Guo v Culpan
[2019] NZHC 1963
•13 August 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1499
CIV-2018-404-2695 [2019] NZHC 1963
UNDER the Judicial Review Procedure Act 2016, the Human Rights Act 1993 and the Privacy Act 1993 IN THE MATTER
of an application for review and an appeal
BETWEEN
YAN GUO
Applicant
AND
STEPHEN JAMES CULPAN
First Respondent
HUMAN RIGHTS REVIEW TRIBUNAL
Second Respondent
Hearing: 12 March 2019 and supplementary submissions 15, 18 and 22
March 2019
Appearances:
F M Joychild QC for the applicant H C Stuart for the first respondent
Appearance excused for the second respondent
Judgment:
13 August 2019
JUDGMENT OF PALMER J
This judgment was delivered by me on 13 August 2019 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
GUO v CULPAN [2019] NZHC 1963 [13 August 2019]
Summary
[1] In 2009 and 2010, Ms Sylvia Yan Guo saw Dr Stephen Culpan, a general practitioner, at the request of her employer. In 2015, she requested from him her medical file. In 2016, she complained to the Human Rights Review Tribunal that he breached her right to privacy by deliberately delaying providing her with her medical file and concealing information from her. In 2017 and 2018, the Tribunal made a series of rulings against Ms Guo. Ms Guo challenges the Co-Chairperson’s decisions to strike out portions of Ms Guo’s reply evidence, refuse an application for a witness summons and refuse to recuse herself. A week before the substantive hearing in May 2018, Ms Guo applied for an adjournment to allow her to reformulate her case with her newly appointed senior counsel who was not available on the hearing date. The Co-Chairperson declined the application, a decision Ms Guo also challenges. At the hearing, Ms Guo refused to be cross-examined without her counsel present. The Tribunal struck out her claim.1 Ms Guo appeals and applies for judicial review of that decision too.
[2] This claim concerns the right to privacy, so human rights are at stake and the Court is entitled to subject the decision-maker’s reasoning to anxious or heightened scrutiny on judicial review. But I dismiss the applications for judicial review and appeal. The portions of Ms Guo’s reply evidence that were struck out were irrelevant to the issues before the Tribunal. The scope of the substantive merits of a claim must be interpreted with the anxious scrutiny consistent with the Act’s purpose of better protecting human rights in New Zealand. But, once so interpreted, the Tribunal and the parties must stay within that scope. Requiring that is not a technicality. There was also no error in the decision to decline issuing a witness summons to produce documents of dubious relevance just before the hearing after discovery had been completed seven months earlier. There was no reason for the Co-Chairperson to recuse herself for bias or the appearance of bias. The Co-Chairperson’s decision not to adjourn the hearing a week beforehand was fair, reasonable and justified. And, whatever the degree of anxiety with which I review it, I consider the Tribunal’s decision to strike out Ms Guo’s claim was fair, reasonable and justified, given Ms Guo’s refusal to be cross-examined.
1 Guo v Culpan [2018] NZHRRT 25.
Legal framework for the Tribunal
[3] In order to assess the challenged decisions by the Co-Chairperson and the Tribunal, I first set out the relevant legal framework. This claim concerns the right to privacy and so human rights are at stake. The Court is therefore entitled to subject the decision-maker’s reasoning to “anxious or heightened scrutiny”, as the Court of Appeal recently observed in Kim v Minister of Justice.2
The Act
[4] Section 82 of the Privacy Act 1993 empowers the Director of Human Rights Proceedings to bring suit against a person in respect of an allegation of interference with the privacy of an individual which has been investigated by the Privacy Commissioner. Under s 83, if the Director considers the complaint does not have substance or should not be proceeded with, the aggrieved individual can bring proceedings before the Tribunal.
[5] As Cull J stated in Edwards v Capital and Coast District Health Board, these sections are a “jurisdictional gateway” for Tribunal proceedings.3 She cites and implicitly approves the Tribunal finding in Waugh v New Zealand Association of Counsellors Inc, that it is implicit in s 83 that investigation by the Privacy Commissioner “is part of a deliberate legislative ‘filtering’ mechanism that applies to cases before they can be brought to the Tribunal”.4 In that case, the Tribunal had struck out an applicant’s claim. Cull J held it was “unfortunate that strike-out procedures, which should be used as a last resort, were used by the Tribunal, in the mistaken belief that the appellant had another opportunity to have his claim investigated by the Privacy Commissioner”.5
[6] The legislative filter should be interpreted consistently with the purpose of the Act, and with the anxious scrutiny human rights cases attract, in order to consider the substantial merits of the case. In Mitchell v Privacy Commissioner, Cull J did not
2 Kim v Minister of Justice [2019] NZCA 209 at [45].
3 Edwards v Capital and Coast District Health Board [2016] NZHC 3167 at [34].
4 At [38] (and [62]), citing Waugh v New Zealand Association of Counsellors Inc HRRT 5/2002, 17 March 2003, at [20](c).
5 At [73].
consider the Tribunal “is confined in its review of the merits to only the principle identified by the Commissioner, if the facts engage an alternative or additional privacy principle”.6
[7] The Tribunal was established by the Human Rights Commission Act 1977 and continued by s 93 of the Human Rights Act 1993 (the Act). Under s 94 its functions are to consider and adjudicate on proceedings under the Act and to exercise other functions, powers or duties conferred by that Act or any other enactment. Other relevant provisions are:
(a)Section 104 of the Act confers on the Tribunal, the Chairperson, or a Deputy Chairperson the power to hold and adjourn sittings of the Tribunal or, after giving the parties a reasonable opportunity to comment, to determine a proceeding on the papers if they consider it appropriate. Section 104(5) provides “[t]he Tribunal may regulate its procedure as it thinks fit, subject to this Act and any regulations made under it, and any practice notes issued under section 121A”.
(b)Section 105 provides:
105 Substantial merits
(1)The Tribunal must act according to the substantial merits of the case, without regard to technicalities.
(2)In exercising its powers and functions, the Tribunal must act
–
(a)in accordance with the principles of natural justice; and
(b)in a manner that is fair and reasonable; and
(c)according to equity and good conscience.
