Bevan-Smith v One New Zealand Group Limited
[2025] NZHC 2836
•29 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-3274
[2025] NZHC 2836
IN THE MATTER OF a decision of the Human Rights Review Tribunal BETWEEN
JOHN BEVAN-SMITH
Appellant
AND
ONE NEW ZEALAND GROUP LIMITED
Respondent
Hearing: 27 August 2025 Appearances:
No appearance by appellant
T N Hutchinson for Respondent
Judgment:
29 September 2025
JUDGMENT OF MACGILLIVRAY J
This judgment was delivered by me on 29 September 2025 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules 2016
Deputy Registrar
………………
Solicitors:
Bell Gully, Auckland
BEVAN-SMITH v ONE NEW ZEALAND GROUP LIMITED [2025] NZHC 2836 [29 September 2025]
Introduction
[1] On 8 October 2024, the Human Rights Review Tribunal (the Tribunal) struck out Dr Bevan-Smith’s claim against the respondent, One New Zealand Group Ltd (One NZ). It did so on the basis that the claim had become an abuse of process because of Dr Bevan-Smith’s deliberate and repeated non-compliance with the Tribunal’s directions.
[2]Dr Bevan-Smith appeals the Tribunal’s decision.
Procedural history of this appeal
[3] Dr Bevan-Smith’s appeal was to be heard on 30 April 2025. He was directed to file his submissions by no later than 8 April 2025. He failed to do. On 22 April 2025, he filed a memorandum saying he needed until 30 May 2025 because of “ongoing business commitments”. The Court granted the appellant an indulgence by vacating the 30 April 2025 fixture and extending the deadline for his submissions until the proceeding was heard in the Civil Appeals List on 3 June 2025.
[4] On 28 May 2025, Dr Bevan-Smith filed a memorandum seeking an extension until 30 June 2025 on the basis that he had been unwell during May, as well as business commitments. He was given this further extension and he filed his submissions on 30 June 2025.
[5] On 22 August 2025, the appellant filed a memorandum asking the Court to vacate the half day fixture set down for 27 August 2025 because he had “been unwell for the past month” and considered that he “should be sufficiently recovered to attend a rescheduled hearing in a month’s time.” At the same time, Dr Bevan-Smith filed a corrected and updated version of his written submissions.
[6] On 25 August 2025, the Civil List Judge, Gault J, issued a minute declining to vacate the fixture in the absence of a more detailed explanation than that given by Dr Bevan-Smith and in the absence of medical evidence. Gault J indicated that he was prepared to grant the appellant leave to reapply if more detailed and compelling evidence could be provided.
[7] The appellant filed a memorandum on 26 August 2025 simply repeating that he was “unwell and unable to attend tomorrow’s fixture” and requested again for the fixture to be vacated and rescheduled. I issued a minute that day declining an adjournment. I considered that the Court reasonably required medical evidence or other cogent evidence in support of an application to vacate a fixture. In my view, the appellant was given an opportunity to provide evidence and he failed to do so.
[8] The appellant then failed to appear at the hearing on 27 August 2025. At the hearing, counsel for the respondent submitted that the appeal should be struck.
[9] I proceed on the basis that Dr Bevan-Smith elected not to obtain and provide a medical certificate or any other evidence to support the contention that he was unwell and elected not to appear at the hearing of his appeal.
[10] Rather than deal with this matter on the basis of the respondent’s oral application to strike out the appeal, the better course is to determine the appeal on its merits. I do so on the basis that the appellant elected, without proper excuse, not to appear at the hearing.1
Factual background
[11] In March 2022, Dr Bevan-Smith sent a letter to One NZ (the access request) pursuant to information privacy principle 6 under s 22 of the Privacy Act 2020 asking:
… whether or not it holds any information concerning its communications about me with the New Zealand Security Intelligence Service (NZSIS) and/or the Government Communications Security Bureau (GCSB).
