the facts as they arose in each of three
of those cases, the Court saw no error with that approach. In the fourth, the approach
was not an issue.63 None of the cases involved a person in a comparable position to
that of Mr Andrews bringing a claim against a government agency.
57
58
59
60
61
62
63
The only
Haydock v Gilligan Sheppard, above n 34; Herron v Speirs Group Ltd, above n 39; Reid v New
Zealand Fire Service Commission, above n 46.
Herron v Speirs Group Ltd, above n 39.
Attorney-General v IDEA Services Ltd, above n 53.
It did, nevertheless, comment that even under the High Court Rules a refusal to order costs
would not be justified because this was a test case
Compare with, for example, CD v Hawkes Bay District Health Board NZHRRT 40/01, 29
October 2003, where the Tribunal under its former chairperson said at [18]: “In the absence of
special circumstances, we do not think that financial difficulties facing a party against whom
costs are awarded is something the Tribunal ought ordinarily to take into account in fixing the
amount of the award of costs.”
Andrews v Commissioner of Police, above n 10, at [7], referring to Herron v Speirs Group Ltd,
above n 39; and Attorney-General v IDEA Services Ltd, above n 53. It did not refer to Haydock
v Gilligan Sheppard, above n 34, or Reid v New Zealand Fire Service Commission, above n 46.
Attorney-General v IDEA Services Ltd, above n 53.
mention of a person in that position noted that a different approach to costs may be
appropriate.64 The High Court decisions do not consider whether the then set of
principles applied in the Tribunal were the only principles that might be consistent
with the statutory discretion.
[51]
Since these decisions were heard in the High Court the Tribunal
foreshadowed an intention to revisit its approach to costs. It did so in Heather v
IDEA Services.65 That was a claim for unlawful discrimination. The complainants
withdrew their claim following an apology from the Ministry of Health which the
Tribunal considered was “a comprehensive admission of failings by the Ministry of
Health and by IDEA Services Ltd” and “a vindication of the untiring efforts” of the
complainants “to put right a grave injustice.”66 IDEA Services sought costs because
of the discontinuance, relying on the position under the District and High Court
Rules. The Tribunal rejected the claim.
[52]
In doing so it made the point that the application had proceeded on the:67
... mistaken assumption that the rules of civil procedure which apply in the
District Court and High Court can be readily transplanted into the human
rights jurisdiction of this Tribunal without regard to the specific statutory
context in which the Tribunal works.
[53]
It noted that the Tribunal’s hitherto approach to costs may require revisiting.
It referred to the object and purposes of the Tribunal’s jurisdiction and said that the
costs discretion “must promote, not negate, these objects”. 68 Individuals, who may
be vulnerable and powerless, should not be discouraged from bringing claims before
the Tribunal or “human rights protection in New Zealand might be weakened.” 69 It
regarded the Court of Appeal’s decision in Attorney-General v Udompun as
consistent with this view.70
64
65
66
67
68
69
70
Attorney-General v IDEA Services Ltd, above n 53.
Heather v IDEA Services Ltd [2012] NZHRRT 11.
At [8].
At [17].
At [14].
At [14].
Attorney-General v Udompun [2005] 3 NZLR 204 (CA).
[54]
Similarly the Tribunal signalled an intention to revisit the approach to costs in
Holmes v Commissioner of Police.71 That was a claim under the Tribunal’s Privacy
Act jurisdiction. The claim was unsuccessful. As to costs, the Tribunal in that case
said this:
[38]
Should the Police again seek an award of costs against Mr Holmes
that application will, of course, be addressed on its merits. But the Tribunal
as currently constituted may find it necessary to review the Tribunal’s
previous jurisprudence on costs. On one view, it could be said that the
human rights dimension to the Tribunal’s jurisdiction may not in the past
have received sufficient consideration. There is an argument that the
jurisdiction of the Tribunal under the Human Rights Act and Privacy Act
may not necessarily be analogous to that of the civil jurisdiction of the High
Court and District Court and that the rules relating to costs in civil
proceedings before those courts cannot be readily transplanted into the
human rights context without substantial modification.72
[55]
The Commissioner of Police is concerned that the change in approach reflects
the views of the presently constituted Tribunal rather than any error in the previously
settled approach. I consider that it was open to the Tribunal to revisit its previous
approach to costs. A statutory tribunal is not generally bound by its own decisions.
