As a general rule in New Zealand, if you go to Court and you lose, you’re going to have to foot the bill – and not just your own legal bill but a chunk of the other party’s costs too. 

But this week, the Human Rights Review Tribunal released a decision saying Shannon Richard Andrews, the unsuccessful plaintiff, should not have to pay the costs of the New Zealand Police.

The reason behind this decision is that people should not be deterred from bringing a case in the human rights jurisdiction just in case it costs them later.

Mr Andrews claimed the Police had improperly disclosed personal information about him, contrary to principle 11 of the Privacy Act 1993.

In March 2014, the Tribunal dismissed Mr Andrews’ complaint. Subsequently, the Police sought a contribution to the costs they had incurred in the course of defending this complaint. The Police said the case had cost them approximately $21,000 and were seeking an order that Mr Andrews pay them an amount between $7,500 and $10,000. 

Mr Andrews is currently serving a custodial sentence and does not presently have the means (nor is he likely to on his release) to pay such costs – but the Police said this should not be a consideration.

The Police said there were no features in Mr Andrews’ case that should disrupt the “presumption” of a costs award.

The Tribunal disagreed, saying the fair and reasonable outcome would be for each party bear their own costs. “The State must expect and tolerate individuals to challenge the exercise of state power. Such challenge should not be inhibited by the fear of potentially ruinous financial consequences,” it said in its decision.

Another feature of the case was that it involved an issue that the Tribunal hadn’t considered before – it was a test case. This too suggested Mr Andrews shouldn’t have to pay costs.

Basically if you think your rights have been breached, including your rights to privacy, it shouldn’t cost you an arm and a leg to have the Tribunal take a look at it. 

This is probably a bitter pill to swallow for the agencies that are being taken to the Tribunal.  But might it be better than telling individuals (who may only just have the means to fund their own case) they have to pay for the other side too - if the decision doesn’t go in their favour?

But while Mr Andrews seems to indicate costs awards of thousands of dollars will no longer be the norm, there are circumstances in which it will still make sense to order costs, as illustrated by Rafiq v Commissioner of Police. 

Razdan Rafiq complained about the Police refusing to disclose information in response to a principle 6 access request. The Tribunal dismissed his complaint. Following this decision, the Police sought costs and in the end were awarded $13,632.32.

The difference in this case and the reason for the Tribunal making a high cost order against Mr Rafiq was because the Court said this was not a “finely balanced” case. In other words, it did not have the potential to go one way or the other. In fact, the Tribunal said the decision the Police made to withhold information from Mr Rafiq was justified “by a wide margin”.

The Tribunal also said Mr Rafiq conducted the proceedings “without regard to his obligation to participate in them meaningfully and in good faith”. He refused to participate in telephone conferences, declined to file meaningful evidence or submissions and subsequently declined to attend the hearing itself, even though he was warned about the costs implications by the Police and the Tribunal.

Because of the way Mr Rafiq conducted himself and his case, this created significant extra work for the Police in defending the complaint. Following Mr Rafiq’s rejection of a reasonable and responsible settlement offer and what the Tribunal said was a “characteristically incoherent and abusive reply”, the Tribunal decided this was a clear case in which increased costs were justified.

The moral of the story of the story is if you act in good faith when seeking a determination on your privacy rights, things will be good for you. If you act in bad faith, you get bad things (like a bill for $13,632.23). 

Human Rights Review Tribunal, IPP6 - access, IPP11 - disclosure, law enforcement