Mauve v Chief Executive of Oranga Tamariki
[2025] NZHC 527
•14 March 2025
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE CHILD
ORDER PROHIBITING PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF THE APPELLANT (SEE [80]).
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/family0court/after-the-family- court/restrictions-on publishing-information/
NOTE: PURSUANT TO S 437A OF THE ORANGA TAMARIKI ACT 1989, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2024-419-273
[2025] NZHC 527
UNDER section 123 of the Human Rights Act 1993 IN THE MATTER OF
an appeal against the decision of the Human Rights Review Tribunal and for orders for non-publication
BETWEEN
MAUVE
Appellant
AND
CHIEF EXECUTIVE OF ORANGA TAMARIKI
Respondent
Hearing: 27 February 2025 Appearances:
Appellant in person
S O’Connor and B Kalach for Respondent
Judgment:
14 March 2025
MAUVE v CHIEF EXECUTIVE OF ORANGA TAMARIKI [2025] NZHC 527 [14 March 2025]
JUDGMENT OF GWYN J
Introduction
[1] The appellant, Ms Mauve,1 appeals a decision of the Human Rights Review Tribunal dated 9 August 2024.2 In that proceeding, she alleged that Oranga Tamariki (OT) had unlawfully interfered with her privacy in breach of the Privacy Act 1993.3
[2] The Tribunal was satisfied on the balance of probabilities that OT had interfered with Ms Mauve’s privacy. It made a declaration that her privacy had been interfered with and ordered the payment of $10,000 in damages for humiliation, loss of dignity and injury to feelings.4
[3] Not all the remedies sought by Ms Mauve were granted by the Tribunal and she now appeals the decision to this Court.
Background
Facts and Tribunal decision
[4] The Tribunal decision provides a helpful summary of the factual background to this case:
[4] In September 2016 Oranga Tamariki placed a child, UUV, into Ms Mauve’s foster care on a full-time basis. At the time of the placement, Ms Mauve was an approved caregiver for Oranga Tamariki.
[5] UUV remained in Ms Mauve’s care until May 2018, at which time they were uplifted from her care and placed with another caregiver. Oranga
1 The appellant’s name has been anonymised in accordance with an order I make in this judgment under s 107(3) of the Human Rights Act 1993. See [28]–[46] and [80].
2 Mauve v Chief Executive of Oranga Tamariki [2024] NZHRRT 38 [Tribunal decision].
3 At [15]. As noted by the Tribunal at n 2, the Privacy Act 1993 was repealed and replaced by the Privacy Act 2020 on 1 December 2020. However, the transitional provisions in sch 1 cl 9(1) of the Privacy Act 2020 provide that these proceedings must be continued and completed under the 2020 Act, but that does not alter the relevant legal rights and obligations in force at the time that actions subject to this claim were taken. Accordingly, all references in this decision are to the Privacy Act 1993, which was in force at the time of the information privacy request and the response from Oranga Tamariki.
4 At [76].
Tamariki’s decision to uplift UUV was unexpected and caused Ms Mauve shock and emotional distress.
[6] Ms Mauve subsequently made an information privacy request to Oranga Tamariki on 20 August 2018 in which she requested “any and all files” pertaining to herself and UUV from 16 September 2016 onwards.
[7] Oranga Tamariki responded to Ms Mauve’s request on 5 September 2018 and informed her that it “anticipated” it would be able to respond to her request within 120 days. Ms Mauve did not agree with this timeframe and complained to the Privacy Commissioner accordingly.
[8] Following Ms Mauve’s complaint to the Privacy Commissioner, Oranga Tamariki “expedited” its processing of Ms Mauve’s request. On 23 October 2018, Oranga Tamariki provided Ms Mauve with some of her personal information but withheld other information from her (the October 2018 response).
[9] The Privacy Commissioner concluded his investigation of Ms Mauve’s complaint, following Oranga Tamariki’s release of the information to Ms Mauve. Having found a breach of information privacy principle 6 (‘IPP 6’) of the Act, due to Oranga Tamariki’s delayed provision of that information, the Privacy Commissioner took no further action as the information had been released to Ms Mauve.
[10] In February 2019 Ms Mauve complained that some information that had previously been provided to her was missing from the October 2018 response and requested that Oranga Tamariki reassess the withheld information and provide her with further information accordingly. The request for further information made in February 2019 is not part of this claim.
[11] In response, in March 2019, Oranga Tamariki provided Ms Mauve with additional information from a Barnados report as well as hard copies of some of the information it had already provided. Further information was also provided to Ms Mauve in April 2019 and June 2019.
[12] Ms Mauve remained unsatisfied that Oranga Tamariki had provided her with all the information she was entitled to. In January 2020, she wrote to Oranga Tamariki querying this. Oranga Tamariki responded that “all information that you are entitled to has been released to you.”
[13] Ms Mauve made another request on 20 August 2020 for “all information” held by Oranga Tamariki about her and UUV, then filed her statement of claim with the Tribunal on 30 August 2020. This August 2020 request is not part of this claim.
