Geary v New Zealand Psychologists Board HC Wellington CIV-2011-485-2068 [2012] NZHC 384; [2012] 2 NZLR 414 (21 March 2012)

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-2068 [2012] NZHC 384

IN THE MATTER OF an appeal under s 123 of the Human Rights

Act 1993

BETWEEN IAN RUSSELL GEARY Appellant

AND NEW ZEALAND PSYCHOLOGISTS BOARD

Respondent

Hearing: 23 February 2012

Counsel: A C Beck for Appellant

P J Radich with Ms R E Schmidt-McCleave for Respondent

Judgment: 21 March 2012

_{JUDGMENT OF THE COURT}

Table of Contents

Introduction [1] Background [2]

Appeal [16]

Issues on appeal [20] Issue 1: Process [21] Issue 2: Principle 11: release of the client list [37] Issue 3: Information request 14 January 2005 [66] Issue 4: Information request 3 May 2005 [75] Issue 5: Remedies [94] Disposition [111]

GEARY v NEW ZEALAND PSYCHOLOGISTS BOARD HC WN CIV-2011-485-2068 [21 March 2012]

Introduction

[1] Ian Russell Geary was a registered psychologist from September 1983 until suspended by the New Zealand Psychologists Board (the Board) in February 2007. In this case he appeals a decision of the Human Rights Review Tribunal (the Tribunal) largely dismissing claims against the Board over its handling of personal information about, or information access requests by, Mr Geary.

[2] The five issues on appeal that we must resolve are set out at [20] below. But first we describe the general background to the appeal.

Background

A plethora of proceedings

[3] Mr Geary has been the subject of two significant disciplinary hearings. The first, in 2003, concerned his handling of a client’s allegations of sexual abuse by her husband against her daughter, aged five. The parents were in the midst of a dispute over access. Mr Geary assessed the child. He gave evidence that the child’s father had sexually abused her. The Family Court rejected his evidence. It called for an inquiry into his Accident Compensation Corporation (ACC) funding. And it ordered he cease contact with the girl.

[4] The father (complainant S) complained to the Board. It found that Mr Geary had committed professional misconduct in the way in which he had gathered information and presented his conclusions, and in failing to obtain peer supervision. He was suspended from practice for five months. The Board’s decision was upheld

by Miller J on appeal, save as to its conclusions regarding supervision.¹ Otherwise

the Board’s findings were upheld. The five month suspension was sustained.

[5] The second disciplinary hearing was in March 2005. It concerned

_{Mr Geary’s counselling of a client (complainant X) in 2002 and 2003. Specifically}

¹ Geary v The Psychologists Board HC Wellington CIV 2003-485-1815, 27 September 2004.

that he had failed to advise her that his status as an ACC-approved counsellor had ceased on 5 December 2002, and that he had disclosed details of rapes and sexual abuse known to him through his professional relationships, including abuse visited on children. He was again found guilty of professional misconduct and of conduct unbecoming a psychologist. A fine of $9,000 was imposed in relation to both charges. Mr Geary appealed those findings as well. He was successful in relation to the conduct unbecoming charge (non-disclosure of altered status). But the finding of professional misconduct by inappropriate disclosure was upheld. The fine was

reduced by Ronald Young J to $8,000.²

[6] Also in March 2005 Mr Geary applied for a new annual practising certificate. In May 2005 the Board advised Mr Geary that it would not issue him a practising certificate until he had completed a competency review.³ In October 2006 he was advised that he had failed the review. Later that month the Competence Review Committee recommended to the Board that it consider suspending Mr Geary’s registration. The Board wrote to him advising that it was considering that course.

There was a further hearing in February 2007. Later that month the Board issued a decision suspending his registration until satisfactory completion of a s 40 competence programme. Mr Geary again appealed. On 7 August 2007 Judge S E Thomas confirmed the Board’s decision. Mr Geary now describes himself as retired.

Information access requests

[7] Between June 2003 and October and 2006 Mr Geary made some 46 requests for access to information held by the Board. The requests were made under the Privacy Act 1993. There are two that are important for present purposes.

[8] The first of these was on 14 January 2005. That was two months prior to the hearing into disciplinary charges relating to complainant X. The request was for details of any communications between the Board and the New Zealand Psychological Society. Mr Geary asserts that the answer given by the Board was

_{materially incomplete.}

² _{Geary v The Psychologists Board HC Wellington CIV 2005-485-1562, 28 May 2007.}

³ Under ss 38(2) and 39(1) of the Health Practitioners Competence Assurance Act 2003.

[9] The second request was on 3 May 2005, shortly after the complainant X charges had been heard by the Board. That request was for “disclosure of any private material sent to the Board in respect to me”. It is common ground that the Board’s response to that request failed to comply with Information Privacy Principle

6.⁴ The Board’s filing system was deficient and two historic complaints (by

complainants Y and Z) should have been located and identified to Mr Geary.⁵ Those complaints had been sent to the Board by the Health and Disability Commissioner or by the ACC. The Board had not actioned them because they related to conduct before 1983. Mr Geary was not a registered psychologist at that time. The Board had no jurisdiction to act on them. It had filed them away and had mislaid them.

Claim against the Board

[10] In December 2010 Mr Geary filed a statement of claim against the Board in the Human Rights Review Tribunal. It complained of the Board’s alleged failure to produce “at least 24 separate documents of correspondence containing personal information about me”, which Mr Geary had “now obtained ... from HDC, ACC and the New Zealand Psychological Society”. The claim also contended that the Board had covertly disclosed personal information “to influence the outcome of a Complaints Assessment Committee and adversely influence other agencies against me”.

[11] Mr Geary sought recovery of legal expenses of $238,195 and

“damages/compensatory sum” of $30,000.

Tribunal hearing

[12] Mr Geary’s claim against the Board was heard by the Tribunal on 7 June

2011. It issued its decision on 19 September 2011. The decision was, at the end of the day, more critical of Mr Geary than it was of the Board. The Tribunal was particularly critical of Mr Geary producing a supplementary bundle of documents

_{just minutes before the hearing started on 7 June 2011. The supplementary bundle}

⁴ _{Privacy Act 1993, s 6.}

⁵ It is another matter, however, as to whether he should have been given copies, given s 29(1)(a)

of the Privacy Act 1993: see [13] below.

contained 21 documents which the Tribunal described as “the centrepiece” of his evidence. It included documents which he claimed the Board should have produced and which he had obtained (as his statement of claim indicated) from third party agencies. The Tribunal described the production of these documents at the last minute as “the very antithesis of fair procedure”. It also said that the “sheer number” of information requests by Mr Geary was “disquieting”.

[13] The Tribunal found that the only breach of obligation by the Board concerned the failure to disclose the existence of the two historic complaints by complainants Y and Z. The Tribunal reserved its opinion as to whether the content of those complaints should have been disclosed, given s 29(1)(a) of the Privacy Act 1993. We will have more to say about that later.

[14] Despite finding that the failure to disclose the existence of the two historic complaints by complainant Y and Z breached Principle 6, the Tribunal declined to make a formal declaration to that effect. Its reasons for doing so may be found in paragraph 114(b) of its decision. They relate to the failure of the plaintiff to deal with the Board openly in making his repeated information requests. For instance, identifying as he went along documents that should have been disclosed which he obtained instead from third parties. Also, and in particular, producing the supplementary bundle on the morning of the hearing.