(c)Section 106 empowers the Tribunal to call for evidence or information, to request or require persons to give evidence, to fully examine any witness and to receive as evidence any statement “that may, in its opinion, assist to deal effectively with the matter before it, whether or
6 Mitchell v Privacy Commissioner [2017] NZHC 569, [2017] NZAR 1706 at [39].
not it would be admissible in a court of law”. Subject to that, the Evidence Act 2006 applies to the Tribunal.
(d)Section 109 empowers the Tribunal, “if it considers it necessary”, to issue a witness summons. Section 109(3) empowers a Chairperson or Deputy Chairperson, among others, to exercise that power.
(e)Section 115A empowers the Tribunal to strike out a proceeding, in whole or in part if satisfied that it:
(a) discloses no reasonable cause of action;
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of process.
(f)Section 116 requires the Tribunal to give reasons for specified decisions, which includes the Tribunal’s decision here.
[8] Section 123(2)(e) confers on a party a right to appeal to the High Court a Tribunal decision constituting a final determination of the Tribunal in a proceeding. Section 123(6) empowers the Court to confirm, modify or reverse the decision, or any part of that decision, or to exercise any of the powers that could have been exercised by the Tribunal in the proceeding. Under r 20.18 of the High Court Rules 2016, an appeal is by way of re-hearing.
The Regulations
[9] Regulation 4 of the Human Rights Review Tribunal Regulations 2002 provides:
4 Purpose of these regulations
(1)The purpose of these regulations is to make it possible for proceedings before the Tribunal to be determined–
(a)in harmony with the purpose and spirit of the Acts under which the proceedings arise; and
(b)as required by those Acts (for example, in a manner consistent with the performance of the Tribunal’s duties under section 105 of the Act); and
(c)as fairly, efficiently, simply, and speedily as is consistent with justice.
(2)These regulations must be read in the light of their purpose.
[10] Regulation 16 provides that “subject to decisions of the Tribunal, the Chairperson may give any directions and do any things”:
(a)that are necessary or desirable for the proceedings to be heard, determined, or otherwise dealt with, as fairly, efficiently, simply, and speedily as is consistent with justice; and
(b)that are not inconsistent with the Act or, as the case requires, the Privacy Act 1993 …
[11]Regulation 19 states:
19 Hearing
(1)At the hearing, the persons who have a right to appear, or who are allowed to appear, before the Tribunal must, subject to subclause (4), each be given an opportunity to be heard.
(2)The persons who have a right to appear, or who are allowed to appear, before the Tribunal may call evidence and may cross-examine any witness.
(3)If the plaintiff or the defendant or both fail to appear before the Tribunal at the time and place fixed, the Tribunal may nevertheless, on proof of service of notice of the hearing, proceed to determine the proceedings.
…
The Bill of Rights
[12]Section 27 of the New Zealand Bill of Rights Act 1990 provides, relevantly:
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any
tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
The context of the challenged decisions
Ms Guo’s consultations with Dr Culpan
[13] Ms Guo is a well-educated young New Zealand woman of Chinese origin. From February 2009 to February 2010, she was employed at PricewaterhouseCoopers (PwC) as a graduate. Her mother, Ms Li Yan, is also well-educated and is clearly a fierce defender of her daughter. Dr Culpan is a general practitioner who specialises in occupational medicine, at CityMed Ltd at the relevant time.
[14] In August 2009, by email, PwC consulted Dr Culpan about unusual behaviour of Ms Guo at work, including her hearing voices and believing she was under surveillance. In November 2009, it seems she left work for an hour and a half and returned in a distressed state. PwC asked her to see Dr Culpan. The consultation, on
20 November 2009, lasted 45 minutes. PwC also sent him additional written information about PwC’s concerns about Ms Guo.
[15] On 24 November 2009, Ms Guo says PwC asked her to sign a consent for it to obtain a report from Dr Culpan assessing her fitness for work. Ms Guo was concerned and phoned Dr Culpan personally to advise she declined to consent. She instructed him not to divulge any medical information to PwC. But, in his 22 December 2009 letter to PwC, Dr Culpan said he had had further discussions about his public health and safety responsibilities and requirements under the Health Information and Privacy Act.7 He said it was clear he could not divulge the content of his meeting with Ms Guo but he “can set some suggested guidelines for her care and safety at work as well as suggestions for any future actions should health issues arise”.8 In his letter, he reported to PwC his opinion that the information he had received from PwC about Ms Guo “suggests a persisting paranoid false belief thought disorder”.9 He suggested further medical and psychological advice should probably be obtained.
7 Letter Dr Culpan to PwC, 22 December 2009, Common Bundle of Documents (CBD) 566 at 1.
8 At 1.
9 CBD 568 at [1].
[16] On 22 January 2010, Ms Guo visited Dr Culpan again, at the request of PwC, though the parties’ evidence differs on what happened. Ms Guo resigned from PwC effective from 21 January 2010.
Ms Guo’s complaints to the Privacy Commissioner
[17] On 28 August 2015, Ms Guo requested a copy of her medical file from Dr Culpan. Dr Culpan provided her with the file, and then provided a further, expanded file to her general practitioner. Ms Guo says Dr Culpan assured her she had received her full file. But, in July and December 2017, Dr Culpan disclosed to Ms Guo additional communications he had had with PwC in 2011 and his 22 December 2009 report.
[18] On 15 October 2015, Ms Guo complained to the Privacy Commissioner that Dr Culpan intentionally failed to respond to her request within the statutory period and failed to provide her with the full medical file. One of the particulars of the complaint was that Dr Culpan misused Ms Guo’s information by collecting it from PwC behind her back. On 10 December 2015, the Office of the Privacy Commissioner (OPC) advised its preliminary view that nothing had been withheld but the statutory deadline had been breached.10 The OPC asked Dr Culpan to apologise, which he did.
