Peters suffered breach of privacy but failed to identify who was responsible

The High Court (Venning J) has released a decision that found that Winston Peters had his privacy breached, but in court proceedings he failed to identify who was responsible, despite accusing a number of MPs and public servants. Therefore his claims for damages and declarations have been dismissed

There has also been a substantial cost to the taxpayers who paid for the defendants, but Peters may now have to pay costs (decision reserved).

Plaintiff: Winston Peters

First Defendant: Paula Bennett
Second Defendant: Peter Hughes (State Services Commissioner)
Third Defendant: Anne Tolley
Fourth Defendant: THE ATTORNEY GENERAL sued on behalf of the MINISTRY OF SOCIAL DEVELOPMENT
Fifth Defendant: Brendan Boyle (chief executive of the MSD)

Introduction: 

[1] The Right Honourable Winston Peters claims the defendants have breached his privacy.

[2] In April 2010, Mr Peters applied for and was granted New Zealand Superannuation (NZS) by the Ministry of Social Development (MSD). Mr Peters was paid NZS at the single rate. In May 2017, Mr Peters’ partner, Ms Trotman, applied for NZS. In the course of processing her application, MSD reviewed Mr Peters’ file. The review raised the question of why he was being paid NZS at the single rate when he had a partner. An MSD officer met with Mr Peters in July 2017. It was agreed Mr Peters had been overpaid NZS as he was not single and had a partner, Ms Trotman, at the time he was granted NZS. Mr Peters immediately arranged for the overpayment to be repaid.

[3] In the meantime, in June 2017, Mr Boyle, the chief executive of the MSD, had disclosed the overpayment and the MSD investigation into it (the payment irregularity) to the State Services Commission (SSC).

[4] On 31 July 2017, Mr Boyle also briefed Ms Tolley, the Minister of Social Welfare at the time, about the payment irregularity. On 1 August 2017, Mr Hughes, the State Services Commissioner, briefed Ms Bennett, the Minister for State Services at the time.

[5] An unknown source disclosed the payment irregularity to the media by anonymous calls to reporters between 23 and 25 August 2017. On one occasion the source alleged Mr Peters had lied when applying for NZS.

[6] On 26 August 2017, Lloyd Burr, a journalist approached Mr Peters. Mr Burr made it clear he had knowledge of the payment irregularity. To mitigate the damage to him personally and politically, particularly in the context of a general election due to be held on 23 September 2017, Mr Peters issued a press statement the next day. Over the next weeks and even months, a number of news items followed in which the payment irregularity and Mr Peters’ situation were discussed further.

The claim

[7] Mr Peters says that the public disclosure of the payment irregularity was a breach of his right to privacy. He says the defendants had a duty to keep the details of the payment irregularity confidential. In disclosing the payment irregularity to others Mr Peters says the defendants breached that duty.3 He seeks declaratory relief and damages.

Some points of interest.

[24] While Ms S should have picked up that question 26 had not been properly or adequately answered and the form was incomplete, Mr Peters must also bear some responsibility for the resultant ambiguity in the form as completed and the consequent issues that arose. To the left-hand side of question 26 is the definition of partner. If Mr Peters had read that definition, it would have been clear, given that Ms Trotman was his partner, that he should have completed the primary question in question 26 and answered it by ticking “Yes”.

[30] There was one further relevant event that occurred before Ms Trotman made her application for superannuation in May 2017. On 18 March 2014, the MSD sent a standard letter to Mr Peters which included a request that asked him to check the following details:

Relationship Status: You are single.
Your living situation: You are not living alone.

[31] Mr Peters did not respond to the letter. He has no recollection of it but accepts he would have received it. He says he understood the letter was asking if there was any change in his circumstances. He took the view that there had been no change in his circumstances since the 2010 interview. While Mr Peters’ details had not changed, the letter expressly set out that the MSD’s records of Mr Peters’ relationship status was that he was single. That was incorrect. If Mr Peters had paid more attention to the letter, he would have realised there was an issue with the MSD’s records regarding his initial application.

There seems to be a contradiction here. “He has no recollection of it” but “He says he understood the letter was asking if there was any change in his circumstances. He took the view that there had been no change in his circumstances since the 2010 interview.”

I don’t now he could have taken an understanding from a letter and taken a view on a letter he had no recollection of. This sounds odd to me.

[75] With respect to Mr Soper, his evidence that, in his opinion, the information was deliberately leaked as an attempt by Mr Peters’ political opponents to damage his credibility and to do what the Prime Minister wanted, which was “to cut out the middleman”, namely NZ First, is speculative. It is not the opinion of an expert based on established fact. Without direct evidence of the original source of the disclosure, Mr Soper’s opinion is speculative. Mr Soper’s opinion that it must have been a political opponent (and inferentially) someone from the National Party or a National Party supporter lacks a proven factual basis. It does not satisfy the requirement for admissibility as expert opinion evidence. Even if it was generally correct that the disclosure was politically motivated, it may not have been disclosed, for example, by a National Party member or supporter. It could also have been disclosed by a Green Party supporter aggrieved at the public backlash against Ms Turei following her disclosure of fraud.

[76] None of the journalists, including Mr Soper, were prepared to disclose their sources. They invoked the protection of s 68(1) Evidence Act. I was not asked to make an order under s 68(2) and was not in any event, provided with evidence to satisfy me that the criteria in that subsection were satisfied.

