Christison v Chief Executive of Oranga Tamariki
[2025] NZHC 2076
•28 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1235
[2025] NZHC 2076
UNDER the High Court Rules 2016 BETWEEN
MARIKA CHRISTISON
Plaintiff
AND
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI
Defendant
Hearing: On the papers Counsel:
Plaintiff in person
L M Jackson for the Defendant
Judgment:
28 July 2025
Reissued:
30 July 2025
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
[Leave to Appeal] [reissued]
This judgment was delivered by me on 28 July 2025 at 1 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel
Rachael Dewar Law, Wellington Crown Law, Wellington
CHRISTISON v THE CHIEF EXECUTIVE OF ORANGA TAMARIKI [2025] NZHC 2076 [28 July 2025]
Introduction
[1] In 2019, Ms Christison made an information privacy request to Oranga Tamariki (OT) under the Privacy Act 1993 (the 1993 Act).1 Ms Christison alleges that OT deliberately withheld her personal information from her, in breach of the 1993 Act, to frustrate her prosecution of an appeal that was extant in the High Court at the time. OT was the respondent to the appeal.
[2] Ms Christison complained to the Privacy Commissioner. OT accepted that it did not comply with its obligations under the 1993 Act. In 2021, Ms Christison’s complaint was referred to the Director of Human Rights Proceedings, under s 97 of the Privacy Act 2020 (the 2020 Act).2 The Director decided not to accept the referral and bring a proceeding in the Human Rights Review Tribunal (the Tribunal).
[3] Following that decision, Ms Christison had a right to commence her own proceeding in the Tribunal.3 Ms Christison did not do so, instead commencing this proceeding seeking damages from OT for an alleged tort of breach of privacy or interference with privacy. Ms Christison is self-represented.
[4] Ms Christison applied for summary judgment against OT. The application for summary judgment was declined by Associate Judge Lester on 27 February 2023 (the first decision).4
[5] Ms Christison is impecunious. OT applied for an order requiring Ms Christison to pay $40,000 into Court as security for OT’s costs. On 22 April 2024, I granted OT’s application and ordered Ms Christison to pay $10,000 into Court as security (the second decision).5 Ms Christison has not complied with that order, and the proceeding is stayed.
1 Privacy Act 1993 [1993 Act]: repealed, on 1 December 2020, by s 216(1) of the Privacy Act 2020 [2020 Act].
2 The 2020 Act applied, pursuant to the transitional provisions in sch 1.
3 2020 Act, s 98.
4 Christison v Chief Executive of Oranga Tamariki [2023] NZHC 309.
5 Christison v Chief Executive of Oranga Tamariki [2024] NZHC 892.
[6] OT has recently applied for an order striking out the proceeding on the grounds of non-compliance with the order for security for costs. Ms Christison has now applied for leave to appeal the first decision and the second decision. Ms Christison’s applications are out of time. On 18 June 2025, I directed that the application for leave to appeal be dealt with before OT’s application for strike-out.6 The application for leave to appeal is determined in this judgment.
Legal principles — leave to appeal
[7] Pursuant to s 56(3) of the Senior Courts Act 2016 (SCA), Ms Christison is required to obtain the leave of this Court to pursue an appeal against Associate Judge Lester’s decision declining summary judgment and my decision to order her to pay security for costs.
[8] The rationale behind the requirement for leave is simple: it serves as a filtering mechanism, ensuring that neither unmeritorious appeals of interlocutory orders, nor appeals against insignificant interlocutory orders, are allowed to proceed so as to delay unnecessarily the proceedings in which the orders are made.7
[9] The approach to an application for leave, and the principles governing its grant or refusal, are well-established:8
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
6 Christison v Chief Executive of Oranga Tamariki HC Auckland CIV-2022-404-1235, 18 June 2025 (Minute of Associate Judge Brittain).
7 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
8 Tomar v Tomar [2021] NZCA 419 at [6].
(e)the ultimate question is whether the interests of justice are served by granting leave.
