Jeffries v The Privacy Commissioner - [2009] NZCA 567

IN THE COURT OF APPEAL OF NEW ZEALAND
CA339/2008
[2009] NZCA 567
BETWEENWILLIAM PATRICK JEFFRIES

Appellant

ANDTHE PRIVACY COMMISSIONER

Respondent

Hearing:11 June 2009

Court:Hammond, Chambers and Baragwanath JJ
Counsel:P D McKenzie QC for Appellant

C R Gwyn and D Baltakmens for Respondent

Judgment:3 December 2009 at 9.30am

JUDGMENT OF THE COURT

A The appellant’s application to adduce further evidence is granted.
B The appeal is dismissed.
CThe appellant must pay the respondent costs on a Band A basis for a standard appeal and usual disbursements.

____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
[1]        The Privacy Commissioner has given notice under s 91(4) of the Privacy Act 1993 requiring the appellant William Patrick Jeffries, a barrister, to disclose the source of information about the movements into and out of New Zealand of an American family, Mr and Mrs Powell and their children. Such information, contained in letters written by the appellant and a Member of Parliament to the New Zealand Immigration Service (NZIS), could only have come from NZIS records which are the subject of strict confidentiality.
[2]        The appellant appeals against a judgment of the High Court delivered by Ronald Young J dismissing his application for judicial review of the decision of the Privacy Commissioner to issue the notice: HC WN CIV 2006-485-860 22 May 2008.
Context of appeal
[3]        The Powells obtained consent under the Overseas Investment Act 1973 to buy Waitai Station on D’Urville Island. The circumstances were discussed in a judgment of the High Court (Jeffries v Attorney-General HC WN CIV 2006-485-2161 20 May 2008), against which a judgment on appeal is pending: CA338/2008. Part of the development of the station included the construction of a house on the property. The Powells engaged Interact, a firm providing architectural and building services. It in turn instructed the appellant as counsel in a dispute with the Powells in which Interact claimed fees and the Powells counterclaimed alleging breach of contract by Interact. Interact made an unsuccessful application for summary judgment and the parties went to arbitration. Various tribulations, including illness of the arbitrator and insolvency of Interact, stalled resolution of the case which remains undetermined.
[4]        In July and August 2000 the appellant and the Hon Dr Nick Smith MP wrote to NZIS letters in essentially identical terms seeking information under the Official Information Act 1982 about the Powells’ immigration status and activities. At around that time, the appellant, while acting for Interact in litigation, used information as to the Powells’ immigration status and entry into and exit from New Zealand in cross-examination of Mr Powell.
[5]        The Powells obtained copies of the Official Information Act requests and complained to the Privacy Commissioner that someone in NZIS or New Zealand Customs Service (Customs) had improperly released the information.
[6]        In response to the Privacy Commissioner’s inquiry Customs said it had not been asked for the information and NZIS, while admitting it had been asked for the information, said it had declined to provide it.
[7]        The…

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 The Privacy Commissioner

Details

AGLC: Jeffries v The Privacy Commissioner [2009] NZCA 567
Case: [2009] NZCA 567
Decision Date: 3 December 2009

CaseChat Overview and Summary

Jeffries, a barrister, appeals against a High Court judgment dismissing his application for judicial review of a decision of the Privacy Commissioner requiring him to disclose the source of information about the movements into and out of New Zealand of an American family, Mr and Mrs Powell and their children. The information, contained in letters written by Jeffries and a Member of Parliament to the New Zealand Immigration Service (NZIS), could only have come from NZIS records which are the subject of strict confidentiality. The Powells complained to the Privacy Commissioner that someone in NZIS or New Zealand Customs Service (Customs) had improperly released the information. Customs said it had not been asked for the information and NZIS, while admitting it had been asked for the information, said it had declined to provide it. The Commissioner decided to investigate the complaints and issued a notice under s 91(4) of the Privacy Act 1993 requiring Jeffries to disclose the source of information. Jeffries did not comply with the notice and commenced proceedings for judicial review. The Court of Appeal held that the Commissioner was entitled to issue the s 91(4) notice to Jeffries and that he was not entitled to privilege in response to the Commissioner’s notice. The appeal was dismissed and Jeffries must pay the respondent costs on a Band A basis for a standard appeal and usual disbursements.

Orders