Lovatt v Health New Zealand - Te Whatu Ora
[2024] NZHC 2538
•6 September 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-003016
[2024] NZHC 2538
BETWEEN AMY SUE VAN WEY LOVATT
Appellant
AND
HEALTH NEW ZEALAND – TE WHATU ORA
Respondent
Hearing: 1 August 2024 Appearances:
K T Dalziel for Appellant (via VMR) P White for Respondent
Judgment:
6 September 2024
Further submissions:
8 and 27 August 2024
JUDGMENT OF ANDERSON J
This judgment was delivered by me on 6 September 2024 at 3:00 pm pursuant to r 11.5 of the High Court Rules 2016.
.…………………………..
Registrar/Deputy Registrar
Solicitors:
Mortlock McCormack Law, Christchurch
VAN WEY LOVATT v HEALTH NEW ZEALAND – TE WHATU ORA [2024] NZHC 2538 [6 September 2024]
Table of Contents
Para No
Background[4]
The Tribunal proceeding [18]
Section 98 gateway[22]
Tribunal decision[24]
Grounds of appeal[28]
Scheme of pt 5 of the Act[29]
Complaints[30]
Investigations[36]
Proceedings[46]
Decision[49]
Interpretation of s 98(1)(b)[51]
Application of s 98(1)(b)[54]
Interpretation and application of s 98(1)(d)[62]
Alternative interpretation?[68]
Policy and statutory purpose [72]
Legislative history[74]
Policy/access to justice[77]
Statutory context[79]
Conclusion[81]
Result[83]
[1] Section 98 of the Privacy Act 20201 is a jurisdictional “gateway” to the Human Rights Review Tribunal. It prescribes the only circumstances in which an aggrieved individual may commence proceedings in the Tribunal for review in respect of complaints received by the Privacy Commissioner.
[2] Dr Amy Van Wey Lovatt appeals a decision of the Tribunal2 striking out her amended statement of claim against Waikato District Health Board (WDHB) (now Te Whatu Ora – Health New Zealand (HNZ))3 on the basis that it had no jurisdiction under s 98 over the additional matters raised in it.4 To my knowledge, this is the first case in this Court on the interpretation and application of the s 98 gateway.5
[3] To succeed on the appeal, Dr Van Wey Lovatt bears the onus of satisfying me that I should differ from the Tribunal’s decision.6 However, I am responsible for arriving at my own assessment of the merits.7
Background
[4] From 2013 to 2019, Dr Van Wey Lovatt received health treatment at Waikato Hospital. Dr Van Wey Lovatt became dissatisfied with her treatment and her interactions there. She made numerous requests for information from HNZ and complained to various agencies about HNZ and members of its staff.
[5] To deal with the intensity, range and number of the communications being received from Dr Van Wey Lovatt, HNZ required that all communications from Dr Van Wey Lovatt be sent to Ms Christine Chandler, the Consumer Engagement Manager for WDHB. Dr Van Wey Lovatt strongly objected to that strategy and did not comply. HNZ then electronically routed all her emails to Ms Chandler through auto-forwarding.
1 All references are to this Act unless otherwise stated.
2 Van Wey Lovatt v Te Whatu Ora — Health New Zealand [2023] NZHRRT 37.
3 Unless context necessitates it, I refer throughout to HNZ.
4 An appeal under the Human Rights Act 1993, s 123.
5 It is common ground that the 2020 Act applies on the issue of jurisdiction.
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [4].
7 At [5].
[6] On 5 February 2020 Dr Van Wey Lovatt made a request to HNZ for information. HNZ responded on 2 March 2020 and provided a subset of the information but refused the balance. HNZ cited reasons for its refusal.
[7] On 24 June 2020 the Commissioner notified HNZ that it was investigating a complaint from Dr Van Wey Lovatt. The notification advised:
2.This is a notification to your agency that we are investigating this matter. It sets out the facts as the complainant has put them to us, and identifies why the complaint may raise issues under the Code.
3.Notification is the first step in our investigation process. It gives the agency that is the subject of the complaint the opportunity to provide its comments on what has happened before we decide what our next steps will be.
[8] The notification raised two actions of HNZ. The first was HNZ’s refusal to provide all information in the 5 February 2020 request. The second was a complaint by Dr Van Wey Lovatt that HNZ had changed her address without her authorisation. The notification explained that these may raise issues respectively under rr 5 and 6 of the Health Information Privacy Code 1994.
[9] The 24 June 2020 notification to HNZ in fact followed a number of communications between Dr Van Wey Lovatt and the Commissioner in which she raised the above issues as well as a range of other actions that she alleged interfered with her privacy. Dr Van Wey Lovatt’s side of these communications to the Commissioner are documents I gave leave to be adduced on appeal that were not before the Tribunal.8 They are emails from Dr Van Wey Lovatt to the Commissioner and the Police dated 5 March 2020 making “an official complaint” to the Commissioner; her follow up email to the same agencies on 17 March 2020; a lengthy submission dated 15 April 2020; and a further letter dated 5 May 2020.
[10] In these communications, Dr Van Wey Lovatt complained that the steps HNZ had put in place were an unlawful interception of her private communications. She considered that this and other associated actions were a breach of HNZ’s privacy obligations. Without intending to be exhaustive, the actions raised included
8 This was not opposed by HNZ.
Ms Chandler sending Dr Van Wey Lovatt a trespass warning, alleged false statements to the Police by HNZ staff, and alleged failure to correct inaccurate information including her address. She also complained that the Health Commissioner and Deputy Health Commissioner had not acted on her concerns when she had raised them.
[11] Because Dr Van Wey Lovatt did not place before the Court the Commissioner’s side of the communications, the content of these can only be inferred from her responses.9 In particular, Dr Van Wey Lovatt’s 5 May 2020 letter recorded some of the responses she had received from the Commissioner:
(a)The Commissioner had advised her of “decisions made regarding what the Privacy Commissioner will assist [her] with”.