This is explained in Wade and Forsyth’s Administrative Law as follows:73
In the use of its own precedents a tribunal is, as explained earlier, in a
radically different position from a court of law. Its duty is to reach the right
decision in the circumstances of the moment, any discretion must be
genuinely exercised, and there must be no blind following of its previous
decisions. This does not mean that discretion cannot be exercised according
to some reasonable and consistent principle. Nor does it mean that no regard
may be had to previous decisions. It is most desirable that the principles
followed by tribunals should be known to the public, and for this purpose
selected decisions of the more important tribunals are published.
[56]
Although the Tribunal is not bound, there must nevertheless be good reason
to depart from a previously settled approach which is endorsed by the High Court as
being appropriate.
Good reasons should be present for reasons of comity,
consistency and certainty.74
71
72
73
74
Holmes v Commissioner of Police [2012] NZHRRT 17.
See also Sionepulu v Downer NZ Ltd & Anor [2012] NZHRRT 22 at [19]-[21]; Steele v Board of
Trustees of Salisbury School [2012] NZHRRT 26; and Haupuni v SRCC Holdings Limited
[2013] NZHRTT 23 at [16].
H W R Wade and C F Forsyth (eds) Administrative Law (11th ed, Oxford University Press,
Oxford, 2014) at 778 (footnotes omitted).
See the explanation of these matters in Central Clerical IUOW v Victoria University Students’
Association (1990) ERNZ Sel Cas 767 (Labour Court, Wellington) at 775. This decision was in
the context of the Employment Court which does not regard itself as bound to follow its
previous decisions.
[57]
The Tribunal is in an appropriate position to revisit the issue of costs. It sees
the range of litigants and the types of cases that come before it. It is in a position to
assess the importance of access to justice that its jurisdiction can provide and the
consequences of adverse costs awards being made too readily. To illustrate that
point I refer to one such litigant (Mr Holmes) about whom the Tribunal said this:75
[39]
In particular when the Tribunal is confronted by an individual such
as Mr Holmes (a beneficiary) it is difficult to be impervious to his poverty
and to the very real consequences of a costs award. There was no
embellishment when he said he had suffered enormous stress and sleepless
nights. Even finding money for photocopying documents and postage for
these proceedings has been a constant challenge. His physical challenges are
also daunting. He cannot read without a large magnifying glass which he
simultaneously holds close to his eyes and to the page. He has faced a
thirteen kilometre round trip on foot from his home to the hearing, a trip he
has made many times previously for the purpose of attending to
correspondence in the preparatory stages of this case. The Tribunal knows
that he went without food on the first day of the hearing and that he felt it
undignified when the Tribunal offered him lunch. He said he has only two
sets of clothes. One for summer and one for winter. He describes himself as
“up to [his] neck in debt”. He feels humiliated and “left out of the system –
everywhere I go I get the same treatment”. His vocabulary of “collusion,
corruption, deceit and lies” are expressions of frustration but are too often
taken literally. Asked to prove such allegations there is more frustration and
more disbelief.
[58]
In any event, if the Tribunal could not depart from its previous approach
because it is bound by the existing High Court authority, this Court is not bound by
those decisions. For reasons of comity, consistency and certainty, this Court should
not do so without proper regard to those other decisions. However those decisions
must be considered in light of the Tribunal’s reasons for its concerns about the
previous approach.
Do the Tribunal’s reasons support a new approach?
