Murray v Gisborne District Council - [2012] NZHC 553

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV2011-416-000223 [2012] NZHC 553

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF a decision made by the Human Rights
Review Tribunal dated 31 March 2010

BETWEEN J C MURRAY Plaintiff

ANDGISBORNE DISTRICT COUNCIL First Defendant

ANDPRIVACY COMMISSIONER Second Defendant

Hearing: 13 December 2011

Appearances: J C Murray in Person
D J O'Connor for First Defendant
C Walker for Second Defendant

Judgment: 1 March 2012

RESERVED JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 1 March 2012 at 10:00 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Elvidge & Partners, PO Box 609, Napier 4140.
Privacy Commissioner, PO Box 10094, The Terrace, Wellington 6143.

Copy to:
J C Murray, 98A Awahuri Road, Fielding 4702.

MURRAY V GISBORNE DISTRICT COUNCIL & OTHER HC GIS CIV 2011-416-000223 [1 March 2012]

[1] On 4 November 2011 the High Court at Gisborne accepted a statement of claim and notice of proceeding from Mr Murray for filing. By notice of date of hearing dated 9 November 2011, the High Court set the matter down for mention at at 9:30 am on Tuesday, 13 December 2011.

[2] On 25 November 2011 the Privacy Commissioner filed a statement of defence. On 29 November 2011 counsel for the Gisborne District Council (“Council”) filed an interlocutory application on notice to strike out Mr Murray’s claim together with an affidavit of the Chief Executive of the Council, Lindsay Ronald McKenzie, in support of the application.

[3] After receiving the Council’s application to strike out Mr Murray’s claim, the

Privacy Commissioner requested the Court, in a memorandum dated 12 December

2011, to treat her statement of defence as an application to strike out the proceedings against her as well, noting that r 15.1(d) of the High Court Rules permits the Court to dismiss the proceedings without any application being made.

Nature of claim

[4] The statement of claim is described as a judicial review. It seeks to review what is said to be the decision of the Chief Executive of the Council to proceed with a hearing in the Human Rights Review Tribunal on 15 March 2010. The statement of claim alleges that the decision to proceed with the hearing was taken by Mr McKenzie to absolve a Council employee from any wrongdoing and to discredit Mr Murray.

[5] The hearing in the Human Rights Review Tribunal had in fact been initiated by Mr Murray who was not satisfied with a decision of the Privacy Commissioner in relation to a complaint laid by him against the Council. The Privacy Commissioner had determined that the Council had not caused an interference with his privacy. The statement of claim also alleges that the Privacy Commissioner ignored fabricated evidence in making the determination.

[6] The claim filed in the Human Rights Review Tribunal by Mr Murray related to the non-disclosure of part of a Council internal memorandum. Notwithstanding the determination of the Privacy Commissioner that…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2012] NZHC 553
Decision Date: 1 March 2012

CaseChat Overview and Summary

The case of Murray v Gisborne District Council involved a judicial review application brought by Mr. Murray against the Gisborne District Council and the Privacy Commissioner. Mr. Murray sought to review a decision made by the Human Rights Review Tribunal on 31 March 2010, which had granted a declaration that a non-disclosure was an interference with his privacy, but refused to award damages. The legal issues before the court included whether Mr. Murray's claim disclosed a reasonably arguable cause of action, and if it did not, whether the claim could be struck out as an abuse of process. Additionally, the court considered whether the claim against the Privacy Commissioner was valid, given that her determination was based on whether the Council had a proper basis to withhold information from Mr. Murray, not on the wider context of Mr. Murray's dispute with the Council.

The court found that the statement of claim filed by Mr. Murray did not disclose any reasonably arguable cause of action against either the Council or the Privacy Commissioner. The court held that the Chief Executive of the Council did not exercise a statutory power when the Council appeared as respondent to Mr. Murray’s claim in the Human Rights Review Tribunal. The decision to take or defend civil proceedings before a Court or Tribunal is one that will not normally be open to judicial review. The court further noted that Mr. Murray's wider grievances, which were outside the jurisdiction of the Privacy Commissioner, could not form part of her inquiry into whether or not Mr. Murray’s privacy interests had been breached. In light of these findings, the court struck out Mr. Murray’s claim as disclosing no reasonably arguable cause of action.

The court awarded costs against Mr. Murray as approved by the Registrar, but did not award costs against the Privacy Commissioner.

Orders