Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80; (2000) 6 HRNZ 173 (17 July 2000)

Last Updated: 8 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/99

	BETWEEN	CHRISTOPHER HARDER
		Appellant

	AND	THE PROCEEDINGS COMMISSIONER
		Respondent

Hearing:	11 May 2000
Coram:	Elias CJ Gault J Henry J Thomas J Tipping J
Appearances:	M J Coxon for Appellant R E Harrison QC, R B Stevens and C P Blake for Respondent
Judgment:	17 July 2000

JUDGMENTS OF THE COURT

Judgments

Para Nos

Elias CJ, Thomas and Tipping JJ Gault J Henry J

[1] - [42] [43] - [51] [52] - [59]

ELIAS CJ, THOMAS AND TIPPING JJ
(DELIVERED BY TIPPING J)

Introduction

[1] The appellant, Christopher Harder is a barrister. He tape recorded two conversations with the complainant, Ms C, without her being aware he was doing so. She complained to the Privacy Commissioner, both about the taping, and about the use Mr Harder made of the tapes. This case is concerned only with the tape recording as such, not with Mr Harder's subsequent use of the tapes.
[2] The issue is whether Mr Harder's conduct in taping the two conversations without Ms C's knowledge, constituted interference with her privacy in terms of s66 of the Privacy Act 1993 (the Act). The Complaints Review Tribunal (the Tribunal), in which the Proceedings Commissioner brought a claim for damages on behalf of Ms C, held that Mr Harder had been guilty of an interference with her privacy, and awarded her damages of $7,500 pursuant to s88(1)(c) of the Act.
[3] Mr Harder appealed to the High Court which upheld the Tribunal, although it reduced the damages to $2,750. Mr Harder then obtained the leave of the High Court to appeal to this Court on four points of law. He did so pursuant to s124(1) of the Human Rights Act 1993 which applies to cases arising under the Privacy Act by dint of s89 of that Act.

The grounds of appeal

[4] The four points of law upon which the High Court gave Mr Harder leave to appeal were these (omitting the argument incorporated with the stated points):

1. Whether the High Court erred in law in concluding that the tape recording of unsolicited telephone call/s to the Appellant's legal office amounted to "collecting" in terms of the Privacy Act 1993.

2. Whether the High Court erred in law in stating that the failure of the appellant to give evidence is fatal to his defence.

3. Whether the High Court erred in law when it found evidence of unfairness and ruled that the tape recording of the conversation/s with the complainant was unfair.

4. Whether the High Court erred in law when it lowered damages for humiliation etc to only $2750.00.

[5] It soon became apparent during the course of argument in this Court that these four grounds of appeal did not expressly cover points of law which obviously arise in this case. This unsatisfactory state of affairs appears to have been caused in large part by the rather fragile grasp of the legal issues which Mr Harder and those advising him have demonstrated throughout these proceedings. This problem has contributed to the fact that both the Tribunal and the High Court do not appear to have come to grips with issues which logically arise. This factor, and the way the points of law have been framed, have caused difficulties in this Court, both in respect of the issues we can properly cover, and as to whether the points not expressly addressed are properly before us. We will expand on these difficulties as necessary below.

The factual background

[6] The Tribunal summarised the facts in the following way. Mr Harder was acting for a man who had been charged with breaching a non-violence order made in favour of Ms C. She contacted Mr Harder by telephone before the charge was due to be heard in the District Court. She made an offer to resolve the matter which would have involved her in asking the police to withdraw the charge. Her offer also involved Mr Harder's client in paying to her reparation monies which she had earlier been awarded. Mr Harder agreed to seek his client's instructions, and Ms C agreed to ring him again several days later. She did so and was told her offer was unacceptable. The Tribunal then noted that Mr Harder proceeded to ask Ms C "a series of questions". No reference is made in the Tribunal's decision to the nature of those questions, or to the nature of Ms C's replies. Ms C was not aware Mr Harder was taping the two conversations. She was alerted to the fact he had done so by the police, whom Mr Harder had advised of the existence of the tape recordings. Ms C was concerned that the conversations had been recorded on tape without her knowledge. But, as the Tribunal put it, "she was not concerned about the contents of the tapes".
[7] What happened in Court when the charge was called on for hearing and the use Mr Harder made of the tapes in Court, was not the subject of the claim and thus need not be mentioned. As noted earlier, the case is concerned only with Mr Harder's recording of the information conveyed to him and not with his subsequent use of that information and, in particular, the tape recordings.
[8] Following Ms C's complaint to the Privacy Commissioner, an investigation was conducted. The Commissioner formed the view that Mr Harder's failure to alert Ms C to the fact he was tape recording their telephone conversations was a breach of information privacy principles 3 and 4. These proceedings followed.

