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.

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REASONS OF THE COURT

(Given by Miller J)

1. 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.

2. 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.

3. 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.

4. 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”.

5. We are satisfied that the proposed evidence should be admitted de bene esse; that is, provisionally pending a final decision when the appeal is heard.  We can state our reasons shortly.

6. First, we accept that the evidence is fresh, credible and cogent.  It sufficiently evidences admissions by Mr Peters that he knows who leaked the information.  His information may be hearsay, but it is nonetheless cogent having regard to the grounds of appeal.

7. Second, the evidence is relevant because, as the respondents contend, it bears on Mr Peters’ grounds of appeal.  He asserts that the Ministry of Social Development was the source of the leak, that he cannot be expected to identify the leaker, that he is entitled to rely on the doctrine of res ipsa loquitur, and that it suffices to establish vicarious liability on the part of the Crown that he is able to identify a group of people who knew the details of his superannuation overpayment, without needing to identify an individual wrongdoer.  As noted, his claim failed at trial because he did not identify the source of the leak.

8. Third, Mr Peters submits that the new evidence is not supplementary to the evidence at trial and it would be impossible to fairly evaluate it against the evidence already taken; in effect, it would require a retrial of the action.  He also maintains that evidence on the topic was unchallenged at trial and the respondents cannot challenge it now.  There may be some force in these arguments, but we are not able to say they are correct.  A decision will require close analysis of the evidence against the trial record, with the benefit of full submissions.  For that reason, these arguments will have to be assessed by the panel on the hearing of the appeal.

9. We record that the parties agree no question of parliamentary privilege arises with respect to this evidence. 

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

Solicitors:
Clifton Killip Lyon, Auckland for Appellant
Crown Law Office, Wellington for Respondents