Christison v Chief Executive of Oranga Tamariki
[2024] NZHC 892
•22 April 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1235
[2024] NZHC 892
UNDER the High Court Rules 2016 BETWEEN
MARIKA CHRISTISON
Plaintiff
AND
THE CHIEF EXECUTIVE OF ORANGA TAMARIKI
Defendant
Hearing: 18 March 2024 Counsel:
Plaintiff in person
L M Jackson for the Defendant
Judgment:
22 April 2024
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 22 April at 4 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 [2024] NZHC 892 [22 April 2024]
[1] The plaintiff, Marika Christison (Ms Christison), holds entrenched views regarding what she perceives to be the failings of Oranga Tamariki (OT) in the broad context of the guardianship of her children.
[2] In 2019, Ms Christison made an information privacy request to 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.
[3] 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).
[4] Following that decision, Ms Christison had a right to commence her own proceeding in the Tribunal.3 Ms Christison did not do so, commencing this proceeding seeking damages from OT for an alleged tort of breach of privacy or interference with privacy. The claim is novel. Ms Christison is self-represented.
[5] Ms Christison is impecunious, and the parties agree 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. OT seeks an order requiring Ms Christison to pay $40,000 into Court as security for OT’s costs.
[6] Ms Christison’s impecuniosity meets the threshold for security for costs to be ordered. However, the security sought will very likely stymie Ms Christison’s ability to bring her claim. The issue that I must decide is whether the Court should exercise its discretion to order security for costs.
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 Under the 2020 Act, s 98.
[7] At the commencement of the hearing, Ms Christison requested that I stay OT’s application for security for costs and transfer the substantive proceeding to the Māori Land Court. There is no basis for me to do so. I confirmed to Ms Christison that the hearing of OT’s application for security would proceed, and that if she wished to be heard on the application then she would need to present her submissions in opposition, which she did.
Legal principles
[8] The Court has a discretion to grant an application for security of costs under r 5.45(2) of the High Court Rules 2016 (HCR) if it would be just in all the circumstances to do so. That discretion is, however, only engaged if the threshold test in r 5.45(1) is met. For present purposes the threshold is met because there is reason to believe that the plaintiff will be unable to pay the costs of the defendant if the proceeding is unsuccessful.4
[9] Exercise of the Court’s discretion under r 5.45(2) requires a balancing of the interests of the plaintiff and defendant, as summarised by the Court of Appeal in A S McLachlan Ltd v MEL Network Ltd:5
[15] The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs. That must be taken as contemplating also that an order for substantial security may, in effect, prevent the plaintiff from pursuing the claim. An order having that effect should be made only after careful consideration and in a case in which the claim has little chance of success. Access to the Courts for a genuine plaintiff is not lightly to be denied.
[16] Of course, the interests of defendants must also be weighed. They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.
[10]Judges should be slow to order security which will stifle a worthy claim.6
[11]The following additional principles, extracted from the case law, are relevant:
4 High Court Rules 2016, r 5.45(1)(b).
5 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).
6 Reekie v Attorney General [2014] NZSC 63, [2014] 1 NZLR 737 at [2] and [3].
(a)While the Court will endeavour to assess the merits and prospects of success of the plaintiff’s claim, there are limits in the ability to do so at a summary stage of the proceeding.7
(b)A litigant in person who is unable to meet a subsequent costs order is free of the constraints affecting other litigants that incentivise proportionate and reasonable claims, carrying the potential for injustice to the defendant.8
(c)The Court may consider the availability of an alternative remedy if the order for security means that the proceeding cannot be pursued.9
(d)If the defendant’s conduct has caused the plaintiff’s impecuniosity, that may be a factor against security for costs.10
(e)Delay in applying for security for costs may be a factor against security for costs.11
[12] If the applicant persuades the Court to exercise its discretion and order security for costs, the Court is then required to determine the amount of security and whether a stay should be ordered pending provision of the security.12
[13] This is not a situation where OT’s conduct has caused Ms Christison’s impecuniosity. OT has not unreasonably delayed applying for security for costs.
[14]The application in this case requires a balancing of:
(a)Ms Christison’s interest in pursuing a worthy claim; and
7 McNaughton v Miller [2022] NZCA 273 at [19].
8 Reekie v Attorney-General [2014] NZSC 63 at [33].
9 Easton v Wellington City Council [2010] NZSC 10 at [6] and [7].
10 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [23(a)].
11 Jo v Johnston [2013] NZHC 552 at [18].
12 Busch v Zion Wildlife Gardens Ltd (in rec and in liq) [2012] NZHC 17 at [2].
(b)OT’s interest in being protected against a worthless costs order at the end of unjustified litigation.
