A B C D E F G H I J K L M N O P Q R S T U V W X Y Z
Access order - application under Privacy Act 2020, s 104 to enforce access direction made under s 92 – whether access direction made against legally recognisable entity so that access order could be enforced – Privacy Act 2020, ss 92 and 104
Adjournment – after close of evidence parties making final submissions – whether appropriate to adjourn hearing to enable party to call further evidence – litigant in person – Human Rights Act 1993, s 105 – Privacy Act 1993, s 89
Adjournment – relevance of Tribunal’s workload – Tribunal’s responsibility to all litigants to ensure limited resources employed effectively and not needlessly wasted
Amicus curiae – application for the appointment of – whether jurisdiction to appoint – Human Rights Act 1993, s 108
Bias – apparent bias – recusal – test for
Burden of proof – Principle 6 – whether Privacy Act creates a strong right to access personal information – whether plaintiff must establish interference with privacy on balance of probabilities – whether agency has onus of proving exception – information privacy Principle 6 – Privacy Act, ss 11, 27, 29, 30, 44, 85(1) and 87
Burden of proof – Principle 11 – sequential steps to be followed – information privacy Principle 11 – Privacy Act 1993, ss 85(4) and 87
Burden of proof – terms of request – information the subject of the request – duty to establish – Privacy Act 1993, ss 40 and 85
Burden of proof – unauthorised disclosure of personal information – loss of documents from departmental file – information privacy Principle 11 – Privacy Act s 85
Causation – appropriate standard – whether sufficient to show contributing cause in sense of a material cause – test where multiple causes – Privacy Act 1993, s 66(1)
Causation – interference with privacy – remedy – whether there must be a causal connection between either a s 66(1) form of interference or a s 66(2) form of interference and one of the forms of loss or harm listed in s 88(1)(a), (b) or (c) – Privacy Act 1993, s 88(1)
Causation – interference with privacy – two separate definitions in s 66(1) and s 66(2) – whether causation an element of s 66(1) definition – whether causation an element of s 66(2) definition – Privacy Act 1993, s 66
Certificate of Investigation by Privacy Commissioner – function of – whether capable of challenge - construction
Certificate of Privacy Commissioner – establishing jurisdiction of Tribunal – whether certificate capable of challenge – Privacy Act 1993, ss 82, 83 and 105
Charges – reasonable – assessment of – Ministry of Justice guidelines – relevance of – charging regimes under Official Information Act 1982, s 15(2) and Local Government Official Information and Meetings Act 1987, s 13(3) – Privacy Act 1993, s 35(2), (3) and (5)
Children – litigation guardian – appointment of – right to be heard – High Court Rules, rr 4.29, 4.30, 4.31 and 4.32 – Convention on the Rights of the Child 1989, Article 12
Children – litigant under the age of 16 – name suppression – autistic spectrum disorders – form of anonymisation – Human Rights Act 1993, ss 95(1) and 107(3)
Closed hearing – jurisdiction to hold in IPP 6 cases - mootness – application of doctrine of mootness – whether Tribunal bound to refuse to adjudicate claim which is moot – whether jurisdiction to deliver decision in exceptional circumstances – power to regulate own procedure – Human Rights Act 1993, s 104(5) – Privacy Bill, cl 114A
Closed hearing – jurisdiction to hold in IPP 6 cases – procedure to be followed – Privacy Act 2020, s 109
Collect – meaning of – whether embraces wider field of activity than mere receipt – whether engaged only when information is received – whether applies before information is collected – information privacy Principle 1 – Privacy Act 1993, s 2(1) – OECD Guidelines
Collect – meaning of – whether surveillance of an individual by a monitoring device collection under Privacy Act – Privacy Act 1993, s 2(1) – OECD Guidelines
Collection of information –Code of Conduct for Obtaining Information Under Section 11 Social Security Act 1964 – burden of proof – information privacy Principle 2 – Privacy Act 1993, ss 11(1) and 85 – Social Security Act 1964, ss 11, 11B and 11C
Collection principles – point at which engaged
Communication assistance – provision of – party with a communication disability – second plaintiff with Autistic Spectrum Disorder, intellectual disability and co-morbid anxiety disorder – whether communication assistance to be provided – Evidence Act 2006, s 80
Consolidation – proceedings brought variously under Human Rights Act 1993 and Privacy Act 1993 – whether commonality between proceedings – whether consolidation would serve a useful purpose – Human Rights Review Tribunal Regulations 2002, reg 16(ii)
Contracting out of Privacy Act 1993 – whether possible – Privacy Act 1993 Long Title and ss 27, 28, 29 and 30
Correction of personal information – meaning of “correct” – whether refusal to correct an interference with privacy – information privacy Principle 7 – Privacy Act ss 40, 66(1), 66(2), 66(3) and 66(4)
Correction of personal information – nature of obligation to “correct” – information privacy Principle 7
Costs – litigant in person – claim for disbursements – whether excessive
Costs – litigant in person – preserving access to justice
Costs – principles to be applied – whether a presumption costs to be awarded successful party – whether civil litigation rules applicable in human rights context – whether discretion to award costs must promote, not negate objects of statute – whether means of unsuccessful party relevant – whether appropriate to discourage individuals from accessing human rights protection – Human Rights Act 1993, s 92L, Privacy Act 1993, ss 85(2) and 105, Health and Disability Commissioner Act 1994, s 54(2) – International Covenant on Civil and Political Rights, Article 2(1)
Costs – principles to be applied – whether costs to punish unsuccessful party – whether costs to discourage party from bringing or defending proceedings – whether litigants in person who engage in needless and inexcusable conduct enjoy immunity – whether understanding and compassion relevant – legally aided defendant – whether “but for legal aid” order to be made – Privacy Act 1993, s 85(2) – Legal Services Act 2011, s 45(2) and 45(5)
Costs – principles to be applied – whether costs to punish unsuccessful party – whether costs to discourage party from bringing or defending proceedings – whether litigants in person who engage in needless and inexcusable conduct enjoy immunity – whether understanding and compassion relevant – Privacy Act 1993, s 85(2)
Lohr v Accident Compensation Corporation (Costs) [2016] NZHRRT 36 [PDF, 60 KB]
Costs – principles to be applied – Human Rights Act 1993, s 92L
Costs – reasonable contribution – increased costs – quantum – Privacy Act 1993, s 85(2)
Costs – reasonable contribution – representation by in-house litigation solicitor – quantum – Privacy Act 1993, s 85(2)
Costs – relevance of implementation at domestic level of international obligations – responsibility of State to respect and ensure – principle of access to justice – relevance of public importance of case – public interest and the award of costs by the Tribunal – relevance of motivation of unsuccessful plaintiff – Human Rights Act 1993, s 92L