The legislation

[9] It is convenient at this point to set out various provisions in the Act. The long title states:

An Act to promote and protect individual privacy in general accordance with the Recommendation of the Council of the Organisation for Economic Co-operation and Development Concerning Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data, and, in particular,--

(a) To establish certain principles with respect to--

(i) The collection, use, and disclosure, by public and private sector agencies, of information relating to individuals; and

(ii) Access by each individual to information relating to that individual and held by public and private sector agencies; and

(b) To provide for the appointment of a Privacy Commissioner to investigate complaints about interferences with individual privacy; and

(c) To provide for matters incidental thereto

[10] Section 66 which is in Part VIII of the Act headed "Complaints" is concerned with the subject of interference with privacy. To the extent relevant it is in these terms:

66 INTERFERENCE WITH PRIVACY--

(1) For the purposes of this Part of this Act, an action is an interference with the privacy of an individual if, and only if,--

(a) In relation to that individual,--

(i) The action breaches an information privacy principle; or

(ii) The action breaches a code of practice issued under section 63 of this Act (which relates to public registers); or

(iii) The provisions of Part X of this Act (which relates to information matching) have not been complied with; and

(b) In the opinion of the Commissioner or, as the case may be, the Tribunal, the action--

(i) Has caused, or may cause, loss, detriment, damage, or injury to that individual; or

(ii) Has adversely affected, or may adversely affect, the rights, benefits, privileges, obligations, or interests of that individual; or

(iii) Has resulted in, or may result in, significant humiliation, significant loss of dignity, or significant injury to the feelings of that individual.

[11] Any person may make a complaint to the Privacy Commissioner alleging that any action is or appears to be an interference with the privacy of an individual (s67). Such complaint may be either oral or in writing but if oral shall be put in writing as soon as practicable (s68). The Privacy Commissioner is charged under s69 with the duty of investigating any action that is or appears to be an interference with the privacy of an individual; with acting as conciliator in relation to any such action, and with taking such further action as is contemplated by Part VIII of the Act. If the Commissioner considers that a complaint has substance, but the matter cannot be otherwise resolved, the Commissioner may, in terms of s77, refer the matter to the Proceedings Commissioner, a person appointed under s7(1)(d) of the Human Rights Act 1993. The Proceedings Commissioner has to decide whether the matter justifies the institution of proceedings under s82. When, as here, proceedings are brought under s82, the Tribunal may award damages under s88, the relevant part of which reads:

88 DAMAGES--

(1) In any proceedings under section 82 or section 83 of this Act, the Tribunal may award damages against the defendant for an interference with the privacy of an individual in respect of any one or more of the following:

(a) Pecuniary loss suffered as a result of, and expenses reasonably incurred by the aggrieved individual for the purpose of, the transaction or activity out of which the interference arose:

(b) Loss of any benefit, whether or not of a monetary kind, which the aggrieved individual might reasonably have been expected to obtain but for the interference:

(c) Humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.

(2) Damages recovered by the Proceedings Commissioner under this section shall be paid by the Privacy Commissioner to the aggrieved individual on whose behalf the proceedings were brought or, if that individual is an unmarried minor or is not of full mental capacity, in the discretion of the Proceedings Commissioner to the Public Trustee.

[12] As has been noted, interference with the privacy of an individual in terms of s66 can be based on conduct which amounts to a breach of an information privacy principle. These principles are set out in s6. It is principles 3 and 4 which are in issue in the present case. They are in the following terms:

PRINCIPLE 3

Collection of information from subject

(1) Where an agency collects personal information directly from the individual concerned, the agency shall take such steps (if any) as are, in the circumstances, reasonable to ensure that the individual concerned is aware of--

(a) The fact that the information is being collected; and

(b) The purpose for which the information is being collected; and

(c) The intended recipients of the information; and

(d) The name and address of--

(i) The agency that is collecting the information; and

(ii) The agency that will hold the information; and

(e) If the collection of the information is authorised or required by or under law,--

(i) The particular law by or under which the collection of the information is so authorised or required; and

(ii) Whether or not the supply of the information by that individual is voluntary or mandatory; and

(f) The consequences (if any) for that individual if all or any part of the requested information is not provided; and

(g) The rights of access to, and correction of, personal information provided by these principles.

(2) The steps referred to in subclause (1) of this principle shall be taken before the information is collected or, if that is not practicable, as soon as practicable after the information is collected.

(3) An agency is not required to take the steps referred to in subclause (1) of this principle in relation to the collection of information from an individual if that agency has taken those steps in relation to the collection, from that individual, of the same information or information of the same kind, on a recent previous occasion.

(4) It is not necessary for an agency to comply with subclause (1) of this principle if the agency believes, on reasonable grounds,--

(a) That non-compliance is authorised by the individual concerned; or

(b) That non-compliance would not prejudice the interests of the individual concerned; or

(c) That non-compliance is necessary--

(i) To avoid prejudice to the maintenance of the law by any public sector agency, including the prevention, detection, investigation, prosecution, and punishment of offences; or

(ii) For the enforcement of a law imposing a pecuniary penalty; or

(iii) For the protection of the public revenue; or

(iv) For the conduct of proceedings before any court or [tribunal] (being proceedings that have been commenced or are reasonably in contemplation); or

(d) That compliance would prejudice the purposes of the collection; or

(e) That compliance is not reasonably practicable in the circumstances of the particular case; or

(f) That the information--

(i) Will not be used in a form in which the individual concerned is identified; or

(ii) Will be used for statistical or research purposes and will not be published in a form that could reasonably be expected to identify the individual concerned.