[15] Underpinning that balancing exercise is an assessment of whether this is a worthy claim or unjustified litigation.
Does Ms Christison have a worthy claim?
The basis of the claim
[16] Privacy principle 6 in the 1993 Act provided Ms Christison with the following rights:
Principle 6
Access to personal information
(1)Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—
(a)to obtain from the agency confirmation of whether or not the agency holds such personal information; and
(b)to have access to that information.
[17] Ms Christison’s request for her personal information from OT was made on 5 June 2019 under s 34 of the 1993 Act. OT did not comply with the 1993 Act because it failed to make a decision on the request within 20 working days as required by s 40 of the 1993 Act; or, if it did make the required decision, then there was undue delay in supplying Ms Christison’s personal information to her.
[18] Under s 66(3) and (4) of the 1993 Act, OT’s failure to comply with s 40(1) and undue delay in making information available were deemed to be a refusal by OT to make the requested information available.
[19] On 3 December 2020, the Privacy Commissioner issued a written preliminary view that OT had not complied with the 1993 Act. On 28 May 2021, the Privacy Commissioner issued a written final view confirming the preliminary view.
[20] On 30 July 2021, OT confirmed that it accepted that its actions amounted to an interference with Ms Christison’s privacy. Negotiations followed regarding compensation for Ms Christison, but no agreement was reached. That led to the complaint being referred to the Director of Human Rights Proceedings and the Director’s decision not to commence a proceeding in the Tribunal on Ms Christison’s behalf.
[21] Ms Christison is now out of time to file her own proceeding in the Tribunal. However, Ms Christison could apply under s 98(8) of the 2020 Act for an extension of time to bring her claim. OT has confirmed that it would not oppose an extension of time.
[22] To date, Ms Christison has not pursued that option. Instead, she sues for an alleged tort based on OT’s failure to comply with its obligations under the 1993 Act.
[23] Ms Christison applied for summary judgment against OT in this proceeding. The application for summary judgment was declined by Associate Judge Lester.13 The Associate Judge 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.14
[24] Associate Judge Lester noted that the tort of invasion of privacy is concerned with publication of private information, and in this case there was no publication of Ms Christison’s private information by OT.15 I agree with the Associate Judge’s conclusion that there is no basis for Ms Christison to claim invasion of privacy. Ms Christison does not argue that there is.
[25] Ms Christison’s claim is based solely on OT’s failure to comply with its obligations under the 1993 Act, to make a decision on her request for information within 20 working days and to provide Ms Christison’s personal information to her without undue delay. Adopting the language of s 66 of the 1993 Act, these are alleged interferences with Ms Christison’s privacy. In my view, Ms Christison is seeking to
13 Christison v The Chief Executive or Oranga Tamariki [2023] NZHC 309.
14 At [11] and [17].
15 At [15] and [16].
establish a tort of breach of statutory duty in respect of the 1993 Act, alleged to have occurred when the 1993 Act was in force.
Is the tort of breach of a statutory duty prescribed by the 1993 Privacy Act available as a matter of law?
[26] The breach of a statute may give rise to the tort of breach of statutory duty.16 A plaintiff must establish four elements to succeed in proceedings for damages for breach of statutory duty:17
(a)first, a breach of a statutory duty;
(b)second, a legislative intention that breach of the obligation should be a ground of civil liability in relation to a class of persons to which the plaintiff belongs;
(c)third, injury or damage of a kind for which the law awards damages and against which the statute was designed to give protection; and
(d)fourth, a causal nexus between the breach of obligation and the injury or damage.
[27] The difficulty that Ms Christison faces is that the tort that she seeks to establish would create liability coextensive with liability under the 1993 Act, and the 2020 Act that replaced it.
[28] In his judgment declining Ms Christison’s application for summary judgment, Associate Judge Lester expressed his view on this issue: 18
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 Andru Isac “Breach of Statutory Duty” in Stephen Todd (ed) Todd on Torts (9th ed, Thomson Reuters, Wellington, 2023) at 496.
17 Stephen Todd and Andrew Tipping Laws of New Zealand Torts (online ed) at [87] (footnotes omitted).
18 Christison v The Chief Executive or Oranga Tamariki, above n 13, at [23].
[29] In Peters v Attorney-General, the Court of Appeal noted that the courts have consistently rejected the creation of a privacy tort that is co-extensive with liability under the 1993 Act.19
[30] Counsel for Mr Peters argued that liability in tort should be imposed whenever a person acts in a manner that is inconsistent with privacy principle 11, which relates to disclosure of personal information.
