8 Dec 2016, 12:39

“I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” Voltaire’s words encapsulate the sharp reality that it can cost a lot of money for cases to be heard and decided in a court of law – even if you are the successful party. A recent Human Rights Review Tribunal case, for example, cost ACC just over $33,000.

In that case, Dr L had complained to the Privacy Commissioner’s Office and subsequently to the Tribunal because ACC had withheld personal information about an investigation it had carried out into his practice as a chiropractor. 

Dr L is a chiropractor and acupuncturist from the United States who moved to New Zealand in 2009. He opened a clinic in Tauranga in 2010. After closing that business, he opened another clinic in Wellington in 2013.

In 2011, ACC began an investigation into Dr L’s business to determine whether a number of ACC claims submitted by him were genuine. ACC had concerns over the possible duplication of claims and other issues.

To find out more about the allegations against him, Dr L made a large number of requests to ACC for information under both the Privacy Act and the Official Information Act. He hoped that if he found out what was behind the investigation, he would be able to correct what he believed was misinformation held by ACC.

However, after ACC discontinued its investigation in 2014, it decided to give Dr L almost all the information previously withheld from him. But it withheld information about:

• ACC’s investigative techniques and the names of the informants; and
• information that would involve the unwarranted disclosure of the affairs of other people.

Application for costs

When the case went before the Tribunal, both parties initially could not agree on what the Tribunal was there to decide. Dr L wanted any and every one of ACC’s withholding decisions leading up to the eventual release of his information reviewed by the Tribunal. He also wanted the Tribunal to review whether ACC acted properly during its entire investigation.

On the other hand, ACC said the only issue the Tribunal needed to decide was whether ACC was right to withhold a list of clients spoken to by the agency during its investigation, because it had already released almost all the previously withheld information.

The Tribunal decided that the core of the case lay in whether ACC had properly continued to withhold the two restricted types of information. The issue was whether, when releasing the information it had previously withheld, ACC was right to hold on to some information. That information related to its investigative techniques, and information which would involve the affairs of other persons.

Read the Tribunal's decision (opens to PDF, 306KB) 

After the Tribunal had decided in favour of ACC, the agency made an application for costs of $15,000. In its submission to the Tribunal, ACC said an award of costs was justified because:

• Dr L repeatedly ignored the Tribunal’s directions, including when to file his witness statements.
• He raised issues that were without merit or that were a waste of time.
• He behaved in a manner that was neither reasonable nor appropriate.
• He put ACC to substantial additional and wholly unnecessary costs and he was therefore liable to compensate ACC for some of that cost

Not a model litigant

The Tribunal said it was true that Dr L had not been a model litigant – “but few self-represented parties are”. While it had been at times frustrating for both the Tribunal and ACC to deal with Dr L, the Tribunal was not persuaded there had been needless, inexcusable conduct justifying an award of costs. It noted the most important factor, not addressed by ACC, is that a person who has had personal information withheld by an agency has only one practical remedy –  to ask the Tribunal to view the withheld information and to reach an independent decision whether the withholding ground was justified.

“In our view, it would be wrong in principle for an individual to be deterred from challenging the decision by the prospect of an adverse award of costs should that challenge fail. After all, the individual does not know what is in the withheld information or what evidence the agency has in its possession to justify the withholding decision,” the Tribunal said.

In other words, the complainant has no practical way of knowing what his or her litigation risks are when deciding to test an agency’s case before the Tribunal.

Justice is expensive

The Tribunal referred to the decision in the High Court by Justice Mallon in Commissioner of Police v Andrews and said it provided a forum “through which individuals, who are potentially vulnerable, can challenge the exercise of state power over them”.

While justice can be a costly business, the Tribunal took the view that bringing a case before it should not be a prohibitive factor for complainants seeking redress for a perceived wrong. It said the decision to award costs should “promote, not negate, the protection of individual privacy, and access to the Tribunal should not be unduly deterred”.

On that basis, the Tribunal dismissed ACC’s application for costs.