PETERS v ATTORNEY-GENERAL SUED ON BEHALF OF MINISTRY OF SOCIAL DEVELOPMENT [2021] NZCA 355

PETERS v ATTORNEY-GENERAL SUED ON BEHALF OF MINISTRY OF SOCIAL DEVELOPMENT[2021] NZCA 355 [2 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA254/2020[2021] NZCA 355BETWEEN WINSTON RAYMOND PETERSAppellantAND ATTORNEY-GENERAL SUED ONBEHALF OF MINISTRY OF SOCIALDEVELOPMENTFirst RespondentBRENDAN BOYLESecond RespondentPETER HUGHESThird RespondentHearing: 20–21 April 2021Court: French, Collins and Goddard JJCounsel: B P Henry and A R Kenwright for AppellantV E Casey QC, N J Wills and S P R Conway for RespondentsJudgment: 2 August 2021 at 11.00 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The appeal is dismissed.C The appellant must pay the respondents one set of costs for a standardappeal on a band A basis, with usual disbursements. We certify for secondcounsel.____________________________________________________________________Table of contentsPara NoMr Peters' claim for interference with privacy [1]Mr Peters receives a superannuation overpayment [1]Ministers are briefed [3]Anonymous leaks to the media [5]Mr Peters brings High Court proceedings [6]The appeal to this Court [8]Background [13]Mr Peters applies for NZS and is paid at the single rate [13]The overpayment is discovered [18]Mr Boyle briefs the State Services Commissioner and his Minister [19]Mr Hughes briefs his Minister [23]The Ministers' involvement [27]Internal investigations by MSD and Department of Internal Affairs [36]Evidence from journalists [39]The claim before the High Court [41]High Court judgment [46]The test for invasion of privacy [46]Applying the test [48]The claims against the Ministers [52]The claims against the Chief Executives and MSD [61]Affirmative defences [70]Damages [73]Issues on appeal [74]Issues raised by Mr Peters' appeal [74]Further issues raised by the respondents on appeal [79]Application to adduce further evidence [83]Protection of privacy under New Zealand law [88]The emergence of the tort of invasion of privacy [98]A reasonable expectation of privacy [106]The "highly offensive" requirement [111]Publication to whom? [116]Communication of information in which there is a legitimate interest [119]The nature of the relationship between a chief executive and a Minister [123]Claims against Mr Boyle and Mr Hughes: statutory immunity [144]Vicarious liability of chief executives? [151]Did Mr Peters have a reasonable expectation that his privacy would beprotected from disclosures within MSD and/or to Ministers? [155]Framing the reasonable expectation test [158]The scope of Mr Peters' reasonable expectation of privacy [169]Disclosures within MSD [172]Disclosure by Mr Boyle to the Minister for Social Development [175]Disclosure by Mr Boyle to Mr Hughes [180]Disclosure by Mr Hughes to the Minister for State Services [181]Disclosure by Mr Nichols to Mr McLay [182]Is MSD liable for public disclosures on the basis of res ipsa loquitur? [189]Other issues [198]Result [203]REASONS OF THE COURT(Given by Goddard J)Mr Peters' claim for interference with privacyMr Peters receives a superannuation overpayment[1] The Right Honourable Winston Peters is a well-known New Zealandpolitician. He is the leader of the New Zealand First Party. He has held manyMinisterial offices, and has served as Deputy Prime Minister. Mr Peters has a highpublic profile, but he has always sought to keep his personal life out of the public eye.[2] In April 2010 Mr Peters began receiving New Zealand Superannuation (NZS).He should have been paid NZS at the partnered rate, which is lower than the singlerate. But errors (not involving any fault on Mr Peters' part) led to NZS being paid tohim at the single rate. The overpayment was discovered in 2017. Mr Petersimmediately arranged for the overpaid amount to be repaid.Ministers are briefed[3] The Chief Executive of the Ministry of Social Development (MSD), Mr Boyle,was advised of the overpayment. He informed the State Services Commissioner,Mr Hughes, about the overpayment and the process for addressing it.[4] On 31 July 2017 Mr Boyle briefed Ms Tolley, the Minister of Social Welfareat the time. On 1 August 2017 Mr Hughes briefed Ms Bennett, the Minister for StateServices at the time. The briefings were provided by Mr Boyle and Mr Hughes totheir Ministers under what is known as the "no surprises" principle, on a confidentialbasis. They provided the briefings in good faith, in the course of performing theirfunctions as public service chief executives.11 Peters v Bennett [2020] NZHC 761 [High Court judgment] at [262]. This finding was notchallenged on appeal.Anonymous leaks to the media[5] Between 23 and 25 August 2017 a number of reporters received anonymouscalls that referred to the overpayment. On 26 August 2017 Mr Peters became awarethat the media knew about the overpayment. Mr Peters released a press statement thefollowing day to pre-empt any publicity about the issue. Over the coming weeksa number of news items were published in the media referring to, and commenting on,the overpayment.Mr Peters brings High Court proceedings[6] Mr Peters considered that the disclosure of the overpayment was a breach ofhis right to privacy. He did not make a complaint to the Privacy Commissioner underthe Privacy Act 1993. Instead, he brought proceedings in the High Court alleging thatthe tort of invasion of privacy had been committed by MSD; the two Chief Executives;and the two Ministers.[7] The claims were unsuccessful. Venning J held that Mr Peters had a reasonableexpectation that the details of the payment irregularity would be kept private and notdisclosed to parties who did not have a genuine need to know about it or a properinterest in knowing about it. In particular, Mr Peters had a reasonable expectation thatthe details of the payment irregularity would not be disclosed to the media.2However his claim against all of the defendants failed as he was not able to establishthat they were responsible for the disclosure of the payment irregularity to the media.Mr Peters had conceded that neither Minister was directly responsible for thatdisclosure.3 The disclosures by the Chief Executives to their Ministers were made fora proper purpose, and the Ministers had a genuine interest in knowing the details ofthe payment irregularity.4 Nor had Mr Peters established that the disclosure to themedia was made by an employee of MSD.52 At [276].3 At [278].4 At [279].5 At [280].The appeal to this Court[8] Mr Peters appeals to this Court against the dismissal of his claims against thetwo Chief Executives and MSD. He no longer pursues his claims against theMinisters.[9] We agree with the High Court Judge that information about Mr Peters'application for NZS, and the payment irregularity, should not have been publiclydisclosed. The deliberate disclosure of that information to the media was a seriousinvasion of Mr Peters' privacy.[10] However we do not consider that Mr Peters had a reasonable expectation thatinformation about the payment irregularity would not be provided by theChief Executives to the Ministers. The relationship between a chief executive ofa government department and the responsible Minister is a relationship of trust andconfidence. It is not the function of the privacy tort to regulate what can or cannot bedisclosed by a chief executive to their Minister in good faith, on a confidential basis.The claim in tort against the Chief Executives must therefore fail. And that claim wasin any event precluded by the statutory immunity conferred on the Chief Executivesby s 86 of the State Sector Act 1988.[11] Nor has Mr Peters made out his claim against MSD. The evidence before theCourt does not establish that any employee of MSD was responsible for the disclosuresto the media. By the time those disclosures occurred, the information was in the handsof a number of people inside and outside MSD. Mr Peters sought to rely on theevidential principle res ipsa loquitur: that is, the matter speaks for itself. But asa matter of logic the leak could have come from a number of sources. MSD is notliable for the unlawful disclosures made by an unknown person merely because it wasthe original holder of the information, which had subsequently been provided(lawfully) to a number of people inside and outside MSD.[12] In those circumstances, the appeal must be dismissed.BackgroundMr Peters applies for NZS and is paid at the single rate[13] In April 2010 Mr Peters turned 65 and became eligible for NZS. He completedan application for NZS then attended an MSD service centre. He met with an MSDofficer. He gave her the completed form. The form included a number of questionsabout the applicant's relationship status. Mr Peters answered the relevant question(question 26 in the form) as follows:[14] Mr Peters did not answer the primary question about whether he had a partner:he ticked neither "yes" nor "no". Instead, he ticked the box for a subsidiary question,advising he was "living apart/separated". Mr Peters explained in evidence that heunderstood the question to be about his wife, from whom he was separated. MSDproceeded on the basis that because this box had been ticked, there was no need for ananswer to the primary question in question 26: "Do you have a partner?": the answerto this primary question must be "no".[15] It was common ground before us that the form was not as well laid out as itmight have been. It has been replaced by a form which clearly identifies the need toanswer the primary question about whether the applicant has a current partner beforemoving on to more detailed questions.[16] The answer given by Mr Peters resulted in him being paid NZS at the rate fora single person even though he had a partner, Ms Trotman, and was living with her atthe relevant time.[17] The Judge considered that both MSD and Mr Peters bore some responsibilityfor the ambiguity in the form as completed and the issues that subsequently arose.6The error in Mr Peters' NZS payment rate could have been avoided if the form hadbeen more clearly laid out, or if Mr Peters had read the form more carefully andanswered the primary question, or if MSD had sought clarification of Mr Peters'incomplete response.7The overpayment is discovered[18] The overpayment came to the attention of MSD in 2017, when Ms Trotmanapplied for NZS. Mr Peters was invited to attend a meeting with Ms Nugent, theActing Regional Director for the relevant area. They met on 26 July 2017. Ms Nugentwas satisfied there had been no intention to mislead or defraud MSD. Mr Petersagreed to repay the overpaid amount. Mr Peters was subsequently advised that theoverpayment figure was $17,936.43. It was repaid immediately. On 3 August 2017,a formal letter was sent to Mr Peters confirming the overpayment had been repaid infull and MSD considered the matter was closed.Mr Boyle briefs the State Services Commissioner and his Minister[19] Meanwhile, Mr Boyle had been alerted to the issue. Recognising thesensitivity of the matter, Mr Boyle directed that the file and investigation be "lockeddown" and access to all relevant information restricted.[20] Mr Boyle decided that he should brief the State Services Commissioner,Mr Hughes, about the issue, and seek his advice on how it should be handled.[21] Mr Boyle also decided to brief his Minister, Ms Tolley. He considered that heshould brief her under the "no surprises" principle (discussed in more detail below at[123]–[143]), even though this would involve disclosure of information personal toMr Peters. Mr Boyle considered that the way in which the payment irregularity hadbeen handled was a significant matter that went to the integrity of MSD'sadministration of the benefit system, for which the Minister was accountable.6 At [24].7 At [28].MSD's response to the overpayment — seeking repayment and taking no furtheraction — had the potential to be highly controversial and subject to public debate.[22] On 31 July 2017, at the end of their regular weekly meeting, Mr Boyle advisedMs Tolley that there was a matter on which he wished to brief her on a confidentialbasis. After others attending the weekly meeting left the room, Mr Boyle briefed theMinister about the payment irregularity. He offered to follow the oral briefing witha written briefing. The Minister indicated that she wanted to think about whether thatwas necessary. She subsequently advised she did want a written briefing. It washand-delivered to her by Mr Boyle on 15 August 2017.Mr Hughes briefs his Minister[23] Mr Hughes was conscious of the personal nature of the information, and itspotential political sensitivity. Mr Hughes and Ms Power, the Associate State ServicesCommissioner, ensured they were the only people within the State ServicesCommission (SSC) to know about the issue.[24] Mr Hughes considered that the overpayment to Mr Peters, and the steps takenby MSD, "raised two immediate flags" for the SSC. The first was that a very seniorpolitician had been overpaid a benefit for a number of years. That raised a potentialconcern about special treatment, bias or interference in MSD's processes for dealingwith the overpayment. The integrity of the public service was in issue. One of thecore functions of the State Services Commissioner is to provide oversight ofState services to ensure the maintenance of high standards of integrity.8 The secondissue was whether Ministers should be briefed, and when. Mr Hughes' view was thatthere should be no briefing until MSD had completed its processes, to ensure therecould be no suggestion of political interference in MSD's final decision.[25] Mr Hughes considered that the information was relevant to Ms Bennett asMinister for the SSC. She was accountable to Parliament for the performance andintegrity of the public service. It was important that Ms Bennett be in a position toprovide an assurance to Parliament and the New Zealand public that the issue had been8 State Sector Act 1988, s 4A (now repealed).handled appropriately and impartially by MSD. It was also important that she couldprovide that assurance to Ms Tolley. On 16 July 2017, just a few weeks earlier, themedia had reported that Ms Turei, the co-leader of the Green Party, had publiclyannounced that when she was a beneficiary she had lied to MSD in order to receivea larger benefit payment than she was entitled to. Against the backdrop of the recentpublicity in relation to Ms Turei's benefit fraud, the possibility that the overpaymentto Mr Peters could get into the public domain could not be ruled out.[26] On 31 July 2017, Mr Boyle advised Ms Power that the matter had beenresolved and that he had briefed his Minister about the case. Ms Power informedMr Boyle that the SSC would now brief their Minister. They did so the next day.The Ministers' involvement[27] Both Ms Bennett and Ms Tolley gave evidence.