Rafiq v Privacy Commissioner

[2014] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-147 [2014] NZHC 325

BETWEEN  RAZDAN RAFIQ Applicant

ANDPRIVACY COMMISSIONER Respondent

Hearing:                   26 February 2014

Appearances:           Applicant in person

K Evans for Respondent

Judgment:                28 February 2014

JUDGMENT OF LANG J

[on application for leave to commence defamation proceedings out of time]

This judgment was delivered by me on 28 February 2014 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

RAFIQ v PRIVACY COMMISSIONER [2014] NZHC 325 [28 February 2014]

[1]      Mr Rafiq applies for leave under s 4(6B) of the Limitation Act 1950 to issue a claim  in  defamation  against  the  Privacy Commissioner  out  of  time.    Mr  Rafiq requires   leave   because   he   proposes   to   issue   a   claim   against   the   Privacy Commissioner based on allegedly defamatory statements contained in a letter written by a member of the Privacy Commissioner’s staff on 7 April 2010.  The limitation period for claims in defamation is ordinarily two years.  The Court has the power under s 4(6B) of the Limitation Act 1950 to grant leave for a claim in defamation to be commenced outside that period “if it thinks it just to do so”.

[2]      The  Privacy  Commissioner  opposes  leave  being  granted.     His  counsel contends that Mr Rafiq has failed to provide an adequate explanation for his failure to bring the present application before now.  She also claims that Mr Rafiq’s claim is doomed to fail in any event.  The Commissioner therefore contends that he should not be put to further expense defending the claim, and that leave to bring the claim should be refused.

Background

[3]      In   or   about   2009,   Mr   Rafiq   lodged   a   complaint   with   the   Privacy Commissioner in which he alleged that the Civil Aviation Authority of New Zealand had violated several of the information privacy principles contained in the Privacy Act 1993 (“the Act”).  The Privacy Commissioner then carried out an investigation of Mr Rafiq’s complaint.

[4]      By April 2010, the Privacy Commissioner had determined that he would not uphold the complaint.   By letter dated 7 April 2010, the Assistant Commissioner (Investigations) of the Privacy Commission wrote to the Chief Executive of the Civil Aviation Authority advising him of the Privacy Commissioner’s decision.   In the course of this letter, the Assistant Commissioner made the following comments:

We informed Mr Rafiq of our view on the CAA’s actions by letter on 18

December 2009.  Mr Rafiq made a number of submissions which have not served  to  change  our  view.  However,  Mr  Rafiq  also  made  a  further

complaint about the fact that the CAA has mentioned on its files that he is known by a number of different names.

It was at this point in our investigation that we became aware that Mr Rafiq may  not  have  made  his  complaint  against  the  CAA  in  good  faith. Information we have received in relation to various complaints that Mr Rafiq has made against a number of government agencies, and using a number of different aliases, indicates to us that the CAA’s belief that Mr Rafiq has been operating under a number of aliases may be well founded.

Our impression is that Mr Rafiq has been seeking to question legitimate investigations by the CAA and other agencies into his identity and background  through  the  Act.    This  is  inappropriate  and  in  our  view establishes that the complaint he has made against the CAA has not been made in good faith and is vexatious.  On this basis, and further to the view set out above, I have decided to close Mr Rafiq’s complaint under section

71(1)(c) of the Act.

[5]      Mr Rafiq considers that several aspects of the above passage are defamatory, and he wishes to commence a proceeding under the Defamation Act 1992 against the Privacy Commissioner as a result.   He has attached the whole of the letter dated

7 April 2010 to his draft statement of claim.

Decision

[6]      It is not necessary for me to consider whether or not Mr Rafiq has adequately explained his delay in applying for leave to commence the proceeding.  I take that approach because I am satisfied that counsel for the Privacy Commissioner is correct when she submits that s 96(4) of the Act would provide her client with a complete defence to Mr Rafiq’s claim in any event.  I therefore take the view that it would not be just, in terms of s 4(6B) of the Act, to grant leave to Mr Rafiq to pursue a claim that lacks merit.

[7]      Section 96(4) provides as follows:

96      Proceedings privileged

…

(4)    Anything said or any information supplied or any document or thing produced by any person in the course of any inquiry by or proceedings before the Commissioner under this Act shall be privileged in the same manner as if the inquiry or proceedings were proceedings in a court.

…

[8]      It is patently clear that the letter dated 7 April 2010 was written by a member of the Privacy Commissioner’s staff at the conclusion of the inquiry into the complaint that Mr Rafiq had lodged in respect of the actions of the Civil Aviation Authority.  Section 75 of the Privacy Act compels the Commissioner to inform the parties of the result of the investigation.   Thus, when the Assistant Commissioner sent the letter to the Civil Aviation Authority he was clearly supplying information in the course of an inquiry.  On that basis, s 96(4) of the Privacy Act 1993 cloaks the statements  made in  the  letter  with  the  same  privilege  as  if the inquiry  was    a proceeding in a Court.  Proceedings in a Court are subject to absolute privilege by virtue of s 14(1) of the Defamation Act 1992.  It follows that Mr Rafiq’s proposed claim against the Privacy Commissioner has no prospects of success.

[9]      It would be wrong in principle for this Court to grant leave to Mr Rafiq to commence the claim, and thereby expose the Privacy Commissioner to the inevitable costs of defending a proceeding that has no prospect of success.

Result

[10]     The  application  for  leave  to  commence  the  proceeding  out  of  time  is accordingly dismissed.

Costs

[11]     The Privacy Commissioner has succeeded and is entitled to an award of costs on a Category 2B basis, together with disbursements as fixed by the Registrar.

Lang J

Solicitors:

Privacy Commissioner, Auckland

Copy to: Applicant