Case Brief: Peters v Attorney-General sued on behalf of Ministry of Social Development [2021] NZCA 355

August 20, 2021

Background

Rt Hon Winston Peters began receiving superannuation payments in April 2010. Due to confusion from the layout of the application form, and from Mr Peters' answers, he was paid at a single rate instead of a partnered rate. This discrepancy was discovered in2017, within a few weeks of Green Party MP Metiria Turei's announcement that she had lied to MSD in order to receive a larger benefit than she was entitled to. MSD asked Mr Peters to repay the overpaid amount, which he did immediately.

 

In late July and early August 2017, the Chief Executive of Ministry of Social Development (MSD) and the State Services Commissioner briefed their respective Ministers on the issue under the "no surprises" policy. These briefings were confidential.  The news was leaked to the media in late August 2017. The journalists refused to disclose their sources.

 

Mr Peters filed proceedings in the High Court claiming that MSD, the two Chief Executives and the two Ministers had committed the tort of invasion of privacy. The High Court dismissed these claims. Venning J found that Mr Peters had a reasonable expectation that the information wouldn't be disclosed to the media, but he couldn't establish that any of the respondents were responsible for the leak. Mr Peters accepted the Ministers weren't responsible for the leak, but he appealed the claims against the Chief Executives and MSD to the Court of Appeal.

 

The Case

Application to admit new evidence

The Court of Appeal considered the Crown's application to admit new evidence of Mr Peters' radio interview on 20 May 2020 where he claimed he found who the leaker was. The Crown claimed  this undermined Mr Peters' claim that MSD must be liable. However, the Court of Appeal refused to admit the evidence, ruling  it wasn't relevant to the proceeding as it said nothing about who the leaker actually was and was no more than Mr Peters' suspicion.

 

Liability of Chief Executives

The Court of Appeal agreed that information about the payment irregularity shouldn't have been publically disclosed and  deliberate disclosure was an invasion of Mr Peters' privacy. It also agreed  the tort of invasion of privacy could cover disclosure to only one person or a small group, as well as to the wider public.

They also agreed with the High Court that the briefing to Ministers was not a "sham", as Mr Peters claimed. It was appropriate, even though it concerned an operational matter which normally wouldn't justify a briefing. The involvement of a senior Member of Parliament meant the integrity of MSD was in question and the recent public admission by Ms Turei meant  Mr Peters' identity was a relevant factor and was properly disclosed to Ministers who are ultimately accountable for any issues. The fact the disclosures were made in good faith also meant  the Chief Executives had immunity from prosecution under s 86, State Sector Act 1988.

 

Liability of MSD

Mr Peters claimed that the information started with MSD and therefore MSD must be liable for creating the risk of leaks. The Court of Appeal confirmed the High Court's rejection of his argument and agreed  there were a number of explanations for the leak that didn't implicate MSD.  

 

The Court of Appeal also upheld the High Court finding  there was no proof MSD was responsible for the disclosure. The Manager of Workplace Integrity at MSD, Ms Raines, reviewed the handling of Mr Peters' information and confirmed only those who had proper business reasons to do so had accessed the relevant records. She did not find any evidence that MSD staff were responsible for the leak.

 

Result

The appeal was dismissed and Mr Peters was ordered to pay scale costs to the respondents.

For further understanding of this case, please contact Senior Solicitor Aimee Dartnall.

 

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