[19] On 3 August 2016, Ms Guo made a second complaint to the OPC, that Dr Culpan had collected and disclosed her personal information to PwC without her consent, causing her to lose her job at PwC. On 10 August 2016, the OPC declined to open an investigation into these new complaints. It considered Dr Culpan’s sharing of information about her with PwC was necessary to facilitate his provision of advice about her suitability for employment and the sharing of the information was one of the purposes for which it was created and held. It advised that if Ms Guo believed Dr Culpan had not provided her with information that is something she would need to raise with the Tribunal as part of her complaint about her right to access the health information Dr Culpan held about her. The OPC also considered Ms Guo’s complaints
10 Letter OPC to Ms Guo, 10 December 2015, CB 313.
were not made in good faith for specified reasons but, rather, “were part of a wider campaign against Dr Culpan”, which the OPC was not willing to facilitate.11
[20] That engendered a lengthy complaint by Ms Guo to the Privacy Commissioner about the relevant OPC officer’s “severe professional misconduct”.12 The Privacy Commissioner reviewed the file and empathised with how Ms Guo felt but suggested her experiences were the product of a severe mental illness and said he would not allow her to “include my staff among the targets for your harassment”.13 He responded to a further lengthy email from Ms Guo by saying the OPC would not respond to her repeated complaints arising from the same facts.14
The fraught Human Rights Review Tribunal proceeding
[21] On 4 May 2016, Ms Guo filed a claim with the Tribunal against Dr Culpan. She alleged he had breached her right to privacy by delaying providing her with her medical file and intentionally hiding “some information away from the medical file he provided to me” and “insisted on lying he provided me everything on the file”. This complaint did not include the complaint that Dr Culpan had misused Ms Guo’s information by collecting it from PwC from behind her back. Dr Culpan opposed the claim.
[22] The proceeding was fraught. Dr Culpan’s counsel took a robust approach. Ms Yan, on behalf of Ms Guo, made increasingly virulent attacks on the integrity of Dr Culpan and his counsel, on the process, on the Tribunal and on the Co-Chairperson of the Tribunal. The Tribunal took things step by step. Many issues were raised, memoranda filed and minutes issued. The Tribunal eventually directed that Ms Yan and Ms Guo were not to file any further document or email containing criticism of, or allegations of improper conduct by, Dr Culpan’s counsel or, indeed, any further application of any kind without leave of the Chairperson.15
11 At 2.
12 Email Ms Guo to Mr John Edwards, 4 September 2016.
13 Email Mr Edwards to Ms Guo, 8 September 2016.
14 Email Mr Edwards to Ms Guo, 9 September 2016.
15 Minute of Co-Chairperson, 2 March 2018, CB 146 at [36.7].
[23] Before me, both counsel set out a lot of context in their written submissions, particularly context favourable to their respective cases. I have reviewed all the information before me. I do not set out everything that happened in the proceeding in this judgment. I set out the context I consider most relevant to each of the five challenged decisions.
Decision 1: to strike-out a reply brief
What happened?
[24] The statements of evidence of Dr Culpan and his other intended witness, Ms Tracy Ellis, were dated 3 and 2 November 2017 respectively.16 Dr Culpan’s statement outlined: the information he received about Ms Guo; his meeting with her; his report to PwC; his further meeting with Ms Guo; his further correspondence with PwC; Ms Guo’s request for the medical file; the OPC’s investigation; additional correspondence from Ms Guo; and her complaint to the Health and Disability Commissioner. Ms Ellis did not work at PwC when Ms Guo did; her statement of evidence was based on her knowledge of PwC’s business records and Ms Guo’s personal file.17
[25] Ms Guo’s statement of evidence in reply, dated 1 December 2017, covered Ms Guo’s evidence of: her happy and successful life before working at PwC; her traumatic PwC experience; PwC “deluding” her into seeing Dr Culpan; PwC allegedly constructively dismissing her; responses to Ms Ellis’s evidence; and allegations of Dr Culpan’s serious breaches of the Privacy Act.18
[26] On 8 December 2017, in considering Ms Guo’s application to summons Ms Ellis as outlined below, the Tribunal set timetable directions to determine the relevance of Ms Guo’s reply evidence. Ms Guo protested the possible striking-out of her reply brief, on the basis she was responding to Dr Culpan’s “faked and irrelevant material”.19 On 22 December 2017, the Tribunal set further timetable directions for considering the relevance of Ms Guo’s reply brief.20
16 Statement of Evidence of Stephen Culpan, 3 November 2017 CB 338.
17 Statement of Evidence of Tracy Ellis, 2 November 2017, CB 353.
18 Statement of Evidence in Reply by Yan Guo, 1 December 2017, CB 284.
19 Memorandum of representative for the plaintiff, 11 December 2017, CB 273.
20 Minute of Co-Chairperson, 22 December 2017, CB 246.
[27] Dr Culpan applied to strike out large parts of Ms Guo’s reply evidence as irrelevant to the issues for the Tribunal and therefore inadmissible under s 7(2) of the Evidence Act 2006.21 His counsel identified the issues as whether Dr Culpan breached Ms Guo’s privacy by failing to meet the time limit, which he accepted occurred by two days, and whether he breached her privacy by providing an incomplete version of her medical file, which he denied. He accepted a portion of his own evidence, about the complaint to the Health and Disability Commissioner, was irrelevant to that and offered a redacted version of his statement. He submitted Ms Ellis’s evidence was relevant but would provide little assistance so indicated she would not be called as a witness. He objected to 56 paragraphs of Ms Guo’s statement of evidence in reply. Ms Yan, for Ms Guo opposed the application for strike-out on the basis the evidence was relevant and necessary to prove Dr Culpan made false statements and fabricated evidence and she submitted excluding any part of the evidence would pervert the course of justice.22
[28] By minute of 2 March 2018, among other decisions, the Co-Chairperson struck out 43 whole paragraphs of the reply brief and part of one paragraph.23 The Chairperson stated the Tribunal’s power to receive evidence under the Act and the Evidence Act 2006, and identified and struck-out of the portions of Ms Guo’s brief she considered were irrelevant to the issues before the Tribunal, regarding: Ms Guo’s life before PwC; Ms Guo’s experiences at PwC; Ms Guo’s allegations about being constructively dismissed by PwC; and allegations against Dr Culpan unrelated to the issues in the proceeding. She did not strike out 15 paragraphs Dr Culpan had applied to strike out, concerning her allegations that Dr Culpan’s evidence was false and information faked, that he deliberately mislead the OPC, and that he committed a criminal offence by destroying evidence.
