The High Court dismissed Ian Hyndman’s tort claim for invasion of privacy, finding that he had a reasonable expectation of privacy in certain private communications but their disclosure by Robert Walker did not meet the highly offensive threshold designed to discourage trivial claims.[1]
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.
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.
We turn to the circumstances of the alleged breach.
The background
The Henderson disclosure
We have drawn the facts from the judgment of Thomas J below and her companion judgment in David Henderson’s successful claims against Mr Walker.[2] The facts are not now in dispute.
Mr Hyndman is a friend and business associate of Mr Henderson, an ambitious but unsuccessful and now bankrupt property developer whose companies, which it is convenient to collectively call PVL, were put into liquidation owing very large sums to secured and unsecured creditors. PVL was put into liquidation in July 2010 but the liquidation was immediately stayed pending appeal and remained stayed until 8 February 2012. Mr Walker is the liquidator. The liquidation has been highly contentious…
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.
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AGLC
Hyndman v Walker [2021] NZCA 25
Case
[2021] NZCA 25
Decision Date
CaseChat Overview and Summary
Ian Hyndman sought to appeal the High Court's decision to dismiss his claim against Robert Walker for invasion of privacy, misfeasance in public office, breach of statutory duty, contempt of court, and breach of confidence. The Court of Appeal dismissed the appeal, finding that Mr Walker's disclosure of private information did not meet the threshold of being highly offensive to a reasonable person. The Court noted that the tort of invasion of privacy may benefit from re-examination, but it was not possible to remove the "highly offensive" requirement without reformulating the tort. The Court also concluded that Mr Walker's conduct merits condemnation, but the alleged breach of Mr Hyndman's privacy was trifling. The Court further held that even if the more liberal formulation used in English law were to be adopted, the claim would still fail. The Court of Appeal dismissed the appeal and Mr Walker was entitled to costs for a standard appeal on a band A basis plus usual disbursements.