(b)That interception of emails “does not raise any issues we can investigate under the Code…”.
(c)That “[her] 10 February 2020 request for correction was actioned”, relating to a complaint about correction of her physical address.
(d)That some issues she had raised should be addressed with the Ombudsman or the Health and Disability Commissioner.10
[12] HNZ was probably aware of the substance of all of Dr Van Wey Lovatt’s concerns about its actions from its own dealings with her. However, HNZ was not copied in on Dr Van Wey Lovatt’s correspondence with the Commissioner. All that HNZ received was the Commissioner’s 24 June 2020 notification that the Commissioner was investigating a complaint about the two actions detailed. On 22 July 2020 HNZ responded substantively to the Commissioner’s notification on those issues.
9 Dr Van Wey Lovatt’s 15 April 2020 letter was a lengthy submission responding to a request for clarification from the Commissioner. The 5 May 2020 letter responded to a review of that submission by the Commissioner dated 28 April 2020. The Commissioner then responded to the 5 May 2020 letter on 24 June 2020.
10 This is also evident from an email Dr Van Wey Lovatt subsequently wrote to the Ombudsman on
11 June 2020, copied to the Commissioner, raising a complaint about interception of correspondence, issuing of the trespass notice, failure to adhere to the Official Information Act 1982 and the Privacy Act 2020.
[13] On 24 August 2020 the Commissioner issued a preliminary decision to Dr Van Wey Lovatt and sought her comment. Dr Van Wey Lovatt did not place this before the Tribunal or the Court. She has provided her response dated 21 September 2020. In this, Dr Van Wey Lovatt expressed concern about several issues that the Commissioner had not addressed in its preliminary decision. As is customary, HNZ did not receive a copy of either the preliminary decision or the response.
[14] On 6 October 2020 the Commissioner sent its final decision to Dr Van Wey Lovatt . The Commissioner concluded that HNZ had proper basis for the decision to refuse to provide the balance of the information requested by Dr Van Wey Lovatt on 5 February 2020. Hence, HNZ had not breached of r 6 (right to access information). In respect of the change of address, the Commissioner concluded there was insufficient evidence that HNZ had breached r 5 (obligation to protect information).
[15] In a separate part of the decision letter, the Commissioner responded to Dr Van Wey Lovatt’s concerns about matters the Commissioner had not addressed. This included reminding Dr Van Wey Lovatt that she had already been advised that the Commissioner was not going to investigate allegations about HNZ intercepting communications, the correction of address, and matters that should go to the Ombudsman or other agency. For some matters the Commissioner indicated that if further information was provided or steps were taken by Dr Van Wey Lovatt the Commissioner might then decide to investigate.
[16] The Commissioner advised that if Dr Van Wey Lovatt wished to take her complaint about the change of address or response to her 5 February request further, she would be free to do so by taking a case to the Tribunal. The letter concluded:
As part of initiating proceedings in the Tribunal you will have to show that the Privacy Commissioner has conducted an investigation into this complaint. I enclose a Certificate of Investigation that you should give to the Tribunal for that purpose.
[17] The Certificate of Investigation dated 6 October 2020 confirmed that the Commissioner had investigated the response to the 5 February request for information and change of address under rr 5 and 6 of the Code.
The Tribunal proceeding
[18] On 1 April 2021 Dr Van Wey Lovatt filed a claim in the Tribunal alleging that HNZ had breached rr 5 and 6 of the Health Information Privacy Code (Code) in respect to the information request and unauthorised change of address issues. The statement of claim was accompanied by the Certificate of Investigation.
[19] On 15 March 2022 Dr Van Wey Lovatt filed an amended statement of claim which included the following additional alleged breaches of the Code:
(a)Rule 3: HNZ failed to comply with the transparency requirements under that rule, relating to access to her information, and refused to provide HNZ’s privacy policies.
(b)Rule 5: HNZ committed additional breaches of that rule by allowing unauthorised access to Dr Van Wey Lovatt’s information by staff, including Ms Chandler, by allowing Ms Chandler’s interception of Dr Van Wey Lovatt’s communications and by allegedly destructing or altering her information.
(c)Rule 7: HNZ failed to correct inaccurate reports and information when this was brought to its attention, or to amend reports to include Dr Van Wey Lovatt’s own amendments and those of her physician.
(d)Rule 8: HNZ had breached Rule 8 of the Code in connection with not correcting her address and subsequently provided misleading, inaccurate and false information to the Privacy Commissioner, the Health and Disability Commissioner, the Police and other organisations.
(e)Rule 10: HNZ employees used Dr Van Wey Lovatt’s information for a purpose other than for which it was obtained, without her consent.
(f)Rule 11: HNZ employees disclosed Dr Van Wey Lovatt’s health information to other agencies, without her consent.
[20] As is apparent, these further alleged breaches were not founded on the 5 February 2020 request for information nor on the assertion that HNZ had changed Dr Van Wey Lovatt’s address without her authorisation. Dr Van Wey Lovatt’s additional allegation of failure to ensure information was accurate (r 8) had some relation to the change of address issue but was in substance an allegation that HNZ ought to have ensured her address was accurate, not about changing her address without authority.