PRINCIPLE 4

Manner of collection of personal information

Personal information shall not be collected by an agency--

(a) By unlawful means; or

(b) By means that, in the circumstances of the case,--

(i) Are unfair; or

(ii) Intrude to an unreasonable extent upon the personal affairs of the individual concerned.

[13] It is also necessary to address certain definitions. With stated exceptions the word "agency" is defined as meaning any person or body of persons whether corporate or unincorporate, and whether in the public sector or the private sector. The expression "personal information" upon which the privacy principles are focused is defined as meaning "information about an identifiable individual". The word "collect" is not defined but is said not to include "receipt of unsolicited information". The word "information" on its own is not defined for the purposes of the Act. Against that legislative background, the allegation against Mr Harder was that his actions in tape recording the two conversations without Ms C's knowledge amounted to collection of personal information in breach of information privacy principles 3 and 4; fell within s66(1)(b); and hence were actions constituting an interference with the privacy of Ms C justifying damages under s88(1)(c); and restraint under s85(1)(b).

The case in the Tribunal

[14] Ms C gave relatively brief evidence. Mr Harder did not give evidence. He was represented by Ms Coxon, as he was in the High Court and in this Court. The Tribunal noted her as arguing that because the telephone calls were unsolicited, Mr Harder was not collecting information within the meaning of the word "collect" under the Act. The Proceedings Commissioner, who was also represented by counsel, submitted that collection began as soon as Mr Harder switched on the tape recorder. The Tribunal accepted that submission, saying the act of switching on the tape recorder converted Mr Harder "from being the passive recipient of unsolicited information to an active recorder and therefore collector of the information provided". The Tribunal went on to say that if there was no collection by dint of the switching on of the tape recorder on the first occasion, there was collection when the second conversation was recorded because "this conversation was the result of an arrangement for Ms C to call Mr Harder back". Thus this second call was not unsolicited and furthermore the information in the second call was provided in response to questions asked by Mr Harder. The Tribunal then discussed whether certain exceptions to Information Privacy Principle 3, which had been relied upon by Mr Harder, applied in the circumstances. It held they did not for reasons which need no discussion at this stage.
[15] Turning to Information Privacy Principle 4, the Tribunal held that Mr Harder collected the information by unfair means. The arguments presented on either side of that issue were discussed but as they are not central to our consideration of the case, neither they nor the Tribunal's reasons need to be recorded. It was on the basis of breaches of both Principles 3 and 4 that the Tribunal ordered Mr Harder to pay $7,500 by way of damages, and made an order generally restraining him from "collecting personal information in circumstances where the provider of the information does not know the fact or purpose of the collection or the intended recipients of the information so collected."

The case in the High Court

[16] After discussing the background, the Court moved straight to recording what it described as Mr Harder's defences. The first defence was noted as being that he did not "collect" the information because the calls were unsolicited. On that issue the Court held there might be room for argument about the first conversation but none about the second for the reasons given by the Tribunal. Some emphasis was laid on the fact that Ms C did not know the conversations were being taped, but what relevance that had to the question whether the information was collected was not made clear.
[17] The Court said that Mr Harder's second defence relied on the exception to Principle 3 described in ss4(c)(iv) of the Principle. Mr Harder's contention was that he believed on reasonable grounds that non-compliance was necessary for the conduct of the proceedings in the District Court. At this point the Court agreed with the Tribunal's conclusion that Mr Harder's "failure" to give evidence was fatal to this defence. The Court reasoned "that although the reasonableness of any belief ... would be judged objectively, it was necessary as a first step that Mr Harder swore on oath that he held the necessary belief - clearly a subjective issue". The Court no doubt had in mind s87 of the Act which provides that the onus of proving an exception to an information privacy principle lies upon the defendant. But Mr Harrison properly accepted that, as put by the High Court, the approach which it took was erroneous. There is no absolute requirement upon a defendant to give evidence in order to discharge an onus of proof. It was legally possible for the Tribunal to infer the necessary belief on Mr Harder's part from the evidence led for the plaintiff. The High Court, in upholding the Tribunal's reasoning on this point, deprived Mr Harder of the possibility of a factual finding to which he might have been entitled had the matter been looked at correctly. He was entitled to argue (with what success was for the Tribunal) that on the evidence led for the Proceedings Commissioner, it was a reasonable inference that he believed non-compliance with Principle 3 was necessary for the conduct of the proceedings in which he was engaged. If no such inference could properly be drawn as a matter of probability, that would be the end of the issue. Conversely, if the inference was an appropriate one, the Tribunal would have been obliged to consider whether Mr Harder's belief was based on reasonable grounds. Had the matter not turned on other issues, Mr Harder would have been entitled to a remission to the Tribunal for it to consider according to law this defence and the factual issues arising from it.
[18] Mr Harder's third defence, as noted by the Court, was based on exception ss4(d) to Principle 3. His argument was that he believed on reasonable grounds that compliance with the principle would have prejudiced the purpose of the collection. Again the Court upheld the Tribunal's decision on the basis that Mr Harder's "failure to give evidence and swear on oath" to the necessary belief prevented him from relying upon this exception. Exactly the same position applies here as applies to the second defence.
[19] What the Court described as Mr Harder's fourth defence, really the issue whether there had been any breach of Principle 4, concerned Mr Harder's submission that he was not in such breach because his tape recording of the conversations represented a means of collection which was not unfair. On this issue the Court noted the commentary to paragraph 7 of the Rules of Professional Conduct for Barristers and Solicitors, 5th Edition, 1998 promulgated by the New Zealand Law Society. The subject matter is professional conduct between practitioners and the relevant passage reads:

It is an invasion of a person's privacy to tape a conversation without that person's consent. It is unprofessional and discourteous for one practitioner to do so in respect of another. If a practitioner wishes a conversation by telephone or otherwise to be taped, the specific consent of the other practitioner or employee must first be obtained. Practitioners should note Privacy Principles 2 to 4 of the Privacy Act 1993.

[20] The Court's reasoning then proceeded as follows:

That being the level of conduct required between practitioners, it must be all the more so that the requirements apply in circumstances such as those thrown up by this case.

The appellant relied upon Talbot v Air New Zealand [1995] 2 ERNZ 356 CA where the Court of Appeal held that whether the surreptitious tape-recording of a conversation is unfair or not depends on the circumstances of each case.

On balance, although we do not necessarily agree with all the reasons given by the Tribunal, we consider unfairness has been made out in this case. The law, despite the views of some uninformed cynics, is an honourable profession. "C" was entitled to assume the appellant would behave appropriately. The duty the appellant owed to his client to obtain and use any evidence that would assist in his defence did not entitle him to abandon proper professional standards. He would have lost nothing by adhering to them. "C" swore that she would have been perfectly happy to put her proposition in writing had the appellant requested her to do so. Again, in our view, the Tribunal reached the correct conclusion. Agreeing with and upholding the Tribunal's findings of breaches of the Act, we now turn to the remedies awarded.

[21] Having confirmed the Tribunal's views about liability, the Court made the reduction in damages from $7,500 to $2,750 earlier noted. It did so because it considered the Tribunal had been influenced by the use which Mr Harder had made of the tapes in Court, when the case was concerned only with what was said to be interference with privacy by improper collection. In the circumstances there is no need, indeed on the Proceedings Commissioner's cross appeal no jurisdiction (for reasons to be noted below) for us to consider the question of damages.

The argument in this Court

[22] Much the same arguments as were advanced in the High Court were presented to this Court. The rather obvious first question, whether what was said by Ms C amounted to personal information at all, was not given discrete attention at either level below. Neither the Tribunal nor the Court addressed the issue; albeit Ms Coxon showed us a passage in her written submissions to the High Court, which did raise the question. The points of law upon which leave was given to appeal to this Court do not address the personal information question directly either. Ms Coxon asked that the matter be considered, it having been raised below. She suggested that the first point of law did encompass the question by dint of its reference to collecting "in terms of the Privacy Act 1993". Mr Harrison expressed concern at our embarking upon an inquiry which he said was not within our jurisdiction on account of its not having been properly raised. Similar problems apply in relation to whether it is open to Mr Harder to contend in this Court that in any event he was not in breach of Principle 3. That issue will be the subject of further consideration below.

Personal information

[23] It is, in the circumstances, unnecessary to address the personal information issue. The case does not turn on this point which must remain open for determination when it directly arises. Nevertheless we consider it appropriate to make the following observations. The information privacy principles are all concerned with personal information. That concept is a central feature of the Act. An unqualified approach to what constitutes "information about an identifiable individual" will lead readily to breaches of one or more of the information privacy principles. It is a feature of the Act that there can be a breach of an information privacy principle, yet whether that breach becomes an interference with privacy in terms of s66 is dependant on the opinion of the Commissioner or the Tribunal as to whether the action of the alleged contravener has had one or more of the results referred to in s66(1)(b). The approach of the Commissioner and the Tribunal in the present case does not suggest that this provision has been viewed alongside the balancing provisions of s14(a). They require the Commissioner, and implicitly others involved in the interpretation and administration of the Act, to have due regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of a free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way. Those concepts are thus relevant to the scope of the definition of personal information.
[24] In essence Ms C put a settlement proposal to Mr Harder on behalf of his client (the first conversation) and denied she had certain items which Mr Harder's client claimed were his (the second conversation). While it is not necessary to make any final determination whether the information involved in the present case was personal information within the true meaning and intendment of that expression under the Act, it is not at all clear that this was personal information. Was it relevantly information about Ms C? The only way the first conversation could involve information about Ms C would be to say it constituted information about her attitude to the way the differences between herself and her former partner might be resolved. The same can be said of the second conversation. It seems strained to suggest that Ms C's denial of possession of certain unspecified chattels is information about her for privacy purposes. It would be surprising if Parliament intended the Act to have such an unrestrained reach.