[15] The Tribunal refused to order damages for the sole breach identified. It reserved the question of costs, but indicated an inclination to make “a modest order in favour of the Board in the sum of $3,000”. That reflected the fact that Mr Geary had achieved, in the Tribunal’s words, no more than an “empty victory”.

Appeal

[16] Mr Geary appeals against all adverse findings by the Tribunal as to compliance by the Board with Principles 6 and 11, and its refusal of damages and declaratory relief. He also submits that the Tribunal adopted a “prejudicial and unfair approach”.

[17] The parties are agreed as to the nature of this Court’s jurisdiction on appeal. The appeal is brought under s 123(2) of the Human Rights Act 1993. The High Court has, thereby, all the powers conferred on the Tribunal by ss 105 and 106 of that Act. In particular, s 105(1) requires the Tribunal (and thereby this Court) to “act according to the substantial merits of the case, without regard to technicalities”.

[18] The parties are agreed that, in accordance with the Supreme Court decision in Austin Nichols & Co Inc v Stichting Lodestar,⁶ the persuasive burden lies on Mr Geary to persuade this Court that the Tribunal decision is wrong.

[19] Further, they are agreed that to the extent aspects of a tribunal decision involve the exercise of a discretion – in particular a decision as to remedies – the principle in May v May⁷ applies. So to the extent Mr Geary is seeking to persuade this Court to reverse the remedial discretion of the Tribunal, he must show that it made an error of principle, failed to consider relevant matters, considered irrelevant matters, or otherwise was “plainly wrong”. In taking that joint position, the parties agree that the approach taken by Venning J in GS v A Professional Conduct Committee⁸ is correct.

Issues on appeal

[20] The issues on the present appeal are five:

(a) Issue 1: Did the Tribunal deny the appellant a fair hearing, by adopting a “prejudicial and unfair approach” in insisting that the hearing proceed on 7 June 2011?

(b) Issue 2: Did the Tribunal err in concluding that Principle 11 was not breached by the Board when its prosecutor released Mr Geary’s ACC client list to complainant X when checking whether she had been

_{notified of his loss of ACC panel status?}

⁶ _{Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at 5.}

⁷ _{May v May [1982] 1 NZFLR 165.}

⁸ GS v A Professional Conduct Committee [2010] NZHC 458; [2010] NZAR 417 (HC).

(c) Issue 3: Did the Tribunal err in concluding that Principle 6 was not breached by the Board in responding to Mr Geary’s 14 January 2005 information request in terms omitting an alleged disclosure to the New Zealand Psychologists’ Society of a further complaint made against the appellant?

(d) Issue 4: Did the Tribunal err in concluding that Principle 6 was not breached by the Board in withholding the contents of the complaints by complainants Y and Z (neither of which was being investigated)?

(e) Issue 5: Did the Tribunal err in refusing to award the appellant any remedy, in particular, either declaratory relief or damages?

Issue 1: Process

[21] Mr Geary’s proceeding against the Board was filed on 17 December 2010. It was set down to be heard by the Tribunal on 14 April 2011. Yet for some reason Mr Geary did not apply for legal aid until March 2011.

[22] On 3 March 2011 Mr Geary’s counsel, Mr Beck, filed a memorandum in the Tribunal. It recorded that he had agreed to represent Mr Geary if legal aid was granted. He sought an adjournment. The Tribunal issued a minute on 7 March 2011 granting more time for Mr Geary to file and serve written statements of evidence. The following day Mr Geary sought a change in the hearing date because he was to attend a settlement conference in the Timaru District Court on 14 April 2011.

[23] On 14 March 2011 there was a telephone conference with counsel. As a result the Tribunal agreed to vacate the 14 April fixture. It substituted instead a hearing date of 12 May 2011. At that stage Mr Geary still did not know the outcome of his legal aid application. The Tribunal’s minute recorded that “save for some unforeseen and/or overwhelming circumstance, there will be no further amendments or delays”. We note that it is not unusual for participants to represent themselves before the Tribunal. The absence of legal aid here would not necessarily be a reason to alter the timetable again.

[24] Notwithstanding that indication, on 3 May 2011 Mr Geary filed a further memorandum noting that he had still not yet received the Board’s briefs of evidence. The memorandum also noted that he had not yet been advised of the result of his legal aid application. He asked for the Tribunal to “adjourn the hearing to another time”. The Board opposed the adjournment.

[25] On 5 May 2011 the Tribunal convened a telephone conference. In its subsequent minute Tribunal said that it found the conflicting concerns “very finely balanced”. But it proposed to grant some additional time to Mr Geary “to get his house in order as he would like it before the Tribunal proceeds”. The Tribunal continued:

At the same time, as I have made as clear as I know how, this must be a last adjournment.

In fact before agreeing to delay the hearing I asked Mr Geary to give me his assurance that – barring an unforeseen medical emergency – he will not even ask for another adjournment. He has given me that assurance. He specifically acknowledges that the hearing will go ahead on the new date whether or not:

(a) he has heard from the Legal Services Agency; (b) he is granted legal aid;

(c) his legal representative is available on the new date of hearing.

The adjournment granted was for three weeks. With the result that the hearing was then to take place on Tuesday 7 June 2011.

[26] We were advised from the Bar that legal aid was granted on 24 May 2011. Mr Beck was Mr Geary’s preferred counsel. He had acted for him for some time. He was not available to confer with Mr Geary immediately after the grant of legal aid. He was available only in the week immediately prior to the hearing.

[27] The hearing proceeded on 7 June 2011. Mr Beck attended. While he was generally familiar with Mr Geary’s affairs, he had (as the Tribunal noted) “had little time to familiarise himself with the detail of the case”. Allowing for these difficulties the Tribunal was nonetheless extremely critical of the plaintiff’s conduct

as have noted already at [12] and [14]. The Tribunal’s particular concern was the late production of the supplementary bundle of documents. These included important documents provided to him by the Health and Disability Commissioner in

2005. Having had the relevant documents for some six years, and having been required to produce his evidence (and documents) by 1 April 2011, Mr Geary had held back the documents that were particularly material. Indeed he delivered them only on the morning of the hearing. The Tribunal said:

... We have a significant criticism of the way in which the plaintiff has chosen to conduct his claim. It arises out of the fact that, quite literally as the hearing was about to start on 7 June 2011, the plaintiff surprised everyone by producing what he called a supplementary bundle of documents. The new bundle contained many of the documents that were most important to his case. There were 21 separate documents in the first part of the bundle, altogether making up some 26 pages.

...

The way in which this muddle of extra pages was put before the Tribunal and the Board literally minutes before the start of the hearing was the very antithesis of fair procedure.

[28] This matter was canvassed in some detail, at the hearing. We have read the transcript. At the very outset of the hearing Mr Radich (who was appearing for the Board) made a qualified objection to the supplementary bundle of new material. Mr Radich had had it for only five minutes before he got to his feet. He indicated that the Board was prejudiced by the receipt of this material, but wished to proceed nonetheless. It would take objection subsequently, as and when necessary.

[29] It is clear, also, from the transcript that the Tribunal appreciated that the late receipt of legal aid had “truncated” Mr Beck’s participation. The exchanges are recorded in these terms:

Chairman: ... I recognise the difficulty that that puts you in in preparing the matter and I appreciate the fact that there was no application for adjournment late last week which must have seemed tempting.