[14] On 6 November 2020, after re-assessing the October 2018 release using a new assessment procedure, Oranga Tamariki released additional information to Ms Mauve that was not included in the October 2018 response.
[5] OT admitted that it interfered with Ms Mauve’s privacy by failing to respond to her information privacy request in time.5 However, it maintained that it was entitled to withhold certain documents in accordance with s 29 of the Privacy Act. The Tribunal had to determine this, as well as the appropriate remedy for the interference with Ms Mauve’s privacy.6
[6] The Tribunal found that the withheld information which concerned UUV satisfied the test under s 29(1)(a) of the Act, such that releasing it to Ms Mauve would have resulted in an unwarranted disclosure of UUV’s affairs.7 It reached the same conclusion on communications between third parties and OT, finding that there was a duty of confidence owed to these third parties and that the interest in confidentiality outweighed any interest Ms Mauve had in accessing any personal information in those documents.8 However, the Tribunal found that the withholding of two pieces of information, an internal OT document dated 14 March 2018 and an email dated 15 May 2018 from the Principal of UUV’s school to OT, was not justified under s 29(1)(a).9
[7] The Tribunal also found that OT’s refusal to release to Ms Mauve two references provided in support of her application to be a caregiver was not justified by s 29(1)(b) of the Act.10 OT had claimed it had withheld those references because it was “evaluative material” and there was an expectation of confidentiality.11 The Tribunal agreed that the references were clearly evaluative material, but noted that each reference contained a statement that “under the provisions of the Privacy Act 1993, this reference is available to the applicants should they request the copy.”12 The Tribunal therefore found there could have been no expectation of confidentiality.13
[8] The Tribunal then turned to consider what remedies might be appropriate for the breaches of Ms Mauve’s privacy. Ms Mauve had sought a declaration that OT had
5 At [16].
6 At [17].
7 At [30].
8 At [32].
9 At [33].
10 At [43] and [46].
11 At [36]–[41].
12 At [40].
13 At [42].
interfered with her privacy, an order restraining OT from continuing or repeating the interference, an order that OT perform any acts specified in the order with a view to remedying the interference or redressing any loss or damage suffered as a result, and damages.14
[9] In relation to the declarations and orders sought by the appellant, the Tribunal decided:
(a)Having found that OT had interfered with Ms Mauve’s privacy, it was appropriate to issue a formal declaration and did so.15
(b)OT’s interference with Ms Mauve’s privacy was a refusal to provide documents and a delay in providing documents. This was most appropriately addressed through an order to remedy the interference, and Ms Mauve did not identify any other specific action of OT she sought to have restrained.16
(c)An appropriate order to remedy the interference would be for Ms Mauve to be given access to the information withheld without justification, so this was ordered.17 The further order sought by Ms Mauve, that OT undertake an “independent assessment” of its approach to the Privacy Act, was not appropriate or necessary, as OT informed the Tribunal it has already taken steps to update and improve its policies and procedures.18
[10]On damages, the Tribunal decided:
(a)No award of damages for pecuniary loss could be made, as there was no evidence of any financial loss incurred because of OT’s interference with her privacy.19
14 At [49].
15 At [50]–[51].
16 At [52]–[54].
17 At [55]–[56].
18 At [57].
19 At [58].
(b)No order awarding damages for loss of a benefit could be made. Ms Mauve stated that the delayed response to her request had the effect of preventing her from being re-united with UUV, but there was no evidence explaining how the interference impacted on her ability to challenge the uplift decision.20
(c)An award of damages for humiliation, loss of dignity and injury to feelings was appropriate.21 Although Ms Mauve’s distress had largely arisen from the uplift decision, it was clear that her distress has been compounded by OT’s response to the information privacy request.22 The Tribunal found that this claim sat in the higher part of the lower band of damages identified in Hammond v Credit Union Baywide, so ordered an award of damages of $10,000.23
[11] The Tribunal also made a final order under s 107(3)(b) of the Human Rights Act 1993 (HRA) prohibiting publication of UUV’s name and any other details that may lead to their identification.24 This order was made on the Tribunal’s own motion after considering UUV’s age, inherent vulnerability and the applicable statutory care and protection context of the claim.25 Disclosure of UUV’s name could give rise to significant adverse consequences for them and there was no public interest in their name being known or identified in connection with the circumstances of this claim.26
Procedural background to appeal
[12] On 9 September 2024, Ms Mauve filed a Notice of Appeal. Counsel for OT submitted that there was a lack of clarity in the grounds of appeal.27 On 2 October, Gordon J agreed and ordered Ms Mauve to file and serve her specific points on
