Peters v Bennett
[2019] NZHC 2601
•11 October 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-1122
[2019] NZHC 2601
BETWEEN WINSTON RAYMOND PETERS
Plaintiff
AND
PAULA BENNETT
First Defendant
PETER HUGHES
Second DefendantANNE MERILYN TOLLEY
Third DefendantTHE ATTORNEY GENERAL sued on
behalf of the MINISTRY OF SOCIAL DEVELOPMENT
Fourth Defendant
BRENDAN BOYLE
Fifth Defendant
Hearing: 11 October 2019 Appearances:
B Henry for Plaintiff
V Casey QC and N Wills for Second, Fourth and Fifth Defendants
Judgment:
11 October 2019
ORAL JUDGMENT OF VENNING J
Application for answers to interrogatories
Solicitors: Clifton Killip Lyon, Auckland
Kiely Thompson Caisely, Auckland Crown Law, Wellington
Counsel: B Henry/S Singh, Auckland
G Richards, Wellington B Gray QC, Auckland
V Casey QC, Wellington
PETERS v BENNETT [2019] NZHC 2601 [11 October 2019]
[1] The fourth defendant, the Attorney-General, applies for orders requiring the plaintiff Mr Peters to answer interrogatories.
[2] The fourth defendant delivered a notice on 16 August 2019. The plaintiff responded with answers on 6 September 2019. Some of the questions in the notice were answered. Others were not, hence the application for orders requiring answers to those interrogatories the fourth defendant considers have not been answered sufficiently or at all.
[3] The interrogatories for which orders are now sought fall into a number of categories:
(a)questions arising out of the completion of Mr Peters’ application for superannuation in April 2010, and subsequent correspondence from the Ministry of Social Development (MSD) in March 2014;
(b)questions arising out of a meeting with an MSD staff member in July 2017;
(c)questions as to events after 26 July 2017, particularly directed at the overpayment of Mr Peters’ superannuation entitlement;
(d)questions about Mr Peters’ involvement with the application of the “no surprises” policy for Ministers;
(e)questions arising from newspaper reports of Mr Peters’ reported comments; and finally
(f)some questions arising from a pre-trial application in separate proceedings advanced by Mr Peters.
[4] The application is formally opposed. In the notice of opposition the grounds of opposition are stated to be that:
(a)the plaintiff’s brief, which has been exchanged, includes all admissible evidence the plaintiff has regarding the questions. His evidence addresses the subject of the unanswered interrogatories;
(b)there is no prejudice in not providing the answer. Insofar as the questions are relevant and answers admissible, they will be dealt with in the course of the hearing and by cross-examination if necessary; and
(c)there are legitimate grounds for objection in accordance with High Court Rule (HCR) 8.40.
The scheme of interrogatories
[5]Interrogatories are provided for by Subpart 2 to Part 8 of the HCR.
[6] The rules provide interrogatories may be issued by notice.1 The notice is then to be answered.2 The answers are to comply with requirements of HCR 8.39. Any objection to answering the interrogatories should be made in accordance with HCR 8.40.
[7] A party served with a notice requiring them to answer has the ability to apply to the Court to limit the answers instead of objecting.3 Mr Peters did not do that in this case.
[8] In the event the party delivering interrogatories is dissatisfied with the responses to the interrogatories they may apply for an order under HCR 8.38 as the fourth defendant has in this case. HCR 8.38 provides:
8.38 Order to answer
(1)A Judge may, at any stage of any proceeding, order any party to file and serve on any other party (whether the interrogating party or not) a statement prepared in accordance with rule 8.39 in answer to interrogatories specified or referred to in the order.
1 HCR 8.34.
2 HCR 8.35.
3 HCR 8.36.
(2)The interrogatories must relate to matters in question in the proceeding.
(3)The order may require the statement to be verified by affidavit.
(4)The Judge must not make an order under subclause (1) unless satisfied that the order is necessary at the time when it is made.
[9] On such an application the Court is required to determine whether the order sought is necessary at the time and whether any of the objections raised can properly be sustained.
[10] Counsel have helpfully exchanged memoranda setting out the questions and current answers and identifying the basis of either the objection or the plaintiff’s refusal to answer the particular interrogatory.
