Peters drops leak accusations against Bennett, Tolley

It was obvious that all the Winston Peters accusations and litigation couldn’t stand up. He launched what was clearly a fishing expedition to try to expose the culprit.

Peters, via his lawyer Brian Henry’s closing address in court, has conceded that neither Paula Bennett nor Anne Tolley leaked information about his seven year superannuation overpayments.

Newsroom: 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.

This raises questions about Peters’ claims, and the cost he has inflicted on taxpayers to try to justify his accusations.

It also makes Barry Soper’s assertions that it must have been a National leak (with no evidence provided) look a bit silly.

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.”

So he now asserts that someone in MSD leaked the information, but as there is no evidence suggests the assumption can be made. I don’t know how proof or lack thereof works in cases like this.

The ‘chain of communications’ led to journalists asking Peters about the overpayment, and Peters then went public himself. There is no certainty that media would have published the information. This is an interesting situation.

MSD lawyers claimed that Peters’ reputation hadn’t been affected by anyone but himself.

It is arguable that if Peters had just admitted making a mistake on his application and not noticing the overpayment, then paying it back when brought to his attention, then this would have blown over and would be virtually forgotten by now.

Instead Peters accused a swath of people for the leak with no evidence to back his claims, made assertions and denials that were inaccurate or wrong, filed legal action against National MPs just prior to going into coalition negotiations with National (I think without revealing the legal filing), and then proceeded with the case over the next two years.

Some have suggested he has simply enhanced negative aspects of his reputation.

There is a serious issue of the revealing of private information held by  Government department. That should have been investigated – although leaks are common and culprits are often not identified.

But the initial information Peters revealed himself, and revelations through the court hearings, have been self damaging more than anything.

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 course of action from all defendants together rather than seeking that sum from each.

That’s an odd switch. Maybe he realised Peters was seeking too much with Bennett and Tolley out of the firing line.

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.

A challenge for the judge to address all of that.

A swipe at Kiwiblog fizzled:

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.

Whoops.

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.

The writer is Tim Murphy who has provided excellent coverage of the hearing.

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.

I expect he will want to take some time and care in writing his decision. I wonder how close to next year’s election campaign the decision will be released.


A (lawyer) comment from Kiwiblog (typos corrected):

I was astonished to read of Mr Henry’s concession that neither of Anne Tolley or Paula Bennett leaked anything.
If that is the case the claim against them will fail absolutely.

I would anticipate that Mr Gray will ask for judgement for Anne Tolley and Paula Bennett and that there be an order for costs against Mr Peters on an indemnity basis.

Yeah, costs. They could amount to a lot. Peters will be hoping to have costs warded in his favour for his remaining claims, but that my only balance out these costs.

Thinking about it, Peters was hardly likely to succeed in all of his claims, so was always going to be exposed to costs.

Leave a comment

20 Comments

  1. I can make Vennings decision for him now: Who was the leaker? Winston was. He went public with the information during the election. Why? because, he says, journalists were about to make the story public.

    But really? This is a man who can’t fill a form in properly. Who is unsure if he is single, separated or in a relationship.

    Frankly his marbles are rolling around the floor at his feet. He sounds much like my mum in her last years of independent living, writing notes to mysterious strangers and posting them on her bedroom walls.

    No! time to stop the charade; time to put Winnie out to pasture.

    Reply
    • Blazer

       /  14th November 2019

      are you in favour of the euthanasia bill?

      Reply
      • Ray

         /  14th November 2019

        In this case definitely.
        Political suicide?
        Talk about a own goal, Winston it turns out released his own information possibly because he thought the Twitter chatter was about him but despite all his trumpeting and bs he had zero proof that he was defamed.
        Even worse the evidence in Court suggests he can’t even fill in a form correctly and when he signed it as true and accurate, he lied.
        He also thought smearing and bs that has got him through his political life would work in a court of law.
        He has always claimed to be a lawyer but you have to wonder just how much court work he actually did, other than being a defendant that is!

        Reply
        • Blazer

           /  14th November 2019

          lost count of the number of times WP has committed ‘political suicide’.
          Mr Bridges is a lawyer too and an expert in ..body language…apparently.

          Reply
          • duperez

             /  14th November 2019

            You have to admire someone who can talk about expertise in reading body language who would stand in the same environs blithely giving fodder to students of the art by talking about a ‘junior staffer.’ 🙃

            Reply
    • Gezza

       /  14th November 2019

      I can make Vennings decision for him now: Who was the leaker?

      I may be wrong but I don’t think Venning J is being asked to identfy who the leaker was. Can you point me to where he is asked to do this?

      Reply
  2. Duker

     /  14th November 2019

    “So he now asserts that someone in MSD leaked the information, but as there is no evidence suggests the assumption can be made. ”
    Strange way to look at the law. People have been convicted of murder with very little direct evidence and sometimes even no body.
    Sounds like you have never heard of the legal terms – motive and circumstantial evidence. The reality is information that was private and held by those who needed to know in MSD spread widely in parliament , even State Services for unsatisfactory reason, and eventually the media. All because of unnamed people in MSD.

