Te Pou Matakana Limited v Attorney-General

[2021] NZHC 2833

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-553

[2021] NZHC 2833

UNDER

the Judicial Review Procedure Act 2016

AND

Part 30 of the High Court Rules 2016

BETWEEN

TE POU MATAKANA LIMITED

First Applicant

WHĀNAU TAHI LIMITED
Second Applicant

AND

ATTORNEY-GENERAL

Respondent

On the Papers

Counsel:

J B Orpin-Dowell, M R G van Alphen Fyfe and T J G Allan for the Applicants

S M Kinsler, L N Wilson and V E Squires for the Respondent B Keith for Applicant to Intervene

Judgment:

21 October 2021

JUDGMENT OF GWYN J

(Application to intervene)

Introduction

[1]                 The Privacy Commissioner (the Commissioner) has applied for leave to intervene in this application for judicial review.

TE POU MATAKANA LIMITED v ATTORNEY-GENERAL [2021] NZHC 2833 [21 October 2021]

[2]                 Te Pou Matakana, the first applicant, is contracted by Te Puni Kōkiri as the commissioning agency for the delivery of Whānau Ora services in the North Island.1 Te Pou Matakana contracts with Whānau Ora partners to provide services and support directly to whānau and families. Whānau Tahi, the second applicant, is Te Pou Matakana’s information systems provider.

[3]                 Te Puni Kōkiri has contracted Te Pou Matakana to provide assistance and support to whānau in relation to COVID-19, including providing vaccination-related services.

[4]                 The applicants seek judicial review of a decision by the Ministry of Health declining to share information regarding the vaccination and booking status data of Māori in the North Island who have not previously been provided services by one of Te Pou Matakana’s Whānau Ora partners (the decision). In declining the request, the Ministry of Health relied on privacy concerns arising from the fact that those individuals will not have authorised their details being shared.

[5]                 The applicants seek review on a number of grounds, including error of law. They say that the decision is wrong as a matter of law, as the information may lawfully be disclosed under r 11(2)(d) of the Health Information Privacy Code 2020 (the Code). The Ministry of Health denies that allegation.

[6]                 The Commissioner seeks leave to intervene to provide written and oral submissions on the application of r 11(2)(d) of the Code and how requests for disclosure under the Privacy Act 2020 (the Act) are determined, on the following terms:

1.1.1The workable application of the provision for disclosure in r 11(2)(d) of the Health Information Privacy Code, under which individuals’ health information may be disclosed without their authorisation if it is both not desirable or practical to obtain authorisation and disclosure is necessary to prevent or lessen a threat to those individuals, others and/or the public; and

1      Te Puni Kōkiri describes Whānau Ora as an approach that supports whānau and families to achieve their aspirations in life. It places whānau at the centre of decision making and supports them to build a more prosperous future.

1.1.2The wider question of how requests for disclosure under the Privacy Act 2020 fall to be progressed and decided, especially when requested on an urgent basis, in a way that is transparent, robust and conducive to maintaining confidence of affected individuals and the public as a whole.

[7]                 The respondent supports the Commissioner’s application for leave to intervene, on the terms proposed by the Commissioner. The applicants indicate they will abide the decision of the Court on the Commissioner’s application.

The Privacy Commissioner

[8]                 The Commissioner is a Crown entity.2 The Commissioner has a comprehensive list of functions, which include to provide advice to a Minister, a Parliamentary Under-Secretary, or an agency on any matter relevant to the operation of the Act; to promote an understanding and acceptance of the information privacy principles contained in the Act; to consult and cooperate with other persons and bodies concerned with the privacy of individuals; to examine any proposed legislation or proposed government policy that makes provision for the collection of personal information by a public sector agency and/or the sharing of personal information between public sector agencies; and to monitor the operation of the Act and consider whether any amendments to the Act are necessary or desirable.3

[9]                 The Commissioner’s application notes that r 11(2)(d) of the Code has not been previously considered by the courts in New Zealand, although it has been addressed by the Commissioner in the September 2020 Inquiry into Ministry of Health Disclosure of COVID-19 Patient Information,4 and a consequent general public guidance statement.5

2      Privacy Act 2020, s 13(2)(b).

3      Section 17.

4      Privacy Commissioner Inquiry into Ministry of Health disclosure of Covid-19 Information

(September 2020).

