Chief Executive of the Ministry of Social Development v Holmes [2013] NZHC 672 (8 April 2013)

Last Updated: 1 May 2013

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000741 [2013] NZHC 672

UNDER the Privacy Act 1993

IN THE MATTER OF an appeal from the Human Rights Review

Tribunal

BETWEEN CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT

Appellant

AND GORDON HENRY HOLMES Respondent

Hearing: 18 and 19 February 2013

Appearances: J Holden and T Bromwich for the Appellant

Respondent in Person

L Andersen as Amicus Curiae

J M Ryan for Director of Human Rights Proceedings

Judgment: 8 April 2013

RESERVED JUDGMENT OF THE COURT FOGARTY J, G J COOK JP AND THE HON K L SHIRLEY

CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT V HOLMES HC DUN CIV-2012-

412-000741 [8 April 2013]

Table of Contents

Introduction ............................................................................................................[1] Structure of this judgment ......................................................................................[7] This Court on appeal ..............................................................................................[8] Narrative of the facts ............................................................................................[13] Application of the provisions of the Privacy Act 1993 ........................................[42] Whether or not there was a decision under s 40, to refuse information, requested

on 22 August 2010 ...............................................................................................[53] Second head of liability – the later refusal to supply the TAS information as requested on 4 October.........................................................................................[82] The finding that the Tribunal erred in finding that MSD/WINZ’s breaches were “sustained and systemic”......................................................................................[84] Did the Tribunal have the jurisdiction to order MSD/WINZ to carry out a review

of the Ministry’s processes for ensuring compliance with the Privacy Act? .......[98] Did the Tribunal err in awarding damages of $17,000? .....................................[102] Appeal on award of damages .............................................................................[103] Procedural point ................................................................................................[103] Whether the damages of $10,000 and $7,000 were excessive ...........................[109] Conclusion and summary ...................................................................................[156] Result ..................................................................................................................[162]

Other orders .......................................................................................................[163]

Introduction

[1] Mr Holmes is in receipt of an unemployment benefit, and has been since September 1999. The Human Rights Review Tribunal described his relationship with the Ministry of Social Development (MSD) and Work and Income New Zealand (WINZ) as an unhappy one, and commented that he is, in some respects, an eccentric, but he is an honest and upright individual who has a strong sense of what is right and what is wrong. His written communications with the Dunedin Central Office of WINZ are typically prefaced with complaints about how badly he has been treated by them.

[2] On 13 October 2009, he sought the assistance of WINZ to pay the cost of

$70 for an eye test, in order to maintain his driving licence. WINZ sent a letter to him advising of a $70 advance to be repaid at $3 per week, starting 22 October 2009. Although the letter did not spell it out, it meant there would be a final payment of $1 due on 1 April 2010.

[3] The terms of this advance are at the root of the decision of the Tribunal1 under appeal in this case. For WINZ intended this to be a refundable allowance, and Mr Holmes wanted it to be non-refundable. An officer of WINZ, Mr Rakiraki, had discussed the prospect of $20 worth being non-refundable. From 2009 onwards, there was an ongoing dispute between WINZ and Mr Holmes on the subject, known by them both as TAS (an acronym for Temporary Additional Support). Mr Holmes must have appreciated that it takes 23 weeks of $3 payments to repay $69, with a further $1 to pay the balance. This period essentially ended about 1 April. This was the date of the annual general increase. Unbeknown to Mr Holmes, an officer of WINZ decided to apply the $3 per week, after repayment of the $70 advance, to the balance of a separate advance of $44 to a driving licence, which hitherto had been paid off at $1 per week. It was not until 19 May that that advance was paid, ending

_{deductions for advances and enabling the annual increase of $3.73 to emerge.}

1 Holmes v Ministry of Social Development [2012] NZHRRT 19.

[4] On 22 August, in the course of ongoing correspondence about the question of whether or not the $70 should have been non-refundable (the TAS dispute) Mr Holmes wrote:

2. I ask you to review the decision to deny me my increase April 1st

2010 until I started making inquiries in regard to this matter...

3. Please supply all letters of correspondence in relation to this denial...

[5] That request and the ensuing responses of WINZ became the subject of an application under the Privacy Act 1993 to the Human Rights Review Tribunal for damages, being a claim of breach by WINZ on two occasions of its obligation under that Act to provide all relevant personal information on its files within 20 days of a request. This being a right protected in the Privacy Act by Principle 6 (access to

personal information)2 and an obligation to supply the information within 20

working days.3 The Tribunal found breach in two respects and awarded damages of

$10,000 and $7,000, totalling $17,000 together with a lump sum of $300 for stationery, postage, copying and related expenses of Mr Holmes.

[6] The Chief Executive for the Ministry of Social Development, responsible for WINZ, appeals. Mr Holmes, appearing for himself, defends the decision. He was supported as to the amount of damages by counsel for the Director of Human Rights Proceedings. The Court appointed Mr L Andersen as an amicus curiae. This was because of the limited opposition by the Director of Human Rights Proceedings to the appeal by MSD. Mr Andersen was not given any directions by the Court, and helpfully gave submissions as amicus curiae, including making the argument for Mr Holmes on issues where Mr Andersen judged Mr Holmes would not have the ability to make the argument.

_{Structure of this judgment}

[7] This judgment is long. We think that is unavoidable. One of the reasons for its length is that we have a different perspective, including different material

_{interpretations of relevant provisions of the Privacy Act, which was the Act being}

2 _{Section 6.}

3 Section 40(1).

applied in this case to have found the awards of damages. The structure of the reasoning of this judgment is as follows:

(a) This Court on Appeal

Under this heading, we examine to what extent this Court, sitting on appeal, can fully review the decision of the Human Rights Review Tribunal. As to whether or not there was any breach of the Privacy Act, we consider there is a full right of appeal. As to the amount of damages, we consider that is an exercise of discretion, and we have a more limited role, so that we can only intervene for error of principle, or because the decision is plainly wrong.

(b) Narrative of facts

Under this heading, we have set out at some length the correspondence that was passing between WINZ and Mr Holmes. We have included all relevant correspondence at the time, including correspondence on matters unrelated to the two letters which generated the findings of liability. We do that deliberately, as we think it is important to see those letters in context.

(c) Application of the provisions of the Privacy Act

We then turn to study more closely just what is required of WINZ by the Privacy Act. We focus on the Privacy Act being a statute designed to enable individuals to obtain information collected about them. We distinguish this from requests for explanations for reasons why decisions have or have not been taken.

Having laid out the facts and considered the important provisions of the Privacy Act, we then turn to specific issues which underpin the two findings of liabilities. We focus on the first finding of liability arising from the letter of 22 August of Mr Holmes. We do this

because the second letter, which founded the second order for damages, is agreed to have been a request for information which was not answered in time. That topic is under the heading “Whether or not there was a decision under s 40, to refuse information, requested on 22 August 2010.

Having analysed the material and concluded that there was not a

refusal, we reverse the Tribunal’s decisions on liability.

(d) Second Head of Liability

We then briefly record that this head of liability is not disputed, but that there was an apology.

(e) The finding that the Tribunal erred in finding that MSD/WINZ

breaches were sustained and systemic

We examine this issue as the Tribunal’s finding to this effect underpinned the level of damages that it awarded. After analysis, we reject this finding.

(f) Did the Tribunal have the jurisdiction to order MSD/WINZ to carry out a review of the Ministry’s processes for ensuring compliance with the Privacy Act?

We examine this topic because the Tribunal ordered a nationwide review. We conclude that the Tribunal does not have this power.

(g) Did the Tribunal err in awarding damages?

Because we find that the first ground of liability is not made out, it follows that we do not think the damage award of $10,000 can stand. However, we analyse damages anyway, in the event that we are wrong about there being no liability on the part of WINZ’s response to Mr Holmes’s letter of 22 August.

This section of the judgment on damages breaks down into a number of points.

(h) Procedural point

We begin by considering the procedural point as to whether or not the Tribunal was confined by the damages that Mr Holmes sought in his application. We answer that question “no”.

Then we go on to consider the levels of damages. Keep in mind that we examine the first award of $10,000 against the possibility that we are wrong in rejecting liability. We examine the second award of

$7,000 on the basis that liability was admitted. We come to the conclusion that both awards were too high. We think that was in part because of some errors of law. We do not allow the first award at all, because we found there was no liability, and we reduce the second award from $7,000 down to $2,000.

At the end of the judgment we have a conclusion and summary which endeavours to capture the material facts and the conclusions of the judgment.

This Court on appeal

[8] Complaints under the Privacy Act can be subject to examination by the Privacy Commissioner and to proceedings before the Human Rights Review Tribunal. Mr Holmes, as an aggrieved individual, brought proceedings before the Tribunal under s 83 of the Act. Section 89 of the Privacy Act provides that certain provisions of the Human Rights Act 1993 apply in respect to proceedings under s 83. They include Part 4 of the Human Rights Act, which provides for a right of appeal to the High Court in s 123. This is a right of general appeal. Section 123 provides:

123 Appeals to High Court

...

(5) In determining any appeal under this section the High Court shall have the powers conferred on the Tribunal by sections 105 and 106 of this Act, and those sections shall apply accordingly with such modifications as are necessary.

(6) In its determination of any appeal, the Court may—

(a) Confirm, modify, or reverse the order or decision appealed against, or any part of that order or decision:

(b) Exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.

(7) Notwithstanding anything in subsection (6) of this section, the Court may in any case, instead of determining any appeal, refer to the Tribunal, in accordance with the rules of Court, for further consideration by the Tribunal, the whole or any part of the matter to which the appeal relates.

[9] Section 126 of the Human Rights Act provides for additional members for the purpose of such an appeal. Accordingly, this Court sits with two additional members. The two additional members of this Court, Messrs G J Cook JP and Hon K L Shirley, have considerable experience as past and present members of the Tribunal.

