Guo v Human Rights Review Tribunal
[2023] NZHC 3883
•22 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-1142
[2023] NZHC 3883
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision from the Human Rights Review Tribunal dismissing any application for further discovery against the respondent in [2022] NZHRRT 6
BETWEEN
YAN GUO
Applicant
AND
HUMAN RIGHTS REVIEW TRIBUNAL
First respondent
PRICEWATERHOUSECOOPERS (PwC)
Second respondent
Hearing: 30 November 2022 Appearances:
Y Guo as self-represented applicant No appearance for the first respondent T L Clark for the second respondent
Judgment:
22 December 2023
JUDGMENT OF ROBINSON J
This judgment was delivered by me on 22 December 2023 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Bell Gully, Auckland Crown Law
Copy to: Y Guo
GUO v HUMAN RIGHTS REVIEW TRIBUNAL & ORS [2023] NZHC 3883 [22 December 2023]
Introduction
[1] On 14 February 2022 the Human Rights Review Tribunal (Tribunal) dismissed Ms Guo’s application for further and better discovery, and her challenge to the second respondent’s (PwC) claims of privilege (Decision).1 Ms Guo seeks judicial review of the Decision.2
[2] PwC opposes. It says the Tribunal’s Decision was an orthodox interlocutory decision made in accordance with law, fairly and reasonably.
Background
General Background
[3] In its earlier decision on Ms Guo’s initial application for discovery and search orders the Tribunal set out the broad background circumstances as follows:3
[7] Ms Guo was employed by PricewaterhouseCoopers (PwC) full-time from about February 2009 until approximately January 2010
[8] It would appear that from about mid-2009 PwC began to hold concerns about Ms Guo’s health. By mid-November 2009 those concerns led PwC to contact Dr SJ Culpan now retired, but then a registered medical practitioner who practised at CityMed. Ms Guo met with Dr Culpan on 20 November 2009 and on 22 January 2010.
[9] In August 2015, some 5.8 years after these events, Ms Guo sent IPP 6 requests to both PwC and Dr Culpan. The terms of those requests and the degree to which PwC and Dr Culpan complied with their responsibilities under [the Privacy Act 1993] have been put in issue by Ms Guo in two sets of proceedings under that Act:
[9.1] HRRT024/2016: Guo v PwC
[9.2] HRRT025/2016: Guo v Culpan.
[10] The proceeding against Dr Culpan was struck out by the Tribunal on 19 June 2018 because at the substantive hearing Ms Guo refused to answer questions in cross-examination by Dr Culpan’s counsel. See Guo v Culpan [2018] NZHRRT 25 (19 June 2018). Ms Guo’s appeal to the High Court was dismissed in Guo v Culpan [2019] NZHC 1963. The decision of the High Court was unsuccessfully challenged in the Court of Appeal (Guo v Culpan
1 Guo v PwC (Further Discovery) [2022] NZHRRT 6.
2 Ms Guo originally sought to appeal the Tribunal’s Decision but withdrew the appeal after PwC applied to strike it out on the basis that s 123 of the Human Rights Act 1993 does not permit appeals of interlocutory deicsions: see Guo v PricewaterhouseCoopers [2022] NZHC 1117.
3 Guo v PwC (Discovery and Search Order) [2021] NZHRRT 22.
[2020] NZCA 293) and Ms Guo’s application to recall that judgment on an issue of natural justice was dismissed in Guo v Culpan [2020] NZCA 377. Although Ms Guo was unsuccessful in her recall application the Court of Appeal did grant leave for her to file an appeal in relation to her parallel judicial review proceedings. Little, if any, of this litigation is relevant to the present decision other than as background.
[11] For reasons explained in the eleven case management Minutes earlier referred to, the proceedings against PwC have taken longer to bring to a hearing.
[4] In its Decision the Tribunal summarised the plaintiff’s key allegations in the statement of claim dated 4 May 2016 filed in the Tribunal as follows:4
[16.1] On 28 August 2015 Ms Guo made an IPP 6 request to PwC.
[16.2] PwC did not thereafter respond within the 20 working days allowed by [the Privacy Act 1993], s 40(1).