[10] The threshold for leave may be lower in respect of a judgment that, in a practical sense, finally determines a proceeding.9
[11] As for the application to seek leave to appeal out of time, I consider the factors set out in Almond v Read,10 for extensions of time under the Court of Appeal (Civil)
Rules 2005, also apply here. They are:11
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly the applicant;
(d)any prejudice or hardship to the respondent or others; and
(e)the significance of the issues raised by the proposed appeal.
[12] The Court also acknowledged that the merits of the proposed appeal may be relevant in certain circumstances.12
The first decision
[13] Associate Judge Lester analysed Ms Christison’s tortious claims as comprising the established tort of invasion of privacy and a new tort proposed by Ms Christison, which he described as breach of privacy entitlements.13
9 See Simons v ANZ Bank New Zealand Ltd [2022] NZHC 2842 at [7]; Singh v Body Corporate 207650 [2023] NZHC 1269 at [13]; and D v RMC [2023] NZHC 1931 at [16].
10 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
11 At [38].
12 At [39].
13 Christison v Chief Executive of Oranga Tamariki, above n 4, at [11] and [17].
[14] The Judge noted that the tort of invasion of privacy is concerned with publication of private information, and in this case, OT did not publish Ms Christison’s private information.14
[15] In respect of Ms Christison’s other tort claim, which relates to an alleged breach of a privacy principle, Associate Judge Lester said:15
Where the Privacy Act provides a comprehensive regime for redress, including civil proceedings for damages before the Human Rights Tribunal with appeals to the High Court, that structure is a strong factor against the Court superimposing tort liability for breach of privacy principle 6.
[16] Associate Judge Lester concluded that Ms Christison’s claim in tort was unsuitable for the summary judgment process, on the ground that it could not be suggested there was no real question to be tried.16
The second decision
[17] I recorded that the parties agreed that Ms Christison will be unable to meet any adverse costs order against her if her claim against OT is unsuccessful. Ms Christison has not paid two prior costs orders in favour of OT in other proceedings, which total
$10,516.17
[18] Ms Christison’s impecuniosity met the threshold for security for costs to be ordered. I acknowledged that security would very likely stymie Ms Christison’s ability to bring her claim.18
[19] I stated the principles applicable to the Court’s discretion to order security for costs, including the caution that judges should be slow to order security which will stifle a worthy clam.19
14 At [15]–[16].
15 At [23].
16 At [25].
17 Christison v Chief Executive of Oranga Tamariki, above n 5, at [5].
18 At [6].
19 At [9]–[15].
[20] I recorded and concurred with Associate Judge Lester’s finding that there is no basis for a claim of invasion of privacy, because OT did not publish Ms Christison’s private information.20
[21] I held that Ms Christison’s claim was for the tort of breach of statutory duty in respect of the 1993 Act.21 I then stated the four elements that a plaintiff must establish to succeed in proceedings for damages for breach of statutory duty and applied those elements to the facts of Ms Christison’s case.22
[22] I concluded that it is strongly arguable that Parliament did not intend to confer any right on an individual to sue in tort for a breach of a privacy principle, and that to allow tort claims would cut across the complaints and proceeding regime in pt 8 of the 1993 Act. Ms Christison’s claim lacked merit.23
[23] I then considered other discretionary factors including the complexity of the proceeding, Ms Christison’s self-representation and the availability to Ms Christison of a claim in the Tribunal, which would require an extension of time by the chairperson of the Tribunal.24
[24] I did not place any significant weight on these other discretionary factors. I ordered security for costs because Ms Christison’s claim in tort has no reasonable prospect of succeeding.25
Discussion
[25] Ms Christison submits that Associate Judge Lester did not have jurisdiction to hear the application for summary judgment, relying on s 22(4) of the SCA, which provides that the High Court Rules 2016 cannot confer jurisdiction on an Associate Judge in respect of a proceeding for a writ or an order in the nature of mandamus, prohibition, or certiorari, or for a declaration or an injunction. That
20 At [24].
21 At [25].
22 At [26].
23 At [26]–[47].
24 At [48]–[55].
25 At [56].
submission overlooks s 20(1) of the SCA, which confirms that an Associate Judge has jurisdiction to hear an application for summary judgment.
