Extra public holiday proposal squashed by NZ First

The Government (or at least a part of the Government) had been considering more public holidays, but that idea seems to have been squashed by NZ First due to the extra cost to businesses already struggling from the economic impact of Covid-19.

Stuff: Government pondering extra public holidays to encourage domestic tourism

The Government is giving “active consideration” to additional holidays to get Kiwis out spending in order to boost tourism operations.

Prime Minister Jacinda Ardern said that was one idea being considered to provide an economic boost to the country’s embattled tourism sector during a visit to Rotorua’s Te Puia on Tuesday.

Asked whether, in the wake of Easter and Anzac Day falling within the earlier lockdown periods, additional holiday time was being considered, Ardern said the Government is thinking of ideas “to encourage New Zealanders to come and see their own back yards”.

“Those are things we’re giving active consideration to.”

But Winston Peters seems not to have been a part of those considerations:

Weve been asked whether NZF supports an xtra public holiday. Our answer after serious thought is – no.  NZ has just been through weeks of lockdown – in some ways an enforced holiday. We understand how Covid put business owners under real financial strain.

We know that business owners are not paying themselves so they can keep their staff going and many who are paying their bills, but not paying themselves. That is why we can’t support extra public holidays – they come at a cost to businesses and workers.

It’s another day of no production, when production is well down due to Covid. For many businesses it’s a day of no income when they need to pay their bills. Holidays are great, but it will cost small businesses, and will cost 1000s of workers their jobs – NZF understands that.

I’m surprised those considering extra public holidays didn’t understand this.

I don’t know why extra holidays were even being considered. I think that most employees would prefer to get their normal hours and normal pay back. I certainly would.

Peters claims he now knows who leaked his Super overpayment but is appealing something else

Winston Peters took a number of people to court claiming they may have leaked details about his Superannuation overpayment, but he failed to prove who had actually leaked to media.

He now claims he knows who did it, but unless he can show that the court decision was wrong based on the information it had, I don’t think he can have another crack at it, unless he targets different people.

But Peters has a record of making accusations without fronting up with evidence, so this could be a bit of an attention seeking stunt.

Stuff: Winston Peters pursues court action, claims he knows who leaked pension details

Deputy Prime Minister Winston Peters claims he knows who leaked his pension details and is pursuing court action “for all people who have had their privacy breached.”

In 2017, weeks before the general election, information showing Peters’ superannuation had been overpaid for seven years was leaked to the media.

Last year, Peters appeared before the High Court in Auckland, suing the Attorney-General on behalf of the Ministry of Social Development, the ministry’s chief executive, the States Services Commissioner and former National Party ministers Anne Tolley and Paula Bennet, alleging his privacy was breached.

The court said ruled it could not pinpoint the source of the leak, and dismissed Peters’ claims for damages and declarations.

When he released his judgement last month, High Court Justice Geoffrey Venning said Peters’ information should not have been disclosed to the media, and Peters had a reasonable expectation that it would be kept quiet.

“This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm,” the judgment read.

It stated that if Peters identified who disclosed the information, damages in the region of $75,000 to $100,000 in total “might have been appropriate.”

Peters has ruled out Bennett and Tolley.

In November, Peters acknowledged neither Tolley nor Bennett were the source of the leak.

I wonder if this is deliberately timed to coincide with National’s current leadership challenges.

His statement begins oddly, with:

“I am not persisting with this case just for myself, but for all people who have had their privacy breached.

Privacy of information is a cornerstone of our country’s democracy. Without it our society truly faces a bleak future.

We now know who the leak is.

But he doesn’t actually say what he is going to do in his statement.

However news reports say he is appealing the High Court decision. He said that proving who leaked was ‘impossible’ but he now claims to know who it was. He also says he was told be ‘media’.

He says he is appealing the law. He says the identity of the leaker is not being tested in court.

I’m very confused.

“I’m appealing the application of the law”.

Asked about having proof of who leaked but again he says that has no relevance in this situation, but he reiterates he knows who the leaker is but can’t name them.

