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Jeffries v Privacy Commissioner

Jeffries v Privacy Commissioner

Case [2010] NZSC 99 12 August 2010

Litigation Privilege

Unsolicited Communications

Dominant Purpose Test

Privacy Law

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IN THE SUPREME COURT OF NEW ZEALAND
SC 5/2010
[2010] NZSC 99
BETWEENWILLIAM PATRICK JEFFRIES
Appellant

ANDTHE PRIVACY COMMISSIONER
Respondent

Hearing:21 July 2010

Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:P D McKenzie QC and D H O'Leary for Appellant
K E Evans for Respondent

Judgment:12 August 2010

JUDGMENT OF THE COURT

A The appeal is dismissed.
BAny claim of privilege must be referred for the determination of the Privacy Commissioner in accordance with this judgment.
CNo order for costs is made.

REASONS
(Given by Elias CJ)
[1]     The appeal concerns a claim of litigation privilege in respect of information sought by the Privacy Commissioner under her statutory powers. The appellant, Mr Jeffries, is a barrister. In 2000 he was instructed to act for Interact Architects and Designers to recover unpaid professional fees, charged in respect of architectural and building supervisory work for Mr and Mrs Powell, an American couple with New Zealand residency. They had purchased a substantial property after obtaining approval under the Overseas Investment Act 1973 and had engaged Interact to design and supervise the construction of a home for them on the property. Interact applied for summary judgment on its claim, and Mr and Mrs Powell counterclaimed for breach of contract by Interact. They claimed that Interact’s breaches of contract had disrupted their plans to settle in New Zealand. Interact failed to obtain summary judgment in the District Court. There was an attempt at arbitration which was unsuccessful because of the illness of the arbitrator appointed, which provides some explanation for the ongoing delay in determining the dispute. The dispute remains unresolved.
[2]     In August 2003, Mr Jeffries applied to the New Zealand Immigration Service under the Official Information Act 1982 for information relating to Mr and Mrs Powell’s successful applications for residency permits. Mr and Mrs Powell were advised of the request and, concerned at the detail about their movements into and out of New Zealand mentioned by Mr Jeffries, suspected that he had already obtained information from either the New Zealand Immigration Service or the New Zealand Customs Service. They complained to the Privacy Commissioner under s 67 of the Privacy Act 1993, seeking investigation of the apparent interference with their privacy by the two government departments. The initial complaint was followed by two further complaints, in January 2004 and June 2004 respectively, against Mr Jeffries personally, as well as against others. The Privacy Commissioner decided to investigate the first two complaints. She had already made inquiries of Mr Jeffries in relation to the first complaint against the government departments, to which he had made no substantive response.
[3]     On 6 April 2006, the Privacy Commissioner gave notice under s 91(4) of the Privacy Act requiring Mr Jeffries to disclose details of any information he had obtained as to the movements of Mr and Mrs Powell and the circumstances in which the information had come into his possession, including the name of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jeffries v Privacy Commissioner

Details

AGLC: Jeffries v Privacy Commissioner [2010] NZSC 99
Case: [2010] NZSC 99
Decision Date: 12 August 2010

CaseChat Overview and Summary

Jeffries v Privacy Commissioner involved a claim of litigation privilege in respect of information sought by the Privacy Commissioner under her statutory powers. The Privacy Commissioner sought information from the appellant, Mr Jeffries, regarding his interactions with Mr and Mrs Powell. The appellant claimed that the information he obtained was protected by litigation privilege. The Court of Appeal had summarily dismissed the claim of privilege, but Mr Jeffries appealed to the Supreme Court of New Zealand. The Supreme Court held that unsolicited communications may be privileged in the hands of a party or the party's legal adviser. The claim of privilege, however, should not have been entertained by the Court of Appeal as it was premature and without foundation. The claim of privilege must be raised by the appellant in answer to the Privacy Commissioner's request under section 91(4) of the Privacy Act 1993. If litigation privilege is asserted in terms of section 94(1) of the Privacy Act, it is for the Privacy Commissioner to determine the validity of the claim, in accordance with section 56 of the Evidence Act 2006 and after receipt of the information sought, as required by section 94(1A) of the Privacy Act. The appeal was dismissed.

Orders