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

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 02 August 2021
• Neutral Citation: [2021] NZCA 355
• Docket Number: CA254/2020
• Court: Court of Appeal

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

[2021] NZCA 355

Court:

French, Collins and Goddard JJ

CA254/2020

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

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

Counsel:

B P Henry and A R Kenwright for Appellant

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

• 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 Ministers had a genuine interest in knowing the details of the payment irregularity. 4 Nor had Mr Peters established that the disclosure to the media was made by an employee of MSD. 5

The appeal to this Court

8 Mr Peters appeals to this Court against the dismissal of his claims against the two Chief Executives and MSD. He no longer pursues his claims against the Ministers.

9 We agree with the High Court Judge that information about Mr Peters' application for NZS, and the payment irregularity, should not have been publicly disclosed. The deliberate disclosure of that information to the media was a serious invasion of Mr Peters' privacy.

10 However we do not consider that Mr Peters had a reasonable expectation that information about the payment irregularity would not be provided by the Chief Executives to the Ministers. The relationship between a chief executive of a government department and the responsible Minister is a relationship of trust and confidence. It is not the function of the privacy tort to regulate what can or cannot be disclosed by a chief executive to their Minister in good faith, on a confidential basis. The claim in tort against the Chief Executives must therefore fail. And that claim was in any event precluded by the statutory immunity conferred on the Chief Executives by s 86 of the State Sector Act 1988.

11 Nor has Mr Peters made out his claim against MSD. The evidence before the Court does not establish that any employee of MSD was responsible for the disclosures to the media. By the time those disclosures occurred, the information was in the hands of a number of people inside and outside MSD. Mr Peters sought to rely on the evidential principle res ipsa loquitur: that is, the matter speaks for itself. But as a matter of logic the leak could have come from a number of sources. MSD is not liable for the unlawful disclosures made by an unknown person merely because it was the original holder of the information, which had subsequently been provided (lawfully) to a number of people inside and outside MSD.

12 In those circumstances, the appeal must be dismissed.

Background

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

13 In April 2010 Mr Peters turned 65 and became eligible for NZS. He completed an application for NZS then attended an MSD service centre. He met with an MSD officer. He gave her the completed form. The form included a number of questions about the applicant's relationship status. Mr Peters answered the relevant question (question 26 in the form) as follows:

14 Mr Peters did not answer the primary question about whether he had a partner: he ticked neither “yes” nor “no”. Instead, he ticked the box for a subsidiary question, advising he was “living apart/separated”. Mr Peters explained in evidence that he understood the question to be about his wife, from whom he was separated. MSD proceeded on the basis that because this box had been ticked, there was no need for an answer to the primary question in question 26: “Do you have a partner?”: the answer to this primary question must be “no”.

15 It was...