 

Pressure mounts for National and NZ First, Greens still bordeline

The latest Reid Research poll may well be the best result that Labour and Jacinda Ardern get unless the transition out of lockdown and getting the economy up and running again goes smoothly.

But with National on 30% and Simon bridges dropping to 4.5% as preferred Prime Minister the pressure continues to build over leadership, and also for survival for many National MPs.

If National drop to around 30% in the election in September they are unlikely to get any list MPs back into Parliament, and their may be an overhang with their electorate MPs possibly adding up to more than their MMP proportion of votes.

Bridges has sometimes seemed ok but often comes across poorly. The key reason why there are not challengers queueing up is that no one else wants to become leader facing likely defeat.

However the risk with keeping Bridges on is that he could drag National down further, which would be bad for list MPs and MPs in marginal electorates wanting to keep their jobs.


NZ First have not polled over 5% this year in published polls, and slipped to 2.7% in the latest.

Winston Peters hasn’t even featured on ‘preferred Prime Minister’ coverage of the latest poll.

It’s unwise to count NZ First out before an election but they have been dumped before while in Government, in 2008. Each recovery mission must be getting harder for Peters and riskier for his party.

With Labour polling over 50% they wouldn’t need NZ First even if the latter survives the election. Challenging times for Peters.


Greens made the cut, just, getting 5.5%, but they have been struggling to keep over the threshold in polls and they are openly struggling to get donations.

Labour’s popularity may benefit the Greens as long as it doesn’t suck oxygen and support from the minor party.

Not having a single strong and prominent leader works against the Greens beyond their core of dedicated supporters.

And on current polling Labour wouldn’t need the Greens to form a Government. Even if they formed a coalition the Greens are likely to be in a weak bargaining position.


A lot could happen over they next four months, and political support can evaporate as quickly as it can build.

But as Covid continues to dominate the news and public attention, and as Ardern continues to receive adulation and deserved praise, voters may ignore the inadequacies of some of her ministers and keep dishing out support.

National came close but always failed to get enough votes to rule alone under MMP.

In the current circumstances and with current levels of support Labour and Ardern look to be in the strongest position of any party to win a majority alone.

Peters confuses funeral and venue gathering rules, suggests the death of the hongi

When asked about the limit of 10 people able to gather for funerals or tangis, Winston Peters confirmed the need for that rule – those sorts of gatherings usually involve a lot of close contact.

But he then created some confusion  among journalists when asked if groups of ten people could then go to a wake at a venue that provided foot (from Thursday) or a bar (from next Thursday). He said that that was within the rules. It seems to be different to what Jacinda Ardern said yesterday.

Peters seemed to differentiate between a hundred people going to a hall after a funeral and a similar number gathering on a marae. He also question whether a hongi “will ever come back again”.

Question: What’s your message to people who are pointing out inconsistencies with the Level 2 rules, saying a hundred people if they’re in groups of ten can go to a restaurant for example, or a cinema, but they can’t attend a tangi or a funeral?

Peters:  …the number one desire of people who attend a tangi or funeral is to emotionally connect by embracing and other ways of making a connection…for once I heard from an industry that understood why the health department and the government is concerned. And we hope to get out of that situation as fast as we possibly can.

But right here right now the funeral circumstance is so difficult.

Now it’s possible to go to a function after the funeral to a hall and sit down with a hundred people, spaced properly if you follow the three ‘s’ rule, a but having it right on site at the side of the burial place with more than ten people just seemed to all the advisers to be so difficult.

Question: So you’re saying that people can go to a hall after a small kind of funeral or tangi of ten people, they could go to a hall with a hundred people if they were properly distanced…

Peters: Properly distanced, ten at a table, served by one person in each case at each table, that’s possible.

Question: My understanding from the Prime Minister yesterday was that all groups had to be under ten but are you saying that you could have a group…

Peters: No, ten or less.

Question: So you’re saying you could go to a hall with a hundred people and hold a kind of off-site funeral or wake?

Peters: No, you can have the aftermath, the Irish style so to speak, or the Scottish style, and be within the law.

