Dotcom v Attorney-General
[2019] NZHC 740
•8 April 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-286
[2019] NZHC 740
BETWEEN KIM DOTCOM
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 20 March 2019 Counsel:
R M Mansfield and S L Cogan for Applicant V Casey QC for Respondent
Judgment:
8 April 2019
JUDGMENT OF CHURCHMAN J
[1] The applicant has applied for leave to appeal to the Court of Appeal the decision of this Court dated 1 October 2018.1
[2] Leave is required because this is a second appeal under s 124 of the Human Rights Act 1993. The Court may grant leave if the appeal involves a question of law which by reason of its general public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[3] The original questions in respect of which leave was sought covered some nine pages with many different questions and sub-questions. Many of the proposed questions were not questions of law at all.
[4] On the day prior to the hearing of the leave application, the applicant filed a revised list of different questions which reduced the number of questions to five set
1 The Attorney-General v Dotcom [2018] NZHC 2564.
DOTCOM v THE ATTORNEY-GENERAL [2019] NZHC 740 [8 April 2019]
out over one page. Although the document stated that the applicant for leave did not resile from the original questions, during the course of the hearing, it became clear that the five questions posed in the 19 March 2019 memorandum effectively completely replaced the multitude of questions in the original application for leave. This sudden change of tack rendered irrelevant most of the written submissions filed by both counsel ahead of the hearing as they addressed questions no longer being proposed.
[5] During the course of oral argument, Mr Mansfield, counsel for the applicant, indicated that he was prepared to abandon the leave application in respect of Question 4.
[6] During his submissions in reply, when responding to criticism of the proposed Question 5, Mr Mansfield made the enigmatic comment that he accepted that the issue of remedies was obiter and could be resolved on appeal if the Court of Appeal found favour with his argument in relation to the initial requests. It is not clear whether he was abandoning Question 5, and neither is it clear exactly how he thought the Court of Appeal would be able to deal with it if the issue did not meet the threshold of being a question of law of general or public importance.
[7] Accordingly, I will treat Question 5 as being one which the applicant still wished to advance. The remaining questions were:
Question 1:
Can a request for personal information under Information Privacy Principle 6, with an accompanying request for urgency under s 37, be refused as one
indivisible request under the Privacy Act 1993 (Act) on the grounds that urgency was sought?
Question 2:
Can a request for personal information be transferred under s 39(b)(ii) of the Act to an agency that has never held the requested information and whose
functions and activities are not connected with the holding of the information, but only as counsel for a party in related proceedings?
Question 3:
Is a request for urgency accompanying a request for personal information under Information Privacy Principle 6 a lawful basis for refusing the request as vexatious under s 29(1)(j) of the Act?
…
Question 5:
Where personal information is sought for consideration in relation to pending litigation, and is unlawfully withheld, is it necessary for an
individual to show that the information was potentially relevant to such litigation to establish loss of a benefit for the purposes of s 88(1)(b)?
[8]Mr Mansfield acknowledged that the first three questions were interconnected.
[9] Counsel for the respondent, Ms Casey QC, opposed the application for leave. The grounds of opposition included:
(a)the questions were not questions of law but of fact;
(b)the proposition in Question 2 was a question of law but given the wording of s 39 of the Privacy Act 1993, it was not a question capable of bona fide and serious argument;
(c)that the first three questions were predicated on a representation of the facts which had not been advanced by the Attorney-General and which was not accepted or adopted by this Court; and
(d)that, given the unusual facts of this case, none of the questions raised an issue of sufficient public or general importance to warrant a second appeal.
Applicable principles
[10] The Court of Appeal in the recent decision of Cook v Housing New Zealand Corporation confirmed that the threshold for leave was high and said:2
[3] Section 120(3) [of the Residential Tenancies Act 1986] provides that leave for a further appeal to this Court may only be granted if, in the opinion of the Court, the appeal involves a question of law that, because of its general or public importance or for any other reason, ought to be submitted to this Court for decision. This is a high threshold. It has been emphasised on many occasions that on a second appeal … this Court is not engaged in the general correction of errors. Its primary function is to clarify the law. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been considered on a number of occasions.