[21] HNZ applied to strike out the additional matters on the basis that there was no applicable route to the Tribunal under s 98.11
Section 98 gateway
[22]Section 98(1) of the Act states:
(1)An aggrieved individual, a representative on behalf of an aggrieved individual, or a representative lawfully acting on behalf of a class of aggrieved individuals may commence proceedings in the Tribunal in respect of a complaint received by the Commissioner, or a matter investigated under subpart 2, in any case where—
(i)the Commissioner decides, under section 77(2)(a), not to investigate the complaint; or
(ii)the Commissioner, having commenced an investigation, decides not to further investigate the complaint or matter; or
(iii)the Commissioner does not make a determination under section 91(2), 93(2), or 94(1) in respect of the complaint or matter; or
(iv)the Commissioner determines that the complaint does not have substance, or that the matter should not be proceeded with; or
(v)the Commissioner determines that the complaint has substance, or the matter should be proceeded with, but does not refer the complaint or matter to the Director; or
(vi)the Commissioner makes an access direction under section 92, but an aggrieved individual is not satisfied with the terms of the access direction; or
(vii)the Commissioner makes an access direction under section 92, but the aggrieved individual or aggrieved individuals seek
11 Alternatively, limitation issues were raised but I need not consider them.
1 or more remedies under section 102 (whether or not the individual or individuals are satisfied with the terms of the access direction); or
(viii)the Director decides not to commence proceedings in respect of the complaint or matter referred to the Director by the Commissioner; or
(ix)the Director notifies the aggrieved individual or individuals that the Director agrees to the aggrieved individual or individuals commencing proceedings in respect of the complaint or matter referred to the Director by the Commissioner.
[23] The section goes on to provide for the timeframes within which an aggrieved person must commence proceedings.
Tribunal decision
[24] The Tribunal considered that the only circumstance within s 98(1)(a)-(e) where a Tribunal proceeding can be brought by an individual where a complaint has not been investigated by the Commissioner is under s 98(1)(a).12 It is common ground that subs (1)(a) is inapplicable as it is only engaged where the Commissioner has tried to secure a settlement or an assurance without commencing an investigation.13
[25] The Tribunal concluded that the effect of s 98 is to create the same “filtering mechanism” that applied under the Privacy Act 1993 (1993 Act).14 As relevant, the Tribunal will only have jurisdiction where:15
… there has been a complaint made to the Commissioner, the Commissioner has notified the respondent of the details of the complaint, and the complaint has been the subject of an investigation, whether or not that investigation was completed.
[26] It recorded its conclusion that “an investigation into each of the additional alleged breaches in the amended claim is required for the Tribunal to have jurisdiction” under s 98.16
12 Van Wey Lovatt v Te Whatu Ora – Health New Zealand, above n 2, at [22].
13 At [22]; and Privacy Act, s 77(2)(a).
14 At [24].
15 At [24] (footnote omitted).
16 At [25].
[27] The Tribunal went on to consider the additional issues raised in the amended claim and concluded that none of these was investigated in accordance with the investigation procedures in the Act.17 Accordingly, the Tribunal struck out the amended statement of claim, such that Dr Van Wey Lovatt’s case reverted to that pleaded in her original statement of claim.
Grounds of appeal
[28]The grounds of appeal are:
(a)The additional matters raised in the amended claim were matters of complaint to the Commissioner, but the Commissioner decided not to investigate them under s 73(1). The Tribunal was wrong to conclude that s 98(1)(b) did not apply to that circumstance.
(b)Therefore, the Tribunal erred in finding that the Commissioner did not receive and investigate the additional matters in the amended claim.
(c)Alternatively, s 98(1)(d) was applicable. The Tribunal was wrong to conclude that this is engaged only where an investigation has been completed.18
(d)The Tribunal failed to exercise the care and caution required in exercising the strike out jurisdiction.
Scheme of pt 5 of the Act
[29] Disposition of the appeal requires an analysis of the scheme of pt 5 of the Act which deals with “[c]omplaints, investigations, and proceedings”.
17 At [54].
18 This ground was advanced in Dr Van Wey Lovatt’s written submissions but was not raised in her notice of appeal. I granted leave to amend the notice of appeal and consequential leave for HNZ to respond and Dr Van Wey Lovatt to reply in supplementary written submissions following the hearing.
Complaints
[30] Subpart 1 addresses complaints. Section 70 provides that a complaint (which is undefined) may be made “alleging that an action of an agency is, or appears to be, an interference with the privacy of an individual”. A complaint may be made together with one or more other complaints.19 Complaints may be made in any form but need to be committed to writing as soon as practicable and the Commissioner will reasonably assist with this.20 As Ms Dalziel for Dr Van Wey Lovatt submitted, the legislature recognises that lay people will be making complaints and no particular formality is required.
[31] Section 73(1) outlines the procedure on receipt of the complaint. It provides that: “[a]s soon as practicable after receiving a complaint, the Commissioner must consider the complaint” and decide to do one of five things:
(a)decide, in accordance with section 74, not to investigate the complaint; or
(b)decide, in accordance with section 75, to refer the complaint to another person; or
(c)decide, in accordance with section 76, to refer the complaint, or part of the complaint, to an overseas privacy enforcement authority; or
(d)decide, in accordance with section 77, to explore the possibility of securing a settlement between the complainant and the agency whose action is the subject of the complaint; or
(e)decide to investigate the complaint in accordance with subpart 2.
[32] Section 73(2) requires the Commissioner, as soon as practicable after making a decision under s 73(1), to advise the complainant of that decision. If the decision is made under subs (1)(a) the Commissioner must advise the complainant of the reasons for the decision.
[33] Sections 74–77 then expand on the decision options in s 73(1)(a)–(d). Section 74 provides that the “Commissioner may decide not to investigate a complaint if, in the Commissioner’s opinion” certain stated circumstances are present. Among
19 Section 70(2).
20 Section 72.
other things, these include where the complainant has not made reasonable efforts to resolve the complaint directly with the agency concerned,21 where the subject of the complaint is trivial,22 and where the complaint is frivolous, vexatious, or not made in good faith.23 Section 74(2) provides that despite the matters set out in s 74(1), the Commissioner has a discretion to decide not to investigate a complaint if it appears to him or her that, having regard to all the circumstances of the case, an investigation is unnecessary.