[16.3] When on 2 October 2015 PwC did provide personal information to Ms Guo, that disclosure was incomplete.
[16.4] PwC wanted to obstruct the course of justice and asked their lawyer to lie about PwC’s intentional breaches of the Act in order to frustrate the inquiry by the Privacy Commissioner.
[16.5] PwC did not allow the Commissioner’s investigating officer to enter PwC’s premises to inspect its system.
[5] Ms Guo alleges that PwC breached the Privacy Act 1993 by, amongst other things, failing to provide her with all the personal information to which she was entitled, including her “work emails”.
[6] PwC denies the alleged breach. In its Decision the Tribunal records PwC’s position that it provided Ms Guo with a complete duplicate copy of her full personnel file. PwC says it did not provide Ms Guo with copies of her “work emails” because these were personal information; and in any event they were not retrievable because the backup on the relevant server dated back only to 23 December 2011, which was after Ms Guo’s employment had ended.5
[7] Ms Guo strongly resists any suggestion by PwC that its obligation to provide her with personal information (whether by way of discovery or otherwise) is limited
4 Guo v PwC (Further Discovery), above n 1..
5 At [18.2] – [18.3].
to information on her personnel file. She submits this amounts to a “terminology game” being played by PwC to try to avoid providing her with information and documentation to which she is entitled.
Discovery application
[8] Ms Guo applied for discovery. The Tribunal has broad powers and a wide discretion to grant discovery on a formal or informal basis.6 On 12 May 2021 the Tribunal made discovery orders requiring each party to provide formal discovery by way of an affidavit of documents in a manner and form which complied with the relevant High Court Rules.7
[9] In seeking formal discovery Ms Guo drew the Tribunal’s attention to the following categories of communication she considered were discoverable by PwC:
(a)communications in relation to the events that Ms Guo alleges happened to her at PwC;
(b)communications in relation to the alleged different treatment towards Ms Guo at PwC;
(c)communications in relation to Ms Guo’s work performance ratings, work performance review results and year-end review results;
(d)communications in relation to Ms Guo’s complaints and her complaint letters;
(e)communications in relation to PwC’s alleged constructive dismissal of Ms Guo;
(f)communications in relation to Ms Guo’s health issue;
6 Boyce v Westpac New Zealand Ltd [2015] NZHRRT 31 at [9] – [11].
7 Guo v PwC (Discovery and Search Order), above n 3, at [44].
(g)communications about the applicant between PwC and Dr Culpan/CityMed;
(h)communications in relation to the applicant’s Privacy Act request; and
(i)a list of any documents that were lost (if asserted by PwC) with detailed information of the lost documents.
[10] The Tribunal ordered the parties to provide formal discovery for two reasons. First, the Tribunal considered there was clearly “a high degree of certainty Ms Guo [would] contest the discovery made by PwC” regardless of whether the parties were directed to give discovery informally or formally. In those circumstances the Tribunal considered that formal discovery could be justified on the basis that it would “facilitate the downstream determination of any challenge as to whether full discovery has been given.”8 However the Tribunal noted that:
[38] This decision should not be taken as a finding that there is an objective basis for Ms Guo’s distrust of PwC, that the extensive discovery “wish list” advanced by Ms Guo is justifiable or that the Tribunal is encouraging her to challenge PwC’s affidavit of documents. It is simply a pragmatic solution which preserves the position of both parties until clarity has emerged regarding the content of the affidavits of documents to be filed by Ms Guo and by PwC and the nature of any challenge made.
[11] Secondly, PwC was concerned that the applicant would use the documents for a collateral purpose, and formal discovery would “protect against use of the discovered documents outside these present proceedings.”9
Mr McCulloch’s Discovery Affidavit
[12] On 24 June 2021 the General Counsel of PwC, Stewart McCulloch, swore an affidavit of documents which PwC says complied with the Tribunal’s discovery orders. In this discovery affidavit Mr McCulloch deposed that, amongst other things, he understood the obligations imposed by the discovery order and had overseen searches for potentially discoverable documents. He outlined the steps taken to search for documents which may contain personal information about Ms Guo in response to her
8 At [37].
9 At [43].
Privacy Act request. These included: searching for and retrieving any files in PwC’s hard copy archive; investigating whether the applicant’s PwC email account file could be restored from archives including reviewing available back-ups from 2009 and 2010; making enquiries of individuals within PwC who were involved in responding to the applicant’s personal information request; and making further enquiries within PwC about whether any of the documents referred to by the applicant in the course of her correspondence were held in records that were readily available.