Costs – representation – counsel acting pro bono or on basis fee to be waived if client unsuccessful – whether awarding or withholding costs will discourage litigants from bringing or defending proceedings – whether accounts and receipts required – Human Rights Act 1993, s 105 – Privacy Act 1993, s 85(2)
Costs – test case – whether costs order should have the effect of deterring parties from bringing or resisting claims – whether need to preserve access to justice – Privacy Act 1993, s 85(2)
Costs – unsuccessful plaintiff a litigant in person – need for Tribunal’s processes and procedures to be adapted to ensure lay litigants not unduly deterred by prospect of adverse award of costs – access to justice – withholding provisions – challenge to application of – role of Tribunal in withholding cases – importance of Tribunal’s oversight – relevance of when agency applies for costs – Privacy Act 1993, ss 27 to 29, 85(2) and 87
Lohr v Accident Compensation Corporation (Costs) [2016] NZHRRT 36 [PDF, 60 KB]
Costs – unsuccessful plaintiff a litigant in person – plaintiff needlessly adding to difficulty and cost of the proceedings – unjustifiable attack on credibility of defendant’s witnesses – plaintiff’s basic contention unrealistic and bound to fail – award of costs appropriate – Privacy Act 1993, s 85(2)
Costs – unsuccessful plaintiff a litigant in person – successful defendant also a litigant in person – whether costs restricted to disbursements only – whether modest award of disbursements will deter others bringing a claim – whether defendants should be deterred from resisting claims by being left out of pocket for witness expenses – Privacy Act 1993, s 85(2)
Costs – unsuccessful plaintiff concealing bankruptcy until after proceedings dismissed on the merits – defendant withdrawing costs application – Tribunal stating award which would have been made – Privacy Act 1993, s 85(2)
Costs – vexatious claim – four defendants defending separately – one set of costs principle – whether global award to be made divided between defendants – Privacy Act 1993, s 85(2) – High Court Rules, r 14.15
Criminal proceedings – discovery in the course of – degree to which governed by Privacy Act – Privacy Act s 7(1) and information privacy Principle 11, Criminal Disclosure Act 2008 ss 3, 8, 7 and 42
Crown – the Crown – the Attorney-General – the Solicitor-General – the Crown Law Office – meaning of terms – Crown Proceedings Act 1950, s 14(2)
Damages – humiliation, loss of dignity and injury to feelings – general principles for the assessment of – three bands identified – quantification of damages – principles – restraining order – deletion of records – retraction – training order – information privacy Principle 11 – Privacy Act ss 85(1)(a), (b), (c) and (d) and 88(1)(a), (b) and (c)
Damages – loss of benefit – not having ability to utilise the information in litigation – whether proceedings must have been instituted – whether onus on requester to show withheld information would have made a difference to outcome of dispute – quantum – whether assessment of appropriate level of damages to be based on an objective assessment of the nature of the benefit the aggrieved individual might reasonably have been expected to have obtained but for the interference, the seriousness of the interference and the surrounding circumstances – Privacy Act 1993, s 88(1)(b)
Damages – loss of benefit – upwards adjustment of old awards – loss of good credit rating – significance of – training order – information privacy Principle 8 – Privacy Act ss 85(1)(c) and 88(1)(b)
Decision on request – consequence where request not responded to within statutory timeframe – request deemed by PA, s 66(3) to have been refused – whether presumption conclusive – whether liability inquiry includes s 66(4) issue of undue delay – whether double jeopardy – Privacy Act 1993, ss 40(1), 66(3) and 66(4)
Decision on request – obligation to give reasons – whether the decision required by s 40(1) is a decision on each and every item of personal information held by the agency about the requesting individual – Privacy Act 1993, s 40(1)
Decision on request – time for making – as soon as reasonably practicable and in any case not longer than 20 working days after the day on which the request is received – Privacy Act 1993, s 40(1)
Decision on request – time for making – obligation to give reasons – whether reasons must be given before it can be said a decision on the request has been given – Privacy Act 1993, ss 40(1), 44 and 66(3)
Decision on request – whether decision and the provision of the information to be made at the same time – Privacy Act 1993, ss 40(1) and 66(4)
Defendant - unincorporated body - whether defendant had independent legal existence distinct from its individual members - legally recognisable entity requirement for defendant to Privacy Act proceedings - Privacy Act 2020, ss 92 and 104
Derogation – Principle 6 – whether Principle 6 overridden by provisions of Criminal Disclosure Act 2008 – Criminal Disclosure Act 2008, s 42 – Privacy Act 1993, s 7
Derogation – Principle 6 – whether Principle 6 overridden by provisions of Parole Act 2002 – whether issue suitable for determination on strike-out application – Parole Act 2002, s 50, Privacy Act 1993, s 7
Derogation – Principle 11 – withholding of prisoner’s mail – whether Principle 11 overridden by provisions of Corrections Act 2004, s 108 – Privacy Act 1993, s 7
Derogation – relationship between IPPs and other New Zealand law – whether IPP 10 prevents personal information obtained in the course of a criminal investigation from being used for the different purpose of an employment investigation into the alleged actions of an off-duty Police officer – whether Police use of information authorised or required by or under New Zealand law – application of Policing Act 2008, s 57 – Privacy Act 1993, s 7(4) – Privacy Act 2020, s 24(2) and IPP 10 – International Covenant on Civil and Political Rights, 1966 Article 17
Derogation – statutory duty to disclose parole address – conflict with IPP 11 – meaning of “derogates from” – whether IPP 11 continues to apply where the provision in the other enactment is not properly applied by the decision-maker – whether vacuum possible – Privacy Act 1993, s 7(1) – Parole Act 2002, ss 50 and 108(3)
Dignity – interpretation of – persons with disabilities – plaintiff lacking capacity to know breach of right has taken place – whether loss of dignity assessed subjectively or objectively – basis on which damages for loss of dignity to be assessed – assessment of quantum – discretion to grant remedy – Human Rights Act 1993, s 92M – Privacy Act 1993, s 88 – Health and Disability Commissioner Act 1994, s 57
Directions – failure to comply with case management directions – whether proceedings to be struck out – Human Rights Act 1993, s 115 and Human Rights Review Tribunal Regulations 2002, reg 16
Disclosure – Principle 11 - necessary to prevent or lessen a serious and imminent threat to the life or health of another individual - belief on reasonable grounds – authorised by individual – non-publication orders – Privacy Act 1993, IPP 11 and s 107(3)(b).