[34] Sections 75 and 76 apply if, after receiving a complaint, the Commissioner considers that it relates in whole or in part to a matter more properly within the jurisdiction of another person such as the Ombudsman or Health and Disability Commissioner or of an overseas privacy enforcement agency. In that event, the Commissioner must consult with that person or agency and decide the appropriate means of dealing with the complaint. If the Commissioner decides that the complaint should be dealt with in whole or in part by such person or agency, as soon as practicable the Commissioner must refer it or the appropriate part of it to that person or agency.
[35] By s 77, the Commissioner may decide to use best endeavours to settle the complaint without commencing an investigation. If unable to secure a settlement or satisfactory assurance from the relevant agency, the Commissioner may decide not to investigate the complaint if satisfied of any of the matters in s 74 or the Commissioner considers further action is unnecessary or inappropriate. In that event, the Commissioner must notify the complainant of the decision.
Investigations
[36] Subpart 2 addresses “Investigations by Commissioner”. The Commissioner can conduct investigations into complaints received but can also investigate “any matter in respect of which a complaint may be made” on his or her own initiative.24 I will refer to the latter as an own-motion investigation.
21 Section 74(1)(a).
22 Section 74(1)(i).
23 Section 74(1)(j).
24 Section 79.
[37]By s 80 the Act provides:
(1)As the first step of an investigation, the Commissioner must notify the respondent that the Commissioner is commencing an investigation.
(2)A notice given under subsection (1) must set out—
(a)the details of—
(i) the complaint; or
(ii) the subject of the investigation; and
(b)the right to provide, within a reasonable time, a written response to the Commissioner.
[38] The wording of s 80(2) reflects that an investigation can be of a “complaint” or one that is the “subject of the investigation” initiated by the Commissioner.25 Part 5 adopts different nomenclature throughout for an investigation responding to a complaint, as distinct from an own-motion investigation.
[39] Section 81 outlines the conduct of an investigation. The Commissioner may hear and obtain information from any person and make any inquiries. There is no right to a hearing. Section 81(3) gives the Commissioner a discretion to decide to take no further action on a complaint or matter at “any time during an investigation” if the Commissioner “is satisfied of any of the matters set out in section 74” or “considers that any further action is unnecessary or inappropriate.”
[40] In that event, s 81(4) requires the Commissioner, as soon as practicable, to notify the “parties” of that decision and the reasons for it. As relevant, where an investigation is conducted on a complaint, pt 5 defines the “parties” to be the complainant whose complaint is the subject of the investigation and the respondent.26 The latter is in turn defined to mean “an agency whose action is the subject of an investigation under subpart 2”.27 Where the Commissioner conducts an own-motion investigation, the parties are the aggrieved individual(s) (if known) and the respondent.28
25 Section 81.
26 Section 68(a).
27 Section 68.
28 Section 68(b).
[41] By s 83, during an investigation the Commissioner may decide to use best endeavours to settle it (in the case of a complaint) or secure a satisfactory assurance from the agency concerned. The Commissioner may also refer the complaint or matter that is the subject of the investigation to the Director without conducting any further investigation, where, among other things, he or she is unable to secure a settlement or satisfactory assurance.29
[42] Sections 91 and 94 address the procedure “after the Commissioner has completed an investigation”. Section 91 applies where the investigation relates to access to personal information. Section 94 applies to other types of investigations.30
[43]As relevant, they are identical. Section 91 provides that:
(1)This section applies after the Commissioner has completed an investigation…
(2)The Commissioner may, —
(a)in the case of an investigation conducted on a complaint, make a determination that the complaint —
(i)has substance; or
(ii)does not have substance
(b)in the case of an investigation conducted on the Commissioner’s own initiative, make a determination that the matter that is the subject of the investigation —
(i)should be proceeded with; or
(ii)should not be proceeded with.
…
[44] Thus, a complaint has “substance” or not, as distinct from a matter that is the subject of an own-motion investigation which may be “proceeded with” or not.
[45] Sections 91 and 94 specify what steps the Commissioner is to take if there is a determination that the complaint has substance or the matter should be proceeded with.
29 Section 84.
30 There is also s 93 that applies to investigations relating to charging, but there is expressly no ability for an individual to bring a claim in the Tribunal from those investigations (s 93(5)).
In that event, the Commissioner is required to use best endeavours to settle the complaint or seek an assurance from the agency.31 If unable to achieve that, the Commissioner can refer the complaint or matter to the Director and/or take any other action.32 In the case of an investigation relating to access to personal information, the Commissioner may also make an access direction.33 The Commissioner is required to give notice as soon as practicable to the parties of the determination made or not made in ss 91 or 94.34
Proceedings
[46] Subpart 3 addresses “Proceedings before the [Tribunal]”. Section 97 relates to the commencement of Tribunal proceedings by the Director of Human Rights Proceedings where a matter has been referred to the Director by the Commissioner. In essence, the circumstances where the Commissioner can refer a matter to the Director are where the Commissioner’s best endeavours to settle a complaint or secure an assurance from the agency concerned have failed at the points in the statutory process where the Commissioner can or is required to seek to do so.35
[47] Section 98 (set out earlier at [22]) then provides for the circumstances in which an aggrieved individual may themselves commence proceedings in the Tribunal “in respect of a complaint received by the Commissioner, or a matter investigated under subpart 2”:
(a)Sub-section 98(1)(a) applies only where the Commissioner decides to use best endeavours to settle a complaint without commencing an investigation under s 77 and if that fails, decides not to investigate.