Collection

[25] It is necessary to distinguish between the two conversations. In spite of the conclusion of the Tribunal, and the doubts of the High Court, it is clear that the information provided by Ms C in the first conversation was unsolicited. She rang Mr Harder of her own accord to put a settlement proposal to him. From his point of view what she told him was entirely unsolicited. He did not therefore collect the information because he was simply in "receipt of unsolicited information", and thus what happened was outside the concept of collection for the purposes of the Act. The Tribunal's acceptance of the submission that when he switched on the tape recorder Mr Harder changed from being a passive recipient of unsolicited information to an active recorder "and therefore collector" of the information cannot stand scrutiny. The unsolicited nature of the information was not affected by the fact that it was recorded or the way it was recorded. It was therefore not relevantly collected.
[26] The position with the second conversation is equally simple the other way. It was arranged that Ms C would ring Mr Harder back because she did not wish to disclose her telephone number. She was told her proposal was unacceptable. Mr Harder then asked his questions about the items which concerned his client. Ms C's replies cannot be described as the provision of unsolicited information. Mr Harder was not in receipt of unsolicited information. By asking the questions he solicited the information provided in the replies. On this issue the Tribunal and the High Court were undoubtedly correct. In the present context the concept of collection simply means to acquire or gather. Whatever the status of the information, Mr Harder certainly collected it in terms of the Act.

Principle 3

[27] The next issue is whether Mr Harder was in breach of Information Privacy Principle 3 when he collected the information which Ms C provided in the second conversation. We are here assuming that the information was personal information. The first question is whether on this appeal Mr Harder can argue he was not in breach of Principle 3. Ms Coxon accepted that it was only point 1 (see para [4] above) which could be regarded as raising the present issue. On its face it hardly does so. The focus is on "collecting". But the additional words "in terms of the Privacy Act 1993" were said to raise the issue whether, if there was a collecting, it was unlawful in terms of the Act (ie. in breach of Principle 3). This line of reasoning is oblique, to say the least, but as the issue is a rather obvious one, and it certainly raises a question of law (whether there was any evidence to support the finding of breach of Principle 3), we consider it appropriate to allow it to be raised. There is no apparent basis for saying that breach of Principle 3 was conceded below. The Commissioner cannot claim to be prejudiced from an evidentiary point of view and there is sufficient material before the Court to allow the point to be determined.
[28] Principle 3, if applicable, required Mr Harder to take such steps (if any) as were, in the circumstances, reasonable to ensure that Ms C was aware of the matters listed under paragraphs (a) to (g). The points are cumulative, so each must be examined. Paragraph (a) concerns Ms C's awareness of the fact that the information was being collected. Ms C must have been aware that Mr Harder was collecting the information, ie. her answers to his questions. He would obviously be doing so in order to inform his client. This paragraph is concerned with the fact of collection, not the means of doing so. Thus Ms C's lack of awareness that Mr Harder was tape recording the information is not material to the present point. It is Principle 4, not Principle 3, which is concerned with the manner in which information is collected.
[29] Paragraph (b) concerns Ms C's awareness of the purpose for which the information was being collected. That must have been self evident. Mr Harder was collecting the information in order to advise his client of Ms C's answers to his questions. The same applies to paragraph (c) which concerns Ms C's awareness of the intended recipients of the information. Ms C must have known Mr Harder would pass the information on to his client, and that he was the intended ultimate recipient. The primary recipient was of course Mr Harder himself. That would have been even more obvious. Paragraph (d) concerns Ms C's awareness of the name and address of the agency that was collecting the information, and of the agency that would hold the information. Both agencies were Mr Harder. Ms C must have been aware of his name and address. If she was not aware of his address, which seems highly unlikely, it could hardly be reasonable in the circumstances to require Mr Harder to inform her. If the view were taken that Mr Harder's client was the agency that would hold the information, Ms C obviously knew his name, and if she was unaware of his address, it would again be quite unreasonable, and indeed unsound in principle for reasons of confidentiality, to take the view that Mr Harder should have given her that information. Paragraph (e) does not apply, because the collection was not authorised, or required by or under law, within the meaning of the paragraph. Paragraph (f) similarly does not apply. There could have been no relevant consequences if Ms C had not answered Mr Harder's questions. Finally there is paragraph (g). This concerns Ms C's awareness of her rights of access to and correction of the information. The question of correction can hardly arise with a tape recording. As to access, we do not consider it was reasonable to expect Mr Harder to take any steps to advise Ms C she had certain rights of access to the tape recording, bearing in mind its forensic purpose and potential use. In any event nothing said by Ms C during the second conversation, when she denied possession of the various items, could possibly have led Mr Harder to take the view that he should inform Ms C she had rights of access to the tape, if indeed she did.
[30] For these reasons we are of the view that the evidence produced by the respondent Commissioner to the Tribunal provided no basis for saying that Mr Harder was in breach of Principle 3. He did not fail to take any step which, in the circumstances, was one which he should reasonably have taken in terms of the various aspects of the Principle. Indeed the artificiality of suggesting that there was a reasonable step which he omitted to take in these particular circumstances, and in relation to this particular information, reinforces the very considerable doubt whether the information concerned was personal information within any sensible application of the Act.