[10] Counsel agreed that as to the question of any breach there is a full right of appeal, to be guided by the Supreme Court decision in Austin, Nichols & Co v Stichting Lodestar.4 In respect of damages, Mr Andersen submitted that that being an exercise of discretion, the Court should be guided by the decision of May v May,5 so that the award should not be overturned unless it can be demonstrated that the

lower Court made an error of principle, considered irrelevant matters, failed to consider relevant matters or is plainly wrong. There is divided case law in the High Court as to whether the May v May limitations apply where there is a right of general appeal.

[11] We have proceeded with the analysis on the basis that we first follow the

_{Supreme Court in Austin, Nichols, so that the appellant bears the onus of satisfying}

4 _{Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103.}

5 May v May [1982] 1 NZLR 165 (CA).

this Court that it should differ from the decision under appeal, and only if this Court considers the appeal decision is wrong is it justified in interfering with it.6 In this case, this Court takes into account that the two additional members of the Court have experience and expertise in these sorts of issues. This is a general appeal and, accordingly, this Court has a responsibility of arriving at its own assessment of the merits of the case.7

[12] For the reasons which become apparent, we do not find it necessary to decide if those responsibilities are confined when we come to the question of damages by the May v May criteria.

Narrative of the facts

[13] On 5 January 2010, Mr Holmes asked WINZ to review the TAS decision of

13 October 2009; see [2] above. After a large number of complaints about the way he was treated at that time, he said that he was never told how much would be deducted, or when. Some of the flavour of the letter can be appreciated by the closing remarks:

...She told me to fill out rest of form for extra benefit. When I told her I couldn’t as I didn’t have my mag [magnifying] glass with me, she stated that’s your problem then, the forms were not given to me to take away when I asked for them to do this, she said you had your chance and took them away. I was never told how much would be deducted or when, by this person.

I was belittled and humiliated by her but am not surprised in view of continuing treatment against myself by WINZ and other agencies in collusion with WINZ.

[14] That letter was acknowledged by a WINZ reply on 11 January 2010. It being interpreted (correctly we think) as an application for a review of the WINZ decision to pay for the eye test by means of an advance, rather than by means of a non- recoverable payment. (The $70 was paid directly to the optometrist in October

_2009.)

6 _{Austin, Nichols & Co v Stichting Lodestar [2007] NZSC 103 at [4].}

7 At [5].

[15] On 5 February 2010, WINZ wrote to Mr Holmes, saying they had completed an internal review and considered the original decision (an advance only) to be correct. The consequence of this review was that his application would continue to the Benefits Review Committee for a hearing. That took place on 25 March 2010. There were no appearances made. The Committee agreed to uphold the original decision.

[16] Mr Holmes decided to appeal this decision to the Social Security Appeal Authority (SSAA), and did so in June of 2010. This letter is full of complaints as well, about how he had been treated, made the subject of “lies and deceit”, and “suffered further threats and intimidation”.

[17] On 1 April 2010, his unemployment benefit rate was adjusted by application of the Annual General Adjustment. In this year, for Mr Holmes, this was an increase of $3.73 per week.

[18] Unbeknown to Mr Holmes, or the branch manager of the Dunedin Central office of WINZ, Mrs Dixon, an internal decision was made within WINZ to transfer the deduction of $3 per week agreed (imposed) in October 2009 to complete repayment of a $44 advance to pay for a driving licence. So that it was not until 19

May that the deductions ceased.

[19] On 27 July 2010, Mr Holmes wrote to WINZ asking for a review of the decision to “intentionally deny me extra help of benefit, namely, TAS on 13/10/09”. (This is the same matter which had already been reviewed, and in respect of which he had appealed to the SSAA.) In his letter, he complains about failure of the SSAA to respond. In the letter he says:

This request for review is now of course, out of time request, due to failure from WINZ and SSAA to respond/reply, both to my letters of 5/1/10 and to which I have no response over its content and review committee who failed to address the issue and now SSAA who failed to respond to my questions in letter dated 14/6/10 over this matter.

[20] On 8 August 2010, Mr Holmes wrote another letter, again asking WINZ to review the decision “to deny me extra help like TAS or any other form of benefit

help on 5/7/2009”. The letter acknowledges that it is out of time. It repeats complaints of lies, deceit, discrimination, etc.

[21] On 9 August 2010, WINZ replied, saying that the case manager who saw him on 13 October 2009 discussed this assistance (non-recoverable supplementary allowance) with him, but he never applied for it. The author of the letter, Mr Rakiraki, invited him to test for his eligibility for temporary additional support and enclosed an application for this purpose.

[22] On 11 August 2010, Mr Holmes wrote to WINZ. It starts by referring to his letter on 10 October, but moves on to, at the end, discussing the letter from Mr Rakiraki in these terms:

I have received a further letter from Mr S Rakiraki full of yet more lies and deceit, he is nothing to do with me as paperwork shows! I have the flu and will respond to his paperwork at a later date.

[23] That letter was replied to by WINZ on 18 August by Mrs Dixon, the branch manager, in these terms:

Thank you for your letter of 8 and 11 August 2010 concerning reviewing a decision to decline extra assistance by way of Temporary Additional Support.

The contents of these recent letters refer to the same matter directed to

Simon Rakiraki and responded to on 9 August 2010, by him.

I am trying to locate any papers as you requested regarding details of offers to advise your income details to Housing New Zealand. As soon as I am able to locate anything, I will provide copies to you.

Your other concerns are to do with your current appeal before the Social

Security Appeal Authority and I am therefore, not in a position to comment.

If you have questions about the appeal, you can contact Donna Thian, Appeals Officer, PO Box 1556, Wellington.

If, however, your questions are about the appeal process, you will need to contact the Ministry of Justice in Wellington.

[24] We now come to the letter from Mr Holmes of 22 August, which is the foundation of the Tribunal’s decision to award Mr Holmes damages. This letter we set out in full:

Dear Branch Manager/Dunedin Central, WINZ

1. I respond to yet another letter full of lies and deceit dated 18/8/10 from yourself. The content of my letters does not refer to matters directed to and responded to on 9/8/10 by S Rakiraki at all! My other concerns, were to bring further lies and deceit to your attention but as you refuse to act/respond to my real concerns, please note the following: and respond.

2. I ask you to review the decision to deny me my increase April 1st 2010 until I started making inquiries in regard to this matter. (This is in line with the threats and intimidation made against me and my children “our contacts in WINZ” will take care of me.) This is of course out of time due to other matters and your contacts, threats, which I have to consider carefully.

3. Please supply all letters of correspondence in relation to this denial to myself or any third party or other party in relation to no. 2 of this letter under Privacy Act 1993, and Official Information Act 1982 in regard to letters between other parties and yourself. Please supply reasons, of decision to deny, under Ombudsman Act 1975, as advised.

4. Please confirm in writing that you are refusing to review the 2 previous requests of 27/7/10 and 8/8/10. I have already stated my concerns over Mr Rakiraki and this is also not in line with correspondence from the Chief Ombudsman, due to MSD lies and deceit.

5. I have and continue to suffer severe hardship due to your intentional actions and decisions by M.S.D. and your contacts. Money was stolen some years ago and the Ombudsmans Office failed to act as involved, all documented.

Yours sincerely

[25] Mrs Dixon replied to this on 27 August 2010 in these terms:

Dear Mr Holmes

I have received your letter dated 22 August and respond to your queries:

Your letter of 27 July claimed that you were denied extra help, namely TAS, on 13 October 2009. You did not apply for TAS or provide information to enable a grant to be considered. Mr Rakiraki has since requested that you apply for this Temporary Additional Support. To date, no application has been received.

On 8 August your letter requested all paperwork under the Privacy Act referring to this department offering to provide your income details to Housing NZ and your understanding that you did not agree to this.

My response to you on 18 August was that I was still attempting to locate such paperwork. I have now located one electronic note dated 5 July 2007 when the case manager at South Dunedin reports that you refuse to provide information about your income to Housing NZ. A copy of this is attached.

I am unable to locate any other references as you request. Your file has not been searched at this point because it is currently held by the Social Security Appeal Authority.

Yours sincerely

[26] On 4 October 2010, Mr Holmes wrote to the branch manager at Dunedin WINZ. This letter is the foundation of the Tribunal’s finding of the second breach by WINZ. This is a letter which starts out by making requests under the Official Information Act for all paperwork in regard to eye test, reading glasses and costs for Mr Meikle. Mr Meikle is described further in the letter as “an aggressive individual and his relationship with Mr Mills [a MSD/WINZ case manager] is very close as with others in WINZ”.

[27] It then goes on to make a request under the Privacy Act for “all paperwork supplied to myself in regard to TAS between denial 13/10/09 and S Rakiraki letter full of lies 9/8/10.” It then turns to the WINZ letter of 27/8/10 disputing that he made no queries, complaining of a refusal to review or confirm in writing to requests by him, criticising Mr Rakiraki as a liar and deceitful person, and also advising that he was going to contact the SSAA and the Ombudsman’s office over her behaviour.

[28] There was further correspondence from Mr Holmes on 9 November 2010, complaining of failure to supply information requested, and on 7 December 2010.

[29] On 13 December 2010, Mrs Dixon replied to his letters of 4 October, 9

November and 7 December 2010. She refused to supply information about another person’s payments details. She denied that there was any other paperwork that he had not yet got relating to Temporary Additional Support. She advised that there was no information passing between Housing New Zealand and WINZ. Referring to the letter of 9 November, she said that she was unable to provide details as to the date he would be entitled to receive TAS until he made an application for it, and that they had not received the decision of the SSAA. In respect of the paperwork relating to the claim for dentures and spectacles, dated 13 October, she said: “This information has already been provided as this was the reason for your Appeal.”

