Cancer survivor 'shattered' after fruitless fight over privacy breach

Cheryl Horrell was furious when painful, private details were used to target her and other cancer survivors with advertising.

After years of battling through the Privacy Commission and Human Rights Review Tribunal, the breast prosthesis companies found to have breached her privacy were ordered to pay her more than $10,000 in damages.

Horrell, 75, said she felt helpless after the sole director of the companies, Richard Brady, told her they could not pay the full amount or could pay only in dozens of small instalments, despite another of his companies receiving more than $11 million in taxpayer funding.

The tribunal order followed the misuse of information from the Canterbury-West Coast Cancer Society's confidential client database in 2016, when breast cancer survivors were sent advertising from Naturalwear.

In his evidence to the tribunal, Brady denied accessing the database but accepted he may have "somehow" used the names of people on the database.

The society said it did not pursue the matter in court because of the cost and to avoid re-traumatising clients.

Horrell, who suffered a head injury in 2016, missed the first marketing letter and said she was in no state to organise a class action, which she now believes would have been the best way to deal with the breach.

When she received another advertisement in 2018, Horrell took her complaint to the Privacy Commission, demanding an apology from Brady and the deletion of all Cancer Society records.

Details collected 'clandestinely'

The commission found Naturalwear breached the Privacy Act and interfered with Horrell's privacy, and required the company to do privacy training.

Dissatisfied, Horrell filed a complaint with the Human Rights Review Tribunal in 2020.

Representing herself, she battled mountains of paperwork, court processes and legal nuance.

In 2023, the tribunal found multiple breaches of the Privacy Act caused significant injury to Horrell.

It stopped short of finding how the information had been accessed and by whom but said highly sensitive details had clearly been clandestinely collected without the knowledge of the Cancer Society, from which it was uplifted.

The tribunal ordered the defendants - two of Brady's companies, NWSI Ltd and Banyan Pacific Capital Ltd (Naturalwear's trading name) - to pay Horrell $10,500 in damages.

Brady has since told debt collectors he is under no personal obligation to pay, that both companies are broke and have "nothing to do with Naturalwear at all".

Horrell is bitterly disappointed and wants the Ministry of Health to end the taxpayer funding Brady's company still receives as a registered supplier of breast prostheses.

"I never did it for the money. I did it because he had to be held to account. Someone had to and there was only me left, so I wasn't in it for the money," she said.

"When I got the decision I thought, wow, that's fantastic, they heard what I said. But it's all to no avail."

Who has to pay?

Horrell named three defendants when she filed her claim - Richard Brady, Naturalwear and a former Cancer Society employee - but the tribunal's deputy chair changed the names of the defendants at Brady's request.

Horrell said when the tribunal discovered Naturalwear was not a registered company, Brady told it that the correct name was Banyan Pacific Capital Ltd, trading as Naturalwear.

In its decision, the tribunal said Brady later submitted that following a restructure two new companies - NWSI Ltd and NWNI Ltd - should be substituted for Banyan.

Horrell objected on the grounds Brady was trying to avoid liability.

The tribunal noted he filed nothing to show the new companies had taken on Naturalwear's liabilities but it removed Brady's name, listing NWSI Ltd and Banyan to accommodate his claimed trading position and Horrell's concerns.

The tribunal used Naturalwear to refer to both companies in its decision.

No ability to pay now or 'in the future'

In 2024, Horrell asked a collection agency to try to recover the money.

Brady declined to comment when approached by RNZ, saying he was concerned about respecting the confidentiality of the tribunal's decision.

In an email to the collection agency, he said "neither Banyan or NWSI trade at all ... have no income whatsoever, have no cash in the bank and they actually both have very large secured debts owing to my trust. Furthermore, they have nothing to do with Naturalwear at all."

Brady said neither company "had any ability to pay anything and will not be in any position to pay anything in the future".

He said he had "no legal requirement - personally" to "try and assist this messy situation" but proposed two options: paying a total of $6250 split between two payments but only if it was treated as a full and final payment; or 27 payments of $380 a month until he reached the full judgment amount of $10,500.

He acknowledged Horrell could have the businesses liquidated but that "given these businesses have zero ability to contribute with no trading - this is something you'll need to weigh up".

Horrell was outraged but unsurprised, saying she felt Brady had "played me like a fool".

"I'm shattered by it, honestly. Five years of my life went into this. I'm a person who takes on issues and challenges things in life, but it's left me feeling like I'm helpless."

$11m in Health NZ subsidies

People who have had a partial or full mastectomy, lumps removed, reconstructive surgery or congenital deformities qualify for a subsidy from the government of $613 for each breast for prostheses, special bras or modified swimwear every four years.

For registered suppliers, eligible users do not have to pay up front, with Health New Zealand paying their subsidy directly to the provider.

Another of Brady's companies, Medivex Healthcare Ltd, trading as Naturalwear, received at least $11.5 million from Health NZ between mid-July 2012 and April this year.

Health NZ declined an Official Information Act request to supply figures for customers who paid directly then claimed the subsidy, on the grounds it would be too much work to collate.

A spokesperson said the agency was aware of Naturalwear's Privacy Act breach and that it expected all suppliers to abide by legislation that required them to comply with the Privacy Act and the Health Information Privacy Code.

Medivex remains on Health NZ's registered supplier list.

On advice from the Ministry of Justice, Horrell wrote to the tribunal requesting it change the named company defendant back to Brady but was told it was not possible.

Ministry spokesperson Tracey Baguley would not comment on individual cases but said a court could only enforce a debt against the party or parties specifically named in an order.

Asked if there was any way to seek a review of the decision to change the defendant's name, Baguley advised contacting the tribunal directly or seeking independent legal advice.

Horrell despaired at the process, saying the distressing experience had revived painful memories and consumed many frustrating hours.

"I was diagnosed at 34, I was a university student and a single mother. I didn't need to drag this all up again."

She saw the continuing funding Brady's company received as salt in the wound.

"The ministry said they've looked into it and he's abiding by the rules now so there's nothing for them to do about it, which is what happened when the Privacy Commission looked into it when the Cancer Society first raised it," she said.

Privacy law specialist Kathryn Dalziel said the situation underscored the challenges facing someone trying to navigate complex cases without a lawyer.

"It's really hard for individual people to take their own claims, particularly when a technical legal point comes up as to who is the defendant. Is it an individual person or is it a company? That's hard work for some lawyers, let alone for individual members of the public to try and navigate those sort of technical questions."

She said the tribunal could have required Brady make a formal application to change the named defendants, allowing Horrell to seek independent legal advice on the technicalities instead of having to deal with it in the moment.

"It's concerning the respondents may be arguing they are not responsible for the debt and are refusing to pay it," she said.

"It really was over to the Human Rights Review Tribunal to give her an opportunity to seek independent legal advice and to ensure the application to change the names of the defendant was done formally within that time period to allow her to get such support."

Once the judgment was issued, the only way to challenge the name change would be to take a costly judicial review to the High Court, Dalziel said.

Horrell still wanted to see Brady pay.

"That's what the money's about, to be honest. It's not that I literally want his $10,000, I want him to be properly sanctioned for what he did to up to 900 breast cancer survivors," she said.

"I want him to pay some kind of price, to feel like the justice system said that's not good enough."