(b)Sub-section 98(1)(b) addresses where an investigation has been commenced by the Commissioner into the complaint or matter, but the
31 Section 91(3) and (4); and s 94(2).
32 Section 91(5)(c); and s 94(4)(b).
33 Section 91(5)(a).
34 Section 91(7); and s 94(6).
35 Those points are where the Commissioner has attempted to settle without commencing an investigation under s 77 (referral under s 78); where the Commissioner has decided to seek to settle the complaint during an investigation under s 83 (referral under s 84); and where the Commissioner has determined a complaint has substance but has failed to achieve a settlement under ss 91 and 94 (referral under ss 91(5)(b) and 94(4)(a)).
Commissioner decides not to investigate further (that is, decides not to complete the investigation).
(c)Sub-section 98(1)(c) picks up the circumstances where, after completing an investigation, the Commissioner does not exercise the discretion to make a determination as to whether or not a complaint has substance, or a matter should be proceeded with (there being no obligation on the Commissioner to do so).36
(d)Sub-sections 98(1)(d) and (e) then deal with where, after completion of an investigation, the Commissioner does make a determination. They replicate the wording set out earlier in ss 91 and 94 as to the determinations the Commissioner may make. Section 98(1)(d) permits an aggrieved person to go to the Tribunal where the determination was that the complaint did not have substance or matter should not be proceeded with. Section 98(1)(e) permits an aggrieved person to proceed to the Tribunal where there has been the opposite determination, but the Commissioner has not exercised the discretion to refer the complaint or matter to the Tribunal.
(e)The remaining sub-sections (subss 98(1)(f)–(i)) relate to access directions, circumstances where the Director decides not to commence proceedings after referral from the Commissioner, and where the Director agrees to proceedings being brought by the aggrieved individual.
[48] The timeframes within which a claim may be brought are addressed in ss 98(2) to 98(8).
Decision
[49] Dr Van Wey Lovatt submits that the matters in the amended claim “existed at the commencement of the Privacy Commissioner’s investigation, but the Privacy
36 Sections 91(2), 93(2) and 94(1). Section 93(2) is irrelevant for present purposes as it relates to charging.
Commissioner decided not to investigate them further” which she says falls within s 98(1)(b) or s 98(1)(d). Dr Van Wey Lovatt acknowledges that the Commissioner “refused to advance these [additional] matters within the investigation the Privacy Commissioner commenced”. She submits that this should not create a statutory bar to having the matters referred to the Tribunal.
[50] For the reasons set out below s 98(1)(b) and s 98(1)(d) do not apply. The Tribunal was correct to strike out the amended claim.
Interpretation of s 98(1)(b)
[51] Section 98(1)(b) requires an investigation to be “commenced”, which she says occurs when, by s 73(1) “[a]s soon as practicable after receiving a complaint, the Commissioner must consider the complaint”.37 Dr Van Wey Lovatt says that an investigation was commenced into the additional matters because the Commissioner “considered” them for the purposes of deciding whether to investigate them or not under s 74.
[52] The Tribunal was plainly correct that the words in s 98(1)(b) “having commenced an investigation, decides not to further investigate the complaint” only apply where the Commissioner has commenced an investigation under s 80 by notification of the complaint to the respondent. There are several reasons:
(a)The proposition that an investigation is commenced by considering whether to commence it or not is an illogical interpretation.
(b)“[T]he first step of an investigation” in s 80(1) is notification to the respondent that an investigation is being commenced. It is crystal clear that it is this step that commences an investigation within s 98(1)(b).
(c)Complaints or parts of them that the Commissioner has decided not to investigate in exercise of the discretion under s 74 do not reach the step
37 Emphasis added.
of notification under s 80(1). Instead, the complainant is advised of the decision not to investigate these under s 73(2).
(d)Section 98(3) provides that a person commencing proceedings under subss (1)(b) must do so within six months after the Commissioner has given notice to the parties under s 81(4). That is notification of the decision “[a]t any time during an investigation” to take no further action under s 81(3). Had s 98(1)(b) been intended to include where the Commissioner has decided not to investigate a complaint, there would have been reference to a limitation period running off the advice in s 73(2).
[53] Ms Dalziel points to the Tribunal’s conclusion that “an investigation into each of the additional alleged breaches” is required for the Tribunal to have jurisdiction.38 She says that this is an error as s 98(1)(b) requires only that an investigation be “commenced”. There is nothing in this. In the immediately prior paragraph, the Tribunal stated that it will only have jurisdiction under s 98(1)(b)–(e) where “the complaint has been the subject of an investigation, whether or not that investigation was completed.” In context, the Tribunal’s reference to the need for “an investigation” is clearly to an investigation whether or not that investigation has been completed.
Application of s 98(1)(b)
[54] The Tribunal considered the material before it to conclude that the Commissioner had not investigated the additional matters in the amended claim.
[55] The Tribunal applied the same approach as had been taken under the 1993 Act which was that the question of whether there has been an investigation by the Commissioner is a factual one. That is, the critical question for the Tribunal is whether the Commissioner has in fact conducted an investigation into the matters that are to be the subject of a hearing in the Tribunal, not the way in which the Commissioner carries out his statutory responsibilities.39