[28] Ms Bennett confirmed that she was briefed about the payment irregularity byMr Hughes and Ms Power on 1 August 2017. She knew that MSD were also briefingtheir Minister, Ms Tolley. A few days later the two Ministers had a very shortconversation about those briefings.[29] Ms Bennett said in evidence that she did not discuss the topic of Mr Peters'overpayment with anyone else until 26 August 2017. She had no involvement withthe calls made to the news media. On 26 August 2017, the Prime Minister, Mr English,asked her about a series of tweets published by a journalist about a story that was aboutto be published, including one that referred to a "mother of all scandals". Ms Bennetttold the Prime Minister that she thought the story was going to be about Mr Peters.She also had a conversation with another senior Minister, Mr Joyce, on26 August 2017, in which the issue was briefly discussed.[30] Ms Tolley gave evidence that she was briefed by Mr Boyle on 31 July 2017.She recalled Mr Boyle saying the briefing was necessary because of the recentcontroversy concerning Ms Turei. She did not remember the details of the briefing.[31] Following the briefing, Ms Tolley spoke to her senior adviser at the time,Mr Harvey, about what Mr Boyle had told her. She told him the information was tobe kept in absolute confidence. She sought his advice on whether she should ask fora written briefing. They agreed that Ms Tolley should discuss this with thePrime Minister's Chief of Staff, Mr Eagleson. Ms Tolley spoke to Mr Eagleson.He said it was Ms Tolley's decision whether to get a briefing in writing.[32] When Ms Tolley returned home at the end of the week, she mentioned thebriefing to her husband in order to seek his advice on whether she should get a writtenbriefing. Ms Tolley gave evidence that she has absolute confidence in her husband'sability to keep such matters confidential. She does not remember how much detail shegave him, as her focus was on whether she should request a written briefing.[33] Ms Tolley confirmed she had a brief discussion with Ms Bennett. It occurredat a lift in the Beehive, as Ms Bennett was getting out and Ms Tolley was getting in.[34] Ms Tolley said that her sister was the only other person to whom she mentionedMr Peters' overpayments. It was a brief and off-the-cuff response to a glowingcomment her sister had made about Mr Peters. Ms Tolley said he was not as great asher sister thought, and had been receiving a single superannuation payment whenliving with his partner. It was a general statement, without any detail. Ms Tolley saidshe regretted making that unguarded statement. Ms Tolley confirmed that she did notmake the phone calls to the news outlets, and did not have any involvement in them.[35] Before the High Court, Mr Henry, counsel for Mr Peters, accepted in closingthat the Ministers' evidence that they did not leak the information to the media wasunchallenged.Internal investigations by MSD and Department of Internal Affairs[36] An internal investigation into MSD's handling of Mr Peters' information wasconducted by Ms Raines, who at the relevant time was MSD's Manager ofWorkplace Integrity. She identified all individuals who had worked on, or accessed,Mr Peters' file on the MSD internal processing systems. She concluded that onlypersons who had proper business reasons to do so had accessed the records.She reviewed all communications by email and phone that those persons had with themedia. Nothing of concern was discovered. She sought declarations from 29 staffwho had contact with the file but would not have had sufficient information to havebeen the source of the leak, and interviewed 11 staff who had access to all the relevantinformation. She concluded that there was no evidence that an MSD staff memberwas the source of the leak. As she acknowledged under cross-examination, herinvestigation could not discover oral communications or the use of "burner" phones.[37] The Department of Internal Affairs (DIA), which is responsible for employingsome staff in Ministerial offices, also carried out an internal investigation. The DIAinvestigation concluded that there was no evidence linking any DIA employee to thedisclosure to the media.[38] The DIA investigation disclosed that Mr McLay, an MSD employee onsecondment to Ms Tolley's office as a Private Secretary, had been told about theoverpayment by Mr Nichols, an MSD director. Mr Nichols had not remembered thediscussion he had with Mr McLay when he was first interviewed by Ms Raines.When Mr Nichols was reminded of that discussion, he recollected that he hadmentioned the issue to Mr McLay as a confidential "heads-up". Ms Raines wassatisfied with this explanation. Ms Raines also contacted Mr McLay, and obtained adeclaration confirming that he had kept the information secure and confidential.Evidence from journalists[39] Three journalists gave evidence in the High Court under subpoena.They described telephone calls from an anonymous person in relation to Mr Peters.They were told that Mr Peters had been overpaid NZS and that there was a largerepayment. One of the journalists recorded in their notes that the source said thatMr Peters was "lying applied as a single".[40] None of the journalists was prepared to disclose their sources. They invokedthe protection of s 68(1) of the Evidence Act 2006. The High Court Judge was notasked to make an order for disclosure of sources under s 68(2).The claim before the High Court[41] Before the High Court, Mr Peters framed his claim for the tort of invasion ofprivacy in a number of ways. His first cause of action against all five defendantsalleged that they were responsible for the public disclosure of his private information.He pleaded that:(a) All recipients of NZS have a reasonable expectation that MSD willkeep all personal information it holds relating to NZS recipients private.In particular, there is a reasonable expectation that where MSD isinvestigating an irregularity in respect of a beneficiary's NZSpayments, this fact and details of any investigation will be kept private.(b) Mr Peters had a reasonable expectation that MSD would keep detailsof the payment irregularity private.(c) The defendants individually and collectively breached their duty tokeep the fact of, and details of, the payment irregularity private.By way of particulars of this allegation, Mr Peters pleaded theanonymous disclosures to the news media.[42] In order to attribute responsibility for these disclosures to the defendants,Mr Peters pleaded that he relied on "the doctrine of res ipsa loquitur". He providedlengthy particulars of the allegation that the events spoke for themselves, referring tothe imminent general election to be held on 23 September 2017, the timing of thebreach shortly before voting started in the general election, and the prospect thatrelease of information about the payment irregularity would enable his politicalopponents to improperly damage his reputation. He pleaded that:(a) The defendants knew that the greater the number the persons who knewdetails of the payment irregularity, the greater the likelihood of its beingleaked to the media, with resulting damage to his reputation.(b) There was no need for the Chief Executives to disclose the paymentirregularity to their Ministers, who were Mr Peters' political opponentsin the forthcoming general election.(c) MSD and Mr Boyle had no lawful reason to disclose the paymentirregularity to Mr Hughes or Ms Bennett. Nor was there any lawfulreason for the disclosures by Mr Nichols to Mr McLay; Ms Tolley'sdisclosures to her senior adviser, Mr Harvey; Mr Harvey's disclosureto other staff members in the ministerial office; and Ms Tolley'sdisclosures to Mr Eagleson.(d) It was foreseeable by each of the defendants that breaches of their dutyto protect Mr Peters' personal information would lead to furtherdisclosure of the details of the payment irregularity to other persons,including Mr Peters' political opponents, the media, and the public atlarge. This would damage Mr Peters' reputation and diminish hisprospect of electoral success.[43] Mr Peters' second cause of action against MSD and Mr Boyle alleged that theybreached a duty owed to Mr Peters by disclosing the payment irregularity to each ofthe Ministers, to Mr Hughes, and to Mr McLay.[44] Mr Peters' third cause of action against Mr Hughes alleged that Mr Hughesbreached a duty owed to Mr Peters by disclosing the payment irregularity toMs Bennett.[45] The fourth cause of action against the two Ministers alleged that they breachedtheir duty to Mr Peters by inducing the two Chief Executives and MSD to disclose thepayment irregularity to them under the government's "no surprises" policy.High Court judgmentThe test for invasion of privacy[46] As the Judge noted, this Court confirmed the existence of a tort of invasion ofprivacy under New Zealand law in Hosking v Runting.9 In that case, Gault P andBlanchard J (two of the three Judges in the majority) identified two elements thata plaintiff must make out:10(a) the existence of facts in respect of which there is a reasonableexpectation of privacy; and(b) publicity given to those private facts that would be considered highlyoffensive to an objective reasonable person.[47] There is some debate about the need for the second element to be made out asa separate requirement.11 But the Judge considered that he was required to apply thetwo elements identified by the majority in Hosking v Runting.12Applying the test[48] The Judge found that Mr Peters had, and was entitled to have, a reasonableexpectation that the payment irregularity would not be disclosed to the media and,through them, the public at large.13 But that expectation was contextual and was notabsolute. It must take into account that there were some parties to whom it wasnecessary or appropriate to disclose the information. That included a number ofpeople within MSD involved directly in the review and investigation. That alsoextended to disclosure to the Chief Executive of MSD and by him to theChief Executive of SSC (as Mr Henry had conceded in opening).149 High Court judgment, above n 1, at [81], discussing Hosking v Runting [2005] 1 NZLR 1 (CA).10 Hosking v Runting, above n 9, at [117].11 See below [111]–[115].12 High Court judgment, above n 1, at [82]–[88].13 At [106].14 At [108].[49] The Judge summarised his conclusion on the first element of the test asfollows:[117] In summary, on the first point, I accept that Mr Peters had a reasonableexpectation that the details of the payment irregularity would not be disclosedto parties who did not have a genuine need to know about it or a proper interestin knowing about it, and certainly had a reasonable expectation that thepayment irregularity would not be disclosed to the media.[50] He then went on to consider the second element. He found that it was highlyoffensive to deliberately disclose details of the payment irregularity to the media.15[51] Against this backdrop, the Judge considered whether Mr Peters could make outhis particular claims against each of the defendants.The claims against the Ministers[52] The Judge began by considering the claims made against the two Ministers.[53] In closing, Mr Henry had accepted that Mr Peters could not show that eitherMinister was the direct source of the disclosure to the media.16[54] The Judge accepted that Ms Bennett's disclosure of the information to thePrime Minister was for a proper purpose. It could not on any view be consideredhighly offensive to an objective reasonable person.17[55] The disclosures Ms Tolley made to her adviser Mr Harvey, to thePrime Minister's chief of staff Mr Eagleson, and to her husband, were for the purposesof taking advice about the payment irregularity and whether she should requesta written briefing. They were reasonable, and were not made for the purpose ofembarrassing Mr Peters. These disclosures could not be said to have been highlyoffensive.18 The disclosure to Ms Tolley's sister was indiscreet, but was in generalterms that lacked the detail necessary to have been the source of the disclosure to the15 At [125].16 At [135].17 At [136].18 At [137].media. And in any event, as this occurred after the initial disclosures to the media itcould not have been the source of those disclosures.19[56] Mr Harvey had given evidence under subpoena. He was not asked if he wasthe source of the disclosure to the media. The internal investigations referred to at[37] above had concluded that he was not the source of the disclosure.[57] The Judge then considered Mr Peters' reliance on the res ipsa loquitur principleto link the actions of the Ministers to the disclosure to the media. The Judge notedthat res ipsa loquitur is a rule of evidence. It did not assist Mr Peters to identify therelevant defendant in the present case. There were a number of possible explanationsas to how the details of the payment irregularity were disclosed to the media.20[58] Mr Peters was thus unable to establish that either Minister was responsible forthe deliberate disclosure of the payment irregularity to the media.21[59] The Judge declined to award relief against the Ministers. With the exceptionof Ms Tolley's unguarded comment to her sister, the disclosures made by the Ministerswere either made for proper purposes or to persons who had a genuine need to knowabout the payment irregularity. Ms Tolley had not been challenged on her evidenceabout her reason for discussing the matter with her husband. Given the brief and verygeneral nature of the comment made to her sister, the Judge declined to make anydeclaration about that disclosure.22[60] The Judge also dismissed the claim that the Ministers breached a duty owed toMr Peters by inducing disclosures of the payment irregularity to them. The decisionsto disclose the information to the Ministers were made by Mr Hughes and Mr Boyle.The Ministers received, but did not seek out, the information.2319 At [138].20 At [147]–[151].21 At [155].22 At [168].23 At [164]–[165].The claims against the Chief Executives and MSD[61] The Judge then considered the claim against the two Chief Executives andMSD. The internal MSD disclosures for the purpose of investigating the paymentirregularity were for a proper purpose and/or to persons with a genuine need to know.So the relevant disclosures were those by MSD to Ms Tolley, and by SSC toMs Bennett.24[62] The Judge explored in considerable detail the reasons given by Mr Boyle andMr Hughes for briefing their Ministers. He described the expert evidence called bythe defendants from Sir Maarten Wevers, a retired senior public servant, about thecircumstances when a chief executive might brief a Minister, in particular in thecontext of a "no surprises" briefing.25[63] The overpayment and subsequent inquiry were MSD operational matters.Mr Peters had argued that chief executives should not brief Ministers aboutoperational matters of this kind.26 But as Sir Maarten had explained in his evidence,it was wrong to suggest that Ministers have no responsibility