Week in Review

Peters accepts National ministers didn’t leak

Winston Peters' has accepted in the High Court that two former National ministers he had been suing for $450,000 for breaching his privacy were not the source of the leak or responsible for it.

In his closing submission today, Peters' lawyer Brian Henry said both Anne Tolley and Paula Bennett denied in their evidence leaking information on Peters' seven-year overpayment of superannuation - and the lawyer for the Ministry of Social Development and public servants did not challenge those denials.

"That left the MSD in the position that they now cannot avoid a finding that the breach was on MSD," Henry said. "The plaintiff was expecting a challenge from MSD to the ministers, but the MSD has not challenged the evidence that they [the ministers] did not leak.

"That dual denial removed two of the options that the plaintiff, when it opened its case, was expecting to have examined in the court."

That means Peters is no longer suing the National pair for damages.

Tolley, who as Minister of Social Development in 2017, was briefed by the ministry's then-chief executive Brendan Boyle on the Peters overpayment and repayment of his pension - and Bennett, briefed as Minister of State Services a day later by the State Services Commissioner, have denied since the proceeding began two years ago that they were involved in the leak.

Peters made his overpayment public during the general election campaign after learning the information had been provided to journalists. Newshub and Newsroom both received anonymous calls with details about the overpayment, which had come to light when Peters' longstanding partner Jan Trotman applied for her own superannuation.

The two ministers were briefed on the matter by the top public servants under the 'no surprises' policy by which departments inform ministers of matters which might become controversial or be subject of public debate. The officials had sought advice from the Solicitor-General before acting and had waited until a decision had been reached independently on Peters' fate by an MSD regional official.

As well as around 40 ministry officials who had some awareness - 11 of whom knew the level of detail passed to the media - several officials in Tolley's ministerial office and also then-Prime Minister Bill English and finance minister Steven Joyce ended up being told directly or indirectly some information by the two ministers.

With Henry now saying the two National MPs can be ruled out because of the court hearing, he told Justice Geoffrey Venning: "The only inference on the balance of probabilities is that the MSD was responsible."

Henry said Peters' case was that under the tort of privacy he had a reasonable expectation that his private information would not be made public and what was disclosed had been highly offensive.

"In this case, the MSD exclusively held the plaintiff's private information. Unless they can rebut the evidence there arises an evidential presumption.

"The larger the group [who had become aware in the ministry] the greater the foreseeability the matter would be leaked. 

"The perpetrator will never front. Someone in MSD in full knowledge breached the plaintiff's privacy and set off a chain of communications causing damage to his reputation."

Henry said: "This is not likely to be a mistake." He noted someone with knowledge could have covered digital tracks to avoid internal inquiries afterwards. "It is accepted that the breach may not have been with the intent that the private information reached the media. But it still must be a deliberate breach of obligations owed by MSD.

"The only inference is the perpetrator of the breach was aware that communicating that information outside the MSD, they were committing a serious breach of the plaintiff's personal information."

Henry said Peters had been guided in the level of damages sought from the defendants by the upper limit set in a recent defamation case, but the quantum was an assessment for the judge.

As well as damages, Peters wants a declaration from the court that his privacy was breached. 

The NZ First leader says it is necessary to have the tort of privacy recognise such a breach because in the digital world "the dissemination of [private] information is now in the hands of irresponsible persons... and politicians are not extremely vulnerable".

At the end of his submissions, Henry clarified for the judge that Peters was now seeking the $450,000 in damages under his first cause of action from all defendants together rather than seeking that sum from each.

Questioned further by Justice Venning, he said the fact Bennett and Tolley could no longer be accepted as the source of the leaks meant that they could not continue to be included in the cause of action seeking that money. So the damages are sought, together, from Boyle, Hughes and MSD.

In three further causes of action, Peters is seeking declarations from the judge that his privacy was breached by the public servants in briefing their ministers and by the two ministers in accepting those briefings.

Henry disputed a claim by Bruce Gray QC, for the ministers, that there had been no social media reports of Peters’ overpayment presented to the court that had occurred before Peters issued his press release announcing that news.

He pointed to a Kiwiblog posting about the risks for Peters if the overpayment news was correct. However he gave the court the date August 28 for the Kiwiblog comment, and that was actually the day after Peters issued his press release.

The only social media content appearing before Peters went public had been three tweets from the writer of this article about a possible major political story, and the tweets did not mention him, his party, gender, age or superannuation.

The writer had to provide a sworn statement in the earliest part of the proceedings and pointed out that intense speculation on Twitter had followed those tweets but that not one that was connected to his tweets had referred to or even hinted at Peters being involved.

Earlier, Victoria Casey QC for Hughes, Boyle and the ministry, said Peters' pleading alleging bad faith by her clients would, if found to be so, be "catastrophic" for the officials. "If established, it would be the end of any career for them in the public service.

"It's important that Mr Peters is held to his pleadings," she said.

The bad faith accusation was raised by Peters in his fourth 'statement in reply' before the hearing began. "Mr Peters is not entitled to pursue new allegations of bad faith."

(Henry later told the court he was saying officials had not acted in good faith rather than they had acted in bad faith. That was so those defendants had to disprove his claim rather than Peters having to prove 'bad faith'.)

Justice Venning has reserved his decision, which he said was unlikely before the end of the year.

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