[30] This led to a reply, dated 15 December 2010, essentially disputing it as all lies.

[31] On 17 December 2010, Mr Holmes received the decision of the SSAA. There had been a hearing on 8 November at which he had appeared in person. This was the appeal against the decision of WINZ, upheld by the Benefits Review Committee, to grant the appellant a recoverable ‘advance of benefit’ of $70 rather than a non-recoverable Special Needs Grant. The appeal failed.

[32] We pass over the ensuing correspondence with WINZ on the subject of the appeal decision, and come to the WINZ letter of 8 September 2011, which is the basis of the second award of damages. The context is that Mr Holmes has, in the meantime, appealed to the Tribunal in respect of the SSAA decision.

[33] The main purpose of the WINZ letter, written by Mrs Dixon, was to respond to Mr Holmes’s letters of 22 August and 4 October, in anticipation of the Tribunal hearing. It says relevantly:

In your letter dated 22 August 2010 you first ask us to review the decision to deny your 1 April 2010 increase until you started making further inquiries and then ask for information in relation to this denial under the Privacy Act

1993 and the Official Information Act 1982.

As you know, in interpreting this request I assumed it must relate to your ongoing concerns in relation to Temporary Additional Support (“TAS”). I came to this conclusion as the Annual General Adjustment, which occurs on

1 April every year, is an automated process, and I did not have any record of you making inquiries about it. The increase you were entitled to as a result of the Annual General Adjustment in 2010 was not denied to you, but rather was applied automatically on 1 April 2010.

As there was no denial in relation to the Annual General Adjustment, and knowing that you had ongoing concerns about TAS, this is how I interpreted your request.

You have since indicated that this request did not relate to TAS. I understand that Crown Law have written to you asking for your interpretation of this request and have not received a response.

I have checked your 2010 Annual General Adjustment and may have found the cause of the confusion surrounding this request.

As you will know, your benefit is paid on Thursdays and it is paid in arrears. This means that on 1 April 2010 you received payment for the period 22

March 2010 to 28 March 2010. Your next payment, on 8 April 2010 was for

the period 29 March 2010 to 4 April 2010; this payment included dates in both March and April, so it was a combination of the old rate and the new adjusted rate. Your first full payment at the adjusted rate occurred on 15

April 2010 for the period 5 April 2010 to 11 April 2010.

I enclose documentation relating to these payments for your records.

I recognise that this staged increase resulting in you not receiving your first full payment until mid-April could have caused some confusion. Work and Income receives many queries from clients in early April each year in relation to the Annual General Adjustment. I apologise if you have not previously received a clear explanation...

[34] After this apology, explained as a result of the demands on staff following the Canterbury earthquake, and after addressing the information he requested about Mr Meikle (denied), Mrs Dixon returned to Mr Holmes’s request for all the paperwork in relation to TAS and enclosed eight documents. She wrote that he had received all before, except item 7. Mrs Dixon went on:

The fact that you had received these documents on a prior occasion did not negate Work and Income’s obligations under the Privacy Act 1993 to supply you with the information when you requested it on 4 October 2010. The reason I point out that you have received this information before is to assure you that we have not deliberately withheld anything from you that you did not already have; we simply misunderstood your request.

I accept that Work and Income had an obligation to provide you with our decision regarding your request for TAS information within 20 working days of your 4 October 2010 request. I also accept that according to the Privacy Act 1993, our failure to provide you with the information that falls within the scope of your request until today without a good reason to refuse access amounts to an interference with your privacy.

Please accept my sincere apologies for the series of events that led to the delay in releasing this information to you. Even though in your 4 October

2010 letter you only asked for TAS paperwork that had been sent to you, I

can confirm that the information enclosed is all of the information Work and

Income holds in relation to TAS between the dates specified in your 4

October 2010 request.

We will inform the Human Rights Review Tribunal of this development and agree to a declaration that Work and Income interfered with your privacy in relation to your request for TAS information on 4 October 2010.

[35] The letter goes on to discuss ongoing concerns about the TAS assessment, and ends:

I apologise if this letter is somewhat repetitive of previous correspondence in relation to these issues, but I just wanted to make sure that each aspect of your requests had been fully addressed and make a final effort to resolve your complaints outside the Tribunal setting.

[36] On 22 March 2010, Mr Holmes had filed a claim with the Tribunal in relation to the 1 April request. That centred on his privacy requests of 22 August and 4

October 2010.

[37] What had actually happened was not fully understood by Mrs Dixon at the time she wrote these last letters.

[38] It can now be seen that Mrs Dixon, in her letter of 8 September 2011, partially explained what happened with the additional benefit acquired by way of the Annual General Adjustment on 1 April. The explanation was that benefits are paid in arrears, so that the first payment after 8 April included dates in both March and April. It did not explain that the last payment to clear the advance for the eye test cost was $1, and that that occurred about 1 April 2010. Second, it does not explain that the rate of $3 per week was then continued for a few weeks, down to 19 May, together with the $1 per week (a total of $4) to clear the driving licence advance.

[39] The Tribunal found that the amount to be repaid is not necessarily the rate of repayment agreed by the parties:

[24] ... But even that rate may not necessarily be accurate for any length of time. Here the letter dated 13 October 2009 told Mr Holmes that the repayments would be at a rate of $3 a week but the printouts headed SWIFTT-Production (Exhibit A) show a “recovery rate” of $1 per week in relation to “An invoice date of 9 November 2009, which presumably relates to the advance payment approved on 13 October 2009”.

[40] It is a matter of calculation that repayments at the rate of $3 per week cannot add up to $70. They add up to $69, leaving $1 to be paid. In normal business terms, a last payment of $1, being less than the $3 per week previously agreed, would not normally be described as a rate “not necessarily ... accurate for any length of time”.

[41] The more significant confusion is that Mr Holmes was never told that the decision to make repayments at the rate of $3 per week in respect of the eye test

allowance might be applied to clear away the balance of the driving licence advance and, second, that Mrs Dixon did not know that that decision had been made. There has never been any production of evidence of how the decision was made. Before us, Ms Holden advised it was a decision by an officer, not the application of a computer program.

Application of the provisions of the Privacy Act 1993

[42] The subject matter of the Privacy Act is information privacy. The long title of the Act is:

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

(Emphasis added)

[43] Section 6 (Information privacy principles) is a cornerstone of the Act and sets out 12 principles. Principle 6 is the subject matter of this litigation.

Principle 6 Access to personal information

(1) Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—

(a) To obtain from the agency confirmation of whether or not the agency holds such personal information; and

(b) To have access to that information.

(2) Where, in accordance with subclause (1)(b) of this principle, an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.

(3) The application of this principle is subject to the provisions of Parts 4 and 5 of this Act.

[44] These are legal rights, enforceable accordingly in a court of law; s 11 of the

Privacy Act 1993.

[45] The reason for principle 6 is not hard to discern. It is important that personal information held by an agency be accurate and, where necessary, complete, so that it does not, by reason of its defects, undermine the dignity of the individual. The effectiveness of this principle is secured by enabling the individual to see at any time the personal information held about himself/herself. This is a very important

principle. It has been much abused by totalitarian governments in the 20th century,

and made a very relevant concern by the explosive growth of data stored electronically. There is an increasing ability by agencies and individuals to collect personal information about others, without their consent. Under the Privacy Act

1993, there are only limited exceptions justifying a refusal to disclose any information requested pursuant to principle 6; s 30.

[46] As well as there being a prohibition against refusal, there is a positive duty to assist an individual to obtain this information. Section 38 of the Act provides:

38 Assistance

It is the duty of every agency to give reasonable assistance to an individual, who—

(a) Wishes to make an information privacy request; or

(b) In making such a request, has not made the request in accordance with the requirements of this Act; or

(c) Has not made his or her request to the appropriate agency,—

to make a request in a manner that is in accordance with the requirements of this Act or to direct his or her request to the appropriate agency.

[47] As already noted, on 22 March 2011, Mr Holmes filed a claim with the

Tribunal in relation to the responses to his privacy requests of 22 August and 4

October 2010. He sought damages, a remedy provided by s 85(1)(c):

85 Powers of Human Rights Review Tribunal

(1) If, in any proceedings under section 82 or section 83 of this Act, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is an interference with the privacy of an individual, it may grant one or more of the following remedies:

(a)

(c) Damages in accordance with section 88 of this Act:

[48] A key finding of the Tribunal, as we will see, is breach of s 38 by WINZ, particularly Mrs Dixon, in not giving reasonable assistance to his information privacy requests, by reason of the inadequacy of her replies of 27 August 2010 and

8 September 2011 (both set out above).

[49] Requests have to be answered promptly. Section 40(1) of the Act provides:

40 Decisions on requests

(1) Subject to this Act, the agency to which an information privacy request is made or transferred in accordance with this Act shall, as soon as reasonably practicable, and in any case not later than 20 working days after the day on which the request is received by that agency,—

(a) Decide whether the request is to be granted and, if it is to be granted, in what manner and, subject to sections 35 and 36 of this Act, for what charge (if any); and

(b) Give or post to the individual who made the request notice of the decision on the request.

...

[50] Relevant to the application of s 40(1) is s 66(3), which provides:

66 Interference with privacy

...

(3) If, in relation to any information privacy request, any agency fails within the time limit fixed by section 40(1) of this Act (or, where that time limit has been extended under this Act, within that time limit as so extended) to comply with paragraph (a) or paragraph (b) of section

40(1) of this Act, that failure shall be deemed, for the purposes of subsection (2)(a)(i) of this section, to be a refusal to make available

the information to which the request relates.

...

[51] Section 66(1)(a)(i) provides:

(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

...

