CHRISTOPHER JOSEPH O’NEILL AND PRIVACY COMMISSIONER
[2024] NZHC 3731
•10 December 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-714
[2024] NZHC 3731
UNDER the Constitution of New Zealand and the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
CHRISTOPHER JOSEPH O’NEILL
Applicant
AND
PRIVACY COMMISSIONER
Respondent
Hearing: On the Papers Counsel:
Applicant in person
Judgment:
10 December 2024
JUDGMENT OF McQUEEN J
[1] This proposed judicial review proceeding has been referred to me as Duty Judge pursuant to r 5.35A of the High Court Rules 2016 (the Rules).
[2]Rule 5.35A provides:
5.35A Registrar may refer plainly abusive proceeding to Judge before service
(1)This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly an abuse of the process of the court.
(2)The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16.
(3)However, the Registrar may,—
O’NEILL v PRIVACY COMMISSIONER [2024] NZHC 3731 [10 December 2024]
(a)as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and
(b)until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding.
[3] Proceedings referred under r 5.35A are considered by a Judge under r 5.35B. The rule sets out the powers of a Judge, and relevantly provides:
5.35B Judge’s powers to make orders and give directions before service
(1)This rule applies if a Judge to whom a Registrar refers a proceeding under rule 5.35A is satisfied that the proceeding is plainly an abuse of the process of the court.
(2)The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that—
(a)the proceeding be struck out:
(b)the proceeding be stayed until further order:
(c)documents for service be kept by the court and not be served until the stay is lifted:
(d)no application to lift the stay be heard until the person who filed the proceeding files further documents as specified in the order (for example, an amended statement of claim or particulars of claim).
…
[4] In Mathiesen v Slevin this Court explained that deciding whether to strike out a proceeding under these rules involved determining the following questions:1
(a)Whether it would be manifestly unfair to the respondents that they be required to respond; and
(b)Whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document.
1 Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6] citing Mathiesen v Fildes
[2017] NZHC 2258 at [4].
[5] In O’Neill v Judicial Conduct Commissioner, the Court of Appeal reworded the second limb slightly to ask whether right thinking people would regard the Court as exercising very poor control over its processes if it permitted the matter to proceed further.2 That was because the expression of the second limb in Mathiesen was inapt in a case not focused on obvious irregularities on the face of a document.
[6] The Court of Appeal has also considered the required approach to the exercise of these powers in Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board.3 After reviewing the history of these two rules, the Court said:
[14] The powers conferred under r 5.35B reflect the inherent power all courts have to prevent their own procedures from being misused, for example as a means of oppression or otherwise in a way that is manifestly unfair such that the administration of justice will be brought into disrepute.4 Lord Bingham described abuse of process as simply being “a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process”.5 Courts have a duty to prevent such abuse.
[15] The power under r 5.35B must be exercised sparingly, and only in the clearest of cases. Given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served, the abuse must be clear beyond doubt from reading the claim.
[7] There is an extensive history of proceedings commenced by Mr O’Neill being struck out as an abuse of process. A recent judgment of this Court, in another proceeding brought by Mr O’Neill against the Privacy Commissioner, provides a summary of those proceedings, which I do not need to repeat here.6 Since that judgment was given, I am aware that the Court of Appeal has struck out as an abuse of process two appeals brought by Mr O’Neill and the Supreme Court has dismissed an application by Mr O’Neill for leave to appeal that judgment.7
[8]I turn now to consider Mr O’Neill’s present application for judicial review.
2 O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].
3 Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63.
4 Hunter v Chief Constable of West Midlands [1982] AC 529 at 536 per Lord Diplock; and Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [21].
5 Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
6 O’Neill v Privacy Commissioner [2024] NZHC 1523 at [6]–[11].
7 O’Neill v Registrar of the Supreme Court [2024] NZCA 272; and O’Neill v Privacy Commissioner [2024] NZSC 162.
The application for judicial review
[9] Mr O’Neill applies for judicial review of the actions and lack of actions of the Deputy Privacy Commissioner and Privacy Commissioner (and those associated with them). For convenience, I refer in this judgment to the respondents as the Privacy Commissioner, unless the context otherwise requires.
[10] Although the pleading is not always easy to follow, I attempt to summarise it as follows.
[11] Mr O’Neill appears to say that on 13 November 2023, the Ministry of Health (the Ministry) provided him with a medical screening test kit. He says it was sent to him 11 years later than it should have been because the Ministry says it did not have Mr O’Neill’s address. It seems Mr O’Neill completed the test. He says that on 29 November 2023 the Ministry advised him that:
(a)the test was clear;
(b)such tests are repeated every two years to achieve a comparison (as a singular test shows nothing save the condition at the time);
(c)the tests are conducted within specific age groups; and
(d)Mr O’Neill was not eligible for another test.