[59]
The Commissioner of Police submits that, even if it was open to the Tribunal
to depart from its previous approach, the Tribunal’s former approach was the correct
one.
An approach whereby costs usually follow the event provides a starting
presumption only. The Commissioner submits that this is the proper place from
which the costs discretion should start. It leaves it open for a party to rebut that
75
Holmes v Commissioner of Police, above n 71.
presumption if the circumstances warrant that. It promotes rule of law values and
enables parties participating in the process to do so with some degree of
predictability as to the benefits and costs.
[60]
I accept that the development of guiding principles for the exercise of the
discretion which leaves room for cases to be assessed on their individual merits is
not inconsistent with the broad statutory discretion provided. Such principles assist
in providing some degree of predictability as to the benefits and costs. But that is
not to say that the guiding principles previously developed should remain in place
for the future. The guiding principles that were adopted by the Tribunal are not
specified in the legislation or in regulations, in contrast with the position under the
District and High Court Rules.76 Greater flexibility in approach is available. New
guiding principles may develop which better reflect the jurisdiction in which the
Tribunal operates. If they are to be developed, it is appropriate that the Tribunal do
so in the way that it did, by clearly signalling its intention to do so and the reasons
why it wished to do so.
[61]
I consider the Tribunal is right to express caution about applying the
conventional civil costs regime to its jurisdiction. Statutory tribunals exist “in order
to provide simpler, speedier, cheaper, and more accessible justice than do the
ordinary courts.”77 The imposition of large fees to bring a claim and the imposition
of adverse costs orders “undermines the cheapness and accessibility long recognised
as important advantages of tribunals over courts.”78
[62]
The Tribunal was correct to regard s 105 of the Human Rights Act as
reflecting the different nature of its jurisdiction from that of the ordinary civil courts.
The Tribunal “must act according to the substantial merits of the case, without regard
76
77
78
Those specific rules meant that a different general approach to costs on High Court appeals
brought under the Health Practitioners Competence Assurance Act 2003 was not appropriate:
Roberts v A Professional Conduct Committee of the Nursing Council of New Zealand [2014]
NZCA 141.
Wade and Forsyth, above n 73, at 763.
At 783. The authors note that in the tribunal system in the United Kingdom, parties usually bear
their own costs.
to technicalities.”79 Other provisions of the Human Rights Act also reflect the
different nature of the jurisdiction with a need for flexible, suitable procedures. 80 As
it was put in Alpine Energy Ltd v Human Rights Review Tribunal: 81
These sections and regulations taken together endow the Tribunal with very
broad powers to do justice, even if that means that the full rigour, and
associated rigidity, of procedures governing proceedings in what might be
termed Courts proper ...
[63]
Moreover, as the Tribunal recognised, the particular character of the
jurisdiction is highly relevant. Public or constitutional issues arise. The Tribunal
provides a forum through which individuals, who are potentially vulnerable, can
challenge the exercise of state power over them. The Tribunal noted in Heather that
the long title to the Human Rights Act states that it is to “provide better protection
for human rights in New Zealand” and that the discretion to award costs should
promote, not negate, this purpose. Access to the Tribunal should not be unduly
deterred.
[64]
The submissions for the Commissioner of Police accept that costs orders
should not have the effect of deterring claims involving human rights.
It is
submitted, however, that litigants already have other avenues for redress prior to the
Tribunal stage where costs are not ordered. It is submitted that at some stage the
financial consequences of bringing an unsuccessful claim should “bite”.
It is
submitted that it is not unreasonable that they do so at the Tribunal stage, and that
they do so by way of a rebuttable presumption that costs will usually follow the
event.
[65]
I accept that some claims in the Tribunal should have costs consequences.