[52] The Tribunal interpreted this combination of sections to apply where the agency has answered a request, but the answer does not qualify as a s 40 decision. The Tribunal considered that Mrs Dixon had misread the request of 22 August, so that her reply of 27 August, discussing TAS, was not a decision on the request. Having referred to these sections that we have just set out, the Tribunal said:

[35] The deeming provision [s 66(3)] is of particular significance to the present case given that the facts establish that the “as soon as reasonably practicable and in any case not later than 20 working days after the day on the request” standard was unquestionably breached. Ms Dixon simply misread the request. Her letter dated 27 August 2010 [replying to the request of 22 August within five days] did not address the request let alone make a s 40 decision. This is not something for which Mr Holmes can be made responsible. Some attempt was later made by Ms Dixon in her letter of 8

September 2011 to provide the information but even at this late stage (a month or so before the Tribunal hearing) the information requested by Mr

Holmes was still not provided.

Whether or not there was a decision under s 40, to refuse information, requested on 22 August 2010

[53] As is implicit at [35] of the decision (set out above), the Tribunal reasoned that because Mrs Dixon’s letter, dated 27 August, did not address the request, therefore it could not be a s 40 decision. This is further elaborated on at [39] and [40] of the judgment under appeal, which read:

[39] Addressing the first point made by WINZ (request not clear), neither the terms of the letter from Mr Holmes dated 22 August 2010 nor the context support the assertion that the terms of the request were not clear. The first of the two paragraphs refers explicitly to the 1 April 2010 uplift. The first day of April in any year is clearly an event of some significance to WINZ given that the Annual General Adjustment involves not only the enormous exercise of reprogramming the payments schedule but also the need to deal with what Ms Dixon described as “the many queries from clients in early April each year”. Both the terms of the letter (“...the decision to deny me my increase April 1st 2010”) and the context allow of no ambiguity or doubt as to what Mr Holmes was addressing. Indeed, when asked by the Tribunal whether she agreed that on its face, the letter from Mr Holmes dated 22 August 2010 was clear, Ms Dixon agreed. She further agreed that it had not occurred to her to go back to Mr Holmes to clarify such doubt or ambiguity as may have been in her mind.

[40] It follows from this factual finding that the request by Mr Holmes for access to personal information was not met with a decision under s 40 within the statutory period prescribed by that section and there was accordingly a deemed refusal to make available the information to which the request related.

[54] The questioning and answers recorded at [39] were put to Mrs Dixon by the Chair of the Tribunal at the end of her evidence. The Chair qualified his questions by prefacing them so that they were framed with the benefit of hindsight. With the benefit of hindsight, and where the second paragraph of Mr Holmes’s letter of 22

August is clearly delineated and examined, the analysis is undoubtedly correct. But there is equally no doubt that, at the time, Mrs Dixon did not read it that way, as the Tribunal found at [35]. There is no doubt that Ms Dixon did understand it to be a request for a review, but thought wrongly it was a TAS request, and within five days set out to answer it.

[55] There is no provision in s 40 which defines “decisions on requests”. There is

no provision which identifies the possibility that the request will be genuinely

misunderstood. There is a distinction between misunderstanding a request and realising that the request calls for further inquiry.

[56] It may be noted that on receiving Ms Dixon’s reply to his letter, Mr Holmes

did not respond to clarify his request.

[57] Counsel for the appellant in this Court did not submit that the response of Mrs Dixon did not comply with s 40, and so was a refusal. Their response was framed more broadly:

Privacy Principle 6, it is submitted, cannot impose an obligation on agencies to interpret information requests with the perfection of hindsight. The courts have warned against the temptation of judging past actions in light of present facts and knowledge on several occasions.

The Privacy Act gives rise to important rights, and significant obligations. But it does not assist individuals seeking to exercise their rights under the Privacy Act to impose on agencies an absolute liability for human error.

[58] That led to a broad submission that Mrs Dixon’s letter to Mr Holmes of

27 August, responding to his letter of 22 August, met WINZ obligations under the

Privacy Act.

[59] Mr Andersen, the amicus curiae, argued that it did not. He framed this issue not as to whether or not there was a decision under s 40. He argued that the request was expressed in clear terms. He argued that the response to the request should have been for WINZ to provide details of Mr Holmes’s payment and deduction, sufficient to enable the following to be ascertained:

(a) Mr [Holmes] was receiving the benefit of the increase from 1 April

2010; and

(b) Mr Holmes was receiving $3 per week less than he expected because WINZ had changed the deduction that he had been told would be $1 per week for the $44 advance to $4 a week without notification to him.

[60] He submitted that the error of the appellant was to put a gloss on privacy principle 6 by reading it as only applying to requests that were reasonably understood by the agency. He argued that privacy principle 6 is an absolute right to receive information, and a failure to receive the information on the request means the

principle is being breached. He centred his argument on s 66(3), which he reinforced by citing s 30 of the Act, which provides:

30 Refusal not permitted for any other reason

Subject to sections 7, 31, and 32 of this Act, no reasons other than one or more of the reasons set out in sections 27 to 29 of this Act justifies a refusal to disclose any information requested pursuant to principle 6.

And relying on s 85(4), which provides:

(4) It shall not be a defence to proceedings under section 82 or section 83 of this Act that the interference was unintentional or without negligence on the part of the defendant, but the Tribunal shall take the conduct of the defendant into account in deciding what, if any, remedy to grant.

[61] We think that principle 6 does not address the question of a misunderstanding of the question. Given the separate provisions of ss 40, 66 and 84, it is not possible to draw from privacy principle 6 the proposition that privacy principle 6 is an absolute right to receive information, and failure to receive the information on the request means the principle has been breached.

[62] Section 66(3) addresses non-compliance with time limits. There is nothing to suggest that Parliament intended in that section to impute a reply made within the time, but which was inadequate. Rather, the obvious function of s 66(3) is to deem failures to reply in time as refusals. That policy can be understood as discrete and separate from an inadequate response to the question. Plainly, an agency receiving a confused request has a duty to give reasonable assistance to the person making the request by application of s 38. Parliament, elsewhere in the statute, treats refusal of a request as being a deliberate decision not to answer a question – see s 44:

44 Reason for refusal to be given

Where an information privacy request made by an individual is refused, the agency shall,—

(a) Subject to section 32 of this Act, give to the individual—

(i) The reason for its refusal; and

(ii) If the individual so requests, the grounds in support of that reason, unless the giving of those grounds would itself prejudice the interests protected by section 27 or section 28 or

section 29 of this Act and (in the case of the interests protected by section 28 of this Act) there is no countervailing public interest; and

(b) Give to the individual information concerning the individual's right, by way of complaint under section 67 of this Act to the Commissioner, to seek an investigation and review of the refusal.

[63] Also, s 30 contemplates a refusal, setting out reasons; s 27 sets out public interest reasons to refuse; s 28, trade secret reasons; and s 29 deals with other reasons to refuse.

[64] None of these provisions treat a misunderstanding of the request as a refusal. These sections tend to reinforce the notion that s 30, like the other sections of the Act, is addressing deliberate decisions to refuse to disclose information. What is quite clear in this case is that Mrs Dixon never made any deliberate decision to refuse information.

[65] Section 40 is directed to setting up the timetable for reply. It is not actually addressing what constitutes a decision on a request. There is nothing in it which says that a flawed reply is not a decision, or a failure to reply. Rather the decision contemplated by s 40 is the decision whether or not to release information held by the agency.

[66] Plainly, Mrs Dixon was not intending to refuse to supply information. She did not understand the letter of 22 August to be a request for information.

[67] It is important to keep in mind that this is an Information Privacy Act. The wording of s 40 reminds us of the purpose of the Act. The reason its text focuses on whether or not a decision is made, not as to the content of the decision, is because the decision is whether or not to release personal information held by the agency. Nothing more than that. It is not the purpose of the Act to require agencies to give reasons for their internal decision-making. It is not the purpose of the Act to explain why or why not they have done something in respect of the person. The purpose of the Act is solely to enable private individuals to ascertain what facts or other information about them are held by the agency.

[68] Mrs Dixon misread the letter. She has been criticised for that, on the grounds that the question is clear: “Why did I not get my increase?” There is no finding of bad faith against Mrs Dixon. Rather, there is a finding that she did misread the letter.8 So how did she misread this letter of 22 August? It seems to us that there are at least two reasons why, neither of which have been considered by the Tribunal. The first is that the proposition in paragraph 2, that he had been denied the general

increase payable to all beneficiaries from 1 April 2010, does not make sense. Mr

Holmes said in his submissions to us that the annual increase comes every year on 1

April, April Fools’ Day, he emphasised. He knows about that. He did not suggest in any way in his submissions to us that he feared that he might have been singled out as a beneficiary who would not get the annual increase. He was, however, puzzled, because the first payments he received after 1 April did not have an increase which matched the well-known, publicly announced figure of $3.73.

[69] In her letter of 8 September 2011, when much later she had realised that the question was about the annual increase, Mrs Dixon endeavoured to explain. She explained by pointing out that the payments are made in arrears, and the fortnight in arrears payment straddled 1 April.

[70] In paragraph 3 of the letter of 22 August, Mr Holmes requests all correspondence in relation to this denial. There was no such correspondence, as there had been no denial. There could be no decision to refuse to supply non- existent information. There is nothing in the letter of Mrs Dixon on 27 August 2010 or thereafter which suggests that MSD/WINZ had decided to refuse to provide personal information on the file. She had not.

[71] We can now see that Mr Holmes was asking for correspondence which did not exist. How then can his request, which premised an extraordinary event which never happened, and which caused confusion in the recipients’ minds, generate a breach of the Privacy Act, when WINZ misunderstood the letter and were not able to

_{tell him such information did not exist?}

8 See [35] set out above.

[72] Section 40 is premised on a person looking at the applicant’s file, which does contain information, and considering whether or not to accede to the request to disclose the information on the file. But that is not the situation here. The decision that Mrs Dixon had to make upon receipt of the letter was not a “decision” as that word is used in s 40. Therefore, s 40 does not apply, without more.