[13]The affidavit of documents included schedules setting out which documents:
(a)were in PwC’s control and which could be disclosed;
(b)were withheld for privilege and/or confidentiality; and
(c)were no longer in PwC’s control and why they had been lost or destroyed. This latter category included documents that had been lost or destroyed in the ordinary course of business, including documents held in Ms Guo’s PwC email account file. Mr McCulloch deposed that these had become irretrievable when PwC decommissioned its older ArcServe System which hosted Lotus Notes Mail Files pre-dating 23 December 2011. When decommissioning ArcServe, the old tape drive that read back-up tapes for the system was system was dismantled and disposed of.
Application for further and better discovery
[14] As the Tribunal anticipated, Ms Guo considers that PwC’s discovery was incomplete. She applied for further discovery from PwC and challenged its claims to privilege.
[15] In her affidavit in support of her application for further discovery and the release of privileged documents Ms Guo alleged that:
(a)significant parts of her personal information were missing from PwC’s disclosure;
(b)there was “broken numbering” in the affidavit of documents (i.e. there were numerical gaps between the document identification number attributed to the discovered documents) indicating that PwC had omitted documents from its formal discovery;
(c)Mr McCulloch’s explanation that certain documents had been lost or destroyed in 2011 was inconsistent with the Ministry of Business, Innovation and Employment’s (MBIE) requirements that PwC keep a specific and detailed record of Ms Guo’s employment history for at least six years. Ms Guo suggests this indicates that Mr McCulloch’s affidavit is unreliable and/or that PwC has selectively destroyed information for the purpose of defeating Ms Guo’s potential claims against it; and
(d)Mr McCulloch’s statement that PwC may never have been in control of documents that are in the possession, power and control of Dr Culpan or CityMed is unreliable in circumstances where PwC communicated with Ms Guo concerning Dr Culpan and/or CityMed.
[16] PwC opposed the application. It said it faithfully complied with the Tribunal’s discovery order; and there was no evidence of any reason to go behind Mr McCulloch’s affidavit. In submissions before me Mr Clarke for PwC emphasised (amongst other things) that:
(a)PwC had explained why certain documents were no longer in PwC’s control. On the assumption that Ms Guo’s “work emails” might have contained personal information about her, PwC had sought to retrieve any such emails but could not. As noted, the backups for the relevant server only went back to 23 December 2011. The ArcServe backup system in place prior to then had been decommissioned, dismantled and disposed of. However, PwC was able to discover its paper-based “personnel file” relating to Ms Guo as created during the course of her employment in 2009 and subsequently retained.
(b)PwC also filed an affidavit explaining “broken numbering” was the result of the standard discovery process whereby all potentially relevant documents had been collated, uploaded and assigned a unique document identification number10 before being reviewed for relevance and privilege. Once irrelevant documents (including duplicates and privileged documents) were removed, the list of discovered documents contained “broken numbering”.
[17] Ms Guo did not accept PwC’s evidence. In her reply affidavit she: argued that PwC was not entitled to withhold irrelevant documents; challenged the explanation as to “broken numbering”; and repeated her arguments that Mr McCulloch’s evidence was unreliable and PwC’s discovery incomplete.
The Tribunal’s Decision
[18] The Tribunal dismissed Ms Guo’s application for further discovery and her challenge to PwC’s privilege claims.