for operational matters.Ministers are accountable for such matters to the House of Representatives(the House), as Mr Peters had acknowledged in evidence.27[64] The issue in this case was the nature of the operational matter. The Judgeconsidered that normally an operational matter of this kind would not justify a briefingto the Minister, because it would not be sufficiently significant. The only issue whichraised an important matter of principle, namely the integrity of MSD and the publicservice, was the involvement of a senior Member of Parliament. It was important toconfirm he or she had not been treated differently.28[65] The Judge considered that it was important that there be a measure of restraintover information provided by chief executives to Ministers on a "no surprises" basis,and that briefings be restricted to matters of genuine significance to the Minster's24 At [176].25 At [193]–[199].26 At [214].27 At [215]–[216].28 At [217].portfolio.29 Were it not for one issue, the Judge would have found that, even if thebriefings were required, it was unnecessary to identify Mr Peters by name. Ministerscould have been briefed in general terms that an MP had been overpaid NZS, MSDhad investigated the matter in accordance with its usual processes, and MSD weresatisfied there was no need to take the matter further. The overpayment had beenrepaid, and the matter was at an end. That would have been sufficient to reassureMinisters about the integrity of MSD's processes.30 The one factor which, on balance,changed the position was the recent publicity in relation to Ms Turei. The Judgeaccepted that disclosure of Mr Peters' identity became relevant given the timing ofMs Turei's disclosure, the public debate about it, and Mr Peters' position as leader ofanother party in Parliament.31[66] The Judge noted that Mr Peters had suggested in his evidence that the use ofthe "no surprises" disclosure in this case was a sham. That allegation had not been putto Mr Hughes or Mr Boyle. The disclosures were made for proper purposes.32[67] The Judge then dealt with the second cause of action against MSD andMr Boyle. Disclosure for proper purposes or to persons with a genuine need to knowwithin MSD was not objectionable. There was a proper public interest in thecommunication from Mr Boyle to Mr Hughes to ensure that Mr Hughes, inperformance of his statutory functions and as Mr Boyle's employer, could adviseMr Boyle on the conduct of the proposed investigation in a manner that maintainedhigh standards of integrity and conduct in, and maintained public confidence in, thepublic service. The allegation that further disclosure to Ministers was for the purposesof "salacious gossip" was unsubstantiated. The defendants were not cross-examinedon that allegation, which should not have been made. Similarly, the allegation that thedisclosure had no purpose but to disclose the payment irregularity to a politicalopponent was not made out.3329 At [220].30 At [226].31 At [229].32 At [234].33 At [243]–[245].[68] There was no evidence of deliberate disclosure by MSD or Mr Boyle to themedia. For reasons already given, Mr Peters was unable to rely on the principle ofres ipsa loquitur.34[69] For essentially the same reasons, the third cause of action against Mr Hugheswas dismissed. His disclosure to the Minister responsible for the SSC was for a properpurpose, to a person who had a genuine interest in receiving it.35Affirmative defences[70] Mr Hughes and Mr Boyle pleaded as an affirmative defence the statutoryimmunity in s 86 of the State Sector Act, which (at the relevant time) provided:86 Immunity for Public Service chief executives and employees(1) Public Service chief executives and employees are immune fromliability in civil proceedings for good-faith actions or omissions inpursuance or intended pursuance of their duties, functions, or powers.(2) See also section 6 of the Crown Proceedings Act 1950.[71] Mr Peters had pleaded bad faith by alleging that the disclosures to the Ministerswere for no purpose but "salacious gossip", and to make disclosure to Mr Peters'political opponents. The Judge noted that there was no probative evidence led tosupport that pleading. The proposition was not put to Mr Hughes or to Mr Boyle.These allegations of bad faith should not have been made. The evidence demonstratedthat Mr Boyle and Mr Hughes had made their disclosures in good faith. If necessary,they could rely on the statutory immunity in s 86.36[72] The Crown defendants also pleaded by way of defence that the variousdisclosures were justified by a legitimate public concern in relation to the information.The existence of such a defence had been accepted by the majority inHosking v Runting.37 The Judge accepted the submission of Ms Casey QC, for thedefendants, that it was difficult to envisage a clearer example of legitimate concernthan the briefing of Ministers with portfolio responsibilities for the matter to which34 At [246]–[247].35 At [250].36 At [260]–[263].37 At [264], citing Hosking v Runting, above n 9, at [129].the information related. The issue was whether it was necessary for the disclosure tobe made under the "no surprises" policy, which he had concluded was the case.38Damages[73] Finally, although Mr Peters' claim failed, the Judge considered the issue ofdamages. The Judge expressed the view that if Mr Peters had identified the personwho disclosed his private information to the media, damages in the region of $75,000–$100,000 might have been appropriate. This was a deliberate breach of Mr Peters'privacy, with the intention of publicly embarrassing him and causing him harm.39Issues on appealIssues raised by Mr Peters' appeal[74] At the heart of Mr Peters' appeal is a challenge to the Hosking v Runtingapproach to the elements of the tort of invasion of privacy. He says the "highlyoffensive" limb of the test adopted in Hosking v Runting is unnecessary andundesirable and should be omitted. Mr Henry submits the tort should be reformulatedby reference to two elements:(a) there must be information in relation to which a reasonable personwould have an expectation of privacy; and(b) a person or entity holding private information uses that information incircumstances where that is not justified by the reason it holds theinformation in the first place.[75] The High Court held that Mr Peters had a reasonable expectation of privacy inrelation to the information that MSD was investigating a payment irregularity inrelation to the NZS paid to him. That is, Mr Peters had a reasonable expectation thatthe information would not be disclosed other than for a proper purpose, and would not38 At [267].39 At [275].be disclosed to parties who did not have a genuine need to know about it.40So, Mr Henry submits, the first of his two elements is satisfied.[76] The second element is also satisfied, Mr Henry says, as:(a) The disclosures by the respondents within MSD were broader than wasjustified. The information was disclosed multiple times by Mr Boyleand other MSD employees without a proper purpose. This transferredthe information from the original source (MSD) to persons outsideMSD and created a chain of unlawful disclosures which ultimately ledto public disclosure in the media.(b) In particular, the disclosures by Mr Boyle to Ms Tolley and byMr Hughes to Ms Bennett were not made for a proper purpose.[77] Mr Henry's primary argument in relation to the briefings of the two Ministerswas that there was no justification for a "no surprises" briefing in these circumstances.There was no real issue as to the integrity of MSD's systems, or the public service.The information was too personal to be provided to Ministers, particularly given itspotential political use in the context of the imminent election. Alternatively, ifa briefing was justified, it should not have extended to disclosing Mr Peters' identity.A disclosure referring to a "prominent person" or "Member of Parliament" would haveserved the same purpose.[78] Mr Henry also came at the issue another way. It was clear that there was aninvasion of Mr Peters' privacy by the publication of his private information in themedia: that finding in the High Court was not challenged on appeal. So the onlyremaining issue is whether the respondents are answerable for that wrongful breach ofMr Peters' privacy. The information was originally held solely by MSD. In thosecircumstances, Mr Peters can rely on the doctrine of res ipsa loquitur to prove a breachof his privacy by MSD. Where a defendant has control over a plaintiff's privateinformation, and that information leaks from their control, the plaintiff can come tothe court and require the defendant to prove that they did not leak the private40 At [105]. See also [106].information. MSD and the other respondents created the risk of leaks by disseminatingthe information more widely than justified. So they must prove that they were notresponsible for the leaks. They have failed to do so.Further issues raised by the respondents on appeal[79] The respondents say that the approach to the tort of privacy contended for byMr Henry is inconsistent with the authorities. It seeks to impose liability in tort forany disclosure of private information in breach of the Privacy Act 1993, in a mannerthat is inconsistent with the scheme of that Act. They support the approach to thescope of the tort adopted by the Judge based on the test in Hosking v Runting.[80] The respondents submit that the allegation that the confidential disclosureswithin MSD were tortious is not open to Mr Peters before this Court, as it was notpursued in the High Court.[81] The respondents raise a number of other points by way of cross-appeal and/orto support the High Court judgment on other grounds:(a) Whether the High Court erred in undertaking a detailed review of thecorrectness of the judgments made by Mr Boyle and Mr Hughes to brieftheir Ministers.(b) Whether the High Court erred in giving less weight to Sir Maarten'sexpert evidence because part of that evidence proceeded on the basisthat the payment irregularity resulted from an error made by Mr Peters.(c) Whether the High Court erred in expressing the view that MSD oughtnot to have accepted Mr Peters' application for processing, because itwas incomplete.(d) Whether s 86 of the State Sector Act prevents the grant of declarationsagainst Mr Hughes and Mr Boyle.(e) Whether it is open to Mr Peters to argue that MSD is vicariously liablefor the actions of Mr Hughes and/or Mr Boyle. The respondents saythat this argument was not advanced in the High Court. If the argumentis open on appeal, have the requirements for vicarious liability beenestablished on the evidence?(f) Whether the High Court erred in the indication it gave in relation to theappropriate level of damages for disclosure of Mr Peters' informationto the media.[82] The respondents do not challenge the result reached in the High Court.Rather, they wish to challenge certain aspects of the Judge's reasoning, and advancealternative justifications for the result reached in the High Court. In thesecircumstances it was not necessary for them to file a cross-appeal.41 A notice ofintention to support the judgment on other grounds was sufficient. We will approachthe issues raised by the respondents in their notice of cross-appeal on that basis.Application to adduce further evidence[83] There is one preliminary issue that we need to address. The Crown applied forleave to adduce further evidence on appeal in the form of an affidavit exhibitinga media article and record of a radio interview with Mr Peters, published on20 May 2020, and a record of statements made by Mr Peters outside the House on23 July 2020. In essence, these media reports record Mr Peters saying that after theHigh Court trial, he had found out who the "leaker" was.[84] The Crown says that the proposed evidence bears directly on Mr Peters'invitation to the Court to apply the principle of res ipsa loquitur. If Mr Peters nowknows who leaked the information about the payment irregularity to the media, hecannot ask the Court to draw an inference inconsistent with that knowledge on thebasis of the evidence that was before the High Court.41 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55,[2008] 1 NZLR 13 at [25]; and Independent Fisheries Ltd v Minister for Canterbury EarthquakeRecovery [2013] NZSC 35, [2013] 2 NZLR 397.[85] Mr Peters opposes the application. He says that the evidence is not cogent:it merely records Mr Peters' belief that he knows who leaked the information, basedon information provided by another person. The affidavit does not contain anyadmissible evidence about who provided Mr Peters' private information to the media.[86] Further evidence may be admitted on appeal if it is fresh, credible and cogent.42This Court granted provisional leave to adduce the further evidence de bene esse —that is, provisionally pending a final decision when the appeal is heard.43 But we mustnow determine whether it should be admitted with the benefit of full argument on boththe substantive appeal and the application for leave to adduce further evidence.[87] The evidence is fresh, in the sense that it came into existence after theHigh Court trial. It is credible, insofar as it records statements made by Mr Peters.But we accept the submission that it is not cogent. The statements recorded in theproposed evidence have no bearing on the issues before the Court. They provide noadmissible evidence about the identity of the person who disclosed the paymentirregularity to the media. At their highest, they establish that Mr Peters now hasa suspicion or belief about the identity of the leaker, based on information from others.We do not consider that this fact is relevant or admissible. We decline leave to adducethis evidence.Protection of privacy under New Zealand law[88] Privacy is essential to human dignity and autonomy. Privacy is also importantto liberty: to freedom of thought, freedom of religion, and freedom from unreasonablesearch and seizure.44 Hence the importance of legal protection of privacy, asrecognised in international human rights instruments and in domestic law.42 Court of Appeal (Civil) Rules 2005, r 45(1); and Erceg v Balenia Ltd [2008] NZCA 535 at [15],citing Paper Reclaim Ltd v Aotearoa International Ltd [2006] NZSC 59, [2007] 2 NZLR 1 at [6];and Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA)at 192.43 Peters v Attorney-General [2020] NZCA 649.44 Helen Winkelmann (Sir Bruce Slane Memorial Lecture) November 2018 at 3; N A Moreham"Why is Privacy Important? Privacy, Dignity and Development of the New Zealand Breach ofPrivacy Tort" in Jeremy Finn and Stephen Todd (eds) Law, Liberty and Legislation (LexisNexis,Wellington, 2008) 231 at 232–238; Hosking v Runting, above n 9, at [239] per Tipping J; andCampbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 at [51] per Lord Hoffman.