Peters’ conflicting claims in super leak case

Winston Peters' allegations in Parliament of who leaked his superannuation overpayment might impact two of the three declarations he is seeking in a Court of Appeal case, Tim Murphy reports

NZ First leader Winston Peters told the Court of Appeal he could not know who leaked details of his long-term superannuation overpayment - but weeks later told Parliament it was a ministerial press secretary and listed names of those who supposedly knew of the leak.

In 2010, Peters incorrectly completed his original application to receive superannuation, not alerting officials to his de facto partner status with Jan Trotman. That resulted in him being overpaid for seven years until her subsequent application for superannuation raised the red flag. News of the overpayment was made public by Peters due to media questioning during the 2017 election campaign.

The Deputy Prime Minister took a High Court breach of privacy case against two former National ministers, Anne Tolley and Paula Bennett, the Ministry of Social Development and its former chief executive Brendan Boyle and the State Services Commissioner Peter Hughes, costing the Crown more than $1 million in legal costs. Peters lost but is challenging that at the Court of Appeal.

Peters' claims on July 22 under parliamentary privilege that a former press secretary for National MPs, Rachel Morton, overheard the ministers talking and leaked it to ACT leader David Seymour - and that it then it made its way to the media via the Taxpayers Union's Jordan Williams, pollster and blogger David Farrar and the father of a National MP, John Bishop - were universally denied and ridiculed.

He tried to claim the leak was the result of 'dirty politics'. Seymour told Parliament soon after that the allegation against him was utterly false, Morton ('categorically untrue'), Williams ('delusional'), Farrar ('insane') and Bishop ('no involvement whatosever in the matter') denied the claims and Peters' theory about how this journalist and Newsroom came to learn of the overpayment and secret $18,000 repayment was wrong in every respect. Morton is understood to be applying to the Speaker for her denial to be recorded in Hansard under Parliament's Standing Orders.

Curiously, Peters had taken an altogether different approach in the document he filed with the Court of Appeal challenging the High Court findings.

In the Notice of Appeal dated May 15, and just released to Newsroom, Peters' lawyers told the court details of Peters' payment "leaked from [the Ministry of Social Development] by persons the appellant [Peters] cannot (and cannot be expected to) identify".

Further, and conflicting with his later parliamentary clam that Morton, a ministerial services staff member, had leaked the information, Peters' lawyers say: "The leaked information, on the evidence adduced at trial can only have been by a member of the staff of the [Ministry of Social Development]."

Morton did not and does not work for MSD.

Peters, who has been ordered personally to pay the Crown $317,000 in costs for the failed High Court action, could now argue that in May he could not 'be expected to identify' the leaker and thought then it 'can only have been' leaked by an MSD staffer - but that he subsequently learned between May and July it was Morton.

His general debate speech to the House on July 22, in which he made the allegations against Morton included this line, perhaps suggesting he would be revising his tale in court: "I have got the witness I never had at the court. The judge said to me, "But you must tell me who did it", as though—with all their resources—one man against them, paying for his own costs, could be expected to do that."

On the face of it, he would appear to need to address the wording of his appeal to reflect this claimed new information, or correct the parliamentary record, should he get the opportunity, post-election.

Peters' appeal

If, as he now publicly alleges, the leaker was Rachel Morton, the thrust of two of the three 'declaratory remedies' he wants from the Court of Appeal would seem to be needing amendment.

The first seeks a declaration that MSD breached Peters' privacy "by a member of staff (unknown) to person or persons who led to the private information being leaked to the media, thereby resulting in the widespread publication of wrongful private information" of Peters. The second seeks the same finding about an MSD "member of staff" leading to private information being published.

His third strand does not involve the "staff member" allegation and seeks a declaration that MSD and the two public service chiefs breached Peters' privacy by disclosing his private superannuation details to the National ministers Tolley and Bennett.

Peters asks the Court of Appeal for an award of damages against the Crown, and points to the paragraph of Justice Geoffrey Venning's High Court ruling that estimates had Peters been able to identify the leaker he might have qualified for a damages award of $75,000 to $100,000.

Peters bases his appeal on MSD having believed Peters had made the error on his superannuation application that led to the overpayment, when, Peters' lawyers say, "in fact the error was the wrongful processing of an incomplete application by [MSD]".

They argue that because the ministry staff had wrongfully processed that incomplete application, that meant there was no basis for the chief executives' decision to brief the ministers on Peters' overpayment. "A clerical error by an employee... is not a matter requiring disclosure to the minister responsible."

The Crown's cross appeal

The Crown is cross-appealing the High Court judgment - meaning it is arguing some elements that went against it in Venning's ruling.

It says the High Court was wrong to:

- find MSD should not have accepted and processed Peters' superannuation application;

- specify the $75,000 to $100,000 estimate for damages that Peters now seeks when Peters showed no proof of actual damage and had not mitigated any damage; and 

- review, without a proper basis in law, the merits of the two chief executives' decisions to brief their ministers.

Crown lawyer Victoria Casey QC argues in the cross appeal document, dated June 2, that the High Court dismissed without any clear basis evidence from MSD witnesses that "according to MSD's requirements, the form was sufficiently completed to be properly processed and the decision to accept it was properly made."

Further Venning failed to consider evidence that MSD's practice was to rely on an applicant [Peters] using reasonable care and solemnly declaring it to be true rather than "inquiring into an applicant's self-reporting of their relationship status".

The Crown says the High Court gave insufficient weight to Peters' failure to pay reasonable attention to the instructions on the form before making a statutory declaration that his information was true, and insufficient weight to Peters' subsequent conduct in "ignoring" a letter four years later from MSD which would have alerted him to having provided incorrect information on his original application and having been overpaid.

*Newsroom's application to view Peters' notice of appeal on the court file was supported by Peters' lawyers but opposed by Crown lawyers, who argued the public interest would be "better served if the grounds of appeal were reported in the context of the hearing of the appeal, when [the Crown's] answers to the appeal will have been properly explained." Justice Denis Clifford ruled Newsroom could view both Peters' appeal and the Crown's cross appeal.

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