Peters v Bennett and Others

• Jurisdiction: New Zealand
• Judge: Venning J
• Judgment Date: 20 April 2020
• Neutral Citation: [2020] NZHC 761
• Court: High Court
• Docket Number: CIV-2018-404-001122
• Date: 20 April 2020

Between

Winston Raymond Peters

Plaintiff

and

Paula Bennett

First Defendant

And

Peter Hughes

Second Defendant

Anne Merrilyn Tolley

Third Defendant

The Attorney General sued on behalf of the Ministry of Social Development

Fourth Defendant

Brendan Boyle

Fifth Defendant

[2020] NZHC 761

Venning J

CIV-2018-404-001122

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Tort — tor of invasion of privacy — parties both politicians — plaintiff was the leader of the New Zealand First Party — the first defendant was the Minister of State Services when details of a payment irregularity relating to the plaintiff's superannuation was published in the media — reasonable expectation of privacy — res ipsa loquitur — Privacy Act 1993

Appearances:

B P Henry and A R Kenwright for Plaintiff

B D Gray QC, P T Kiely and H M Z Ford for First and Third Defendants

V E Casey QC, N J Wills, S P R Conway and R J Warren for Second and Fourth Defendants

JUDGMENT OF Venning J

This judgment was delivered by me on 20 April 2020 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date

TABLE OF CONTENTS

Introduction	[1]
The claim	[7]
Witnesses	[8]
Mr Peters' application for NZS	[10]
Interpretation of the form	[18]
Events in 2017	[30]
The MSD investigation	[32]
Mr Boyle's involvement	[41]
Mr Hughes' involvement	[50]
The Ministers' involvement	[52]
The evidence of the subpoenaed witnesses — disclosure to the media	[67]
The defendants' expert	[77]
Tort of privacy	[81]
Privacy Act 1993	[89]
Defamation	[93]
A reasonable expectation of privacy	[94]
Highly offensive	[118]
Mr Peters' press release	[121]
The pleaded claim against the first and third defendants	[128]
Res ipsa loquitur	[141]
Fourth cause of action	[156]
Cabinet Manual 2017	[158]
The pleaded claim against the second, fourth and fifth defendants	[170]
Second cause of action	[237]
Third cause of action	[248]
The Crown defendants' positive defences	[253]
Section 86 of the State Sector Act 1988	[254]
Public concern defence	[264]
Damages	[268]
Summary/result	[276]
Costs	[282]

Introduction

1 The Right Honourable Winston Peters claims the defendants have breached his privacy.

2 In April 2010, Mr Peters applied for and was granted New Zealand Superannuation (NZS) by the Ministry of Social Development (MSD). 1 Mr Peters was paid NZS at the single rate. In May 2017, Mr Peters' partner, Ms Trotman, applied for NZS. In the course of processing her application, MSD reviewed Mr Peters' file. The review raised the question of why he was being paid NZS at the single rate when he had a partner. An MSD officer met with Mr Peters in July 2017. It was agreed Mr Peters had been overpaid NZS as he was not single and had a partner, Ms Trotman, at the time he was granted NZS. Mr Peters immediately arranged for the overpayment to be repaid.

3 In the meantime, in June 2017, Mr Boyle, the chief executive of the MSD, had disclosed the overpayment and the MSD investigation into it (the payment irregularity) to the State Services Commission (SSC). 2

4 On 31 July 2017, Mr Boyle also briefed Ms Tolley, the Minister of Social Welfare at the time, about the payment irregularity. On 1 August 2017, Mr Hughes, the State Services Commissioner, briefed Ms Bennett, the Minister for State Services at the time.

5 An unknown source disclosed the payment irregularity to the media by anonymous calls to reporters between 23 and 25 August 2017. On one occasion the source alleged Mr Peters had lied when applying for NZS.

6 On 26 August 2017, Lloyd Burr, a journalist approached Mr Peters. Mr Burr made it clear he had knowledge of the payment irregularity. To mitigate the damage

to him personally and politically, particularly in the context of a general election due to be held on 23 September 2017, Mr Peters issued a press statement the next day. Over the next weeks and even months, a number of news items followed in which the payment irregularity and Mr Peters' situation were discussed further

The claim

7 Mr Peters says that the public disclosure of the payment irregularity was a breach of his right to privacy. He says the defendants had a duty to keep the details of the payment irregularity confidential. In disclosing the payment irregularity to others Mr Peters says the defendants breached that duty. 3 He seeks declaratory relief and damages.