[89] Article 17 of the International Covenant on Civil and Political Rights (ICCPR)provides:45Article 171. No one shall be subjected to arbitrary or unlawful interference withhis privacy, family, home or correspondence, nor to unlawful attackson his honour and reputation.2. Everyone has the right to the protection of the law against suchinterference or attacks.[90] The right to freedom of expression is protected by art 19 of the ICCPR:Article 191. Everyone shall have the right to hold opinions without interference.2. Everyone shall have the right to freedom of expression; this right shallinclude freedom to seek, receive and impart information and ideas ofall kinds, regardless of frontiers, either orally, in writing or in print, inthe form of art, or through any other media of his choice.3. The exercise of the rights provided for in paragraph 2 of this articlecarries with it special duties and responsibilities. It may therefore besubject to certain restrictions, but these shall only be such as areprovided by law and are necessary:a) For respect of the rights or reputations of others;b) For the protection of national security or of public order(ordre public), or of public health or morals.[91] The New Zealand Bill of Rights Act 1990 (NZBORA) affirms New Zealand'scommitment to the ICCPR. Section 14 protects freedom of expression:14 Freedom of expressionEveryone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.[92] NZBORA does not contain any provision referring to the right to privacy foundin art 17 of the ICCPR. That was a deliberate choice, as Keith J explained in45 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature16 December 1966, entered into force 23 March 1976). See also Universal Declaration of HumanRights GA Res 217A (1948), art 12; and United Nations Convention on the Rights of the Child1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990),art 16.Hosking v Runting.46 But privacy values underpin a number of the provisions ofNZBORA, including the s 21 right to be secure against unreasonable search andseizure. Section 28 provides that that other rights and freedoms are not affected,abrogated or restricted merely because they are not included in NZBORA. And s 5 ofNZBORA recognises that the rights affirmed in that Act — in particular, in the presentcontext, the right to freedom of expression — may be subject to reasonable limitsprescribed by law that are demonstrably justified in a free and democratic society.[93] Thus the absence of any provision in NZBORA expressly referring to privacyrights, and the express protection of freedom of speech, do not preclude thedevelopment of statutory regimes or common law rules designed to protect privacythat may have the effect of limiting freedom of speech.[94] The first New Zealand statute that made comprehensive provision for theprotection of privacy was the Privacy Act 1993. That Act, as amended from time totime, was in force at the time of the events with which these proceedings areconcerned. It has since been repealed and replaced by the Privacy Act 2020. The longtitle of the Privacy Act 1993 described its purpose as follows:47An Act to promote and protect individual privacy in general accordance withthe Recommendation of the Council of the Organisation for EconomicCo-operation and Development Concerning Guidelines Governing theProtection of Privacy and Transborder Flows of Personal Data, and, inparticular,—(a) to establish certain principles with respect to—(i) the collection, use, and disclosure, by public and privatesector agencies, of information relating to individuals; and(ii) access by each individual to information relating to thatindividual and held by public and private sector agencies; and(b) to provide for the appointment of a Privacy Commissioner toinvestigate complaints about interferences with individual privacy;and(c) to provide for matters incidental thereto46 Hosking v Runting, above n 9, at [181].47 Subsequent references to the "Privacy Act" are to the Privacy Act 1993.[95] Section 6 of that Act set out 12 principles in relation to protection of privacy.The limits on disclosure of personal information set out in Principle 11 are of particularrelevance to these proceedings:Principle 11Limits on disclosure of personal informationAn agency that holds personal information shall not disclose the informationto a person or body or agency unless the agency believes, on reasonablegrounds,—(a) that the disclosure of the information is one of the purposes inconnection with which the information was obtained or is directlyrelated to the purposes in connection with which the information wasobtained; or(b) that the source of the information is a publicly available publicationand that, in the circumstances of the case, it would not be unfair orunreasonable to disclose the information; or(c) that the disclosure is to the individual concerned; or(d) that the disclosure is authorised by the individual concerned; or(e) that non-compliance is necessary—(i) to avoid prejudice to the maintenance of the law by any publicsector agency, including the prevention, detection,investigation, prosecution, and punishment of offences; or(ii) for the enforcement of a law imposing a pecuniary penalty; or(iii) for the protection of the public revenue; or(iv) for the conduct of proceedings before any court or tribunal(being proceedings that have been commenced or arereasonably in contemplation); or(f) that the disclosure of the information is necessary to prevent or lessena serious threat (as defined in section 2(1)) to—(i) public health or public safety; or(ii) the life or health of the individual concerned or anotherindividual; or(fa) that the disclosure of the information is necessary to enable anintelligence and security agency to perform any of its functions; or(g) that the disclosure of the information is necessary to facilitate the saleor other disposition of a business as a going concern; or(h) that the information—(i) is to be used in a form in which the individual concerned isnot identified; or(ii) is to be used for statistical or research purposes and will notbe published in a form that could reasonably be expected toidentify the individual concerned; or(i) that the disclosure of the information is in accordance with anauthority granted under section 54.[96] A number of limits on the operation of Principle 11 (and other Principles) areset out in other provisions of the Privacy Act. The most important limit for presentpurposes is found in s 11(2), which provides that with certain exceptions (which arenot relevant here) the information privacy principles do not confer on any person anylegal right that is enforceable in a court of law.48[97] If a person's privacy is infringed by a disclosure made in breach ofPrinciple 11, a complaint may be made to the Privacy Commissioner under pt 8 of thePrivacy Act. The functions of the Commissioner include investigating any suchcomplaint, and deciding what further action (if any) to take in respect of the complaint.The Commissioner may seek to secure a settlement of the complaint, coupled withappropriate assurances against the repetition of action of the kind that was the subjectof the complaint. The Commissioner may refer the matter to the Director of HumanRights Proceedings to decide whether to initiate proceedings against the person inrespect of whom the complaint was made. If the matter is referred to theDirector of Human Rights Proceedings, the Director then decides whether to bringproceedings before the Human Rights Review Tribunal. In certain circumstances anaggrieved individual can bring proceedings before the Human Rights ReviewTribunal. The Tribunal has the power to grant relief including declarations, anddamages in respect of certain forms of loss or damage identified in s 88 of thePrivacy Act.4948 The Privacy Act 2020 contains a corresponding restriction on methods of enforcement: see s 31.49 That power is now found in s 103 of the Privacy Act 2020.The emergence of the tort of invasion of privacy[98] The common law in relation to protection of privacy has been developed bythe New Zealand courts against the backdrop of the rights recognised in the ICCPRand the Privacy Act. The tort recognised by the New Zealand courts is sometimesreferred to as the tort of invasion of privacy. This umbrella term refers to two distincttorts concerned with giving publicity to private facts, and intrusion into solitude andseclusion.50 Mr Peters' claim concerns publicity given to private facts: the rate atwhich he was paid NZS from 2010 to 2017, the error in making those payments at thesingle rate, the investigation of that error, the resolution of that investigation, and hisrepayment of the amount overpaid.[99] The tort of giving publicity to private facts was recognised by a majority ofa full court of this Court in Hosking v Runting. That case concerned photographs ofthe plaintiffs' young children, taken in the street, which were intended for publicationin a magazine. As already mentioned, Gault P and Blanchard J considered that inNew Zealand there are two fundamental requirements for a successful tort claim forinvasion of privacy:51(a) the existence of facts in respect of which there is a reasonableexpectation of privacy; and(b) publicity given to those private facts that would be considered highlyoffensive to an objective reasonable person.[100] They emphasised that the tort is concerned with publicity that is trulyhumiliating and distressful or otherwise harmful to the individual concerned. The rightof action should be only in respect of publicity determined objectively, by referenceto its extent and nature, to be offensive by causing real hurt or harm.52 The test ofhighly offensive to a reasonable person, which relates to the publicity rather than towhether the information is private, is intended to draw this line.5350 See N A Moreham "Abandoning The 'High Offensiveness' Privacy Test" (2018) 4 CJCCL 1 at 2.51 Hosking v Runting, above n 9, at [117].52 At [126].53 At [127].[101] Gault P and Blanchard J considered that there should be a defence enablingpublication to be justified by a legitimate public concern in the information.54[102] The other Judge in the majority, Tipping J, was in general agreement with thejudgment delivered by Gault P and Blanchard J. But he differed in relation to theprecise formulation of the elements of the tort.55[103] Tipping J agreed that the first and fundamental ingredient of the tort should bethat the plaintiff must be able to show a reasonable expectation of privacy in respectof the information or material which the defendant has published or wishes topublish.56 But he did not consider that there should be a separate requirement ofoffensiveness. The question of offensiveness should be controlled within the need forthere to be a reasonable expectation of privacy. He accepted that it will always benecessary for the degree of offence and harm to be substantial, so that freedom ofexpression values are not limited too readily. But he preferred the qualifier to be"a substantial level of offence" rather than "a high level of offence".57[104] Tipping J agreed that it should be a defence to an action for invasion of privacythat the information or material published is a matter of legitimate public concern.58[105] Subsequent cases in New Zealand have consistently applied the formulation ofthe test adopted by Gault P and Blanchard J. But there has been some development inthe way in which the elements of the tort are expressed, and reservations have beenexpressed about the desirability of a separate "highly offensive" limb of the test.59A reasonable expectation of privacy[106] The first limb of the test identified in Hosking v Runting is whether there wasa reasonable expectation of privacy in respect of the facts in issue.54 At [129].55 At [223] and [248]–[259].56 At [249]–[250].57 At [256].58 At [257].59 See below at [111]–[115].[107] Professor Moreham has suggested that this limb of the test should be framedin terms of "reasonable expectation of privacy protection".60 That formulationprovides some helpful insights into the way the test should work in practice. First, itemphasises that this is a normative inquiry. The focus is on what a person should beentitled to expect in the circumstances in question.61 So for example the mere fact thatpolice frequently disclose certain information, or that media frequently report certainmatters, is not determinative: the question is whether it should be lawful for them todo so.[108] Second, this formulation brings squarely into focus two very importantquestions: protection of what; and protection from what? The inquiry into reasonableexpectations is necessarily a contextual inquiry. It focuses on how reasonable peoplewould respond to disclosure of the particular information or activity at issue in thecase. So for example a person might have a reasonable expectation that their privacywould be protected in respect of publication of a photograph of a particular activity,but not in respect of a description of that activity. The inquiry should also focus onthe particular disclosure in issue in each case.62 A person might have a reasonableexpectation of protection from widespread public disclosure of information, but notfrom more limited disclosure of that same information.63[109] In Murray v Express Newspapers plc the Court of Appeal of England andWales described the question whether there is a reasonable expectation of privacy as"a broad one, which takes account of all the circumstances of the case".64 The Courtidentified (in a passage that has been widely cited) seven factors that may be relevantto an assessment of a claimant's reasonable expectation of privacy: the attributes ofthe claimant, the nature of the activity in which the claimant was engaged, the placeat which it was happening, the nature and purpose of the intrusion, the absence ofconsent and whether it was known or could be inferred, the effect on the claimant, and60 N A Moreham "Unpacking the Reasonable Expectation of Privacy Test" (2018) 134 LQR 651.61 At 655.62 At 656–657.63 At 656.64 Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36].the circumstances in which and the purposes for which the information came into thehands of the defendant.65[110] In the course of oral argument Mr Henry invited this Court to adopt thispassage in Murray as an encapsulation of the tort of invasion of privacy. We agreethat this passage provides a helpful reminder of the contextual nature of the"reasonable expectation" test, and identifies a number of factors that may be relevantwhen applying that test. It would be artificial to separate the inquiry into the privatenature of the information from an inquiry into the expectations that a reasonableperson would have about how that particular information could appropriately be used.The "highly offensive" requirement[111] The "highly offensive" limb of the test propounded by Gault P and Blanchard Jin Hosking v Runting was influenced by United States jurisprudence, and by the recentdecision of the Court of Appeal of England and Wales in Campbell v MGN Ltd.66However that decision was reversed on appeal.67 The House of Lords rejected a highoffensiveness requirement as an element of the tort under English law.68 SubsequentEnglish decisions have confirmed that the evolving privacy torts in that jurisdictiondo not include such a requirement.