Alpine Energy Limited v Human Rights Review Tribunal [2014] NZHC 2792 (11 November 2014)

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[1] The second respondent, Mr Waters, has brought proceedings against the applicant, Alpine Energy Ltd (Alpine Energy).¹The basis for the proceeding is that Mr Waters claims Alpine Energy unlawfully discriminated against him on employment applications he had made on the basis of age in contravention of s 22 of the Human Rights Act 1993 (HRA).

[2] As part of that proceeding in the Human Rights Review Tribunal (the Tribunal) Mr Waters had applied for orders that Alpine Energy make further and better discovery. The information Mr Waters sought to be discovered included material which Alpine Energy claimed was confidential. Nonetheless, the application was successful before the Tribunal, with Alpine Energy being ordered to disclose various documents.²

[3] Alpine Energy now seeks judicial review of that decision. It seeks the following declaratory relief:

(a) a declaration that the orders of the Tribunal were unlawful; (b) an order setting aside the orders of the Tribunal;

[4] Previously, Mr Waters was employed by Alpine Energy from 1975 to 2008, when he resigned. In 2012, he applied for two positions advertised by Alpine

_{Energy, these being for an Engineering Officer and a Maintenance
Engineer. At that}

¹I note that the Privacy Commissioner was granted leave to intervene by Dunningham J in a minute dated 15 May 2014. In the same minute it was recorded that the Human Rights Commission was permitted to intervene as of right by operation of s 92H Human Rights Act

time he was 62 years old. Both applications were unsuccessful. He claims his lack of success is age related.

[5] Mr Waters, feeling aggrieved, issued proceedings in the Tribunal. A preliminary step in such proceedings is for each party to discover documents in its possession or control, on which it intends to rely, which support the opposing party’s case, or which are adverse to its or the opposing party’s case. A list of the documents initially discovered is attached in Annexure A.

[6] Dissatisfied, Mr Waters applied for further and better discovery, and also for a direction under s 69 of the Evidence Act 2006 requiring disclosure of documents in respect of which Alpine Energy had claimed confidentiality. Alpine Energy later filed an amended list of documents which identified several relevant documents

(d) Communication between Alpine Energy and Young Hunter, various dates, withheld, (the “6D documents”).

[7] Alpine Energy also identified three categories of documents not in its possession or control, namely:

³In terms of the amended list of documents I make two observations. First, the basis claimed for withholding the majority of the documents (except lawyer-client communications which was predicated on privilege) changed from reliance on the Privacy Act 1993, s 29 to the Evidence Act 2006. Second, the following documents which were initially withheld were released in the second tranche: (i) 19 March 2009 – record of settlement; (ii) 11 May 2012 – 10 June 2012 – email chain between Kevin Waters and Alpine Energy; and (iii) Farrow Jamieson – candidate summary re Kevin Waters.

(a) Application and CVs of applicants for the two positions, destroyed three months following appointment;

(b) Notes of interviews with applicants for the two positions, destroyed three months following appointment; and

[8] In an affidavit, Mr Small, compliance and training manager for Alpine Energy, deposed that documents 6A and 6B were released with redactions to preserve the anonymity of the applicants on the basis that the documents contained personal information. As to document 6C, Mr Small stated:

The front page of the document records that the information is highly confidential and contains evaluative comments made about an individual by a referee nominated by the candidate. It further says that it has been prepared and made available to Alpine Energy on the clear understanding that its confidentiality, including non-disclosure to candidates, will be respected now and in the future.

[9] Mr Graham McNabb, an electrical engineer with Meridian Energy Limited, was the person who provided a reference which at least partially formed the basis of document 6C. In his affidavit filed in this proceeding, he deposes:

5. I was happy to provide a reference for Mr Waters and answered all Ms Jennings’ questions. At the time of providing my answers I assumed that what I had said would be held confidentially and was solely for the purpose of assisting Alpine Energy with their recruitment process. I understood that the information I was providing would only be viewed by Alpine Energy.

6. I confirm that I would not have provided this information if there was a likelihood that parties other than Farrow Jamieson and Alpine Energy would review it.