[11]Dealing with the particular questions:
Question: [referring to the application form] your application for NZ Superannuation dated 11 April 2010. With regard to that application form:
Q1.3Did you sign that application form as being true and complete on 11 April 2010?
[12] Mr Peters’ response is that he has answered that question and other sub- questions in his general narrative. The general narrative confirms that the application was completed in his handwriting. The application form itself contains a statement:
The information I have given is true and complete and I have not left anything out.
[13] From the narrative it is clearly conceded by the plaintiff that he completed the form and it is apparent he initialed that page.
[14]In counsel’s memorandum on behalf of the plaintiff, Mr Peters, it is said that:
The narrative is clear. The handwriting including the signature is the plaintiff’s. Nothing further is required.
[15] I agree that when the general narrative is considered in the context of and against the background of the written form completed by the plaintiff that no further answer is required to question 1.3.
Q1.4 At the time you completed and signed the application form were you living with Ms Janet Trotman in a de facto relationship? If so, for approximately how many years prior to April 2010 had that relationship been in place?
[16] Mr Peters’ general narrative states he was “with his partner of many years” at the time he completed and signed the form.
[17] For the purposes of the form “partner” is defined as including a person with whom you have a de facto relationship. Again it seems to me the answer is clear enough from the narrative answer and from counsel’s response on behalf of Mr Peters, that is, at the relevant date Mr Peters accepted that Ms Trotman was his partner and in terms of the definition of partner to include a de facto relationship. The length of any such relationship prior to April 2010 is irrelevant.
[18] While I accept the point made by Ms Casey QC that HCR 8.39 requires individual and separate answers to each interrogatory, the overriding consideration under HCR 8.38(4) is that an order must not be made unless it is necessary.
[19] An order may not be necessary under HCR 8.38 where the plaintiff’s brief of evidence provides the answer sought.4 The plaintiff will obviously have to give evidence in support of his case. It is part of the case that he completed the form in issue.
Q4 As at 18 March 2014 were you living with Ms Janet Trotman in a de facto relationship?
[20] The plaintiff’s response is that the answer is in the narrative. Mr Henry submitted the Court should also read question 4 in the context of the question and answer to question 3, which was as follows:
4 Novartis NZ Ltd v Ancare NZ Ltd (1997) 11 PRNZ 393; and Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [16].
Question: Did you receive the letter dated 18 March 2014 from MSD sent to that address asking you to check the details regarding your NZ Superannuation and contact MSD as soon as possible if the information was not correct, including the following detail: “Relationship status: You are single”.
Answer: The letter of 18th March 2014: I have no recollection of receiving the same but I do not doubt I would have received it. I note the letters contents and given nothing had changed since I applied for National Superannuation, I doubt I would have given it anything but a cursory glance. I had no reason to think the details would be other than correct as there had been no change in my life relevant to the National Superannuation payment.
[21] The response to question 3 from the general narrative relied on by the plaintiff that “there had been no change in my life relevant to National Superannuation” is general in the extreme. The question put in question 4 is not in my view answered in that general statement in the narrative. Nor is answered in the narrative to question 1. Question 1 was focused as at the date of the application, namely 11 April 2010. The question in question 4 is focused some years later at 18 March 2014. Question 4 is to be answered.
Q5Did you contact MSD in response to the letter dated 18 March 2014? If you did, provide details of the communication with MSD?
[22] Mr Henry submitted that the answer to question 3 pre-empted this question and answer and the narrative deals with the event and the narrative fully answers the question. The narrative explains Mr Peters’ lack of recollection about the letter and gives a possible explanation for not responding. It does not, however, go so far as to confirm Mr Peters did not contact MSD. The applicant is entitled to a clear answer as to whether Mr Peters did contact MSD in response to the letter. A simple yes/no is all that is required. The interrogatory is to be answered.
[23] If the answer is no, I accept that the subsequent question of “If not, why not?” is sufficiently answered by the narrative, that:
I had no reason to think the details would be other than correct as there had been no change in my life relevant to the National Superannuation payment.
Question 7: You met with an MSD staff member on 26 July 2017 at the MSD office at Ellerslie Auckland. Do you agree and accept that at that meeting:
Q7.2 You agreed that your answer to question 26 in the form described in [1.2] above was incorrect?
[24] The narrative answer provided by Mr Peters provides an explanation as to why the form was completed in the way it was. It does not however directly address whether Mr Peters agreed that his answer to question 26 in the form was incorrect. The question is to be answered.