Question: So why is it any different from having a hundred people at a marae for example.

Peters: Because the Marae circumstance is much more closed in. The distance rule would be impossible to keep. I mean one of the things you have to have regard for is whether the hongi in these circumstances is ever going to come back again, because it’s just the nature of things, and there’s a famous old saying that says “Cultures that don’t adapt die”, and we’ve got to be so so careful.

Peters seems to be saying that an Irish or Scottish style after-funeral gathering is fine, but a a Maori style gathering is forbidden.

Question: ..saying it would be up to Iwi whether hongi was reintroduced, are you saying it shouldn’t be?

Peters: I’m just putting out there into the Maori world, to say that cultures that don’t adapt die. Our lives and our old people’s lives in particular are on the line here

The lessons from the Spanish flu were catastrophic. The percentage of Maori dying was eight times that of Europeans, and we were down to fifty thousand people at the end of it.  Now there’s a past lesson.

The present one now, and in terms of colds, flus, influenza and Covid-19, it surely makes sense for us to consider it.

Question: I’m somewhat confused about this gathering of a hundred people, because the Prime Minister was really clear yesterday it had to be a cap of ten people.

Peters: Well it’s very unlikely that any one family will go to a funeral with more than ten people…

Question: …there’s people out there who are upset because they’ve waited until level 2 to hold a tangi or funeral who are waiting to make that decision, and they thought from what the Prime Minister was saying yesterday was that they couldn’t have a gathering of the hundred people but you’re now saying that they can.

Peters: Not at the funeral itself, but at the wake they could organise it, whether they go to a restaurant or organise it under the same guidelines that are capable of being attested to and examined. It’s for their own safety.

And that’s a fact. When families go to a funeral they don’t always go en masse the right amount of (relatives?) to show the right amount of respect.

Jacinda Ardern when she announced moving to Level 2:

Gatherings at home, need to be capped at 10. Church and religious events, weddings, funerals, stag dos – all must be limited to 10 for now.

And if you’re wanting to head to a restaurant, or a bar, they won’t be able to take group bookings larger than 10. This, alongside social distancing, is our insurance policy.

And why 10? Simple. If something goes wrong with a group of 10, that’s much easier to contain, much easier to contact trace, and much less likely that if something goes wrong that the whole country will have to experience more restrictions.

I expect we will here more of this.

Ardern is just answering questions about the funeral limitation now at the daily update.  She starts by saying how hard it is on people who want to have funerals.

She has been asked about 100 people wakes and Cabinet having different messages and she avoids answering the question directly and goes into a general spiel.

They considered a different way of dealing with funerals and tangis but “it was just very difficult to find a way”.

Ardern keeps reiterating the ten person group limit.

Source for Peters (around 15-19 minutes).

Peters responds to court dismissal of claims over privacy breach

On Monday Winston Peters claims for damages and declarations against five defendants, including two MPs (Ministers at the time of Peters’ Super over payment leak) and two Government Department heads were dismissed by Venning J in the High Court due to no evidence identifying who was responsible for the leak.

Peters has responded via Statement From Rt. Hon. Winston Peters – New Zealand First Leader

Winston Peters has acknowledged the ruling by Chief High Court Judge Geoffrey Venning.

“Every New Zealand citizen is entitled to their privacy. This case has caused considerable stress. “It is seriously welcome to see that Justice Venning confirmed that this was a deliberate and malicious breach of privacy done with the intent to damage my reputation and cause harm.

“This was always going to be a difficult case because as the decision points out despite evidence of malicious behaviour we had to prove who did it. Our values, human rights and democracy have privacy as their foundation stone. On this matter the decision of the court was very encouraging.

“While we are disappointed we could not prove who deliberately leaked that data, the ruling makes clear MSD contributed to the error. We hope that MSD reflect on their role in this matter. As the holder of extraordinary amounts of individuals data, it is paramount they take appropriate steps to safeguard New Zealanders’ privacy.