[112] As already mentioned, the desirability of such a requirement was doubted byTipping J in Hosking v Runting. In New Zealand doubts about this threshold have alsobeen expressed by Elias CJ and Anderson J in Television New Zealand v Rogers,69 andby this Court in Hyndman v Walker.70[113] The "highly offensive" threshold has also been trenchantly criticised byacademic commentators, in particular Professor Moreham. She has made a strongcase for abandoning this limb of the test, and incorporating the concerns that it65 At [36].66 Campbell v MGN Ltd [2002] EWCA Civ 1373, [2003] QB 633.67 Campbell v MGN Ltd (HL), above n 44. The House of Lords decision was delivered some twomonths after the decision of this Court in Hosking v Runting.68 At [22] per Lord Nicholls, at [135]–[136] per Baroness Hale, and at [96] per Lord Hope.69 Television New Zealand v Rogers [2007] NZSC 91, [2008] 2 NZLR 277 at [25] per Elias CJ, andat [144] per Anderson J. See also the observations of William Young P in the Court of Appeal:Television New Zealand v Rogers [2007] 1 NZLR 156 (CA) at [122].70 Hyndman v Walker [2021] NZCA 25 at [69]–[75].addresses in the "reasonable expectation of privacy (protection)" test, approached onthe contextual basis described above.71[114] However as this Court noted in Hyndman v Walker, it is appropriate for courtsto proceed with care, paying close attention to countervailing rights and interests,when formulating the criteria that will be used to gauge reasonable expectations ofprivacy. The courts must also recognise their institutional limitations, which dictatethat law should be developed incrementally and by reference to specific facts.72The Court did not consider that Hyndman v Walker was a suitable case for a substantialreformulation of the tort.73[115] As we explain in more detail below, this also is not a case in which we need todetermine the appropriateness of a "highly offensive" threshold for liability in tort.The present appeal can be determined by reference to the "reasonable expectation ofprivacy" test, applied contextually. The desirability of a threshold for liability thatturns on the nature and extent of the harm caused by the disclosure, and the level atwhich any such threshold should be set, are issues that are best considered in thecontext of a case (or cases) where liability turns on how the test is formulated.That will also bring into sharper relief countervailing considerations, in particular theimplications of ss 5 and 14 of NZBORA. Any expansion of liability for publicdisclosure of private facts necessarily limits freedom of expression, so must bedemonstrably justified in a free and democratic society. We prefer not to undertakethis inquiry in the abstract, in a factual vacuum.Publication to whom?[116] We do however need to say something about the question of what amounts topublication in the context of the tort of giving publicity to private facts.The United States privacy tort only applies to widespread publication to the public, orto so many people that the matter is substantially certain to become one of public71 Moreham "Abandoning the "High Offensiveness" Privacy Test", above n 50; Moreham "Why isPrivacy Important? Privacy, Dignity and Development of the New Zealand Breach of PrivacyTort", above n 44, at 230–247. See also Moreham "Unpacking the Reasonable Expectation ofPrivacy Test", above n 60; and N A Moreham "Privacy, Reputation and Alleged Wrongdoing:Why Police Investigations Should Not Be Regarded As Private" (2019) 11 JML 142.72 Hyndman v Walker, above n 70, at [75].73 At [75]–[76].knowledge.74 We were not referred to any English decision in which liability had beenimposed in tort for disclosures to one person, or to a small group.[117] Ms Casey argued that the United States approach should be adopted inNew Zealand: the tort should be confined to widespread publication of privateinformation. However it is difficult to identify a principled basis for such a restriction.The dignity and autonomy of a person may be affronted by disclosure of privateinformation (for example, intimate photos taken by a former partner) to a small group,or even to one person. That harm may be very substantial. The "reasonableexpectation" test does not support restriction of the tort to widespread publication.A person may have a reasonable expectation that very sensitive information will notbe disclosed to anyone at all.[118] In Hyndman v Walker this Court held that the tort of invasion of privacy maybe committed where disclosure is made to a small class.75 We agree. Indeed for thereasons outlined above, it is strongly arguable that the tort could be committed bydisclosure to one person, where there was a reasonable expectation that no disclosureof any kind would occur. That will especially be the case where the recipient of thedisclosure is not subject to any obligation to refrain from disclosing the informationmore widely, and there is a real prospect that they may do so.Communication of information in which there is a legitimate interest[119] If the tort can be committed by disclosure to a small group, or to one person,the defence accepted in Hosking v Runting — publication justified by a legitimatepublic concern in the information — needs to be reframed to encompass the scenariowhere there is a private disclosure of the information, and a legitimate private concernin relation to that information. Just as there may be good reason for excluding liabilityin respect of disclosure to the public, where the public has a legitimate interest inreceiving the information, so too liability in respect of a more confined disclosureshould be excluded where the recipient(s) have a legitimate interest in receiving theinformation.74 See Hosking v Runting, above n 9, at [70].75 Hyndman v Walker, above n 70, at [50].[120] This is another aspect of the tort that will need to be developed by the courtsover time, as cases arise. There may be a useful analogy with the qualified privilegedefence in the context of the tort of defamation. A privileged occasion is one wherethe person who makes a communication has an interest or duty, legal, social or moral,to make it to the person to whom it is made, and the person to whom it is made hasa corresponding interest or duty to receive it.76 A communication on an occasion ofqualified privilege is protected unless the plaintiff establishes that in publishing thecommunication in question, the defendant was predominantly motivated by ill willtowards the plaintiff or otherwise took improper advantage of the occasion ofpublication. It seems plausible that reasonable expectations of protection of privacyare subject to similar limits, and do not extend to good faith communications onoccasions of this kind. There is also something to be said for the law of tort adoptinga consistent approach to identification of the occasions on which communication ofinformation in good faith will not give rise to liability, whether that information issubsequently shown to be true or false.[121] However at least some of the factors relevant to the defence of qualifiedprivilege in the context of a defamation claim will be relevant in the privacy contextwhen assessing whether there is a reasonable expectation of protection from sucha disclosure, not just at the point of considering a defence of legitimate interest incommunication. The interplay between the reasonable expectation test and thelegitimate interest defence is another aspect of the privacy tort that will need to bedeveloped by the courts over time.[122] In this case we do not need to resolve the precise formation of the legitimateinterest defence, or determine whether it is co-extensive with the circumstances inwhich qualified privilege is recognised in the context of defamatory statements.But we do need to consider the implications for Mr Peters' claims of the setting inwhich the relevant disclosures occurred, and the relationship between the individualsmaking and receiving the relevant disclosures.76 Adam v Ward [1917] AC 309 (HL) at 334. See also Stephen Todd (ed) Todd on Torts (8th ed,Thomson Reuters, Wellington, 2019) at [16.11.01].The nature of the relationship between a chief executive and a Minister[123] The relationship between a Minister and the chief executive of a departmentfor which that Minister is responsible reflects basic constitutional principlesconcerning the operation of Executive government in New Zealand, and the respectiveroles of Ministers and public servants. Those principles are helpfully summarised inthe introduction to the Cabinet Manual written by Sir Kenneth Keith.77[124] Collectively, Ministers direct the executive branch of government. Ministersare supported by and (to varying degrees, depending on the nature of the entitiesconcerned) direct officials in the State services and the wider State sector.78[125] In a broad sense, it is the Ministry or government of the day which governsNew Zealand. The members of the Ministry as a whole have the support of the Houseand must take collective and individual responsibility for their decisions, the decisionsthat are taken in their name, and the measures they propose.79 Sir Kenneth describesthe role of the Prime Minister and Ministers as follows:80The Prime Minister is the head of government, chairs Cabinet and hasa general coordinating responsibility across all areas of government.By constitutional convention, the Prime Minister alone can advise theGovernor-General to dissolve Parliament and call an election, and to appoint,dismiss, or accept the resignation of Ministers.Ministers constitute the ministry, or executive arm of government.Their powers rise from legislation and the common law (including theprerogative). Ministers are supported in their portfolios by the public service.[126] Sir Kenneth goes on to describe the role of the public service as follows:81The role of the public service is stated in some detail in legislation, particularlyin the provisions of the State Sector Act 1988, the Public Finance Act 1989,and the Official Information Act 1982, as well as a great number of particular77 Kenneth Keith "On the Constitution of New Zealand: An Introduction to the Foundations of theCurrent Form of Government" in Cabinet Manual 2017 (Cabinet Office, Wellington, 2017) 1 at1–6.78 Cabinet Manual 2017 (Cabinet Office, Wellington, 2017) at [2.22].79 Keith, above n 77, at 3.80 At 4.81 At 4.statutes. Constitutional principles and that legislation support four broadpropositions (among others). Members of the public service:• are to act in accordance with the law;• are to be imbued with the spirit of service to the community;• are (as appropriate) to give free and frank advice to Ministers andothers in authority, and, when decisions have been taken, to giveeffect to those decisions in accordance with their responsibilityto the Ministers or others;• when legislation so provides, are to act independently inaccordance with the terms of that legislation.Public servants meet these obligations in accordance with important principlesand values such as political neutrality, fairness, and integrity.[127] The formal relationship between Ministers and the public service at therelevant time was governed primarily by the State Sector Act (now, the Public ServiceAct 2020) and the Public Finance Act 1989. The relationship is also governed byconvention.82 The relationship is helpfully summarised in the following passages fromthe Cabinet Manual:3.7 Ministers decide both the direction of and the priorities for theirdepartments. They are generally not involved in their departments'day-to-day operations. In general terms, Ministers are responsible fordetermining and promoting policy, defending policy decisions, andanswering in the House on both policy and operational matters.3.8 Ministers have a duty to give fair consideration and due weight to freeand frank advice provided by the public service.3.9 Officials are responsible for:(a) supporting Ministers in carrying out their ministerialfunctions;(b) serving the aims and objectives of Ministers by developingand implementing policy and strategy;(c) actively monitoring the performance or condition of statesector organisations, government assets, and regulatoryregimes within their Ministers' portfolios;(d) informing Ministers of significant developments within theirportfolios, and tendering free and frank advice; and(e) implementing the decisions of the government of the day.82 Cabinet Manual 2017, above n 78, at [3.6].3.10 Officials must be politically neutral in their work, serving the currentMinister in such a way that they will equally be able to serve anyfuture holder of the office. This principle of political neutrality iscentral to the public service's ability to support the government of theday and any future government.[128] The main point of contact between a Minister and that Minister's departmentis the chief executive. The chief executive is responsible to their portfolio Minister(s)for, among other matters:83(a) the operation of the department;(b) supporting the Minister to act as a good steward of the public interest;(c) the performance of the functions and duties and the exercise of thepowers of the chief executive or of their agency (whether thosefunctions, duties, or powers are imposed or conferred by an enactmentor by the policies of the government);(d) giving advice to Ministers;(e) the integrity and conduct of the employees for whom thechief executive is responsible; and(f) the efficient and economical delivery of the goods or services providedby the department, and how effectively those goods or servicescontribute to the intended outcomes.[129] Chief executives must act independently, and are not responsible to the relevantMinister, in matters relating to decisions on individual employees.84 Chief executivesare also expressly required to act independently when performing certain functionsand exercising certain powers under other legislation.85 Express provisions of thiskind underscore the point that on all other matters in relation to the activities of83 Public Service Act 2020, s 52. See also s 32 of the State Sector Act 1998.84 Public Service Act, s 54. See also State Sector Act, s 33.85 See for example Corrections Act 2004, s 7(3); Charities Act 2005, s 9(2); and Tax AdministrationAct 1994, s 6B(2).a department, the chief executive is responsible to the appropriate Minister and doesnot act independently. The Minister is entitled to be informed about such matters, andto give (lawful) directions in relation to them. And even where a chief executive isrequired to act independently, the Minister is entitled to be kept informed about matterssuch as the way in which the department undertakes those (independent) activities,and significant decisions that have been (independently) made.