[108] Mr Peter’s reasonable expectation that the payment irregularity would be kept private must be contextual. It is not absolute. It must take into account that there are some parties who it was necessary or appropriate to disclose the information to. As noted, that includes a number of people within the MSD involved directly in the review and investigation. It also extends to disclosure to the chief executive of the MSD and from him to the chief executive of the SSC as Mr Henry conceded in opening.

[117] In summary, on the first point, I accept that Mr Peters had a reasonable expectation that the details of the payment irregularity would not be disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it, and certainly had a reasonable expectation that the payment irregularity would not be disclosed to the media.

[125] In summary, I remain of the view that it would be highly offensive to deliberately disclose details of the payment irregularity to the media.

[141] Mr Peters seeks to overcome his evidential difficulty in identifying who disclosed his private information concerning the payment irregularity to members of the media on 23 and 25 August 2017 by reliance on the doctrine of res ipsa loquitur.

[143] Res ipsa loquitur, literally “the facts speak for themselves”, is a rule of evidence. Res ipsa loquitur generally arises in the context of negligence but is not restricted to that. In the Canadian case of Royal Bank of Canada v Boussoulas, for example, the Ontario Superior Court of Justice accepted it could apply to fraud where fraud was the only consistent explanation for the facts proven.

[148] There are a number of possible explanations as to how the details of the payment irregularity were disclosed to the media. While it is possible the disclosure was politically motivated, it could have been made by members of either of the other major parties, (at that time neither of them knew who Mr Peters and NZ First might support) or even a disaffected NZ First supporter disappointed in a perceived failing by Mr Peters. Further, a supporter of the Green Party or of Ms Turei who considered she had been treated harshly by the media could have been the source of disclosure to the media.

[149] That is the fundamental difficulty for Mr Peters’ reliance on res ipsa loquitur. The doctrine is not applicable where the plaintiff cannot identify the defendant…

[153] In summary, there are a number of elements to Mr Peters’ claim against Ms Bennett and Ms Tolley but they come down to the following key points. First, that he had a reasonable expectation of privacy that the details of the payment irregularity would be kept private. For the reasons given above, I accept that has been established to the extent that he had a reasonable expectation it would only be disclosed to those persons who had a proper interest or genuine need to know. I also accept that public disclosure would be considered highly offensive by a reasonable objective person. Again, for the reasons above, I agree that disclosure of the payment irregularity to the media with the intention it be made publicly available would be considered offensive to a reasonable objective person.

[154] Mr Peters’ pleaded case against the first and third defendants is based on the reasoning that the first and third defendants were members of a political party opposed to Mr Peters so that the information must have been leaked by them to persons who disclosed it to the media. But Mr Henry did not pursue that case directly in closing submission. He cannot rely on res ipsa loquitur to make it out.

So Peters failed in his accusations against Bennett and Tolley – he had no evidence they were responsible for the leak.

[168] The declaratory relief sought is based on the same pleaded facts as the claim for damages. With the exception of Ms Tolley’s unguarded comment to her sister, the disclosures made by the first and third defendants were either made for proper purposes or to persons who had a genuine need to know about the payment irregularity. Ms Tolley was not challenged on her evidence regarding her reason for discussing the matter with her husband and, given the brief and very general nature of the comment made to her sister, I decline to make any such declaration.

[169] The plaintiff’s claim against the first and third defendants on the first and fourth causes of action fails.

[176] I accept Mr Peters had a reasonable expectation that details of the payment irregularity would be kept private, to the extent that it would not be disclosed except for a proper purpose or to parties who did not have a genuine need to know and that it would not be disclosed to the media. But that does not support Mr Peters’ claim that the MSD and Mr Boyle should have kept it private if that is to be taken to mean to not disclose it at all…

[181] Mr Peter’s 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. He is left with his reliance on the doctrine of res ipsa loquitur in his case against the fourth defendant, sued on behalf of the MSD. But for the reasons expressed above, the doctrine does not assist the plaintiff…

[231] Sir Maarten confirmed that, contrary to Mr Peters’ suggestion, in his experience, whether it was appropriate to brief a Minister did not depend on the Department requiring the assistance of the Minister or of Cabinet. Sir Maarten had not heard of or applied the criteria Mr Peters referred to. I note they are not referred to in the Cabinet Manual. As Ms Casey submitted, the process Mr Peters suggested was not a convention. None of the other Crown witnesses were aware of its application. Neither of the Ministers at the time were familiar with it. I accept the defence evidence on that point.

Peters was wrong about convention of briefing Ministers.

[236] In summary, for the above reasons and in the particular circumstances of this case, Mr Peter’s general allegations against the fourth defendant sued on behalf of the MSD cannot succeed as the plaintiff cannot rely on the doctrine of res ipsa loquitur to overcome his inability to prove that the source of the leak was a MSD member. I also accept that the second and fifth defendants were justified in disclosing the payment irregularity and Mr Peters’ identity to the Ministers when they briefed them on the ‘no surprises’ basis. In the particular circumstances of this case, the Ministers had a proper interest in knowing Mr Peters had been overpaid NZS, that the MSD had investigated it and that he had been treated the same as any other person would be in the circumstances. The plaintiff’s claim under the first cause of action against the Crown defendants fails.