Submissions
[29] Ms Joychild, for Ms Guo, emphasises the context of what she says was Dr Culpan being allowed to file irrelevant and provocative evidence without reproach. She submits the Tribunal’s own-motion call for submissions on the relevance of Ms
21 Memorandum of counsel for the defendant, 26 January 2018, CB 184 at [4].
22 Memorandum of representative for the plaintiff, 9 February 2018, CB 165.
23 Minute of Co-Chairperson, 2 March 2018, CB 146 at [17]–[[35].
Guo’s evidence, and striking out of large amounts of it, was grossly unfair. She submits it put Ms Guo at a considerable disadvantage because she could not respond to detrimental material about her. Ms Joychild submits this breached the statutory duty of fairness and the principles of natural justice in denying her proper opportunity to be heard. She submits Dr Culpan’s irrelevant evidence, which may have influenced the Tribunal to dismiss her claims, should also have been struck out.
[30] Ms Stuart, for Dr Culpan, submits his evidence of his interactions with Ms Guo was utterly relevant to justify why the documents in the medical file were of such a limited nature. She submits large portions of Ms Guo’s evidence in reply, about the breakdown of her employment relationship with PwC, were irrelevant to the issues to be considered by the Tribunal.
Should the reply evidence have been struck out?
[31] The issues before the Tribunal were whether Dr Culpan failed to provide all of Ms Guo’s medical file to her, whether he delayed providing her with the medical file beyond the statutory deadline (which he admits, by two days), and what consequences followed. The Tribunal accurately identified these issues in its minute of 2 March 2018.24 I consider the portions of Ms Guo’s statement of evidence in reply, that were struck out by the Co-Chairperson, were irrelevant to those issues.
[32] It became clear, as the proceeding developed, that Ms Guo really wished to pursue a wider grievance about Dr Culpan releasing information to PwC without her consent. That was the subject of her second complaint to the OPC, which the OPC declined to investigate. But that complaint was not before the Tribunal, either under the terms of the original claim or the terms of the claim as Ms Guo had applied amend it on 5 January 2018. Accordingly, it was not before the Tribunal.
[33] Ms Guo’s and Ms Yan’s misunderstanding of the scope of the proceeding before the Tribunal appears to be a significant cause of their frustration. But the Tribunal was only able to deal with the complaint before it, as am I. That was relatively narrow. It did not relate to Ms Guo’s life before PwC or at PwC, other than
24 Minute of Co-Chairperson, 2 March 2018, CB 146 at [4].
her contact with Dr Culpan. It did not relate to the termination of her employment at PwC. It related to the consequences of Dr Culpan failing to provide Ms Guo’s medical file to her, rather than the consequences of him providing information to PwC.
[34] In this judgment, I should not be taken to be making any finding about the scope of either of Ms Guo’s complaints to the Privacy Commissioner, whether the Commissioner might validly further consider the subject of the second complaint or whether the Commissioner’s handling of the second complaint does or does not mean the Tribunal has jurisdiction to consider a complaint based upon it.
[35] The Tribunal was under a duty, according to s 105 of the Act, to act according to the substantial merits of the case, without regard to technicalities. The parameters of the substantive merits of a case before the Tribunal should not be interpreted technically. They are to be interpreted with the anxious scrutiny consistent with the Act’s purpose, expressed in the long title, of better protecting human rights in New Zealand. But once so interpreted, the Tribunal and the parties must stay within the scope of those substantive merits. Requiring that is not a technicality. Irrelevant evidence or information has no place in a proceeding, whether the Evidence Act applies or not; especially if it would lengthen the hearing.
[36] Ms Guo’s reply evidence was appropriately struck-out by the Co-Chairperson. Doing so was not unfair and did not deny her the opportunity to be heard about her complaint that was properly before the Tribunal. The Co-Chairperson did not rule on Dr Culpan’s submission that a portion of his evidence was also irrelevant. She may have considered it was, because part of the challenged portion of Ms Guo’s evidence that was left in by the Co-Chairperson related to that portion of Dr Culpan’s evidence. But, in any case, not doing so did not invalidate the decision to strike out the irrelevant portions of Ms Guo’s statement in reply. I dismiss the application for judicial review of the decision to strike out portions of Ms Guo’s statement of evidence in reply.
Decision 2: to decline to issue a witness summons
What happened?
[37] In December 2017 there were a series of interchanges between Ms Yan, counsel for Dr Culpan and the Co-Chairperson of the Tribunal regarding whether witness summonses could or would be issued for three persons who Ms Yan could not fully identify. On 22 December 2017, the Co-Chairperson indicated, in the circumstances where “the Tribunal does not know who to summons and in any event is not satisfied that the proposed witnesses can give evidence relevant to the matters in issue in the proceedings”, the Tribunal would not be issuing any witness summonses on its own motion.25
[38] On 9 February 2018, in her memorandum regarding the strike-out of portions of Ms Guo’s reply statement, Ms Yan alleged paragraphs of Ms Ellis’s statements were false.26 Ms Guo requested a witness summons be issued to Ms Ellis, who Dr Culpan had previously decided not to call as a witness. Ms Guo claimed Ms Ellis’s evidence would expose false statements made by Dr Culpan and Ms Ellis. Dr Culpan opposed the request on the basis the evidence in the brief was not relevant.
[39] In the Minute of 2 March 2018, the Co-Chairperson declined Ms Guo’s application for a witness summons, stating:27
[5] Having had the benefit of reviewing the brief that was filed for Ms Ellis, I do not consider that her evidence is relevant to the issues to be determined. The circumstances which led to Ms Guo being seen by Dr Culpan are of no assistance to determining whether her subsequent information privacy request addressed to Dr Culpan in relation to her interactions with him was complied with. The jurisdiction of the Tribunal under the Privacy Act is narrowly confined to determining whether there has been an interference with privacy as defined in s 66 of the Act and the nature of any remedy. The Tribunal has no jurisdiction to investigate any other grievance Ms Guo may have. The application for the witness summons is declined. For the benefit of Ms Guo, it is noted that because Ms Ellis will not be a witness at the hearing her witness statement will not be considered or taken into account by the Tribunal.
