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Peters v Attorney-General

Peters v Attorney-General

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Case Copied 2 August 2021 68 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA254/2020
[2021] NZCA 355

BETWEEN	WINSTON RAYMOND PETERS Appellant
AND	ATTORNEY-GENERAL SUED ON BEHALF OF MINISTRY OF SOCIAL DEVELOPMENT First Respondent BRENDAN BOYLE Second Respondent PETER HUGHES Third Respondent

Hearing:	20–21 April 2021
Court:	French, Collins and Goddard JJ
Counsel:	B P Henry and A R Kenwright for Appellant V E Casey QC, N J Wills and S P R Conway for Respondents
Judgment:	2 August 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe application for leave to adduce further evidence is declined.
BThe appeal is dismissed.
CThe appellant must pay the respondents one set of costs for a standard appeal on a band A basis, with usual disbursements. We certify for second counsel.

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Table of contents

Para No

Mr Peters’ claim for interference with privacy

Mr Peters receives a superannuation overpayment
Ministers are briefed
Anonymous leaks to the media
Mr Peters brings High Court proceedings
The appeal to this Court

Background

Mr Peters applies for NZS and is paid at the single rate
The overpayment is discovered
Mr Boyle briefs the State Services Commissioner and his Minister
Mr Hughes briefs his Minister
The Ministers’ involvement
Internal investigations by MSD and Department of Internal Affairs
Evidence from journalists

The claim before the High Court

High Court judgment

The test for invasion of privacy
Applying the test
The claims against the Ministers
The claims against the Chief Executives and MSD
Affirmative defences

Damages

Issues on appeal

Issues raised by Mr Peters’ appeal
Further issues raised by the respondents on appeal

Application to adduce further evidence

Protection of privacy under New Zealand law

The emergence of the tort of invasion of privacy
A reasonable expectation of privacy
The “highly offensive” requirement
Publication to whom?
Communication of information in which there is a legitimate interest

The nature of the relationship between a chief executive and a Minister

Claims against Mr Boyle and Mr Hughes: statutory immunity

Vicarious liability of chief executives?

Did Mr Peters have a reasonable expectation that his privacy would be protected from disclosures within MSD and/or to Ministers?

Framing the reasonable expectation test
The scope of Mr Peters’ reasonable expectation of privacy
Disclosures within MSD
Disclosure by Mr Boyle to the Minister for Social Development
Disclosure by Mr Boyle to Mr Hughes
Disclosure by Mr Hughes to the Minister for State Services
Disclosure by Mr Nichols to Mr McLay
Is MSD liable for public disclosures on the basis of res ipsa loquitur?

Other issues

Result

REASONS OF THE COURT

(Given by Goddard J)

Mr Peters’ claim for interference with privacy

Mr Peters receives a superannuation overpayment

The Right Honourable Winston Peters is a well-known New Zealand politician. He is the leader of the New Zealand First Party. He has held many Ministerial offices, and has served as Deputy Prime Minister. Mr Peters has a high public profile, but he has always sought to…

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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Details

Case: [2021] NZCA 355
Decision Date: 2 August 2021 at 11.00 am

CaseChat Overview and Summary

Winston Peters, a well-known New Zealand politician, sued the Ministry of Social Development, two of its chief executives and two Ministers, alleging a breach of his right to privacy. He claimed that his superannuation payment was overpaid, the error was discovered, and information about the overpayment was disclosed to the media. Mr Peters alleged that the disclosure was a breach of his right to privacy, and sued the defendants in tort for invasion of privacy. The High Court dismissed the claim. Mr Peters appealed to this Court. The appeal was dismissed. This Court found that information about Mr Peters’ application for NZS, and the payment irregularity, should not have been publicly disclosed. The disclosure of that information to the media was a serious invasion of Mr Peters’ privacy. However, Mr Peters did not have a reasonable expectation that information about the payment irregularity would not be provided by the Chief Executives to their Ministers. The relationship between a chief executive of a government department and the responsible Minister is one of trust and confidence. It is not the function of the tort of invasion of privacy to regulate what can or cannot be disclosed by a chief executive to their Minister in good faith, on a confidential basis. The claim in tort against the Chief Executives must therefore fail. The claim was in any event precluded by the statutory immunity conferred on the Chief Executives by s 86 of the State Sector Act 1988. Nor has Mr Peters made out his claim against the Ministry of Social Development. The evidence before the Court does not establish that any employee of the Ministry of Social Development was responsible for the disclosures to the media. By the time those disclosures occurred, the information was in the hands of a number of people inside and outside the Ministry of Social Development. Mr Peters sought to rely on the evidential principle res ipsa loquitur: that is, the matter speaks for itself. But as a matter of logic the leak could have come from a number of sources. The Ministry of Social Development is not liable for the unlawful disclosures made by an unknown person merely because it was the original holder of the information, which had subsequently been provided (lawfully) to a number of people inside and outside the Ministry of Social Development.

Orders