Mr Beck: Yes in the circumstances it was. But in all the circumstances I

think it was better that the matter proceeds.

As that extract makes clear, no application for further adjournment was sought.

Submissions

[30] On behalf of Mr Geary, Mr Beck submits that the Tribunal was unduly critical of the way the appellant presented his case, given the circumstances in which it had arisen. He submits that the Tribunal’s “jaundiced view of the appellant’s conduct has infected the whole of its decision-making. This must raise questions as to the fairness of the process”. He submits that the Legal Services Agency had been satisfied⁹ that there would be substantial hardship if you were not legally assisted. The Tribunal had placed case management considerations above the need for the appellant to be properly represented, requiring him to commit to a final hearing date.

Mr Beck submits:

The Tribunal effectively bullied the appellant into representing himself, and then proceeded to criticise him and find against him for his failures in this regard.

Analysis

[31] We are clear that Issue 1 must be answered in the negative.

[32] First, we find that Mr Geary applied belatedly for legal aid. Although filing his claim in December 2010, he did not apply for legal aid until March 2011. To the extent that there were delays in his obtaining legal aid, he is substantially the author of his own misfortune.

[33] Secondly, it is clear to us that the Tribunal bent over backwards to accommodate Mr Geary. We have set out in [22]–[25] above the adjournments that were granted at his request. There were three adjustments to the hearing date. In particular, the April date was adjourned to May, and May date adjourned to June. These were all done to assist Mr Geary. The Tribunal was entirely justified in insisting that the third change be the last one. This was Mr Geary’s claim, and he

_{was bound to prosecute it or abandon it.}

⁹ In accordance with the statutory requirement in s 7(1)(e) of the Legal Services Act 2000.

[34] Thirdly, the obtaining of legal aid was not a sine qua non of a fair process. Many people appear in the Tribunal on a self-represented basis. The Tribunal is attuned and sensitive to such matters. We have mentioned already s 105 of the Human Rights Act 1993 which requires a focus on merits over technicalities. The claim was not an unduly complicated one, Mr Geary is clearly an intelligent man, and he had handled the interlocutory processes with ability and success.

[35] Fourthly, the Tribunal’s criticisms related to the production by Mr Geary of

critical documents (which should have been exchanged according to the timetable on

1 April 2011) on the morning of the hearing, some five minutes before it commenced. Mr Geary had had those documents since February 2005. He must have appreciated their importance to his claim. And if he did not, he should have done. He did not need legal counsel to appreciate their significance. We agree with the Tribunal that production of these extra documents in that fashion at the very start of the hearing “was the very antithesis of fair procedure”. It was an attempt at

ambush. It rightly deserved condemnation.¹⁰ The Tribunal cannot be criticised for

having said so in clear terms. We do not agree with the appellant’s submission that its approach was “jaundiced and bullying”. To the contrary we note for instance that the Tribunal stepped in to rescue Mr Geary from his own folly at the start of the hearing when he began to suggest that his proceeding was in part motivated by a desire for revenge.

[36] For these reasons the answer to Issue 1 is “No”.

Issue 2: Principle 11: release of the client list

Issue 2 is:

Issue 2: Did the Tribunal err in concluding that Principle 11 was not breached by the Board when its prosecutor released Mr Geary’s ACC client list to complainant X when checking whether she had been notified by him of his loss of ACC panel status?

¹⁰ We make no criticism of Mr Beck. Nor did the Tribunal.

[37] The background to this issue is this: the Board’s prosecutor sent complainant X a copy of a December 2002 letter that Mr Geary said he had sent his ACC clients, of whom she was one. The prosecutor wanted to check the veracity of the letter. It will be recalled¹¹ that one of the charges faced by Mr Geary in March 2005 concerned whether he had informed his ACC clients that he had been suspended from ACC’s panel. The December 2002 letter, if genuine, suggested he had. So the

prosecutor sent a copy of to complainant X (an ACC client) to see if she had received it back in 2002. Attached however to the copy he sent her was a copy of Mr Geary’s ACC client list. Ms X unfortunately then set about contacting some of these people.

[38] Some matters were clarified at the hearing. First, there is no complaint about the fact that the Board released a copy of both the letter and the list (which had been obtained from Mr Geary) to its prosecutor. Secondly, there can be no complaint about the prosecutor sending the letter to complainant X. Mr Geary’s case was that he had written the letter to complainant X (and a number of other clients). She would already have received it, on that theory.

[39] So the complaint is really about the release by the prosecutor of Mr Geary’s client list to complainant X. The prosecutor had not intended her to contact other people on the list, or expected that she would do. But he did not make clear to her that she should not do so. That was unfortunate.

[40] The Tribunal held that the release of the client list by the prosecutor to complainant X did not contravene Principle 11. It reasoned that the Board exercised statutory disciplinary powers under Part 4 of the Psychologists Act 1981.¹² The Board was bound both to prosecute and to adjudicate. To meet the requirements of natural justice under s 33(5) of the 1981 Act, the Board appointed a prosecutor. He

_{acted independently of the Board. The decision to release the client list to}

¹¹ _{See at [51].}

12. Repealed by the Health Practitioners Competence Assurance Act 2003. Incomplete disciplinary proceedings were to continue under the repealed Act: s 216(1).

complainant X was made by him alone. The Tribunal held that the prosecutor was not an agent or servant of the Board when carrying out his responsibilities as prosecutor. So the relevant disclosure was not made by the Board. Even if the disclosure was made by the Board, then it was an action of the Board in its capacity as a tribunal, and in relation to its judicial function. To that extent, the exception in s 2(1)(b)(viii) of the Privacy Act 1993 applied. That excludes a tribunal, “in relation to its judicial functions” from the definition of “agency”. Finally, even if that were not the case, the Tribunal would have concluded that disclosure of the letter (and list) to X were “necessary” for the conduct of proceedings before the Tribunal. That would mean the exception in Principle 11(e)(iv) applied.

Submissions

[41] For Mr Geary, Mr Beck submits that the Board had a dual function, both administrative and judicial. He accepts that to the extent the Board was acting judicially, the Privacy Act 1993 did not apply. He says, however, that most of its activity “fell outside the narrow scope of acting as a judicial body”. The prosecuting counsel, by virtue of the very independence the Board relies on, was not part of the Board acting judicially. The release of information by him to a complainant had nothing to do with the Board’s judicial function. But that did not mean that the Board could disown his actions. Mr Beck submitted:

A lawyer who is retained as counsel does not act as an independent principal. He or she acts for or on behalf of the client, in accordance with instructions. The client remains responsible for acts performed on his behalf and in accordance with the retainer.

[42] Secondly, Mr Beck submits that the “necessity” exception in Principle

11(e)(iv) cannot be made out by the Board here. The onus to prove necessity rested on the Board.¹³ Disclosure of the client list to complainant X was not necessary. The prosecutor gave evidence before the Tribunal. He could not produce a cogent

_{reason for his decision to send the list. Mr Beck submits:}

¹³ Privacy Act 1993, s 87.

Disclosure of information to the complainant [X] resulted in distress to the appellant’s clients, and to the appellant having to respond to them. It exposed him to potential professional complaints. The appellant also gave evidence of abusive action following the disclosure.