25 Minute of Co-Chairperson, 22 December 2017, CB 246 at [15].
26 Memorandum of representative for the plaintiff, 9 February 2018, CB 165 at [9](a) and (c).
27 Minute of Co-Chairperson, 2 March 2018, CB 146 at [5].
[40] On 13 March 2018, Ms Yan purported to require Ms Ellis to answer interrogatories under the High Court Rules 2016.28 Dr Culpan’s counsel pointed out she was not obligated to answer interrogatories as she was not a party and it was not a High Court proceeding.29 Nevertheless, Dr Culpan responded to the questions. On 6 April 2019, Ms Guo filed an interlocutory application seeking orders Dr Culpan respond by affidavit and Ms Ellis be required to answer too.30 On 12 April 2018, the Co-Chairperson of the Tribunal dismissed the application.31 She was “not persuaded that requiring Dr Culpan to be put to the cost of providing his answers to Ms Guo’s interrogatories by affidavit is either necessary or desirable for the proceedings to be dealt with fairly, efficiently, simply and speedily”.32 She warned Ms Yan and Ms Guo that further documents containing gratuitous insults and improper allegations against Dr Culpan would be returned.33 Ms Yan then filed memoranda and emails questioning whether Dr Culpan’s informal answers to the interrogatories were now formal answers and part of the evidence and, on 17 April 2018, submitted they were.
[41] In a separate memorandum on 17 April 2018, Ms Guo sought leave from the Tribunal, again, to grant her application to issue a witness summons to Ms Ellis, to produce documents about Ms Guo between PwC and Dr Culpan.34 Ms Ellis had said in her brief of evidence for Dr Culpan that she had access to PwC’s business records and Ms Guo’s personnel file. Ms Guo wanted the communications between PwC and Dr Culpan. On 19 April 2018, the Co-Chairperson declined to do so.35 She stated:
[5] Having reviewed Ms Guo’s memorandum in support of her further application for a witness summons to be issued to Ms Ellis, and the additional material she relies on, I remain of the view that the evidence of Ms Ellis would be of no relevance to the issues to be determined in these proceedings.
[6] As to the PWC documents Ms Guo wants to be provided, they do not belong to Ms Ellis and the Tribunal declines to order her to provide them. PWC is not a party to this proceeding. The Tribunal cannot direct Ms Ellis to provide the documents of a non-party. Any application for a non-party to provide discovery needs to be made against the party and to proceed on notice.
28 Plaintiff’s Notice to Answer Interrogatories, 13 March 2018, CB 135.
29 Email Ms Stuart to Ms Yan, 13 March 2018, CB 133; letter Ms Stuart to Ms Yan, 27 March 2018, CB 130.
30 Plaintiff’s interlocutory application, 6 April 2018, CB 125 at [1].
31 Minute of Co-Chairperson, 12 April 2018, CB 116 at [11].
32 At [9].
33 At [10].
34 Memorandum of representative for the plaintiff, 17 April 2018, CB 102 at [14].
35 Minute of Co-Chairperson, 19 April 2018, CB 99.
There is insufficient time prior to the hearing on 14 and 15 May for such an application to proceed and be determined.
[7] In the circumstances, leave to bring the further application for a witness summons to be issued to Ms Ellis is declined. The issue has now been considered on two occasions. The limited resources of this Tribunal cannot be deployed to determining matters that have already been determined. Any further applications for a witness summons to be issued to Ms Ellis will be returned to Ms Guo by the Secretary.
[42] On 26 April 2018, Ms Guo applied for orders that CityMed and PwC make discovery.36 On 1 May 2018, the Co-Chairperson declined the application.37 She observed discovery had been completed in September 2017 and stated “[i]t is simply not fair or reasonable at this very late stage for this application to be made and to proceed” but, rather, it was in the interests of justice for the hearing to proceed.38
Submissions on the witness summons
[43] Ms Guo challenges the Tribunal’s second decision to refuse Ms Guo’s application to issue a witness summons for Ms Ellis. Ms Joychild submits the connection between the witness and the issue was very explicit by the time of the second application. She submits Ms Ellis’s evidence was plainly relevant and the refusal to issue a witness summons was an error of law and breach of Ms Guo’s right to be heard, as she was denied the right to call evidence that was directly relevant to the issues in her case.
[44] Ms Stuart submits the Tribunal was concerned at the lateness of Ms Guo’s final application for a witness summons, three weeks before the hearing. She submits the Tribunal did not err.
Should the witness summons have been declined?
[45] It is difficult to see how PwC’s records, sought by Ms Guo through Ms Ellis could be relevant to the narrow issues before the Tribunal in this case. They would not be relevant to whether Dr Culpan delayed giving Ms Guo her records. The best possibility for them being relevant is that PwC might have records that were part of
36 Plaintiff’s interlocutory application, 26 April 2018, CB 71 at [1].
37 Minute of Co-Chairperson, 1 May 2018, CB 46 at [21].
38 At [19]–[20].
Dr Culpan’s file on Ms Guo which he did not provide to her. But there was nothing in Ms Ellis’s statement of evidence which suggested that was the case.
[46] The discovery phase of the proceeding had finished some seven months earlier. The application for a witness summons had already been determined on the basis of irrelevance, given the issues before the Tribunal. Bright ideas often occur to parties, and counsel, as hearing dates approach. But there is a public value in hearings not being postponed. The decision-maker has to weigh that against the risk of injustice to a party.
[47] Here, the Co-Chairperson was correct to observe that the documents sought were those of a non-party and there was no time for a non-party discovery application to be determined. Her assessment of the dubious relevance of the resulting information was fair and reasonable. Under s 109 of the Act, the Co-Chairperson did not consider it necessary to issue a witness summons. I do not consider she erred. I dismiss the application for judicial review of the decision not to issue a witness summons for Ms Ellis.
Decision 3: not to adjourn
What happened?
