Taking%20privacy%20cases%20through%20the%20Human%20Rights%20Review%20Tribunal

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Taking privacy cases through the Human Rights
Review Tribunal

• Some observations on process and the roles of
• the Privacy Commissioner
• and the Director of Human Rights Proceedings
• Bob Stevens
• bobstevens_at_slingshot.co.nz

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Substantial merits

• HRA s.105
• The Tribunal shall act according to equity, good
  conscience, and the substantial merits of the
  case without regard to technicalities.

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Tribunal regulates its own procedure

• HRA s. 104(5)
• Subject to the provisions of this Act and of any
  regulations made under this Act, the Tribunal may
  regulate its own procedure in such manner as it
  thinks fit and may prescribe or approve forms for
  the purposes of this Act.

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Statement of Claim form

• ........
• AND TAKE FURTHER NOTICE THAT at a date and time
  to be fixed by the Chairperson of the Human
  Rights Review Tribunal the plaintiff will ask the
  Tribunal to make the following orders
• __________________________________________________
  __________________________________________________
  __...............

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Statement of Claim form

• ..
• With reference to section 85 of the Privacy Act,
  here set out the particular orders that you want
  the Tribunal to make. If you are claiming a sum
  of money, the amount must be specified, and the
  way in which the amount has been calculated must
  be clear. (Continue on another page if
  necessary).

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Telephone Conferences

• The Tribunal makes regular use of telephone
  conferences with the Tribunal chairperson.
• Not just for ascertaining what pre-hearing steps
  might be required and consequent timetabling, but
  also for discussion to clarify the issues.

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Right of Director to appear

• PA s.86
• May appear and be heard, in person or by counsel
• Has the right to call evidence, and examine,
  cross-examine, and re-examine witnesses
• Is not a party to the proceedings

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Right of Privacy Commissioner to appear and be
heard

• PA s. 86(5)
• The Privacy Commissioner may appear and be heard
  in any proceedings in which the Director ....
  would be entitled to appear and be heard under
  this section but declines to do so.

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Discovery

• It is now common in the Tribunal for informal
  discovery to take place and for the parties to
  assemble an agreed bundle of documents for the
  hearing.
• The Tribunal has recently confirmed that
  discovery of the investigation file of the
  Privacy Commissioner (as a non-party) is
  prohibited by the Privacy Acts secrecy
  provisions.

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Evidence

• HRA s. 106
• (1) The Tribunal may receive as evidence any
  statement, document, information or matter that
  may in its opinion assist it to deal effectively
  with the matters before it, whether or not it
  would be admissible in a court of law.
• (2) .

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Evidence (continued)

• (3) The Tribunal may permit a person appearing as
  a witness before it to give evidence by tendering
  a written statement and, if the Tribunal thinks
  fit, verifying it by oath.

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Briefs of evidence

• Normal to require parties to file briefs of
  evidence in advance of the hearing.
• Similarly, where legal argument is anticipated,
  parties are normally required to file written
  synopses of submissions in advance. Some such
  legal issues are determined by the Tribunal on
  the papers, with agreement of the parties.

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Prohibition of publication

• HRA s.107(4)
• Where the Tribunal is satisfied that it is
  desirable to do so, the Tribunal may, of its own
  motion or on the application of any party to the
  proceedings,-
• make an order prohibiting the publication of
  any report or account of the evidence or other
  proceedings

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Prohibition of publication (continued)

• In practice, the parties have to ask, and justify
  their request, and the most common form of order
  is to prohibit publication of the name (and other
  identifying details) of the plaintiff.
• Best to establish an exact format to protect
  identity.

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Costs

• The practice (always subject to exception in the
  particular case) is to award costs against the
  unsuccessful party. Since 2003 an approximate
  guideline of some 1500 per day of hearing has
  been applied by the Tribunal.

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Availability of decisions

• In addition to sending out the decisions to the
  parties, they are made available to established
  commentators. Decisions are available from the
  Tribunal upon request, may be reported by Lexis
  Nexis Privacy Law and Practice, and are
  accessible on the internet through
• www.worldlii.org/int/special/privacy

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Availability of the Tribunals file

• Tribunal NOT subject to the OIA, nor to the
  Privacy Act.
• Occasionally, and upon application by a party,
  the Tribunal has ordered that access to the
  Tribunals file is only to be given with leave of
  the Tribunal.

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Any questions?

• Is there time?