Principle 4

[31] The question here is whether Mr Harder collected the information (assuming it to be personal information) by means that, in the circumstances of the case, were unfair. The Tribunal in its approach to this issue concentrated on what it perceived to be a power imbalance between Ms C and Mr Harder. It formed the view that somehow Mr Harder took advantage of someone who was "inappropriately trusting and naïve". Nevertheless the Tribunal seemed, implicitly at least, to recognise that Ms C must have expected Mr Harder to make some sort of record of their conversations. The Tribunal did not examine what the difference would have been from the privacy point of view between a comprehensive hand-written note and a tape recording of the conversations.
[32] In its decision the High Court dealt with the issue by concentrating on the question of proper professional standards. The Court's reasoning has been noted above. This approach does not, with respect, recognise the context in which the present issue arises. Collection of personal information must not be achieved by unfair means. The primary purpose of this provision is to prevent people from being induced by unfair means into supplying personal information which they would not otherwise have supplied. Ms C made no complaint about the contents of the recording. While the embargo is against collection by unfair means, the harm aimed at is to the person supplying the information. There was rightly no suggestion that Mr Harder was collecting the information by unlawful means. It is not unlawful for a participant to tape record a conversation without the knowledge of the other party: see R v A [1994] 1 NZLR 429. Nor is there necessarily anything unfair about doing so; it all depends on the circumstances: Talbot v Air New Zealand (supra) at para [20].
[33] It is not easy to see how Mr Harder's conduct was in the circumstances unfair. From the privacy point of view Ms C was, as the Tribunal found, not concerned about the content of the tapes. This lack of concern over content suggests she did not consider she had told Mr Harder anything particularly private. If one is to make a record of information supplied, as must have been anticipated, there are circumstances when it is appropriate, from more than one perspective, to have as full and accurate a record as possible. That is achieved if a tape recording is made.
[34] It is interesting to note that accuracy is something mentioned in the OECD guidelines which are referred to in the long title to the Act. Part Two of the guidelines is concerned with Basic Principles of National Application. Guideline 8, headed "Data Quality Principle", indicates that personal data should be relevant to the purpose for which they are to be used, and, to the extent necessary for those purposes, should be accurate, complete and kept up-to-date. Against that we note guideline 7 headed "Collection Limitation Principle" which provides that there should be limits to the collection of personal data which should be obtained by lawful and fair means (reflecting our Principle 4) "and, where appropriate" with the knowledge or consent of the data subject.
[35] In the circumstances in which Mr Harder found himself, ie. speaking to a witness for the prosecution of his client, and directly to the party on the other side of the civil issues, we do not think it was unfair for him to make a complete and fully accurate record of what passed between them. We do not consider that the reasons of either the Tribunal or the High Court for regarding the means of collection as unfair were sound.

The cross-appeal

[36] By notice of cross-appeal dated 17 April 2000, the respondent Commissioner sought to challenge that part of the judgment of the High Court reducing the damages awarded by the Tribunal from $7500 to $2750. The notice foreshadowed a submission that the High Court erred in law in holding that the Tribunal was not entitled to take into account, when fixing damages for interference with privacy for breach of principles 3 and 4, the use allegedly made of the tape-recording by Mr Harder at the subsequent District Court hearing. The Court raised with Mr Harrison the question of its jurisdiction to entertain the cross-appeal in the absence of leave to appeal having been granted by, nor even sought from, the High Court. In view of our conclusions on the appeal the issue in the cross appeal does not arise. We will however express our views. Having heard argument from Mr Harrison we are satisfied that there is a jurisdictional bar which would have operated to prevent this Court from embarking on a consideration of the issues raised in the notice of cross-appeal.
[37] Mr Harrison submitted that because there was an appeal properly before the Court which was controlled by the Court of Appeal (Civil) Rules 1997, under Rule 8 the respondent Commissioner was entitled to file the notice in question and to pursue to hearing an appeal based on that notice. He did not rely on any other source of jurisdiction. Rule 8 provides:

Cross-appeals - (1) A respondent who intends on the hearing of an appeal to contend that the decision of the Court below should be varied must file with the Registrar, and serve on any parties who may be affected by such a contention, a notice of cross-appeal.

(2) Except with the leave of the Court, a notice of cross-appeal may not be filed more than 28 days after the service of the notice of appeal on the respondent.

