William Patrick Jeffries v The Privacy Commissioner

IN THE SUPREME COURT OF NEW ZEALAND
SC 5/2010
[2010] NZSC 34
BETWEENWILLIAM PATRICK JEFFRIES

Appellant

ANDTHE PRIVACY COMMISSIONER

Respondent

Court:Blanchard, McGrath and Wilson JJ
Counsel:P D McKenzie QC for Appellant

C Gwyn and D Baltakmens for Respondent

Judgment:31 March 2010

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe approved ground is whether unsolicited communications received by the applicant while acting as a barrister are capable of attracting litigation privilege.

REASONS
[1]        This is an application for leave to appeal against a judgment of the Court of Appeal[1] which held that the appellant is bound to furnish information to the Privacy Commissioner in accordance with a requirement to do so made under s 91(4) of the Privacy Act 1993. The appellant contends the information is protected by litigation privilege.
[1]Jeffries v Privacy Commissioner [2009] NZCA 567.
[2]        The first proposed ground of appeal in this Court is that the Privacy Commissioner did not have jurisdiction to require the appellant to provide information concerning communications the appellant made when he was acting as a barrister. The point concerns whether the applicant falls outside of the term “any person” in s 91(4) of that Act. The applicant contends he is not an “agency” under the Act when acting as a barrister as he is part of the judicial functions of a court. We are satisfied that the judgment of the Court of Appeal was correct on this point in deciding that the applicant, as a barrister, is a person who is subject to the Commissioner’s jurisdiction in terms of s 91(4). The ground is not arguable and we refuse leave to appeal in respect of it.
[3]        Another proposed ground of appeal concerns whether litigation privilege may protect unsolicited communications to a barrister. Under s 94(1A) of the Act, the question of whether information would be properly withheld because it is protected by privilege is decided by the Commissioner, who may require that the information be furnished solely to enable consideration to be given to that matter. In its judgment, the Court of Appeal decided that under s 56 of the Evidence Act 2006 the communications in issue (which had been the subject of evidence received by the Court of Appeal) could not attract litigation privilege because they were unsolicited. This was decided by the Court of Appeal without extensive discussion.
[4]        We accept that this question is one of public importance and in the circumstances have decided that leave should be given for the appellant to appeal to this Court on that ground.
[5]        The appellant also raises various other points concerning provisions in the Privacy Act, and the Evidence Act as well as s 27 of the New Zealand Bill of Rights Act 1990. He also claims immunity as a barrister. We are satisfied that all remaining proposed grounds of appeal are either subsumed in our refusal of leave on the first proposed ground or are not capable of giving rise to arguable grounds of appeal.
[6]        The application for leave to appeal is accordingly allowed, leave being confined to the ground of appeal indicated.
Solicitors:
Duncan Cotterill, Wellington for Appellant
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The Supreme Court of New Zealand considered an appeal by William Patrick Jeffries against a Court of Appeal decision that he must provide information to the Privacy Commissioner under the Privacy Act 1993. Jeffries, a barrister, argued that the information was protected by litigation privilege and that the Privacy Commissioner lacked jurisdiction over him. The Court of Appeal had ruled that Jeffries was subject to the Commissioner's jurisdiction and that the unsolicited communications in question did not attract litigation privilege. Jeffries sought leave to appeal to the Supreme Court on the issue of whether unsolicited communications to a barrister could be protected by litigation privilege.

The primary legal issue the Court had to resolve was whether unsolicited communications received by Jeffries, while acting as a barrister, could be protected by litigation privilege. The Court needed to determine if such communications could fall under the purview of the Privacy Act and whether the Privacy Commissioner had the jurisdiction to require Jeffries to disclose such information. Additionally, the Court had to consider whether the evidence act's provision on privilege applied to unsolicited communications and if this interpretation was correct.

The Supreme Court granted Jeffries leave to appeal on the question of whether unsolicited communications to a barrister could attract litigation privilege. The Court found that the issue was of public importance and warranted further consideration. The Court rejected Jeffries' argument that he fell outside the Privacy Commissioner's jurisdiction as a barrister and upheld the Court of Appeal's decision on this point. The Court also found that the remaining grounds of appeal raised by Jeffries were not arguable or subsumed within the first point. Consequently, the Court allowed the appeal on the specified ground alone. The Court's decision focused on the interpretation of privilege as it pertains to unsolicited communications and its applicability under the Privacy Act and the Evidence Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established