[43] Ms Schmidt-McCleave argued this part of the case for the Board. She submits that the Board was indeed acting as a tribunal in its judicial functions in relation to the prosecutor’s actions. It was thus excluded from the definition of “agency” in s 2 of the Privacy Act 1993. Separation between the Board (as adjudicator) and its prosecutor was essential to observe natural justice, in accordance with s 33(5) of the Psychologists Act 1981. The Board relies on Ministry of Justice v

S,¹⁴ a decision of Goddard J. It holds that administrative tasks performed by a

Family Court registrar in preparation of a proceeding for adjudication form part of the judicial function of that Court.

[44] Secondly, Ms Schmidt-McCleave submits that disclosure was necessary for the conduct of the proceedings, so that the exception in Principle 11(e)(iv) applied. There was no argument that the prosecutor was justified in sending the letter to complainant X. What he was seeking to establish was whether she had received it in December 2002, as the appellant alleged. The client list was stapled to the letter, and the prosecutor treated it as one document. Said Ms Schmidt-McCleave:

It was relevant for the complainant to see the client list as well as the letter purportedly sent to that list of clients as she may have been able to provide information of relevance.

The prosecutor did not anticipate that the complainant would contact the appellant’s

former clients.

Analysis

[45] We find against the appellant, under this issue, for two reasons.

[46] First, we are not satisfied that the information contained in the client list was

“personal information” about the appellant at all. This question was not dealt with

_{directly in the Tribunal, but we must give consideration to it. The point is noted by}

¹⁴ Ministry of Justice v S [2006] NZHC 357; (2006) 8 HRNZ 328 (HC).

the Tribunal at [24] of its decision, but not resolved. We therefore sought further submissions from the parties at the hearing on this question. We also sought a copy of the client list attached to the letter. The former was in evidence, but the list was not. Quite how Mr Geary thought the Tribunal could deal with this aspect of his claim without seeing the list is not clear us. But bearing in mind the injunction in s

105 to focus on substance rather than technicality,¹⁵ we sought and obtained a copy

of the list.

[47] Having considered those submissions, and the client list, we conclude that the list is not personal information about Mr Geary. “Personal information” is defined in s 2 of the Act as:

Information about an identifiable individual; and includes information relating to a death that is maintained by the Registrar-General pursuant to the Births Deaths Marriages and Relationships Registration Act 1995 or any former Act.

We are conscious that there is a continuing debate about the scope at law of that provision. In Harder v Proceedings Commissioner¹⁶ a majority of members of a full bench of the Court of Appeal, in a decision delivered by Tipping J, said that “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.”¹⁷ That passage was obiter, and neither the Court of Appeal nor the Supreme Court has revisited the issue. Certainly the Tribunal and a number of academic commentators¹⁸ prefer a broader approach to the provision, bearing in mind the sifting mechanisms, exceptions and limits placed on remedies in the Act as a whole. In Sievwrights v Apostolakis¹⁹ this Court said:

We acknowledge the difference in approach between the Court of Appeal’s obiter comments in Harder v Proceedings Commissioner ... and the preferred approach of the Tribunal and a number of academic writers not to read down the broad definition of personal information. This judgment, despite invitation, will not resolve that difference. We prefer to approach this case by a close analysis of the facts. We consider the vast majority of cases where an issue involves consideration of whether the information is

¹⁵ _{See at [17] above.}

¹⁶ _{[2000] NZCA 129; [2000] 3 NZLR 80 (CA).}

¹⁷ _{At [23].}

¹⁸ _{See e.g. Dr Paul Roth’s article, “What is Personal Information?” (2002) 20 NZULR 40, 44-45.}

¹⁹ HC Wellington CIV-2005-485-527 17 December 2007.

“personal information” will be resolved by a fact-based analysis. However, we acknowledge some sympathy for the Tribunal’s observations in Boyle v Manurewa RSA:²⁰

The issue is important since...the idea of ‘personal information’ is one that is central to the Act. It may be that when the issue is dealt with again, the Courts will reach a conclusion that it would be better not to read the words down because there are sufficient checks and balances elsewhere in the Act to ensure that the Act can be applied in a pragmatic way, and without having to limit its scope by giving the words ‘personal information’ a restricted meaning of some sort. Certainly there seems to be room for the view that the observation by the Court of Appeal may warrant reconsideration when the opportunity next arises.

[48] Neither counsel nor the Court has been able to locate any authorities dealing with the privacy status in New Zealand law of client lists. In particular, whether they might be regarded as personal information of those who have compiled them.

[49] We turn unassisted therefore to the exact nature of the client list in this case. As noted earlier, it was not for some reason placed before the Tribunal. As a result there is little discussion of the list in the transcript of evidence before the Tribunal. It is three pages in length. It is headed up “List of ACC clients as at 31 December

2002”. It does not refer to Mr Geary by name. He is not identifiable from the list. Of course Ms X knew it was his list. It was stapled to the letter from Mr Geary (re)sent to her by the prosecutor. It lists the names of 68 clients, together with a series of code references. These codes were not explained to us. They are meaningless to a non-initiate.

[50] Without question the client list is personal information. The individuals identified in the list are shown to be obtaining psychological services. Mr Geary collected the names of his clients as part of his health practitioner work. Mr Geary himself is a relevant agency in terms of s 2. He therefore had obligations to preserve and protect that information. That said, there is no question that he was obliged to convey that information to the prosecutor. But in our view the list is the personal information of the clients themselves, rather than the provider of the services, Mr Geary. The list of names comprises identifiable individuals. Their personal information includes their names and the fact that they are ACC-funded. These

_{facts are discernible from the list. It does not appear to include any clinical}

²⁰ Human Rights Review Tribunal Decision 16/2003; 4 June 2003.

information or other notes arising in the course of clients’ therapeutic relationship

with Mr Geary.

[51] The general focus of privacy protection for patients of health professionals (such as Mr Geary) is the protection of patient information. This is reflected in the Health Information Privacy Code 1994. The central purpose of collection of such information is to provide for care and treatment of the patient. While associated purposes such as administration are also provided for, the focus is on the patient. We would not have thought it right generally to regard the information obtained on a patient/client list as personal information of the health professional. The professional is the agency that has collected it. It, or here, he, then labours under the obligations associated with that such as under rr 4-11 of the Health Information Privacy Code 1994. In this case the list represents the compilation of personal information about Mr Geary’s ACC patients, by Mr Geary as the relevant agency for the purposes of both the Privacy Act 1993 and the Health Information Privacy Code

1994.

[52] Looking at the list in this case particularly, we do not consider as a matter of fact that it can be said to be personal information “about” Mr Geary. We would have reached the same conclusion had it borne his name. Our conclusion is however reinforced by the fact that it does not. As a practising clinical psychologist it is obvious that he had clients, just as it is obvious that he had other accoutrements of professional practice, such as requisite qualifications and consulting rooms. These obvious facts do not represent personal information about Mr Geary. When he alone possessed the list, it was not personal information “about” Mr Geary. In our view that status does not change just because it was given by him to the Board.