[130] As the Cabinet Manual notes, the style of the relationship and frequency ofcontact between Minister and department will develop according to the Minister'spersonal preference. The Cabinet Manual offers the following guidance:86(a) In their relationship with Ministers, officials should be guided by the"no surprises" principle. As a general rule, they should informMinisters promptly of matters of significance within their portfolioresponsibilities, particularly where these matters may be controversialor may become the subject of public debate.(b) A chief executive should exercise judgement as to whether, when, andhow to inform a Minister of any matter for which the chief executivehas statutory responsibility. Generally a briefing of this kind isprovided for the Minister's information only, although occasionallythe Minister's views may be a relevant factor for the chief executiveto take into account. In all cases, the chief executive should ensurethat the Minister knows why the matter is being raised, and both theMinister and the chief executive should act to maintain theindependence of the chief executive's decision-making process.The timing of any briefing may be critical in this regard. As a matterof best practice, briefings should be in writing or at least documentedin writing.(c) It would clearly be improper for Ministers to instruct theirdepartments to act in an unlawful way. Ministers should also take careto ensure that any direction they give their chief executive could notbe construed as improper intervention in administrative, financial,operational, or contractual decisions that are the responsibility of thechief executive.(d) Ministers are ultimately responsible for setting the government'spolicy priorities and objectives and are accountable for them in theHouse. Chief executives must provide their Ministers with all therelevant information and advice to enable the Ministers to set thesepriorities and objectives. In providing this information and advice,chief executives must take into account the resources available to theirdepartments and the need for stewardship of their departments' futurecapability.86 Cabinet Manual 2017, above n 78, at [3.22].(e) On a day-to-day basis a Minister will have contact with the seniorofficials best able to provide the necessary information or advice.Departmental staff and the Minister's office should keep the chiefexecutive informed, at least in general terms, of any contact betweenthe department and the Minister. This information helps to keep linesof communication and accountability between the Minister and thedepartment clear.(f) Ministers should exercise a professional approach and goodjudgement in their interactions with officials. Ministers must respectthe political neutrality of the public service [131] As a matter of constitutional convention, Ministers are accountable to theHouse for ensuring that the departments for which they are responsible carry out theirfunctions properly and efficiently. A Minister may be required to account for theactions of a department when errors are made, even when the Minister had noknowledge of, or involvement in, the actions concerned.87[132] Ministers are also, of course, accountable to the Prime Minister.The Prime Minister is responsible for the coordination of governmentdecision-making. The Prime Minister determines the allocation of portfolios toMinisters and decides on portfolio titles.88 The Prime Minister is responsible forMinisterial appointments and removals. Hence the very real practical significance forMinisters of this form of accountability.[133] Sir Maarten Wevers gave expert evidence in the High Court about therelationship between chief executives and Ministers. His evidence was based on hisexperience in many senior public service roles, including as Chief Executive of theDepartment of the Prime Minister and Cabinet. Sir Maarten held that role fromJune 2004 until his retirement in June 2012. His evidence provides a helpful accountof the conventions and practices that accompany, and give practical effect to, theconstitutional principles outlined above.[134] As Sir Maarten explained, a public service chief executive is responsible forthe conduct of the department he or she leads. The Minister is accountable to the87 At [3.27].88 At [2.32].House for the department's performance, including through answering questions inthe House on policy and operational matters. Ministers are individually responsibleto Parliament for their own activities and the activities of their public servants inadministering their ministerial portfolios. On occasion, this means that a Minister maybe required to account for the actions of their department when errors are made, evenwhen the Minister had no knowledge of, or involvement in, the errors. Hand in handwith this responsibility comes the power by law for the Minster to direct an agency,through its chief executive, on the operations and conduct of the agency, save formatters where legislation provides that the chief executive must act independently.[135] The accountability of Ministers to the House is effected through a number ofwell-established parliamentary processes, including the delivery of annualdepartmental reports to Parliament, annual budget processes, Select Committeeprocesses, and Parliamentary questions. These accountability mechanisms extend toany aspect of the department's performance, policy and operational. Ministers andagencies are also subject to scrutiny by the media, and through other accountabilitymechanisms including the Offices of the Ombudsmen and the Auditor-General.[136] Operational matters can be a focus of intense public scrutiny. Ministers mayneed to answer for such matters in the House, to the Prime Minister, and/or publicly.Thus in practice, operational matters are regularly the subject of Ministerial briefings.Ministers wish to be informed of, and appropriately scrutinise, significant orcontroversial activities of their departments.[137] Ministers are regularly briefed by their advisers, including chief executives.Some briefings take place on a recurring basis. Others are more ad hoc, at the requestof the Minister or on the initiative of the chief executive.[138] The responsibilities of most Ministers are such that it is likely that briefings toMinisters will routinely include sensitive material. Sir Maarten provided helpfulexamples of the range of those sensitive matters:80. The sensitivity may relate to matters ranging from national security,commercially sensitive negotiations, budget sensitive decisions,diplomatically confidential disputes, stakeholder relationships or mattersaffecting individuals or groups that are personal or confidential to them.The fact that such matters may be discussed with Ministers is recognised ina number of places in the Cabinet Manual — examples being paragraphs 8.11to 8.13 (which address information relating to commercial entities) andparagraphs 8.71 to 8.74 (which address personal information).81. Examples of briefings relating to individuals could include:81.1 The Chief Executive of the Department of Corrections mightbrief the Minister of Corrections on a high profile individualwho is coming up for parole;81.2 The Secretary for Justice (as the Chief Executive of theMinistry of Justice) might brief the Minister of Justice on a highprofile individual who is subject to an extradition request bya foreign government;81.3 The Secretary for Transport (as the Chief Executive of theMinistry of Transport) might brief the Minister of Transport ona failure to meet transport safety standards by a particularprovider;81.4 The State Services Commissioner might brief the Minister ofState Services on the leak by a public servant of sensitiveinformation, or on performance issues with a namedChief Executive, or particular difficulties a Chief Executivewas having with another Minister or with senior public servantsin their department; and81.5 The Chief Executive of the Ministry of Business, Innovationand Employment (MBIE) might brief the Minister ofImmigration on concerns that Immigration New Zealand haveabout an application for residency by a named individual.[139] The trust that our system reposes in Ministers is exemplified by the approachadopted to briefings which involve national security considerations. Ministers withnational security responsibilities are not required to hold a security clearance to receiveclassified information. Ministers are not required to undergo security vetting.[140] As a corollary of the fact that Ministers in practice regularly require and receivebriefings containing sensitive information, it is expected that Ministers will not usethe information that they receive for their personal political advantage. Sir Maartendescribed this principle as "fundamental". This expectation can be seen pervasivelyin the Cabinet Manual.8989 See [2.65], [2.106], [8.9] and [8.11]–[8.13]. See also [8.120]–[8.123].[141] Chief executives are entitled to expect Ministers to uphold these expectations.They could not perform their roles on any other basis. Chief executives are alsoentitled to rely on Ministers to honour the expectation that they will act lawfully andbehave in a way that upholds and is seen to uphold the highest ethical standards.90As Sir Maarten said, it would be quite improper for a chief executive to attempt to"filter" information that a Minister is entitled to receive on the basis of an assessmentthat a Minister might act inappropriately:That would be a fundamental breach of the obligations of political neutrality,putting the Chief Executive into some sort of gate keeper role makingdecisions based on his or her views of the likely political or personal attributesof the Minister. It is the Minister and not the Chief Executive who isaccountable to the House for the performance of their portfolio, andChief Executives are obliged to provide their Ministers with information andadvice to support that accountability, regardless of who fills that role.If a Chief Executive had genuine concerns about the conduct of their Minister,that would be a matter for them to raise with the Chief Executive of theDepartment of the Prime Minister and Cabinet or the State ServicesCommissioner, who in turn might take the matter to the Prime Minister.Responsibility for the conduct and discipline of Ministers lies with thePrime Minister, not government officials.[142] Briefings by chief executives on a point that the Minister has not requested willsometimes involve what are referred to as "no surprises" briefings. Such briefingsoften relate to operational matters. Some "no surprises" briefings will includeinformation about individuals that is sensitive for one or more of the reasons identifiedby Sir Maarten in the passage set out at [138] above. Others will not.[143] As Sir Maarten explained, in practice the "no surprises" principle can requiredifficult judgement calls to be made under the pressures of time and competingdemands for attention. Chief executives need to decide whether to givea "no surprises" briefing to their Minister, and sometimes more importantly, when andto what level of detail. Those are judgement calls on which reasonable andexperienced chief executives could reach different decisions, without being wrong.90 See [2.55]–[2.56].Claims against Mr Boyle and Mr Hughes: statutory immunity[144] The logical starting point in relation to the claims against Mr Hughes andMr Boyle personally is the statutory immunity provided by s 86 of the State SectorAct, which we set out again for ease of reference:86 Immunity for Public Service chief executives and employees(1) Public Service chief executives and employees are immune fromliability in civil proceedings for good-faith actions or omissions inpursuance or intended pursuance of their duties, functions, or powers.(2) See also section 6 of the Crown Proceedings Act 1950.[145] This provision now appears as s 104 of the Public Service Act 2020.[146] The version of s 86 set out above was introduced by the State SectorAmendment Act 2013.91 It was enacted in response to the view expressed by theSupreme Court in Couch v Attorney-General that the former s 86 did not provideimmunity for chief executives and other public servants from claims by a plaintiff.92[147] The central purpose of the new version of s 86 (and now, of s 104 of thePublic Service Act) is to ensure that public servants are not exposed to civilproceedings against them personally provided they act in good faith in the (intended)pursuance of their duties. This important provision protects the ability of publicservants to carry out their functions impartially and fearlessly, without being deflectedfrom doing so by the threat of proceedings which — even if ultimately unsuccessful— may be protracted, stressful and costly. The purpose of the provision is underminedif proceedings are brought against public servants without a proper basis for allegingbad faith.[148] Mr Peters' pleading alleged bad faith, asserting that the disclosure by theChief Executives to their Ministers was "for no purpose but for salacious gossip inrespect of the Plaintiff in the days before voting commenced in the general election",and "had no purpose but to disclose the 'payment irregularity' to a political opponent".However no particulars were provided of those allegations, and no evidence was led91 State Sector Amendment Act 2013, s 58.92 Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149 at [174].to support them. Nor were these allegations put to Mr Boyle or Mr Hughes incross-examination.93 Their evidence that they briefed their Ministers in good faith, inthe course of performing their functions as chief executives, was not challenged.[149] Mr Henry's written submissions in this Court did not address the implicationsof s 86 of the State Sector Act for the claims against the Chief Executives. Nor didMr Henry identify, in oral argument, any principled basis on which s 86 would notapply to these claims. He did suggest, rather faintly, that s 86 might not precludeclaims seeking a declaration rather than damages. However s 86 is not framed in termsof immunity from certain forms of relief. Rather, it provides that public servants whoact in good faith are "immune from liability in civil proceedings". We do not considerthat this leaves any scope for claims for declaratory relief in respect of a claim in tort.There are contexts in which a declaration is available without a finding of liability —for example, in relation to matters of status.94 But it could not sensibly be suggestedthat a declaration that a person had committed the tort of invasion of privacy could bemade without a finding of liability for commission of that tort.