[73] Alive to the fact that the letter of 22 August was seeking information which did not exist, the Tribunal inferred that it was seeking the information as to how the

$4 per week, being withheld, was being applied. Doing so, by applying the duty on WINZ to assist, in s 38. The Tribunal was constructing from a statutory duty to assist a request for information.

[74] Applying s 38, the Tribunal concluded that the obligation of WINZ, in response to Mr Holmes’s letter of 22 August, was to decide whether to produce relevant accounting records, showing how the debt offsets were varying substantially in April/May 2010, which would provide Mr Holmes with the personal information being used to determine his weekly payments. And when WINZ did not, that was a deemed refusal. The reasoning is set out at [51] of the decision:

[51] When Mr Holmes requested “all letters of correspondence in relation to this denial” [“of the decision to deny me my increase April 1 2010 until I started making inquiries in regard to this matter”] he was looking at the system from the outside. He did not know anything about the internal accounting system employed by WINZ. All he had in relation to the advance of $70 was the letter dated 13 October 2009. It was understandable he would assume that if there was to be any change or variation to the stipulated terms of the advance, he would be sent a letter notifying him of the change. In trying to find an explanation for the “non-appearance” of the 2010 Annual General Adjustment in his bank account he understandably assumed that WINZ would have sent him something by way of explanation. It was entirely logical for him, in seeking information about how his benefit payments were being calculated, to seek “correspondence”. WINZ, on the other hand, has intimate knowledge of its own internal systems. It would have taken little effort or imagination to check the accounting records now produced as Exhibit A, to identify that the Debt Offsets were varying substantially in the April-May 2010 period and to then provide Mr Holmes with the personal information being used to determine his weekly payments. Even if, notwithstanding our finding that the terms of the 22 August 2010 letter are clear, WINZ were in doubt as to how to interpret paragraphs 2 and

3 of the letter, inquiry should have been made of Mr Holmes. Nothing less was required by the duty in s 38 to give reasonable assistance.

[75] That reasoning changes the request from a request for review of “the decision to deny me my increase” and a request for correspondence, to a request for the personal information on WINZ files used to determine his weekly payments.

[76] There is, no doubt, a duty in s 38 to give assistance, but the phrase is

“reasonable assistance”.

[77] Mrs Dixon was replying to a letter which was in numbered paragraphs. Paragraph 1 says it is responding to her letter of 18 August. That letter was about TAS. Paragraphs 2 and 3, read on their own, are on a completely different subject matter: “The decision to deny me my increase April 1st 2010 until I started making inquiries in regard to this matter.” Paragraph 3 is the request to “supply all letters of correspondence in relation to this denial” and, secondly, to supply reasons for the decision to deny under the Ombudsmen Act. We notice that Mr Holmes appreciates the distinction. Paragraph 4 then returns to TAS. Paragraph 5 is a general

complaint. Mr Holmes did not reply to Mrs Dixon’s letter of 27 August until

December.

[78] The reasonable assistance analysis at [51] by the Tribunal does not sit easily with Mr Holmes’s knowledge of his entitlements and his ability to pursue issues. True, he was looking at the system from the outside, but in fact he was in almost constant engagement with the system. The very terms of his letter of 22 August demonstrate this, by quoting and distinguishing between what he was entitled to under the Privacy Act, under the Official Information Act, and under the Ombudsmen Act. He was not a hapless beneficiary in need of help. On the contrary, he was and is an intelligent, well-informed beneficiary, who has argued familiarity with various statutes which provide him remedies.

[79] When one applies the standard of “reasonable” assistance in s 38, one should take into account the ability of the person seeking information to respond and the context. One of the reasons why Mr Holmes may not have bothered replying is that he may not have wanted to pursue the matter. The first sentence at paragraph 2 of the letter ends, “until I started making inquiries in regard to this matter”. We know that the last payment of $1 to clear the $70 advance was made about 1 April. We

know that the $3 was then applied to the $1 per week otherwise being applied to reduce the driving licence. We know that that debt was cleared on 19 May. So within a few weeks both debts were cleared and the full entitlement would have come through. By the time Mr Holmes wrote the letter on 22 August, Mr Holmes must have appreciated that his income had risen by $7.73, being the annual increase plus the $4 that was being diverted prior to 1 April 2010. What would have been left in his mind was the mystery of why he did not get any increase beyond 73 cents after

1 April until a few weeks later?

[80] The Tribunal’s reasoning hinges therefore on its judgment that on receipt of the letter of 22 August, which did not make sense, as everybody got the annual increase and there was no decision to deny Mr Holmes his, the letter should have been interpreted by WINZ as a request for information about how his net payments were calculated from 1 April to about mid-May 2010.

[81] On our view of the facts, this constructed request reasoning, found to be the reasonable assistance required by s 38, does not sit with the reasonable response of Mrs Dixon, albeit a mistaken response. Mrs Dixon’s letter of 27 August can itself be read as reasonable assistance. For what Mrs Dixon did was to reply according to her interpretation of the letter, which was based on its immediate context, as replying to earlier WINZ letters on TAS. She wrote a reply immediately in five days. Had this been a letter from a beneficiary who had never written before, which was not prefaced by purporting to reply to letters on another topic, and it was a simple letter out of the blue, “Why haven’t I received my increase?”, the response may well have been quite different and the reasoning of the Tribunal at [51] apt. Mr Holmes had plenty of opportunity within the 20 day period, running from 18 August, to reply to the letter of 27 August. He did not. In these circumstances, we do not think that s 38 was breached. For that reason, we cannot agree with the reasoning and conclusions at [51] of the Tribunal’s decision. Mrs Dixon had a basis for being confused. She was in fact confused. But she did not make a decision to refuse information. She responded positively. In these circumstances, we do not think that her letter was a breach of the Privacy Act. That finding of breach is quashed.

Second head of liability – the later refusal to supply the TAS information as requested on 4 October

[82] This head of liability is not disputed. On 4 October, as previously noted, Mr

Holmes requested all paperwork supplied to himself in regard to TAS between

13 October 2009 and 9 August 2010. On 13 December 2010, Mrs Dixon refused to supply information, saying that this information in respect of the dentures and spectacles had “already been provided as this was the reason for your Appeal.”

[83] On 8 September 2011, she apologised and sent all the paperwork in relation to TAS, enclosing eight documents, all of which he had received before except item

7. She acknowledged that the fact he had received these documents on a prior occasion did not negate MSD/WINZ obligations to supply the information when he requested it on 4 October.

The finding that the Tribunal erred in finding that MSD/WINZ’s breaches were

“sustained and systemic”

[84] Having found that there was a second breach in relation to the request dated 4

October, the Tribunal said:

[62] Nevertheless, while we decline to make a restraining order, we have real concerns about the degree to which the Dunedin branches of WINZ are complying with their obligations under Principle 6 to provide access to personal information on request and it will be seen that later in this decision we find there was a further breach in relation to the separate information privacy request dated 4 October 2010. Having regard to s 85(4) of the Act we find that the failures in the present case have been sustained and systemic. They underline the need for WINZ to undertake a thorough review of its processes for ensuring full compliance not only with the letter of the Privacy Act but also with its objects and purposes. We make an order pursuant to s 85(1)(d) and (e) that WINZ undertake such review under the direction and guidance of the Privacy Commissioner.

[63] As to damages, the breaches by WINZ of the Privacy Act have been, as mentioned, sustained and systemic. The request dated 4 October 2010 was clear but no decision was made on it for twelve months, causing considerable anxiety and depriving Mr Holmes of the ability to seek a review of the rate of deduction. If WINZ were in doubt as to the content of the request, clarification should have been sought and reasonable assistance provided to Mr Holmes under s 38. Instead an impoverished beneficiary who has difficulty reading and writing has had to complain first to the Privacy Commissioner and then to this Tribunal to obtain redress. Having

seen and heard him in person we have no doubt that there has been substantial humiliation, loss of dignity and injury to his feelings.

[85] This is further developed in the Tribunal’s reasoning at [88], when addressing quantum:

[88] As to quantum, we do not intend repeating what has been said when determining quantum for the 22 August 2010 request. In relation to the 4

October 2010 request we have specific regard to the fact that through Ms Dixon, WINZ has apologised for the admitted interference with privacy. It remains the fact, however, that that apology was not tendered until twelve

months after the event, and only after these proceedings had been instituted. This change of mind took place at a close distance to the substantive hearing

before the Tribunal. In all the circumstances we have determined that an award of $7,000 is to be made under s 88(1)(c) of the Act on account of the humiliation, loss of dignity and injury to feelings suffered by Mr Holmes.

This award is slightly higher that that made in Shahroodi v Director of Civil

Aviation [2011] NZHRRT 6 (9 March 2011) but the nearly twelve month delay by WINZ in relation to the 4 October 2010 request compounded the 12

month delay in complying with the 22 August 2010 request. The failures

were not isolated. They were sustained and systemic. While each took its separate toll on Mr Holmes their impact was also cumulative. That

cumulative effect must be reflected in the making of an award for the failure

to respond to the 4 October 2010 request as that failure undoubtedly enhanced the feelings of impotence, insignificance, humiliation, loss of dignity and injury to feelings.

[86] That led to an order:

[89.3] An order is made under s 85(1) of the Act that the Ministry undertake a thorough review of its processes for ensuring full compliance not only with the letter of the Privacy Act but also with its objects and purposes. The review is to be undertaken under the direction and guidance of the Privacy Commissioner.

[87] It will be recalled that the Tribunal found that Mrs Dixon misread the first request of 22 August 2010. She did, however, reply to that letter within five days, and it was a positive reply, if one keeps in mind that she had misread the letter.