[12] Underpinning Dr Bevan-Smith’s access request is his contention that he has been the subject of unlawful search and seizure of electronic information and documents through cyber-attacks undertaken by One NZ at the behest of NZSIS and GCSB.
[13] Section 47 of the Act provides that an agency “may neither confirm nor deny” that it holds the requested information if the agency is able to rely on (inter alia) s 53(c)
1 I adopt the approach taken in O’Neill v Judiciary of Auckland High Court [2023] NZCA 153.
to refuse to disclose the information “if it existed”. Section 53(c) provides that an agency may refuse access to information if the disclosure would be likely to prejudice the maintenance of the law by any public sector agency.
[14] One NZ’s response to the access request was that it was unable to confirm or deny its involvement in matters concerning law enforcement agencies.
[15] Dr Bevan-Smith complained to the Privacy Commissioner. An investigator for the Commissioner concluded that One NZ had a proper basis for its decision to neither confirm nor deny whether it held the requested information. The investigator concluded that disclosing whether this type of information existed would be likely to prejudice the maintenance of law by a public sector agency, being in this case NZSIS and GCSB.
[16] On 20 October 2022, Dr Bevan-Smith filed his claim in the Tribunal under s 98 of the Privacy Act challenging One NZ’s position.
The Tribunal proceeding
[17] On 7 March 2023, the Tribunal directed Dr Bevan-Smith to file a memorandum proposing a timetable for discovery and the exchange of written statements of evidence. The Tribunal also asked Dr Bevan-Smith to comment on the formulation of the issues for determination in the claim which the Tribunal framed as follows:
[16.1] Whether [One NZ] has a proper basis to neither confirm nor deny the existence of the information sought in the IPP 6 request in terms of s 47. This includes:
[16.1.1] Whether s 53(c) can be relied on to refuse to disclose the information or refuse to disclose the information if it existed.
[16.1.2] Whether the relevant interest being protected by s 53(c) would be likely to be prejudiced by [One NZ] confirming whether or not it holds the requested information.
[16.2] If not, and there has been an interference with Dr Bevan-Smith’s privacy, what remedy should be granted?
[18] Dr Bevan-Smith did not propose a timetable for discovery or the exchange of evidence. He did set out what he sought by way of discovery which was the documents he said that One NZ should have disclosed in response to the access request.
[19] The Tribunal agreed with One NZ’s submission that discovery should be limited to correspondence between Dr Bevan-Smith and One NZ in relation to the access request and any documents in Dr Bevan-Smith’s possession which he considered were relevant to the issues as defined by the Tribunal. The Tribunal ruled that it was not necessary for it to know whether One NZ held the information requested by Dr Bevan-Smith in order to determine the issues.
[20] The Tribunal directed that discovery on an informal basis was to be completed by 23 June 2023 and that written statements of evidence from Dr Bevan-Smith were to be filed and served by 14 July 2023.
[21] On 26 June 2023, Dr Bevan-Smith filed a memorandum asking the Tribunal to suspend those timetable directions. Dr Bevan-Smith submitted that the proceeding was unconstitutional and contrary to principles of natural justice because of the Tribunal’s decision to limit the required discovery.
[22] On 18 July 2023, the Tribunal extended the time for completion of discovery to 28 July 2023 and the timetable for Dr Bevan-Smith to file written statements of evidence to 18 August 2023 (the first extended timetable).
[23] Dr Bevan-Smith failed to comply with the first extended timetable. On 17 August 2023, he filed a memorandum asserting that there was no basis for One NZ to deny him access to his personal information nor for the Tribunal to deny him access by way of discovery.
[24] On 29 August 2023, the Tribunal issued a further minute noting that while Dr Bevan-Smith might disagree with the Tribunal’s decision on the parameters of discovery, that did not excuse him from complying with Tribunal’s directions. Dr Bevan-Smith was encouraged to comply with the timetable directions so that he could progress his claim to substantive hearing. The Tribunal extended the timetabled
directions for a second time. This new timetable (the second extended timetable) required Dr Bevan-Smith to complete discovery by 8 September 2023 and to file evidence by 29 September 2023.