    Artcroft was claiming the other day that the case wasnt covered much in the news ( it was if you knew where to look) and in spite of not following closely he is ready to give judgement – based on what ?
    As for the idea Peters ‘was the leaker’, thats absurd . Evidence from Soper said he knew from gossip around the beehive. The Newsroom editor certainly knew as he tweeted about major story coming up on ‘a politician and benefits’- which did appear. Just at that time Peters name wasnt mentioned.
    As for damages, Peters is claiming on the ‘tort of privacy’ and as both Ministers have admitted in the witness box they told others, they have breached his privacy. End of story.
    Peters lawyer made technical arguments about MSD lawyers not countering direct evidence against them , thus the Judge can find against them for the breach to the news media, and as its tort law he doesnt have to name and prove a particular person leaked. Thats my understanding of the way its gone.
    My real wish is the cant of the senior public servants is revealed for what it is and the no surprises ‘policy’ has limits . No one expects IRD to be blabbing about individual names to its ministers, nor should MSD

    Reply
    • duperez

       /  14th November 2019

      No one expects IRD to be blabbing about individual names to its ministers? I said the other day: “If a leading member of the Opposition gets a speeding ticket or a DUI does the information get passed up the chain and end with the Commissioner of Police going to see the Minister of Police to inform them under the ‘no surprises’ policy? And other ministers are called in?

      A leading member of the Opposition with a health condition ends up with a little conflab with officials in the office of the Minister of Health?”

      What Maarten Wevers said in court means that a case could easily be made for the IRD to be blabbing about individual names to its ministers. According to him it seems simply saying that if information gets out there could be a big controversy justifies any information being taken to ministers. Of course using that logic there could big controversy about anything so every bit of information about every MP could, should be shared.

      The bizarre picture that Wevers paints is the thing igniting the controversy is that sharing of information. There’s a bit of Salvador Dali and LSD artists about the picture.

      Reply
      • Gezza

         /  14th November 2019

        Thank you for your decision. I think it inadvisable for me to issue mine at this time on the basis of only the tiny bits of evidence given by those involved which have been published by reporters.

        I shall take the time to ensure that his honour has reviewed the complete Court transcripts & all the evidence and submissions advanced, in their entirety, & in fairness to his hinour, issue mine when I see whether Venning J has, in my opinion got it right.

        Should the learned Judge determine that it would be advisable for some absent parameters to be set around the Cabinet Office Manual-mandated No Surprises policy (which might conceivably be held to be a good idea) I will be happy to proffer my thoughts on those as well.

        Gezza, B

        Reply
        • Gezza

           /  14th November 2019

          *hinor = honour, for the purposes of the above interim ruling, &, where stated, shall be read & understood accordingly.

          Reply
          • Gezza

             /  14th November 2019

            Sht!

            *hinor = hinour = honour, for the purposes of the above interim ruling, &, either, wherever stated above, by me, shall be read & understood thus, accordingly

            Thank you. You may all be seated. 😐

            Reply
            • duperez

               /  14th November 2019

              Careful – you’ll start coming across like a character out of a J P Donleavy novel! 😊

              (Not that that’s necessarily a bad thing.)

            • Gezza

               /  14th November 2019

              In his 1994 autobiography The History of The Ginger Man, Donleavy wrote, “I smashed my fist upon its green cover format, published as it was in the pseudonymous and pornographic Traveller’s Companion Series, and I declared aloud, ‘If it’s the last thing I ever do, I will avenge this book.’ Donleavy and the owner of Olympia Press, Maurice Girodias, became embroiled in decades of legal cases, The Guardian noting: “Twenty years later, the two parties were still suing each other, under the guise of phantom companies – Donleavy was ‘The Little Someone Corporation’ – with no end in sight.

              Girodias had declared himself bankrupt, and was preparing to buy back the title of his beloved Olympia Press at an auction in Paris. Donleavy learned of the sale and sent his wife to France with a large sum in cash. When bidding went over $8,000, Girodias ran out of money. The mysterious woman (as Girodias saw her) made a final bid, and the Olympia Press belonged to Donleavy.” – Wikipedia

              😀 It seems even Donleavy was a real character in a Donleavy book.

  3. Ray

     /  14th November 2019

    Your cheque will be in the mail forthwith.

    Reply
  4. Peters – the Rudy Giuliani of NZ Politics

    Reply
    • Duker

       /  14th November 2019

      None could beat Teflon Tony Blair and well see if The non Stick Don gets away with the Ukraine thing. Many on the left consider Key as slippery as an eel…..his hair pulling of women came just before MeToo would have destroyed him…maybe

      Reply
  5. Trevors_elbow

     /  15th November 2019

    what a sham…… ‘you did it National, you did it’ Winstons cronies and friends smeared National and two of its senior MPs with ‘you leaked Winstons private stuff up into the public domain’.. now his high paid lawyer withdraws the accusation in court…..

    So… do we have a politican deliberately faking a ‘dirty politics’ story to provide a smokescreen behind which he could hide when he decided to go with Labour after the last election? Did he Spin the line he will go either party for a coalition agreement pre election, have the keep ‘National honest vote NZF’ meme pumped around during the campaign (looking at your good friend Cameron here Pete) and then do what he always intended and go with Labour without ever admitting as much while campaigning?

    Maybe …who knows.. you might think that, I couldn’t possibly comment

    Oh and post script: The NZ taxpayer in various ways is left carrying the bill in terms of direct costs and in wasted time of senior public officials who have other things to do but were running preparing for this case… what a collosal farce and rort onthe punlic purse..

    Reply

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