[19] In terms of the allegation that PwC’s discovery was incomplete, the Tribunal considered the relevant High Court Rules provide guidance when the Tribunal orders discovery – provided that they are applied with appropriate modifications and adapted to the Tribunal’s distinctive jurisdiction.11 The Tribunal noted that r 8.19 allows a Judge to make an order for particular discovery if it appears from evidence or from the nature or circumstances of the case that there are grounds to believe a party has not discovered one or more documents or a group of documents that should have been discovered.12 Mr Clarke emphasises that under that rule, there is a presumption that an affidavit of documents is conclusive; and the applicant for further discovery has the burden of establishing there are grounds to go behind the affidavit.13
[20]The Tribunal concluded that:14
10 In accordance with the listing and exchange protocol contained in sch 9 pt 2 of the High Court Rules 2016.
11 Guo v PwC (Further Discovery), above n 1, at [36].
12 At [37], citing Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
13 Lighter Quay Residents’ Society Inc v Waterfront Properties (2009) Ltd, above n 12, at [16(b)].
14 Guo v PwC (Further Discovery), above n 1.
[59] As none of the points advanced by Ms Guo come remotely close to providing grounds for believing that PwC has not discovered documents that should have been discovered, the presumption that PwC’s affidavit of documents is conclusive continues to apply.
[21] The Tribunal considered Ms Guo had not produced any evidence to support her allegation that “significant parts” of her personal information were “missing” from the discovery given by PwC.15 The Tribunal held that:16
It is not sufficient for a party applying under r 8.19 to nominate possible documents and then require the party resisting discovery to show that those documents are not relevant or do not exist. To allow that would reverse the onus set out in r 8.19 and could lead to speculative applications. See RHH Ltd v Anderson [2018] NZHC 2032 at [13].
[22] As against Ms Guo’s unsupported allegations, the Tribunal took into account that PwC (through its General Counsel) had sworn on oath that it understood its discovery obligations which it had fulfilled by diligently and proportionately searching for all documents it was required to discover.17
[23] The Tribunal considered that Ms Guo’s submission that PwC was required to discover irrelevant documents was “clearly untenable”.18 The Tribunal held that Ms Guo’s contention that the “broken numbering” in PwC’s affidavit of documents suggests documents had been withheld, rested on a misunderstanding of the discovery process that PwC had explained.19
[24] The Tribunal also considered PwC had sufficiently explained why some documents were no longer in PwC’s control. By contrast, the Tribunal considered that Ms Guo’s submission that she was entitled to receive these documents. and that it was “highly unlikely” PwC was unable to retrieve them, was speculative assertion which could not constitute grounds for belief under r 8.19.20 The Tribunal accepted PwC’s submissions that:21
15 At [40].
16 At [40]. Note that the RHH Ltd v Anderson decision referred to by the Tribunal is actually RHH Ltd v Anderson (No 2) [2018] NZHC 2032.
17 At [41].
18 At [39].
19 At [44] – [45].
20 At [53].
21 At [52], citing Weir v Eini [2020] NZHC 465 at [31] and Pyne Gould Corporation Ltd v Bath Street Capital Ltd [2020] NZHC 1247 at [31].
(a)PwC was aware of its obligation to preserve discoverable documents, but that this proceeding was not reasonably contemplated until 31 March 2016, six years after Ms Guo’s employment with PwC came to end on 19 February 2010.
(b)Documents were not lost or deliberately destroyed. Instead, electronic documents such as Ms Guo’s “work emails” and PwC “CEO Reports” were not recoverable after PwC decommissioned its ArcServe system in or around 2011; and any personal information which was not kept on Ms Guo’s personnel file cannot now be retrieved electronically.
(c)PwC had met its obligation to make a reasonable and proportionate search for potentially discoverable documents, including considering whether it could take steps to recover irretrievable documents.
(d)Mr McCulloch’s affidavit of documents explains why certain documents were not recoverable, as required by r 8.14.
[25] In relation to Ms Guo’s challenge to PwC’s claims to privilege, the Tribunal considered that it would require cogent evidence to uphold a challenge to an affidavit sworn by a solicitor as to the privileged status of documents.22
Ms Guo’s application for judicial review
[26] Ms Guo seeks judicial review of the Tribunal’s Decision. By way of relief Ms Guo asks the Court to set aside the Decision; direct the Tribunal to proceed with Ms Guo’s application; and award her unspecified remedies for PwC’s alleged breach of the discovery order. She also seeks costs.
