Deputy Prime Minister Winston Peters has lost a controversial privacy breach case against two former National cabinet ministers, state services commissioner Peter Hughes, the Ministry of Social Development and its former chief executive, Brendan Boyle.
Peters, the leader of the NZ First Party, sued the parties – including the then cabinet ministers Paula Bennett and Anne Tolley – after details of his overpaid superannuation were leaked to the media in late 2017. Peters had been overpaid almost $18,000 by the Ministry of Social Development, which had been paying him as if he were single, despite his long-term relationship with Jan Trotman.
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Today the High Court at Auckland ruled that despite Peters having a reasonable expectation of privacy over the details of his superannuation, his claim failed because he couldn't prove the source of the leak.
Justice Geoffrey Venning also noted that, even if Peters had successfully made his claim, he could only have received about $75,000 to $100,000 in damages because he had been so successful in mitigating the harm.
The 69-page judgment details how the incorrect payments occurred. Peters was granted superannuation in 2010 but, according to evidence from him and also Trotman, he had been accompanied by her when he made the application in April, 2010, at the department office.
The case officer on the day said she did not recall seeing Trotman but the judge said Peters and Trotman's evidence claiming they both attended was preferred because there was no reason for the case officer to remember seeing Trotman.
"I have come to the view that the error arose through a combination of circumstances. The ambiguous nature of the form, the MSD officer who processed Mr Peters' application and Mr Peters himself all bear some responsibility for the error, which led to the payment irregularity," the judgment said. The MSD officer involved is described in the judgment as Ms S.
According to the decision, Peters did not tick 'yes' or 'no' in response to the form question: "Do you have a partner?"
Instead, he jumped to the box in the 'no' section, which said he was "living apart/separated."
Peters' evidence was that at the time he was living separately and apart from his former wife, so the answer was correct.
Justice Venning said the case officer should have asked him to go back and answer the initial yes/no question, No. 26.
"In summary, an error was made in the completion of the application form. The error arose because Mr Peters did not fully complete question 26 and Ms S did not require Mr Peters to complete the answer to the primary question in question 26."
The judge said that Peters had a reasonable expectation of privacy, noting that he kept his private life particularly private for a politician.
"In my judgment, Mr Peters had, and was entitled to have, a reasonable expectation the payment irregularity would not be disclosed to the media and through them, the public at large," the judge said.
"The fact Mr Peters contributed to a mistake in completing the application form and, at worst, did not pay sufficient attention to the detail of the form and correspondence from the MSD, can have no realistic impact on his character or fitness for public office."
At trial, the judge heard how Tolley had told her sister about the payments but did not speak to the media about them.
The national manager for fraud for the Ministry of Social Development, Debbie Raines, also gave evidence of declarations from 29 staff, who had contact with the file but would not have had sufficient information to have been the source of the leak, and interviews with 11 staff who had all the information. Ms Raines concluded that there was no evidence to support a finding that an MSD staff member was the source of the leak.
So Peters' claim failed because he could not prove which of the defendants had caused him damage.
"Mr Peters cannot identify the source of the leak to the media. He cannot say whether it originated from an MSD team member or one of the persons who later obtained the information through the ministers' offices."
Peters had tried to use the doctrine of 'res ipsa loquitur' to say that obviously the leak must have come from someone at the MSD so it could be held responsible but the judge said the government agency was not the sole source of the information, so it couldn't be proved.
"Mr Peter's claim against all defendants fails as he is not able to establish that they were responsible for the disclosure of the payment irregularity to the media. He has conceded that neither Ms Bennett nor Ms Tolley was directly responsible for the disclosure to the media.
"Further, with the exception of the very general, unguarded comment by Ms Tolley to her sister, the disclosures by the first and third defendants were for a proper purpose or otherwise to persons with a genuine interest in knowing," the judge said in his summary.