(3) A notice of cross-appeal must state whether the whole or part only of the judgment or order is appealed from and, if part only is appealed from, the notice must specify that part.

(4) The omission to give a notice of cross-appeal does not limit the powers of the Court, and the omission may, in the Court’s discretion, be a ground for adjourning the hearing of the appeal or for a special order as to costs.

[38] We accept that the appeal as commenced by Mr Harder is governed by the 1997 Rules. The Rules however do not provide a source of jurisdiction for appeals to this Court. That must be found in legislation. In the present case the starting point is the Privacy Act 1993, which is the source of the jurisdiction of the Tribunal exercised in this proceeding at the suit of the Proceedings Commissioner. The Tribunal is the body which was constituted by s45 of the Human Rights Commission Act 1977, and continued pursuant to s93 of the Human Rights Act 1993. Part IV of the Human Rights Act applies to this proceeding (s89 Privacy Act 1993). Included in Part IV is section 123 which gives a party dissatisfied with a decision of the Tribunal a right of appeal to the High Court. Section 124 (1) then provides:

Appeal to Court of Appeal on a question of law- (1) Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

[39] Mr Harder sought and was granted leave by the High Court to appeal to this Court on four defined questions of law. None of those can sensibly be seen as incorporating the question of law sought to be argued by the respondent Commissioner. It must follow that there is presently before this Court no question of law for which leave to appeal has been granted. Section 124 can only be construed as limiting the jurisdiction of this Court in respect of this proceeding to entertain appeals for which leave has been given under that section.
[40] Mr Harrison endeavoured to argue that because there was a valid appeal before this Court, it was open to the respondent Commissioner to utilise Rule 8 and cross-appeal. This however ignores the fact that the filing of Mr Harder's appeal did not put the High Court judgment under general appeal, but was limited, in a way which was binding on him, to the issues which could be argued in support of the appeal. There is no basis for contending that the respondent Commissioner thereby had a separate right to promote other grounds of appeal against the terms of the sealed judgment. Mr Harrison accepted that the right he contended for was not open-ended, but was restricted to questions of law. It is unclear how that restriction could possibly be derived from Rule 8. The whole purpose of s124, in common with a multitude of other statutes (including s67 of the Judicature Act 1908), is to restrict any right to promote a second appeal. An example is the Arbitration Act 1996, which requires leave for an appeal to this Court from an appeal to the High Court against an arbitral award (cl.5 Second Schedule). Absent leave, there is no jurisdiction - see Winstone Pulp International Limited v The Attorney-General (CA175/99, 30 August 1999).
[41] In this instance it is only questions of law which can be the subject of an appeal, with the further restriction that it can only be those the subject of a grant of leave by either the High Court or this Court. The intended cross-appeal did not qualify, and had it remained relevant would have been dismissed for lack of jurisdiction.

Conclusion

[42] Mr Harder's action in tape recording the two conversations did not breach either of Information Privacy Principles 3 or 4. Hence his conduct did not amount to an interference with the privacy of Ms C under s66. There was therefore no basis for awarding damages against him. In accordance with the opinion of the majority, the appeal is accordingly allowed. The declarations and orders made by the Tribunal are quashed, save that the name of the complainant is to remain suppressed. For costs at all levels, the respondent Commissioner is to pay Mr Harder $10,000 together with all reasonable disbursements, including travel and accommodation expenses of counsel, to be fixed if necessary by the relevant Registrar.

GAULT J

[43] The facts giving rise to this case and the circumstances of its determination by the Tribunal and the High Court are fully reviewed in the judgment prepared by Tipping J that I have read in draft.
[44] I am surprised the Commissioner chose to persist in this proceeding framed as it was. Once the manner of use of the tape recording ceased to be the subject of any claim the proceeding was simply against the barrister for making an accurate record of telephone discussions as must have been expected would be necessary to enable him to secure instructions from his client.
[45] Four questions of law were the subject of leave to appeal to this Court. In respect of the first, for the reasons set out in the judgment prepared by Tipping J, I am satisfied that there is no basis for interfering with the finding that information was “collected”.
[46] On the second question, while the judgment of the High Court is capable of being construed as narrowly as is suggested by the question, I am satisfied the Tribunal did not express its reasons so narrowly. The finding that the defences were not made out did not rest solely on the absence of evidence from Mr Harder. After referring to the fact that Mr Harder had not given evidence and so had not assumed the onus on him, let alone discharged it, the Tribunal said:

If we are wrong, however, and the submissions of defence counsel which contained an interesting mix of submission and evidence should be accepted as assuming that onus we do not accept that there was sufficient evidence upon which we could safely rely that the defendant believed on reasonable grounds that non compliance with the requirements of IPP 3(1) was necessary for the conduct of the proceedings for which he had instructions.