20 At [60].
21 At [66].
22 At [63]–[64].
23 Hammond v Credit Union Baywide [2015] NZHRRT 6 at [176]; at [68]–[69].
24 Tribunal decision at [75].
25 At [73].
26 At [73]–[74].
27 Mauve v Chief Executive of Oranga Tamariki HC Hamilton CIV-2024-419-273, 2 October 2024 at [3].
appeal.28 OT was granted leave to apply to dismiss the appeal prior to hearing should she fail to adequately specify her grounds of appeal.29
[13] On 16 October, Ms Mauve filed a document titled “specified points of appeal”. Counsel for OT applied to dismiss the appeal, as this document still failed to articulate any identifiable grounds of appeal.30 On 7 November, Becroft J adjourned the appeal and gave Ms Mauve leave to file a further and final notice of her appeal points, providing her with more specific guidance on how to do so.31
[14] On 19 November, Ms Mauve filed a document titled “Appellants Points of Appeal”. OT dropped its application to strike out the appeal.32
[15] A number of interlocutory applications have been filed and minutes issued since then, largely relating to evidence. It is not necessary to summarise those for the purposes of this judgment.
Grounds of appeal
[16] Ms Mauve’s “Appellants Points of Appeal” document alleges eleven grounds of appeal, numbered one to twelve (there is no second concern/error). Most of these concerns/errors are not clearly specified and OT have responded claiming this. However, there are four grounds which are sufficiently clear for me to determine what Ms Mauve is claiming. OT has responded to these four grounds. These are that:
(a)the Tribunal erred in not granting non-publication orders in respect of Ms Mauve’s name and other identifying particulars when making non-publication orders in respect of UUV (taken from the sixth error and seventh concern);
28 At [5].
29 At [8].
30 Mauve v Chief Executive of Oranga Tamariki HC Hamilton CIV-2024-419-273, 7 November 2024 at [17].
31 At [27]–[28].
32 Mauve v Chief Executive of Oranga Tamariki HC Hamilton CIV-2024-419-273, 4 December 2024 at [2].
(b)the $10,000 in damages awarded was insufficient to meet the seriousness of the case (taken from the tenth concern);
(c)the Tribunal erred in declining to make the order under s 85(1)(b) of the Privacy Act restraining Oranga Tamariki from continuing or repeating the interference (taken from the twelfth concern); and
(d)the Tribunal erred in declining to make an order under s 85(1)(d) of the Act compelling OT to undertake an “independent assessment” of its approach to the handling of its obligations under the Privacy Act, with a view to remedying the interference (taken from the twelfth concern).
[17] As I have noted, Ms Mauve’s Points of Appeal includes other grounds which are not sufficiently clearly articulated for the Court to consider them. Having heard Ms Mauve’s oral submissions, it appears that she complains of ongoing breaches of her privacy by OT (in terms of a refusal or failure to release her personal information) since the events that were the subject of the Tribunal decision and since the decision itself. As I understand it, she also claims that OT deliberately delayed releasing the personal information that was the subject of the Tribunal decision.
[18] I emphasise that this judgment is an appeal from the decision of the Tribunal. That being so, it is not possible for the Court to consider claims that were not before the Tribunal. Those allegations are not within the ambit of this appeal.
Law
Jurisdiction
[19] Section 123 of the HRA governs appeals from the Tribunal to the High Court. Section 123(5) provides that when determining an appeal, the High Court has the powers conferred on the Tribunal by ss 105 and 106. This means that s 123 provides for a general right of appeal, and the principles set out in Austin, Nichols & Co Inc v Stichting Lodestar apply.33 The appellant has the burden of satisfying the Court that
33 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, as cited in
Gorgus v Chief Executive Department of Corrections [2024] NZHC 634 at [18].
it should differ from the Tribunal’s decision, and the Court must make its own assessment of the issues.34 The Court “has no duty to accord any deference to the original tribunal of fact”.35 However, it “may rightly hesitate” before concluding that findings of fact or degree made by the Tribunal are wrong, given its specialist expertise and that it had the benefit of hearing from witnesses first-hand.36
[20] Section 123(6) provides that in determining any appeal under s 123, the High Court may:
(a)confirm, modify, or reverse the order or decision appealed against, or any part of that order or decision; and
(b)exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.
[21] The orders which could have been granted by the Tribunal under s 85(1) of the Privacy Act, and may therefore be granted by the High Court, were/are:
(a)a declaration that the action of the defendant is an interference with the privacy of an individual;
(b)an order restraining the defendant from continuing or repeating the interference, or from engaging in, or causing or permitting others to engage in conduct of the same kind as that constituting the interference, or conduct of any similar kind specified in the order;
(c)damages in accordance with s 88 of the Privacy Act;
(d)an order that the defendant perform any acts specified in the order with a view to remedying the interference, or redressing any loss or damage suffered by the aggrieved individual as a result of the interference, or both; and
34 Ministry of Health v Atkinson (2010) 9 HRNZ 47 (HC) at [8].
35 Wall v Fairfax New Zealand Ltd [2018] NZHC 104, [2018] 2 NZLR 471 at [14].
36 Austin, Nichols & Co Inc, above n 33, at [5]; and Gorgus, above n 33, at [18].
(e)such other relief as the Tribunal (or Court) thinks fit.
