Lawyers acting for those being sued by Deputy Prime Minister Winston Peters over his supernannuation overpayment say he has failed to present any evidence to back his sweeping public comments on the issue. 

The lawyer for Crown defendants in the Winston Peters superannuation leak court action says the NZ First leader’s evidence is like ‘The Case of the Dog that Didn’t Bark’.

Victoria Casey QC told the High Court at Auckland in her closing submission on day seven of the case that Peters had made sweeping allegations against the State Services Commissioner Peter Hughes, the former chief executive of the MInistry of Social Development, Brendan Boyle, and the ministry itself, but had not backed them up in court.

His statement of claim for damages over the leak of information in 2017 on his seven-year, $18,000 overpayment of national superannuation claimed the officials and department had acted in bad faith, but neither Peters’ evidence in court nor his lawyer’s cross examination of witnesses had attempted to confirm that.

The now Deputy Prime Minister claimed the disclosure of the overpayment information was for the purpose of salacious gossip and made deliberately to political opponents before the election but  he had not made the case for any of these central claims. “The plaintiff is required to prove his case,” Casey said.

“This case is, with respect to Sir Arthur Conan Doyle, the case of the dog that didn’t bark…. The silence is, with respect, resounding.”

Bruce Gray QC, closing for two former National ministers Anne Tolley and Paula Bennett, who Peters is also suing for $450,000 in the breach of privacy case, told Justice Geoffrey Venning: “We have asked ourselves: ‘why are we here’? What is this case about?”

The lawyer had contemplated proposing Peters’ lawyer Brian Henry make his closing submission first, so that the defendants could get a clear steer on what it was Peters was claiming in the case.

And Gray invited the judge, having heard the defence’s facts, to make an “adverse comment” in his judgment on Peters’ conduct of the case.

Gray said the case had been brought by Peters under the tort of privacy but that required the information released about him to be highly sensitive and to have caused him harm. Neither element had been proven in evidence. Peters could have taken a separate action under the Privacy Act where he would not have needed to identify a person who leaked his information but clearly he wanted to blame someone and to punish them publicly.

The lawyer said Peters had acknowledged in court he was more sensitive about privacy than many people and his desire for secrecy might have been the reason for his original failure to provide full information about his de facto relationship when applying for superannuation. “He did not feel it necessary to make disclosure of something he preferred” people not to know about him.

Gray argued that unlike the UK privacy case taken by singer Sir Cliff Richard when police and the BBC revealed he was being investigated in a child sex inquiry – a case cited by Peters’ lawyer in opening the case – Peters had suffered no harm. As a politician he had less expectation of privacy than an average person.

The MP had chosen to reveal to the public the fact of his overpayment and the MSD agreement that he should repay the $18,000. That was the reason it became known and had set the tone of media and public commentary. No other publication had occurred, Peters had provided zero evidence there had been ‘social media’ publications about him as he claimed and the fact two journalists had received anonymous calls did not mean a publication was imminent. The calls in themselves were not  evidence of serious harm to Peters.

Peters’ case attempted to rely on a principle of res ipsa loquitur, or, the facts speak for themselves, to argue that because Tolley and Bennett had received the information from public servants under the longstanding no surprises policy of briefing ministers, and were from an opposing political party, that they must have leaked.

Gray said res ipsa loquitur was not applicable in this case. It was an evidential principle which was normally applied in negligence cases to do with accidents, showing that someone had lost control of an inanimate object such as a workplace machine or vehicle.

“Obviously the evidence in this case is a bit of gossip, speculation,  what [a Peters’ witness, Newstalk ZB political editor Barry] Soper called ‘deduction’. But there is no evidence that my clients leaked this information.” 

He said Tolley and Bennett did not even get briefed on the extent of information provided to journalists by the leaker. “It seems they did not know there had been any suggestion at all that Mr Peters had lied, so could not have told anyone that.

“In any event the publication was not highly offensive or objectionable to a reasonable person. Mr Peters is not an objective reasonable person. He is more sensitive than average to privacy matters. His subjective views are not the test in this case.”

Gray told the court: “This proceeding is a defamation case in drag. We still do not know precisely what Mr Peters complains about. Is it the case he himself released to the public a true statement of what he says occurred, or is it the two prior conversations with journalists? This is a defamation case dressed up as a privacy case.”

An action under the tort of privacy had to show serious harm had occurred from the release of information that related to the core of human dignity, but what was so sensitive about the Peters material? He had made an error when applying for his pension, it had been picked up, a debt raised by MSD and he had repaid it. There had been no suggestion, other than by Peters’ lawyer in opening the case, of fraud or lying.

The biggest hurdle for Peters’ case was the information was not sufficiently sensitive in any case. “These are not nude photos, this is not an allegation of the sexual abuse of minors, these are not personal intimate dealings between a couple, this is not health information, this is not serious criminal conduct.”

The tort of privacy dealt with harm to core personal dignity. “Reputation does not come within the tort.”

Gray’s closing statement traversed privacy actions here and in the UK, including cases involving Sir Cliff Richard, Naomi Campbell, News of the World phone tapping, ‘Allo ‘Allo star Gordon Kaye, and Catherine Zeta-Jones and Michael Douglas as well as the confidentiality case over the Spycatcher book.

He said the UK privacy settings were different from here and this case should rely on previous New Zealand findings. But he pointed out the damages awarded in even the biggest actions in the UK were limited to a high point of 220,000 pounds. Major New Zealand awards under privacy actions had been as low as no award or $2500 (a case involving sexually explicit photographs) to as high as $98,000 for a deliberate release of private information in an employment case.

Peters was seeking $450,000 from each defendant. “The plaintiff’s claim in this case is beyond extravagant and is further evidence for the genuine motivation for the proceeding,” Gray said.

“It is a shame this claim had to be made. It seems to arise from an inability to accept a mistake had been made, and a desire to punish.”

Victoria Casey QC, for the three Crown defendants, began her closing late in the day and will finish this morning.

She said: “Something happened that should not have happened. The fact that it did enter the public domain did not establish that the Crown defendants are liable at Common Law and MSD is not liable for unknown actions to the media.”

Peters had conducted the case in a way that made serious allegations about her clients in pleading but did not bring them up personally in evidence or in cross examination. She said to Justice Venning: “We do ask that you pay attention to who was asked what and more importantly who was not asked anything.”

The MP claimed  in the media in 2017 that senior officials had been part of a “cartel playing politics” and that “very senior politicians had been operating outside the law… in tandem with ministers.”

The Crown had asked for evidence during the earlier stages of the case from Peters to back up these claims but he had declined, citing legal privilege in an upcoming case.

Casey said: “This is the case to which that privilege applied. This is the case where if Mr Peters had any foundation for these comments they should have been brought before the court. We have no evidence whatsoever about a cartel, a conspiracy and no questions to the ministers or chief executives about these claims.”

Despite all Peters’ public claims the case made at court against the Crown defendants seemed to come down to the decision the chief executives took to brief their ministers on the Peters situation after it had been resolved.

“There is no allegation pleaded or in evidence that the plaintiff [Peters] suffered damage from the briefings to ministers.”

Casey’s closing submission continues Wednesday morning, followed by the closing submission from Peters’ lawyer Brian Henry.

Tim Murphy is co-editor of Newsroom. He writes about politics, Auckland, and media. Twitter: @tmurphynz

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