Relevant legal principles
[27] There is no dispute that the Court has jurisdiction to review the Tribunal’s Decision.23
22 At [64], citing Foly’s Transport Ltd v Weddel New Zealand Ltd (in rec and liq) (1996) 9 PRNZ 392 (HC) at 396.
23 Alpine Energy Ltd v Waters [2014] NZHC 2381 at [5] – [7].
[28] Section 104(5) of the Human Rights Act 1993 (HRA) gives the Tribunal the power to regulate its procedure in such manner as the Tribunal thinks fit, subject to the Act and any regulations made under it.
[29]Section 105 of the HRA provides:
105Substantial 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.
[30]Section 106 of the HRA provides:
106Evidence in proceedings before Tribunal
(1)The Tribunal may—
(a)call for evidence and information from the parties or any other person:
(b)request or require the parties or any other person to attend the proceedings to give evidence:
(c)fully examine any witness:
(d)receive as evidence any statement, document, information, or matter that may, in its opinion, assist to deal effectively with the matter before it, whether or not it would be admissible in a court of law.
(2)The Tribunal may take evidence on oath, and for that purpose any member or officer of the Tribunal may administer an oath.
(3)The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.
(4)Subject to subsections (1) to (3), the Evidence Act 2006 shall apply to the Tribunal in the same manner as if the Tribunal were a court within the meaning of that Act.
[31] Regulation 16(1) of the Human Rights Review Tribunal Regulations 2002 provides:
Subject to decisions of the Tribunal, the Chairperson … may give any directions and do any other 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 2020 …
[32] I accept Mr Clarke’s submission that, taken together, these sections and regulations provide the Tribunal with very broad powers to do justice, even if that means avoiding the full rigour and associated rigidity of procedures governing proceedings in Court.24
Ms Guo’s grounds for review
[33] In his judgment dismissing PwC’s application for security for costs. Jagose J found that Ms Guo’s statement of claim did not identify anything in the Tribunal’s Decision that she alleged to be unlawful, or unfair or unreasonable in judicial review terms.25 Instead, Jagose J considered that Ms Guo appears dissatisfied with the Tribunal’s substantive decision rather than any reviewable deficiency by the Tribunal in the course of making its determination. As noted, Ms Guo initially sought to appeal the Tribunal’s decision. She only commenced these judicial review proceedings after she withdrew that appeal.
[34] However, in her written submissions Ms Guo submitted that in the process of reaching its decision to dismiss her application for further discovery the Tribunal failed:26
… failed to exercise its discretion fairly and reasonably and its decision constituted a procedural impropriety:
a. The Tribunal’s decision was based on error of fact
b. The Tribunal failed to give a reasoned decision
24 Alpine Energy Ltd v Human Rights Review Tribunal [2014] NZHC 2792 at [25].
25 Guo v Human Rights Review Tribunal [2022] NZHC 2937 at [7].
26 Ms Guo’s written submissions dated 16 November 2022 at [61].
c. The Tribunal failed to correctly apply law and case law
d. The Tribunal failed to properly apply substantive consistency
e. Its decision was incorrect and of substantive procedural unfairness and would have consequence on my right to a fair hearing [sic].
[35] Counsel for PwC submits that Ms Guo’s submissions do not fall neatly within the three traditional grounds of judicial review, which they submit are illegality/error of law, unreasonableness, and procedural impropriety.27 Although Ms Guo did not present her fulsome submissions with particular reference to these three grounds of review I agree it is appropriate to analyse her submissions in that way.
Decision based on error of fact – illegality
[36] There is a recognised ground of judicial review for error of law where the decision-maker proceeds on the basis of a mistake of fact.
[37]In Bryson v Three Foot Six Ltd the Supreme Court held:28
[26] 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 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”. Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test. …
[27] 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 appellant Judges keep this firmly in mind. …
27 Citing Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 491, in turn citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 410-411. In New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries,27 Cooke J held that the Minister “was bound to act in accordance with law, fairly and reasonably”.
28 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (footnotes omitted).