Discontinuance of proceedings by second plaintiff – whether reinstatement possible – obligation of Tribunal to act according to equity and good conscience – Human Rights Act 1993, s 105(2)(c)
Discovery – discovery against non-party – jurisdiction to order – procedure to be followed – whether order for particular discovery against non-party the only means to gain access to documents held by non-party – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 104(5), 106(1)(a), (b) and (c) and 109 – Human Rights Review Tribunal Regulations, reg 16(1) – High Court Rules, rr 8.21 and 9.52
Discovery – redactions upheld by Ombudsman under LGOIMA – weight to be given – discretion as to confidential information – relevance of implied undertaking that discovered documents and information will be used only for the purpose of the proceedings – Evidence Act 2006, s 69 – Local Government Official Information and Meetings Act 1987, s 7(2)(a)
Discovery – relevance as a criteria – whether application for discovery to be determined on facts asserted by party seeking discovery – discovery in context of claim under information privacy principles 8 and 11
Discovery – structure of discovery before Tribunal – relevant principles – further and better discovery – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, rr 8.1 to 8.33
Discovery – use of documents obtained by way of discovery – collateral use of documents in other proceedings or for other purposes – implied undertaking – High Court Rules, r 8.30(4)
Discovery – see index to Human Rights Act 1993 for relevant decisions
Dismissal of proceedings – trivial, frivolous or vexatious or not brought in good faith – Privacy Act 1993, s 195
Domestic affairs exemption – elements to be established – agency that is an individual – personal information collected or held – whether use and disclosure included – meaning of personal family or household affairs – acting in an individual capacity – whether scope of domestic affairs exemption to be narrowed – Privacy Act 1993, s 56
Employer – vicarious liability of – thing done “as” employee – act done “by” an employee – meaning of – distinction between – whether employer took steps that were reasonably practicable – whether employer who is vicariously liable for actions of employee can rely on employee’s belief on reasonable grounds that non-compliance with IPP 11 necessary for conduct of proceedings before a court – Privacy Act 1993, s 126 – Human Rights Act 1993, s 68 – IPP 11(e)(iv)
Enforcement – non-compliance with orders made by Tribunal – whether Tribunal has inherent jurisdiction – whether power to enforce orders – whether High Court has inherent jurisdiction to uphold authority of tribunals – Human Rights Act 1993, s 121 – Senior Courts Act 2016, s 12(b)
Dotcom v Crown Law Office (Inherent Powers) [2018] NZHRRT 36
Dotcom v Crown Law Office (Application for Compliance Orders) [2018] NZHRRT 29 [PDF, 229 KB]
Evaluative material – compiled solely – whether mixed purposes allowed – whether a distinction to be drawn between fact on the one hand and evaluative or opinion material on the other – Privacy Act 1993, s 29(1)(b)
Evaluative material – express or implied promise – whether promise of confidence to be made prior to or at the time of the supply of information – whether promise of confidentiality must be relied on when information provided – Privacy Act 1993, s 29(1)(b)
Evaluative material – meaning of “contract, award, scholarship, honour, or benefit” – Privacy Act 1993, ss 29(1)(b) and (3)(b)
Evidence – admissibility – discretion to admit evidence – test – relationship between Human Rights Act 1993 and Evidence Act 2006 – veracity evidence – Human Rights Act 1993, ss 106(1) and (4) – Evidence Act 2006, ss 5(1), 7, 8 and 37 – Privacy Act 1993, s 89
Evidence – appearance of witness or participant by audio-visual link (AVL) – whether jurisdiction to permit – principles and criteria to be applied – Human Rights Act 1993, s 104(5) – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105
Evidence – counsel appearing by audio-visual link (AVL) – whether jurisdiction to permit – principles and criteria to be applied – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105
Evidence – holding of a view – use of information obtained at a view – Evidence Act 2006, s 82 – Human Rights Act 1993, s 106(4) – Privacy Act 1993, s 89
Evidence – veracity evidence – whether substantially helpful – whether of evidentiary value – whether probative value outweighed by the risk of unfair prejudicial effect on the proceeding or needlessly prolong the proceeding – Evidence Act 2006, s 37 – Human Rights Act 1993, ss 8, 37 and 106(1)(d)
Extension of time – limited circumstances in which available – Privacy Act 1993, s 41
Facebook – whether information publicly available – significance of Facebook pages commonly containing highly subjective information – application of the duty to check information for accuracy prior to use – Principle 8
GDPR – relevance of international privacy obligations – interpretation of domestic privacy legislation – EU General Data Protection Regulation, articles 12 and 15
Heath information – importance of confidentiality – whether affirmed at common law – whether principle recognised by the European Court of Human Rights – link between confidentiality about a person’s health and the preservation of confidence in the medical profession and in health services generally
Health information – meaning of – correction of – extent of entitlement – Health Information Privacy Code 1994, rr 4 and 7
Health Information Privacy Code – HIPC, r 8 – opinion expressed by medical practitioner – whether Tribunal can second-guess that opinion - whether HIPC, r 8 applies to that opinion or to the steps taken to ensure accuracy of the information used in formulating that opinion – Health Information Privacy Code 1994, r 8 – information privacy principle 8