[11] The Court is required to consider whether the proposed questions give rise to issues of general or public importance, outside the particular circumstances of the applicant.3
[12] The Court must also consider the public interest in the finality of litigation and preventing delay and further expense, and the use of the scarce resource of the Court.4
[13] The difference between a question of fact and one of law was discussed by the Supreme Court in Bryson v Three Foot Six Ltd. 5 The Court in that case said:
[25] An appeal cannot, however, be said to be on a question of law where the fact-finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court, unless it is clearly insupportable.
[14] As to the limited circumstances when an issue of fact might become a question of law, the Court said:6
An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper
2 Cook v Housing New Zealand Corporation [2018] NZCA 270 (citation omitted).
3 Singh v Immigration and Protection Tribunal [2018] NZHC 2409 at [11]-[14].
4 Fehling v Appleby [2015] NZHC 388 at [8] and [26] and Fehling v Appleby [2015] NZCA 428 (special leave declined).
5 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
6 At [26] (citation omitted).
application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.
[15]The Supreme Court went on to say:7
It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe’s preferred phrase, “the true and only reasonable conclusion contradicts the determination”, faces a very high hurdle. It is important that appellate Judges keep this firmly in mind.
Analysis
[16] Questions 1 and 3 both proceed on the basis that there was not just one request for personal information but separate requests for information and that the information be supplied urgently.
[17] Framing the questions in this way ignores the fact that this Court had rejected the applicant’s submissions that there were two separate requests. The Court had said:
[108] One of the important questions to answer is whether the requests could be seen as two separate and distinct requests (as urged upon us by Mr Mansfield) or whether there was in reality only one request which, as a component of that request, sought the information urgently because of the pending extradition hearing.
[109] We have come to the conclusion that the seeking of urgency was not a separate request. In this case it was an integral component of each of the 52 requests. …
[18] It is not appropriate, when framing a question of law, to frame it on a factual basis different to that found by the Court. Put another way, Questions 1 and 3 are hypothetical as the factual premise upon which they are predicated did not exist in this case. They, therefore, do not meet the criteria set out in s 124 for the grant of leave.
[19] Question 2 also proceeds on a factual basis that did not exist in this case. As acknowledged by counsel during oral argument, the Attorney-General, and through him, the Crown Law Office, were among the recipients of the 52 requests for
7 At [27] (citation omitted).
information. They held some of the information which the applicant sought but by no means all of it. None of the recipients of the requests would have held all of the information. It is, therefore, wrong to assert that the Attorney-General/Crown Law never held any of the requested information.
[20] The agencies that transferred the requests to the Attorney-General/Crown Law, did not do so because the Attorney-General/Crown Law was “counsel for a party in related proceedings” as Question 2 posits. The Court specifically held:
[119] The recipient agencies transferred the request because they believed that the information that was a critical component of the request (namely the requirement to treat the request with urgency because of pending legal action) was most closely connected with the functions and activities of Crown Law.
…
[127] Requests were transferred because the Attorney-General was the only one in a position to sensibly respond to the component of the request relating to urgency. That is because none of the agencies to whom the requests were made could sensibly analyse that aspect of the requests.
[21] Section 39(b)(ii) clearly authorises the transfer of an Information Privacy request. It is important to focus on the wording of s 39. It authorises transfers where:
… the information to which the request relates … is believed by the person dealing with the request to be more closely connected with the functions or activities of another agency.
[22] Despite the applicant’s submissions, it is not seriously arguable that, in order for the information to which the request relates to be more closely connected with the functions and activities of another agency, the other agency must hold all of the requested information. Section 39(b)(ii) does not contain such a qualification. It applies solely where the information that is the subject of the request is more closely connected with the functions and activities of another agency.