Q7.3 You agreed that you were not, and had never been, entitled to receive National Superannuation at the rate you had been receiving it (the “single, sharing accommodation” rate)?
[25] In response Mr Henry submits that what was agreed was that there had been a mistake. That does not directly answer the question. It may well be explain Mr Peters’ position but the question should be answered. The answer may well be no, he did not agree with the proposition for the reasons given in the narrative but the answer should be given.
Question 8: From the time of the meeting on 26 July 2017 onwards
Q8.1Do you agree and accept you were at all times entitled to receive New Zealand Superannuation only at the rate applicable for persons living in a de facto relationship, but had from 2010 until July 2017 been paid at the higher “single, sharing accommodation” rate?
[26]Mr Henry submitted:
The question is a restatement of the questions in question 7 and the narrative had set out what was agreed.
[27] It is not in dispute that the plaintiff repaid the amount assessed by MSD as having been overpaid to him. That is a sufficient acknowledgement that he had been paid at an incorrect rate. For the purposes of this proceeding the relevant fact is that Mr Peters was overpaid and when the overpayment was calculated it was paid forthwith. I do not consider it necessary to make an order the plaintiff answer this question.
Q8.2: Do you agree and accept that the cause of the overpayment was the incorrect information provided by you in your application form described at [1] above?
[28] Mr Henry submits the narrative sets out the plaintiff’s position. The narrative is that an error had been made when the form was completed. The plaintiff’s analysis is that the MSD processed an incomplete form and made the mistake so that it was the MSD who made the calculations, not the plaintiff.
[29] That is an explanation why the overpayment may have arisen, but it is not an answer to the question. The question is to be answered.
Q9: If the answer to [8.2] is negative, what do you say was the cause of the overpayment?
[30] If the answer to 8.2 is no, I accept that the plaintiff provides his explanation for the cause of the overpayment in the general narrative. It is that the decision as to the rate of National Superannuation payable was the responsibility of the MSD and he asserts there was a mistake by MSD processing the application, so that if the answer to 8.2 is no, then nothing further is presently required to answer Q9.
Q13: Who disclosed the issue of the overpayment of New Zealand Superannuation to you (“the issue”) to the media?
[31] The response is “I rely on the doctrine of res ipsa loquiter”. Mr Henry argues there was no direct evidence of who was responsible for the leak. An issue may arise in due course as to the application of the doctrine of res ipsa loquiter in such a claim as pursued by the plaintiff, but putting that to one side for the moment, the question requires an answer. If the answer is the plaintiff does not know, then that should be recorded. The question is to be answered.
Q26:You have held warrants as Minister of the Crown in a number of portfolios in a number of Governments. How many occasions have you as Minister in any of these portfolios received a briefing under the ‘no surprises’ principle?
[32] The response is: “It is oppressive to answer this question as the time period goes back to 1990”. The fourth defendant had submitted the plaintiff should be required to answer the substance of the question, and if the answer was there are too many occasions he should say so.
[33] The relevance of the ‘no surprises’ policy is that the defendants raise it as a justification in the circumstances of this case for the disclosure by certain defendants to the Ministers. The number of occasions that Mr Peters in previous circumstances may have received a briefing under the ‘no surprises’ principle is not itself relevant to the case. The issue is whether the disclosure was justified in this case. To the extent it may require going back in time to 1990 it is also oppressive. The question need not be answered.
Q27:How many occasions have you as a Minister in any portfolio refused to receive a briefing under the ‘no surprises’ principle from a Chief Executive or other official? For each occasion, specify the approximate date (month/year), the portfolio, the subject matter of the briefing, the Chief Executive or other official who sought to give you the briefing, and the reason you refused to receive it.
[34] This raises a slightly different issue to question 26, in the context of the suggestion by the plaintiff that there is a process to be followed which the defendants in this case did not follow. If there are occasions in the past where Mr Peters has declined to receive a briefing under the ‘no surprises’ principle then that may be relevant to the issue of whether the Ministers should have done so in the present case. Mr Henry has responded to this in a submission on behalf of the plaintiff. He submits that it flows from the response that there are no clear instances where the plaintiff had been involved in the rejection of a ‘no surprises’ disclosure that spring to the plaintiff’s mind. I accept Ms Casey’s submission that if that is actually the plaintiff’s answer then it should be in evidence from the plaintiff rather than in counsel’s submission. The plaintiff is to answer question 27.
