After four years of ever-changing legal fighting, Winston Peters fails again to pin blame and win damages from government officials over a leak about his seven year overpayment of superannuation
Former deputy Prime Minister Winston Peters has lost again in his spray of allegations against a government department, senior mandarins, politicians, Beehive staff and journalists over the leak of his superannuation overpayment.
Three judges of the Court of Appeal have rejected his appeal against a High Court finding that he had not proven the parties he accused had acted in bad faith and were responsible for leaking his $18,000 repayment of superannuation money.
After the High Court action, Peters was directed to pay the respondents including the Crown $317,000 in costs, from a case that had cost taxpayers more than $1m to defend.
The former MP initially claimed in ‘pre-commencement discovery’ court papers that numerous National Government ministers, officials, parliamentary staff, MSD, government department chiefs and journalists could have information on the leak.
The action was later narrowed to the Ministry of Social Development, which holds superannuation information, its chief executive Brendan Boyle, the chief State Services Commissioner Peter Hughes and two former cabinet ministers Paula Bennett (state services) and Anne Tolley (social development).
When, at the High Court hearing the two politicians were ruled out as leakers, Peters then alleged under the res ipsa loquitur principle (events speak for themselves) that the leak could only therefore have come from MSD.
However the then-Chief High Court Judge, Justice Geoffrey Venning, ruled: “Mr Peters’ claim against all defendants fails as he is not able to establish that they were responsible for the disclosure of the [superannuation] payment irregularity to the media.”
Peters’ appeal challenged the fact that MSD could not be held liable, as the original holder of the superannuation information, and also the legality under the tort of privacy of the chief executives both telling their ministers about his overpayment.
The Court of Appeal, Justices Christine French, David Collins and David Goddard, on Monday dismissed his appeal on all grounds.
First, it found the claims against the chief executives personally “should not have been brought” in the absence of evidence to support any allegations of acting in bad faith. “We agree… that such allegations should not have been made.”
It then dismissed as lacking “any merit” a Peters’ claim that Boyle could be vicariously liable for the actions of other MSD employees.
It found that disclosure of the Peters’ overpayment details within the ministry was justified, that “it could not sensibly be suggested” liability under the tort of privacy would apply to sharing information in good faith internally in such a department, and there was “no evidential basis” that someone in MSD had provided personal information internally in bad faith.
“For essentially the same reasons, we do not accept that Mr Peters had a reasonable expectation that information about him would not be provided by Mr Boyle (or other MSD employees) to the Minister for Social Development, in good faith and on a confidential basis,” the appeal court found.
“Information flows between the department and the minister fall into the same category as information flows within the department, so far as the tort of giving publicity to private facts is concerned.”
The three appeal judges found: “It is in our view very clear that it is not the function of the law or tort to regulate what a chief executive can disclose to their minister in good faith.
“As a matter of constitutional principle, it would be quite wrong for the tort to restrict the good faith provision of information by a chief executive to a minister.”
The Court of Appeal rejected Peters’ arguments, made by his lawyer Brian Henry, that the superannuation information was “too personal” to be provided to the minister. “If the argument is that personal information about an individual cannot properly be provided by a chief executive to a minister in any circumstances, we have no hesitation in rejecting that submission.
“If the argument is that Mr Boyle should not have briefed his minister in the circumstances of this particular case, having regard to the identity of Mr Peters and the imminent election, we reject that proposition.”
On Peters’ challenge to Boyle having then briefed Peter Hughes at SSC, the judges find: “The tort of invasion of privacy should not, and does not, restrict confidential communications of this kind.”
And it clears Hughes over then briefing his minister, Bennett. “There could be no reasonable expectation that Mr Hughes would not brief his minister on a confidential basis, if he formed the view that it was appropriate to do so.”
Similarly a communication between another top MSD employee and a second private secretary in Tolley’s office was also deemed “unobjectionable” and the court found it wrong to consider the minister and her advisers to be “external to the ministry that she heads, in this context.” Peters would have had to prove this last communication had not been made in good faith but did not provide evidence so “the claim in relation to this disclosure must fail”.
Finally, Peters’ attempt to say under res ipsa loquitur that it was obvious that MSD had to have been responsible for the leak was also dismissed. The judges found that by the time the leak to the media occurred in mid to late August 2017, “a number of people outside MSD held information about the payment irregularity”.
“It leaves open a real possibility that an eavesdropper who overheard conversations between non-MSD personnel … could have been the source of the leak. Even putting the ministers to one side as potential sources of the leak, a significant number of realistic possibilities remain.
“The res ipsa loquitur principle is not a licence to speculate,” the judges declared.
The decision gives backing to the ‘no surprises’ principle under which officials brief ministers in the incumbent government.
“The evidence confirmed our view,” the Court of Appeal said “that the relationship is one of trust and confidence, into which the tort of invasion of privacy ought not to intrude in the absence of bad faith.”
And, as always, the sting in the tail was the last line of the decision saying Peters must pay the respondents (the Crown) costs for the appeal.