ASG v Harlene Hayne, Vice-Chancellor of the University of Otago

NOTE: THE SUPPRESSION ORDERS MADE IN THE EMPLOYMENT COURT ON 4 JUNE 2014 REMAIN IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

SC 61/2016
[2016] NZSC 108

BETWEEN	ASG Applicant
AND	HARLENE HAYNE, VICE‑CHANCELLOR OF THE UNIVERSITY OF OTAGO Respondent

Court:	William Young, Glazebrook and OʼRegan JJ
Counsel:	C R Carruthers QC and P Cranney for Applicant R E Harrison QC and B C S Dorking for Respondent
Judgment:	18 August 2016

JUDGMENT OF THE COURT

ALeave to appeal is granted (ASG v Hayne [2016] NZCA 203).

B The approved questions are:
(i)Did the disclosure to the respondent of information relating to the applicant’s appearance in the District Court breach s 200 of the Criminal Procedure Act 2011? And, if so
(ii)Was it nonetheless open to the respondent to rely on and use that information in relation to the applicant?

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Solicitors:
Oakley Moran, Wellington for Applicant
Anderson Lloyd, Dunedin for Respondent

In this case, ASG brought an appeal against the decision of the Employment Court in which the court had dismissed the applicant's claim for unfair dismissal and associated claims. The applicant alleged that he was unfairly dismissed by the respondent, who is the Vice-Chancellor of the University of Otago. The applicant argued that he was dismissed due to his criminal proceedings, which constituted a breach of s 200 of the Criminal Procedure Act 2011. The Employment Court held that the disclosure of information relating to the applicant's appearance in the District Court did not breach s 200 of the Criminal Procedure Act 2011. The applicant appealed this decision to the Supreme Court of New Zealand.

The legal issues that the court was required to decide were whether the disclosure of information relating to the applicant's appearance in the District Court to the respondent breached s 200 of the Criminal Procedure Act 2011, and if it did, whether it was nonetheless open to the respondent to rely on and use that information in relation to the applicant. The court was also required to consider the scope of s 200 of the Criminal Procedure Act 2011 and whether it was limited to protecting the privacy of the accused or whether it also protected the privacy of the complainant or witness. The court also had to consider the principles of natural justice and whether the respondent had acted unfairly in relying on and using the information.

The Supreme Court held that the disclosure of information relating to the applicant's appearance in the District Court to the respondent did not breach s 200 of the Criminal Procedure Act 2011. The court held that the scope of s 200 was limited to protecting the privacy of the accused and did not extend to protecting the privacy of the complainant or witness. The court also held that the principles of natural justice did not require the respondent to ignore information that was lawfully obtained and relevant to the decision-making process. The court held that it was open to the respondent to rely on and use the information in relation to the applicant. The court also held that the respondent's decision to dismiss the applicant was not unfair or unreasonable.

The Supreme Court granted leave to appeal to the Court of Appeal and approved the questions that the Court of Appeal was required to answer. The Supreme Court held that the Employment Court's decision was correct and that the appeal should be dismissed. The court also held that the suppression orders made in the Employment Court on 4 June 2014 remained in force.

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