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

Date of Judgment

02 August 2021

Decision

Peters v Attorney-General sued on behalf of Ministry of Social Development (PDF 518 KB)

Summary

Application for leave to adduce further evidence declined.  Appeal dismissed. 
Tort of invasion of privacy — Publication of private facts. 

In April 2010, the Right Honourable Winston Peters began receiving New Zealand Superannuation (NZS) at the single rate when he should have been receiving it at the partnered rate, which was lower.  The overpayment was discovered in 2017.  Mr Peters immediately arranged for the overpaid amount to be repaid.  There was no fault on the part of Mr Peters. 

Mr Boyle, the Chief Executive of the Ministry of Social Development (MSD), was advised of the overpayment.  He informed Mr Hughes, the State Services Commissioner.  On 31 July 2017, Mr Boyle briefed Ms Tolley, the Minister of Social Welfare at the time.  On 1 August 2017, Mr Hughes briefed Ms Bennett, the Minister for State Services at the time.  The briefings by Mr Boyle and Mr Hughes to their Ministers were provided under the “no surprises” principle in good faith and on a confidential basis.  There was also a disclosure by Mr Nichols, a director of MSD, to Mr McLay, an MSD employee on secondment to Ms Tolley’s office. 

Between 23 and 25 August 2017, a number of reporters received anonymous calls referring to the overpayment.  On 26 August 2017, Mr Peters became aware that the media knew about the overpayment and released a press statement to pre-empt any publicity on the issue.  Various news items were published in the media referring to, and commenting on, the overpayment. 

Mr Peters brought proceedings in the High Court alleging that the tort of invasion of privacy had been committed by a number of defendants: MSD; the two Chief Executives; and the two Ministers.  He sought declaratory relief against all defendants and damages against MSD.  Mr Peters was unsuccessful in the High Court.  The Court held that Mr Peters had a reasonable expectation that the payment irregularity would be kept private, particularly from the media.  But his claims against the defendants failed as he could not establish that they were responsible for the disclosure of the payment irregularity to the media.  The disclosures by the Chief Executives to their Ministers were made for a proper purpose.  Mr Peters appeals to this Court against the dismissal of his claims against the two Chief Executives and MSD.  He no longer pursues his claims against the two Ministers. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed to the media?
Held: Yes.  The MSD investigation related to inherently private matters: Mr Peters’ finances and the error in the financial dealings between him and MSD.  In the absence of any allegation of wrongdoing, or any proper basis for such an allegation, the information about the payment irregularity was private information that Mr Peters had a reasonable expectation would not be disclosed to the media or the public. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed within MSD?
Held: No.  It is not the function of tort law to regulate the internal handling, within a government agency, of information lawfully held by that agency.  Liability cannot attach where the disclosure is lawfully made in connection with the performance of the agency’s functions and the recipient is required to keep the information confidential, and use and disclose it only for the agency’s purposes.  A defence of legitimate interest in communication would also apply to such disclosures in the context of the relationship between officials. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Boyle or Mr Hughes to their Ministers?
Held:  No.  It is not the function of tort law to regulate what a chief executive can disclose to their Minister in good faith, in connection with the performance of the chief executive’s functions.  The Minister is supported by the department and is accountable for all aspects of its operation that are not required by statute to be performed independently.  The disclosure was made in good faith and in the context of a relationship of trust and confidence.  Mr Boyle and Mr Hughes were entitled to expect their Ministers to keep the information confidential and only use it for proper purposes.  A defence of legitimate interest in communication would also apply to such disclosures in the context of the relationship between senior officials and Ministers. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Boyle to Mr Hughes?
Held:  No.  For the same reasons as above, there is no reasonable expectation that the information will not be provided by a chief executive to the States Services Commissioner in good faith, on a confidential basis.  A defence of legitimate interest in communication would also apply to the relationship between officials of this kind. 

Were the claims against the Chief Executives precluded by s 86 of the State Sector Act 1988?
Held:  Yes.  The immunity from liability under s 86 applies to good faith conduct in the (intended) pursuance of a chief executive’s powers.  The evidence that the Chief Executives briefed their Ministers in good faith was not challenged.  The claims against the Chief Executives are barred by s 86. 

Did Mr Peters have a reasonable expectation that the payment irregularity would not be disclosed by Mr Nichols to Mr McLay?
Held:  No.  Mr McLay’s secondment to the Minister’s office does not put the disclosure to him in a materially different position from the disclosures within MSD.  The communication was made to him in good faith, in connection with the performance of MSD’s functions, which include keeping their Minister and the Minister’s office informed about significant operational matters.  Even if Mr McLay had not been an employee of MSD, communications by MSD to the Minister’s Private Secretary on a confidential basis would be unobjectionable for the same reasons as communications to the Minister direct are unobjectionable.   

Is MSD liable for public disclosures on the basis of res ipsa loquitor?
Held:  No.  It is not necessary for a plaintiff to show that a particular individual within an organisation wrongfully disclosed their private information.  If the evidence suggested that at the time of the media disclosure, the information was only held by MSD employees, the court would be entitled to draw an inference that it must have been a person within MSD who wrongfully disclosed the information.  But by the time the leak to the media occurred, a number of people outside MSD held the information, so there were a number of possible explanations as to how the information was disclosed to the media.  The res ipsa loquitor principle does not enable Mr Peters to establish, on the balance of probabilities, that MSD was the source of the wrongful disclosure.