[10] Alpine Energy effectively raised three grounds on which it claimed the application for discovery should be dismissed:

(a) section 69 of the Evidence Act 2006 operated so that Alpine Energy could genuinely resist discovery of documents 6A, 6B and 6C;

(b) the now undiscoverable documents were not within the control of Alpine Energy as these documents were either destroyed three months following the appointment of the successful candidate, or never provided to Alpine Energy by Farrow Jamieson; and

(c) Mr Waters was on a fishing expedition and the documents sought by him were at best only of indirect relevance to his claim that Alpine Energy treated him differently to the other applicants by reason of his age.

(a) documents 6A and 6B are important as they would show that “persons of younger age, with lesser skills, lesser qualifications, lesser direct experience and lesser time engaged in similar work or in similar positions were considered more favourably and were ultimately successful in being appointed to the two advertised positions”;

(b) the documents claimed as “undiscoverable” by Alpine Energy are within the control of Alpine Energy, as Farrow Jamieson was acting as its agent in recruiting for the position; and

[12] Mr Waters also expressed a general concern that Alpine Energy had destroyed discoverable documents. He suggested that Alpine Energy was aware of the claim from early on and that it had a duty to preserve documents.

[13] After reviewing the legal position in terms of confidentiality, the Tribunal declined to make a confidentiality direction under s 69 of the Evidence Act 2006.⁴It

(a) The application by Alpine Energy for a confidentiality direction under s 69 of the Evidence Act 2006 was dismissed, meaning all documents withheld by Alpine Energy on the grounds of confidentiality had to be discovered.

(b) All relevant documents held by Farrow Jamieson were also to be discovered by Alpine Energy.

(c) Alpine Energy was to provide discovery of the CV, application, employment history, listed qualification, experience and other information relating to each of the applicants who were appointed to the positions of Engineering Officer and Maintenance Officer respectively.

(e) Mr Waters was to give a written undertaking to the Tribunal that he would respect the confidentiality of the documents provided by Alpine Energy in the discovery process.

(f) Should either party require clarification whether any particular document or item of information was within these formal orders, application could be made to the Chairperson who would provide the clarification sought.

[14] In terms of the order referred to at [13](d), Mr Small swore an affidavit which

11.1. Engineering Officer – New Connections: The successful applicant first applied for a sister position with the defendant when that position was advertised in 2011. The successful applicant was unsuccessful on that occasion but was considered to be the second most suitable candidate for the position. That

	11.2.	Maintenance Engineer: No appointment to Maintenance Engineer has been made... Other appointments made to that team in April 2013 were
		made internally and followed a different process.
12.	[53.4.2]	The dates on which the successful applicants were
		appointed to their positions?
	12.1.	Engineering Officer – New Connections: The successful applicant accepted an offer of employment with the defendant on 16 April 2012 (not 4 May 2012 as set out in the Statement of Reply).
	12.2.	Maintenance Engineer: As above, no appointment was made to this position. An appointment to Maintenance Engineering Officer was made on 12 April 2013 and to Maintenance Project Manager on 22 April 2013.
13.	[53.4.3]	Whether successful candidates were interviewed?
	13.1.	Engineering Officer – New Connections: The successful applicant for this position was interviewed twice. Once in March 2011 and once in March 2012.
	13.2.	Maintenance Engineer: no appointment was made to this position. Those people appointed to the other roles in this team were interviewed in March or April 2013.
14.	[53.4.4]	Whether referee checks were carried out for the
		successful applicants?
	14.1.	Engineering Officer – New Connections: Referee checks were carried out for the successful applicant.
	14.2.	Maintenance Engineer: As above, no appointment was made to this position. We did conduct referee checks for two applicants to this position (including the plaintiff), as did Farrow Jamieson. However, these checks confirmed our view that the applicants were unsuitable. Other appointments to the Asset Management team were internal.
15.	[53.4.5]	Whether someone was in fact appointed to the
		Maintenance Engineer position between August 2012 to December 2012 or whether the position remained unfilled under the title?

[15] On 21 March 2014, Alpine Energy filed an appeal against the decision of the Tribunal. In submissions filed by the Human Rights Commissioner as intervener, a preliminary jurisdictional issue was raised. This issue was whether the High Court had jurisdiction under s 123 of the HRA to hear an appeal against an interlocutory decision of the Tribunal.