[38] That decision was made in the context of an appeal in relation to an error of law, but it applies equally to an application for judicial review. Ms Guo alleges that the Tribunal made three errors of fact, namely that it:
(a)Failed to give a careful analysis of the material and made a mistake of fact in finding that Ms Guo wanted to discover irrelevant documents. She alleges that the documents sought via further discovery were relevant and discoverable under the formal discovery order.
(b)Erred in ignoring that by omitting documents from Mr McCulloch’s affidavit of documents on the grounds of irrelevance, PwC continued to “play its terminology game” and withheld relevant documents by labelling them as irrelevant. As such Ms Guo says that PwC continued to interfere with her privacy.
(c)Made a mistake of fact in stating that Ms Guo had produced no evidence to prove the incompleteness and unreliability of Mr McCulloch’s affidavit of documents.
Discovery of irrelevant documents
[39] In her affidavit in reply dated 5 November 2021 Ms Guo challenges PwC’s evidence that the “broken numbering” in Mr McCulloch’s affidavit of documents was caused in part by the removal of irrelevant documents from the numbered initial bundle of potentially discoverable documents PwC had collated and numbered. Ms Guo says that PwC’s explanation that it withheld documents on the ground of irrelevance “is completely wrong because PwC is not entitled to withhold any documents about me on ground [sic] of irrelevance under the formal discovery order.”
[40] In its Decision the Tribunal recorded Ms Guo’s submission to be that the discovery order required PwC to discover irrelevant documents, and that its failure to do so rendered its discovery incomplete and Mr McCulloch’s affidavit “incomplete and unreliable”.29 The Tribunal held that Ms Guo’s submission that PwC is required
29 Guo v PwC (Further Discovery), above n 1, at [35.1].
to discover irrelevant documents is “so clearly untenable that it will not be addressed”.30
[41] Ms Guo says the Tribunal misunderstood her submission and made an error of fact in stating that she had applied for PwC to discover irrelevant documents. In submissions she explains that she did not require PwC to discover irrelevant documents. Instead, she challenged PwC’s assertion that the documents were irrelevant. Ms Guo submits that all information about her held by PwC was relevant and discoverable under the formal discovery orders.
[42] However, the Tribunal did not merely dismiss any suggestion that PwC was required to discover irrelevant documents. It went on to find that Ms Guo had not demonstrated (in terms of RHH Ltd v Anderson (No 2))31 that PwC had withheld any relevant documents it was required to disclose in the context of standard discovery. So, even if the Tribunal had misunderstood Ms Guo’s submission about PwC being “required to discover irrelevant documents”, the Tribunal went on to consider whether Ms Guo had established that PwC withheld discovery of discoverable documents. It concluded she had not.
Withholding relevant documents by labelling them as irrelevant – the “terminology game”
[43] Ms Guo alleges that PwC “played a terminology game” by turning her request for a copy of her personal file into a request for a copy of her personnel file in order to limit the scope of her request and then the scope of PwC’s discovery obligations.32 Ms Guo points out that in her correspondence with PwC in August and September 2015 she requested her “full personal file”, and submits that this would include all information held in PwC’s systems no matter whether it was stored in her personnel file or elsewhere.
[44] Ms Guo’s evidence is that her privacy requests to PwC on 27 August 2015 and 28 August 2015 were on the following terms:
30 At [39].
31 RHH Ltd v Anderson (No 2) [2018] NZHC 2039 at [12].
32 Statement of Claim at [19] and [20].
Dear PwC
Could you please email me my full personal file from the time I was employed by PwC?
Also, is there anyway I can retrieve my emails from my work email inbox? Thanks, Sylvia.
[45] Counsel for PwC submits that there is no meaningful distinction to be drawn between a “personal file” and a “personnel file”. They are both interchangeable terms used to describe an “employee file”. In any event, the Office of the Privacy Commissioner’s investigation was limited to the question whether PwC had provided the applicant with a full copy of her personnel file and whether it ought to have provided copies of her “work emails”. Counsel submits this in turn determines the limits of the Tribunal’s jurisdiction.33
[46] In any event, the Tribunal accepted Mr McCulloch’s evidence explaining why:34
(a)any electronic documents (such as Ms Guo’s “work emails” and “PwC’s CEO Reports”) were not recoverable after PwC decommissioned its ArcServe System in or around 2011; and
(b)any personal information which was not kept on Ms Guo’s personnel file cannot now be retrieved electronically.