[53] Secondly, we do not consider it appropriate to differ from the conclusion of the Tribunal on this point – albeit that this is an appeal by way of rehearing – given that the list was not in front of the Tribunal. That omission (for which we do not criticise Mr Beck) is inexplicable if the disclosure of the patient list was truly being advanced as a serious breach of privacy obligation by the Board. The result was that the Tribunal was unable to address the list in any detail. It simply had not seen it. More significantly for present purposes, there was no discussion of the content of the

list in the evidence-in-chief and cross-examination, which forms the record on which this Court proceeds. All of this goes to a failure by Mr Geary to meet the persuasive burden reposing on him to show that the Tribunal decision is wrong.²¹

[54] Given these two conclusions, we do not consider it necessary to reach a final conclusion on the next question arising under this issue. That question is whether the exception for disclosure by a tribunal acting “in relation to its judicial functions” applies. A tribunal acting in such circumstances is excluded from the definition of “agency” in s 2 of the Privacy Act 1993.

[55] It is clear that the Board, in exercising disciplinary powers, was exercising statutory powers contained in Part 4 of the Psychologists Act 1981. Those powers require the Board to observe the rules of natural justice.²² To achieve that the Board adopts an artificial, but essential, adversarial procedure. It appoints a prosecutor who is wholly responsible for the presentation of the prosecution case. Just as the defendant psychologist and his or her counsel would be responsible for presenting the defence side. So far as possible the Board seeks to maintain separation. It is clear that there is limited contact between the Board and the prosecutor apart from

(1) the initial appointment and (2) the conveying of information (rather than instructions). An example of the latter was the Board sending the letter and list to the prosecutor. It may be noted, also, the Board is vested with the powers of a Commission of Inquiry under s 34 of the Act. Thus it has the power to summons witnesses (vested with privileges and immunities applicable in a court of law) and to take evidence on oath. In practice witnesses gave evidence on oath and were cross- examined and re-examined in the ordinary way. It is clear from this analysis that the

creation of a distinct and independent role in the nature of prosecutor²³ is an essential

function of a Board undertaking its disciplinary responsibilities under the 1981 Act.

[56] The Tribunal took the view that in the present case the actions of the prosecutor were not the actions of the Board (as agency) at all, but rather those of a

_{wholly independent prosecutor. Our decision should not be taken to endorse that}

²¹ _{See [18] above.}

²² _{Section 33(5) of the Psychologists Act 1981.}

²³ In the case of other tribunals the role may be described as “investigator”, but the function is

similar.

proposition. The conduct of a hearing remained the statutory function of the Board. Its execution required appointment of an independent prosecutor, but that arrangement does not alter the legal position. We agree, also, with Mr Beck’s observation that the prosecutor remained, as counsel, the agent of the Board for the purposes of the Board’s functions (including statutory functions) delegated to him.²⁴

[57] The Tribunal also took the view that if the actions of the prosecutor’s actions

were the actions of the Board, then the exception in s 2(1)(b)(viii) of the Privacy Act

1993 applied. That excludes “a tribunal, in relation to its judicial functions” from the definition of “agency”. The Tribunal relied on the decision in Ministry of Justice v S.²⁵ We do not, however, think that decision is really apposite here.

[58] In that case, the respondent, S, claimed that his privacy had been breached by a Family Court Registrar, as a result of the Registrar’s handling of documents filed by S in the Family Court proceedings. In a race to the Court door S and his estranged wife had each filed applications for interim parenting and other orders. But then, inexplicably, S’s papers were not sent to the Judge. The Judge made orders on the basis of the ex parte applications filed by the wife. The Judge was unaware of S’s applications. S brought a claim in the Tribunal on the basis that there had been a breach of Principle 8. That requires that agencies holding information take reasonable steps in using information to ensure that it is complete and not misleading. He said that as a result of the omission to deal with his papers, and the making of ex parte orders against him, he had suffered harm including injury to feelings, loss of dignity and humiliation. The Ministry sought to strike out the claim. The Tribunal declined the Ministry’s application. It expressly considered the “judicial function” exception. It said that exception ought not to be stretched to include that which is essentially of an administrative nature. (We interpolate to note that just such a submission is being made by the appellant in the present case). The Ministry appealed to the High Court. Goddard J said:

The administrative tasks performed by a Registrar in the preparation of a proceeding for adjudication, and the administrative tasks similarly performed by a Registrar post adjudication, such as the issuing of

²⁴ _{See e.g. Dal Pont Law of Agency (2 ed, Lexis Nexis, Butterworths, Sydney, 2008) at [1.40].}

²⁵ Ministry of Justice v S [2006] NZHC 357; (2006) 8 HRNZ 328 (HC).

judgment, are part of the judicial function of the Court in which that proceeding was commenced and determined.

[59] It is entirely understandable as a matter of policy that the actions of a Court’s registry are assimilated to the judicial function performed by that Court. It is however quite another matter in our view to conclude that a prosecutor appointed by a tribunal, and whose role is to take an adversarial stance in proceedings, is to be accorded the same status. In this respect we consider function should be assessed over form. The fact that the tribunal remains responsible at law for the actions of its appointee does not alter the need to consider whether the disclosure of documents by the prosecutor can be said to be part of the performance of the Board’s “judicial functions”. We doubt that that can be so.

[60] First, the Board considered itself bound to create a separate prosecution function to meet its overarching natural justice obligation. The very fact of functional separation suggests the prosecutor was not intended to perform any part of the Board’s judicial functions. Although the Board retained responsibility for the actions of the prosecutor, functionally the prosecutor’s role is no more part of the adjudicative function than the role of defence counsel is.

[61] Secondly, no such argument could be advanced in the ordinary situation where the prosecutor is wholly legally independent of the tribunal. We do not think that the legal linkage that exists here alters the functional analysis needed. That is, to ascertain whether an exception to disclosure obligations exists because information was compiled or disclosed “in relation to ... [the Board’s] ... judicial functions”.

[62] Thirdly, there is no need to assimilate the actions of the prosecutor to the Board’s adjudicative function to best meet the purposes of the Privacy Act 1993. Rather, the contrary. The prosecutor should be bound to disclose personal information he collects to the respondent under Principle 6, manage that information adequately under Principle 8, and remain responsible for disclosures made under Principle 11. The first of course remains subject to s 27(1)(c) – refusal to disclose permitted where likely to be prejudicial to the maintenance of the law – which

certainly is not confined to criminal law enforcement.²⁶ And the third is subject to the exception in Principle 11(e)(iv), to which we now turn.

[63] Finally, and for completeness, we record that we do not agree with the Tribunal that the exception in Principle 11(e)(iv) was engaged. That exception required the Board (and its prosecutor) to believe on reasonable grounds that disclosure of the client list was necessary for the conduct of the disciplinary proceedings relating to complainant X before the Board in 2005. It is common ground that disclosure of the letter to complainant X was necessary, to establish whether indeed she had received it. But the client list was another matter altogether. First of all, it appears to us that the disclosure of the list was actually unwitting by the prosecutor. He simply had not distinguished it from the letter to which it was stapled. We consider that the need for reasonable grounds for belief in the necessity of disclosure requires the agency concerned to first inspect and assess the material being disclosed. The exception is not engaged where there is a failure to check the contents of the disclosure material before transmission. That is what appears to have happened here. Secondly, when questioned in evidence as to what useful purpose disclosure of the client list to complainant X served, the prosecutor was at rather a loss:

... I don’t know quite what thought processes I went through, Mr Chair.