However it does not follow that the costs consequences in respect of all claims in the
79
80
81
Human Rights Act 1993, s 105(1). This gives effect to the principle that despite their
resemblance to courts of law, statutory tribunals are “not allowed to ‘pursue consistency at the
expense of the merits of the individual cases’.” See Wade and Forsyth, above n 77, at 272. This
is regarded as an aspect of the general principle that an authority cannot fetter a statutory
discretion by applying a policy without considering an individual case on its merits. For an
endorsement of this principle in New Zealand see Whiting v Archer [1964] NZLR 742 (SC) at
746: “As Jenkins L.J., as he then was, pointed out in R. v. Flintshire County Council, County
Licensing (Stage Plays) Committee, Ex parte Barrett [1957] 1 Q.B. 350, 368, a tribunal must not
wrongly pursue consistency at the expense of the merits of individual cases …”.
See Human Rights Act 1993, ss 75, 104, and 106.
Alpine Energy Limited v Human Rights Review Tribunal [2014] NZHC 2792 at [25].
Tribunal should be those that apply in civil litigation in the Courts. The other
avenues for redress are more informal and are aimed at achieving an agreed
outcome. The Director of Human Rights Proceedings points out that in this area it is
often difficult for claimants to understand the merits of their claim in any legal sense.
There is a wider interest in allowing them access to a determination before the
Tribunal even if the claim is without merit in a legal sense.
The legislation
recognises the importance of this access by enabling them to bring a claim regardless
of whether the Privacy Commissioner or the Director of Human Rights Proceedings
considers the matter should proceed to the Tribunal. It might be said that the point at
which the usual civil litigation costs regime should apply is when the claims are
before the Courts. Even at that stage, the human rights dimension they entail may
lead to a different approach to costs.
[66]
In Heather the Tribunal saw support for its view in Attorney-General v
Udompun.82
That case concerned a Thai national detained by immigration
authorities when seeking to enter New Zealand. She claimed that the detention
breached her rights under the New Zealand Bill of Rights Act 1990. That claim
partly succeeded and damages were awarded. In the majority judgment the Court of
Appeal said that the High Court Judge had not been wrong in principle to award
indemnity costs in the plaintiff’s favour. Applying the normal costs rules in this
context was seen as potentially “weakening BORA protections”.83
Similarly,
Hammond J commented that where there is a government agency involved “in a case
involving fundamental human rights, that may be a circumstance to alter the usual
exercise of the costs discretion.”84 I agree with the Tribunal that these comments do
support its view that a different approach to costs in its jurisdiction may be
appropriate in cases of this kind.85
82
83
84
85
Attorney-General v Udompun, above n 70.
At [186].
At [224]. See also Wong v Registrar of the Auckland High Court (2008) 19 PRNZ 32 at [24] and
[25]. I am informed by counsel that different cost regimes also apply in employment processes
that precede the Employment Court, and also in the Environment Court.
The Director of Human Rights Proceedings provided information about the number of cases it
receives. In each of the last three years, a government entity is the defendant in approximately
one half of the cases determined. Privacy Act claims are somewhere between a third to one half
of all the cases determined. Fewer claims under the Human Rights Act are generally made,
although in 2014 there were nine such claims compared with seven Privacy Act claims
determined that same year.
[67]
It appears that the Tribunal’s past approach to costs was the same regardless
of the type of proceeding before it. The costs provisions are not the same for each
kind of proceeding. In relation to the Privacy Act and the Health and Disability
Commissioners Act, no factors relevant to the exercise of the discretion are
specified. In respect of proceedings under the Human Rights Act three relevant
factors are specified: whether a party has participated in good faith in the process of
information gathering by the Commission; whether they have facilitated or
obstructed that information-gathering process; and whether they have acted in a
manner that facilitated the resolution of the issues that were the subject of the
proceedings.86
[68]
These specified factors indicate an intent that the motivations and behaviour
of the parties are particularly important factors in deciding whether there should be
any costs award in its Human Rights Act jurisdiction. It is not clear that the Tribunal
considered this when adopting an approach that costs will usually follow the event.