[22] Section 123(7) of the Human Rights Act provides that the High Court may also, in any case, refer the appeal, in part or in whole, back to the Tribunal for further consideration.
Interference with privacy and grounds to withhold personal information under the Privacy Act 1993
[23] An action is an interference with the privacy of an individual if it breaches an information privacy principle.37 The relevant principle in this case is Principle 6 “Access to personal information”, which provides that where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled to obtain from the agency confirmation of whether or not the agency holds such personal information and to have access to that information.38
[24] An agency’s undue delay in making information available in response to a request is deemed a refusal to make that information available.39 It is not necessary to prove harm caused by the refusal to establish liability.40
[25] Sections 27 to 29 of the Privacy Act provide “good reasons for refusing access to personal information.” The agency has the onus of proving an exception applies.41 The grounds relied upon by OT to withhold the information it withheld in Ms Mauve’s case were ss 29(1)(a) and 29(1)(b).
[26] Section 29(1)(a) entitles agencies to refuse disclosure of personal information requested under Principle 6 if the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual. An agency must satisfy both limbs of this provision: first that the release of the information would “disclose the affairs of another individual”, and second that such disclosure would be
37 Privacy Act 1993, s 66(1)(a).
38 Section 6, Principle 6.
39 Section 66(4).
40 Director of Human Rights Proceedings v Netsafe Inc [2022] NZHRRT 15, (2022) 13 HRNZ 571 at [116].
41 Privacy Act, s 87.
“unwarranted”.42 Determining whether the disclosure is “unwarranted” requires weighing the right of access against the competing interests of the other individual, taking the context and purpose of the information collection and use into account.43
[27] Section 29(1)(b) entitles agencies to refuse to disclose personal information requested under Principle 6 if it is “evaluative material” and disclosing it would breach an express or implied promise to the person who supplied it that the information supplied would be held in confidence. “Evaluative material” is defined as evaluative or opinion material compiled solely for the purpose of determining the suitability, eligibility, or qualifications of the individual to whom the material relates.44 This includes material used for assessment or appraisal.45
Did the Tribunal err in not making non-publication orders in respect of Ms Mauve’s name, and other identifying particulars?
Tribunal decision
[28] As noted above at [11], the Tribunal made a final order under s 107(3)(b) of the HRA prohibiting publication of UUV’s name and any other details that may lead to their identification.46 This order was made on the Tribunal’s own motion, recognising that UUV’s age, inherent vulnerability and the applicable statutory care and protection context of the claim meant that disclosure of their name could give rise to significant adverse consequences for them.47 Redacting their name from the decision would not undermine the principle of open justice.48 The Tribunal did not make a non-publication order in respect of Ms Mauve’s name and other identifying particulars.
Appellant submissions
42 Gorgus v Chief Executive Department of Corrections [2023] NZHRRT 22 at [34].
43 Watson v Capital and Coast District Health Board [2015] NZHRRT 27 at [93].
44 Privacy Act, s 29(3)(a).
45 Director of Human Rights Proceedings v New Zealand Institute of Chartered Accountants [2015] NZHRRT 54 at [118].
46 Tribunal decision at [75].
47 At [73].
48 At [74].
[29] Ms Mauve submits that the proper administration of justice did not require publishing her “personal and private grief” without her knowledge or consent, while endorsing anonymity for the other participants. She submits that it would have been more appropriate to either redact all names or to detail “all relevant evidence, openly and accurately”.
[30] Ms Mauve says she was not aware she needed to seek a non-publication order, nor did the Tribunal inform her that she would need one.
[31] She submits that publishing her name promotes “unfairness, bias, and false assumptions, my grief, and scrutiny of accusations”. She further submits that exposing her details identifies UUV, as they were known by name as her child in her community, region, and occupation.
Respondent submissions
[32] Counsel for OT notes that s 107(3)(b) of the HRA empowers the Tribunal to order the non-publication of a person’s name and any identifying information of that person if it is desirable to do so. However, counsel submits that Ms Mauve made no application at any stage of the proceedings for a non-publication order, and that it appears she concedes this by stating she was not aware she needed to seek one. Counsel submits that, accordingly, the Tribunal did not err by not-making non-publication orders in respect of Ms Mauve, and that neither the Tribunal nor OT had an obligation to inform Ms Mauve that the onus was on her to make an application for non-publication.
[33] However, counsel for OT submits that the High Court has the jurisdiction to issue final non-publication orders in respect of Ms Mauve in this appeal, and it is neutral on the matter. Counsel does not see any circumstances on the available evidence which would make it desirable to grant such an order.