Pressed for a purpose, he could offer only that complainant X might have been able to say that someone on the list had not resided in Timaru until after the letter was sent out. That seems to us very much a hindsight explanation. If the prosecutor really needed to know whether each person on the list had been resident in Timaru (or at whatever his or her address on the list was) in December 2002, there were far better ways to ascertain that information than to give the list to complainant X. Indeed it was all the more likely, if that was the purpose, that complainant X would take it upon herself to contact people on that list. As she did. Yet the prosecutor

_{expressly said that he had not anticipated her doing that.}

26. See e.g. Roth Privacy Law & Practice in New Zealand (looseleaf edition, LexisNexis, Wellington) at [PVA27.7(c)].

[64] The list (in distinction to the letter) should never have been sent to complainant X.

[65] Despite the reservations expressed in [54]–[64] above, we agree with the ultimate conclusion reached by the Tribunal. It follows that the answer to issue 2 is “No”.

Issue 3: Information request 14 January 2005

[66] Issue 3 is:

Did the Tribunal err in concluding that Principle 6 was not breached by the Board in responding to Mr Geary’s 14 January 2005 information request in terms omitting a communication to the New Zealand Psychologists’ Society disclosing the existence of a further complaint against the appellant?

[67] On 14 January 2005 Mr Geary email the Board asking for:

“copies of any information regarding myself with respect of any communication that the [Board] has had with the NZ Psychological Society and in particular any information exchanged by way of writing or telephone with regard to personal information”.

Five days later the Board replied. It said there was no such documentation. However it did explain that a telephone discussion had occurred between the Board Registrar and a representative of the Psychologists Society the previous week. It arose from a call from the Society. It wished to see the outcome of the disciplinary hearing in relation to complainant S. In fact the outcome of that complaint had been published in the Board’s 2004 annual report. The Registrar told the Society representative so. The Society was already aware of the appeal. A copy of Miller J’s

judgment²⁷ was faxed to the Society at their request.

[68] The Registrar’s response to Mr Geary’s request concluded “that was the end of the only conversation I had about you with the Society”. But Mr Geary had already contacted the Society. He had an email from them dated 17 January 2005

_{that said that, inter alia:}

²⁷ See at [4] above.

The [Board] Secretary also verbally advised that there was a new, current complaint due to be heard in February.

[69] This document was one of those produced by Mr Geary on the morning of the hearing before the Tribunal on 7 June 2011. As he had had it for six years plainly it ought to have been disclosed to the Board earlier. Mr Geary’s counsel cross- examined the Registrar of the Board (formerly its Secretary).²⁸ She was firm in her evidence that she had not discussed the new complaint with the Society. The Society’s interlocutor did not give evidence.

[70] The Tribunal concluded that the Registrar’s evidence was not shaken in cross-examination. How the Society came by the information that there was another complaint could not be said. The Tribunal concluded:

Overall the evidence has not satisfied us that there was any failure by the Board to comply with Principle 6 when it responded to the plaintiff’s request of 14 January 2005 as it did on 19 January 2005.

Submissions

[71] Mr Beck refers to the 17 January 2005 email from the Society which sourced knowledge of the new complaint directly to the Registrar of the Board. Mr Beck submits that “it is clear that the information given by the Board in the email dated

19 January 2005 was not accurate”. Accordingly, there was a breach of the duty to

disclose all personal information.

[72] The Board submitted that the Tribunal had heard the Registrar’s evidence, tested under cross-examination, and had rejected Mr Geary’s theory, consistent with the Society’s email of 17 January 2005, that the source of her knowledge of the

_{second complaint had been the Board.}

²⁸ The title “Secretary” of the Board changed in August 2004 when the Secretary became the

Registrar.

Analysis

[73] No basis has been presented by the appellant in this case to overturn the decision of the Tribunal on this finding of fact. It was unfortunate (to say the least) that the email suggesting that the source of the information was the Board Registrar (and therefore the disclosure of 19 January 2005 would have been inaccurate) was not presented until the morning of the hearing. Despite that fact the email was put to the Registrar. She was cross-examined on it. The Tribunal preferred her recollection, which was that the statement in the email was wrong. Critically, no evidence was given by the representative of the Society to contradict that view. While the email, closely contemporaneous, is strong evidence that there may have been such a communication, the Tribunal was entitled to prefer the evidence of the Registrar that there was not. We are in no position to reach a different conclusion. Nothing new has been put before us that was not before the Tribunal.

[74] The answer to Issue 3 is “No”.

Issue 4: Information request 3 May 2005

[75] Issue 4 is as follows:

Did the Tribunal err in concluding that Principle 6 was not breached by the Board in withholding the contents of the complaints by complainants Y and Z (neither of which it was investigating)?

[76] Information Privacy Principle 6 concerns access to personal information: the entitlement of individuals to access personal information held about them where information is held in a way that can readily be retrieved. There are of course a number of statutory exceptions to the provision of information, which we will discuss later.

[77] On 3 May 2005 Mr Geary wrote to the Board requesting “disclosure of any private material sent to the Board with respect to me”. The Board replied the same day. It said it did not believe it had any information about Mr Geary other than in

relation to complainants S and X. It said, too, that all personal information about the plaintiff on those two files had already been disclosed.

[78] At that time Mr Geary already had in his possession documents he had obtained from Privacy Act 1993 requests to the ACC and the Health and Disability Commissioner. It was these documents (or a number of them) that he produced unexpectedly at the hearing on 7 June 2011.

[79] Mr Geary’s complaints about the Tribunal’s decision in relation to the

Board’s processing of this request came down to two documents.

[80] Complainant Y: A four page handwritten note alleging an improper personal relationship between Mr Geary and a client, complainant Y, between 1980 and 1982. That complaint was not acted on by the Board because it had no jurisdiction. Mr Geary only became a registered psychologist in September 1983.²⁹ The complaint appears to have been filed away by the Board and mislaid. Only in September 2006, while issues between the Board and Mr Geary continued to

ferment, was it discovered. As soon as the note was discovered, the Board wrote to Mr Geary and told him that it had found the complaint. But it did not provide a copy of the complaint. It considered that it contained personal and sensitive information about complainant Y, so that disclosure would have been an unwarranted intrusion into her affairs. The Board referred to s 29(1)(a) of the Privacy Act 1993.

[81] Of course, however, Mr Geary already had a copy of the complaint. Either the Accident Compensation Corporation or the Health and Disability Commissioner had released a copy to him in February 2005. It followed that he had a copy of the complaint even when he made the request on 3 May 2005. That does not excuse the Board’s failure to produce it. But it is relevant to the discretionary question of remedy.

[82] Complainant Z: A one page letter of complaint from complainant Z written to the Health and Disability Commissioner in January 2003. Again it complained of

_{Mr Geary initiating an improper sexual relationship with the complainant while she}

²⁹ Mr Geary had been a psychologist in the hospital service since the 1970s.

was a patient. However the relevant events occurred in 1977. Again they were outside the jurisdiction of the Board. How the Board itself obtained a copy of the letter is not entirely clear. But again it did not act on the issue because it had no jurisdiction to do so. Again the complaint letter was filed and mislaid. It was discovered during further searching of the Board’s archives. The plaintiff was immediately advised of its discovery in March 2007. No copy was supplied. Again, on the basis that disclosure would be an unwarranted intrusion into the complainant’s affairs. Again, too, Mr Geary already had it. When dealing with this issue the Tribunal thought that it had not seen a copy of the complaint. But it now appears that it was before the Tribunal in Mr Geary’s supplementary bundle of documents. It is another document that he had obtained, presumably, from the Health and Disability Commissioner in February 2005.