[245] The allegation that the disclosure had no purpose but to disclose the payment irregularity to a political opponent is also not made out. The evidence is clear the disclosure within the MSD and to Mr Boyle, and by Mr Boyle to Mr Hughes, and then to the Ministers was not for that purpose. Further, there is the point Sir Maarten made that it would be quite improper for a chief executive to attempt to filter information to a minister out of a concern how the minister might use it.

[250] For the reasons given above, the disclosure by Mr Hughes to his Minister was for a proper purpose and to a party who had a genuine interest in receiving it. It cannot be said the disclosure was highly offensive as it was a communication made in confidence to a Minister to whom Mr Hughes was responsible to, and the content was factual and objective.

[274] Mr Soper explained his answer on the basis that he was not saying it was not serious. Politically it was very serious, but what he was saying is that the oversight in payment was not that serious as the money had been repaid. Later in the same interview when asked “Where to from now, how politically damaging could this be?” Mr Soper answered “I don’t think politically damaging at all”. Again, Mr Soper sought to qualify that answer by noting that that statement had been made the day after Mr Peters’ statement and the firestorm had not actually begun at that stage.

[275] Mr Peter’s private information about the payment irregularity should not have been disclosed to the media. The deliberate disclosure of that private information to the media sources caused Mr Peters harm and distress, but ultimately it was mitigated by the actions he took. In the circumstances, if Mr Peters could have identified who disclosed his private information to the media then damages in the region of $75,000 to $100,000 in total might have been appropriate. This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm.

So an award of damages might have been appropriate if Peters had identified who leaked his information to media.

Summary/result

276] Mr Peters had a reasonable expectation that the details of the payment irregularity would be kept private and not disclosed to parties who did not have a genuine need to know about it or a proper interest in knowing about it. In particular, he had a reasonable expectation that the details of the payment irregularity would not be disclosed to the media.

[277] The deliberate disclosure of the details of the payment irregularity to the media would be regarded as highly offensive to an objective reasonable person.

[278] 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 were 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.

[279] The disclosure by the fifth defendant to the SSC and by both the second and fifth defendants to their Ministers were, in the particular circumstances of this case, for a proper purpose and the Ministers had a genuine interest in knowing the details of the payment irregularity.

[280] The plaintiff is unable to rely on the doctrine of res ipsa loquitur in this case to make out a claim against any of the defendants, including the fourth defendant.

[281] The plaintiff’s claims for damages and declarations are dismissed.

Costs are yet to be decided, but they usually go against the unsuccessful party in legal proceedings, so I presume that Peters may be liable for costs. If so that will cover some of what taxpayers provided to the defendants.

Peters was justified in complaining about his privacy being breached, but failed to identify the leaker. Instead he accused a number of people, but failed, and that is likely to come at a significant cost to him.

In my opinion this is an example of Peters making accusations against political opponents, sometimes claiming to have evidence or implying he has evidence, but failing to come up with evidence.

His reputation was damaged by disclosure of his Super overpayment, but I believe he has also damaged his own reputation.

The question remains as to why Peters made an incorrect claim on his Super application and failed to notice when he started receiving payments and for the next for seven years that he was being paid more than he was entitled to.

Full judgment: Peters v Bennett [2020] NZHC 761 (20 April 2020)


Newsroom 13 November 2019: Winston Peters accepts National ministers didn’t leak

RNZ today: Paula Bennett welcomes Winston Peters’ privacy court case failure (includes ausio)

National’s deputy leader Paula Bennett says her name has been cleared by the courts after – what she calls – a fishing expedition by Winston Peters for his own political purposes.

Peters claimed the leak was for political purposes and targeted Bennett and Tolley, but Bennett has now responded saying Peters took her to court for political purposes.

The proceeding was initially filed in court just before NZ First went into negotiations with National (Bennett was involved) to supposedly try to form a coalition.

 

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.

Peters in court versus Government departments and National MPs next week

Winston Peters is expected to be in court or up to three weeks beginning on Monday when his case against the Attorney-General (on behalf of the Ministry of Social Development), the ministry’s chief executive, the State Services Commissioner and former ministers and national MPs Anne Tolley and Paula Bennett.

This is over an alleged leak of details of an overpayment to Peters of Superannuation from 2010 until 2017. He received a single person’s Super but was living in a relationship.

Peters actually outed himself after journalists were given the information and started asking questions.

I’m not sure how everyone taken to court by Peters can have leaked the information.

There are a number of bizarre aspects to all this.

Newsroom:  Peters’ day job on hold as he sues the Crown

Winston Peters will take time off his day job as Acting Prime Minister next week when his high-stakes court action begins against the head of the public service, a top mandarin, a government agency and two former National ministers.

His case alleging a breach of his privacy in the leaking in 2017 of his seven-year national superannuation overpayment starts in the High Court at Auckland on Monday.

Peters’ case has moved from an initial focus against the two National politicians for leaking the details of his overpayment, to now claiming the government departments and officials breached his privacy in advising the ministers. Further, he has accused the officials of being reckless and acting in bad faith, and the Crown is defending that allegation with vigour.

This seems to have been a fishing expedition with Peters trying too discover who leaked the information. As information was provided he seems too have changed his targets.

Newsroom and Newshub were two media organisations that received anonymous calls alerting them to the overpayment and were initially subject to Peters’ legal demand to reveal phone, electronic communication records and any journalistic notes. The demand was refused and Peters abandoned that action.