Justice Venning ruled:

  • This was a deliberate breach of his privacy with the intention of publicly embarrassing him and causing him harm.”
  • “the person(s) who provided the information to the media did so deliberately and it seems, at least in relation to dealing with Newshub, did so maliciously and with intent to damage Mr Peters’ reputation by referring to him as “lying” when he applied for NZS as single.”
  • 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.

This looks to be a reasonable concession and summary of the judgment.

There have been some suggestions Peters may appeal but there is no sign of that in this statement.

But it isn’t over yet – costs are still to be determined. From the judgment:

Costs are reserved. If counsel are unable to agree, costs will be dealt with on the papers.

Costs are usually awarded against unsuccessful litigants, but this is an unusually case – the defences were funded by the Government/taxpayer, and they were substantial.

1 News: Winston Peters urged to reimburse taxpayers the $1.2 million spent on his legal fees for failed privacy lawsuit

1 NEWS can reveal taxpayers forked out more than $1.2 million defending those Mr Peters accused.

The figure comes after senior National Party politicians and Government officials stood accused of leaking Mr Peters’ superannuation overpayments to the press.

The Deputy Prime Minister paid his own lawyer but taxpayers footed the bill for the defence according to Crown Law.

That’s a huge cost for a case that fell over on no evidence of who was responsible for the leak.

Paula Bennett:

“I had no idea it was high as $1.2 million. I think he should be having a really good look at having to pay that back to taxpayers – when on all counts he has failed.

1 News also asked a handful of people on the streets of Wellington what they thought but that means next to nothing.

However, Victoria University legal expert Eddie Clark thinks the case was important.

“It’s something that should worry all of us, it could be our information being leaked to ministers or given to ministers and mysteriously finding its way to the media,” he said.

Clark doesn’t sound very expert on the case, the judgment found that ministers were legitimately given the information, and there was no evidence that the leak happened via the ministers.  It could have leaked out of at least two Government departments, or from Peters or whoever he may have told (that seems very unlikely).

Also Paula Bennett says Winston Peters should stump up for Crown’s legal costs over failed court action

Bennett and Peters have been feuding politically for years.

Winston’s partner problem

Winston Peters was found by a High Court judge to have contributed to an unclearly filled out form and an incorrect amount of Super being paid to him for seven years.

The judge found it was a mistake and not deliberate deception on Winston’s part (I think that’s a fair assessment on the evidence available), but I think it was quite careless, on three counts.

The incorrectly completed form

The question is: Do you have a partner?

To the left of the question is this text:

Partner

Q26 note: A partner is your spouse (husband or wife), your civil union partner, or a person of the same or opposite sex with whom you have a de facto relationship.

We need partner information even if your partner is not being included because it affects your rate of pay.

Whether or not Peters read the clarifying note,  I think that most people would regard a person they were currently living with in a de facto relationship as their partner, and not someone who they had lived with at some time in the past, whether still legally married to them or not.

The judge found:

At the time, Mr Peters was living separate and apart from his former wife (they were not divorced). His answer to the subsidiary question was therefore literally correct. He was living apart/separated from his wife. But he had a partner, Ms Trotman. The form, as completed, was actually incomplete as the primary No/Yes response was not completed. The form should not have been processed as it stood. Mr Peters should have completed the primary question, and Ms S should have asked him to complete the answer to the primary question, rather than leaving it incomplete.

I won’t argue with “literally correct” from a legal point of view, but from a social point of view it seems quite wrong.

I can’t imagine Peters introducing Jan Trotman in a social setting as “this is who I’m shacked up with, but the person I left x years ago and haven’t gotten around to divorcing yet is literally my partner’.

According to this article “Trotman has always been protective of her privacy. When the couple bought their three-level five-bedroom St Marys Bay villa in 2008” – so they had been partners at least two years before the Super application.

Peters made another mistake on the form in two later questions:

33. Do you want to include your partner in your New Zealand Superannuation?

34. Is your partner receiving a current benefit?

The judgement says:

Mr Peters had ticked “No” in response to both questions but then the tick has been crossed out and “Yes” has been ticked.