38 Van Wey Lovatt v Te Whatu Ora — Health New Zealand, above n 2, at [25].
39 Mitchell v Privacy Commissioner [2017] NZHC 569, [2017] NZAR 1706 at [36].
[56]Ms Dalziel referred me to two cases under the 1993 Act:
(a)Mitchell v Privacy Commissioner where it was held that the Tribunal’s jurisdiction was not confined on its review of the merits to only the rule or privacy principle identified by the Commissioner in its investigation if the facts engage an alternative or additional privacy principle. The principles engaged are a matter for the Tribunal.40
(b)Edwards v Capital and Coast District Health Board where it was held that the appellant had standing to proceed in the Tribunal despite the fact that the initial notification commencing the investigation concerned a complaint by his mother.41 It was patent that the Commissioner had in fact investigated the subject matter of the appellant’s complaint advanced through his mother, and conducted itself in a manner consistent with that. The investigation had broadened after the initial notification. Correspondence adduced on appeal demonstrated that the agency concerned had been fully and fairly advised and informed of the nature of the complaints raised by both the appellant and his mother.42
[57] I agree that the same approach applies to the 2020 Act. An overly rigid approach by the Tribunal to how the Commissioner has articulated the scope of an investigation or conducted itself would be contrary to s 105 of the Human Rights Act 1993 which requires the Tribunal to act according to the substantive merits of the case, without regard to technicalities. It could also deprive a person of a right of access to justice, with the strike out jurisdiction to be used only sparingly. I accept that in considering whether the Commissioner has investigated a matter, the initial notification is not determinative. That recognises that the scope of an investigation may evolve after the initial notification of commencement of the investigation.43 Nor is the certificate issued by the Commissioner determinative.44
40 At [39].
41 Edwards v Capital and Coast District Health Board [2016] NZHC 3167.
42 At [46].
43 At [63].
44 At [52].
[58] However, this is not a case where there is any doubt whatsoever on the facts as to what the Commissioner commenced an investigation on. This was HNZ’s refusal to provide some of the information in the 5 February 2020 request and the alleged unauthorised change of address. The Commissioner did not broaden that investigation to additional matters. The scope remained consistent throughout from the time of the notification to HNZ under s 80 to the completion of the investigation.
[59] This is clear from the scope of the Commissioner’s 24 June notification letter under s 80; from the structure and content of the Commissioner’s decision letter of 6 October 2020 (which moves on from the two matters investigated simply for the purposes of explaining why other matters have not been); from the advice in the decision letter as to Dr Van Wey Lovatt’s right to take the two matters investigated to the Tribunal; and from the scope of the accompanying Certificate of Investigation referring to rr 5 and 6.
[60] I am prepared to accept Dr Van Wey Lovatt’s submission that her pre-investigation communications with the Commissioner adduced on appeal demonstrate that she had raised all the additional matters in her initial correspondence. Those communications give insight into the Commissioner’s responses, which Dr Van Wey Lovatt did not provide to the Court. From these I infer that the Commissioner decided not to open an investigation into the additional matters and advised Dr Van Wey Lovatt of that decision under s 73. This is also evident from the Commissioner’s 6 October 2020 decision letter. If there are any matters advanced in the amended claim that were not canvassed in the pre-investigation communications, nonetheless it is plain that no investigation has been commenced into them.
[61] Ms Dalziel pointed to a section in the initial claim which she said showed that the additional issues Dr Van Wey Lovatt wished to pursue in her amended claim were always in her claim to the Tribunal. Even if that is correct, they were cast as the consequences she said flowed from the alleged breaches of rr 5 and 6, not the subject
of the privacy breach.45 In any event, reference to a matter in the initial claim does not give the Tribunal jurisdiction when no s 98 gateway applies.46 Nor does another matter Dr Van Wey Lovatt relied upon, which is that HNZ’s response to the notification of investigation catalogued the detailed history of its interactions with Dr Van Wey Lovatt as part of the context. No investigation was commenced on those matters.
Interpretation and application of s 98(1)(d)
[62] Alternatively, Dr Van Wey Lovatt relies on s 98(1)(d) for jurisdiction, which applies in any case where “the Commissioner determines that the complaint does not have substance, or that the matter should not be proceeded with”.
[63] Ms Dalziel contends that a decision by the Commissioner not to investigate a complaint or to take no further action on a complaint is a determination that the “matter should not be proceeded with” or alternatively a “determination that the matter does not have substance”. She says the Tribunal was wrong to conclude that s 98(1)(d) only applies to the determinations made under ss 91 and 94 after the completion of an investigation. She submits that the Act should not be interpreted to have that outcome given that there is no express reference to ss 91 and 94 in s 98(1)(d) and the effect this has on limiting access to the Tribunal and hence to access to justice.
[64] The interpretation Dr Van Wey Lovatt advances is not available when s 98 is interpreted within the scheme of the Act. The words “the complaint does not have substance, or that the matter should not be proceeded with” in s 98(1)(d) are the precise words picked up in ss 94(1)(a) and 94(1)(b) as to the determinations the Commissioner may make after completion of the investigation. 47 In context, s 98(1)(d) is necessarily a reference to these. In contrast, this form of wording is not used in ss 73 or 74.
45 In a section on “the effect of the breach on you” Dr Van Wey Lovatt referred to the failure to provide all the information requested and the alleged unauthorised change of address as having “prevent[ed] her from investigating false allegations relating to trespass and impersonating a medical doctor which were made to police” and “from establishing what has gone wrong with her medical diagnosis, treatment and care.”
46 Dr Van Wey Lovatt also referred to a letter from the Commissioner stating that “matters in the Statement of Claim are therefore among the matters considered by the Commissioner.” As the preceding sentence in this letter makes clear this was a reference to the possible breach of rr 5 and 6.
47 And ss 91(2)(a) and 91(2)(b).
I accept HNZ’s submission that Parliament has simply used efficient wording to cover the two types of investigations in s 91 (access) and s 94 (other investigations), when no other sensible meaning could apply.
[65] I also reject that the words “matter should not be proceeded with” can have any application to a complaint. As my earlier review of the statutory scheme demonstrated, pt 5 consistently distinguishes between complaints and own-motion investigations. Under the scheme of the Act, the words “the matter should not be proceeded with” relate to the latter. There is no scope for these words embracing the circumstance where the Commissioner has decided not to investigate a complaint under s 74.48
[66] The limitation provisions in s 98 reinforce this conclusion. Section 98(4) provides the limitation period for s 98(1)(c), (d), (e) and (f). In each case this is a period of six months after the Commissioner has given notice to the parties under, respectively, ss 91(7), 93(4), or 94(6). This is the notice given to the parties to the completed investigation that the Commissioner has or has not made a determination under ss 91 and 94 on the substance of a complaint, and (in the case of an own-motion investigation) that the matter which is the subject of the investigation should be proceeded with or not. Had the section applied to s 73 there would be a limitation period running from the advice to the complainant of the Commissioner’s decision in s 73(2).