Peters should have known that journalists are able to protect the identity of sources. He seemed to think he could legally bully them into revealing who provided the information.

The Deputy PM wants $450,000 in damages from each of the named defendants, meaning a total of $1.8 million if he pursues all of those monetary claims listed in early court documents.

That’s a lot being claimed. I have no idea what his chances are of getting anything like that amount. This is an unusual case so there are unlikely to be similar precedents.

Any damages awarded would be covered by the taxpayer under an arrangement authorised by the Cabinet. Taxpayers are also paying for the two Queens Counsel and legal teams.

Regardless of whether damages will be awarded this is an expensive exercise. Peters is at risk of it backfiring.

Peters has implied publicly that MSD made the error in which he was recorded on that application as single rather than in the de facto relationship with Jan Trotman that he was in at the time. Court documents show that in ‘interrogatories’ – or questions asked by the Crown in advance of the hearing – Peters acknowledged he could have received a letter in 2014 asking him to check the details on that 2010 application, but does not recall that and did not read it if it did arrive.

I doubt that not reading a letter is a solid defence for not being aware he was being overpaid.

It is odd that he received an overpayment for years without knowing it was more than he was eligible to receive.

Peters’ lawyers filed the first application in this case – featuring the various National Party figures named above – the day before the September 2017 election and he then proceeded to negotiate ‘in good faith’ with both National and Labour, before serving the papers on the National MPs and others after the Labour coalition was formed.

I suspect National knew that Peters was simply using them to push a better deal with Labour. It’s hard to see serious intent to negotiate a coalition agreement with National.

It was alleged recently that Peters had offered to drop the legal action if Paula Bennett retired from politics. That can’t be true – but if it was it sounds like a form of extortion.

In past election campaigns Peters has insisted he wouldn’t indicate which parties he would consider going into coalition with. It would be even more farcical if he tries that again next year.

Bennett and Tolley could be in the witness stand from Thursday, and can also expect to be cross-examined by Peters’ lawyer Brian Henry, a one-time advocate for the former Dirty Politics blogger Whaleoil, aka Cameron Slater.

Slater is now bankrupt, presumably owing Henry a some sort of amount for representing him (unsuccessfully) versus Matt Blomfield.

It had seemed odd that Peters’ lawyer represented Slater, and at the same time Slater promoted NZ First on Whale Oil. There is another connection there, Simon Lusk, who has used Slater and Whale Oil to promote political clients and attack opponents of clients, and is apparently now advising NZ First.

as previously indicated, this whole situation is has a number of bizarre aspects to it.

 

 

Court insists that Peters provide answers

Winston Peters is finding out that he can’t avoid answering questions in a legal proceeding – unlike his frequent fobbing off of media questions.

He has been ordered to pay “modest costs” for failing to adequately answer questions.

Peters was paid a single person rate since 2010 while living in a de facto relationship, until his partner claimed Superannuation in 2017.

Court documents have confirmed that MSD  sent Peters a letter in 2014 asking him to check the details he had supplied. Peters says that he doesn’t recall receiving the letter. He failed to answer whether he had contacted MSD after receiving the letter.

This came out in a High Court hearing last Friday.

Newsroom – Judge to Peters: Answer the questions

Court documents have confirmed New Zealand First leader Winston Peters was sent a letter by officials four years into his seven-year overpayment of national superannuation asking him to check details he had supplied, including that he was ‘single’.

He continued to receive the higher rate of superannuation for ‘single, shared accommodation’ rather than his actual ‘de facto relationship’ for three further years.

In answer to questions by Crown lawyers in a case brought by the Deputy Prime Minister to prove departments and two former ministers breached his privacy by sharing in 2017 information on his overpayment, Peters says he does not recall receiving the letter “but I do not doubt I would have received it”.

Peters had to repay around $18,000 to the ministry after the overpayment came to light months before the 2017 election, when his partner applied for her own superannuation. An unknown whistleblower alerted media but Peters announced the overpayment himself before the news could break.

The question and answer over the March 2014 letter asking him to check what he had told MSD in 2010 is included in a new judgment in the case, dealing with a Crown request for the court to order Peters to give answers.

Chief High Court Justice Geoffrey Venning has now ordered Peters to supply answers by Friday to several questions he had not adequately addressed.

He also ordered Peters to pay “modest” costs over this round of the case.

While the judge did not make Peters give further answers over his filling out and initialling of the original superannuation application from 2010, or specify for how many years before then he had been in his de facto relationship, he did order more information from the MP.

For example, the judge found Peters’ answer to the Crown lawyers’ question of “As at March 18, 2014, were you living with Ms Janet Trotman in a de facto relationship?” was “general in the extreme” and “is to be answered”.

He also had failed to answer the Crown’s question on whether he had contacted MSD after the 2014 letter.

Further, Peters had not answered if he told MSD officials at their office in Ellerslie on July 26, 2017, that his claim on his original superannuation application that he was ‘single’ was incorrect. “The question is to be answered,” the judge said.

Peters had not answered a question over whether at that meeting “you agreed that you were not and had never been, entitled to receive National Superannuation at the rate you had been receiving it (the ‘single, sharing accommodation’) rate.” The Judge said he must now answer.

The NZ First leader had also not answered a direct question of “who disclosed the issue of the overpayment of New Zealand Superannuation to you to the media?” Justice Venning said: “The question requires an answer. If the answer is the plaintiff does not know, then that should be recorded. The question is to be answered.”