[88] Mrs Dixon did not reply to his letters of 4 October, 9 November and 7

December until 13 December. That reply denied there was any other paperwork that he had not yet got relating to TAS, and advised there was no information passing between Housing New Zealand and WINZ. Essentially, it proceeded on an error of law, namely that it is possible to refuse to supply information when you know that the person requesting the information already has it.

[89] The Tribunal does not explain why the failures were sustained and systemic. Although, on one reading, the inference is that Mrs Dixon’s response was sustained and systemic. But this could not possibly justify a concern on the part of the Tribunal that there needed to be a departmental review across the country.

[90] Mr Andersen, the amicus curiae, argued that the systemic nature of the failure was the WINZ nationwide policy that beneficiaries are not told that repayments will continue from the stated amount if other debts are repaid. Mr Andersen thought the allocation of the $3 per week deduction for the $70 advance to apply to the balance of the driving licence advance applied automatically. We were told from Ms Holden, after inquiring overnight, that that was not the case, but that an officer would have made that decision. It is a probable inference that Mrs Dixon simply did not know about that decision when she wrote her letter on 8 September 2011. It was not until the hearing before the Tribunal that a SWIFTT payment notice of April 2010 revealed what had happened.

[91] Mr Andersen argued that this policy of not telling beneficiaries how withholding monies are being applied to debts, led to a systemic failure to respond accurately to Mr Holmes’s requests of 22 August (assuming it had been not misread).

[92] That led to Mr Andersen submitting that systemic in this context can properly be seen as a fault of the system, rather than an individual mistake.

[93] Ms Holden for WINZ argued that the Tribunal was in breach of natural justice in making this finding of sustained and systemic fault, as it had given no indication to the department of an intention to make such a sweeping finding.

[94] We are of the view that there was insufficient evidence to find that Mrs Dixon’s conduct was in any way a result of a sustained and systemic breach of the Privacy Act by WINZ. Sustained and systemic could only apply to the department’s policy as to reduction of advances, and the failure to communicate this policy to beneficiaries.

[95] This finding came as a surprise to the department. The risk of it was neither implicit in the nature of the inquiry into Mr Holmes’s complaint, nor obvious from the conduct of the hearing.9 We agree with Ms Holden that in the context, once the Tribunal was considering the possibility of finding systemic failure, it should have given the department an opportunity to submit evidence to refute it. The department may have failed to refute it, but that is not the point.

[96] There is room for criticism of the department’s failure to communicate its policy more fully on repayments, and to advise beneficiaries when advances have been repaid. Whether they should do that or not is another question. Most beneficiaries will know how much is being deducted per week against a payment, and can readily calculate when a debt will be repaid and when they can expect an increase. Mr Holmes is in that category. His former occupation was a painter and paperhanger. There is no suggestion that he could not do the simple arithmetic of how many weeks at $3 per week it would take to pay off $70. Similarly, we assume that he knew about the $1 per week being repaid being applied to the driving licence debt of $44. But what he was unaware of, and seemingly also Mrs Dixon, was the decision to allocate the $3 per week being applied to the $70 advance, to accelerate and write off the balance of the $44 advance.

[97] We turn to the question of law, as to whether the Tribunal had the power to order a nationwide WINZ review, in any event.

Did the Tribunal have the jurisdiction to order MSD/WINZ to carry out a review of the Ministry’s processes for ensuring compliance with the Privacy Act?

[98] Section 85(1)(d) and (e) of the Privacy Act provides:

85 Powers of Human Rights Review Tribunal

(1) If, in any proceedings under section 82 or section 83 of this Act, the Tribunal is satisfied on the balance of probabilities that any action of the defendant is an interference with the privacy of an individual, it may grant one or more of the following remedies:

9 Philip A Joseph Constitutional and Administrative Law in New Zealand, (3rd ed, Brookers, Wellington, 2007) at [24.4.3].

...

(d) An order that the defendant perform any acts specified in the order with a view to remedying the interference, or redressing any loss or damage suffered by the aggrieved individual as a result of the interference, or both:

(e) Such other relief as the Tribunal thinks fit.

[99] It may be noticed immediately that the possible orders (a) to (e) are categorised as “remedies”. They are remedies following on from a finding “that any action of the defendant is an interference with the privacy of an individual”.

[100] These references support the interpretation that orders (a) to (e) are designed to provide relief to the aggrieved individual. Mr Andersen submitted that the Tribunal did not have the power to make the order. He supported the submissions of Ms Holden for the appellant. Ms Holden’s argument was more detailed than the simple point that s 85 is confined to remedies for individuals. She relied on an analogous issue, examined by the High Court in New Zealand Van Lines Ltd v

Proceedings Commissioner,10 a case brought under the Human Rights Commission

Act 1977. In that analogous issue, the core concept was “relief”, as distinct from here “remedies”. Ms Holden also went into the legislative history of the Human Rights Act 1993.

[101] We do not think these additional arguments are necessary. We think the language of s 85 says it all. We are satisfied that the Court had no jurisdiction in law to make the order.

Did the Tribunal err in awarding damages of $17,000?

[102] We have found that the first ground of relief, the failure of WINZ to respond to Mr Holmes’s letter of 22 August, has not been made out. But in case we are wrong about that, we examine all the issues raised by counsel in respect to the award

_{of damages of $17,000, including the amount of $10,000 for the first request.}

10 New Zealand Van Lines Ltd v Proceedings Commissioner [1995] 1 NZLR 100 (HC).

Appeal on award of damages

Procedural point

[103] We begin with a procedural point raised by counsel for the appellant. In the claim lodged by Mr Holmes with the Tribunal, he sought damages of $5,000 for emotional harm in respect of both requests of 22 August and 4 October 2010, and in respect of 4 October, in a second claim dated 8 August 2011, for damages for emotional harm of $2,000. In all, a total of $7,000.

[104] Counsel for the appellant argued that the Tribunal does not have jurisdiction toward damages in excess of those sought. Counsel relied on the decision of the Court of Appeal in McCulloch and Partners v Smith.11 This concerned an appeal from a decision of the Employment Court granting damages arising out of unjustified dismissal. The Court of Appeal indicated that the general principle is that a Court does not have jurisdiction to make such an order beyond that pleaded. The

Court stated the normal circumstances, where a Court has awarded a greater sum than that sought will be “a simple matter of reducing the award to the amount claimed, there being no jurisdiction to award a greater amount”.12 The Court of Appeal in fact referred that matter back to the Employment Court, as the plaintiff argued that the matter proceeded before the Employment Court on the footing that a greater amount than that stated in the statement of claim was sought, despite the

statement of claim never being formally amended.

[105] It is a general principle in common law courts that you must bring all your claims to the court, and you cannot get more than you seek.

[106] But this is a special statutory jurisdiction. There is nothing in the Privacy Act which requires the applicant making a claim to specify the amount of damages they seek. There is nothing in the Human Rights Review Tribunal Regulations 2002

_{which requires this.}

11 _{McCulloch and Partners v Smith CA133/03, 3 December 2003.}

12 At [3].

[107] It would seem that it was a decision by whoever drafted the claim form for the Human Rights Review Commission to put in italics a mandatory requirement that the amount sought be claimed.

[108] We agree with the Tribunal’s reasoning in this case, that the Privacy Act should be interpreted and applied in a manner which is not legalistic and does not place barriers, especially of a technical nature, between the claimant and a just outcome. We do not think the McCulloch decision applies on these facts. We think it would be quite wrong for a Tribunal or this Court to be bound by an applicant for damages under the Privacy Act before the Tribunal, very often without the benefit of legal advice, to be held to any figure nominated. Accordingly, we give no weight to this point.

Whether the damages of $10,000 and $7,000 were excessive

[109] The Tribunal awarded Mr Holmes damages in respect of the 22 August 2010 request of $10,000, and $7,000 in respect of the 4 October 2010 request. We have held no liability in respect of the response to the 22 August 2010 request. But, in any event, we examine the level of the award in case we are wrong on that point. We consider the merit of the award is $7,000 in respect of the 4 October request.

[110] Section 88(1) of the Privacy Act provides:

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.

[111] The awards were made under paragraph (c), for humiliation, loss of dignity, and injury to the feelings of the aggrieved individual.

[112] The findings of fact as to those criteria are contained at [63] of the judgment which reads:

[63] As to damages, the breaches by WINZ of the Privacy Act have been, as mentioned, sustained and systemic. The request dated 4 October 2010 was clear but no decision was made on it for twelve months, causing considerable anxiety and depriving Mr Holmes of the ability to seek a review of the rate of deduction. If WINZ were in doubt as to the content of the request, clarification should have been sought and reasonable assistance provided to Mr Holmes under s 38. Instead an impoverished beneficiary who has difficulty reading and writing has had to complain first to the Privacy Commissioner and then to this Tribunal to obtain redress. Having seen and heard him in person we have no doubt that there has been substantial humiliation, loss of dignity and injury to his feelings.

[113] The Tribunal also considered but dismissed the possibility of an award under s 88(1)(b) for loss of a benefit that might arise from a review of the rate of his deductions. We do not discuss that.

[114] The appeal by the Chief Executive of MSD is on the basis that the award was out of line with the other authorities. Counsel did not directly challenge the finding of fact that there has been substantial humiliation, loss of dignity and injury to his feelings. We cannot, however, avoid coming to a view on that, as that is part of the Court’s duty on rehearing.

[115] This Court has also had the advantage of seeing and hearing Mr Holmes in person. We have also read his correspondence.