[48] On 6 March 2018, the Tribunal set down a two-day hearing commencing 14 May 2018. On 19 April 2018, Ms Guo sought leave to file an expanded claim against Dr Culpan and to vacate the 14 May hearing. On 26 April 2018, Ms Guo sought leave to apply for discovery against PwC and CityMed and to vacate the 14 May hearing. On 29 April 2018, Ms Guo again requested the 14 May hearing be vacated. On 1 May 2018, the Chairperson ruled it was in the interests of justice for the hearing to proceed.39 On 7 May 2018, on Ms Guo’s behalf, Ms Yan asked for an adjournment of the proceeding so Ms Guo could apply to remove the proceeding to the High Court.40
[49] Later on 7 May 2018, Ms Guo engaged senior counsel, Ms Joychild. That day, Ms Joychild filed an urgent one-page memorandum saying she was instructed to seek
39 Minute of Co-Chairperson, 1 May 2018, CB 46 at [20].
40 Memorandum of representative for plaintiff, 7 May 2018, CB37, at [6]–[7].
an adjournment of the hearing because Ms Guo “wishes to have all her Privacy Act concerns heard together, something that the Chair, in her Minute of May 1, has ruled is not possible at this stage”.41 By memorandum of 8 May 2018, counsel for Dr Culpan opposed the application on the basis Ms Guo chose to be represented by her mother until now notwithstanding Mr Culpan’s objections, her applications have already been determined, there is no proper basis on which the Tribunal can revisit its decision and Dr Culpan is entitled to prompt resolution of the proceeding.42
[50]Ms Joychild filed a further memorandum submitting:43
(a)The trigger for instruction of senior counsel was the minute of 1 May 2018 declining Ms Guo’s application to file an amended statement of claim. Ms Guo believes the nub of her claim will not be dealt with if the hearing goes ahead on the current limited grounds, which would seriously disadvantage Ms Guo in any appeal.
(b)If the matter is adjourned, the basis for the decision declining leave to amend the statement of claim, being the late stage at which they were raised, falls away.
(c)Counsel had commitments which made it impossible for her to prepare for and attend the hearing on 14 May 2018 and there were no other counsel who could be called at short notice.
(d)It would be a breach of fairness and justice if the adjournment were not granted and proceeding to hearing in these circumstances is unlikely to result in closure for either party.
(e)Ms Guo undertakes that, if the adjournment is granted, there will be full compliance with steps set for a new hearing.
41 Memorandum of counsel instructed by Yan Guo, 7 May 2018, CB 35, at [3].
42 Memorandum of counsel for the defendant, 8 May 2018, CB 33, at [3], [6] and [7].
43 Memorandum of counsel for the plaintiff, 8 May 2018, CB 29 at [5], [9]–[14].
[51] A teleconference was held on 10 May 2018. In a minute issued the same day, the Co-Chairperson dismissed the application for adjournment, stating:44
[10] It is necessary to balance the interests of Ms Guo in being legally represented and pursuing an application to amend her claim at this late stage against the interests of Dr Culpan in proceeding with a case that is otherwise ready for hearing and which has had a long gestation since being filed with the Tribunal in May 2016.
[11] While the assistance of legal counsel at a hearing is greatly valued, it is the norm in the Tribunal for litigants to be self-represented. The Tribunal’s proceedings are flexible and relatively informal and able to accommodate self- representation. I resolve that it is fair and reasonable in all the circumstances to proceed with the hearing on 14 May 2018 notwithstanding Ms Guo’s wish to have legal representation.
[12] I turn now to Ms Guo’s wish to amend her claim at this late stage. Ms Guo’s complaint in these proceedings has concerned the breach of section 40 of the Privacy Act and the alleged breach of principle 6. An amended claim in the terms proposed would necessitate essentially starting again with the proceedings in that an amended reply would be required, further discovery, amended briefs of evidence etc. Given the length of time the claim as currently formulated has been before the Tribunal and the fact that the hearing is but two working days away, I am not persuaded that it is fair or reasonable to grant an adjournment for this purpose. It is understood that in the absence of an adjournment, further proceedings may be brought. Given the jurisdiction issues raised by a claim that has not been investigated by the Privacy Commissioner there can be no guarantee that such a claim would be accepted for filing.
Submissions
[52] Ms Guo challenges the Tribunal’s decision not to adjourn after Ms Guo had appointed counsel. Ms Joychild submits the Tribunal made an error of law in how it balanced the interests of the parties. She submits Dr Culpan’s counsel had delayed the proceedings on several occasions so the Tribunal completely overstated the fairness to Dr Culpan of continuing. She submits it was set down less than 10 weeks previously which was not a “late stage” and Ms Guo had been asking for an adjournment repeatedly since 19 April 2018. She submits the Tribunal knew Ms Guo was struggling to prepare her case, believed she had a complete lack of understanding of the Privacy Act and Tribunal’s jurisdiction and lacked confidence in her representative. She submits that Ms Guo’s privacy claims needed to be brought together and a lawyer needed to review the proceeding and start again. She submits,
44 Minute of Co-Chairperson, 10 May 2018, CB 24.
in all the circumstances, fairness and natural justice required the proceedings to be adjourned and proceeding without legal representation was unreasonable, unfair and breached her right to be heard.
[53] Ms Stuart submits the primary reason given for adjournment was so that additional allegations of un-investigated privacy breaches could be included. She submits, under ss 82 and 83 of the Privacy Act 1993, the Tribunal had no jurisdiction to hear a claim which has not been investigated by the OPC. Ms Stuart submits whether the right to be heard was breached is highly dependent on the context. She relies on the Court of Appeal’s decision in West v Martin in submitting the decision not to adjourn did not breach Ms Guo’s right to be heard.45 She submits there is no right to legal representation here. She submits the Tribunal’s decision was entirely reasonable and appropriate in the circumstances. She does not accept the Tribunal overstated the need for fairness to Dr Culpan and she submits Dr Culpan’s requests for adjournments and extensions were each justified.
Should the proceeding have been adjourned?