I accept the evidence of Ms S that Mr Peters must have crossed them out. I do not place any weight on the fact they were not initialled as the other alterations to the form were initialled. Mr Peters’ attempted reliance during cross-examination on the fact he had not initialled the alterations to suggest the form could have been filled in by Ms S, not him, was a clear case of post fact reasoning and contrary to his earlier evidence-in-chief when he said he had completed the questions in issue.

Peters had tried to blame the WINZ staff member for this. It was inconsequential but another mistake.

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. Mr Peters’ apparent failure to read the explanatory note to question 26 which set out the definition of partner contributed to the error. The combination of errors led to Mr Peters receiving NZS at a higher rate than he was otherwise entitled to.

You only get to apply for Super once in your lifetime so I think most people would take care to get things right. Peters got more than one thing wrong. It just seems careless.

Not noticing he was being paid more than he was entitled for seven years 

I think that most people applying to get a significant amount of money regularly for the rest of their lives will work out what they expect to receive. And if they end up getting something different to that amount, they would find out why.

Peters may have not checked it out and may not have cared how much he got, but I think that seems quite unusual.

The current difference (it would have been less but proportional in 2010) per fortnight after tax (what you see credited to your account) is $782.44 (live with someone 18 or older) and $652.04 (a couple when only one of you meets the criteria for NZ Super and you don’t include your partner in your payments). This presumes Peters wasn’t being paid at the higher rate which is currently $847.66 (live alone or with dependent child).

I think most people would notice that sort of difference in amount.

Disregarding or not understanding a letter after four years asking him to confirm his status

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.

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.

This sounds contradictory.   I don’t know how Peters can have no no recollection of the letter, but can remember what he understood about the letter (past tense).

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.

The judge appears to assume Peters did see the letter but didn’t pay enough attention to it. If Peters did pay any attention it should have been obvious that “You are single.” was incorrect. There’s no way of knowing what Peters actually did or thought pr paid attention to, and it seems he can’t be relied on to be accurate (it was five years before the trial so most memories would struggle with one letter).

Mistakes were made by a number of people, but multiple mistakes were made by Peters filling the form out in 2010, and again with the letter in 2014 (at least a mistake of ignoring it or not paying attention to it).

Not noticing the incorrect amount for seven years may have just been someone with more money than they need already getting a bit more off the taxpayer and not caring how much it actually was.

I’m sure I would be quite unpopular with someone if I referred to someone I had separated from some years ago as my partner.

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.

 

No hunting and fishing under Level 4 restrictions

A NZ First tweet yesterday suggested that “hunt the roar” (deer hunting) was an allowed activity during the Covid-19 Level 4 lockdown, but that has been ruled out.

The tweet, now deleted, had graphics depicting hunting and said:

“Having to self-isolate doesn’t necessarily mean being locked indoors. You may go for a walk or exercise or hunt the roar, but keep a 2 metre distance from people at all times.”

If allowed that would have given many people an excuse to roam the countryside as long as they had firearms, while everyone else was confined to home or nearby.

Covid-19 Alert Level 4 states:

Public spaces

  • Places where the public congregate must close.
  • All bars, restaurants, cafes, gyms, cinemas, pools, museums, libraries, playgrounds and any other place where the public congregate must close their face-to-face function.
  • Playgrounds are classed as an area where people congregate and so are off-limits.
  • People can exercise outdoors but must maintain a two metre distance from others.
  • People are expected to stay local when leaving the home.

Recreation or exercise

  • You can go for a walk, run, or bike ride. Exercise is good for people’s mental health.
  • If you do, it must be solitary, or with those you live with.
  • Keep a 2 metre distance.
  • However, if you are unwell, do NOT go outside.
  • DOC has closed all its campsites and huts.
  • Do not go hunting or hiking, and especially not on overnight trips.

The day before the NZ First tweet NZ Fish & Game posted under Covid-19 Information:

5.10pm 24 March

The Government’s clear intention at this stage is that fishing and hunting are prohibited during the Alert Level 4 lockdown period. If and when we receive other advice from the Government we will change our position.

Therefore, Fish & Game New Zealand are urging all anglers and hunters to do the right thing and stay at home while New Zealand is at COVID-19 Alert Level 4.