[116] As already noted in this judgment, Mr Holmes has expressed feelings of humiliation quite independently of these privacy issues. Moreover, he has persistently, if not invariably, expressed the view that he was the subject of lies and deceit. As is already plain from the narrative of the facts, this particular issue (the apparent loss of entitlement to the Annual General Adjustment) lasted only for a short time, as is reflected in the key sentence in paragraph 2 of the complaint, and by the facts. Second, and even more importantly, contextually it came in the midst of a

longer (TAS) dispute, namely his argument that he should not have just got an advance for his optometrist fee, but it should have been non-refundable.

[117] Mr Holmes has an antagonistic relationship with WINZ. Although he has difficulty reading, we cannot see any difficulty in his writing, except perhaps that he might again need his magnifying glass to see it. He is fluent and lucid. He is quite familiar with the law under the Privacy Act, the Official Information Act, the Ombudsmen Act, and elsewhere. He is very familiar with WINZ policy. He is a capable intelligent man.

[118] We are not persuaded that he has suffered “substantial” humiliation, or loss of dignity and injury to his feelings, in respect of both his request of 22 August 2010 and his request of 4 October 2010.

[119] Dealing with the first request, it is material to note that, at the time he made it, he appreciated that the lack of visibility of the Annual General Adjustment lasted only a short time. He knew it lasted only a few weeks. He knew that at the time he made the complaint.

[120] When he got the letter, which was a mistaken reply, he did not reply to it. He is very capable of replying to WINZ letters.

[121] Turning to the second letter in September 2011, in reply to the request dated 4

October 2010, it was plainly written in an effort to settle the pending hearing before the Tribunal. Mr Holmes’s response, in his address to us, to that letter was more one of cynicism than humiliation. He saw it as a defensive letter, written to try to belatedly prevent the Tribunal hearing his grievances and making an award in his favour. We have seen no evidence that he was substantially humiliated or suffered any loss of dignity and injury to his feelings by reason of the late reply.

[122] We turn to the issue of quantum. The reasoning on quantum on the first award is set out at [65] of the decision, which provides:

[65] That having been said, however, we are of the view that to make a separate award under s 88(1)(b) for loss of a benefit would involve too much speculation as well as a potential overlap with s 88(1)(c). We believe that

the facts call for a single award and that that award be for humiliation, loss of dignity and injury to feelings. We award $10,000 under s 88(1)(c).

[123] In respect of the second request, the Tribunal made no particular finding that he had been substantially humiliated.

[124] However, the Tribunal did say, in respect of each of the failures:

[88] ...While each took its separate toll on Mr Holmes their impact was also cumulative. That cumulative effect must be reflected in the making of an award for the failure to respond to the 4 October 2010 request as that failure undoubtedly enhanced the feelings of impotence, insignificance, humiliation, loss of dignity and injury to feelings.

[125] Again, with respect to the Tribunal, we think that overlooks the fact that for all the other dealings with the department prior to these events, and especially in the TAS dispute, Mr Holmes was already angry, feeling impotent, insignificant and humiliated. Yet, these feelings are not able to be compensated as they are not attached to any breach.

[126] The appellant’s argument is that since the appointment of Mr Haines QC as the new Chair of the Tribunal it has lifted its award of damages. The appellant says that this lift is inconsistent with High Court authority, and that it is beyond the Tribunal to do that. Rather, the Tribunal has to be led by the High Court decisions.

[127] It was not contested that this Tribunal has lifted its level. It was not disputed that, to some extent, that was inevitable, as the earlier decisions need to be adjusted for inflation over the years.

[128] Nor was it argued that it was wrong to have to pursue some sort of consistency and, therefore, for there to be some kind of tariff. As this Court noted in Winter v Jans:13 “Although each case is obviously different, Tribunals should endeavour to maintain some consistencies in awards.”

[129] We do not agree with counsel for the appellant that the Tribunal must always take its lead from the High Court. The High Court sits as an appeal Court. The

13 Winter v Jans HC Hamilton CIV-2003-419-854, 6 April 2004 at [59].

Tribunal is dealing with a much higher number of cases. We see no reason why the Tribunal, at first instance, cannot come to the conclusion that the time has come for a recalibration of the level of awards against which there should be some consistency. That view would be informed by the much larger number of cases coming before the Tribunal. It can be then taken on appeal to the High Court.

[130] We think that MSD is on much stronger ground arguing that in the particular circumstances of this case, the two awards for damages are out of all proportion to the degree of humiliation, loss of dignity and injury to the feelings of Mr Holmes in respect of these two incidents.

[131] We have already discussed the effects of the first incident. Turning to the second incident. In his letter of 4 October, Mr Holmes requested all the paperwork in respect of TAS. He did not request again all the paperwork in respect of the denial of the temporary increase. Yet, here he had an opportunity to request again all the information in respect of that denial. The question was not asked. Yet, this is in a letter in which Mr Holmes demonstrated his capability of asking the precise request.

[132] The foregoing analysis as to evidence of humiliation, loss of dignity or injury to feelings is derived from the contemporaneous correspondence. In support of the Tribunal’s decision, counsel for the Director of Human Rights Proceedings also relied upon Mr Holmes’s evidence at the hearing before the Tribunal.

[133] Mr Holmes’s evidence was that, when he could not understand the letter in reply of 27 August, he went off to the Privacy Commissioner who told him he had received the increase. He said he filed this application to the Tribunal “to find out what’s going [on], because I’ve been to WINZ and I just [inaudible] any satisfaction whatsoever.”

[134] Mr Holmes did say he felt like a fool when it was finally explained to him.14

[135] It also needs to be understood that Mr Holmes has an ongoing frustration with his difficulty to talk to WINZ about any of his issues. He telephones and gets a

14 Transcript of evidence of hearing, 1-2 December 2011, at 15.

receptionist, who asks him what he wants and why he is ringing; who is not able to answer his questions; and who puts him on to somebody who has not previously dealt with the file, who knows nothing about it, and who cannot answer any questions. This is an annoyance with the system. The effect that it drives him to spend precious money on public transport to travel into the office, infuriates Mr Holmes. But, in our view, it has got nothing to do with issues of humiliation, loss of dignity, and harm to feelings in respect of these two liability issues in this case. Rather, it is part of the more general context of Mr Holmes’s angry relationship with WINZ. He is always feeling disempowered and upset by his interactions with WINZ.

[136] In Lochead-MacMillan v AMI Insurance Ltd,15 the Tribunal, under the Chairmanship of Mr Haines QC, noted that an award of $7,000 was made for injury to feeling in Winter v Jans.16 However, in Lochead-MacMillan the Tribunal found that it was appropriate eight years later to adjust that figure to $10,000 (allowance having been made for simple interest at approximately 5% per annum).

[137] The reasoning as to damages in Lochead-MacMillan appears to include, as an aggravating feature to the level of damages to be awarded, repeated failures. At [46] of the judgment, the Tribunal said:

[46] ...While the assessment of damages for injury to the feelings of the aggrieved individual is not capable of precise mathematical calculation, we are of the view that the facts of the present case justify a higher award because of the repeated failures to comply with key elements of the information access provisions of the Privacy Act. It is a serious case of its kind.

[138] There was no direct finding that the repeated failures exacerbated the humiliation, loss of dignity and injury to feelings. In Winter v Jans the High Court held that findings based on humiliation, loss of dignity or injury to feelings can be inferred.17 The Court is clear that there has to be a finding in this regard. The Court took into account the state of mind of the complainants at the time. Winter v Jans

_{was a case where there was a complaint by Mr and Mrs Jans that Bayleys (of which}

15 _{Lochead-MacMillan v AMI Insurance Ltd [2012] NZHRRT 5.}

16 _{Winter v Jans High Court Hamilton CIV-2003-419-854, 6 April 2004.}

17 At [32]-[36].

Mr Winter was the managing director) had not provided information on the Bayleys file, being information they believed that the mortgagee bank had taken advantage of. At [38] of the decision, the Court said:

[38] We do not draw the inevitable inference from the facts that the injury to the feelings was significant. The Tribunal was considering the position at the time it became obvious to Mr and Mrs Jans that the file had been lost. By then, Mr and Mrs Jans had received a considerable amount of information from both the ANZ Bank file and the documents supplied by Mr Winter with his statement of reply. It is possible they had received all the personal information which Mr Winter had but the Tribunal concluded, correctly in our view, that this could not be known... In the circumstances, we conclude that while there would naturally be some anxiety and stress from not knowing what additional information may have been on the file the circumstances were such that it cannot be inferred that the “injury to feelings” was “significant”.

[139] Second, in Winter v Jans the High Court had occasion also, in the context of assessing damages, to have regard to s 85(4) of the Privacy Act:

(4) It shall not be a defence to proceedings under section 82 or section

83 of this Act that the interference was unintentional or without negligence on the part of the defendant, but the Tribunal shall take the conduct of the defendant into account in deciding what, if any, remedy to grant.

[140] The High Court distinguished the fact that the breach is unintentional, or without negligence, from the obligation to take the conduct of the defendant into account. This means that the Tribunal shall take into account both aggravating and mitigating conduct. Technically, the High Court’s view as to taking into account

mitigating conduct is obiter.18

[141] In this regard, we have taken a different view of the conduct of Mrs Dixon, and through her of WINZ, than the Tribunal did. We think it was a key finding of fact that Mrs Dixon misread the letter of 22 August. That is the relevant “conduct” which the Tribunal “shall take... into account in deciding what, if any, remedy to grant”. It is material in this regard that the legal method followed by the Tribunal was an objective ascertainment of how the letter should have been read. To be sure, the second paragraph of the letter of 22 August is clear when read in isolation from

_{the context. But when the context is taken into account, including not only the}

18 At [52].

balance of the letter, and particularly the opening paragraph, saying it was a reply on the subject of TAS, but also in the context of the ongoing very difficult relationship between WINZ and Mr Holmes, it is easy to understand how it came about that “Ms Dixon simply misread the request”.