Health Information Privacy Code – HIPC, r 11(1)(a)(ii) – whether on the facts the individual concerned unable to exercise his or her rights under the HIPC – whether Protection of Personal and Property Rights Act 1988, s 5 (presumption of competence) relevant to assessment – meaning of “representative” – Health Information Privacy Code 1994, r 11 – information privacy principle 11
Health Information Privacy Code – National Health Index – collection of health information – application of HIPC, r 1 – whether maintenance and stewardship of NHI within role of Ministry of Health –exception to requirement information be collected directly from individual – application of HIPC, r 2(2)(d) – whether information collected by unlawful means or by means unfair or which intruded to an unreasonable extent – application of HIPC, r 4 – Health Information Privacy Code 1994, rr 1, 2 and 4 – Health Act 1956, ss 2(1) and 3A
Health information – whether liability for breach of Health Information Privacy Code is personal – limitations on disclosure of health information – burden of proof – sequential steps to be followed – Privacy Act 1993, s 53 – Health Information Privacy Code 1994, Rule 11
Immigration – application of Principle 8 – degree to which principle engaged in immigration context – whether confers a right –whether can be used as vehicle to reverse statutory onus and impose on INZ duty to make inquiry – whether duty on agency to ensure applicant has put forward best possible case – whether duty to draw attention to defects in case – whether imposes duty to allow comment on potentially prejudicial information – information privacy Principle 2 – Immigration Act 2009, s 58
Information requested does not exist or cannot be found – whether agency must show reasonable attempts have been made to find the information – Privacy Act 1993, s 29(2)(b)
Interference with privacy – no proper basis for that decision – nature of assessment – Privacy Act 1993, s 66(2)(b)
Interference with privacy – two separate definitions – the first in s 66(1) and the second in s 66(2) – identifying the separate requirements of each definition – Privacy Act 1993, s 66
Interim order application – non-publication orders – “necessary” – “in the interests of justice” – “preserve the position of the parties” – Human Rights Act 1993, ss 95 and 107(3)(b) and Criminal Justice Act 1985, ss 139 and 140
Interim order application – see index to Human Rights Act 1993 for relevant decisions
Interpretation – relevance of international privacy obligations – OECD Guidelines, cl 13(b)(iv) – EU General Data Protection Regulation, articles 12 and 15
Investigation by Privacy Commissioner under Part 5, Subpart 2 – refusal to conduct – whether Tribunal has jurisdiction to accept intended statement of claim for filing – Privacy Act 2020, ss 74, 77 and 98
Investigation by Privacy Commissioner under Part 8 – refusal to conduct – whether Tribunal has jurisdiction to accept intended statement of claim for filing – Privacy Act 1993, ss 82 and 83
Investigation by Privacy Commissioner – whether for there to be an investigation for the purpose of conferring jurisdiction on HRRT to hear claim it is necessary for Commissioner to arrive at conclusion and finding whether information privacy principle breached and a consequential interference with privacy of an individual – whether Commissioner has discretion to investigate complaint – whether in the course of an investigation Commissioner can decide to take no further action – whether discretion to take no further action limited to circumstances specified in Privacy Act 1993, s 71(1) – Privacy Act 1993, ss 69, 70 and 71
Jurisdiction – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – duty on Commissioner to inform complainant, the individual alleged to be aggrieved (if not the complainant) and the person to whom the investigation relates of intention to make investigation and of details of the complaint – duty to identify the complainant and the person alleged to be aggrieved – Privacy Act 1993, ss 73(b) and 83
Jurisdiction – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – duty on Commissioner to inform parties of intention to make investigation – whether satisfaction of the statutory process can occur by necessary implication
Jurisdiction – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – investigation in respect of defendant’s actions in his capacity as officer of an incorporated company but not in respect of other actions taken in his personal capacity – whether Tribunal has jurisdiction in respect of the “private” actions – Privacy Act 1993, Part 8
Jurisdiction – complaint to Privacy Commissioner withdrawn or discontinued – whether Tribunal has jurisdiction to hear claim – Privacy Act 1993, Part 8
Gray v Ministry for Children (Strike-Out Application) [2018] NZHRRT 13 [PDF, 227 KB]
Jurisdiction – establishment of – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – any action alleged – certificate of investigation by Commissioner – function and whether capable of challenge – Privacy Act 1993, ss 67(1), 70, 73, 82, 83 and 105
Jurisdiction – establishment of – a person in respect of whom an investigation has been conducted by the Privacy Commissioner under Part 8 – any action alleged – certificate of investigation by Commissioner – whether plaintiff must show that each particular document the subject of specific investigation by Commissioner – Privacy Act 1993, ss 82, 83 and 105
Jurisdiction – files containing personal information lost while in possession of contractor – complaint notified to ACC but not contractor – a person in respect of whom an investigation has been conducted by the Privacy Commissioner – Health Information Privacy Code 1994, Rule 5 – Privacy Act 1993, ss 67(1), 70, 73, 82, 83 and 105