[54] As Ms Stuart submits, the Court of Appeal in West v Martin held an adjournment will only be granted for good reason and the reasonableness of the attitude of the party seeking the adjournment is a relevant factor, as is the public interest in the efficient administration of justice.46 The Court also pointed out the requirements of natural justice are just as applicable to the party opposing adjournment as they are to the applicant, particularly the opposing party’s right not to have the proceeding drawn out unnecessarily.47
[55] As I have said, there is a public value in hearings not being postponed. The decision-maker has to weigh that against the risk of injustice to a party if there is an application to adjourn a hearing. The Tribunal proceeding had commenced in May 2016. Ms Guo was determined to use her mother as her representative, resisting an application for her removal and resisting the Tribunal’s consistent signals that her attitude and approach to the proceeding was unconstructive and counterproductive. It
45 West v Martin [2001] NZAR 49 (CA).
46 West v Martin [2001] NZAR 49 (CA) at [16].
47 At [18].
was not until a week before the hearing, after at least four attempts in the previous two or three weeks to vacate the hearing, that Ms Guo sought representation by legal counsel.
[56] Seeking legal counsel was an entirely sensible move by Ms Guo. But it came too late. More particularly, it came too late to be a valid reason for the hearing to be adjourned. The Tribunal was not depriving Ms Guo of legal counsel. Ms Guo had deprived herself of legal counsel. If Ms Guo belatedly wished counsel to represent her at the hearing, she should have engaged counsel who was available on the hearing dates. As the Co-Chairperson said, the Tribunal’s processes accommodate self- representation and that is the norm in the Tribunal. Ms Guo’s late desire for legal representation by a counsel who was not available for the hearing needed to be balanced, not only against Dr Culpan’s interests in proceeding with the case, but also with the public interest in the Tribunal getting through its work efficiently.
[57] Neither was the understandable wish to completely reformulate Ms Guo’s case, a week before the hearing, a valid reason for adjourning the hearing. Ms Guo and her mother had determinedly pursued the case as it was framed. If an amended claim of the sort she now sought was within the Tribunal’s jurisdiction, a separate proceeding could be brought afresh and an adjournment was unnecessary. If it were not within the Tribunal’s jurisdiction, adjournment would not achieve anything. I consider it was in the interests of justice for the claim, as both parties had prepared it, to be heard as scheduled. I consider it was fair and reasonable not to adjourn. I do not consider the Co-Chairperson erred. I dismiss the application for judicial review of the decision not to adjourn.
Decision 4: Non-recusal of the Co-Chairperson
[58] On 11 May 2018, Ms Guo asked the Chairperson of the Tribunal to remove the Co-Chairperson from the proceeding because she believed the Co-Chairperson would not deliver fair justice at the hearing. In response, the same day, the Co-Chairperson declined to recuse herself. She stated:48
48 Minute of Co-Chairperson, 11 May 2018, CB 21 at [8].
I do not consider that a fair-minded and informed lay observer might reasonably apprehend that, because I have declined a series of Ms Guo’s interlocutory applications, there is a real possibility I may not bring an impartial mind to the resolution of these questions. I also note that the Tribunal hearing these proceedings shall consist of not only myself, but two other persons who have been appointed from the panel maintained by the Minister of Justice …
Submissions
[59] At the hearing, Ms Joychild submitted a fair-minded layperson would consider the Co-Chairperson would not have an open mind to the issues by the stage she decided not to recuse herself. She submits there was apparent bias, not actual bias. She submits the Co-Chairperson had already made unfair, unreasonable and erroneous decisions to Ms Guo’s detriment which pointed strongly to a closed mind.
[60] Ms Stuart submits the Tribunal treated the parties fairly throughout the proceeding, giving particular lenience to Ms Guo in light of her lay representation. She submits the decisions that went against Ms Guo were not because of any bias or unfairness but due to the irrelevant, unsubstantiated and/or oppressive nature of the applications. She submits the test for apparent bias in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd is not met here.49
Should the Co-Chairperson have recused herself?
[61] At the hearing, Ms Joychild said Ms Guo challenged the Co-Chairperson’s decision not to recuse herself. That was not pleaded in the statement of claim so, strictly, I do not have to determine it. But the complaint is implicit in the relief sought and was argued before me, so I do.
[62] There is no doubt the Co-Chairperson consistently ruled against Ms Guo on interlocutory issues throughout this proceeding. But that does not mean she had a closed mind. I consider the Co-Chairperson’s decisions which I have judicially reviewed were fair, reasonable and justified. More generally, she dealt with Ms Guo’s arguments on their merits and gave reasoned decisions. The Co-Chairperson was dealing with a very difficult litigant and representative. If anything, she may have
49 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
erred on the side of allowing Ms Yan too much latitude to make the vituperative allegations she made. The fact she ruled against Ms Guo on a number of occasions does not mean she was biased. Neither was the test for apparent bias met here. There was no reason for the Co-Chairperson to recuse herself. I dismiss the application for judicial review of her decision not to do so.
Decision 5: strike-out of the proceeding
What happened?
[63] Ms Guo appeared at the hearing on 14 May 2018, with Ms Yan as her support person. She handed up submissions stating she was attending the hearing under protest because she had been given insufficient time to prepare properly for self- representation and denied legal representation.50 Her opening statement included paragraphs from her brief. Then, when the Co-Chairperson requested her not to read from her brief the paragraphs she had already read in her opening statement, she read them anyway.51 Ms Guo complied with the request of the Co-Chairperson not to read paragraphs of her reply evidence that had been struck out, but advised she was doing so under protest and wanted her objection noted on the record.52 Despite several requests by the Co-Chairperson, Ms Guo refused to be cross-examined by Dr Culpan’s counsel, unless her legal counsel was present.53
[64] Ms Stuart applied to strike out the proceeding on the basis that Ms Guo’s refusal to answer questions meant her evidence could not be taken into consideration.54 After an adjournment, the Tribunal again asked Ms Guo whether she would answer Ms Stuart’s questions in cross-examination and invited Ms Guo to respond to the strike-out application.55 As recorded in the Tribunal’s decision, and as reiterated by her counsel before me, Ms Guo maintained her refusal to answer questions, stating she had had “insufficient time to prepare for self-representation and that she believed she would not get a fair hearing without legal representation”.56