[16] Alpine Energy filed submissions on this point. These resulted in a judgment I delivered on 29 September 2014, holding that the wording of s 123 of the HRA does not permit appeals from such interlocutory decisions.⁵I directed then that the appeal

was reconstituted as an application for judicial review.⁶This proceeding therefore proceeds by way of judicial review.

[17] On 1 October 2014, two days before the hearing before me, Alpine Energy filed an amended statement of claim on the basis of the reconstitution. The relief sought is set out at [3] above. The pleaded grounds for review, and therefore for obtaining the relief, are that the Tribunal:

Human Rights Review Tribunal Regulations 2002 because: (i) the orders were inconsistent with the HRA; and

(b) The Tribunal took into account irrelevant considerations or did not take into account relevant considerations by:

(i) not properly considering the relevance of the evidence sought by Mr Waters in accordance with the requirements of s 7 of the Evidence Act 2006 and the test for discrimination in employment in s 22 of the HRA;

(iii) incorrectly finding that harm to an individual must amount to harm to the public interest to meet the test in s 69(2) of the Evidence Act 2006;

1993 and the impact of the orders on individuals relying on those protections; and

(v) failing to take into account the contractual relationship between Alpine Energy and Farrow Jamieson, and therefore Alpine Energy’s access to information gathered by Farrow Jamieson;

(i) incorrectly finding that Alpine Energy had made an appointment to the Maintenance Engineer position; and

(ii) incorrectly concluding that Alpine Energy had actual control over information held by Farrow Jamieson.

[18] Section 3 of the Declaratory Judgments Act 1908 enables any person to apply to the High Court for a declaration, when he or she desires to do any act where the legality of the act depends on the construction of any statute, or where he or she claims to have acquired any right under any statute. In issuing a declaration the High Court may determine any question as to the construction of the statute. In addition, the High Court has both an equitable and an inherent jurisdiction to declare

[19] There are limits however to the High Court’s jurisdiction under the Declaratory Judgments Act 1908 and its common law declaratory jurisdiction. A declaration should not be issued where:⁸

(2) the defendant would abide the decision of the court without the need for formal orders;¹⁰

[20] I am not prepared to grant declaratory relief on the present application. In this judgment I intend to review the processes and procedures of the Tribunal’s decision and come to a view as to whether that was lawful. If it was, the decision will stand. If it was not, I will determine then the form of relief that ought to be granted, if any.

[21] Section 104(5) of the HRA gives the Tribunal the power to regulate its procedure in such manner as the Tribunal thinks fit. Under the Human Rights Review Tribunal Regulations 2002, reg 16(1) states:

(1) Subject to decisions of the Tribunal, the Chairperson may give any directions and do any other things—

(a) that are necessary or desirable for the proceedings to be heard, determined, or otherwise dealt with, as fairly, efficiently, simply, and speedily as is consistent with justice; and

(b) that are not inconsistent with the Act or, as the case requires, the Privacy Act 1993 or the Health and Disability Commissioner Act 1994, or with these regulations.

¹⁰Right to Life New Zealand Inc v Abortion Supervisory Committee (No 2) HC Wellington CIV-

¹¹Mandic v Cornwall Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194 at [5]; New

Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) and

¹²Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [45]; Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [141].

(b) request or require the parties or any other person to attend the proceedings to give evidence:

(d) receive as evidence any statement, document, information, or matter that may, in its opinion, assist to deal effectively with the matter before it, whether or not it would be admissible in a court of law.

(4) Subject to subsections (1) to (3), the Evidence Act 2006 shall apply to the Tribunal in the same manner as if the Tribunal were a court within the meaning of that Act.