Jurisdiction – identifying the “action” alleged to be an interference with the privacy of an individual – certificate of investigation issued by Privacy Commissioner – effect of – Privacy Act ss 82(1) and 83
Jurisdiction – inherent jurisdiction – inherent powers – whether possessed by Tribunal – delay or refusal to comply with orders made by Tribunal – whether Tribunal has jurisdiction to make enforcement orders – whether Tribunal a court – jurisdiction of High Court to uphold authority of tribunals – Human Rights Act 1993, ss 105, 114 and 121 – Senior Courts Act 2016, s 12(b) – High Court Rules, r 11.10
Jurisdiction – whether function of Tribunal to determine whether defendant committed tort of invasion of privacy or tort of intrusion upon seclusion
Jurisdiction – whether Tribunal has jurisdiction only in relation to those matters investigated by the Privacy Commissioner – Privacy Act 1993, ss 82(1) and 83
Legal entity – defendant an unincorporated body – whether defendant had independent legal existence distinct from its individual members - need for Privacy Act proceedings to be against defendant whom can assume legal liability - Privacy Act 2020, ss 92 and 104
Legal professional privilege – waiver – whether waiver by voluntary disclosure by agency to Privacy Commissioner – whether waiver may occur for one purpose and not another – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 65
Legal professional privilege – whether requirement to notify decision to withhold – whether a duty to list withheld documents – when the withholding grounds no longer apply – waiver
Liability – employers and employees – principals and agents – whether power to determine issues of indemnity and contribution – Privacy Act 1993, s 126
Limitation Act 1950 and Limitation Act 2010 – application to proceedings before Human Rights Review Tribunal – Human Rights Act 1993, s 105(2)(c) – Limitation Act 1950, s 4 and Limitation Act 2010, ss 8, 9, 10 and 11
Limits on disclosure of personal information – authorisation by the individual concerned – non-compliance – necessary for the maintenance of the law – information privacy Principle 11
Making of information privacy request – when request “made” – Privacy Act 1993 ss 33, 34, 38, 40 and 85
Media – access to Tribunal file – application to obtain photograph of exhibit – whether right to be forgotten – Human Rights Act 1993, s 107(3)
Media – application to obtain photograph of exhibit – whether right to be forgotten – Human Rights Act 1993, s 107(3)
Media – In-Court media coverage – still photographs – sound recording – standard conditions for still photography and for recording – application out of time – In-Court Media Coverage Guidelines 2012
Name suppression – aggrieved person charged with sexual offending against step-daughter but found not guilty – subsequent issue of “red stamp” endorsement by Police – claim information privacy principle 8 breached – name and reputation of aggrieved person critical to ongoing success of his business – identity of step-daughter protected by Criminal Justice Act 1985, s 139 – derivative protection conferred on aggrieved person – whether open justice principle overridden by name suppression provisions of Criminal Justice Act – Human Rights Act 1993, s 107(3) and the Privacy Act 1993 s 89
Name suppression – children – litigant under the age of 16 – autistic spectrum disorders – form of anonymisation – Human Rights Act 1993, ss 95(1) and 107(3)
Name suppression – disclosure of information regarding state of health – whether a highly personal matter – recognition of wish to maintain the confidentiality of that information – Human Rights Act 1993, s 107(3) and the Privacy Act 1993, s 89
Name suppression – embarrassment or detriment to reputation – weight to be given to – Privacy Act 1993, s 107(3)
Name suppression – interests of justice – relevance of delay by applicant – relevance of public interest where Pharmacy Council has placed conditions on plaintiff’s participation in the pharmacy industry requiring plaintiff to disclose to any employer that he is under investigation by a Professional Conduct Committee and that he must work under a Council-approved supervisor at all times – Human Rights Act 1993, ss 95(1) and 107(2) and (3) – Health Practitioners Competence Assurance Act 2003, s 3
Name suppression – interim orders for plaintiff and second defendant – Human Rights Act 1993, ss 95 and 107(3) – Privacy Act 1993, s 89
Name suppression – no case made out but non-publication order made by other court or tribunal in earlier proceedings under other legislation – weight to be given – Privacy Act 1993, s 107(3)
Name suppression – open justice principle – interests of justice – principles to be applied – interpretation and application of s 107 Human Rights Act 1993 – meaning of “special circumstances” and “desirable” – summary of correct approach to applications for name suppression – Human Rights Act 1993, s 107(2) and (3)
Name suppression – rescission of order where protection no longer sought
Necessary – meaning of in the information privacy principles
News activity – meaning of “news” – whether the personal information which is disclosed must be news, observations on news or current affairs – whether news activity must be responsible news activity
News medium – meaning of “business” – purpose of exemption – whether privileges and exemptions of news media must be exercised responsibly – Privacy Act 1993, s 2(1)
Non-Party - application to appear and to call evidence by person with interest in the proceedings greater than the public generally – factors to be taken into account – Human Rights Act 1993, s 108
Non-Party – whether HRA, s 108 allows non-party to claim breach of his or her own privacy rights – whether s 108 can be used to facilitate representation of the aggrieved person – Human Rights Act 1993, s 108
Non-publication orders – desirable to do so – child – consequences to daughter – open justice – Privacy Act 1993, s 107(3)(b).