“Unfortunately, being at Level 4 means that anglers and hunters aren’t able to do the pursuits that they love,” Fish & Game New Zealand Chief Executive Martin Taylor says.

“The advice we have is that at Alert Level 4 anglers and hunters should not undertake activities that expose them and others to higher levels of risk. We are also advised that DOC huts and campsites are closed as they do not meet minimum separation requirements.”

New Zealand Search and Rescue (NZSAR) is asking people to stick to simple outdoor exercise and avoid areas where they could get lost or require search and rescue. NZSAR want to ensure that emergency services are available to help those in the greatest need. Fishing and hunting, even close to home, inherently carry a degree of risk and it is important for anglers and hunters not to further burden our emergency services and healthcare system. Staying in and around home is simply the right thing to do.

“It is heart-breaking to not be able to spend time in the outdoors, especially as for many of us this is our main way to destress, but we all have our part to play to beat COVID-19,” Mr Taylor says.

“The point of the next four weeks is to kill the virus in New Zealand so that life goes back to normal as quickly as possible. Let’s stay home for four weeks then we can get outdoors and back into angling and hunting.”

The Level 4 lockdown period is scheduled to end prior to the start of the game bird season, and if we are all responsible during the next four weeks the game bird season is on.

We ask for your patience while we piece together the complexities of what we are facing. In particular, we will have further advice on pegging day as soon as possible.

It is our intention to give anglers and hunters ongoing updates on our facebook page and website.

Please keep up-to-date with all the most recent Government guidance around COVID-19 here

If hunters and fishers were allowed to roam where ever they liked, which would often have involved travel first, it would have encouraged others to push limits and it could easily have become an unmanageable farce.

It would also have potentially been dangerous, as if they were to comply with requirements to keep isolation within households many hunters and fishers would have had to hunt and fish alone.

Last night NZ First changed their Facebook profile picture to:

and a Winston Peters video reinforces this message:

Ardern and Government deserve praise for handling of Covid-19

We, New Zealand and the World, are facing unprecedented health and financial crises. There will be valid criticisms of the way things are handled in a rapidly changing situation, with over 10,000 deaths so far but potentially millions of fatalities from the Covid-19 coronavirus.

Leaders and Governments are having to do their best in a very challenging environment.

People are uncertain and uneasy, understandably. There are valid fears for lives, for livelihoods, for life savings and for ways of life. Some New Zealanders will die, many will lose jobs lose earnings, lose part or all of their life savings. All of us will have to change the way we live, for months at least and probably for years.

Prime Minister Jacinda Ardern can be a very good communicator when she is well informed and not doing politics, and as she did dealing with last year’s mosque massacre and the Whakaari/White Island eruption, she has again risen to the occasion and I think is doing a very good job keeping us informed in an assuring manner. She excels at fronting crises.

It is hugely challenging getting the balance right between timely and appropriate actions, and over-reactions. I think the Government is largely getting things about right with it’s response to the virus, with the initial financial package, and with it’s messaging.

There were one or two communication missteps early on but they seem to have been resolved.

Deputy Prime Minister Winston Peters has done ok in a support role.

Minister of Finance Grant Robertson has managed finances prudently to date and seems well advised and is acting appropriately in the evolving crisis.

Minister of Health David Clark is not as good a communicator, seems to lack confidence (in a very difficult role) and can seem out of his depth a bit, but he is being covered by others.

Director-general of health Dr Ashley Bloomfield is doing an extraordinary job with daily media conferences, calmly keeping us well informed. He is a huge asset.

I think if National were in Government they would be doing much the same things as our Labour-led Government are.  New Zealand is taking very similar measures to the right wing Australian Government. Times like this need expert advice and common sense, not political idealism.

Leader of the Opposition Simon Bridges has tried to get holding to account balanced with support of the Government in a crisis, but his communication skills and manner aren’t great (unfortunately grate would be closer to the mark). He has been overshadowed by finance spokesperson Paul Goldsmith, who yesterday backed the Ait New Zealand support package announced by the Government, and also to an extent health spokesperson Michael Woodhouse.