50 Guo v Culpan [2018] NZHRRT 25 at [19].
51 At [20].
52 At [21].
53 At [22].
54 At [23].
55 At [23].
56 At [23].
[65] The Tribunal struck out the proceeding. In its reasons, given on 19 June 2018, the Tribunal referred to its wide discretionary power to strike out a proceeding, to ss 105(2) and 106 of the Act, the application of the Evidence Act 2006 and the law and objects of cross-examination.57 The Tribunal concluded:
[36] In these proceedings, the briefs of Ms Guo and Dr Culpan contradicted each other on significant matters. In her evidence, Ms Guo alleged that Dr Culpan and his staff had lied to her on a number of occasions and had deceived the investigating officer from the Office of the Privacy Commissioner who investigated her complaint under information privacy principle 6. She alleged that Dr Culpan had deliberately withheld information about her. In addition, she alleged that his brief contained “faked information” and “faked and false” evidence. In his brief, Dr Culpan denied many factual allegations made in the briefs of Ms Guo and claimed that he had provided her with a complete copy of her medical file. He claimed that his breach of the statutory time limit for doing so was unintentional, that he had apologised for this, and that he had done his best to assist Ms Guo. In contrast, Ms Guo claimed that Dr Culpan had placed an alert on her file to stop it being released and that she and her mother had then been provided with an incomplete file “to fool us and palm us off”.
[37] Where, as here plaintiff and defendant contradict each other and the plaintiff alleges – in strong terms – that the defendant has lied, withheld information about her, and has included ‘faked information’ in his brief of evidence, the refusal to submit to cross-examination undermines the fundamental principle of fairness. The more so given Ms Guo was the only witness to give evidence in support of her case.
[38] Given the disputes between Dr Culpan and Ms Guo in this proceeding, Ms Stuart had a duty to cross-examine Ms Guo on the matters concerning which Dr Culpan would be giving contradictory evidence. Ms Guo’s refusal to allow herself to be cross-examined allowed Dr Culpan no fair opportunity to test the veracity of her evidence. This was unfair and prejudicial to Dr Culpan in light of the serious factual allegations made against him in Ms Guo’s evidence in chief.
[39] The refusal to submit to cross-examination effectively prevented the Tribunal from fact-finding in these proceedings and effectively denied Dr Culpan a right to be heard in defence of the allegations made against him by Ms Guo. Accordingly, the Tribunal determined that the evidence of Ms Guo could not be accepted and should be excluded as unfairly prejudicial. In the absence of any evidence that could be accepted, and Ms Guo’s steadfast refusal to be cross examined, the application to strike out Ms Guo’s proceedings was granted. The proceedings were therefore struck out.
57 At [26]–[35].
Submissions
[66] Ms Joychild submits both the appeal and review require anxious review or intense scrutiny of the handling of the case. She accepts a party who refuses to be cross-examined cannot expect to succeed where there are factual disputes. But she does not accept the fair, reasonable or lawful decision, in all the circumstances, was to strike the proceeding out. She points to the alternatives of adjourning the proceeding until she could be represented by counsel and amend her claim or staying the proceeding until she would consent to being cross-examined. She submits it was not unreasonable for Ms Guo to refuse to be cross-examined without legal representation and the Tribunal did not take into account Ms Guo’s level of upset and the genuineness of her belief she would not get a fair hearing. Ms Joychild submits the effect of strike- out is very significant. She points to the relative inequality between the parties, one represented by a lay representative with English as a second language and the other by Mr Waalkens QC, who specialises in this area of law. She submits the strike-out was a denial of Ms Guo’s right to be heard and be treated fairly and breached the principles of natural justice.
[67] Ms Stuart submits the Tribunal considered whether a reasonable alternative was open to it, but it found the issues had been considered already and paid regard to the resource pressures in the Tribunal and the long delays litigants were enduring while waiting for hearings. She submits the Tribunal’s decision was entirely reasonable and appropriate. She submits Ms Guo was aware throughout that she was entitled to legal representation but chose to be represented by her mother and stood on her right to do so, even after concerns were raised about her mother’s ability properly to advance Ms Guo’s interests. She submits Ms Guo plainly did have access to legal advice and took advantage of it throughout. She submits there is no right to legal representation in civil proceedings.
Should the claim have been struck out?
[68] To succeed on the appeal, Ms Guo bears the onus of satisfying me that I should differ from the Tribunal’s decision.58 I am responsible for arriving at my own
58 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4].
assessment of the merits of the case.59 To succeed on the judicial review, she must establish one of the grounds she argues: that the decision was unreasonable or breached the duty to act fairly and in accordance with natural justice.
[69] I consider the Tribunal’s decision was fair, reasonable and justified whatever the degree of anxiety with which I review it. It is not inconsistent with the principles of natural justice. I would not differ from it. Ms Guo put the Tribunal in an impossible position. As the Tribunal stated, her refusal to be cross-examined prevented Dr Culpan from testing her evidence. That was unfair and prejudicial to Dr Culpan, especially given the serious allegations Ms Guo had made against him. The Tribunal could not have placed any weight on Ms Guo’s evidence.
[70] The Tribunal does not identify the precise ground on which it struck out the proceeding. But, in the absence of other evidence, I consider it was reasonable for the Tribunal to strike out the proceeding as likely to cause prejudice under s 115A(1)(b), though it could also have been considered an abuse of process under s 115A(1)(d). An alternative could have been to decide the case in Dr Culpan’s favour because there was insufficient evidence to establish the claim against him, though that would not have reflected the Tribunal’s inability to assess Ms Guo’s evidence. I do not consider it would have been fair to Dr Culpan to stay the proceeding until Ms Guo agreed to be cross-examined. Neither was an adjournment required, as I concluded above. I dismiss Ms Guo’s appeal of the Tribunal’s decision to strike out her claim and I dismiss her application for judicial review of that decision.
Result
[71] I dismiss the appeal and the application for judicial review. I award costs on a 2B basis, and reasonable disbursements, to Dr Culpan.
Palmer J
Counsel/Solicitors
F M Joychild QC, Auckland Davenports City Law, Auckland H C Stuart, Barrister, Auckland DLA Phillips Fox, Wellington K M Muller, Barrister, Auckland Ministry of Justice, Wellington
59 At [5].
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