Ian Bruce Hyndman v Robert Bruce Walker

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 23 February 2021
• Neutral Citation: [2021] NZCA 25
• Court: Court of Appeal
• Docket Number: CA507/2019
• Date: 23 February 2021

Between

Ian Bruce Hyndman

Appellant

and

Robert Bruce Walker

Respondent

[2021] NZCA 25

Court:

Miller, Clifford and Collins JJ

CA507/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Privacy, Tort — appeal against a High Court decision which dismissed his tort claim for invasion of privacy, finding that he had a reasonable expectation of privacy in certain private communications but their disclosure by the respondent had not met the highly offensive threshold — misuse of private personal information by a liquidator — whether the elements of the tort of privacy should be modified by removing the “highly offensive” requirement — consideration of the English approach to the tort — New Zealand Bill of Rights Act 1990

Counsel:

J Moss and H M Weston for Appellant

RJB Fowler QC and S B McCusker for Respondent

• A The appeal is dismissed.

• B The respondent is entitled to costs for a standard appeal on a band A basis plus usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

1 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

2 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.

3 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.

4 We turn to the circumstances of the alleged breach.

The background

The Henderson disclosure

5 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.

6 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 and litigious. Thomas J began her judgment in Mr Henderson's case by remarking that it is an understatement to say there is bad blood between him and Mr Walker. Mr Hyndman appears to have become involved by taking on directorships of some of Mr Henderson's companies

7 From July 2010, Mr Walker set about his work by calling for records of PVL. Mr Henderson did not co-operate. Mr Walker alleged that various offences had been committed and took steps to have the police obtain and execute search warrants. Among the items seized when the warrants were executed on 8 April 2011 was a tape drive holding a backup copy of PVL's server and a laptop belonging to PVL but used by Mr Henderson. The police did not retain this material as they ought to have done but gave it to Mr Walker, notwithstanding the liquidation had been stayed.

8 Shortly after Mr Walker delivered copies of seized documents to the Serious Fraud Office. He also told others, including the National Business Review, that he held a great many emails and other evidence. He made those claims to a private investigator, Wayne Idour, who had been engaged by Mr Henderson and is said to have falsely claimed to be a representative of unsecured creditors. In a conversation with Mr Idour in June 2011 Mr Walker spoke of Mr Henderson in derogatory terms and expressed some doubt about his own rights to retain and share with others some of the information he held. He nonetheless said that Mr Idour could “fly to bloody Wellington and [he] can look at it”.

9 The police subsequently did not commence prosecutions, and the warrants were later declared unlawful. The liquidation remained stayed, but Mr Walker was permitted to retain information and material that was the property of PVL. That property included the tape drive, which included a backup copy of the laptop.

10 The tape drive included documents of a private nature, which Thomas J categorised as: 3

• (a) personal emails between Mr Henderson and his wife talking about issues in their marriage;

• (b) personal emails between Mr Henderson and his friends relating to marital breakdowns, health, weight loss, and fitness;

• (c) emails relating to medical advice and ordering various medical supplements;

• (d) photographs of family, friends and pets;

• (e) emails to Mr Henderson from public figures (including politicians) seeking advice;

• (f) emails with legally privileged material, including in relation to companies of which Mr Walker was the liquidator; and

• (g) emails unrelated to the affairs of the companies of which Mr Walker was liquidator.

11 Over the period between 12 April and 22 September 2011 Mr Walker made at least 11 distributions of this private information. He gave copies of the tape drive to the Inland Revenue Department and he disclosed specific items to a number of other people, including the Official Assignee, who had no colourable claim to PVL's or Mr Henderson's information. This proceeding concerns just one of those disclosures, made to a Mr Garry Holden and one or two other people.

Mr Walker's disclosure to Mr Holden

12 Following the lifting of the stay on the original liquidations, Mr Walker was appointed liquidator of a further 15 PVL companies on 9 February 2012. Mr Hyndman was a director of these companies, having assumed office after personal bankruptcy disqualified Mr Henderson from holding that office.

13 Mr Walker subsequently provided private information of Mr Hyndman's to Mr Holden, who had formed a relationship with Mr Hyndman's former de facto partner. Mr Holden had no interest in the affairs of PVL but he did harbour an intense dislike of Mr Hyndman, whom he harassed for about three years via abusive emails

and text messages. Mr Holden's behaviour resulted in Mr Hyndman securing a restraining order against him in 2015

14 It is necessary to explain with some care the origin and nature of Mr Hyndman's private information that Mr Walker disclosed to Mr Holden and that is at issue here.

15 On 22 July 2010 Mr Holden had sent Mr Hyndman an email containing what the Judge described as very personal information of Mr Hyndman. 4 We would describe the email as an abusive tirade which included a number of allegations regarding Mr Hyndman's character. It appears it had been sent after Mr Hyndman had called to speak to his former de facto partner. Mr Holden accused Mr Hyndman of having been a controlling partner in his former relationship with her. Mr Holden accused him of childishness and of being a poor father, of being paranoid about him, and of being involved in “bizarre groups”.

16 None of these allegations originated with Mr Walker and he was not responsible for Mr Holden sending the email to Mr Hyndman. Mr Walker was not on notice at the time that Mr Holden was, as he put it in evidence, “toxic” in his attitude toward Mr Hyndman. Mr Hyndman's complaint against Mr Walker is not based on Mr Hyndman's personal information contained in Mr Holden's 22 July email.

17 Rather, Mr Hyndman shortly afterwards forwarded Mr Holden's email to Mr Henderson. Then, on 26 July, Mr Henderson emailed to Mr Hyndman a draft reply he had prepared for Mr Henderson to send to to Mr Holden. The draft reply was written to mock Mr Holden. It contained few, if any, references to Mr Hyndman. Mr Hyndman described that email correspondence as a humorous exchange between him and Mr Henderson.

18 The substantive content of that exchange was confined to Mr Holden's email to Mr Hyndman and the proposed reply to Mr Holden drafted by Mr Henderson. Mr Hyndman chose not to send that proposed reply. The exchange of emails between Mr Henderson and Mr Hyndman contained no other information of a private nature.

19 Mr Hyndman would appear to have become aware of the disclosure to Mr Holden of the 26 July email when, on 22 September 2011, Mr Hyndman received a series of texts from Mr Holden. One of them claimed that “Wayne”, apparently meaning Mr Idour, had obtained for Mr Holden copies of emails between Mr Hyndman and Mr Henderson, and alleged that “[b]ack then you stated i was pot smoker and pokie addict, great emails”. Mr Holden claimed that Mr Idour was now working for him. It will be recalled that Mr Idour was originally Mr Henderson's agent, engaged to obtain information from Mr Walker.

20 The Judge found that through Mr Walker the draft email of 26 July 2010 had been disclosed to Mr Holden. 5 She did not find that Mr Walker disclosed it himself, and she noted his evidence that he cut ties with Mr Holden once he understood the latter's behaviour. She found on balance that disclosure...