Rafiq v Privacy Commissioner - [2014] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-147 [2014] NZHC 325

BETWEEN RAZDAN RAFIQ Applicant

ANDPRIVACY COMMISSIONER Respondent

Hearing: 26 February 2014

Appearances: Applicant in person
K Evans for Respondent

Judgment: 28 February 2014

JUDGMENT OF LANG J

[on application for leave to commence defamation proceedings out of time]

This judgment was delivered by me on 28 February 2014 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RAFIQ v PRIVACY COMMISSIONER [2014] NZHC 325 [28 February 2014]

[1] Mr Rafiq applies for leave under s 4(6B) of the Limitation Act 1950 to issue a claim in defamation against the Privacy Commissioner out of time. Mr Rafiq requires leave because he proposes to issue a claim against the Privacy Commissioner based on allegedly defamatory statements contained in a letter written by a member of the Privacy Commissioner’s staff on 7 April 2010. The limitation period for claims in defamation is ordinarily two years. The Court has the power under s 4(6B) of the Limitation Act 1950 to grant leave for a claim in defamation to be commenced outside that period “if it thinks it just to do so”.

[2] The Privacy Commissioner opposes leave being granted. His counsel contends that Mr Rafiq has failed to provide an adequate explanation for his failure to bring the present application before now. She also claims that Mr Rafiq’s claim is doomed to fail in any event. The Commissioner therefore contends that he should not be put to further expense defending the claim, and that leave to bring the claim should be refused.

Background

[3] In or about 2009, Mr Rafiq lodged a complaint with the Privacy Commissioner in which he alleged that the Civil Aviation Authority of New Zealand had violated several of the information privacy principles contained in the Privacy Act 1993 (“the Act”). The Privacy Commissioner then carried out an investigation of Mr Rafiq’s complaint.

[4] By April 2010, the Privacy Commissioner had determined that he would not uphold the complaint. By letter dated 7 April 2010, the Assistant Commissioner (Investigations) of the Privacy Commission wrote to the Chief Executive of the Civil Aviation Authority advising him of the Privacy Commissioner’s decision. In the course of this letter, the Assistant Commissioner made the following comments:

We informed Mr Rafiq of our view on the CAA’s actions by letter on 18
December 2009. Mr Rafiq made a number of submissions which have not served to change our view. However, Mr Rafiq also made a further
complaint about the fact that the CAA has mentioned on its files that he is known by a number of different names.

It was at this point in our investigation that we became aware that Mr Rafiq may not have made his complaint against the CAA in good faith. Information we have received in relation to various complaints that Mr Rafiq has made against a number of government agencies, and using a number of different aliases, indicates to us…

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: [2014] NZHC 325
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Rafiq sought leave to commence defamation proceedings against the Privacy Commissioner beyond the statutory limitation period. The Privacy Commissioner opposed the application, arguing that Mr. Rafiq's claim was unjustified and that he should be spared the expense of defending a futile case. The court was required to determine whether it was just to grant Mr. Rafiq leave to issue the claim out of time under section 4(6B) of the Limitation Act 1950. Additionally, the court needed to examine whether section 96(4) of the Privacy Act 1993 provided a complete defence to the Privacy Commissioner against Mr. Rafiq’s defamation claim.

The court held that it was not necessary to consider Mr. Rafiq's explanation for the delay in applying for leave, as section 96(4) of the Privacy Act 1993 provided a complete defence to the Privacy Commissioner. Section 96(4) granted privilege to statements made or information supplied by the Privacy Commissioner during an inquiry or proceedings before the Commissioner, equivalent to proceedings in a court. The letter at issue was written by a member of the Privacy Commissioner’s staff in the course of the investigation into Mr. Rafiq’s complaint. Thus, the statements in the letter were subject to absolute privilege under section 14(1) of the Defamation Act 1992. Consequently, Mr. Rafiq’s claim had no prospects of success.

Accordingly, the application for leave to commence the defamation proceeding out of time was dismissed. The Privacy Commissioner was awarded costs on a Category 2B basis, along with disbursements as fixed by the Registrar.

Orders