[150] We therefore agree with the Judge that s 86 applied to the claims against theChief Executives. We agree with the Judge that in the absence of any evidence tosupport allegations of bad faith, such allegations should not have been made.95And absent such allegations, the claims should not have been brought against theChief Executives personally. For that reason alone, the appeal must be dismissed sofar as the claims against them personally are concerned.Vicarious liability of chief executives?[151] Mr Henry also sought to argue before us that Mr Boyle could be vicariouslyliable for wrongful disclosures made by other MSD employees.[152] The chief executive of a department has the rights, powers, and duties of anemployer in respect of the employees of the department.96 But we do not consider that93 High Court judgment, above n 1, at [260].94 See Lord Woolf and Jeremy Woolf The Declaratory Judgment (4th ed, Sweet & Maxwell, London,2011) at 94–100.95 High Court judgment, above n 1, at [260]–[263].96 State Sector Act, s 59(1)(c). This provision now appears in s 66(c) of the Public Service Act.it is arguable that this provision imposes vicarious liability on a chief executive foracts of employees of the relevant department. They remain employees of the Crown,and it is the Crown that is vicariously liable for torts committed by public servants inthe course of performing their duties, as contemplated by s 6(1)(a) of the CrownProceedings Act 1950.[153] Moreover s 86 of the State Sector Act would preclude any claim based onvicarious liability against the chief executive personally, absent bad faith on the partof the chief executive. It is quite clear from the scheme of the legislation that anyclaim based on vicarious liability for torts committed by public servants must bebrought against the Crown, not against the relevant chief executive.[154] The argument that Mr Boyle is vicariously liable in respect of the actions ofother MSD employees lacks any merit. We need not consider it further.Did Mr Peters have a reasonable expectation that his privacy would be protectedfrom disclosures within MSD and/or to Ministers?[155] Mr Peters argued before us that MSD was vicariously liable for the actions ofMr Boyle. He also argued that MSD was vicariously liable for the actions of otherMSD employees who disclosed Mr Peters' private information within MSD, and topersons outside MSD. As Ms Casey pointed out, the claim was not pleaded in thisway. But we are content to address the allegations on their merits.[156] We begin by considering the claims in relation to:(a) internal disclosures within MSD;(b) the disclosure by Mr Boyle to his Minister;(c) the disclosure by Mr Hughes to his Minister; and(d) the disclosure by Mr Nichols to Mr McLay, the MSD employeeseconded to the Minister's office as a Private Secretary.[157] We will then consider the argument that MSD is liable for the ultimatedisclosure to the media and to the public, based on the res ipsa loquitur principle.Framing the reasonable expectation test[158] The first step in considering these claims is to ask whether Mr Peters hada reasonable expectation that his private information would be protected from thedisclosures made by Mr Boyle, and by others within MSD.[159] As noted above, Mr Henry argued that the tort of invasion of privacy had twoelements:(a) there must be information in respect of which a reasonable personwould have an expectation of privacy; and(b) a person or entity holding private information must only use that privateinformation when justified by the reason it holds the information in thefirst place.[160] On this approach, if information is personal information in respect of whichthere is a reasonable expectation of privacy, liability would attach to any publication(however limited) unless that disclosure comes within the scope of the purpose forwhich the person holds the information in the first place.[161] This is not the test for liability in tort for invasion of privacy in any jurisdictionof which we are aware. Mr Henry was not able to point to any authority to support hispreferred approach. In essence, his argument boiled down to the fact that use ofpersonal information for a proper purpose is required by the Privacy Act, and peoplein New Zealand have a reasonable expectation of compliance with the Privacy Act.Disclosures in breach of that reasonable expectation should be actionable in tort.There are many difficulties with this argument.[162] First, the underlying premise of Mr Henry's submission is that liability in tortshould be imposed whenever a person acts in a manner that is inconsistent withPrinciple 11 in the Privacy Act. But the courts have consistently rejected the creationof a tort that is co-extensive with liability under the Privacy Act. Such a tort would bedifficult to reconcile with s 11(2) of the Privacy Act.97 It would cut across the specificcomplaints procedure under that Act, and the tailored institutional arrangements forbringing a claim for breach of those Principles.[163] Second, Mr Henry's suggested test does not in fact align with the requirementsof the Privacy Act. Principle 11 permits disclosure of information in a number ofcircumstances. Mr Henry's test reflects — inaccurately — only one of thosecircumstances: where disclosure of the information "is one of the purposes inconnection with which the information was obtained or is directly related to thepurposes in connection with which the information was obtained".98 Because thesuggested test does not refer to the other limbs of Principle 11, it would on its faceimpose liability in relation to many disclosures that are lawful under the Privacy Act:for example, disclosure to prevent or lessen a serious threat to public health or publicsafety, or to the life or health of the individual concerned or another individual.99These other forms of disclosure that are permitted under Principle 11 might be able tobe addressed in the context of a "legitimate interest in communication" defence. But itis difficult to see why one limb of Principle 11 should be singled out as a pre-conditionfor liability, leaving the rest to be addressed — if at all — at a later stage in the analysis.[164] Third, the suggested test does not accurately reflect the one limb ofPrivacy Principle 11 on which it is based. Privacy Principle 11 refers to disclosuresfor the purpose for which the information was obtained, in circumstances whereobtaining information is also regulated by the Privacy Act. Mr Henry's reference tothe reason for which the person holds information would produce quite a different test.So expectations of compliance with the Privacy Act do not support his formulation ofthe test.[165] Fourth, we doubt that the suggested test would be workable in practice, orproduce sensible results. It is difficult to see how it would operate in relation to mediadefendants who are given information about a person by sources other than that97 See now s 31 of the Privacy Act 2020.98 Privacy Act, s 6, Information Privacy Principle 11(1)(a).99 Section 6, Information Privacy Principle 11(1)(f).person, with a view to publication of that information. Would the suggested test meanthat any publication by them is permitted, since that is the purpose for which they weregiven the information, and for which they hold it? Surely not. But then what does thereference to the purpose for which information is held actually mean?[166] Fifth, Principle 11 does not apply to news entities carrying on news activities,for good reasons. Applying a modified version of one limb of this Principle to newsentities via the law of tort would be inconsistent with the policy underpinning theprivacy legislation, and would be inappropriate.[167] Sixth, the suggested test is not consistent with Mr Henry's submission, referredto at [110] above, that this Court should adopt the approach to the"reasonable expectation" test outlined by the Court of Appeal of England and Walesin Murray. That approach requires the court to consider whether there wasa reasonable expectation that the information would not be disclosed in the particularmanner in issue in that case. That is a wider inquiry than the one contemplated byMr Henry's suggested test. We have already endorsed that wider, contextual,approach.[168] In summary, the test suggested by Mr Henry is supported by neither authoritynor principle. We decline to adopt it.The scope of Mr Peters' reasonable expectation of privacy[169] Whatever the precise test may be for liability for the tort of public disclosureof private facts, it seems clear that it is an essential element of the tort that thecomplainant have a reasonable expectation of privacy in that context, assessed byreference to the particular information, and the particular disclosure in issue. In otherwords, the complainant must have a reasonable expectation that their privacy inrelation to that particular information will be protected from that particular disclosure.[170] We accept Mr Henry's submission that the information in relation to thepayment irregularity was personal information about Mr Peters, and that he hada reasonable expectation that it would be protected from disclosure to the publicgenerally. It is well-established that information about an individual's finances is ofa kind that is generally regarded as private.100 There is room for debate about whetherinformation about a live investigation into a person's affairs has the necessarycharacter of privacy.101 But in the present case, the MSD investigation related toinherently private matters: Mr Peters' finances, and the error in the financial dealingsbetween him and MSD. In the absence of any allegation of wrongdoing, or any properbasis for such an allegation, we consider that all information about the paymentirregularity was private information that Mr Peters had a reasonable expectation wouldnot be disclosed to the media, or to the public.[171] However it does not follow from the fact that Mr Peters had a reasonableexpectation of protection from disclosure to the public at large that he had a reasonableexpectation of protection from disclosure of this information within MSD. Nor doesit follow that he had a reasonable expectation that the information would not bedisclosed by Mr Boyle to his Minister. We consider each of these in turn.Disclosures within MSD[172] A person dealing with MSD in relation to NZS does not have a reasonableexpectation that information about their finances, and the NZS they are receiving, willnot be disclosed within MSD in connection with the administration of their NZSentitlement. It is not a function of the tort of invasion of privacy to regulate the internalhandling, within a government agency, of information lawfully held by that agency.Agencies to which the Privacy Act applies are subject to requirements in relation tostorage and security of personal information.102 But it could not sensibly be suggestedthat liability in tort could attach to a disclosure between officials within an agency ofinformation about a person in circumstances where that information has been lawfullyreceived by the agency in connection with the performance of its functions, thedisclosure is made in good faith in connection with those functions, and the recipientis required to keep the information confidential and use and disclose it only for theagency's purposes.100 Television New Zealand v Rogers [2007] 1 NZLR 156 (CA) at [49], referring to Hosking v Runting,above n 9, at [119], quoting Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001]HCA 63, (2001) 208 CLR 199 at [42] per Gleeson CJ.101 See Moreham "Privacy, Reputation and Alleged Wrongdoing: Why Police Investigations ShouldNot Be Regarded as Private", above n 71.102 See Privacy Act, s 6 Information Privacy Principle 5.[173] We accept that the tort might well be committed by a person within anorganisation who provides personal information to another person inside theorganisation in bad faith, with a view to its wider disclosure for purposes not connectedwith the performance of the organisation's functions. But there is no evidential basisfor any such allegation in the present case. This limit on what can reasonably beexpected in relation to internal disclosures of information within a public agency is inour view self-evident.[174] The same conclusion could also be reached by reference to a "legitimateinterest in communication" defence, along the lines discussed at [119]–[121] above.The difference in incidence of burden of proof is not material in the present case,though it could be in other contexts. The existence of a relationship of the relevantkind between officials is self-evident, so the defence would apply unless Mr Peterscould establish a lack of good faith. No such allegation was made in relation to thedisclosures within MSD, with the exception of the disclosure by Mr Nichols toMr McLay, which we discuss at [182]–[188] below. It follows that Mr Peters' claimfails in so far as it relates to all other internal disclosures within MSD.Disclosure by Mr Boyle to the Minister for Social Development[175] For essentially the same reasons, we do not accept that Mr Peters hada reasonable expectation that information about him would not be provided byMr Boyle (or other MSD employees) to the Minister for Social Development, in goodfaith and on a confidential basis. The Minister is supported by the department, and isaccountable for all aspects of its operations that are not required by statute to beperformed independently. Information provided by a department to their Minister isprovided in the context of a relationship of trust and confidence. The chief executiveand other officials are entitled to expect a Minister to whom sensitive information isprovided to keep that information confidential, and to use it only for proper purposes.Information flows between the department and the Minister fall into the same categoryas information flows within the department, so far as the tort of giving publicity toprivate facts is concerned.[176] The same conclusion can be reached by reference to a defence of legitimateinterest in communication. A Minister has a legitimate interest in receivinginformation from a chief executive in connection with the activities of a departmentfor which that Minister is responsible.