This is in preparation for a full hearing due to start on 4 November.

Defendants are:

  • the former Minister of State Services, Paula Bennett
  • the former Minister of Social Development, Anne Tolley
  • the State Services Commissioner, Peter Hughes
  • the Attorney General on behalf of the Ministry of Social Development
  • the chief executive of the Ministry of Social Development, Brendan Boyle.

Peters was embarrassed by the overpayment and repaid it in 2017. His court action is airing it all again, and he is at risk of further embarrassment.

He filed court proceedings against Bennett and Tolley just before beginning coalition negotiations with National following the 2017 election.

Court decisions currently available publicly:

Peters files legal action over super overpayment leak

Winston Peters has filed  new papers over the alleged leak of his superannuation overpayments, seeking $450,000.

He has dropped journalists  Tim Murphy and Lloyd Burr from the action, as well as Bill English, Steven Joyce, former PM chief of staff Wayne Eagleson, National Party staffer Clark Hennessey and former Minister of Social Development Anne Tolley.

He has added two public servants.

ODT (NZME):  Peters back to court over super payment

…Winston Peters has begun new legal action seeking $450,000 for alleged breach of privacy in relation to the leaking of details of his superannuation overpayment, including against the Ministry of Social Development.

He is going after the chief executive of the Ministry of Social Development, Brendan Boyle, State Services Commissioner Peter Hughes, the Attorney-General on behalf of the Ministry of Social Development and Paula Bennett, the former National State Services Minister.

Hughes and the Ministry of Social Development are new targets in Peters’ legal action.

The timing of Peters’ action is extraordinary given that he about to become Acting Prime Minister in the next week or so when Jacinda Ardern takes leave to have her baby.

All targets of his action are entitled to apply to the Cabinet to have their legal fees paid – the Cabinet which Peters will be leading.

The whole thing is extraordinary.

The Peters Super leak, and how to get away with it

Documents obtained under the Official Information Act don’t reveal who leaked the information about Winston Peters’ Super overpayment (and neither has Peters despite claiming to know who did it albeit with changing targets).

But Sam Sachdeva uses the papers to show how to leak and get away with it, perhaps.

Newsroom – Inside the Peters leak: how to escape the net

During last year’s election campaign, the New Zealand First leader confirmed he had received higher superannuation payments than he was entitled to for seven years, after a number of media outlets including Newsroom received anonymous tips about the overpayment.

MSD, the Department of Internal Affairs (which has responsibility for ministerial staff) and Inland Revenue all launched investigations to determine whether their staff had been the source of the leak (all ultimately failed to find any leaker).

Copies of the final MSD and DIA reports outlining investigators’ work, released to Newsroom under the Official Information Act after months of delays, offer nothing in the way of a smoking gun but show the lengths they went to and the difficulties they encountered along the way.

Journalists love Government leakers as they can provide juicy and often exclusive stories. Sachdeva helpfully provides some helpful hints.

How to leak (and get away with it)

Handily, the documents also offer some hints on how a budding Deep Throat in waiting could share an issue of concern with their friendly neighbourhood media outlet.

Both departments relied in large part on digital records, turning to sweeps of email accounts, cellphone records and landline logs of staffers who had accessed or knew of Peters’ superannuation details.

MSD used “footprinting” of its IT systems to determine who had accessed Peters’ files and whether they had a valid business reason for doing so; that would appear difficult to circumvent, meaning a public servant wishing to share details with the media had better have a legitimate reason for knowing about it in the first place.

MSD and DIA also searched for any emails or phone calls between their staff and Newshub (which broke the story) or Newsroom (identified by MSD as an “early chaser”).

MSD’s email searches were initially based on “headline information” such as the sender, recipient and subject headline (so leakers might want to avoid putting anything too incriminating in there).

That turned up little of any value, in part due to a shortcoming identified by Jong: as searches were conducted only on records, networks and devices managed by Ministerial Services or the Parliamentary Service, he had to rely on “signed attestations” that information was not shared through other means, such as social interactions or a private device.

While Newsroom would of course advise against false declarations, that shows using a personal phone or computer – or better yet, a face-to-face encounter – may be the best way to share information while avoiding detection.

MSD also acknowledged “significant limitations” in its use of document-tracking in ministry systems to determine whether any reports had been shared with outside parties.

“A person with intent to use these documents (or remove them from the ministry) could use any number of options to remove these documents without leaving any footprint e.g. they could simply print it and walk out with it.”

We may live in a digital age, but it appears analogue methods can be best when it comes to staying off the radar.

Of course there’s a much higher risk of leaving digital footprints if using photocopiers or printers that are logged, or emails or other means of electronic communication.

Taking photos using personal devices and not sending them while at work have obvious advantages if trying to avoid detection.

Slater implications on Peters Super leak

Cameron Slater continues to make vague accusations and implications about who leaked information about Winston Peters’ superannuation overpayments, claiming to know who leaked but also saying he is unable to say who it was. Given his changing claims in reaction to news it sounds most likely to be bluster and bull.

But yesterday Slater went further with another implication, this time of his source of information.

He posted So, if it wasn’t IRD then who was the leaker

If not IRD then who?

I’ll bet MSD has the same result. That then leaves Anne Tolley, Paula Bennett, Wayne Eagleson and several staffers on the hook. If it wasn’t the civil servants then it has to be one of that lot.