Analysis
[34] Ms Mauve’s submission is similar to that of the plaintiff in Waxman v Pal.49 Dr Waxman, who was self-represented, submitted that the Tribunal had a duty to draw its powers under s 107(3) to her attention. She argued that as a lay litigant, she could not be expected to ask for name suppression when she did not realise the decision would be published online.50
[35] The Tribunal rejected this argument. It noted that in approximately 75 per cent of the cases filed with the Tribunal, at least one litigant is self-represented, and there are practical limits to the assistance which can be given to parties.51 It did not accept that Dr Waxman, who had “presented her case with skill and confidence” and had given expert witness testimony in the High Court as a Police Medical Officer, was not aware that name suppression could be applied for in a tribunal setting.52 It accordingly concluded that in the particular circumstances of the case, it had no such duty to alert Dr Waxman to its powers under s 107.53
[36] Although there is no general rule that the Tribunal must alert parties of its powers to make non-publication orders, Ms Mauve’s position seems quite different to that of Dr Waxman. She has not had the benefit of, for example, giving expert witness testimony as Dr Waxman had. Understandably she does not have any great degree of legal proficiency. She herself argues that she was not aware she needed an order suppressing her name. The Tribunal noted in Director of Human Rights Proceedings v Commissioner of Police that it will generally raise the issue if a litigant is not represented and it thinks this would be appropriate.54 There is no indication that the Tribunal considered that possibility in this case.
[37] It may well have been appropriate for the Tribunal to alert Ms Mauve to the fact her name would be published, particularly as it was considering suppression in
49 Waxman v Pal [2017] NZHRRT 4.
50 At [24].
51 At [69]–[70].
52 At [75].
53 At [78].
54 Director of Human Rights Proceedings v Commissioner of Police HRRT Decision No 5/07, 27 February 2007 at [90].
relation to UUV. However I agree with the respondent that it had no duty to do so, and in the absence of such an obligation, the Tribunal was not in error in not doing so.
[38] This Court retains jurisdiction to issue a final non-publication order.55 However, it can only do so where it is satisfied that it is desirable to do so.56 As the Supreme Court stated in Erceg v Erceg:57
The principle of open justice is fundamental to the common law system of civil and criminal justice. It is a principle of constitutional importance, and has been described as “an almost priceless inheritance”. The principle's underlying rationale is that transparency of court proceedings maintains public confidence in the administration of justice by guarding against arbitrariness or partiality, and suspicion of arbitrariness or partiality, on the part of courts. Open justice “imposes a certain self-discipline on all who are engaged in the adjudicatory process — parties, witnesses, counsel, Court officers and Judges”. The principle means not only that judicial proceedings should be held in open court, accessible by the public, but also that media representatives should be free to provide fair and accurate reports of what occurs in court. Given the reality that few members of the public will be able to attend particular hearings, the media carry an important responsibility in this respect. The courts have confirmed these propositions on many occasions, often in stirring language.
[39] In Waxman v Pal, the Tribunal summarised the correct approach when applying s 107, incorporating the principles of Erceg v Erceg where relevant, as well as existing Human Rights Act jurisprudence:58
[66.1] The stipulation in s 107(1) that every hearing of the Tribunal be held in public is an express acknowledgement of the principle of open justice, a principle fundamental to the common law system of civil and criminal justice. The principle means not only that judicial proceedings should be held in open court, accessible to the public, but also media representatives should be free to provide fair and accurate reports of what occurs in court.
[66.2] There are circumstances in which the interests of justice require that the general rule of open justice be departed from, but only to the extent necessary to serve the ends of justice. This is recognised by s 107(1), (2) and
(3) of the Act.
[66.3] The party seeking the order must show specific adverse consequences that are sufficient to justify an exception to the fundamental rule. The standard is a high one.
55 Human Rights Act, s 123(6)(b); and Privacy Act, s 89.
56 Human Rights Act, s 107(3)(a).
57 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [2].
58 Waxman, above n 49, at [66].
[66.4] In deciding whether it is satisfied that it is desirable to make a suppression order the Tribunal must consider:
[66.4.1] whether there is some material before the Tribunal to show specific adverse consequences that are sufficient to justify an exception to the fundamental rule.
[66.4.2] whether the order is reasonably necessary to secure the proper administration of justice in proceedings before it. The phrase “the proper administration of justice” must be construed broadly, so that it is capable of accommodating the varied circumstances of individual cases as well as considerations going to the broader public interest.
[66.4.3] whether the suppression order sought is clear in its terms and does no more than is necessary to achieve the due administration of justice.
[40] Ms Mauve’s written submissions allege the following possible adverse consequences of publishing her name and particulars:
(a)that it is inappropriate for UUV’s name to be redacted but not hers;
(b)that publishing her name promotes “unfairness, bias, and false assumptions, my grief, and scrutiny of accusations”;
(c)that her “personal and private grief” has been published without her knowledge or consent; and
(d)that publishing her details could identify UUV, as they were known by name as her child in her community, region, and occupation.
[41] In her oral submissions, Ms Mauve elaborated on the adverse effects on her of her name being published. As she notes, she has a very unusual name; she lives and works in a small town and UUV was known in the community as her child when they lived with her. Ms Mauve says this combination of factors means that members of the community speculate about what occurred and her private pain and grief has to some extent become public. There is a risk that continuing publication will exacerbate this effect.
