Graeme Edgeler: Winston Peters’ privacy and what it tells us about access to justice

8:07 pm on 21 July 2020

Winston Peters can probably afford to pay the $320,000 costs awards against him in his unsuccessful attempt to sue over the leak of his superannuation information, but in reviewing the outcome of this important case, lawyer Graeme Edgeler argues that it shows just how broken the litigation system is, leading to a less democratic society.

Opinion - An appeal has already been filed, but Winston Peters' privacy action against Anne Tolley, Paula Bennett, State Services Commissioner Peter Hughes, former Ministry of Social Development (MSD) chief executive Brendan Boyle, and the MSD is now over in the High Court, with a release of a decision awarding costs to the successful defendants.

Winston Peters in court during his legal claim for a breach of privacy.

Winston Peters in court during his legal claim for a breach of privacy. Photo: RNZ / Claire Eastham-Farrelly

Peters established much of his claim: the High Court ruled that there had been a deliberate breach of his privacy rights by the release of the information to news media, but he was ultimately unsuccessful as he couldn't show who had leaked it.

I have made no secret of the fact that I hoped Peters would succeed, although I thought taking a Privacy Act claim in the Human Rights Review Tribunal, rather than a privacy tort claim in the High Court would have been a better approach. The use of personal information in this way, and even the mere release of personal information of this nature to a minister, with the intention that it go no further, struck me as highly problematic.

I'm not sure that Peters has a great chance of success on the appeal - the evidential difficulties in proving who leaked the information to news media remain. There remains some hope for Peters, the High Court judge was very close to finding that even release of Peters' name to the ministers by the relevant departmental chief executives was improper, but determined that in the circumstances of the case, with close proximity to an investigation of another Member of Parliament, Metiria Turei, there was a heightened need for the minister to be informed.

I would very much like to see the "no surprises" principle reduced, especially where there are conflicting obligations under the Privacy Act (given the Privacy Act is legislation, it seems clear it should prevail). And while it would have been good for the Court to have ruled in a way which limited its effect, because the claim was not one under the Privacy Act, this was always unlikely.

There is another option, of course: the no surprises principle isn't "law" - it's simply stated in the Cabinet Manual, which Cabinet could change. Peters is the deputy prime minister, and a member of Cabinet: and as he didn't have success in the Courts in vindicating his rights, he could push for it to be changed for the rest of us. That wouldn't fix the breach of privacy that occurred in his case, but it would hopefully make similar breaches less likely in the future.

But there is another aspect of this case that concerns me today. Peters lost and as usually happens when someone loses a civil claim in New Zealand, the Court ordered that the party that lost make a contribution towards the legal fees of the party that succeeded. In this case, Peters was ordered to pay around $320,000. He wasn't ordered to pay all of the defendants' costs, which are likely to have been substantially higher.

This is an utterly ridiculous sum. The numbers don't surprise me: I know that litigation is expensive, but the legal system should be embarrassed that a claim of this nature, even one that was ultimately unsuccessful, could result in the losing party being ordered to pay so exorbitant a sum.

Now, Peters' claim was probably more complex than most civil claims. There were five defendants and three sets of lawyers. And while it's well short of the most complex commercial disputes, an eight-day civil trial is relatively lengthy. But still. $320,000 in costs covering only some of the expense incurred in defending the claim shows how expensive legal action has become. A $320,000 bill would be ruinous for most people, without even taking account of the costs of taking the action, and given the finding that Peters' privacy was breached, and the Court accepts it was (albeit Peters was unable to prove by whom).

Equally, of course, people defending claims shouldn't be put in the position where they have to spend ruinously large sums either (although, in this case, the defence was government-funded).

The court system should not be so hideously expensive that it is beyond the reach of ordinary people. And it clearly is. This isn't the only case where this is apparent.

As part of the Victoria University of Wellington Law Faculty's "legal lowdown on the lockdown" video series, Professor Petra Butler noted the distinct lack of cases challenging government actions in imposing the lockdown, when contrasted, for example, with a country like Germany. Government decisions around compassionate release from isolation - which were ignoring the clear words of the law - were ripe for challenge, with many people refused release while the government was ignoring the words of the rules it had adopted to govern the process, but it wasn't until a challenge from an individual who wished to see his dying father - who happened to be a retired associate High Court judge - that this was tested and found wanting.

An important part of protecting the rule of law is ensuring access to the Courts to enforce your rights. But seeking to do so in circumstances where most people would risk a costs bill they could not hope to afford if they failed, let alone a legal bill they could not hope to meet even if they won. Because, really, Peters is going to be fine, but there are substantial areas with unmet legal need - I can't help but think that if the legal system was set up differently, the 2014 discovery of a 1993 error resulting in decades of underpayment of beneficiaries, might have come many years earlier.

Government underfunding of legal aid, as well as the legal system, the lawyers working within it, have ensured that even moderately complex litigation is beyond the means of a substantial portion of the public, and our society is more capricious and less democratic because of it.

*Graeme Edgeler is a Wellington barrister, with a professional interest in constitutional and electoral law

- This column was originally published on The Democracy Project and is republished with permission.

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