WINSTON RAYMOND PETERS v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OF SOCIAL DEVELOPMENT [2020] NZCA 649

WINSTON RAYMOND PETERS v THE ATTORNEY-GENERAL ON BEHALF OF THE MINISTRY OFSOCIAL DEVELOPMENT [2020] NZCA 649 [14 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA254/2020[2020] NZCA 649BETWEEN WINSTON RAYMOND PETERSAppellantAND THE ATTORNEY-GENERAL ON BEHALFOF THE MINISTRY OF SOCIALDEVELOPMENTFirst RespondentAND BRENDAN BOYLESecond RespondentAND PETER HUGHESThird RespondentCourt: Miller and Courtney JJCounsel: B P Henry and A R Kenwright for AppellantV E Casey QC, J N Wills and SPR Conway for RespondentsJudgment:(On the papers)14 December 2020 at 11.30 amJUDGMENT OF THE COURTA The respondents' application to adduce fresh evidence is granted on aprovisional basis and will be determined with the appeal.B Mr Peters has leave to file evidence in response, on the same basis and by5 February 2021.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] The appellant, the Rt Hon Winston Peters, has brought an appeal against ajudgment dismissing his claim for damages for breach of a reasonable expectation ofprivacy.1 Venning J accepted that Mr Peters had a reasonable expectation of privacyas regards details of an accidental overpayment of his national superannuationentitlement, and that deliberate disclosure of those details would be regarded as highlyoffensive to an objective reasonable person. The claim failed because he concededthat first and third defendants in the High Court, Paula Bennett and Anne Tolley,2 didnot leak the information and he was unable to establish that any of the respondentswere responsible for it.[2] In the appeal, which is to be heard in April, Mr Peters will contend thatthe respondents are estopped from denying that Ms Tolley and Ms Bennett werethe source of the leak, that the information can only have been leaked by a staffmember for whom they were responsible, and that he may rely upon the doctrine ofres ipsa loquitur to relieve him of the obligation of proof.[3] Before us is an application by the respondents for leave to adduce furtherevidence on appeal.3 It takes the form of an affidavit from Lisa Wallbank attachingmedia reports of interviews with Mr Peters subsequent to the delivery of the judgmentunder appeal. In those reports Mr Peters is quoted saying that he knows who the leakerwas but he had sworn to keep that person's name confidential. The respondents saythat the evidence is fresh and relevant and they claim that its accuracy is notcontentious.[4] In his notice of opposition Mr Peters responds that the proposed new evidencerelates to an issue that the respondents chose not to contest in evidence at trial, theevidence is a mere media statement of no probative value and amounts to no morethan general comments about Mr Peters beliefs, and the evidence is "not contrary toaspects of the notice of appeal".1 Peters v Bennett [2020] NZHC 761.2 These respondents have not been included in the appeal.3 Under r 45(1)(b) of the Court of Appeal (Civil) Rules 2005.[5] We are satisfied that the proposed evidence should be admitted de bene esse;that is, provisionally pending a final decision when the appeal is heard. We can stateour reasons shortly.[6] First, we accept that the evidence is fresh, credible and cogent. It sufficientlyevidences admissions by Mr Peters that he knows who leaked the information.His information may be hearsay, but it is nonetheless cogent having regard to thegrounds of appeal.[7] Second, the evidence is relevant because, as the respondents contend, it bearson Mr Peters' grounds of appeal. He asserts that the Ministry of Social Developmentwas the source of the leak, that he cannot be expected to identify the leaker, that he isentitled to rely on the doctrine of res ipsa loquitur, and that it suffices to establishvicarious liability on the part of the Crown that he is able to identify a group of peoplewho knew the details of his superannuation overpayment, without needing to identifyan individual wrongdoer. As noted, his claim failed at trial because he did not identifythe source of the leak.[8] Third, Mr Peters submits that the new evidence is not supplementary tothe evidence at trial and it would be impossible to fairly evaluate it against theevidence already taken; in effect, it would require a retrial of the action. He alsomaintains that evidence on the topic was unchallenged at trial and the respondentscannot challenge it now. There may be some force in these arguments, but we are notable to say they are correct. A decision will require close analysis of the evidenceagainst the trial record, with the benefit of full submissions. For that reason, thesearguments will have to be assessed by the panel on the hearing of the appeal.[9] We record that the parties agree no question of parliamentary privilege ariseswith respect to this evidence.[10] Mr Peters has leave to file evidence in response, on the same basis and by5 February 2021.Solicitors:Clifton Killip Lyon, Auckland for AppellantCrown Law Office, Wellington for Respondents