[42] As to Ms Mauve’s first submission, it is not in itself inappropriate for UUV’s name to be redacted but not Ms Mauve’s. There is no rule of law suggesting that if
one person’s name is redacted, it is unfair for others to not have theirs redacted as well. For example, in Horrell v Banyan Pacific Capital Ltd, non-publication orders were made in relation to the identifying details of clients of parties to the case who were not themselves parties to the proceeding, but no such order extended to Ms Horrell’s details.59
[43] However, I accept Ms Mauve’s evidence that publication, in the particular circumstances of this case, has brought adverse consequences for her and those consequences are likely to continue if her name is not suppressed.
[44] The principle of open justice is satisfied in this case by publication of all other aspects of the case that was before the Tribunal. Ms Mauve does not seek suppression of the underlying issues. This is not a case where the identity of the plaintiff has any significance in and of itself.
[45] Although I did not hear specific evidence on the point, it seems to me that continued publication of Ms Mauve’s details might result in identification of UUV, given the factors mentioned above, i.e. living in a small community, where UUV was well-known as being Ms Mauve’s child.
[46] For that reason too, I am satisfied that the proper administration of justice, construed broadly in the particular circumstances of this case, mean a non-publication order in respect of Ms Mauve’s name is reasonably necessary.
Was $10,000 in damages an insufficient quantum to compensate Ms Mauve’s humiliation, loss of dignity, and injury to feelings?
Tribunal decision
[47] As noted above at [10](c), the Tribunal found that although Ms Mauve’s distress was caused by the uplift, it was compounded by OT’s actions. The judgment records evidence from Ms Mauve that the uplift had impacted on her mana and dignity, and she had made her information request so she could begin to “reclaim her life”.60
59 Horrell v Banyan Pacific Capital Ltd [2023] NZHRRT 35 at [165]–[168].
60 Tribunal decision at [64].
Members from Ms Mauve’s local community detailed the trauma and frustration resulting from OT’s prolonged response to her request and the withholding of information.61 The Tribunal therefore concluded that an award of damages for humiliation, loss of dignity and injury to feelings under s 88(1)(c) of the Privacy Act would be appropriate.62
[48] The Tribunal considered that OT’s conduct caused Ms Mauve distress, and that this was exacerbated by the following delays.63 It considered that the causal connection between the interference with her privacy and the resulting humiliation, loss of dignity and injury to her feelings meant that it would be appropriate for an award in the higher part of the lower band of damages identified in Hammond v Credit Union Baywide.64 An award of damages of $10,000 was accordingly ordered.65
Appellant submissions
[49] Ms Mauve submits that the awarded $10,000 is not an appropriate response to the serious circumstances of the case or the “discriminatory” causal connection between OT’s conduct and her distress. In her view the award indicates the Tribunal thought her distress was “trivial”. It does not adequately reflect the five years she says she waited to receive the withheld documents, or that the delay was (she says) deliberate. Ms Mauve alleges that OT maintained “false and malicious stories, and allegations” about her, including in court cases, while concealing that they had accepted they had breached her privacy and that she was therefore “innocent”. She is concerned that the content which reveals this was only released upon Tribunal orders.
[50] Ms Mauve submits that bundles released in June 2024 confirmed that OT were aware that the May 2018 investigation, collection and sharing of information contradicted their policies. She further submits that OT have refused to implement the Ombudsman’s recommendations to “inform him and apologise for not gaining his view.”
61 At [65].
62 At [66].
63 At [67].
64 Hammond, above n 23, at [176].
65 Tribunal decision at [68]–[69].
[51] Overall, Ms Mauve says the award does not reflect the damage caused to her mana.
Respondent submissions
[52] Counsel for OT submits that the Tribunal made no error in awarding Ms Mauve damages of $10,000, as this amount fell within the range of compensatory remedies available to the Tribunal and its discretion. Counsel notes the Tribunal’s reliance on Hammond v Credit Union Baywide which is the leading case providing guidance for determining damages for humiliation, loss of dignity, and injury to feelings.66 Hammond outlines general principles to be applied in determining an appropriate quantum for an award of damages under s 88(1)(c).
[53] Counsel notes that Hammond also outlines three general monetary bands. These bands are awards of up to $10,000 for less serious cases, awards between
$10,000 and $50,000 for moderate to serious cases, and awards in excess of $50,000 for the most serious cases.
[54] Counsel for OT submits that the Tribunal was correct to determine that Ms Mauve’s case fell within the lower band of damages. Counsel notes that the interference with Ms Mauve’s privacy could not be described as severe or serious, as only 13 of the 170 withheld pages were found to be wrongly withheld. Counsel also submits that the quantum of s 85(1)(c) damages could only account for Ms Mauve’s emotional distress to the extent it was caused by the privacy interference, not by the underlying or index precipitating event (the uplift).67 Counsel submits that the award of $10,000 fell within the acceptable range available to the Tribunal on this basis, and there was no identifiable error.