Witnesses

8 Mr Peters and Ms Trotman gave evidence. Mr Peters also called journalists, Barry Soper, Melanie Reid and Jenna Lynch, under subpoena. In addition, Mr Peters called other witnesses under subpoena: Mr Harvey and Ms Murchison, public servants who worked in Minister Tolley's office.

9 Ms Bennett and Ms Tolley gave evidence, as did Mr Hughes and Mr Boyle. In addition to the evidence of Mr Hughes and Mr Boyle, the second, fourth and fifth defendants (the Crown defendants) called evidence from a number of MSD staff and also expert evidence from Sir Maarten Wevers.

Mr Peters' application for NZS

10 A significant amount of evidence during the hearing related to Mr Peters' completion of the application form for NZS. The payment irregularity arose because Mr Peters' application was processed and payments of NZS were made to him on the basis he was single at the time he applied for NZS. That was an error as, at the time, he had a partner, Ms Trotman. Mr Peters considered the MSD and its form were responsible for the error. The MSD and the Crown defendants considered Mr Peters

was responsible for it. I have come to the view that the error arose through a combination of circumstances. The ambiguous nature of the form, the MSD officer who processed Mr Peters' application and Mr Peters himself all bear some responsibility for the error which led to the payment irregularity

11 Mr Peters attended a MSD service centre in Auckland on 12 April 2010 to apply for NZS. At the time, applicants for NZS were required to complete a hard copy application form and to undergo an appointment with a case officer. It was customary for the application form to be completed by the applicant before the appointment. At the appointment, the case officer's role was to ensure the form was completed, that the applicant was of the qualifying age and that the criteria for eligibility had been established. Interviews normally took about an hour.

12 The first factual issue in dispute is whether Ms Trotman was with Mr Peters when he attended the MSD service centre. Mr Peters relies on the fact Ms Trotman was with him to support his argument the fault lay with the MSD. The evidence of Ms S, the case officer who attended Mr Peters on the day, is that he came to the service centre around 3.30 pm on 12 April 2010. He did not have a prior appointment. The receptionist brought him straight through to her and she made time to process the application for him. Ms S said she did not see anyone with Mr Peters during the time he was at the service centre. Ms S's evidence is supported by the evidence of the receptionist on the day and by Ms H, the service centre manager at the time. The receptionist said that Mr Peters was alone as he entered the reception area. Ms H said that when Ms S brought Mr Peters over to her office to introduce him to her after the interview there was no-one else with him.

13 Mr Peters and Ms Trotman both said that Ms Trotman was with Mr Peters at the time of the interview.

14 I prefer the evidence of Mr Peters and Ms Trotman on the issue of whether Ms Trotman was with Mr Peters when he attended the service centre on 12 April 2010. Ms Trotman impressed as a straightforward witness. She and Mr Peters had reason to remember the attendance at the office, it being a one-off occasion for them, whereas, while the service centre staff might remember Mr Peters, they did not have the same reason to remember the surrounding details of his visit (such as Ms Trotman's presence) some seven years after the event when Mr Peters' entitlement to NZS was first reviewed.

15 There are a number of further reasons why the MSD staff at the service centre may not have noticed Ms Trotman. The receptionist had no reason to observe and note Ms Trotman's presence. Mr Peters would have approached the receptionist himself. Next, Ms S was not expecting to see Mr Peters. I accept that, in giving her evidence, Ms S was trying to recollect the events as best she could. But it was apparent Ms S was extremely nervous when giving her evidence. She was overawed by the Court process and the focus on her actions in April 2010. It would have been a significant event for her to have been asked to deal with a person of Mr Peters' profile and standing when she met him in 2010. She was not expecting to see him. He had no appointment. She would have been distracted by the fact she was dealing with Mr Peters, as is apparent from the way she allowed the form to be completed and processed. Also, as explained below, Ms Trotman was not present for the entire interview so Ms S's recollection that Ms Trotman was not with Mr Peters is correct, at least in part.

16 Next, as Ms Trotman said, she makes it a practice of attending functions with Mr Peters, but she always remains in the background. That is another reason why the MSD staff may not have noticed her. Further, at meetings, she often left earlier to collect the car so that Mr Peters could leave when he wished to. She said she followed that practice on 12 April 2010 and went to get the car before the interview with Ms S was completed and before Mr Peters was taken to meet the manager and other MSD staff. I accept Ms Trotman's evidence...