OECD Guidelines – relevance of international privacy obligations – interpretation of domestic privacy legislation – OECD Guidelines cl 13(b)(iv)
Official Information Act 1982, s 48 – indemnity – prohibition on civil proceedings where official information made available in good faith – application to personal information held by New Zealand Police – whether information held – whether agency has initial responsibility to establish s 48 engaged – meaning of good faith – whether necessary to consider if agency correctly applied OIA – whether necessary to consider reasoning process of agency – IPP 11 – Official Information Act 1982, s 48
Particulars – failure to provide – not possible for defendant to ascertain what alleged against it – whether proceedings to be struck out – Human Rights Act 1993, s 115 and Human Rights Review Tribunal Regulations 2002, reg 16
Parties – application by Attorney-General to be added as defendant when Attorney-General able under s 92G to exercise statutory right to appear and to adduce evidence and to cross-examine witnesses – whether relevant that Attorney-General should have been joined as a party from the outset – whether relevant joinder as a party confers the wider rights and obligations than s 92G – Human Rights Act 1993, s 92G – High Court Rules, r 4.56
Parties – joinder – adding defendants – principles to be applied – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, rr 4.3 and 4.56
Personal information – meaning of – about – whether limitations to term – interpretive principles to be applied
Personal information – meaning of – whether address at which person lives is personal information – whether the individual is an identifiable individual – Privacy Act 1993, s 2(1)
Personal information – meaning of – whether identity of an informant is also personal information about the person informed upon – Privacy Act 1993, s 2(1)
Personal information – meaning of – whether includes opinion – information about two or more individuals – whether grounds to withhold all or part of information – Privacy Act 1993, s 2(1) and 29(1)(a)
Police – no enactment giving Police the power to sue or enabling it to be sued – whether Attorney-General appropriate Crown defendant – Crown Proceedings Act 1950, s 14(2)
Practice and procedure – split trials – whether jurisdiction to order separate determination of issues – Human Rights Act 1993, ss 104(5) and 105 – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, r 10.15
Preliminary issues – whether to be determined before trial – split trials – whether jurisdiction to order separate determination of issues – Human Rights Act 1993, ss 104(5) and 105 – Human Rights Review Tribunal Regulations 2002, reg 16(1) – High Court Rules, r 10.15
Principle 1 – collect – meaning of – whether embraces wider field of activity than mere receipt – whether engaged only when information is received – whether applies before information is collected – information privacy Principle 1 – Privacy Act 1993, s 2(1) – OECD Guidelines
Principle 1 – lawful purpose connected with a function or activity of the agency – necessary – whether reasonably necessary – information privacy Principle 1
Principle 1 – necessary for that purpose – whether reasonably necessary – information privacy Principle 1
Principle 1 – necessary – whether Principles absolute or subject to limitation – information privacy Principle 1
Principle 1 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 1
Principle 11 – disclosure – necessary to prevent or lessen a serious and imminent threat to the life or health of another individual - belief on reasonable grounds – authorised by individual – non-publication orders – Privacy Act 1993, IPP 11 and s 107(3)(b).
Principle 2 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 2
Principle 2(2)(a) – publicly available information – Facebook – whether publicly available information
Principle 3 – necessary – maintenance of law exception – information privacy Principle 3
Principle 3 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 3
Principle 3 – recording of incoming and outgoing telephone calls at Doctor’s surgery – whether person aggrieved made aware of collection of personal information and purpose of collection – information privacy Principle 3
Principle 4 – point at which engaged – whether holding of information by agency a pre-condition to operation – information privacy Principle 4
Principle 5 – whether IPP 5 applies only to unintentional destruction of files – application where a public sector agency administers an accident compensation scheme – meaning of loss
Principle 6 – access – where access given to online information – whether provision of access – Privacy Act 1993, s 42
Principle 6 – access – whether meaningful access – whether information to be provided in a manner that is transparent, intelligible and easily accessible – information privacy Principle 6
Principle 6 – document not held by agency – information privacy principle 6
Principle 6 – employment dispute settled by an agreement in full and final settlement of all matters between parties – whether employee thereby prevented from subsequently making information privacy request – whether statutory right to personal information held by a public sector agency can be defeated by a private settlement – whether issue suitable for determination on strike-out application – Privacy Act 1993, s 11(1)
Principle 6 – information held in minds – whether personal information can readily be retrieved – whether personal information for the purposes of the Privacy Act 1993 – information privacy Principle 6
Principle 6 – override of – whether Principle 6 overridden by provisions of Criminal Disclosure Act 2008 – Criminal Disclosure Act 2008, s 42 – Privacy Act 1993, s 7
Principle 6 – override of – whether Principle 6 overridden by provisions of Parole Act 2002 – whether issue suitable for determination on strike-out application – Parole Act 2002, s 50, Privacy Act 1993, s 7
Principle 6 – personal information provided by agency illegible or obscured – whether personal information provided in response to an IPP 6 request required to be legible – use of watermark – principles to be applied
Principle 6 – point at which engaged – whether holding of information by agency a pre-condition to operation of the right of access – information privacy Principle 6
Principle 6 – repeat requests
Principle 6 – request – when made – Privacy Act 1993, ss 33, 34, 38, 40 and 85 – information privacy Principle 6
Principle 6 – whether breadth of request relevant – information privacy Principle 6
Principle 7 – request for correction vague and unintelligible – whether a correction request within Principle 7 – information privacy principle 7
Principle 8 – application in litigation context – whether principle 8 displaced
Principle 8 – application where creditor instructs debt collection agency or credit reporting agency – whether exposure to legal proceedings and to listing of disputed debt with credit reporting agency a loss, detriment, damage or injury or an adverse affect on rights, obligations or interests – Privacy Act 1993, s 66(1)(b)(i) and (ii)
Principle 8 – discovery in context of a claim under
Principle 8 – Facebook – application of the duty to check information for accuracy prior to use – Principle 8
