A recent privacy case shows it is in nobody’s interests to waste the Human Rights Review Tribunal’s time.

After filing her original claim in 2016, the plaintiff made a number of subsequent applications to the Tribunal on various matters. At one juncture, the Tribunal directed her not to file any more applications without leave – and yet she continued to do so.

A week before the Tribunal hearing, the plaintiff made an application seeking an adjournment because her lawyer would be unavailable on the day, plus she wanted to file new proceedings that expanded her original privacy claim.

Complaint to Privacy Commissioner

Before her case (NZHRRT25) was put to the Tribunal, our office investigated the plaintiff’s complaint. We found there had been no breach of principle 6 or section 40 of the Act, and that no information had been withheld from her. As is our usual process, we issued a certificate of investigation to the plaintiff. The plaintiff then exercised her right to take her case to the Tribunal.

If we have not investigated an aspect of a complaint, the plaintiff cannot bring that aspect to the Tribunal. Just because the plaintiff raised something in his or her complaint (or would have liked to) does not mean the Tribunal can consider it. Some of the plaintiff’s applications to the Tribunal fell within this category.

Adjournment declined

The Tribunal declined the plaintiff’s application for an adjournment. It noted in its decision that because of the resource pressures upon the Tribunal and the long delays that litigants endure waiting for hearings, applications for adjournments shortly before hearings are due to begin require careful consideration.

The Tribunal’s Co-Chairperson noted: “While the assistance of legal counsel at a hearing is greatly valued, it is the norm in the Tribunal for litigants to be self-represented. The Tribunal’s proceedings are flexible and relatively informal and able to accommodate self-representation.”

On the matter of the plaintiff’s wish to amend her claim, the Co-Chairperson said:

“An amended claim in the terms proposed would necessitate essentially starting again with proceedings … an amended reply would be required, further discovery, amended briefs of evidence etc. Given the length of time the claim … has been before the Tribunal and the fact that the hearing is but two working days away, I am not persuaded that it is fair of reasonable to grant an adjournment for this purpose.”

The hearing

At the hearing, after the plaintiff completed giving her evidence, the lawyer for the defendant sought to cross-examine the plaintiff. But the plaintiff refused to answer questions put to her by the lawyer. She then maintained and confirmed her refusal to do so, saying she had insufficient time to prepare for self-representation and that she believed she would not get a fair hearing without legal representation.

The Tribunal then considered an application by the defence to strike out the case. In its decision the Tribunal noted that the overall purpose of the provisions in the Evidence Act 2006 concerning cross-examination is to promote accurate fact finding by the court or tribunal and to ensure a fair hearing by both parties.

The Tribunal said the accounts of both the plaintiff and the defendant contradicted each other on significant matters, with the plaintiff alleging in strong terms that the defendant had lied, withheld information, and included “faked” information in his evidence.

The refusal to submit to cross examination undermined the fundamental principle of fairness, especially since the plaintiff was the only witness to give evidence in support of her case. The plaintiff’s refusal to allow herself to be cross-examined allowed the defendant “…no fair opportunity to test the veracity of her evidence. This was unfair and prejudicial to [the defendant] in light of the serious factual allegations made against him in [the plaintiff’s] evidence in chief.”

The Tribunal concluded the plaintiff’s refusal to be cross-examined effectively prevented it from fact-finding in this hearing and denied the defendant a right to be heard in defence of the allegations made against him. The evidence of the plaintiff could not be accepted and her steadfast refusal to be cross-examined meant the application to strike out the case was granted. 

Image credit: Great Auk via John J Audubon's Birds of America

complaints, IPP6 - access, Human Rights Review Tribunal