[83] At some point³⁰ Mr Geary complained to the Office of the Privacy Commissioner about the withholding of the content of those two historical complaints by complainants Y and Z. In a decision dated 5 June 2007, the Privacy Commissioner considered Mr Geary’s complaint in relation to both these historical complaints. The decision records the Privacy Commissioner’s understanding that the Board had never acted on the complaints, as the events complained of occurred before he became a registered psychologist. The Board had provided copies of the two documents to the Privacy Commissioner. (It appears that neither the Board nor the Privacy Commissioner were then aware that Mr Geary already held copies of them). The Commissioner concluded that the information contained in the document would enable Mr Geary to identify the complainants. (In fact he was already aware of who they were). The Commissioner noted that it was important that the documents had not formed the basis of or had influenced any action or decision of the Board. That gave the former clients a “stronger claim to privacy in relation to this information” than Mr Geary did. The Commissioner concluded:

I also agree with the Board’s submissions that releasing the documents may result in additional trauma to the individuals concerned. Accordingly I am satisfied that releasing these documents to Mr Geary would involve the unwarranted disclosure of the affairs of other people and that the Board is entitled to withhold these documents from Mr Geary under s 29(1)(a).

³⁰ Perhaps after the existence of complaint Y was disclosed to him; the date is not clear.

[84] The Tribunal agreed with that view (at least in relation to complainant Y; it had not appreciated that the bundle produced by Mr Geary on the morning of the hearing contained complaint Z also). The Tribunal said:

We are inclined to agree with the Board that the nature of the complaint, the fact that it was not acted upon as a separate matter by the Board and the difficulty of protecting the anonymity of the complainant if the details of allegations were released, do support the Board’s assessment that the disclosure of the complainant and/or the entirety of the complaint would have been an unwarranted intrusion into the affairs of the complainant. Nor do we see the fact that the plaintiff has since obtained the document from a different source as of itself establishing that s 29(1)(a) is no longer available as a withholding ground. Having made those points, however, we do agree with the plaintiff that – if his access request of May 2005 had been answered with reference to all that was on the Board’s files at that time – he should at least have been alerted to the existence of two more complaints about him.

[85] The Tribunal therefore found that the Board’s response to the information access request of 3 May 2005 did not meet the standard required by Principle 6. At [107] of its decision the Board said:

With respect to [the 3 May 2005 request], however, we find the Board’s response to the plaintiffs information access request did not meet the standard required by Principle 6 of the Act, because the Board did not disclose the existence of two complaints that the Board had received in respect of the plaintiff.

Submissions

[86] In submissions on his behalf, Mr Geary complains that the Tribunal failed to deal adequately with the “unknown complaint” (i.e. from complainant Z). The Tribunal had said it could not reach a final decision on the matter because it had not seen the document. The Board had offered to provide the letter to the Tribunal, and the Tribunal had declined that offer. (In fact, it was in the supplementary bundle anyway). The onus to show good grounds for withholding the material rested on the Board, and the Tribunal ought to have found a breach of Principle 6 in relation to the non-disclosure of that letter.

[87] As to the “known complaint” (by complainant Y), the Tribunal’s conclusion

that the content was justifiably withheld under s 29(1)(a) should not be accepted

because Mr Geary (as a “professional”) was entitled to be informed of complaints to a professional body. Natural justice required that a person who was the subject of complaint be entitled to respond). There was no basis to preserve the complainant’s anonymity further.

[88] The complaint was also seen by the Board as having professional relevance, it having been relied on as one of a number of factors justifying in making its decision in May 2005 to commence a competency review.³¹ One of the grounds stated for the competence review commenced by the Board in May 2005 was the fact that the Board had received a letter from the Health and Disability Commissioner, dated 29 January 2004. That letter referred the complaint by complainant X to the Board. The letter from the Health and Disability Commissioner said:

Since early 2000 my office has received four complaints concerning Mr Geary, all of which were referred to the Psychologists Board. Three of the complaints allege that Mr Geary had entered into relationships with patients, and the fourth concerned his assessment techniques in relation to a report prepared for the Court.

It appears, therefore, that that letter refers to all four complaints the subject of discussion in this judgment – i.e. by complainants S, X, Y and Z.

[89] In response, the Board accepts that it failed in 2005 to adequately manage its records. Its failure to disinter the two complaints by Y and Z at that time meant that it failed to meet the Principle 6 standard – as the Tribunal found. But the Board says that it did not act on either complaint, for jurisdictional reasons, and put them to one side. The fact that the two mislaid complaints are indirectly referred to in the letter from the Health and Disability Commissioner, which was then itself one of the grounds given for undertaking competency review, was beside the point. No disciplinary action was taken by the Board. None could have been influenced by the two historic complaints. As at May 2005 when the decision to commence the competency review was undertaken, the Board, self-evidently, was not acting on the complaints (and had mislaid them in its filing system). The two historic complaints

_{by Y and Z were only disinterred in 2006 and 2007.}

³¹ See at [6] above.

Analysis

[90] First, it is clear to us that the Tribunal was entirely correct to find that the Board failed to meet Principle 6 in respect of its file management, and in particular in failing to disclose the existence of complaints by Y and Z to Mr Geary when he made his request in May 2005.

[91] Secondly, we agree with the tentative conclusion of the Tribunal, and more specifically the direct and fully informed conclusion of the Privacy Commissioner in

2007, that the Board was correct in not disclosing, in 2006 and 2007, the contents of the two complaints by Y and Z. Specifically, we agree that the release of the documents to Mr Geary in their context would have involved the unwarranted and unnecessary disclosure of personal information of a sensitive nature. We observe that the Privacy Commissioner was unaware that Mr Geary in fact had copies of both complaints at that stage. The Tribunal was under the misapprehension that he had seen only complaint Y when the matter came before it four years later in June 2011. But we agree notwithstanding that the Board was correct to refuse to disclose the content of the complaints, given their nature and given that they had not been acted upon by the Board.

[92] Thirdly, we are satisfied on the evidence that the two historical complaints,

although referenced in the Health and Disability Commissioner’s letter of 29 January

2004, were not in fact a direct or operative basis of the decision to establish the competence review in May 2005. There are two reasons for that conclusion. The first is that although indirectly referenced in the Health and Disability Commissioner’s letter, the Board did not at that time have direct access to the two historical complaints (unlike the other complaints on which the competence review was in part justified). So they had no material operative effect on the decision to establish the review. The second reason is that there was in any case more than ample reason to establish the competence review under s 37 of the Health Practitioners Competence Assurance Act 2003, as set out in paragraph 4(a) – (c) of the letter dated 25 May 2005 from the Board advising Mr Geary of the establishment of the review. Those reasons concerned the findings of the Board in June 2003 concerning complainant S, its interim decision in March 2005 concerning complaint

X, the judgment of Miller J in September 2004 concerning the appeal from the former decision, and the Board’s consideration of the evidence given at those hearings. The competency review is not a disciplinary process, although it will be seen no doubt as an adverse event by its subjects. But it is clear from Part 3 of that Act, its principle objectives are evaluative, educational and remedial, rather than disciplinary.