[55] Counsel have also referred the Court to four previous Tribunal decisions in which the Tribunal granted damages ranging between $4,000 and $15,000 in cases which counsel alleges involves similar privacy interferences. These cases are:
66 Hammond, above n 23.
67 At [170]; and Morison v New Zealand Association of Counsellors Inc [2024] NZHRRT 46 at [107].
(a)Morison, award of $4,500: The plaintiff made an IPP6 request in respect of a complaint she had made against a counsellor. The defendant was found to have had no proper grounds to withhold information. Held, the plaintiff had suffered humiliation, stress, and loss of dignity as a result.68
(b)Patel, award of $15,000: The plaintiff made an IPP6 request for her legal file from her lawyer. The delay in receiving the file led to significant legal complications for the plaintiff. The plaintiff was found to have suffered “immense” humiliation, injury to feelings, stress and anxiety.69
(c)Watson, award of $10,000: The plaintiff made an IPP6 request for a copy of minutes of a meeting and written response in respect of a harassment complaint made by the plaintiff. The defendant was found to have had no proper basis for withholding documents. The plaintiff was found to have suffered anxiety and stress from being deprived of the opportunity to respond to allegations made against her.70
(d)Geary, award of $5,000: The plaintiff made an IPP6 request in relation to “all personal information” held by a counsellor after his de-registration. The defendant was found to have had no proper grounds to withhold information. The plaintiff’s humiliation and loss of dignity was found to be significant.71
Analysis
[56] I start with Hammond and adopt the respondent’s helpful summary of the principles set out in that case:
(a)Every case is unique.
68 Morison, above n 67.
69 Patel v Dean [2020] NZHRRT 37.
70 Watson, above n 43.
71 Geary v Accident Compensation Corporation [2013] NZHRRT 34.
(b)An award of damages must be causally connected with the specific interference into privacy and the resulting harm.
(c)The award of damages must be an appropriate response to adequately compensate the aggrieved individual for the humiliation, loss of dignity, or injury to feelings they have suffered. An award of damages must serve as a vindication of the rights interfered with. No award of damages must be extravagant, and no award should exceed what fits the case.
(d)There is an inherently subjective element to the assessment of humiliation, loss of dignity and injury to feelings. The maintenance of consistency cannot be permitted to thwart the intention of the provisions that the award be specific to the particular aggrieved individual in their unique circumstances.
(e)Recognition must be given to the fact that as society’s and the law’s understanding of privacy develops and matures, the perception of what constitutes a ‘serious’ case will evolve and possibly change.
(f)Calibrating the spectrum of damages or determining where in a particular band a case is to be situated is not a formulaic or mathematical exercise. Variation must be allowed for as well as recalibration as new insights are gained and new fact circumstances are litigated.
(g)Old awards can be misleading unless updated to present day values.
[57] Ms Mauve has clearly suffered great distress as a result of UUV’s uplift, and that distress has been compounded by the breach of her privacy. She seems to have been concerned that information which was not provided to her could have helped her get UUV back, and so in some ways this situation resembles that in Watson. However, there is no evidence before me of actual legal consequences as a result of the privacy
breach, unlike the situation in Patel. Based on that alone, an award of $10,000 appears appropriate.
[58] Counsel for OT emphasises that only a few documents were found to have been unjustifiably withheld from Ms Mauve (although the delay in provision is also a breach). I do not think the number of documents in itself is significant. It is possible to imagine a situation where the failure to provide only one or a few documents had a very serious impact. But that does not appear to have been the case here. I conclude that the Tribunal was correct to classify the breach in this case as being in the “less serious” band in Hammond.
[59] In reaching that conclusion I do not mean to minimise Ms Mauve’s distress. It is clearly serious. I acknowledge that the uplift of UUV and subsequent events have caused her a great deal of pain and distress. I also acknowledge that it is not possible to neatly compartmentalise the distress caused to Ms Mauve by UUV’s uplift and that caused by the breach of her privacy rights. They have had a cumulative effect.
[60] However, the Act does require me to attempt to distinguish between the two causes as damages under s 88 may be awarded only to compensate for breaches of the Privacy Act.
[61] I also note that the Tribunal’s decision whether to award damages under s 88(1)(c) is a matter of discretion. That means the appellant must show that the Tribunal made an error of principle, took account of irrelevant matters, failed to consider relevant matters, or was otherwise plainly wrong.72
[62] I do not consider the Tribunal made any error in its assessment. It was in a good position to assess Ms Mauve’s claim of emotional distress and the extent to which there was a material causation between that distress and the privacy interference. The bands of compensation in Hammond provide a guide but, as noted above and demonstrated by the four cases cited by counsel for OT, it is not an exercise carried out with mathematical precision and the Tribunal had the advantage of hearing
72 Atkinson, above n 34, at [8].
the evidence and being able to use its direct experience to compare Ms Mauve’s case with other cases.