[67] Ms Dalziel said that the absence of an express limitation provision is not fatal to her argument because the Limitation Act 2010 would apply, with a six-year limitation period. It is inconceivable that the legislature intended a split limitation regime for matters that go to the Tribunal or that, contrary to other express provisions, this would be left to inference. A six-year limitation period for a subset of matters
48 In Lehmann v The Radioworks Ltd [2005] NZHRRT 20 the Tribunal rejected this interpretation in that it held the words “the matter ought not to be proceeded with” in the predecessor section in the 1993 Act extended to where no further action is taken on a complaint after an investigation has commenced. That interpretation enabled the Tribunal to conclude that there was a path to the Tribunal where, during the course of an investigation, the Tribunal decided the complaint had no merit. I see no room for that interpretation under the 2020 Act. Section 98(1)(b) now expressly gives an aggrieved person access to the Tribunal where an investigation has been commenced but then no further action is taken.
going to the Tribunal would also be inconsistent with the intention that Tribunal process be efficient.
Alternative interpretation?
[68] This is not a situation where the Commissioner has decided to take no action on a complaint at all.49 The Commissioner “commenced an investigation” but only into some of the actions complained about. Does this give the Tribunal jurisdiction over the actions of the agency that the Commissioner decided not to investigate? This would be by reasoning that under s 80 the Commissioner has commenced an investigation into a complaint made under s 70 and received under s 73, albeit into only a subset of it. This interpretation does not survive analysis.
[69] If a complaint/s covering only actions (a)–(c) of an agency are matters that the Commissioner would appropriately decide not to investigate within s 73 of the Act, the fact that the complaint made (or put another way, another complaint from the same person)50 includes action (d) that the Commissioner decides to investigate should not enable the aggrieved person to take all these matters, (a)–(d), to the Tribunal. That would effectively negate the policy that gives flexibility to the Commissioner not to investigate every issue and that complaints do not go directly to the Tribunal.
[70] The contrary interpretation would also be unworkable. For the complaint process to work, an agency in respect of whom an investigation is being conducted must know that an investigation has been commenced and what actions are under investigation so that the agency can respond effectively. Hence, commencing an investigation is by notice to the respondent giving details of the complaint. Section 80 envisages that the subject of the investigation by the Commissioner will be clearly identified. This is also necessary for natural justice reasons.
49 Lehmann v The Radioworks Ltd, above n 48, at [105](a).
50 Section 70(2) accommodates a complaint being made together with other complaints. In some places the statute refers to parts of a complaint (eg ss 73(1)(c), 75(3) and s 76(3)). An overly technical approach to whether an aspect is part of a complaint, or another related complaint would be unfortunate. The approach I take turns on the substance of what actions of the agency are being investigated. That is consistent with s 74(1)(e), in that the decision not to investigate a complaint can require the Commissioner to consider the date the complainant became aware of the “action that is the subject matter of the complaint”.
[71] Reference to “the complaint” in s 80 must be to such actions that are the subject matter of the complaint that the Commissioner has decided to investigate. That is not to say that the s 80 initial notification sets in stone the scope of the investigation. What is investigated remains a matter of fact. There remains flexibility in applying a pragmatic approach to the scope of the actions that the Commissioner decides to investigate so that this enquiry is not overly technical. However, it is one thing to acknowledge that an investigation can be ambulatory. It is another to accept an interpretation under which the respondent may have no knowledge of or opportunity to respond to matters raised until they are pursued in the Tribunal, especially when these are aspects the Commissioner has decided not to investigate.51
Policy and statutory purpose
[72] The rationale of s 98 is to provide individuals with an alternative to having to make an application for judicial review against the Commissioner or the Director in respect to decisions they have made, thus obviating the need for wider litigation.52 The effect of my decision is that the Commissioner controls the scope of the actions investigated (as opposed to the privacy rules engaged) in response to complaints received, with any redress only through judicial review of the exercise of the discretion in s 74. 53 I have rejected Dr Van Wey Lovatt’s arguments as to how s 98(1)(b) or s 98(1)(d) could apply to this effect.
[73] I now stress-test that conclusion against the legislative history and policy context.
51 The alternative possibility is equally untenable, viz, that if the Commissioner decides to investigate only some actions raised by a complainant all actions become subject to an investigation and must all be notified.
52 Bruce Slane Necessary and Desirable — Privacy Act 1993 Review (Office of the Privacy Commissioner, 1998) at [8.21.1].
53 In my view this conclusion is consistent with Court of Appeal dicta in Guo v Culpan [2022] NZCA 432 at [32]–[33]. In that case the Commissioner decided not to open an investigation into a second complaint in the context of s 83 of the 1993 Act. The Court of Appeal held that Ms Guo’s ability to bring proceedings before the Tribunal was contingent on there having been an investigation conducted.
Legislative history
[74] As the Tribunal recorded, the outcome means that s 98 of the Act has the same filtering mechanism for access to the Tribunal for aggrieved persons as had existed under the less prescriptive terms of s 83 of the 1993 Act.54 In Lehmann v The Radioworks Ltd55 and other cases decided under the 1993 Act56 the Tribunal concluded that there was no path to the Tribunal where the Commissioner exercises the discretion not to investigate a complaint. Section 98(1)(b) now expressly gives an aggrieved person access to the Tribunal where an investigation has been commenced but then no further action is taken.57 The legislature has not taken the opportunity to provide any equivalent express access to the Tribunal to review a decision under s 73 or ss 74–76.