[177] Whichever path is adopted to reach this conclusion, it is in our view very clearthat it is not the function of the law of tort to regulate what a chief executive candisclose to their Minister in good faith. As a matter of constitutional principle, it wouldbe quite wrong for the law of tort to restrict the good faith provision of information bya chief executive to a Minister. The effective functioning of our Westminster systemof government requires that a chief executive be able to brief a Minister ona confidential basis, where the chief executive considers that it is desirable to do so,without any concern that such disclosure might engage liability in tort. Such a briefingwould not expose the chief executive to liability in defamation, if the informationproved to be incorrect: plainly it would attract qualified privilege.103 Similarly, thetort of invasion of privacy does not restrict what information a chief executive (or anyother public servant) can disclose to a Minister in good faith, on a confidential basis.[178] As will be apparent from this analysis, we accept the submission of Ms Caseythat it was not necessary for the High Court Judge to engage with the merits of thedecision by the Chief Executives to brief their Ministers. It was sufficient to considerwhether the information was provided in connection with the good faith performanceof the Chief Executive's functions. No further inquiry was needed.[179] It was a central plank of Mr Henry's submissions that the information aboutMr Peters was simply "too personal" to be provided to a Minister. There are a numberof ways in which this submission might be understood. If the argument is that personalinformation about an individual cannot properly be provided by a chief executive toa Minister in any circumstances, we have no hesitation in rejecting that submission.It is inconsistent with the role of a Minister as head of the relevant Ministry, and theconstitutional relationship between Ministers and chief executives outlined above.In the absence of any applicable statutory restriction on provision of information,104103 See Attorney-General v Leigh [2011] NZSC 106, [2012] 2 NZLR 713 at [15]–[20].104 For example, the secrecy obligations under s 81 of the Tax Administration Act (now repealed).there is no information held by a chief executive that a Minister is not entitled toreceive. If the argument is that Mr Boyle should not have briefed his Minister in thecircumstances of this particular case, having regard to the identity of Mr Peters andthe imminent election, we reject that proposition because:(a) It overlooks the nature of the relationship between chief executive andMinister, and the ability (indeed, obligation) of the chief executive toact on the basis that the Minister will not disclose or use informationinappropriately.(b) It requires the Court to engage in a review of the merits of theChief Executive's decision to brief the Minister on this particularoccasion. For the reasons set out above, that is neither necessary norappropriate.Disclosure by Mr Boyle to Mr Hughes[180] Mr Henry accepted that Mr Boyle was entitled to brief Mr Hughes about thepayment irregularity. We agree: for essentially the same reasons outlined above, thereis no reasonable expectation that private information will not be provided by a chiefexecutive to the State Services Commissioner in good faith and on a confidential basis.The tort of invasion of privacy should not, and does not, restrict confidentialcommunications of this kind.Disclosure by Mr Hughes to the Minister for State Services[181] It also follows that there could be no reasonable expectation that Mr Hugheswould not brief his Minister on a confidential basis, if he formed the view that it wasappropriate to do so. It is neither necessary nor appropriate for the courts to attemptto inquire into whether he was correct in that view, provided only that he held it ingood faith.Disclosure by Mr Nichols to Mr McLay[182] Mr Henry submitted that the disclosure by Mr Nichols, the Director of theOffice of the Deputy Chief Executive, to Mr McLay, an MSD employee onsecondment as a Private Secretary in Ms Tolley's office at the relevant time, was anexample of disclosure of Mr Peters' private information without a legitimate purpose.Mr Henry submitted that this disclosure, which was described in Ms Raines' evidenceas a "confidential heads-up", was no more than sharing gossip.[183] It is common for departmental employees to be seconded to the Minister'sOffice as a Private Secretary. Secondments of this kind reflect the relationshipbetween a Minister and their department described above, and the regular flow ofinformation between department and Minister pursuant to that relationship.[184] We do not consider that Mr McLay's secondment to the Minister's office putsthe disclosure to him in a materially different position from other disclosures withinMSD. A communication made to him in good faith in connection with theperformance of MSD's functions — functions which include keeping their Ministerand the Minister's office informed about significant operational matters — isconsistent with any reasonable expectation of privacy. Even if Mr McLay had notbeen an employee of MSD, communications by MSD to the Minister'sPrivate Secretary on a confidential basis would be unobjectionable, for the samereason that communications to the Minister direct are unobjectionable. It is wrong tothink of the Minister and her advisers as external to the Ministry that she heads, in thiscontext.[185] That leaves the question of whether the communication in question was madein good faith, in connection with the performance of MSD's functions. If for examplean MSD employee provided private information about Mr Peters to a political adviserin a Minister's office in order to enable that information to be passed on to the media,that could well result in liability in tort. We therefore turn to the evidence about thisparticular disclosure.[186] Neither Mr Nichols nor Mr McLay gave evidence in the High Court.Ms Raines produced an email from Mr Nichols which recorded that Mr Nicholls hadmany conversations with the person from MSD in the Minister's office asPrivate Secretary at any given time, and often raised issues as a "heads up" which wereconfidential in nature. He remembered mentioning to Mr McLay a potential issuewith Mr Peters' NZS payments. Mr Nichols said that he believed that in thatconversation he identified Mr Peters, and reiterated this information was confidential.He did not believe he gave Mr McLay any detail beyond a potential overpayment.He did not tell Mr McLay actual amounts or outcomes.[187] Ms Raines sought and obtained confirmation from Mr McLay that:(a) All involvement he had with Mr Peters' superannuation case wasappropriate and work-related.(b) He only discussed Mr Peters' information, and what work he was doingin relation to that, with people who had an authorised business purposeand a right to know.(c) He kept Mr Peters' information secure and confidential. Mr McLayprovided that confirmation.[188] Mr Peters had the burden of establishing that the communication was not madein good faith in connection with the performance of MSD's functions, given therelationship between MSD (and Mr Nichols) and the Minister's office(and Mr McLay). That is the position whether this is seen as a necessary element ofthe "reasonable expectation of privacy" element of the test, or as a response toinvocation of the "legitimate interest in communication" defence. If Mr Peters wishedto pursue an argument that the relevant disclosure was not made in good faith for thepurposes of performing MSD's functions, notwithstanding Ms Raines' evidence andthe documents she produced, he needed to provide some evidence to support thatallegation. In the absence of any such evidence, the claim in relation to this disclosuremust fail.Is MSD liable for public disclosures on the basis of res ipsa loquitur?[189] That leaves Mr Peters' argument that MSD is liable for the release of hisinformation to the public generally, relying on the principle of res ipsa loquitur.Mr Henry emphasised that information about the payment irregularity was initiallyheld by MSD alone. It was MSD that identified the error in the rate at which NZS hadbeen paid to Mr Peters. MSD then raised the issue with Mr Peters.[190] Mr Henry submitted that in circumstances where the information was in thepossession of MSD alone, and was wrongfully disclosed to the media, it would beunfair to expect a plaintiff in Mr Peters' position to identify the precise path by whichthe information had reached the media. Rather, Mr Henry submitted, it could beinferred from the fact that the information had reached the media that MSD wasresponsible for that wrongful disclosure.[191] In support of this submission, Mr Henry placed some emphasis on what he saidwas the unduly wide dissemination of the information by MSD, beyond what wasjustified in order to investigate the payment irregularity and resolve it in accordancewith standard procedures. The number of people within MSD who were aware of theissue, coupled with the individuals at the SSC who were informed about the issue andthe disclosures to Ministers and to staff in their offices, significantly increased the riskof a leak. MSD should be required to accept responsibility for the end result of itsfailure to properly protect Mr Peters' personal information.[192] Mr Henry submitted that the inference that the disclosure must have come fromMSD was strengthened by the evidence given by the two Ministers that they had notdisclosed Mr Peters' information in a way that led to its public release. Counsel forMSD did not cross-examine the two Ministers on this issue. So, Mr Henry said, MSDcannot now argue that the disclosure may have come from the Ministers.[193] We accept unhesitatingly that it cannot be necessary for a plaintiff to show thata particular individual within an organisation wrongfully disclosed their privateinformation: that would make it extremely difficult, if not impossible, for claims to bebrought in circumstances where they ought in principle to be available. If the evidencebefore the court suggested that at the time of the media disclosure the informationabout the payment irregularity was held only by MSD employees, there would be realforce in Mr Henry's argument. In those circumstances, the court would be entitled todraw an inference that it must have been a person within MSD who wrongfullydisclosed the information. MSD would then need to call evidence to establish that noMSD employee was in fact responsible for the disclosure: for example, by showingthat the information had reached the media in some other way.105[194] However the difficulty with Mr Peters' claim against MSD on this basis is thatby the time the leak to the media occurred in mid to late August 2017, a number ofpeople outside MSD held information about the payment irregularity.[195] We accept Mr Henry's argument that if MSD wished to argue that theinformation had been leaked by one or other of the Ministers, it needed to put thatproposition to the Minister when they gave evidence. The question whether aninference can be drawn that an MSD employee disclosed the information falls to beconsidered on the basis of the findings made by the Judge about the disclosures madeby the Ministers. It would be inconsistent with those findings to proceed on the basisthat the information could have been disclosed to the media by one or other Minister.[196] But that leaves a number of individuals in SSC and in Ministers' offices whohad the information and could have disclosed it. It also leaves open a real possibilitythat an eavesdropper who overheard conversations between non-MSD personnel —for example, between Ms Bennett and Ms Tolley, or between Ms Bennett andMr Eagleson — could have been the source of the leak. Even putting the Ministers toone side as potential sources of the leak, a significant number of realistic possibilitiesremain. The res ipsa loquitur principle is not a licence to speculate. As the Judge said,that principle is simply a rule of evidence which permits an inference to be drawn fromestablished facts in the absence of proof to the contrary. But in this case, there werea number of possible explanations as to how the details of the payment irregularitywere disclosed to the media. The principle does not enable Mr Peters to establish, onthe balance of probabilities, that MSD was the source of the wrongful disclosure.[197] For the sake of completeness we note that Mr Henry did not identify any legalbasis for the proposition that lawful disclosures by MSD to persons outside MSD ona confidential basis could result in liability in tort on the part of MSD, if those external105 Questions about MSD's vicarious liability might also arise, depending on the facts. In particular,in circumstances where the disclosure was inconsistent with the leaker's obligation to keep theinformation confidential, and was a breach of their contractual and statutory obligations as a publicservant, MSD might be able to argue that it was not vicariously liable for that disclosure.persons subsequently disclosed the information in breach of confidence. Neitherauthority nor principle provides any support for an argument that MSD can be liablein tort in such circumstances.Other issues[198] In light of the findings we have already made, it is unnecessary for us to addressthe other issues raised by the respondents. We mention some of them briefly.[199] It was common ground that the question whether MSD should have acceptedand processed Mr Peters' application was irrelevant to the issues before the Court.The topic was only addressed in submissions out of an abundance of caution.We agree this topic is irrelevant, and we need not address it.[200] Nor need we consider whether there was a justification for the briefingprovided by Mr Boyle to Ms Bennett under the "no surprises" principle. For thereasons explained above, the merits of a chief executive's decision to brief theirMinister are not relevant in this context.[201] For the same reason, we do not need to consider Ms Casey's submissions aboutthe limited weight that was given to Sir Maarten's evidence concerning thejustification for the particular briefings given by these Chief Executives to theirMinisters. We have accepted as accurate, and helpful, Sir Maarten's evidence aboutthe relationship between a chief executive and a Minister. That evidence confirmedour view that the relationship is one of trust and confidence, into which the tort ofinvasion of privacy ought not to intrude in the absence of bad faith. It is unnecessaryfor us to go further.[202] We also decline to embark on a consideration of the damages that might havebeen recoverable in respect of a wrongful disclosure to the media, in circumstanceswhere none of the defendants has been shown to be responsible for that disclosure.Result[203] The application for leave to adduce further evidence is declined.[204] The appeal is dismissed.[205] Mr Peters must pay the respondents one set of costs for a standard appeal ona band A basis, with usual disbursements. We certify for second counsel.Solicitors:Clifton Killip Lyon, Auckland for AppellantCrown Law Office, Wellington for Respondents