Peters v Attorney-General Sued on Behalf of Ministry of Social Development

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeGoddard J
Judgment Date02 August 2021
Neutral Citation[2021] NZCA 355
Docket NumberCA254/2020

[2021] NZCA 355

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Court:

French, Collins and Goddard JJ

CA254/2020

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
Counsel:

B P Henry and A R Kenwright for Appellant

V E Casey QC, N J Wills and S P R Conway for Respondents

Tort — appeal against High court decision which held the defendants were not responsible for the disclosure of confidential information relating to the overpayment of a benefit to the media — tort of invasion of privacy — publication of private facts — reasonable expectation of privacy — legitimate disclosures to Ministers — immunity for Public Service chief executives and employees — State Services Act 1986

The issues were: whether P had a reasonable expectation that the payment irregularity would not be disclosed to the media; whether P had a reasonable expectation that the payment irregularity would not be disclosed within MSD; whether the claims against the Chief Executives were precluded by s86 State Sector Act 1988 (“SSA”) (immunity for Public Service chief executives and employees); whether MSD was liable for public disclosures on the basis of res ipsa loquitor.

The Court held that P had a reasonable expectation that the payment irregularity would not be disclosed to the media. The MSD investigation related to inherently private matters. In the absence of any allegation of wrong doing the information about the payment irregularity was private information that P had a reasonable expectation would not be disclosed to the media or the public.

P could not have a reasonable expectation that the payment irregularity would not be disclosed within MSD. It was not the function of tort law to regulate the internal handling, within a government agency, of information lawfully held by that agency. Liability could not attach where the disclosure was lawfully made in connection with the performance of the agency's functions and the recipient was required to keep the information confidential and use and disclose it only for the agency's purposes. A defence of legitimate interest in communication would also apply to such disclosures.

P could not have a reasonable expectation that the payment irregularity would not be disclosed by MSD chief executives to their Ministers. It was not the function of tort law to regulate what a chief executive could disclose to their Minister in good faith, in connection with the performance of the chief executive's functions. The disclosure was made in good faith and in the context of a relationship of trust and confidence. The MSD staff were entitled to expect their Ministers to keep the information confidential and only use it for proper purposes. A defence of legitimate interest in communication would also apply.

The claims against the Chief Executives were precluded by s86SSA. The immunity from liability under s86 SSA applied to good faith conduct in the (intended) pursuance of a chief executive's powers.

MSD was not liable for public disclosures on the basis of res ipsa loquitor. It was not necessary for a plaintiff to show that a particular individual within an organisation wrongfully disclosed their private information. If the evidence suggested that at the time of the media disclosure, the information was only held by MSD employees, the court would be entitled to draw an inference that it must have been a person within MSD who wrongfully disclosed the information. But by the time the leak to the media occurred, a number of people outside MSD held the information, so there were a number of possible explanations as to how the information was disclosed to the media. The res ipsa loquitor principle did not enable P to establish, on the balance of probabilities, that MSD was the source of the wrongful disclosure.

The appeal was dismissed.

  • A The application for leave to adduce further evidence is declined.

  • B The appeal is dismissed.

  • C The 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.

JUDGMENT OF THE COURT

Table of contents

Para No

Mr Peters' claim for interference with privacy

[1]

Mr Peters receives a superannuation overpayment

[1]

Ministers are briefed

[3]

Anonymous leaks to the media

[5]

Mr Peters brings High Court proceedings

[6]

The appeal to this Court

[8]

Background

[13]

Mr Peters applies for NZS and is paid at the single rate

[13]

The overpayment is discovered

[18]

Mr Boyle briefs the State Services Commissioner and his Minister

[19]

Mr Hughes briefs his Minister

[23]

The Ministers' involvement

[27]

Internal investigations by MSD and Department of Internal Affairs

[36]

Evidence from journalists

[39]

The claim before the High Court

[41]

High Court judgment

[46]

The test for invasion of privacy

[46]

Applying the test

[48]

The claims against the Ministers

[52]

The claims against the Chief Executives and MSD

[61]

Affirmative defences

[70]

Damages

[73]

Issues on appeal

[74]

Issues raised by Mr Peters' appeal

[74]

Further issues raised by the respondents on appeal

[79]

Application to adduce further evidence

[83]

Protection of privacy under New Zealand law

[88]

The emergence of the tort of invasion of privacy

[98]

A reasonable expectation of privacy

[106]

The “highly offensive” requirement

[111]

Publication to whom?

[116]

Communication of information in which there is a legitimate interest

[119]

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

[123]

Claims against Mr Boyle and Mr Hughes: statutory immunity

[144]

Vicarious liability of chief executives?

[151]

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

[155]

Framing the reasonable expectation test

[158]

The scope of Mr Peters' reasonable expectation of privacy

[169]

Disclosures within MSD

[172]

Disclosure by Mr Boyle to the Minister for Social Development

[175]

Disclosure by Mr Boyle to Mr Hughes

[180]

Disclosure by Mr Hughes to the Minister for State Services

[181]

Disclosure by Mr Nichols to Mr McLay

[182]

Is MSD liable for public disclosures on the basis of res ipsa loquitur?

[189]

Other issues

[198]

Result

[203]

REASONS OF THE COURT

(Given by Goddard J)

Mr Peters' claim for interference with privacy
Mr Peters receives a superannuation overpayment
1

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 keep his personal life out of the public eye.

2

In April 2010 Mr Peters began receiving New Zealand Superannuation (NZS). He should have been paid NZS at the partnered rate, which is lower than the single rate. But errors (not involving any fault on Mr Peters' part) led to NZS being paid to him at the single rate. The overpayment was discovered in 2017. Mr Peters immediately arranged for the overpaid amount to be repaid.

Ministers are briefed
3

The Chief Executive of the Ministry of Social Development (MSD), Mr Boyle, was advised of the overpayment. He informed the State Services Commissioner, Mr Hughes, about the overpayment and the process for addressing it.

4

On 31 July 2017 Mr Boyle briefed Ms Tolley, the Minister of Social Welfare at the time. On 1 August 2017 Mr Hughes briefed Ms Bennett, the Minister for State Services at the time. The briefings were provided by Mr Boyle and Mr Hughes to their Ministers under what is known as the “no surprises” principle, on a confidential basis. They provided the briefings in good faith, in the course of performing their functions as public service chief executives. 1

Anonymous leaks to the media
5

Between 23 and 25 August 2017 a number of reporters received anonymous calls that referred to the overpayment. On 26 August 2017 Mr Peters became aware that the media knew about the overpayment. Mr Peters released a press statement the following day to pre-empt any publicity about the issue. Over the coming weeks a number of news items were published in the media referring to, and commenting on, the overpayment.

Mr Peters brings High Court proceedings
6

Mr Peters considered that the disclosure of the overpayment was a breach of his right to privacy. He did not make a complaint to the Privacy Commissioner under the Privacy Act 1993. Instead, he brought proceedings in the High Court alleging that the tort of invasion of privacy had been committed by MSD; the two Chief Executives; and the two Ministers.

7

The claims were unsuccessful. Venning J held that Mr Peters had a reasonable expectation that the details of the payment irregularity would be kept private and not disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it. In particular, Mr Peters had a reasonable expectation that the details of the payment irregularity would not be disclosed to the media. 2 However his claim against all of the defendants failed as he was not able to establish that they were responsible for the disclosure of the payment irregularity to the media. Mr Peters had conceded that neither Minister was directly responsible for that disclosure. 3 The disclosures by the Chief Executives to their Ministers were made for a proper purpose, and the...

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