[12] Mr O’Neill says therefore there will be no comparison of test results and that he is entitled to know his true health status. He says he may have missed out on other tests due to the Ministry’s incompetence in relation to his address, and his life may be at risk. In this respect, I point out that it is open to Mr O’Neill to seek medical advice about any health concerns he has irrespective of his complaint about the Ministry.
[13] Mr O’Neill says he has made numerous inquiries of the Ministry about these matters. He was not satisfied with the responses he received. Mr O’Neill says the Ministry has breached the Privacy Act 2020 in relation to his inquiries.
[14] Mr O’Neill says that he laid a complaint with the Privacy Commissioner on 6 April 2024 about the alleged failures by the Ministry to comply with the Privacy Act.
[15] Mr O’Neill says that he has written to the Privacy Commissioner on both 25 May 2024 and 31 July 2024 asking about progress with his complaint. He says that on 9 August 2024, the Privacy Commissioner wrote to him claiming he was making demands in relation to matters already settled and that in relation to “this” complaint, he had wrongly failed to provide them with the information required. Mr O’Neill says that this is a lie, and that he wrote to the Privacy Commissioner on 15 August 2024 indicating he had already provided the material requested on 25 May 2024.
[16] Mr O’Neill also seems to suggest that on 30 August 2024 the Privacy Commissioner advised him the Privacy Commissioner would not investigate his “request”. He describes the grounds given by the Privacy Commissioner for refusing to investigate his request, including that he made threats to the staff of the Privacy Commissioner (which Mr O’Neill denies) and that he is persistent. Mr O’Neill says these are not grounds for refusing to deal with his complaint. Mr O’Neill also says the Privacy Commissioner sent him a policy document entitled “Managing Unreasonable Complaint Conduct”. He says that to the extent that the Privacy Commissioner is categorising him as an unreasonable complainant this cannot be correct because all he is asking is to have his complaint addressed.
[17] Mr O’Neill says that the Privacy Commissioner also told him that he could resubmit his complaint. However, Mr O’Neill says that the Privacy Commissioner is legally obliged to rule on the complaint as submitted and does not have the power to control what is contained in a complaint. He also says that the Privacy Commissioner has advised him that a complaint in relation to an unanswered Privacy Act request is not sufficient to trigger its jurisdiction to investigate.
[18] Mr O’Neill says that the Privacy Commissioner is legally obliged to produce a “certificate” following its decision, as without such a document he cannot challenge the Privacy Commission’s actions before the Human Rights Review Tribunal (the Tribunal). He says he should be able to take the matter to Tribunal where the Commissioner decides not to investigate the complaint.
[19] In his claim, Mr O’Neill also makes intemperate and improper claims about the Deputy Privacy Commissioner, relating to her personality, her honesty and that she has perverted the course of justice. Some of these claims are extended to the Privacy Commissioner.
[20] Mr O’Neill refers to various correspondence in his claim, but full details of the correspondence are not pleaded.8 Rather, Mr O’Neill has filed two documents with the statement of claim, neither of which appear to me to be relevant. The first is a document dated 2006 which comments on Mr O’Neill’s engagement with the Privacy Commissioner, noting legal steps that might be taken in response. Mr O’Neill says it shows the corruption of Police, Telecom and “a Judge”, and contains utterly false allegations against him. The second document is a letter from Crown Law to Mr O’Neill dated 5 April 2023 declining a request to provide documents under the Official Information Act 1982. This appears to relate to certain proceedings in which the Supreme Court directed the Registrar of that court to refer copies of its judgments to the Solicitor-General for consideration of such further steps as she might consider appropriate, having regard to s 166 of the Senior Courts Act 2016.
Discussion
[21] The statement of claim seems to suggest the Privacy Commissioner has refused to investigate Mr O’Neill’s complaint but whether this is the basis of the claim, and if so on what basis, is not clear from the pleading. In particular, it is unclear from the pleading whether Mr O’Neill says the Privacy Commissioner decided not to investigate the complaint on one of the grounds set out in s 74(1) or under s 74(2) of the Privacy Act.9
[22] The claim as presently pleaded contains improper allegations of impropriety and criminal conduct against the Deputy Privacy Commissioner and the Privacy
8 Mr O’Neill is not required to file evidence to commence a judicial review proceeding: Judicial Procedure Act 2016, s 8.