[93] Accordingly, the answer to Issue 4 is “No”.

Issue 5: Remedies

[94] Issue 5 is:

Did the Tribunal err in refusing to award the appellant any remedy, in particular, either declaratory relief or damages?

[95] At this point, the decision of the Tribunal is roughly co-ordinate with that of this Court. We have indicated we differ in certain respects from the reasoning of the Tribunal, but those points of difference do not alter the outcome.

[96] It follows that the plaintiff has succeeded before the Tribunal and this Court on a single common finding: that the failure of the Board in May 2005 to locate and identify the two historic complaints by Y and Z was a breach of Principle 6.

[97] We have set out at [85] above what the Tribunal ultimately said about that at [107] of its decision. However, when it came to the question of remedy, the Tribunal declined to grant either damages or a formal declaration.

[98] As to damages, it suggested that the amount claimed for damages for humiliation, loss of dignity and injury to feelings, was wholly unrealistic in quantum. The only breach of the Act providing a basis for damages was the finding of the Tribunal at [107], quoted earlier. The Tribunal found no evidence of any specific harm suffered as a result of that particular breach.

[99] And as to a declaration, the Tribunal said that the outcome of the case represented, “at best a somewhat empty victory for the plaintiff”. The plaintiff’s case had failed substantially. The majority of his claims had been dismissed.

[100] Secondly, the Tribunal said that it had real concerns about the way in which the plaintiff had “conducted himself in these matters”. It noted that the plaintiff, having obtained documents from third parties suggesting that the Board might have had more information to disclose, did not then pass that information on to the Board in an open fashion. Instead he wrote to the Board to “try to catch it out”. The Tribunal was particularly critical of the apparent strategy adopted by Mr Geary to produce key documents – “the centrepiece of the evidence against the [Board]” – at the last minute on the morning of the hearing. In those circumstances, the Tribunal said it was not prepared to make any declaration in the plaintiff’s favour.

Submissions

[101] For Mr Geary, Mr Beck’s argument for damages focused on the Principle 11 claim. We have found against Mr Geary on that point and there is no need for us to discuss that aspect of the submissions further. Nonetheless Mr Beck argues that the actions of the Board in failing to make proper searches and to disclose all information in its possession “added to the stress suffered by the appellant”. Mr Beck said that “at least a modest award for damages would serve to acknowledge this”.

[102] As to the denied remedy of declaration, Mr Beck submits that while the Tribunal had found a breach of Principle 6, where damages are not to be awarded a declaration becomes a “vitally important remedy”. It becomes the only vindication for a person whose rights have been infringed. Mr Beck suggests that there must be “extraordinary circumstances” to withhold a declaration in such a situation. To refuse a declaration in those circumstances is, Mr Beck submits, “the equivalent to saying that the breach of a statutory right does not matter”.

[103] For the Board, Mr Radich reminds us that the remedial aspect of the Board’s

decision was a discretionary one, and the constraints referred to in [19] above apply.

He submits that Mr Geary had not met the May v May threshold required for a Court on appeal to disturb the Tribunal’s findings. Mr Radich submits that Mr Geary could not show that the two “unseen” complaints were causative of emotional damage, and that the Tribunal was plainly wrong not to have concluded that. Such a standard, Mr Geary could not meet.

[104] As to the refusal to grant a declaration despite the content of [107] of the Tribunal’s finding, Mr Radich conceded that that could be rationalised only on the basis of “strong disentitling conduct”. Such conduct did exist in this case because Mr Geary had obtained the documents from the Health and Disability Commissioner in February 2005, before he made the 3 May 2005 request, went through the complaint process to the Privacy Commissioner without disclosing that fact, and then only produced those documents in the Tribunal at the last minute at the hearing on 7 June 2011.

Analysis

[105] We have reached two conclusions.

[106] First, we are satisfied that no case for damages can be made out in this circumstance. Although the Board had failed in its Principle 6 obligation to disclose the existence of the two complaints to Mr Geary when he made his request in May

2005, the short point is that he already had copies of those documents. When the Board gave him an inadequate response three months later to his request, he did not take immediate steps to correct the Board. Given that he already had the documents, we cannot see how it can be said that the Board’s failure to identify the two mislaid complaints could realistically have caused him humiliation, loss of dignity or injury to feelings.

[107] Secondly, we reach a rather different view in relation to the issue of declaration. It is clear that the Tribunal regarded Mr Geary’s conduct as sufficiently egregious to disentitle him to the discretionary remedy of a formal declaration. This despite the finding already made as to breach of Principle 6 by the Board. We accept that the granting of a declaration under s 85(1)(a) of the Privacy Act 1993 is

discretionary in nature. The same is the case with declarations under the Declaratory Judgments Act 1908, although that consideration is there made explicit.³² A declaration may be declined generally on the basis of disentitling conduct.³³

Whether the applicant has acted with clean hands, or has acted “fairly and appropriately”³⁴are relevant questions.

[108] Mr Geary’s conduct in his proceedings against the Board before the Tribunal was tactical, improper and deserving of criticism. He received that criticism from the Tribunal. In particular, the “centrepiece” documents should have been disclosed far earlier, so that the Board knew what it was facing at the hearing on 7 June. It was not behaviour that was “fair or appropriate”. But we do not consider that a low “fairness” standard should be applied to deny declaratory relief where a clear breach of statutory obligation by a statutory authority has been found. Only then where an equally clear, but exceptionally egregious, breach of the standards to be expected of a litigant exists should declaratory relief be denied. What Mr Geary did at the hearing did not in our view reach that very high threshold for exception. Accordingly we do not see his behaviour as sufficiently disentitling conduct to deny expression of the finding the Tribunal made at [107] of its decision as a formal declaration. That is, that the Board’s response to the plaintiff’s information request of 3 May 2005 did not meet the standard required by Principle 6 of the Act, by not disclosing the existence of the two historic complaints by X and Y.

[109] To that extent we differ substantively from the decision of the Tribunal on appeal.

[110] The answer to Issue 5 is “Yes”. The Tribunal should have declared, formally, that the Board’s response to the plaintiff’s information access request of 3 May 2005 did not meet the standard required by Principle 6, by not disclosing the existence of

_{the two historic complaints.}

³² _{Declaratory Judgments Act 1908, s 10.}

³³ Kung v Country Section of the New Zealand Indian Association Inc [1996] 1 NZLR 663 (HC),

666; Apineru v Board of Trustees of the Congregational Church of American Samoa in New Zealand (Porirua) Trust HC Wellington CIV 2003-485-713 16 September 2004 at [53]; Hongkong Bank of Canada v Wheeler [1993] 1 SCR 167; 100 DLR (4^th) 40 (SCC); Zamir & Woolf The Declaratory Judgment (4ed, Sweet & Maxwell, London, 2011) at 4.31.

³⁴ Apineru above n 33 at [53] per Wild J.

Disposition

[111] The appeal is allowed, but only to the extent identified in the preceding paragraph.

[112] The appeal has succeeded, but only to a very small extent. Most of the appellant’s grounds of appeal have been dismissed by this Court. There will, therefore, be no order for costs in this Court.

Stephen Kós J Ms S L Ineson QSM Ms P J Davies

Solicitors:

Gault Mitchell, Wellington for Appellant

Minter Ellison Rudd Watts, Wellington for Respondent