(1) A direction under this section is a direction that any 1 or more of the following not be disclosed in a proceeding:

(2) A Judge may give a direction under this section if the Judge considers that the public interest in the disclosure in the proceeding of the communication or information is outweighed by the public interest in—

(a) preventing harm to a person by whom, about whom or on whose behalf the confidential information was obtained, recorded, or prepared or to whom it was communicated; or

(i) the particular relationship in the course of which the confidential communication or confidential information was made, obtained, recorded, or prepared; or

(ii) relationships that are of the same kind as, or of a kind similar to, the relationship referred to in subparagraph (i); or

(3) When considering whether to give a direction under this section, the Judge must have regard to—

(a) the likely extent of harm that may result from the disclosure of the communication or information; and

(b) the nature of the communication or information and its likely importance in the proceeding; and

(d) the availability or possible availability of other means of obtaining evidence of the communication or information; and

(e) the availability of means of preventing or restricting public disclosure of the evidence if the evidence is given; and

(i) the time that has elapsed since the communication was made or the information was compiled or prepared; and

(ii) the extent to which the information has already been disclosed to other persons; and

(4) The Judge may, in addition to the matters stated in subsection (3), have regard to any other matters that the Judge considers relevant.

(5) A Judge may give a direction under this section that a communication or information not be disclosed whether or not the communication or information is privileged by another provision of this subpart or would, except for a limitation or restriction imposed by this subpart, be privileged.

(1) The Tribunal must act according to the substantial merits of the case, without regard to technicalities.

[25] These sections and regulations taken together endow the Tribunal with very broad powers to do justice, even if that means avoiding the full rigour, and associated rigidity, of procedures governing proceedings in what might be termed Courts proper. It also seems that the practical effect of s 106(1)(d) of the HRA is at the very least to significantly dilute s 69 of the Evidence Act 2006. I expand on this in my analysis below.

[26] At the outset, it needs to be noted that the discrimination provisions of the HRA cannot be avoided by the construction of some contractual provision which seeks to circumscribe the prohibition of unjustified discriminatory conduct. In other words, as I see the position, it is not competent for a person or entity to discriminate against someone on a prohibited ground, but then to seek to avoid detection by the erection of some contractual palisade, and then to claim it is impermeable by reason of its very existence. This is circuitous by any interpretation.

[27] Moreover the right to be free from discrimination afforded by s 19 of the New Zealand Bill of Rights Act 1990, and the prohibited grounds of discrimination contained in the Human Rights Act, can be described as most important civil rights which must be upheld.

[28] Against this is the concern that no person should be able to raise a claim against private concerns alleging breaches of fundamental rights, for the sole purpose of embarking on an ill-conceived fishing expedition, where there are legitimate concerns surrounding confidentiality. In my view, confidentiality should not be judicially abrogated, even to a limited extent, for the sole reason that potential concerns exist that some right has potentially been breached. Some more secure footing is required.

[29] Generally, it is only by probing and testing that the location of such a secure footing noted at [28] above can be ascertained. The tools for doing so in my view were not before the Tribunal here. I am satisfied therefore that there was an error in the Tribunal’s decision. That error was simply that it adjudicated upon admissibility without appraising itself of the precise nature and content of the documents over which it was sitting as arbiter. As far as I can tell, none of the actual withheld and redacted documents were placed either before this Court or the Tribunal. This begs the question as to how it is possible to determine pivotal matters such as relevance and probative value in their absence.

[30] In terms of jurisdiction, it seems to be beyond question that the Tribunal has a very broad discretion in respect of evidential matters. Section 106 of the HRA makes this patently clear on its face. It is equally clear to my mind that all discretions, and there can be no doubt that s 106 is discretionary in nature, must be exercised judicially.¹⁴

[31] Viewing the HRA powers in this light, as I see the position it would be antithetical to principles of fairness and natural justice to admit evidence into Court, in respect of which confidentiality is claimed, if it is either irrelevant¹⁵or insufficiently probative.¹⁶. These two principles are fundamental tenets upon which our present system of evidence is founded. The admission of irrelevant evidence or

insufficiently probative evidence has the potential to erode those foundations. I am satisfied therefore that a principled decision requires proper access to the evidence which is the subject matter of proceedings in order for a proper decision to be made.

[32] On this basis alone I am satisfied that the analysis of the Tribunal was flawed. The application for review succeeds and appropriate orders are to follow.