5      John Edwards “Privacy, Covid-19 and the 'Serious Threat to Public Health' exception” (6 November 2020) Privacy Commissioner < application to intervene also notes that the Commissioner has previously been granted leave to intervene in proceedings involving decision-making under the Act, including in Dotcom v Attorney-General,6 and in R v Alsford.7

Intervention

[11]              This Court has jurisdiction under r 7.43A(1)(d) and (e) of the High Court Rules 2016 to make orders or directions as to how a hearing is to be conducted, and it has inherent jurisdiction to grant leave to a non-party to intervene in a proceeding.8 Here, the Commissioner relies on s 14(2)(m) of the Judicial Review Procedure Act 2016 which, in the context of a judicial review application, provides for “any consequential directions that the Judge considers necessary.”

[12]              The relevant principles to consider when granting leave to intervene were set out by the Court of Appeal in Ngāti Whātua Ōrākei Trust v Attorney-General.9 Although the Court of Appeal was considering an application under the Court of Appeal (Civil) Rules 2005, these principles are equally applicable to the High Court and similar to those articulated in previous High Court decisions.10 The principles are as follows:11

(a)The power is broad in nature but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation.

(b)In cases involving issues of general and wide importance the court may grant leave when satisfied that it would be assisted by submissions from the intervener.

(c)The fact that the case raises issues of principles transcending the particular facts is not in itself sufficient to extend rights of hearing beyond the parties.

(d)The Court will take into account the relevant expertise or the unique position of an intended intervener as well as the impact of the intervention on appeal.

6      Dotcom v Attorney-General [2020] NZCA 551.

7      R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710.

8      Seales v Attorney-General [2015] NZHC 828 at [41].

9      Ngāti Whātua Ōrākei Trust v Attorney-General [2017] NZCA 183 at [11].

10 Borrowdale v Director-General of Health [2020] NZHC 1379, [2020] 2 NZLR 927; Seales v Attorney-General, above n 8; and Capital and Merchant Finance Ltd (in rec and liq) v Perpetual Trust Ltd [2014] NZHC 3205, [2105] NZAR 228.

11 Borrowdale v Director-General of Health, above n 10, at [20], applying Ngāti Whātua Ōrākei  Trust v Attorney-General, above n 9, at [11] (footnotes omitted).

Assessment of the application

[13]              The application of the provision for disclosure in r 11(2)(d) of the Code will be a question of central importance in the case. It is also a matter of general importance, beyond the particular facts of this case. I am satisfied that the Commissioner is uniquely qualified to assist the Court in relation to this issue.

[14] It is less clear how the Commissioner might assist the Court in relation to the broad area set out at 1.1.2 of its application (as set out at [6] above) in a way that will assist the Court in relation to the specific issues arising in this case and without unduly expanding the ambit of the case. With that caveat, the Commissioner may file written submissions in relation to both aspects.

[15]              Leave to intervene is granted to the Privacy Commissioner, on the following conditions. As in most such cases, conditions are necessary to avoid the risk of expanding the issues, lengthening the hearing and increasing litigation costs. The conditions are:

(a)The Commissioner is to file written submissions as soon as possible after receipt of the respondent’s submissions, either on Friday 22 or Saturday 23 October.

(b)The Commissioner’s written submissions may cover the matters set out at 1.1.1 and 1.1.2 of the application to intervene, but having regard to my caution at [14] above.12

(c)Oral submissions will be at the Court’s discretion.

(d)The Commissioner is not to file evidence or engage in any examination or cross-examination of witnesses (if there is any).

(e)The Commissioner shall have no claim to costs nor will the Commissioner be liable for costs.

12 As set out above at [6].

Result

[16]              The Privacy Commissioner is granted leave to intervene on the conditions set out above.

[17]There is no order as to costs.

Gwyn J

Solicitors:

Meredith Connell, Wellington Grove Darlow & Partners, Auckland Stout Street Chambers, Wellington Thorndon Chambers, Wellington

Copy to:
Privacy Commissioner, Wellington