[63]I conclude that an award of $10,000 was therefore appropriate.
Did the Tribunal err in declining to make an order under s 85(1)(b) of the Privacy Act?
Tribunal decision
[64] As noted above at [9](b), the Tribunal found that OT’s interference with Ms Mauve’s privacy was a refusal to provide documents and a delay in responding to her request.73 It considered that this was most appropriately addressed through an order to remedy the interference, which it ordered.74 As Ms Mauve did not identify any other specific action of OT that she sought to have restrained, there were no grounds to issue such an order.75
Appellant submissions
[65]Ms Mauve submits that:
The orders I asked for, were also valid, to me, to the public and anyone in the same situation, and they were denied.
[66] As I understand Ms Mauve’s oral submissions, the order sought was relevant for others who might find themselves in a similar situation, but also necessary to restrain ongoing breaches by OT.
Respondent submissions
[67] Counsel for OT submits that the Tribunal was correct to consider that an order to restrain a defendant’s conduct is to prevent the defendant from or repeating the interference with the plaintiff’s privacy. Since OT’s interference was the refusal to provide documents and delay in responding to her request, the Tribunal was correct to
73 Tribunal decision at [53].
74 At [53] and [55]–[56].
75 At [54].
determine that the appropriate remedy was to order OT to release that withheld information.
[68] Counsel for OT submits that, after the release of the wrongly withheld information, there was no action to “restrain”, and Ms Mauve has not specified any other action which could be restrained. Accordingly, counsel submits that the Tribunal correctly determined there were no grounds to issue such an order.
[69] Counsel advised that there is other litigation on foot between the parties addressing other breaches by OT alleged by Ms Mauve.
Analysis
[70] The role of the Tribunal was to make orders in relation to the conduct before it, rather than to make orders purporting to prevent feared future conduct. There is no evidence before me as to what other action could have been restrained by the Tribunal.
[71]I conclude that it did not err in declining to make an order under s 85(1)(b).
Did the Tribunal err in declining to make an order under s 85(1)(d) of the Privacy Act?
Tribunal decision
[72] As noted above at [9](c), the Tribunal considered that an order for OT to undertake an “independent assessment” of its approach to handling its obligations under the Privacy Act was neither appropriate nor necessary.76 This was because OT had already informed the Tribunal that it has taken steps to update and improve its Privacy Act policies and procedures.77
Appellant submissions
[73] Ms Mauve submits that OT has not adequately reviewed its procedures and should have been directed to do so.
76 At [57].
77 At [57].
[74]The appellant also says that:
The orders I asked for, were also valid, to me, to the public and anyone in the same situation, and they were denied.
Respondent submissions
[75] Counsel for OT submits that the Tribunal correctly determined that an order for OT to undertake an “independent assessment” was neither appropriate nor necessary. Counsel submits that most orders for a defendant to perform an action in the privacy jurisdiction are to make certain personal information available to the complainant where that information had been held back from an information privacy request.78 Counsel submits that there was no justification for an “independent assessment” of policy or procedure.
Analysis
[76] While counsel for OT is correct that orders made by the Tribunal usually relate to making certain personal information available to the complainant, there is precedent for the Tribunal to order other steps. For example, in Hammond, in addition to damages the Tribunal ordered NZCU Baywide to implement a training programme focused on its responsibilities under the Privacy Act.79 Plainly it was open to the Tribunal in this case to order OT to carry out an independent review of its approach to the Privacy Act if the Tribunal had found such a step was necessary to prevent it from privacy breaches in future.
[77] However, the Tribunal concluded that OT had already taken steps to update their Privacy Act policies and procedures. In any event, an order under s 85(1)(d) of the Privacy Act is made “with a view to remedying the interference, or redressing any loss or damage suffered by the aggrieved individual as a result of the interference, or both”. The order sought for OT to undertake an independent assessment does not address those requirements. The purposes set out in s 85(1)(d) have been met by the declaration granted under s 85(1)(a), the direction that OT provide Ms Mauve with the identified documents and the award of damages of $10,000.
78 Human Rights Law (online ed, Thomson Reuters) at [PR10.05].
79 Hammond, above n 23, at [185]–[187].
[78] Accordingly, the Tribunal did not err in declining to make an order under s 85(1)(d) of the Act.
Conclusion
[79] On the evidence before me, Ms Mauve has not established any errors in the Tribunal judgment. Accordingly, I dismiss the appeal.
[80] I make an order under s 107(3) of the Human Rights Act 1993 permanently prohibiting the publication of Ms Mauve’s name or any other details that may lead to her identification. This order extends to both this decision and the Tribunal decision.
Gwyn J
Solicitors:
Luke Cunningham Clere, Auckland
Copy to:
Ms Mauve, Appellant
The Human Rights Review Tribunal: J S Hancock, Deputy Chairperson Dr P J Davies, Member
Ms L Gorringe, Member
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