Hyndman v Walker - [2021] NZSC 58

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 28/2021
[2021] NZSC 58

BETWEEN	IAN BRUCE HYNDMAN Applicant
AND	ROBERT BRUCE WALKER Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	J Moss for Applicant R J B Fowler QC and S B McCusker for Respondent
Judgment:	9 June 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
BThe applicant must pay the respondent costs of $2,500.

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REASONS

Introduction

The High Court dismissed Mr Hyndman’s tort claim for invasion of privacy, finding that he had a reasonable expectation of privacy in certain private communications but that their disclosure by Mr Walker did not meet the highly offensive threshold designed to discourage trivial claims.[1]
[1]Hyndman v Walker [2019] NZHC 2188 (Thomas J) [HC judgment], citing Hosking v Runting [2005] 1 NZLR 1 (CA).
The Court of Appeal dismissed Mr Hyndman’s appeal against that decision.[2] The Court said:
[2] In this appeal Mr Hyndman asks us to modify the elements of the tort by removing the “highly offensive” requirement; alternatively, to find that, when the test is properly applied, Mr Walker’s behaviour and the circumstances of his disclosure were highly offensive and justify a declaration and a modest award of damages.
[3] As we explain later, we consider this tort may well benefit from re‑examination, and the opportunity to re-examine it very seldom arises. But it is not possible to remove the “highly offensive” requirement without reformulating the tort, and that is an exercise that courts must undertake with care having regard to the treatment accorded to privacy generally in New Zealand law and the need to balance rights of privacy against those of free expression. This case does not engage the latter rights, and for that reason it is an unsatisfactory vehicle for the reform counsel have asked us to undertake. Further, while Mr Walker’s conduct merits condemnation, Thomas J rightly found that the alleged breach of Mr Hyndman’s privacy was trifling. We also conclude that the claim would fail even if we were to adopt the more liberal formulation used in English law.
[2]Hyndman v Walker [2021] NZCA 25 (Miller, Clifford and Collins JJ) [CA judgment].
Mr Hyndman applies for leave to appeal against the Court of Appeal decision.

Ground of appeal

Mr Hyndman renews his submission made in the Court of Appeal that the tort of invasion of privacy needs modification and, in particular, he submits that the second limb of the test should not remain as a stand-alone test. He submits that the test in the United Kingdom strikes the right balance and in particular between free expression and privacy.
Mr Hyndman submits that this is the first case since Hosking v Runting[3] where the issue has come before the Supreme Court. He submits that it is a matter of public importance because of the “seismic shift” since Hosking in the way in which private and public bodies collect and distribute private material and because…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hyndman v Walker

Details

AGLC: Hyndman v Walker [2021] NZSC 58
Case: [2021] NZSC 58
Decision Date: 9 June 2021

CaseChat Overview and Summary

Ian Bruce Hyndman, the applicant, sought leave to appeal against the Court of Appeal's decision which dismissed his appeal in a tort claim for invasion of privacy against Robert Bruce Walker, the respondent. The Court of Appeal had previously dismissed the applicant's appeal against the High Court's decision that he had a reasonable expectation of privacy in certain private communications, but that the disclosure of these communications by the respondent did not meet the highly offensive threshold designed to discourage trivial claims. The Court of Appeal had held that the applicant's claim would fail even if the more liberal formulation of the tort used in English law were to be adopted.

The central issue before the Supreme Court was whether the proposed appeal provided a suitable vehicle for reconsideration of the tort of invasion of privacy. The Court was required to determine whether the case engaged any issues around freedom of expression, and whether the proposed appeal would result in a reconsideration of the tort of invasion of privacy. The Court was also required to consider whether the applicant's claim would fail under the United Kingdom test, as the Court of Appeal had found.

The Supreme Court held that the proposed appeal did not provide a suitable vehicle for a reconsideration of the tort of invasion of privacy. The Court held that the “substantial reform” of the tort proposed by the applicant could not occur in a vacuum and without being able to balance rights of privacy against those of freedom of expression. The Court also held that the finding of both the Courts below was that the alleged breach was not serious. As a result, the application for leave to appeal was dismissed. The applicant was ordered to pay the respondent costs of $2,500.

This decision highlights the importance of the balance between rights of privacy and freedom of expression, and the need for courts to undertake careful consideration of any proposed reform of the tort of invasion of privacy. The Court also emphasised that the proposed appeal was not suitable for reconsideration of the tort of invasion of privacy, and that the alleged breach in this case was not serious.

Orders