[75] In the Select Committee process the Chairperson of the Tribunal sought a clear and unambiguous definition in s 98 of what constitutes “a complaint or matter investigated under subpart 2”. The Chairperson raised that it was unclear whether the Tribunal had jurisdiction to hear an aggrieved person about the information privacy principles as initially raised, or those that were in fact investigated. The Ministry of Justice responded that agencies should not be able to rely on the Commissioner undertaking a narrower interpretation, which may be for pragmatic reasons to secure a settlement. Rather, the Tribunal should look at any information privacy principles that are capable of being engaged on the facts considered by the Commissioner (referring to Mitchell v Privacy Commissioner).58
[76] Descending into the interstices of the Select Committee process is fraught given my clear view on interpretation. However, I make two comments given that
54 Van Wey Lovatt v Te Whatu Ora — Health New Zealand , above n 2, at [24]. Section 83 of the 1993 Act limited the cases that could be brought by aggrieved individuals to the Tribunal to those that were brought against a person to whom s 82 of the Act applied. Section 82(1)(a) of the 1993 Act applied to persons “… in respect of whom an investigation [by the Privacy Commissioner] has been conducted under this Part in relation to any action alleged to be an interference with the privacy of an individual.”
55 Lehmann v The Radioworks Ltd, above n 48, at [105].
56 Watson v Employers Mutual Ltd (Strike-Out Application) [2020] NZHRRT 10 at [14]–[17]; and
Waugh v New Zealand Association of Counsellors Inc [2002] NZHRRT 9 at [20].
57 Hence, expressly providing for the situation that was the specific focus of Lehmann v The Radioworks Ltd, above n 48.
58 Mitchell v Privacy Commissioner, above n 39.
texts currently refer to this.59 First, the Ministry appears to have been viewing the issue raised as concerning the privacy principles relied upon, not the factual scope of the enquiry. Second, I observe that s 98(1)(a) was included subsequently, which provides a path to the Tribunal where settlement attempts fail without an investigation being commenced. The policy may be that if at the outset there appears to be a credible prospect of settlement, the Commissioner would ordinarily not open an investigation into any actions of the agency.
Policy/access to justice
[77] Ms Dalziel contends that the right to access to justice in s 27 of the New Zealand Bill of Rights Act 1990 means that it cannot be Parliament’s intent to prevent an aggrieved person proceeding to the Tribunal on matters that the Commissioner decides not to investigate. She says the Court should strain to accept the interpretation she advances to prevent that outcome. 60
[78] In my view the wording and scheme of the Act compels the conclusion I have reached. Moreover, s 27 guarantees three aspects of the right to access to justice. One of these is the right to judicial review which is an important component of access to justice.61 The Tribunal’s interpretation I uphold simply identifies where the legislature has delineated between matters that go to the Tribunal for review and a decision that is reviewable only by judicial review. In contrast, the interpretation Ms Dalziel advances would have the effect of undermining the right of an agency to know what allegations are being made and the opportunity to prepare a response before those allegations are made in the Tribunal.
Statutory context
[79] Mr White points to the different thresholds for access by an individual to the Tribunal under the various relevant statutes:
59 Paul Roth and Blair Stewart Roth’s Companion to the Privacy Act 2020 (LexisNexis, Wellington, 2020) at 963.
60 Dr Van Wey Lovatt says that the approach to take when there is an inconsistency is engaged:
Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.
61 Charter Holdings Ltd v Commissioner of Inland Revenue [2016] NZCA 499; and DFT v JDN
[2023] NZCA 15, [2023] NZAR 69 at [38].
(a)Under the Privacy Act, as was also the case under the Privacy Act 1993,62 the threshold is that the Commissioner has commenced an investigation into the complaint (unless an attempt at settlement has been unsuccessful under s 77).
(b)Under the Health and Disability Commissioner Act 1994, the threshold is that the Commissioner must first find a breach of the Code in order to allow an individual to bring a claim in the Tribunal.63 If the Commissioner decides not to investigate the complaint, or investigates and finds no breach, a consumer cannot bring a claim. This is an even higher threshold than under the Privacy Act.
(c)Under the Human Rights Act 1993, there is no requirement for the Human Rights Commission to investigate a complaint. A simple complaint to the Office entitles an aggrieved person to bring a claim in the Tribunal.64 This is a lower threshold than the Privacy Act.
[80] I accept Mr White’s submission that the s 98 filtering mechanism for privacy matters that an individual can take to the Tribunal is a rational fit within this wider statutory scheme.
Conclusion
[81] Dr Van Wey Lovatt emphasises key principles: these are that care and caution must be exercised before depriving a plaintiff of their right to access to justice, the need for careful scrutiny in human rights matters,65 the Tribunal’s express obligation to act according to the substantive merits of the case,66 and the sparing use of the strike out jurisdiction. I accept the importance of these.
62 Privacy Act 1993, s 83.
63 Health and Disability Commissioner Act, s 51.
64 Human Rights Act, s 92B.
65 Guo v Culpan [2019] NZHC 1963 at [3]; citing Kim v Minister of Justice [2019] NZCA 209 at [45].
66 Human Rights Act, s 105.
[82] However, the Tribunal was correct to conclude that it had no jurisdiction over the additional matters in the amended claim. The Commissioner did not commence an investigation into those matters.67 There is no pathway to the Tribunal in that event. The Commissioner’s decisions under s 74 are reviewable only by judicial review. Nothing I have said should be taken as suggesting there is a basis for judicial review. That is not an issue I need to consider.
Result
[83] The appeal is dismissed. The respondent is successful. I order costs to the respondent on a 2B basis.
Anderson J
67 Privacy Act 2020, s 73.
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