Greens are doing their thing but are more working with their own constituencies and from the sidelines, publicly at least.

There are some in media and social media who haven’t been able to put politics and prejudices aside, and there are some who seem to think they have better information than the Government and are giving advice and demanding different actions. I trust our Government to be largely on top of things, and have confidence we are being well enough informed. I am resisting criticising and naming the petty and the pissy.

The Government won’t get everything exactly right (in retrospect at least), but I have confidence we have our Government and MPs are doing everything they can to deal with the huge challenges currently facing us. There is scope for valid and reasonable criticisms, but petty politics should be set aside.

We should trust our Prime Minister and our Government and our Opposition to inform us and do what they can for us. I think we have to.

I’m doing quite a bit of research and am following things closely, and I am confident we are being well informed and reasonably warned about what is likely to happen. There are many unknowns, but we have to trust our leaders and Government on this, while doing things for ourselves as well.

We have to work together in families and communities to support each other through this. More on that in the next post.

Pike River re-entry costs jump again but no sign of body recovery

Pike River Recovery Minister Andrew Little has announced that Cabinet has approved of further funds “to complete the project”, but failed to mention a key figure – the total cost.It had already been raised substantially to $36 million “plus some capital expenditure” in 2018, but that has now been raised another $10.8 million as well as a $4.2 million contingency, bringing the total up to a possible $51 million.

And that is just to get as far as the rockfall in the mine, which is probably nowhere near most if not all of the bodies so recovery looks as unlikely as ever, despite the hope given to the families of some of the victims.

Beehive: Final costs for Pike River recovery released

Following the standard process of first communicating to the families, Pike River Recovery Minister Andrew Little has confirmed that Cabinet has approved final funding for the completion of the Coalition Government’s commitment to the Pike River recovery.

Andrew Little also confirmed that, as has been the scope since the start of the project, the recovery effort will not be going beyond the end of the drift and into the main mine workings.

“The Coalition government remains committed to the safe and successful recovery and forensic examination of the Pike River drift. It is important to promote accountability for what happened, to inform the ongoing criminal investigation into the tragedy, and to help prevent future tragedies,” Andrew Little said.

“The Pike River Recovery Agency now expects it will most likely be possible to complete recovery work underground by July/August of this year and hand the mine over to the Department of Conservation for ongoing management by the end of the year. Cabinet has approved a further $10.8 million to complete the project as well as a $4.2 million contingency,” Andrew Little said.

But there is no sign of there being any chance of body recovery. A cabinet paper details they original aimed to do…

…and what they now expect to achieve:

December 2016: Winston Peters pledges to be first to re-enter Pike River mine

To chants of “Winston for Prime Minister,” New Zealand First leader Winston Peters offered to be the first to go back into the condemned Pike River Mine.

Peters was speaking at a rally of some of the Pike River families and their spokesman Bernie Monk who came to Parliament to push their case for re-entry into the stricken mine.

He says he’s read some of the safety reports on Pike River and, like the families, believes it’s now safe to return.

January 2017: Peters meets with Pike River families

Yesterday, Mr Peters met with the families at the picket line near the site’s entrance, and he will meet with them again today at a public meeting in Greymouth.

Mr Peters said he wanted to show the families he would not ignore them, and supported them completely.

“The political system has shut them down, ignored them and has done its best to raise the suspicion that someone’s involved in a cover-up here. Otherwise, why did Solid Energy buy Pike River Mine and why do they want to seal it up for ever?

“Now these families want justice, they want peace of mind, closure, and it could be done if the government was acting in the way it should be doing, and in the way it promised.”

He said he supported the Pike River families who wanted to re-enter the mine, and reiterated his earlier vow not to agree to a coalition with any party that did not hold the same view.

Peters didn’t specifically mention body recovery, but that’s what ‘closure’ means to some people.

Prior to the 2017 election Cross-party agreement pledges a reentry of Pike River Mine

Jacinda Ardern says a Labour Government would reenter the Pike River Mine.

