Former Prime Minister Bill English, three of his ministers, his former chief of staff and a party official have told the High Court they oppose New Zealand First leader Winston Peters’ legal action over his seven-year superannuation payment – and do not have or cannot access easily the raft of documents he seeks.
Two journalists and the head of the Ministry of Social Development have also registered their opposition to the “pre-proceeding discovery” action Peters is trying under the Privacy Act.
Peters, 72, received superannuation payments at a rate above what he should have been paid for seven years and once contacted by MSD arranged a quick payment of around $18,000 with no public disclosure.
All nine “intended defendants” filed affidavits last week in response to Peters’ application to obtain documents, emails, phone and text records from them so he can know who to sue and for what.
Peters was also required by the court to file a personal affidavit but it has yet to be lodged.
He previously submitted a draft statement of claim to the court in support of his action – after direction from the court when his initial documentation did not contain the draft claim. It says he intends to claim ‘general damages’ or financial payments from members of the group for alleged breach of privacy.
While he says National figures leaked details of his super overpayment during the election campaign to journalists, National’s campaign chief Steven Joyce’s affidavit says he first learned of the matter when news of the Peters’ windfall broke publicly on August 27.
Two others, ex State Services Minister Paula Bennett and ex Social Development Minister Anne Tolley have told the court they were briefed by their heads of department under the no surprises policy but have no documentation that Peters seeks.
Tolley says she received no documents on the matter other than a written briefing from MSD chief Brendan Boyle which was shredded when National ministers moved offices once a decision on the government coalition was made – and before Peters had made his legal action public. “At the time of shredding this document I had no knowledge of this intended plaintiff’s application.”
Bennett says she never received written documentation on the matter, other than after the revelation on August 27 by Peters when “I was forwarded media stories from our media team that would have referred to the overpayment.”
The National Party’s campaign communications chief Clark Hennessy, who Peters had pointed to in his draft statement of claim as the most likely person to have leaked the material, says he only learned of the potential story about Peters from a journalist the day it was made public by Peters himself. “This was the first time I had heard of this possible story,” his affidavit says. He says none of his phone calls or messages up to that date could thus have referred to it.
English does not address when he became aware of the matter, although he has said in the past that he was not told about it in advance. He and other ministers argue Peters’ date-range in seeking emails and phone records is too wide and would take considerable work to sort given the volume of communications they engaged in during the election campaign.
English says: “I have also made an initial inquiry of my telecommunications provider to establish how I might access my phone records for this time period. I have been advised… that they can only provide me with the content of text messages for the preceding 35 days before my request for these phone records but they do keep a record of dates and recipients of text messages for billing purposes for a longer period.”
English’s former chief of staff, Wayne Eagleson says he was told of the overpayment by Tolley in person on August 1 and had no written information on the matter before it became public on August 27.
“I did not discuss this matter or communicate about this matter with anyone until August 27 when the news media began to ‘tweet’ about the story and then run stories which discussed the intended plaintiff’s national superannuation overpayment.”
Eagleson says as he is no longer in the role he would need his former employer’s permission to obtain and review emails mentioning Peters’ overpayment. But they could only refer to matters after the story became public – “media stories about the overpayment and discussing media responses to the story by Ministers in the previous administration.” Eagleson does have “a small number of text messages between myself and [Bennett] and [Tolley]. All of these are after the overpayment was publicised by the media.”
MSD chief executive Brendan Boyle’s affidavit says his department will have provided Peters with any relevant documents under the Official Information Act and Privacy Act well before any court hearing next year.
He does reveal that when a staff member alerted him to Peters’ overpayment he, Boyle, recognised the sensitivity of the issue and ensured details were known “by a small, named group of officials. I kept my file in a locked combination safe at all times”.
He requested the meeting at which he briefed Tolley under the ‘no surprises’ policy between ministers and departments. “This meeting is the sole occasion on which I discussed Mr Peters’ overpayment with Ms Tolley.” Boyle says he did not brief Bennett and “had no discussions about Mr Peters’ overpayment with any of the other intended defendants.”
A subsequent MSD inquiry showed “all staff who had accessed Mr Peters’ information before the information entered the public arena had a reasonable business purpose for doing so. There was no evidence anyone at MSD passed the information to a third party.”
Peters’ action also targets the co-editor of this website, Tim Murphy, and Newshub political reporter Lloyd Burr, who both covered the overpayment story after Peters made it public.
Murphy and Burr’s affidavits say they have no documents of the type Peters seeks as the information received on the overpayment was by phone from an anonymous whistleblower. Newshub received a call to its office from a blocked number and Newsroom received calls from a similar source.
Murphy, having learned the information had also been provided to Newshub, tweeted that an unspecified big scandal was about to break. He says the wording of the tweet was a parody of promotional wording used during the campaign by Newshub‘s political editor Patrick Gower and in the affidavit says he hoped the tweet might stimulate a reaction from Gower. A hashtag #motherofallscandals at the end of the tweet was “demonstrably a joke”.
Burr’s affidavit says: “Newshub only decided to pursue the information it had received from the anonymous phone call after reading that tweet, although we weren’t sure if the tweet was actually in relation to the intended plaintiff’s dealings with the MSD”. Burr discussed the issue with Peters later that day.
Neither media outlet published anything about Peters or his overpayment until after he went public on the matter himself.
Murphy’s affidavit rejects Peters’ allegation that he, Murphy, had received “private MSD information from the National Party”.
“At no point have I had contact with any representative of the National Party regarding Mr Peters’ superannuation overpayments. Nor, to my knowledge, have any Newsroom journalists.”
“It appears that Mr Peters’ application may have been made under a misapprehension that I colluded with representatives of the National Party to reveal Mr Peters’ superannuation overpayments. This simply did not occur.”