[25] Dr Bevan-Smith failed to comply with the second extended timetable. He filed a further memorandum on 8 September 2023 restating his position and telling the Tribunal that:
…unless [Dr Bevan-Smith] is provided with that personal information, without which, now that the nullity has been exposed, the substantive hearing cannot be progressed, he will be unable to comply with the timetabling directions at [10] of the Deputy Chairperson’s Minute dated 29 August.
[26] On 4 December 2023, the Tribunal issued a further minute advising Dr Bevan-Smith that he was obliged to progress his claim and to comply with Tribunal directions. The minute records that continued failure to do so and deliberate non- compliance with directions could result in the proceeding being struck out as an abuse of process. The timetable direction was extended for a third time to allow Dr Bevan-Smith until 22 December 2023 to file his evidence (the third extended timetable).
[27] Again, Dr Bevan-Smith failed to comply. On 15 December 2023, he filed a further memorandum asserting a right to not comply because the Tribunal had unlawfully denied his right to personal information.
[28] On 16 February 2024, the Tribunal issued a further minute reiterating that deliberate non-compliance with directions and failure to progress the claim could result in it be struck out as an abuse of process. The Tribunal extended the time for filing evidence for a fourth time. It gave Dr Bevan-Smith until 8 March 2024 to file and serve his written statements of evidence (the fourth extended timetable). The minute stated that if Dr Bevan-Smith failed to comply, the Tribunal would issue a timetable for parties to provide submissions on whether the Tribunal should exercise its own motion to strike out the proceeding as an abuse of process under s 115 (1)(d) of the Human Rights Act 1993.
[29] Dr Bevan-Smith did not comply with the fourth extended timetable. On 29 February 2024, Dr Bevan-Smith filed a further memorandum repeating the position he had previously taken.
[30] On 22 April 2024, the Tribunal directed a timetable for submissions as to whether the Tribunal should strike the proceeding out as an abuse of process. Even at this point, the Tribunal noted that should Dr Bevan-Smith choose to file his evidence, the matter would be progressed to the substantive hearing, avoi.
[31] One NZ filed its submissions on the issue of strike out on 10 May 2024. Dr Bevan-Smith initially filed a memorandum saying that he would be appealing the interim direction of the Tribunal, but on 19 July 2024 he advised the Tribunal that he had withdrawn his appeal. He requested further time to file his submissions on strike out. That request was granted and Dr Bevan-Smith filed his submissions on 24 August 2024.
[32] Dr Bevan-Smith’s submissions repeated and greatly expanded on the position he had taken throughout: he was being prevented from filing his evidence by the Tribunal’s wrongful and unlawful refusal to order One NZ to provide discovery of information responsive to the access request and was therefore being denied a fair hearing.
[33] After considering these submissions, the Tribunal determined that there had been a deliberate and consistent failure by Dr Bevan-Smith to comply with the Tribunal’s directions. It was apparent that Dr Bevan-Smith could have complied with the directions but chose not to do so and had no intention of doing so:
… because he disagreed that he should be required to file his statements of evidence until he obtained access to personal information that he said One NZ holds.
[34] The Tribunal was therefore satisfied that the proceeding had become an abuse of process. The Tribunal considered whether it was appropriate to exercise its discretion to strike out the claim and determined that it was wholly appropriate to do so.
Appeal
[35] This is a general appeal under s 123 of the Human Rights Act. The Court must arrive at its own assessment of the merits of the Tribunal’s decision to strike out Dr Bevan-Smith’s claim.2 The appellant has the onus of satisfying the Court that it should differ from the Tribunal’s decision.3
Approach under s 115A of the Human Rights Act
[36] Under s 115A(1) of the Human Rights Act, the Tribunal may strike out a proceeding if satisfied that it:
(a)discloses no reasonable cause; or
(b)is likely cause prejudice or delay; or
(c)is frivolous or vexatious; or
(d)is otherwise an abuse of process.