The leaders of Labour, United Future, the Maori Party and the Green Party signed a commitment in Wellington on Tuesday to reenter the West Coast mine.

“Re-entering the drift will mean we can recover some of the men, and evidence of the cause of the explosions. That will help deliver justice and answers, and bring the men home to their families.”

Families of the Pike River victims say they are “over the moon” with the cross-party agreement for an agency to take ownership of the mine and reclaim the drift to recover remains and evidence.

This obviously raised hopes and expectations of families.

The Labour-NZ First coalition agreement merely stated “Commit to re-entry to Pike River”.  They followed through on this, to an extent – Andrew Little enters Pike River portal

Minister Responsible for Pike River Re-entry Andrew Little, and Pike Family representatives Anna Osborne and Sonya Rockhouse have entered the Pike River Mine portal.

“Today we walked together into the mine portal to demonstrate a safe re-entry is possible. I made the emotional journey with representatives of families who have fought for years for re-entry.

“In our first 100 days the Coalition Government handed the keys to Pike River Mine to the families, and established Te Kāhui Whakamana Rua Tekau Ma Iwa Pike River Recovery Agency. In the 11 weeks since the Agency was created we’ve made real progress on safe re-entry. Today proves that.

“Again, I’d like to acknowledge all the families who are working in partnership with me and the Coalition Government. We owe it to those families to re-enter the drift and retrieve evidence and the remains of their loved ones,” says Andrew Little.

In May 2019 when re-entry began from Winston Peters: Long awaited re-entry to Pike River Mine

Today’s successful re-entry into the Pike River Coal Mine is a victory for the families who are fighting tirelessly for answers, says New Zealand First Leader Winston Peters.

“Re-entry into Pike River is about justice. It’s about finding out the truth, and it is about doing what’s right for the families of those 29 men,” Mr Peters said.

“On the 13th of December 2016 New Zealand First promised those families that we would re-enter Pike River Mine. It is with solemnity that we deliver on a that promise today,” he said.

Re-entry into Pike River Mine was a bottom-line commitment for New Zealand First, and was entrenched in the Labour-New Zealand First Coalition agreement.

“Today is a milestone for those families. The previous government showed so little courage and completely disregarded the need for accountability.

“We have shown today that going back in was possible and could be done safely,” said Mr Peters.

Yesterday Pike River mine: Entry tunnel recovery cost soars to $47 million

Pike River mother Sonya Rockhouse said the re-entry project, and the evidence it would unearth, was the best chance families had to see someone held to account for killing their men.

“People ask me why so much money is being spent, to me it’s quite simple: it’s being spent to try to solve the mass homicide of 29 men. We can’t be a country that refuses people justice because it costs too much,” she said.

There has been no indication of evidence unearthed so far.

Bernie Monk has battled for nearly a decade to get his son Michael back and to see somebody held accountable for his death.

For him, the news that no assessment will be made of whether the main workings of the mine can be entered means his battle is a long way from finished.

“How can they make this call when the whole idea was to go down 800m – it’s never been investigated – [to] make a call before we even get there,” Monk said.

So the $51m looks unlikely to get Bernie Monk what he wants.

Stuff: Government approves another $15m for Pike River recovery

Pike River widow Anna Osborne said the Government’s plan to close the door on reentry of the mine workings was “premature”.

“It seems a bit odd to say no to that before we have got to the end of the drift and assessed whether reentry of the mine workings is needed or even possible,” she said.

She called for other families to campaign for reentry of the mine workings.

Anna Osborne wants re-entry to the mine workings, not just to part of the access tunnel. There seems to be no scope to achieve this.

Rowdy Durbridge, whose son Dan died in the mine, said he was proud of what the families had achieved for their boys.

“I had family and mates die in that mine. I worked beside them down there and I’ve felt a responsibility to them ever since,” he said.

“That’s feeling’s never going to go away but having fought and won drift reentry and the investigation of their deaths, that’s something I think me and the families and a whole lot of Kiwis who believe in justice can hold our heads high about.”

There is no sign of what accountability and justice might achieve.