When the High Court endorsed this approach as consistent with the statutory
discretion, the proceedings in those cases were under the Tribunal’s Privacy Act
jurisdiction.87 If these specified factors are given weight, a different usual approach
to costs may be available. For example, in a case of an individual asserting a breach
of important rights by a state agency, a possible starting point might be that no costs
are to be ordered unless the claim (or the conduct of it) is frivolous or vexatious or
was activated by improper motives.
[69]
The Commissioner of Police seeks to draw a distinction between claims
under the Tribunal’s Part 1A jurisdiction and Privacy Act claims. This is because
Parliament did not choose to affirm the right to privacy in the New Zealand Bill of
Rights Act 1990. As the Director of Human Rights Proceedings submits, this
distinction does not hold. Article 17 of the International Covenant on Civil and
Political Rights provides the right not to be subject to unlawful interference with
86
87
Human Rights Act 1993, s 92L, set out at [29] above.
See Haydock v Gilligan Sheppard, above n 34; Herron v Speirs Group Ltd, above n 39; and Reid
v New Zealand Fire Service Commission, above n 46. Attorney-General v IDEA Services Ltd,
above n 53, was under the Tribunal’s Human Rights Act jurisdiction but, as discussed, the Court
was not asked to consider the relevant principles.
privacy. Parliament has enacted the Privacy Act “to promote and protect individual
privacy”.88
[70]
There is academic writing calling for a revisiting of the approach to costs in
public litigation (and discussion about how that might be defined). The principle
that a successful defendant, absent special circumstances, has a reasonable
expectation of obtaining an order for costs in its favour, derives from disputes over
private interests at a time when public and administrative law was not really part of
the litigation landscape.89 As one commentator puts it:90
... the advent of public law and human rights frameworks and their inherent
provision for the legal accountability of public bodies provides an almost
unassailable suggestion that some litigation may be brought and indeed
decided in the wider public interest. ...
[71]
The Tribunal is the appropriate body to develop its approach to costs. The
broad discretion provided enables it to do so. In deciding to revisit its previous
approach it has made no error and it is not plainly wrong. I decline therefore to
interfere with the decision it has made in the present case, on the basis that it erred
by not following High Court authority or its own earlier authority. In my view no
such error was made.
Was there an error on the facts of this case?
[72]
The Commissioner of Police submits that the Tribunal was wrong to take into
account whether Mr Andrews could meet an award of costs. In the first place it is
submitted that, as had been the Tribunal’s previous approach, this is relevant to
enforcement rather than to whether a costs order should be made. Secondly it is said
that the Tribunal did not have sufficient information on which to conclude that Mr
Andrews did not have the means to meet a costs order.
88
89
90
Privacy Act 1993, long title.
Gary Cazalet “Unresolved issues: costs in public interest litigation in Australia” (2010) 29(1)
CJQ 108 at 109.
Shami Chakrabarti “Whose cost the public interest?” [2003] PL 697 at 697. The author notes at
700 that if judicial review is simply a mechanism to vindicate the rights and interests of
individuals against the state it might be said that no special costs protection should be given.
However, if the action is viewed as “a mechanism for the scrutiny and accountability of public
administration, preserving rather than frustrating democracy”, then it might be seen as furthering
the public interest. See also J Robert and S Prichard “A Systemic Approach to Comparative
Law” (1988) 17(2) JLS 451 which argues that costs rules can influence the development of the
substantive law.
[73]
In my view there was no error made by the Tribunal in taking into account
Mr Andrews’ means. The Tribunal noted that Mr Andrews’ rehabilitation on his
release from prison was likely to be challenging. It saw no sense in burdening Mr
Andrews with an order for costs in those circumstances. I consider that there are
parallels with orders for reparations. The factors the Tribunal referred to here are
factors that are relevant to the Court’s decision as to whether to make an order for
reparation and, if so, the amount. I consider the Tribunal was correct to have regard
to these matters.
