Peters v Attorney-General - [2020] NZCA 649

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA254/2020
[2020] NZCA 649

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

Court:	Miller and Courtney JJ
Counsel:	B P Henry and A R Kenwright for Appellant V E Casey QC, J N Wills and SPR Conway for Respondents
Judgment: (On the papers)	14 December 2020 at 11.30 am

JUDGMENT OF THE COURT

AThe respondents’ application to adduce fresh evidence is granted on a provisional basis and will be determined with the appeal.
BMr Peters has leave to file evidence in response, on the same basis and by 5 February 2021.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The appellant, the Rt Hon Winston Peters, has brought an appeal against a judgment dismissing his claim for damages for breach of a reasonable expectation of privacy.[1] Venning J accepted that Mr Peters had a reasonable expectation of privacy as regards details of an accidental overpayment of his national superannuation entitlement, and that deliberate disclosure of those details would be regarded as highly offensive to an objective reasonable person. The claim failed because he conceded that first and third defendants in the High Court, Paula Bennett and Anne Tolley,[2] did not leak the information and he was unable to establish that any of the respondents were responsible for it.
[1]Peters v Bennett [2020] NZHC 761.
[2]These respondents have not been included in the appeal.
In the appeal, which is to be heard in April, Mr Peters will contend that the respondents are estopped from denying that Ms Tolley and Ms Bennett were the source of the leak, that the information can only have been leaked by a staff member for whom they were responsible, and that he may rely upon the doctrine of res ipsa loquitur to relieve him of the obligation of proof.
Before us is an application by the respondents for leave to adduce further evidence on appeal.[3] It takes the form of an affidavit from Lisa Wallbank attaching media reports of interviews with Mr Peters subsequent to the delivery of the judgment under appeal. In those reports Mr Peters is quoted saying that he knows who the leaker was but he had sworn to keep that person’s name confidential. The respondents say that the evidence is fresh and relevant and they claim that its accuracy is not contentious.
[3]Under r 45(1)(b) of the Court of Appeal (Civil) Rules 2005.
In his notice of opposition Mr Peters responds that the proposed new evidence relates to an issue that the respondents chose not to contest in evidence at trial, the evidence is a mere media statement of no probative value and amounts to no more than general comments about Mr Peters beliefs, and the evidence is “not contrary to aspects of the notice of appeal”.
We are satisfied that the proposed evidence…

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: [2020] NZCA 649
Decision Date: 14 December 2020 at 11.30 am

CaseChat Overview and Summary

Winston Raymond Peters, the appellant, has appealed a decision that dismissed his claim for damages for breach of a reasonable expectation of privacy. The lower court found that Mr Peters had a reasonable expectation of privacy concerning details of an accidental overpayment of his national superannuation entitlement, and that deliberate disclosure of those details would be regarded as highly offensive to an objective reasonable person. However, the claim was dismissed as Mr Peters conceded that the first and third defendants in the High Court, Paula Bennett and Anne Tolley, did not leak the information, and he was unable to establish that any of the respondents were responsible for it.

The appeal raises several legal issues. Mr Peters contends that the respondents are estopped from denying that Ms Tolley and Ms Bennett were the source of the leak, that the information can only have been leaked by a staff member for whom they were responsible, and that he may rely upon the doctrine of res ipsa loquitur to relieve him of the obligation of proof. The respondents have applied for leave to adduce further evidence on appeal, in the form of an affidavit from Lisa Wallbank, which includes media reports of interviews with Mr Peters subsequent to the delivery of the judgment under appeal.

The court granted the respondents' application to adduce fresh evidence on a provisional basis, pending a final decision when the appeal is heard. The evidence is considered fresh, credible, and cogent, as it sufficiently evidences admissions by Mr Peters that he knows who leaked the information. The evidence is relevant because it bears on Mr Peters' grounds of appeal, particularly as his claim failed at trial because he did not identify the source of the leak. The court noted that the arguments against the admissibility of the evidence would have to be assessed by the panel on the hearing of the appeal.

The court ordered that Mr Peters has leave to file evidence in response, on the same basis and by 5 February 2021.

Orders