[31] The Court of Appeal said that such a tort would be difficult to reconcile with s 11(2) of the 1993 Act, which provided:
11 Enforceability of principles
(1)The entitlements conferred on an individual by subclause (1) of principle 6, in so far as that subclause relates to personal information held by a public sector agency, are legal rights, and are enforceable accordingly in a court of law.
(2)Subject to subsection (1), the information privacy principles do not confer on any person any legal right that is enforceable in a court of law.
[32] The Court of Appeal considered that the proposed tort would be inconsistent with the scheme of the 1993 Act. Goddard J said that the proposed tort would:20
… cut across the specific complaints procedure under the Act, and the tailored institutional arrangements for bringing a claim for breach of those Principles.
[33] Privacy principles 1 to 5 relate to an agency’s collection and storage of personal information. Privacy principles 7 to 13 relate to an agency’s duties in respect of personal information once it is held. Privacy principle 6 is the only principle that deals with an individual’s right to access their own personal information.
[34] The distinguishing feature in the present case is that s 11(1) of the 1993 Act expressly stated that privacy principle 6, relied on in this case, conferred legal rights enforceable in a court of law. OT was a public sector agency as defined in s 2 of the 1993 Act.21
19 Peters v Attorney-General [2021] NZCA 355, [2021] 3 NZLR 191 at [162].
20 At [162].
21 Oranga Tamariki is a “public sector agency” under s 7 of the 2020 Act.
[35] Section 11 of the 1993 Act has been repealed, and replaced with s 31 of the 2020 Act, which provides:
31 Enforceability of IPPs
(1)Except as provided in subsection (2), the IPPs do not confer on any person any right that is enforceable in a court of law.
(2)The entitlements conferred on an individual by IPP 6(1), to the extent that those entitlements relate to personal information held by a public sector agency, are legal rights and are enforceable in a court of law.
[36] The purpose of s 11 of the 1993 Act was to preserve the pre-1993 position. Prior to the 1993 Act’s enactment, under the Official Information Act 1982 (OIA), an individual refused information by a public sector agency had the right to bring an action for review in a court. This was an alternative to complaining to the Ombudsman.22
[37] The Report of the Department of Justice on the Privacy of Information Bill Sub-Committee of the Justice and Law Reform Committee observed that a right conferred by statute should not lightly be taken away.23 Thus s 11 of the 1993 Act was enacted to safeguard the existing right allowing recourse to the courts.
[38] Section 11(1) of the 1993 Act confirmed that an individual’s entitlements conferred by privacy principle 6(1), in respect of personal information held by a public sector agency, remained legal rights enforceable in a court of law. The position is unchanged under s 31 of the 2020 Act.
[39] The issue is the extent of the right confirmed by s 11(1) of the 1993 Act and whether the statutory right permits a tort claim.
[40] Counsel for OT, Ms Jackson, based her submissions principally on s 31 of the 2020 Act, however, the submissions apply equally to s 11 of the 1993 Act. Ms Jackson submitted that the legal rights enforceable in a court of law under s 31(2) of the 2020
22 Paul Roth and Blair Stewart Roth’s Companion to the Privacy Act 2020 (LexisNexis, Wellington, 2021) at 561.
23 At 561.
Act are limited to the right to seek injunctive relief, and it is necessary to consider the scheme of the legislation as a whole to determine the scope of proceedings permitted.
[41] Ms Jackson submitted that s 31 does not provide a basis for tortious liability for three reasons:
(a)First, a finding of tortious liability would undermine s 98 of the 2020 Act which provides a specific six-month time limit for individuals to bring proceedings in the Tribunal. Tortious liability is actionable for up to six years after the relevant act or omission.24
(b)Second, allowing claims in tort for breach of a statutory duty would undermine the Tribunal’s function by creating a dual regime for damages, inviting “forum shopping” and undermining the principle of res judicata.
(c)Third, there is no principled basis for privacy principle 6 to be actionable for damages in tort solely because the agency is in the public sector, leaving claimants against private sector agencies limited to seeking damages under pt 5 of the 2020 Act.
[42] The 1993 Act did not have a section stating the Act’s purpose.25 However, the 1993 Act did set out a comprehensive regime to protect an individual’s right to privacy of personal information and access to that information. Part 8 of the 1993 Act includes provisions governing:
(a)investigations by the Privacy Commissioner;
(b)proceedings before the Tribunal at the suit of the Director of Human Rights Proceedings;26
24 Limitation Act 2010, s 11(1).
25 By comparison, s 3(1) of the 2020 Act provides:
The purpose of this Act is to promote and protect individual privacy by providing a framework for protecting an individual’s right to privacy of personal information, including the right of an individual to access their personal information, while recognising that other rights and interests may at times also need to be taken into account.