¹⁴Similar points were made in H v Ministry of Social Development HC Wellington CIV-2009-485-

[33] Because of the basis on which I have disposed of this application for review, there remain extant certain issues. I therefore express tentative views on some of those matters:

(a) Application of the Evidence Act 2006: A combination of s 106(4) HRA and ss 5(1) and 69 of the Evidence Act 2006 makes it apparent that the Tribunal clearly has authority to order discovery of confidential information. Further, so long as that discretion is exercised in accordance with the purposes of the HRA, and relevant matters are considered (i.e. privacy and confidentiality interests) and irrelevant matters are not, then it would be difficult to disturb such an order on review. That difficulty is further compounded by the discretionary nature of s 69 itself. Alpine Energy is effectively saying that the Tribunal was wrong to exercise its discretion to order discovery under s 106 HRA by failing to exercise its discretion under s 69 Evidence Act 2006 to give a direction.

(b) Information about unsuccessful applicants to a role: I agree with Alpine Energy and the Human Rights Commission that it is difficult to see how information relating to unsuccessful candidates could be relevant. They were not hired, so provide no material from which discrimination can be measured. However, the obvious corollary of this is that essential information about a successful applicant would likely be relevant. The extent of how probative such evidence may be is not explored here.

(c) Ameliorating difficulties with confidentiality and privacy: Though the ethereal concepts of privacy do not bind the Tribunal, they are at least capable of being a relevant consideration. In this respect, it does seem that privacy (and likely also confidentiality) is quite capable of being a public interest. The competition between privacy/confidentiality and discovery might be able to be resolved here by the Tribunal

ordering that it will receive the confidential information “in caucus”, without directly providing a copy to Mr Waters, given that he has chosen to represent himself here. The evidence could be tested in the Tribunal in Mr Water’s absence, although an amicus could be appointed to assist Mr Waters and the Tribunal relating to this material.

(d) Agency: any attempt to resist discovery of documents on the basis that Farrow Jamieson is not the agent of Alpine Energy could potentially be answered on the basis of s 22(2) HRA. In any event, it is my understanding that Alpine Energy has abandoned the argument that Farrow Jamieson was not its agent. Further, the possibility of ordering non-party discovery may be a method of circumventing such protestations.

[34] As I have noted at [32] above, this application succeeds and I now make an order setting aside the orders of the Tribunal. This matter is to be remitted back to the Tribunal to be considered afresh. There is an order accordingly with the following additional directions:

(a) The withheld and redacted documents are to be provisionally admitted to the Tribunal “in caucus”, to permit an informed decision as to admissibility to be made.

(b) Careful consideration should be given as to whether it is necessary for Alpine Energy to discover any information regarding unsuccessful applicants, having regard to my comments noted at [33](b) above.

(c) To the extent that disclosure is considered necessary, all options should be considered as to how best to preserve privacy and confidentiality, whilst still ensuring compliance with any order for discovery. Options might include:

(i) Having the evidence in the substantive hearing provided to the Tribunal “in caucus” with Mr Waters being excluded to the extent that evidence is being traversed, but instead an amicus is appointed to assist the Tribunal and Mr Waters purely related to review of and submissions on the related material.

(ii) Redaction of the discovered documents to the fullest practicable extent. It may be that only the bare essentials of certain information need to be provided to enable Mr Waters to advance his claim (e.g. Date of Birth, experience etc).

[35] As to the question of costs, I consider this to be a proceeding of public interest and as I have noted above, Mr Waters is self-represented. There is to be no order made as to costs. Costs are to lie where they fall.

BETWEEN	ALPINE ENERGY LIMITED Applicant
AND	THE HUMAN RIGHTS REVIEW TRIBUNAL First Respondent KEVIN MURRAY WATERS Second Respondent THE HUMAN RIGHTS COMMISSIONER First Intervener THE PRIVACY COMMISSIONER Second Intervener

Hearing:	3 October 2014
Appearances:	A Keir for Applicant Second Respondent K M Waters Appears in Person MSR Palmer for Human Rights Commissioner K Evans for Privacy Commissioner
_Judgment:	_{11 November 2014}

High Court of New Zealand Decisions

Alpine Energy Limited v Human Rights Review Tribunal [2014] NZHC 2792 (11 November 2014)