[35] Questions 28, 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, and 42 all refer to media reports which attribute statements to Mr Peters.
[36] The first question following each media statement attributed to Mr Peters is, “Is that an accurate report of your communication to the media?” An objection was taken to each question on the basis that the question was legally privileged and privilege is not waived. Mr Henry noted that instructions to commence proceedings were given on 25 August 2017 and the newspaper reports do not waive that privilege.
[37] A person who has legal professional privilege may refuse to disclose the communication with their adviser, information contained in the communication and any opinion formed by the person based on the communication or information.5 In communications with legal advisers and others engaged by legal advisers, privilege arises if the communication was intended to be confidential and made in the course of and for the purpose of requesting or obtaining professional legal services from the legal adviser or the legal adviser providing such services.6
[38] Clearly statements by the plaintiff to media outlets are not intended to be kept confidential. To the extent the questions ask whether the reports accurately record what the plaintiff told the various media outlets, they are unobjectionable and are to be answered.
[39] However I accept that the subsequent and follow on questions in a number of instances may raise issues of privilege. There are also issues as to whether they are particularly relevant to the issues the Court will have to determine in this particular case. For that reason at present I do not consider an order that they be answered is necessary at this time.
[40] Question 43 refers to an affidavit Mr Peters’ solicitor affirmed on 22 September 2017 in support of the plaintiff’s application for pre-commencement discovery. Answers were sought in relation to certain conclusions made by counsel from those inquiries.
[41] Objection is taken to answering them on the basis of legal professional privilege. I accept that inquiries by counsel were for the purposes of commencing proceedings and the statements by counsel in the affidavits in support were part of that process. Mr Lyon’s evidence, his evidence in the separate proceedings, is not strictly admissible in this proceeding and the purpose of the affidavit was to obtain pre- commencement discovery. Even if not legally privileged Mr Lyon’s belief at that time is insufficiently relevant to the claim at the present time. There is no requirement to answer those questions.
5 Evidence Act 2006, s 53.
6 Section 54.
[42] The interrogatories directed to be answered are to be answered by 18 October 2019. The plaintiff is to file and serve answers to the interrogatories above that he has been directed to answer by that date.
Costs
[43] Mr Henry submits the costs should lie where they fall. There has been a mixed outcome on this application but it has to be remembered that the application is against the background of a failure to provide answers in the form required by the rules initially. On balance I am satisfied costs ought to be awarded against the plaintiff on a modest 2B basis with an allowance for one counsel for the application and the hearing. Costs order accordingly.
Directions
[44] There are still matters that require addressing to finalise preparation for the hearing. Counsel for the first and third defendants were not in attendance at the hearing but had filed a memorandum. The memorandum of 10 October noted that the plaintiff had failed to file and serve more detailed witness statements for:
·H;
·M; and
·Mr Barry Soper.
[45] Counsel noted that no statements, documents or notices had been received by the first and third defendants and nor had further discovery been provided of documents sought to be introduced by Mr Mills.
[46] There have been developments since the memorandum was filed. Mr Peters has now apparently signed his brief.
[47] Mr Henry also confirmed Mr Mills will no longer be called to give evidence. Mr Henry accepted that in light of that the UMR surveys will not be produced at trial. Accordingly para 45 of Mr Peter’s brief of evidence will not be read.
[48] Mr Henry also confirmed the plaintiff has now exchanged more fuller “will say” statements for witnesses: H, M and Mr Barry Soper. Ms Casey raised a concern about the will say statements. They have only just been provided. As drafted they suggest H will give evidence as to the internal conduct of MSD and M may give evidence of appropriate practice within the Minister’s office. Ms Casey suggested that the statements should be produced by way of brief and advised that from her understanding the witnesses may not actually go as far as the will say statements propose.
[49] The position is unsatisfactory. The issues should have been addressed some time ago.
[50] To continue the process to trial I extend the time for the Crown defendants to exchange their evidence-in-chief to Friday, 25 October 2019.
[51] Any evidence in response to the will say statements may be exchanged by 30 October 2019. If additional costs are incurred in preparing responses which ultimately may be unnecessary that may sound in costs.
Venning J
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