26 1993 Act, s 82.
(c)proceedings before the Tribunal at the suit of the aggrieved individual;27
(d)a broad range of remedies available in the Tribunal including orders in the nature of injunctions and damages.28
[43]Tribunal decisions may be appealed to the High Court.29
[44] The obligations of agencies that collect, store and use an individual’s personal information were enforced by the processes prescribed in pt 8 of the 1993 Act.30 The one exception is an individual’s right to enforce their entitlement to access their own personal information held by a public sector agency.
[45] I accept Ms Jackson’s submission that the scheme of the legislation suggests that enforcement of this right in a court of law is limited to the remedies available on judicial review. Such a remedy might be appropriate where the procedures prescribed in pt 8 of the 1993 Act would not meet an urgent need for a remedy.
[46] It is strongly arguable that Parliament did not intend to confer any right on an individual to sue in tort for a breach of privacy principle 6. To allow tort claims would cut across the complaints and proceedings regime in pt 8 of the 1993 Act. Goddard J’s reluctance to recognise tort claims that cut across the scheme of the 1993 Act remains apposite.
[47] In my view, it is unlikely that s 11(1) of the 1993 Act was sufficient to confer rights on individuals to sue in tort for breach of statutory duty. Ms Christison’s claim lacks merit.
Other discretionary factors
Complexity of the proceeding and self-representation
27 Section 83.
28 Sections 85(1)(c) and 88.
29 Human Rights Act 1993, s 123; Human Rights Review Tribunal Regulations 2002, s 21(2).
30 See 2020 Act, pt 5.
[48] Ms Christison says that she intends to apply for legal aid for this proceeding, however, no steps have been taken towards an application for legal aid despite this proceeding having been on foot since 2022.
[49] Ms Christison continues to represent herself. Counsel for OT submitted that this gives rise to a risk that Ms Christison will over-complicate the proceeding, which is already complex due to the types of losses that Ms Christison seeks to recover.
[50] Ms Christison says that her losses flow from a miscarriage of justice that arose when she was unable to produce documents in support of her appeal that were withheld from her by OT. No particulars of the documents have been pleaded.
[51] Counsel for OT submits that complex issues regarding causation and remoteness of damages will arise, even if a tort claim is permitted. The complexity of the proceeding and Ms Christison’s decision to represent herself are factors that support security for costs.
[52] I accept the submission of counsel for OT that the financial burden of Ms Christison’s claim on OT is increased by Ms Christison’s decision to pursue her tort claim without legal representation and without the discipline provided by either the threat of the costs regime or the legal aid framework.
The availability of other relief
[53] Ms Christison says that she previously instructed solicitors to prepare and file a claim on her behalf to file in the Tribunal, however, the lawyers failed to do so within the six month period prescribed in s 98(2) of the 2020 Act.
[54] If an order for security for costs prevents Ms Christison from pursuing this proceeding, then Ms Christison may still be able to avail herself of her remedies under the 2020 Act.
[55] To obtain an extension of time to commence a proceeding in the Tribunal, Ms Christison must satisfy the Chairperson of the Tribunal that exceptional circumstances prevented proceedings from being commenced within the specified
period.31 Ms Christison has a reasonable prospect of obtaining an extension if the Chairperson accepts that Ms Christison’s failure to file her proceeding on time was due to a failure by her legal advisers, and given:
(a)OT’s concession that there has been an interference with Ms Christison’s privacy; and
(b)OT will not oppose an extension of time for Ms Christison to commence her proceeding in the Tribunal.
Decision
[56] I do not place any significant weight on the other discretionary factors discussed in [48] to [55] above. In my view, security for costs is warranted because Ms Christison’s claim in tort has no reasonable prospect of succeeding.
[57] OT requests that security be fixed at $40,000. Counsel for OT conceded that staging of security would ameliorate the risk that security will stymie Ms Christison in pursuing her claim.
[58] I am satisfied that staging of security is appropriate and that security for all outstanding steps to the close of pleadings should be fixed at $10,000. This is an appropriate case for the proceeding to be stayed until security has been posted.
Orders
[59]I make the following orders:
(a)the plaintiff shall pay $10,000 into Court as security for the defendant’s costs;
(b)the proceeding is stayed until the plaintiff complies with order (a).
31 2020 Act, s 98(8).
[60] OT is the successful party. If OT seeks costs then the following directions apply:
(a)OT shall file a memorandum as to costs of no more than five pages by
3 May 2024;
(b)Ms Christison may file and serve a memorandum of no more than five pages in reply by 17 May 2024 ;
(c)I will then determine costs on the papers.
Associate Judge Brittain
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