That sounds like spraying around accusations without having any idea who leaked.

It isn’t that anonymous…everyone knows who did it.

If ‘everyone’ includes Slater, if he knows who did it, why is he spreading the mud around so much?

They might be able to hide behind the OIA but they won’t be able to hide behind court discovery. National are just being cute. They leaked it and that will come out. If it wasn’t IRD or MSD then it can only be ministers or ministerial staff.

Back to vague again.

As is happening more often at Whale Oil, Slater was challenged on this in comments.

WhaleOilIRDLeak

So Slater has made vague insinuations against a number of people, claims ‘everyone knows’ who did it, and then says “you don’t know what I know’.

That all sounds very lame.

Not so lame is the implication by Slater that a source of information for him on the leak is Winston Peters’ lawyer, who also represented Slater in his defamation case against Colin Craig.

Slater has often claimed to be hard up, has often asked on Whale Oil for donations to help him pay for legal expenses, has often said how expensive defamation cases are…but that’s another story.

Slater has also been pimping for Peters and for NZ First for months, and has been throwing mud at the National and Bill English and various National Ministers and MPs…but that’s largely another story too.

What is of particular interest here is that Slater has implied that Peters’ lawyer may be providing Slater “what I know” about the Super leak.

Stuff on August 28: Winston Peters has investigators working on who leaked info about his pension overpayment

NZ First leader Winston Peters says he won’t stand by and let someone get away with “blatant dirty politics” after information about his superannuation overpayment was leaked.

“Someone decided they would break the law and leak it in a political way and some of those tweets and other comments point to knowledge out there that it was malicious and politically dirty,” Peters told media following a candidates meeting in Northland on Monday night.

Peters said he had investigators working on uncovering the leak and would let the public know who it was – “I’ve got my deep suspicions”.

Peters had also implied that a number of culprits were responsible for the leak, starting with IRD according to RNZ but that has now been ruled out.

There is no indication here that Peters’ lawyer is involved in the investigation. I think it would be extraordinary that he would give details to Slater at all, and especially knowing how loose with his fingers Slater is on Whale Oil.

Would Peters himself pass on information to Slater? I think that’s doubtful too.

Peters has a history of spraying around accusations, claiming to know who is responsible for things, claiming to have facts, but often failing to front up with any evidence.

In that regard Slater is very much the same. I don’t think his implication to fact ratio is very high. He is high on dirt and innuendo, and low on credibility.

I doubt that any lawyer will appreciate being name dropped by Slater trying to sound credible.

I think it’s most likely that Slater is guessing, he has no real idea who leaked, but he is trying to sound like he’s in the know to defend his accusations to readers who challenge him on “making accusations here based on nothing substantive”.

If the leaker is revealed then both Peters and Slater will probably claim to have been right – given the number of accusation’s they make the chances are one of their targets could be close to the mark.

 

Questions over ‘no surprises’ policy

Audrey Young writes Peters’ case highlights an abuse of the ‘no surprises’ policy

No story with Winston Peters at the centre of it was ever going to be a one-day wonder.

And it just got a whole lot more serious.

There are disturbing and unanswered questions about his superannuation overpayment, whether you think he is the victim of a media beat-up, or are not willing to accept his assurance it was an error without proof.

The Government is now at the centre of the controversy after an admission by Social Development Minister Anne Tolley to the Herald.

She said she was told on August 15 by an official about MSD’s private meeting with Peters and what the subject of the meeting was – well after the meeting, well after he had paid back the money.

She was technically told under the “no surprises” policy, in which the public service chiefs and SOE boards forewarn ministers of issues that could suddenly become news and which will require their response. The “and” is important.

The fact that Tolley is unwilling to discuss the issue any further because it is a private matter is evidence enough that she should not have been told in the first place.

It is an abuse of the no-surprises policy. No minister should have been privy to that sort of information any more than the Health Minister should receive reports on any hip replacement operation Peters might have.

If Tolley had no expectation of receiving such information, she should say so publicly and conclude that the ministry’s decision was a misjudgment.

If she doesn’t, it is safe to assume that she and ministers have created an expectation they should get information like that.

This on it’s own is an important issue.

But, especially with Peters on the warpath, there are possible serious repercussions in the short term.

What Tolley did with the information is not yet clear, nor how far up the chain it went and whether National’s black ops guys are back in business.

But the very fact it was fed to the Beehive will cause suspicion by Peters that National leaked the information to discredit him.

It was obvious that some suspicion would fall on National. So if someone in National is responsible for the leak it would have been very stupid – stupid isn’t uncommon when politics gets dirty.

If National are found to be responsible, or even just widely perceived to have probably been involved, it could be very damaging for their election chances, and for their chances of negotiating a coalition with Winston Peters.

Other possibilities shouldn’t be ruled out. Because it was predictable that National would be implicated they could have been set up here.

I don’t think Winston has has embarrassed himself.

Who would do that? Who has been gunning for National and English for months?

Yesterday morning on Whale Oil Face of the Day:

But what you have here is one of Bill English’s failed hit jobs.  Leaked via Tolley, the NZ Herald has tried to make it stick.

Don’t you love election time?

Oh, and it’s not dirty politics if they don’t use blogs.

That’s an accusation yesterday that it was “leaked via Tolley”. Even if it was someone seems to have leaked that information to Whale Oil. They could just have easily leaked straight to Whale Oil.