[47] The Tribunal also accepted Mr McCulloch’s evidence that PwC had met its obligation to make a reasonable and proportionate search for potentially discoverable documents. In my view there was sufficient evidence from PwC from which the Tribunal could reach this conclusion. It made no error of law in doing so.
33 Privacy Act 1993, ss 82 and 83.
34 Guo v PwC (Further Discovery), above n 1, at [52.2].
Completeness and reliability of Mr McCulloch’s discovery affidavit
[48] The Tribunal concluded that there were no grounds to believe PwC had not discovered relevant documents.35 It recorded that Mr McCulloch had sworn on oath that PwC understood its discovery obligations and had fulfilled them by diligently and proportionately searching for all documents it was required to discover.36 As against this, the Tribunal found Ms Guo had not produced any evidence to support her allegation that “significant parts” of her personal information was “missing” from PwC’s discovery.37 The Tribunal found there were no grounds for Ms Guo’s suspicions arising out of the “broken numbering” point, and that the document numbering arising out of the discovery process had been fully explained in PwC’s evidence.38
[49] The Tribunal correctly applied relevant High Court authority that Ms Guo had the burden of establishing grounds to believe that PwC had not discovered relevant documents. In my view it was open to the Tribunal to conclude that Ms Guo had failed to discharge that onus. The Tribunal made no error of fact or law in reaching that conclusion.
Failure to give a reasoned decision – procedural impropriety
[50] Ms Guo submits that the tribunal failed to give a reasoned decision. I do not accept that submission. The Tribunal’s Decision runs to 16 pages and 74 paragraphs. It is logical and well structured. It identifies the relevant issues, sets out the competing submissions and explains why the Tribunal reached the conclusions and made the decisions it did.
Decision was incorrect and substantively/procedurally unfair – unreasonableness
[51] Ms Guo alleges that it was unreasonable for the Tribunal not to go behind Mr McCulloch’s affidavit of documents.39 She asserts that Mr McCulloch’s affidavit
35 At [42].
36 At [41].
37 At [40].
38 At [43] – [46].
39 Statement of Claim at [81].
“gave rise to many critical issues” including as to its completeness and reliability.40 Ms Guo alleges the Tribunal was unreasonable not to address these critical issues properly, and to disregard that PwC’s assertions were untenable and unjustified. She said the Tribunal’s conclusions were unprincipled.
[52] The standard test of unreasonableness in a judicial review context is whether a decision is so unreasonable that no reasonable decision-maker could have come to it.41 New Zealand courts have sometimes adopted a variable standard of review depending on the context, nature, and subject matter of the decision. In Guo v Culpan,42 the Court applied a standard of “anxious or heightened scrutiny” on the grounds that the underlying claim concerned alleged interference with the right to privacy.43
[53] I accept Mr Clarke’s submission that whichever test applies, it is plainly not met in this case. For the reasons set out in its Decision, it was not unreasonable for the Tribunal to find that there was no evidence or justification for it to go behind Mr McCulloch’s affidavit of documents. He swore on oath that PwC understood its discovery obligations and had diligently and proportionately taken steps to comply with those obligations. Mr McCulloch is a solicitor and General Counsel of PwC and was advised by independent solicitors. As against that, and as already noted, Ms Guo’s allegation that PwC had failed (deliberately) to comply with its discovery obligations was speculative and without evidential foundation.
Result
[54]Ms Guo’s application for judicial review is dismissed.
[55] If PwC wishes to seek costs it should file a memorandum of not more than five pages in length (excluding attachments) within 20 working days.
40 At [85].
41 Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223 [EWCA Civ] at 230.
42 Guo v Culpan [2019] NZHC 1963 (proceedings which are separate but related to these proceedings).
43 At [2] and [3].
[56] Ms Guo should then file any memorandum in response (of similar length) within a further 15 working days.
Robinson J
12
1