Principle 8 – significance of Privacy Act being principles-based and open textured– whether information privacy principles to be applied and assessed in relation to each individual set of facts as they arise – absence of bright line rules – whether agency to be allowed degree of flexibility as to how Principle 8 to be complied with – significance of “reasonableness” and “circumstances” – the meaning of “use” – vetting request to Police – whether only information which has been investigated and proved to be true can be taken into account in the vetting process – whether Principle 8 imposes an obligation to afford opportunity to comment on potentially prejudicial information – information privacy Principle 8
Principle 8 – whether confers a right – degree to which principle engaged in immigration context – whether can be used as vehicle to reverse statutory onus and impose on INZ duty to make inquiry – whether duty on agency to ensure applicant has put forward best possible case – whether duty to draw attention to defects in case – whether imposes duty to allow comment on potentially prejudicial information – information privacy Principle 2 – Immigration Act 2009, s 58
Principle 11 – believes on reasonable grounds – whether a subjective component (the belief) and an objective component (reasonable grounds) – whether both elements must exist at the date of disclosure – whether agency required to address its mind to the relevant paragraph of Principle 11 on which it intends to rely – whether there must be an actual belief based on a proper consideration of the relevant circumstances – whether explanation devised in hindsight will suffice – information privacy Principle 11
Principle 11 – damages for breach – general principles for the assessment of – information privacy Principle 11
Principle 11 – discovery in context of a claim under
Principle 11 – suppression order made by criminal court – application of Principle 11 – whether precludes conveying and receiving information covered by suppression order – information privacy Principle 11
Principle 11 – whether empowers Tribunal to issue order compelling non-party to provide the residential address or phone number of a potential witness or of his or her counsel – information privacy Principle 11
Principle 11(a) – directly related to the purposes – interpretation of – new purpose – whether must have uninterrupted, immediate relationship to original purpose – information privacy Principle 11(a)
Privacy Commissioner – investigation by – whether for there to be an investigation for the purpose of conferring jurisdiction on HRRT to hear claim it is necessary for Commissioner to arrive at conclusion and finding whether information privacy principle breached and a consequential interference with privacy of an individual – whether Commissioner has discretion to investigate complaint – whether in the course of an investigation Commissioner can decide to take no further action – whether discretion to take no further action limited to circumstances specified in Privacy Act 1993, s 71(1) – Privacy Act 1993, ss 69, 70 and 71
Privacy Commissioner – refusal to conduct investigation under Part 8 – whether Tribunal has jurisdiction to accept intended statement of claim for filing – Privacy Act 1993, ss 82 and 83
Privacy enhancing technologies – use of – whether appropriate – OECD 2013 Revised Guidelines, para 19(g)
Reasons for refusal – whether request under Principle 6 decided in the statutory sense where decision plus reasons not given prior to expiration of the “as soon as reasonably practicable, and in any case not later than 20 working days” time line – Privacy Act 1993, ss 40(1), 44 and 66(3)
Recall of decision once sealed and published – whether jurisdiction – Human Rights Act 1993, ss 104 and 105 – Interpretation Act 1999, ss 13 and 16
Refusal to accept statement of claim – no investigation of complaint by Privacy Commissioner – Tribunal without jurisdiction
Refusal to disclose – disclosure likely to prejudice the maintenance of the law – meaning of “likely” – standard of proof – Privacy Act 1993, s 27(1)(c)
Refusal to disclose – disclosure likely to prejudice the maintenance of the law – meaning of “to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences and the right to a fair trial” – Privacy Act 1993, s 27(1)(c)
Refusal to disclose – disclosure likely to prejudice the maintenance of the law – Privacy Act 1993, s 27(1)(c)
Refusal to disclose – disclosure likely to prejudice the maintenance of the law – relevant date on which agency must have good reason for refusal – information privacy Principle 6 – Privacy Act 1993, s 27(1)(c)
Refusal to disclose – legal professional privilege – scope of – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 54(1)
Refusal to disclose – unwarranted disclosure of the affairs of another – meaning of “unwarranted” – Privacy Act 1993 s 29(1)(a)
Refusal to make information available – claim that request vexatious – meaning of vexatious – whether an element of impropriety – whether assessment objective – whether “frivolous or vexatious” an all-encompassing ground – whether can be deployed if another, more appropriate ground has application – whether s 29(1)(j) to be applied with caution – test to be applied – relevance of breadth and volume of request – Privacy Act 1993, s 29(1)(j)
Refusal to make information available – evaluative material – express or implied promise – whether promise of confidence to be made prior to or at the time of the supply of information – whether promise of confidentiality must be relied on when information provided – Privacy Act 1993, s 29(1)(b)
Refusal to make information available in response to request – relevant date on which agency must have good reason for refusal – whether necessary for agency to offer reason at time it communicates decision on the request – information privacy Principle 6 – Privacy Act 1993, ss 29(1)(a), 40(1), 66(2)(a)(i) and (b)
Refusal to make information available – unwarranted disclosure of affairs of another person – whether Principle 6 right of access held by requester to be weighed against competing interest recognised in s 29(1)(a) – how balance to be struck – information privacy Principles 6 and 7 – Privacy Act 1993, s 29(1)(a)
Refusal to make personal information available – information does not exist or cannot be found – whether agency must show reasonable attempts have been made to find the information – Privacy Act 1993, s 29(2)(b)
Refusal to make personal information available – legal professional privilege – meaning of – whether distinction between legal advice and legal services – Privacy Act 1993, s 29(1)(f) – Evidence Act 2006, s 54(1)
Remedy – apology – weight to be given to – Privacy Act 1993, s 85(4)
Remedy – compensation awarded by Employment Relations Authority – relevance of – whether ERA has exclusive jurisdiction over Privacy Act issues arising in employment relationship problems – Acts Interpretation Act 1999, s 5 – Privacy Act, Long Title – Employment Relations Act 2000, ss 3, 5, 112 and 161(1)(r)
Remedy – delay – effect of – whether declaration to be denied – whether damages to be denied – Privacy Act 1993, ss 85(1)(a) and 88(1)(c)
Remedy – failure to expressly plead request for specific remedy – whether bar to Tribunal considering remedy – Human Rights Act 1993, s 105 – Privacy Act 1993, s 88(1)(b)
Remedy – humiliation, loss of dignity and injury to feelings – meaning of – Privacy Act 1993, s 88(1)(c)
Remedy – humiliation, loss of dignity and injury to feelings – whether Tribunal bound by amount sought by plaintiff – whether causal connection must be established between the action which is interference with privacy of individual and the damages sought – whether aggrieved individual required to establish all three heads of damages – what is included in injury to feelings – Privacy Act 1993, s 88(1)(c)