And being unable to resist bragging Whale oil has more today: “The Herald can reveal” something Whaleoil published yesterday

It was leaked to “the media” days after it was “leaked to Whaleoil”.   We sat on it for the weekend, but first thing Monday morning, we wrote…

…what I have quoted above.

And as we know about the New Zealand Herald, first they will take the leak and make it a story and then they make the leaker a story.  Two stories for the price of one, especially when the first hit fails.  Winston ends up being the victim here instead of the villain.

God what a bunch of amateurs on the 9th floor.  Especially Eagleson.  You’d think he’d have learned a thing or two back in the day.   It seems not.

Now they are all running for cover and doing Sgt Shultz impressions.  And you know what I always say:  It’s not the original offence, it’s the cover-up that gets you.   

Anne Tolley will have been told she’ll be looked after if things get too bad.   You see, it’s never the likes of Eagleson or English that will go down for this.  Releasing private MSD information on a political opponent is a career ending move.  And Tolley was told to do it.

Whenever John Key phoned he always made sure that I was to know that if Wayne called me that he was for all intents and purposes the same as Key… He would say “When Wayne speaks he speaks for me”.

So now Tolley has been told to hang in there.  She’ll be ok.  Just  look how that worked out for Jason Ede and Todd Barclay.

She has this morning to throw Eagleson under the bus and save her career.   Doubt she will have the smarts to do it.

Bill English is causing a lot of stress inside National.  As I predicted he is effing up the unlosable election and loyalty becomes paper-thin once people feel their own jobs are on the line.

If I knew about this before the Herald did, just think about how unhappy the people around Bill must be.

Of course, I decided to sit on it for a bit.   No point helping Bill out.  He’s too busy working his way into opposition.  Attacking Winston Peters like this has all but assured a Labour/NZ First government.

And I say this without a trace of smugness or satisfaction:  you all didn’t believe me.  You thought it was personal.  I told you Bill English is exactly what you are seeing now.  He was the wrong man for the job.   And I will not vote for National while he is in charge of it.   The man is not capable of being a party leader.

His real problem is that he’s lost the confidence of his team.  I knew days before the Herald knew.  And the Herald was leaked to as well.   These are the hallmarks of a power structure crumbling and falling to dust.

Whale Oil claims it was leaked to them first and they did nothing with it. That seems out of character going by past attention seeking.

They could be right, they could have been informed before anyone else, did nothing about it and waited to let it all turn to custard, then claim bragging rights afterwards.

If so then National deserves to be dumped in disgrace.

But at this stage I would prefer to keep an open mind on who is responsible.

What is most credible?

That National would blatantly abuse privacy in a political hit job knowing the spotlight would be on them, and knowing there was a huge political risk?

Or that Whale Oil would bring down the Government they have openly been trying to undermine and destroy for years – pretty much since National cut Cameron Slater loose after Dirty Politics broke during the last election campaign.

Slater has been noticeably out of the political loop for a long time, but suddenly he claims to know everything that has happened and everyone responsible.

That flashes some warning lights to me. he has a habit of throwing around incriminating and false claims.

There’s certainly dirty politics going on here. What’s not so clear is who is actually responsible.

There is a lot to clear up here. One that could do with clarification – Tolley is MSD. Peters claims that the leak came from IRD.

Peters pursuing Super leaker

Winston Peters is trying to find out who leaked the information about him being overpaid superannuation for a number of years.

There is some irony in the king of leak-mongers getting so upset over a leak but Peters as some justification for being grumpy.

There has been a lot of speculation about who leaked and who was responsible for circulating the leak to media. Inevitably ‘dirty politics’ has been suggested.

On Monday morning in an interview with RNZ Peters, referring to a conversation with Newshub’s Lloyd Burr, said “he did drop, what I did know or did suspect but he dropped it, the informant was IRD”.

Newshub now report:  Anne Tolley given heads up over Winston Peters’ pension overpayment

Newshub can reveal Social Development Minister Anne Tolley was given an early heads up about Winston Peters being overpaid superannuation.

Mr Peters met with the Ministry of Social Development on July 15 – one month later, on August 15, Ms Tolley was alerted under the No Surprises Act.

Newshub received an anonymous phone call just three days later on August 18. Ms Tolley says the leak did not come from her office.

So it took over a week for the story to come out.

Now the New Zealand First Leader is on the warpath, sending out investigators to try and find the source who leaked he was overpaid superannuation.

Stuff:  Winston Peters has investigators working on who leaked info about his pension overpayment

NZ First leader Winston Peters says he won’t stand by and let someone get away with “blatant dirty politics” after information about his superannuation overpayment was leaked.

“Someone decided they would break the law and leak it in a political way and some of those tweets and other comments point to knowledge out there that it was malicious and politically dirty,” Peters told media following a candidates meeting in Northland on Monday night.

“I’ve been flat out, as you know, on the campaign of issues and when I’ve got time I’ll turn my mind to it, but I’m not going to stand by and let someone get away with blatant dirty politics and breaking the law.”

Peters said he had investigators working on uncovering the leak and would let the public know who it was – “I’ve got my deep suspicions”.

He has a right to try to find out who breached his privacy.

But again, it’s highly ironic that Peters is so affronted by being embarrassed by a leak, when he has so often used leaks and even hints of leaks to embarrass political opponents.