[74]
I also consider there was sufficient information before the Tribunal for it to
conclude that a costs order was unlikely to be beyond Mr Andrews’ means. He was
a relatively young man, with some history through the courts, who was serving a six
year sentence. Mr Andrews did not provide information to the Tribunal about that
when he had the opportunity to do so. However that should not count too heavily
against him. As Mr Andrews explained, once the Tribunal found against his claim he
felt he “just had to suck it in and carry on” and he saw the whole thing as a waste of
time. It was a reasonable inference that someone in Mr Andrews’ position did not
have much money.91
[75]
The Commissioner of Police submits that the Tribunal overstated the novelty
of the claim. It is said that while the interaction between the Privacy Act and the
Criminal Disclosure Act had not been considered previously, the common law
obligations of disclosure were similar. However the Commissioner of Police had
sought costs in the Tribunal above a 30 per cent contribution to actual and reasonable
costs in part because it was required to prepare written submissions “on legal issues
of some novelty and complexity.”92 Moreover, the Privacy Commissioner elected to
appear before the Tribunal and made submissions on how the legislation should
interact. The important point of principle addressed by the Privacy Commissioner
and considered by the Tribunal was whether disclosure under the Criminal
Disclosure Act was reviewable under the Privacy Act. This does not therefore
provide a basis to interfere with the Tribunal’s decision on costs in this case.
91
92
Mr Andrews informally advised me at the hearing that he has no money. He receives $2.70 a
week in prison and has outstanding reparations and bills.
These words appear in the Commissioner of Police’s submissions to the Tribunal seeking costs.
[76]
The Commissioner of Police notes that Mr Andrews made allegations of bad
faith against the police officer involved which were not made out. These allegations
caused additional expense in the proceeding. However there is no suggestion that
Mr Andrews was not genuine in bringing his complaint. As he said in his written
submissions to this court “I truly believe that my Privacy was breached and that it
did cause significant emotional damage to me and my relationship at the time.” Mr
Andrews had particular views about the officer involved as a result of other dealings
between them. Although unfounded, as the Tribunal said, Mr Andrews’ views in
light of his position “are not surprising or unique.”
[77]
Importantly, Mr Andrews was a person in a vulnerable position as against the
state. The police were in possession of his personal information because he was
charged with criminal offending, suspected of further criminal offending, and had
gone missing. He considered that the state had wrongly disclosed his personal
information with devastating consequences for his family situation. At the time he
took steps in relation to that disclosure, he was in prison serving a six year sentence.
[78]
It is not difficult to see why Mr Andrews should feel aggrieved by the
disclosure of his text communications with other women. Taken at face value, they
have nothing to do with whether his partner was assisting him in hiding from the
police. His submissions about that are logical. There were enough texts between
himself and his partner to establish that she had been assisting him. For reasons
which the Tribunal explained, however, it considered that they nevertheless met the
test of “relevance” under the Criminal Disclosure Act.
[79]
Mr Andrews complained to the officer about that disclosure. His letter to the
Privacy Commissioner explained why he felt aggrieved by the officer’s response to
his concerns. It seems that Mr Andrews may also have made a complaint to the
Independent Police Conduct Authority. He says that he learned of the ability to
complain to the Privacy Commissioner through a notice at the prison. An associate
assisted him in making his complaint. He says that he wanted to make the complaint
because he wanted someone independent to consider it. He did not regard the police
processes as being independent.
[80]
In these circumstances I see no error in the Tribunal’s conclusion that Mr
Andrews should not be punished by way of an order for costs, for bringing a claim
that was important to him and about which he was genuine. His claim was one that
was appropriately tested through the Tribunal’s processes. Such claims should not
be unduly discouraged.
Result
[81]
The appeal is dismissed. Although this case has been about costs, I am
unclear if any costs order is sought in respect of this appeal. My inclination is that
no costs order should be made. If there is any issue about that the parties may
submit brief memoranda. They should do so within 30 days of the date of this
judgment.
Mallon J