9 The Privacy Commissioner has a discretion to decide not to investigate a complaint under s 74 of the Privacy Act 2020. The Human Rights Review Tribunal has held that it does not have jurisdiction to review the exercise of this discretion: Re Jones (Rejection of Statement of Claim) [2021] NZHRRT 19 at [8].
Commissioner. These are extravagant and there are no specific allegations of fact that might support them.
[23] The claim cannot be described as clearly drafted but I have been able to discern Mr O’Neill’s broad concerns, as I have set out above. Given what I have ascertained from the statement of claim, I am not satisfied that I can exclude the possibility that the matters pleaded by Mr O’Neill could found a claim in judicial review. As was the case in another application for judicial review by Mr O’Neill, this would be primarily on the basis the Privacy Commissioner’s actions were an unlawful exercise, or refusal to exercise, their statutory powers in relation to the investigation of complaints.10
[24] In the absence of further information, I cannot be sure there is no foundation for Mr O’Neill’s allegations, or whether the claim is capable of being appropriately repleaded.11 In those circumstances, rather than strike out the claim at this stage, I consider Mr O’Neill should have a chance to amend his pleadings to remove the irrelevant and improper allegations, to coherently set out the basis for his claim and to provide the documents said to support his claim.
[25] I also consider that in any amended statement of claim to be filed by Mr O’Neill, the Privacy Commissioner and the Deputy Privacy Commissioner should be named under the collective title of the Privacy Commissioner as the sole respondent to the application. Section 9(2) of the Judicial Review Procedure Act 2016 provides:
9 Respondents
…
(2) If the act or omission is that of 2 or more persons acting together under a collective title, then those persons by their collective title must be named as respondents to the application.
[26] Sections 13 and 14 of the Privacy Act address the appointment of a Privacy Commissioner and Deputy Privacy Commissioner. The Deputy Privacy Commissioner may perform or exercise all the functions, duties, and powers of the
10 Privacy Act 2020, pt 5, subpt 1.
11 O’Neill v Privacy Commissioner, above n 6, at [15] citing O’Neill v Commissioner of Police
[2022] NZCA 501 at [27], and Privacy Act 2020, ss 79–96.
Privacy Commissioner, subject to the Privacy Commissioner’s control, and has all the protections, privileges and immunities of the Privacy Commissioner.12
[27] This Court has recently addressed the question of naming the Privacy Commissioner and a staff member (as the Privacy Commissioner’s delegate) in a course of performing functions under the Privacy Act. The Court concluded that as the claim appeared to allege that the Commissioner and a staff member had unlawfully performed, or refused to perform, their statutory powers or duties in relation to the investigation of complaints under the collective title of the “Privacy Commissioner”, it was appropriate to name the respondent in that case as the Privacy Commissioner and remove the names of the individuals.13
[28] I consider that similar directions are appropriately made in relation to the matter before me. Accordingly, this proceeding is to name a sole respondent as the “Privacy Commissioner” without any reference to the individual holding the position of Privacy Commissioner or Deputy Privacy Commissioner. Mr O’Neill is to ensure that any amended statement of claim names a sole respondent in this way.
Directions
I therefore make the following directions pursuant to r 5.35B(2):
(a)This proceeding is stayed until further order of the Court.
(b)No application to lift the stay may be heard until:
(i)Mr O’Neill has filed an amended statement of claim that removes improper allegations and coherently sets out the basis for his claim;
(ii)Mr O’Neill has filed the documents that support his claim; and
(iii)compliance with the above has been certified by a Judge;
12 Privacy Act 2020, s 14(3) and subs (5).
13 O’Neill v Privacy Commissioner HC Wellington CIV-2024-485-275, 18 June 2024.
(c)any amended statement of claim filed by Mr O’Neill must name a sole respondent, being the Privacy Commissioner, and must not name the individuals holding the positions of Privacy Commissioner and Deputy Privacy Commissioner.
[30] If no amended statement of claim (that complies with the above directions) and documents that support Mr O’Neill’s claim are filed in the Court by 5 pm Tuesday 21 January 2025, the proceeding will be deemed to be struck out without further order of the Court.
[31] If Mr O’Neill files an amended statement of claim as directed, it is to be referred to me to determine whether it complies with the above directions and can be certified. If so, I will direct that an application to lift the stay may then be filed and determined.
[32] I record that Mr O’Neill has a right to appeal this decision in accordance with r 5.35B(3).
[33] I direct the Registrar to provide a copy of this decision to the Privacy Commissioner in accordance with r 5.35B(4).
McQueen J
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