[37] The principles adopted by the High Court in considering the strike out jurisdiction under r 15.1 of the High Court Rules 2016 should inform the Tribunal’s approach to strike out applications under s 115A, subject to any other relevant provisions of the Human Rights Act.4
[38] The High Court’s jurisdiction to strike out a proceeding is available where there has been a consistent failure to comply with a court order. This will amount to an abuse of process only if the failure is deliberate rather than resulting from ignorance, disorganisation, or anxiety. A consistent failure in the face of repeated warnings will be regarded as deliberate, particularly where the plaintiff was aware of the breach and chose to do nothing to remedy the breach.5 A defendant does not need to show
2 Gwizo v Attorney-General [2022] NZHC 2717 at [39], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]–[5] and [16].
3 At [39].
4 At [42].
5 At [44]; and Yarrow v Finnegan [2017] NZHC 1755 at [11]–[14] and [16].
prejudice from the plaintiff’s failures for there to be an abuse of process on this ground.6
[39] If an abuse of process is found, the Tribunal, as with the Court, has a discretion as to whether to strike out the proceeding. At this second stage, the issue of prejudice suffered by the defendant can be a relevant consideration.7
Discussion
[40] Dr Bevan-Smith’s submissions on appeal rehearse his arguments on the perceived merits of his claim in the Tribunal. They merely repeat the reasons why he says One NZ had to provide him with the information he requested.
[41] In broad terms, Dr Bevan-Smith argues that for an agency to rely on s 47(1) of the Privacy Act, it must have concluded that it holds information that meets the test for refusing disclosure under s 53(c). He rejects the idea that s 47(1) contemplates a hypothetical assessment of whether information, “if it existed”, would meet the s 53(c) test. In Dr Bevan-Smith’s view, an agency cannot rely on s 47(1) without having concluded that the requested information exists and that it meets the s 53(c) test. On this view, he says it is meaningless or contradictory for an agency to “neither confirm nor deny” the existence of information that must exist for it to have completed an assessment under s 53(c).
[42] Dr Bevan-Smith goes on to assert that One NZ must have responsive information and it is a breach of his right to open and natural justice for the Tribunal to insist on him arguing his case without the information.
[43] The complete answer to Dr Bevan-Smith’s arguments is that s 47(1) contemplates a hypothetical exercise. An agency must consider whether, if responsive information hypothetically existed, it would be withheld under s 53(c). But I do not need to determine Dr Bevan-Smith’s substantive arguments on this appeal. All that needs to be said to dispose of the appeal is that Dr Bevan-Smith did not need
6 Gwizo v Attorney-General, above n 2, at [46].
7 At [47].
confirmation of whether responsive information existed, nor access to that information if it existed, in order to advance his case before the Tribunal.
[44] The Tribunal was undoubtedly correct to refuse Dr Bevan-Smith’s request for an order requiring One NZ to provide discovery of information responsive to his access request. As the Tribunal said in its minute of 18 July 2023:
It would undermine the statutory scheme if a plaintiff could obtain access to the withheld information by way of discovery prior to the Tribunal’s determination as to whether that information has been properly withheld under the [Privacy] Act.
[45] Dr Bevan-Smith had no good excuse for his deliberate non-compliance with the Tribunal’s timetabling directions. Far from being treated unfairly, the Tribunal gave him every opportunity to reconsider and to comply so that the Tribunal could determine the merits of his claim.
[46] The Tribunal was correct to conclude that Dr Bevan-Smith’s deliberate and consistent failures to comply with directions in the face of repeated warnings meant that his proceeding had become an abuse of process. I consider that the Tribunal correctly exercised its discretion to strike the claim out.
Result
[47]The appeal is dismissed.
[48] If One NZ seeks costs, it is to file cost submissions (limited to three pages, excluding schedules) within ten working days. Dr Bevan-Smith is to file submissions in response (also limited to three pages, excluding schedules) within a further ten working days. I will then determine costs on the papers.
MacGillivray J
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