[26] Ms Christison does not take issue with Associate Judge Lester’s statement of the principles applicable to summary judgment, or my statement of the principles applicable to security for costs. Her argument focuses on the existence of a tort claim for breaches of the 1993 Act.
[27] Ms Christison argues that the Tribunal does not have jurisdiction to address the scale of the privacy breach and the significant damage that she has suffered. The essence of Ms Christison’s argument is that she must have a remedy in law because OT has admitted that it breached its privacy obligations. Ms Christison relies on the “tort of privacy” and her statutory rights under the 1993 Act.
[28] Ms Christison did not advance her application for summary judgment or her opposition to security for costs on the grounds that OT had published her private information. In her affidavit in support of her application for leave to appeal, Ms Christison alleges that an officer of OT disclosed confidential court orders to her children’s caregiver. No detail is provided, and this allegation is unrelated to Ms Christison’s pleadings and the evidence that was before the Court when the first and second decisions were made.
[29] Ms Christison has not provided any evidence challenging the findings in the first and second decisions that there was no publication of private information and, therefore, no basis for Ms Christison to claim invasion of privacy.
[30] The issue is whether there was an arguable error by Associate Judge Lester or me in our findings that there is no basis for a tort claim for breach of OT’s obligations under the 1993 Act. Ms Christison’s submissions and evidence in support of her application for leave to appeal do not point to any error in the reasoning that led to those findings.
[31] Ms Christison does not advance any credible challenge to Associate Judge Lester’s reasoning and conclusion that Ms Christison’s claim in tort was unsuitable for
the summary judgment process because it could not be suggested there was no real question to be tried.
[32] Ms Christison does not advance any credible challenge to my reasoning and conclusion that security for costs is warranted because Ms Christison’s claim in tort has no reasonable prospect of succeeding.
[33] Ms Christison refers to her medical condition, which she indirectly links to a claim that she did not have a fair opportunity to present her case. However, the medical event occurred on 6 May 2024, after both hearings. It might be relevant to Ms Christison’s delay in seeking leave to appeal, but it is not a ground to challenge the first or second decisions.
[34] This is not an appropriate case for a grant of leave to appeal either the first decision or the second decision. An appeal has no reasonable prospect of success. Therefore, I do not need to consider the explanation put forward by Ms Christison for her delay in seeking leave.
Transcripts
[35] Ms Christison requests copies of transcripts of the hearing of the application for summary judgment before Associate Judge Lester on 16 February 2023, and the hearing of the application for security for costs before me on 18 March 2024.
[36] The application in respect of the hearing on 16 February 2023 has already been determined — it was declined by Associate Judge Lester on 13 March 2023.26 Ms Christison has not advanced any new justification for preparation of a transcript of that hearing.
[37] Regarding the hearing on 18 March 2024, Ms Christison says that she requires the transcript so that there is full disclosure of the hearing to the Court of Appeal. Given that I have declined the application for leave to appeal, the ground for preparation of a transcript advanced by Ms Christison does not exist.
26 Christison v Chief Executive of Oranga Tamariki [2023] NZHC 487.
Costs
[38] OT is entitled to costs. OT was not required to file a notice of opposition and the application for leave to appeal was dealt with on the papers. An award of costs on a 2A basis is appropriate for preparing submissions.
Orders
[39]The application for leave to appeal is declined.
[40]Ms Christison shall pay the respondent’s costs of $1,195.
Next steps
[41] I appreciate that Ms Christison may wish to seek leave to appeal from the Court of Appeal. I will deal with OT’s application for strike-out on the papers after 20 working days has expired from the date of this judgment.
Associate Judge Brittain
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