Proceedings Commissioner v Harder: NZ Case law on Privacy

Privacy in New Zealand is evolving at a rapid pace. The Privacy Act, 2020 has been enacted to keep up with the world’s advent in this much needed aspect of law. 

There have been many landmark cases in New Zealand which have shaped the understanding of privacy law in New Zealand. We shall analyse in brief the facts of the case.


Mr. Harder, a barrister by profession, was acting for a man who was charged with breaching a non-violence order made in favour of Mrs. C. Mrs. C reached out to Mr. Harder prior to the court proceedings in order to resolve the issue. Mrs. C offered different means by which the matter could be resolved and communicated this to Mr. Harder. He told her that he would take instructions from her client and would inform her by telephone of the decision taken. But, Mr. Harder refused to resolve the matter outside the court and also asked a series of questions to Mrs. C which was also being recorded by Mr. Harder unknown to Mrs. C. 

After Mrs. C became aware of the tape recordings, she filed a complaint with the Privacy Commissioner. The Commissioner determined that the failure by Mr. Harder to inform before hand Mrs. C the recording of their telephonic conversation was a breach of Information Privacy Principles 3 and 4. 

IPP 3 and 4:

IPP 3 concerns itself with collection of information from the individual. An important point of IPP 3 is that the individual must be made aware that information is being collected, the purpose for which it is being collected and the intended recipients of the information. 

IPP 4 states that information cannot be collected by unfair or unlawful means. 

Stages of Court proceedings:

The case was tried at various levels. Firstly, it was tried at the Tribunal, secondly at the High Court and subsequently at the Court of Appeal. At the Tribunal, a judgment was passed against Mr. Harder in breach of IPPs 3 and 4 and he was directed to pay damages worth 7500 AUD to Mrs. C. 

In the High Court, the amount of damages was reduced substantially from 7500 AUD to 2750 AUD. It was acknowledged that Mr. Harder did not maintain professional standards while recording a conversation between Mrs. C and himself however the defences relied upon by Mr. Harder convinced the High Court that the Tribunal had been influenced by the use of the tape recordings rather than its improper collection. 

Grounds of Appeal:

The 4 points of law on which the High Court granted leave to appeal to Mr. Harder are as follows:

1. Whether the High Court erred in law in concluding that the tape recording of unsolicited telephone call/s to the Appellant’s legal office amounted to “collecting” in terms of the Privacy Act 1993.

2. Whether the High Court erred in law in stating that the failure of the appellant to give evidence is fatal to his defence.

3. Whether the High Court erred in law when it found evidence of unfairness and ruled that the tape recording of the conversation/s with the complainant was unfair.

4. Whether the High Court erred in law when it lowered damages for humiliation etc to only $2750.00.

(These points of law were criticised by the Court of Appeal as not adequately covering the points of law of the case)

Decision by the Court of Appeal:

The proceedings in the court of appeal threw light on some very important and logical points which had been overlooked in the previous judicial proceedings such as:

-Whether the contents of the tape recording was personal information as defined in the Privacy Act 1993

-It was decided that the information collected was not unsolicited since Mrs. C of her own accord had provided the information to Mr. Harder

-Mrs. C was aware that the intended recipient of the conversation would be Mr. Harder’s client. 

-Tape recording a conversation is not unlawful means of collection of information

It was finally ruled that there has been no breach of IPPs 3 and 4. Hence no damages can be awarded to Mrs. C and the Proceedings Commissioner is to pay Mr. Harder 10,000 AUD.


This case springs at the readers very interesting points of law which came to light only after dissecting all the facts and circumstances. Due to the ambiguity of certain definitions in the Privacy Act, 1993 loopholes were taken advantage of thereby dismissing a complaint which did seem genuine on the face of it but later was not considered to be a breach of the Privacy Act.