[142] The Tribunal said:

This is not something for which Mr Holmes can be made responsible.19

But it does not follow that this is not conduct of MSD/WINZ that cannot be taken into account when deciding the remedy.

[143] Section 85(4)20 provides that it is not a defence. The words of subsection (4) are plain. They provide that it is not a defence to WINZ that WINZ’s response to Mr Holmes was a result of a misreading of his correspondence and confusion about what he was talking about. However, the section does not say that the conduct of WINZ cannot be taken into account in deciding what, if any, remedy to grant. On the contrary, it says positively that the conduct of the defendant shall be taken into account. Given that the conduct is irrelevant to whether there is a defence or not, the injunction to take the conduct into account is clearly making it relevant in deciding what, if any, remedy is needed to be granted. So when it comes to conduct, we disagree with any suggestion of the Tribunal that Mr Holmes’s contribution to WINZ misunderstanding what he wants is irrelevant. It must be relevant. It is not making Mr Holmes responsible for it. It is simply part of the explanation for the conduct of WINZ.

[144] The second aspect of the analysis of the Tribunal that we do not agree with is reliance on two common factors which are usefully gathered at [46], as follows:

[46] This is a critical point in the case of a public sector agency such as WINZ which is the government agency through which individuals can access benefits and other forms of financial assistance. By definition, most “clients” will be in poor financial circumstances. A significant number will be lacking in higher education. Most will need assistance navigating policy relating to welfare payments. They will also likely be under stress. This is recognised by WINZ itself in its performance standards. We refer here to a

19 _{At [35].}

20 See [140] above.

brochure produced in evidence and entitled Our Services and Standards – A guide to the services we offer and what you can expect from us. It has a heading “What you can expect from us”. It states (inter alia):

We will:

...

let you know about our services and how we can help

give you information that is correct and easy to understand give you the assistance you are entitled to

explain your rights and obligations

...

listen carefully so we understand what you are telling us be understanding and caring about your needs.

...

[145] Dealing first with the statement that most clients will need assistance navigating policy relating to welfare payments. This is not the case with Mr Holmes. He is something of an expert in utilising the means made available by Parliament in various statutes.

[146] Second, we regard the WINZ brochure as a distraction and an irrelevant factor. The issue here is the application of the Privacy Act. There are promises in the

_{brochure which go beyond the scope of the Privacy Act. For example:}

...

...

explain your rights and obligations

_{be understanding and caring about your needs.}

This does not diminish the importance of these standards, but they are not criteria against which to fix damages under the Privacy Act.

[147] We do not agree that the issue is whether the letter from Mr Holmes of

22 August is to receive a broad or narrow interpretation.21

[148] We turn to [49]:

[49] In our view a request for access to personal information must be read both purposefully and contextually notwithstanding that the individual may not use the language of the statute, may not use lawyer’s language or the phrasing and accuracy of a tutored writer of the English language. If there is doubt as to what is being sought, the agency has a duty to seek clarification. The Act explicitly states that there is a duty to provide reasonable assistance.

21 At [48].

See s 38. If this process takes time the Act permits an extension of the statutory time limits provided notice of the required extension is given within the 20 working days after the day on which the request is received. See s 41.

[149] As a textbook statement, we have no difficulty with this paragraph. But, a judgment as to the application of s 88(1)(c) is as to the humiliation, loss of dignity and injury to the feelings of the aggrieved individual, who is the applicant in this case. It is a judgment which addresses the individual concerned. As we have previously observed, there is a duty to provide reasonable assistance. But one must be careful not to convert that duty into a mechanism for implying a request for information when there was not one. In judging the application of s 38 to these facts, it is material to take into account the fact that when Mr Holmes received the prompt reply of 27 August, he did not come back to MSD/WINZ to correct the misreading of his letter as an enquiry about TAS. We know from the material that he has every capacity to make an information privacy request. He is a beneficiary who is well-read on the law.

[150] For these reasons, we think that the analysis by the Tribunal, when applying s 88(1)(c) and particularly s 85(4), was in the particular context an error of law. There were errors which led to the Tribunal imposing too high an award for damages on both heads of liability.

[151] In respect of the first head of liability, where we have found no liability, we do not proffer an alternative figure.

[152] Turning to the second head, the failure to respond to the letter dated 4

October within 20 days. The first letter in reply was on 13 December. Again, Mrs Dixon was still working on the assumption that the letter of 22 August had been a letter relating to TAS, so she said the request had been answered in her letter of

27 August, and that there was no other information on the file.

[153] It was not until 8 September that she attached all the information on the file

(all of which Mr Holmes had, except one note).

[154] By this point in time, Mr Holmes had already made his claim to the Tribunal. As we have previously observed, he was rather cynical about this letter. We do not think that the reply in December, although late, and the reply in September 2011 significantly caused him humiliation, loss of dignity and injury to feelings. He was in litigation mode. He was annoyed. We recognise that the delay would have caused some injury to his feelings, as distinct from humiliation or loss of dignity.

[155] We think the delayed response to the request of the letter of 4 October did contribute to Mr Holmes’s existing injury to feelings, and that there should be an award of damages. But we think it should be at the lower end of such awards. We think the sum of $2,000 is appropriate. We think the case is less serious than Winter v Jans, where the High Court found that the plaintiffs had suffered injured feelings, but the evidence was not sufficient to indicate that the injury was significant. The

High Court awarded $3,500 to each of the plaintiffs. In Sievwrights v Apostolakis22

the High Court upheld an award of $2,500 in respect of the law firm’s continued failure over a 10 year period to provide their client with a letter they had written regarding her property. We regard that case as more serious. We think in this case an appropriate award is $2,000.

Conclusion and summary

[156] On 1 April 2010, all beneficiaries within Mr Holmes’s class received an annual increase of $3.73 per week, paid fortnightly in arrears. The full increase was disguised to Mr Holmes until 19 May. This was due to a combination of the regular payments being made in arrears. The regular payments straddled 1 April. The last payment of $1, after 23 payments of $3 to clear a prior advance of $70, coincided with 1 April 2010. The $3 per week deduction used to repay that advance was then applied to clear an original advance of $44 for a driving licence, which was up until that point being paid off at $1 per week. By 19 May that $44 advance had been repaid. Deductions totalling $4 per week had ceased. The consequence of these deductions was to obscure until 19 May the annual increase in the benefit. After 19

_{May, the increase of $3.73 was no longer confused, as it were, by those deductions.}

22 Sievwrights v Apostolakis HC Wellington CIV-2005-485-527, 17 December 2007.

[157] On 22 August 2010, Mr Holmes wrote a letter to WINZ, replying to earlier correspondence relating to an ongoing dispute he had with WINZ as to whether or not the $70 advance should have been non-refundable, rather than refundable. In that letter, he wrote:

I ask you to review the decision to deny me my increase April 1st 2010 until

I started making inquiries in regard to this matter...

Please supply all letters of correspondence in relation to this denial...

It may be noted that that letter does not reveal a state of mind that the increase has been denied permanently. It is a request for a review of a decision for what the writer thought was a temporary denial of the increase and for the correspondence on that decision.

[158] WINZ replied on 27 August, treating that letter as solely on the topic of whether or not the temporary support should be refundable. Whether or not it would be non-refundable, or part of it non-refundable, depended on his income details. The letter went on to discuss ongoing attempts to locate all the “paperwork” on that.

[159] The Tribunal applied the duty of every agent to give reasonable assistance to an individual who wishes to make an information request, and inferred wrongly that his letter of 22 August was a request for information about the retentions to clear the

$70 and $44 advances. That decision led to an error of law in finding that there had been a breach in failing to provide that information within 20 days of 22 August. That finding is quashed, and together with it the order for damages in the sum of

$10,000.

[160] On 4 October 2010, Mr Holmes wrote to MSD/WINZ, making a request under the Official Information Act for all paperwork in regard to his eye test, reading glasses and costs. This was a request for information, triggering the application of the Privacy Act. MSD/WINZ have admitted that the request was not answered within 20 days. They have admitted there was a breach. The Tribunal erred in not taking into account the conduct of Mr Holmes, which mitigated the significance of

the breach. This was because, again, MSD/WINZ were confused by this letter and responded (out of time) on 13 December, advising they had already responded to his request for this information on 27 August and there was no further information on his file.

[161] On 22 March 2011, Mr Holmes filed his first claim before the Tribunal in respect of this matter. On 8 September 2011, WINZ provided all the documents relating to TAS on the file, of which all but one were in the possession of Mr Holmes, and apologised. In the circumstances, we do not consider there was any discernible humiliation or loss of dignity in this second phase, but there was some injury to feelings. Our opinion differs from the Tribunal. Essentially, we think this is because the Tribunal took an objective approach, rather than looking at the particular context of this case and the capabilities of Mr Holmes as a well-read, self- capable beneficiary, versed in the procedures to protect his entitlements. We think the injury to his feelings is of a lesser order than that examined by the High Court in Winter v Jans, where the sum of $3,500 was awarded, and have reduced the award to

$2,000.

Result

[162] The appeal is successful. The first breach arising out of the request of 22

August is quashed, together with the award of damages of $10,000. The second breach remains, but the award is reduced to $2,000 for injury to feelings.

Other orders

[163] The Tribunal also ordered that MSD undertake a thorough review of its processes for ensuring full compliance, not only with the letter of the Privacy Act but also with its objects and purposes. This review was to be undertaken under the direction and guidance of the Privacy Commissioner.

[164] We found that this order was made without first giving notice of the possibility of such an order to MSD/WINZ. Secondly, and more definitively, that a Tribunal has no power to make this order under s 85(1). This order is quashed.

Solicitors:

Crown Law Office – [e-mail] [e-mail]

Office of Human Rights Proceedings, Wellington - [e-mail]

L A Andersen, Barrister, Dunedin - [e-mail]