He knows how to play dirty politics as well as anyone.

Peters seemed very flustered in interviews when this story broke, and it is highly embarrassing for him, so it seems very unlikely he would have ‘leaked’ this story himself to try to get some media attention and some voter sympathy.

But when politics gets dirty nothing should be ruled out.

The Peters denial (before his admission)

In Saturday Lloyd Burr from Newshub asked Winston Peters about whether he had more superannuation than he was entitled to.

The audio is here: Winston Peters’ shifting story over pension overpayment

Transcript:

Winston Peters: “I know the circumstances, I know who the hell, who filled the form out I know all that stuff, but I don’t know why on Earth you’re making this enquiry.”

Lloyd Burr: “Well, it’s just that you’re not giving me a straight-up answer, that’s why I’m keeping on asking about it.”

Winston Peters: “I’m giving you a straight-up answer. I don’t know who the hell your informant is but he doesn’t know what day it is.”

Lloyd Burr: “So it’s a no from you. That you haven’t claimed more pension.”

Winston Peters: “No, no, no, no. Nobody is going to call me up on this one of these sort of classic questions which is ‘have you stopped beating your wife’ type stuff. No one responds to that sort of stuff.”

Lloyd Burr: “I’m not ask… I mean this is a bit different.”

Winston Peters: “In this campaign I’ve been called this that everything else and I decided I am not going to answer respond to any of this sort of crap at all.”

Lloyd Burr: “With respect Mr Peters, why are you getting so defensive about this?”

Winston Peters: “I’ve got nothing to say at all.”

Lloyd Burr: “So you’re not even going to deny it, you’re not going to rule it out.”

Winston Peters:”I’m not going to have any comment to make about people running around making malicious statements about Winston Peters.”

Lloyd Burr: “It would be wrong of me if I didn’t go to…”

Winston Peters:”I’m keeping straight on my job. I am not going to give you any answers at all.”

Lloyd Burr: “Why not? If it didn’t happen, why can’t you just rule it out?”

Winston Peters:”Simply because I’m not going to respond to malicious statements which are not true. I’ll say to you one more time real slow Lloyd, you’re not going to get any response from me at all.”

That’s classic Peters indignation and denial. However last night he changed his stance somewhat when he put out a media statement.

A Mistake That Was Fixed

Some media contacts have called to alert me about a possible story about superannuation.

“From what I can glean it is about the following:

• In early 2010 I applied for superannuation, in the company of my partner, and in the presence of a senior official at the Ministry of Social Development.

“In July of this year, I was astonished to receive a letter from the Ministry to advise there was an error in my superannuation allowance and a request that I meet with them.

“I immediately contacted and met the area manager of MSD.

“It was unclear on both sides how the error had occurred leading to a small fortnightly overpayment.

“Suffice to say, we agreed there had been an error.

• Within 24 hours the error and overpayment had been corrected by me.

• I subsequently received a letter from the area manager thanking me for my prompt attention and confirming that the matter was concluded to the Ministry’s satisfaction.

So Peters has now admitted a mistake had been made.

What he hasn’t admitted is what mistake had been made, and who made the mistake.

If this was another MP (that wasn’t from NZ First) Peters would be likely to have a quite different view of the importance of a mistake in the amount of superannuation made for (apparently) seven years, since Peters reached the age of eligibility.

It seems that the most likely reason for an incorrect payment relates to having a spouse or partner.

Clipboard03

The current online application information is clear:

SuperOnlineApplication

https://www.workandincome.govt.nz/online-services/superannuation/client-circumstances.html

The current form is also clear:

SuperApplicationPartner

Household information:

SuperApplicationHousehold

And obligations are made clear regarding partners:

SuperApplicationPartner2

There is also a Partner’s residence Form that needs to be filled out of the partner is not receiving superannuation.

Obligations are also clear regarding partners.

SuperObligations.jpg

If a genuine mistake had been made by MSD then it would have been politically smart for peters to have been up front and open about the mistake being identified and rectified.

It justifiably would have raised questions about why Peters wasn’t aware he was being paid at the same rate. Super levels is the issue that Peters has championed more than anything else so one could assume he should know what the categories and levels of payment were.

We will see what else comes out about this.


UPDATE – from Newsroom: Co-habiting Peters billed $18,000

New Zealand First leader Winston Peters took higher superannuation payments than he was entitled to for seven years – while living with his de facto partner – and has been required to pay back $18,000 to the state.

Peters filled out forms when he turned 65 that qualified him for the single person’s superannuation rate, which is about $60 a week higher in this case than a person would receive if declared to be living with a partner, which he was.

The Labour Party made clear it could not have Turei, who took benefits greater than she was entitled to, serve in a future coalition cabinet. Peters and New Zealand First are potential Labour allies.

I’m sure Labour would like NZ First taken out of the coalition equation.

Peters and partner Jan Trotman live together in a dress circle, $2.65 million St Mary’s Bay home. Her application, on turning 65, for superannuation is said to have brought the discrepancy to the Ministry of Social Development’s attention. Newsroom understands Trotman had to say if she was single, married or in a de facto relationship. The information was cross-referenced and Peters’ lack of entitlement to the sum he was receiving was discovered.

It is not clear why that higher figure was not noticed – by Peters – over all seven years, given his deep knowledge of and commitment to superannuation.

Peters disputed claims in this article but wouldn’t offer any alternative facts.