Comment

Deputy PM seeks $1.8m from state

Winston Peters' new court action over his seven year superannuation overpayment is actually claiming a total of $1.8 million from bureaucrats and former ministers - damages that ultimately may have to be paid by the taxpayer if he is successful.

The grand total of damages being claimed for breach of his privacy when his windfall was made known to departmental chief executives and ministers last year is contained in the Statement of Claim filed in the High Court on Monday and seen by Newsroom.

Peters is about to become Acting Prime Minister yet one of his listed targets is Attorney General David Parker who sits with him in the cabinet room. Prime Minister Jacinda Ardern is expected to start six weeks maternity leave next week. Peters' court case is being taken as a private citizen.

Parker's role is sued in the place of the Ministry of Social Development, which Peters claims did not do enough to secure his private information. While chairing the cabinet and acting as Prime Minister he will also be suing the man in charge of the public service, State Services Commissioner Peter Hughes, the chief executive of MSD, Brendan Boyle and targeting former National ministers Paula Bennett and Anne Tolley.

His court filing says he wants $450,000 in damages from Boyle and Parker on behalf of MSD, (the claim is unclear on whether he wants the sum from each of them or combined) and $450,000 from each of Hughes, Tolley and Bennett. The $1.8 million figure is, interestingly, 100 times the amount Peters is believed to have repaid MSD.

He also seeks a declaration from the court that each of those being sued breached a duty owed to him to keep his superannuation details private.

Legal observers say Peters' nominating a sum for damages has no real status in the case as it is for the court to determine an amount if his claim succeeds. Some litigants name a dollar figure to give their action more significance in the public mind.

Last year Peters filed court action seeking documents, phone and email records from Boyle, MSD the ministers, plus former Prime Minister Bill English, former finance minister Steven Joyce, the ex-PM's then chief of staff and a National Party communications staffer. He also tried, and failed, to force journalists (including the writer) to provide their notes and electronic records associated with the case.

Peters' legal tactics have shifted from last year's action trying to identify how his superannuation 'mistake' became public to how the information even made it beyond the MSD officer with whom he met and agreed to pay back the $18,000.  Essentially, he is now suing over the information making it into the Beehive rather than his claim that it leaked out of the Beehive.

His action claims a "tortious breach of privacy" rather than a breach of the Privacy Act. The latter could have provided the defendants with statutory defences, for example they could cite permitted disclosures under the law.

The Statement of Claim makes plain he partly blames the publicity over his inflated super for his loss of the Northland seat at the general election, the third parliamentary seat Peters has held and lost. Despite making public his overpayment himself, in a press release designed to neutralise media disclosures, the New Zealand First leader also claims the actions of his five targets in this action also cost his party votes.

Throughout the court paper Peters claims National's strategy in the election campaign was to oust him from Northland and lower NZ First below the five percent party vote threshold for gaining seats in Parliament. He suggests he wants to know more during the court discovery process about Bennett's role on National's re-election campaign committee.

He claims Hughes and Boyle should have known Bennett and Tolley would potentially use the super overpayment for political purposes to damage him.

Peters says the reporting up the chain of his details amounted to "no more than the passing of gossip". Officials telling the ministers ran the risk that personal information would be "used for party political purposes to the detriment of the plaintiff".

The two senior mandarins told their ministers under a longstanding governmental policy - dating from Helen Clark's Labour administration in which Peters served - of "no surprises".  Ministers are told of politically sensitive matters being handled by their departments. 

In this case, Boyle sought Hughes' advice - which was that he should advise Tolley - and they both received advice from the Solicitor-General, the government's chief legal adviser "on the appropriate way to ensure decisions were made independently and the requirement to ensure ministers were not surprise was met".

The Solicitor General's department, Crown Law, will now have to defend the ministers and departmental chiefs - all at taxpayers' expense if the current cabinet allows funding for the National ex-ministers. The cost of representation of five defendants over what could be a long court process could easily reach $100,000 in internal costs and any external barrister involvement.

Hughes said when the news broke last year: "I am advised that the convention exists because of ministerial accountability to Parliament. Ministers are accountable to the Parliament for the conduct of the department they have portfolio responsibility for.

"It is essential that ministers are aware of significant issues within their portfolios so they can answer to the Parliament. However they must not become involved in operational matters within departments."

In the case of Tolley and Bennett, Hughes said no briefing was provided until the operational matters were resolved. "There was an expectation that these matters would be held in confidence by ministers. When these briefings were given they contained very limited details."

Peters' court filing claims: "The policy of 'no surprises' has no basis in law."

His action will bring into focus how the current Labour-NZ First coalition government is operating the "no surprises" policy with departments, including Peters' own briefings from his Ministry of Foreign Affairs and Trade on any matters deemed politically sensitive.

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