[23] Given this Court’s factual finding that there was only one request and a critical component of that request was the requirement to treat the request with urgency because of pending legal action, the information sought was reasonably believed to be more closely connected with the functions and activities of the Attorney- General/Crown Law than the functions or activities of the recipient.
[24] Implicit in Question 2 is the assumption that, prior to transferring a request for information, the recipient has to apply their mind as to whether the agency has ever held the requested information. However, that is clearly not a requirement of s 39(b)(ii). It is clearly part of s 39(b)(i) which relates to information which “is not held by the agency but is believed by the person dealing with the request to be held by another agency”, but the transfer in this case was pursuant to s 39(b)(ii).
[25] Although Question 2, as presently drafted, misrepresents the findings made by the Court, it would be possible to redraft it so as to avoid incorporating into it factual findings which were not made by the Court. Such a question could read:
Can a request for personal information under the Privacy Act 1993 be transferred by the recipient to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly assess but the agency to which the request is transferred is the only agency able to properly evaluate the claimed basis for the urgency request?
[26] Given that a possible question of law has been identified, it is necessary to consider whether or not it meets the criteria set out in s 124 of the Act. The Tribunal and Court reached different findings on the question of the availability of transfer in these circumstances. Although, as Mr Mansfield acknowledged in his submissions, that is not the end of the matter, it is a relevant factor in deciding whether the criteria in s 124 have been met.
[27] Although the recipient of a request for information which invokes an application for urgency does not have to give reasons for declining the application, they must, in good faith, apply their mind to the issue of whether or not urgency should be granted. That implies that, to the extent that it is reasonably possible, they are obliged to assess the claim for urgency. It is conceivable that, in circumstances such as the present case, where the recipient was completely unable to sensibly evaluate the request for urgency, they may seek to transfer the application for that assessment to be made by an agency which is in a position to sensibly assess the request.
[28] While such a scenario may not be common, it is arguable that those agencies receiving such requests would benefit from guidance as to whether or not s 39(b)(ii) permitted transfer for the purposes of dealing with this aspect of the request.
[29] Question 5 relates to an obiter part of the judgment. Because the Court did not find that Mr Dotcom’s privacy rights had been breached, the comments about damages were not part of the ratio of the decision. The question is also phrased on the incorrect premise that the Court held that, in order to establish loss of a benefit for the purpose of s 88(1)(b), the applicant had to show that the information was potentially relevant to pending litigation. What the Court actually said was:
[205] The HRRT correctly accepted that:
Before damages can be awarded for an interference with the privacy of an individual there must be a causal connection between that interference and one of the forms of loss or harm listed in the PA, s 88(1)(a), (b) or (c).
[30]And further:
[207] As part of analysing the issue of causation, it is therefore necessary to consider the extent to which the information requested is likely to have actually affected the outcome of the litigation for which it was said by Mr Dotcom to be required. That litigation was the forthcoming eligibility hearing in the District Court. It was not necessary for Mr Dotcom to show that the information sought would inevitably have influenced the outcome but there must be at least some evidential basis for assuming that it was potentially relevant.
[31] What the applicant is essentially attacking in Question 5 is the Court’s observations about causation. There are no issues of law of general or public importance involved.
Conclusion
[32] While the questions proposed by the applicant are either predicated on a factual basis which did not exist or do not meet the criteria in s 124 for the grant of leave, it is possible to redraft Question 2, as indicated above, and, notwithstanding the admonition of the Court of Appeal in Cook v Housing New Zealand that a high threshold has to be met by an applicant to justify a second appeal, I believe that, in respect of the question set out at [25], it is appropriate to grant leave.
[33]Accordingly, leave is granted on that basis.
Churchman J
Solicitors:
Anderson Creagh Lai Limited, Auckland for Applicant Crown Law Office, Wellington for Respondent
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