[47] I agree, for the reasons set out in the judgment prepared by Tipping J, that there is no unfairness in the manner in which the information was collected simply because a tape recorder was used. But that is not sufficient to change the outcome and, on the fourth question, I have not been convinced that the amount of damages was not open to the members of the High Court. Accordingly, on the points of law stated for determination in this Court the appeal must fail.
[48] I am unable to accept that breach of Privacy Principle 3, other than with reference to the requirement of “collection”, was the subject of any determination of law in the High Court so as to come within this Court’s jurisdiction conferred by s124(1) Human Rights Act 1993. Just as the Commissioner is precluded from raising the assessment of damages by cross-appeal, so the Court is precluded from addressing that issue.
[49] I am also reluctant to subscribe to the obiter dicta in the judgment prepared by Tipping J concerning the scope of “personal information” under the Privacy Act. It seems to me that almost any information about a person is capable of being used in a manner that could constitute an interference with privacy and this has been recognised by the very broad definition. It can be illustrated by reference to current advertisements in which there is spread abroad information that Kelly Browne’s parents are away.
[50] Mr Harder had in his own hands to give the matter proper attention and raise the real issues arising on the facts. He did not do this at any level. I therefore have little sympathy for him although I find the scope of the prohibitory order against him extraordinary given his occupation.
[51] I would, with reluctance, dismiss the appeal.

HENRY J

[52] Having read in draft the judgments of Gault J and of the majority prepared by Tipping J I can express my own conclusions quite briefly. In doing so, I think it important to keep firmly in mind that this was an appeal by leave of the High Court on four specific questions of law, which were framed in the light of the way in which the matter was presented by the parties both to the Tribunal, and to the High Court on appeal from that body. The facts are fully set out in the judgment of Tipping J, and need not be repeated. But for the sake of convenience the questions are repeated:

1. Whether the High Court erred in law in concluding that the tape recording of unsolicited telephone call/s to the Appellant’s legal office amounted to “collecting” in terms of the Privacy Act 1993.

2. Whether the High Court erred in law in stating that the failure of the appellant to give evidence is fatal to his defence.

3. Whether the High Court erred in law when it found evidence of unfairness and ruled that the tape recording of the conversation/s with the complainant was unfair.

4. Whether the High Court erred in law when it lowered damages for humiliation etc to only $2750.00.

[53] I agree for the reasons expressed by Tipping J that in respect of the first question the appellant has failed to establish any error of law in the High Court judgment. Information was “collected”. But, although conscious of the force of the reasoning in Tipping J’s judgment, I do not think it is open to this Court to make a determination that Principle 3 was not breached because compliance with the ss1(a) to (g) obligations was not reasonably required in the circumstances. First, that issue is not envisaged by the order granting leave to appeal, which is why the argument in this Court centred on the issue of “collection”. In my respectful view, the issue is not encompassed by question 1. Secondly, whether the required steps postulated by Principle 3 could reasonably have been taken was not a matter raised in the points on appeal, neither was it the subject of considered argument before us. Importantly, it did not feature as a factual enquiry before either the High Court or the Tribunal. In that situation, it is difficult to see how it could be a determination of the High Court on a question of law within the meaning of s124(1) of the Human Rights Act 1993.
[54] As to the second question, while concurring in the view that the defences under ss4(c)(iv) and ss4(d) of Principle 3 could theoretically be established without evidence from a defendant, I think it is clear that in the circumstances both the Tribunal and the High Court determined, correctly, that absent such testimony there was here no evidential foundation for holding either of the positive defences, both of which require a reasonably based subjective belief, had been established.
[55] The third question gives a measure of concern. I agree that the mere fact the information was collected by means of tape recording without the knowledge of the complainant does not of itself necessarily constitute unfair means for the purposes of Principle 4. But in a particular instance it could do so, just as it could be one of a number of circumstances relevant to the enquiry. On this issue I consider the High Court erred when it effectively held that the fact of breach of the ethical rule of conduct governing law practitioners established a breach of Principle 4. That does not follow. The particular facts must be related to Principle 4 and its purposes. The difficulty which then arises, is that although the Tribunal gave a number of reasons for reaching its conclusions as to the use of unfair means, it is unclear which of those have been rejected by the High Court, and which if any were seen as supportive of the finding. In that unsatisfactory state of affairs, although ordinarily reference back to the High Court would perhaps be the consequence, having regard to the lengthy history of the whole matter I think it is better left on the basis that breach of Principle 4 has not been established. In the circumstances I do not see this result as requiring any reconsideration of the damages assessed in the High Court judgment.
[56] The fourth question raised no identified legal issues, and there is no cause to interfere with the High Court assessment.
[57] Although the question of what is meant by the term “personal information” in the Act was raised in the course of argument, I think it preferable to await an occasion when that has been adequately argued before embarking on a critical consideration of it.
[58] The form of relief by way of a prohibitory order (see para [15] above) was not the subject of argument in this Court, but like Gault J I have serious reservations as to its appropriateness. As framed it may well be unenforceable.
[59] In the result, while I would answer question 3 in the affirmative, I would dismiss the appeal. For the reasons given by Tipping J, I would also dismiss the cross-appeal.