Remedy – jurisdiction to grant – breach of information privacy principle but no significant humiliation, significant loss of dignity or significant injury to feelings – Privacy Act 1993, s 66(1)(b)
Remedy – loss of benefit – not having ability to utilise the information in litigation – whether proceedings must have been instituted – whether onus on requester to show withheld information would have made a difference to outcome of dispute – quantum – whether assessment of appropriate level of damages to be based on an objective assessment of the nature of the benefit the aggrieved individual might reasonably have been expected to have obtained but for the interference, the seriousness of the interference and the surrounding circumstances – Privacy Act 1993, s 88(1)(b)
Remedy – loss of dignity – interpretation of – persons with disabilities – plaintiff lacking capacity to know breach of right has taken place – whether loss of dignity assessed subjectively or objectively – basis on which damages for loss of dignity to be assessed – assessment of quantum – discretion to grant remedy – Human Rights Act 1993, s 92M – Privacy Act 1993, s 88 – Health and Disability Commissioner Act 1994, s 57
Remedy – statutory restriction on awarding of compensation – application of Prisoners’ and Victims’ Claims Act 2005, ss 13 and 14
Remedy – take down order – necessity for – Privacy Act 1993, s 85(1)(d)
Remedy – whether declaration to be denied – Privacy Act 1993, s 85(1)(a)
Remedy – whether remedy must be an appropriate response to the circumstances – whether award of damages can exceed that which fits the case – whether award of damages at discretion of Tribunal
Remedy – whether withheld information to be provided – Privacy Act 1993, s 85(1)(d)
Remedy – whether withheld information to be provided – whether order to be framed in terms which do not conflict with the Privacy Act – whether five working day pause appropriate – Privacy Act 1993, s 85(1)(d)
Removal of proceedings to High Court – leave of High Court required – procedure for obtaining – Human Rights Act, s 122A
Standard of behaviour to be observed by litigants – opposing party behaving in threatening manner – whether counsel can be allowed to participate by AVL – appropriate standard of behaviour to be observed by litigants – Human Rights Act 1993, s 104(5) – Courts (Remote Participation) Act 2010, ss 5 and 7 – Evidence Act 2006, ss 102 to 105
Standing – Privacy Commissioner deciding to take no action on complaint – effect of – Privacy Act 1993, s 71
Standing – whether any person can make a complaint but only an aggrieved individual can bring proceedings before the Tribunal – meaning of aggrieved individual – whether third party complainant can hijack the complaint process – whether before an aggrieved individual can file proceedings s 83 of the Act must be satisfied – whether important to hear agency in relation to the action alleged to be an interference with the privacy of an individual – whether Part 8 investigation by Privacy Commissioner can be by-passed by not submitting a complaint or by relying on some other aggrieved person’s complaint – whether policy reasons support an interpretation of the Act which requires intending plaintiffs who allege an interference with their privacy to complain first to the Privacy Commissioner and to there engage in the statutory complaint process before instituting proceedings before the Tribunal – whether when a particular factual matrix gives rise to two or more persons being aggrieved, it is sufficient that only one person makes a complaint to the Privacy Commissioner and for that complaint to be then investigated by the Commissioner – whether once the complaint process has been concluded other persons aggrieved can be plaintiffs in proceedings brought by the person who filed the complaint – whether once the first person aggrieved has opened the door to the Tribunal all others can enter without themselves following the statutory process – Human Rights Act 1993, ss 67, 73(a), 83 and Part 8
Statement of claim – requirement to be in correct form – informal application – discretion to determine proceedings commenced by – whether plaintiff must be entitled to bring the intended proceedings – whether proceedings brought under Human Rights Act 1993 can be used to make claim under Privacy Act 1993 – Privacy Act 1993, s 83 – Human Rights Review Tribunal Regulations 2002, regs 5, 7, 8, 9, 10 and 11
Statement of claim – rejection of intended statement of claim where Tribunal has no jurisdiction over the matter complained of
Statement of reply – failure to file within 30 days after service of statement of claim – whether discretion to grant leave to file out of time – circumstances in which leave may be granted – Human Rights Act 1993, ss 105 and 108 – Health and Disability Commissioner Act 1994, s 58 – Human Rights Review Tribunal Regulations 2002, reg 15
Strike-out application – [For relevant cases please refer to the catchline ‘Strike-out application’ found in the Human Rights Act section of this Index]
Transcript – application for – whether Tribunal must be satisfied there is good reason in the interests of justice before a direction to provide is made
Transfer of request – believed by the person dealing with the request to be more closely connected with the functions or activities of another agency – interpretation of – whether the function or activity can be the giving of legal advice to the agency in relation to the request or the conducting of litigation against the requester – Official Information Act 1982, s 14(b)(ii) – Privacy Act 1993, s 39(b)(ii)
Undue delay in making information available – Privacy Act 1993, s 66(4)
Undue delay in making information available – whether mistaken reliance on a withholding ground justification for late delivery of information – Privacy Act 1993, ss 66(4) and 29(1)(b)
Unsolicited – meaning of – Privacy Act 1993, s 2(1)
Unwarranted disclosure of affairs of another person – whether Principle 6 right of access held by requester to be weighed against competing interest recognised in s 29(1)(a) – how balance to be struck – information privacy Principles 6 and 7 – Privacy Act 1993, s 29(1)(a)
Urgency – whether requirement for reasons mandatory – whether determination of genuine urgency a context-based exercise – whether sufficient for requester to simply assert urgency – whether decline of request for urgency satisfies definition of “interference with privacy” and gives rise to a remedy – whether failure to accord urgency only has legal consequence if, on the facts, the requester can show that proper reasons were given for requesting urgency and that the unjustified failure to comply led to undue delay in making the information available contrary to Privacy Act 1993, s 66(4) – Privacy Act 1993, s 37
Venue – change of – late application
Withholding grounds – information requested does not exist or cannot be found – whether agency must show reasonable attempts have been made to find the information – whether agency must apply unlimited resources to the location of the requested information – Privacy Act 1993, s 29(2)(b)
Witness summons – subpoena duces tecum – witness summons requiring production of papers, documents, records or things – Human Rights Act 1993, ss 106(1)(a), (b) and (c) and 109 – High Court Rules, r 9.52