Tim Murphy
Auckland, November 7, 2019
New details have emerged of who told whom the supposed secret of New Zealand First leader Winston Peters’ seven-year superannuation overpayment before it was made public. Tim Murphy reports from day three of Peters’ lawsuit against the Crown and National MPs.
Former National Minister Anne Tolley told her husband and her sister about Winston Peters being overpaid superannuation after she was briefed by the head of the Ministry of Social Development.
Tolley sought her husband’s advice when she went home from Parliament over a weekend on whether she should ask the Ministry for a written briefing on Peters’ overpayment and subsequent repayment of $18,000 to the Crown.
Whistle-blower and others
Her lawyer’s opening submissions to the High Court hearing of Peters’ case for damages from Tolley, her former ministerial colleague Paula Bennett, government agencies and officials says she also mentioned “the general matter” to her sister, but notes that was after a whistle-blower had already contacted media organisations.
The statement by Bruce Gray QC shows Tolley told the former Prime Minister’s Chief of Staff Wayne Eagleson about the issue to seek advice on the matter, and also told a senior staff member in her office.
Peters seeks $450,000 from five defendants, the two former Ministers, the Attorney-General (on behalf of the Ministry of Social Development), its former Chief Executive Brendan Boyle and the State Services Commissioner Peter Hughes.
Defendants’ resistance
Tolley and Bennett reject Peters’ claim that under the legal principle of ‘res ipsa loquitur’ or ‘let the thing speak for itself’, Chief High Court Judge Geoffrey Venning should infer they disclosed the Peters’ information publicly.
Gray said: “They resist this. They say that neither of them disclosed the information.”
His opening, and an attached chronology, also revealed how and why a third Minister, Steven Joyce, learned of an imminent story about Peters.
Tweets by the writer of this article that an unspecified, major issue could be about to break in the media appear to have prompted Paula Bennett, within hours of the first tweet on the afternoon of Saturday August 26, 2017, to tell then-Prime Minister Bill English about the Peters’ overpayment, and then Joyce.
“The evidence will be that Bennett was the subject of intense gossip. Minister Joyce was concerned about her and about the possibility that the major news story media outlets were foreshadowing would be about her.
“She told him that she thought the story would be about the plaintiff [Peters] rather than about her. This occurred after disclosure had been made to the media outlets.”
Anonymous Phone calls
Newshub and Newsroom had received anonymous phone calls on August 23 and August 25 with information about the Peters overpayment.
After the August 26 tweets, Newshub Political Reporter Lloyd Burr questioned Peters directly on the superannuation overpayment of $18,000.
The next day Peters issued a press release confirming he had received too much superannuation for seven years after an error had been made, he had repaid it once notified, and the matter was closed.
Three investigations followed – by the State Services Commission, Inland Revenue and the Department of Internal Affairs – but no evidence was found to indicate any of the 41 staff at MSD who had come to know about it was the source of the leak, and there was no evidence that five ministerial services staff or one private secretary who knew about it had been responsible for the revelation.
Gray’s opening submission on Wednesday said the Ministers received the briefings under the public service’s no surprises policy.
“Although the decision to brief the ministers was one for officials, [Bennett] and [Tolley] believed they were accountable to Parliament and to the public for the operation of their departments.
They therefore believed they were accountable for consistency of treatment between citizens, notwithstanding the status of [Peters]. This was consistent with the Cabinet Manual.”
Gray said Peters’ lawyer had “dealt with the payment irregularity as if it were an allegation of fraud by the plaintiff” but it was a mistake over an incomplete form.
Peters to explain
Peters would have to explain why the information about his overpayment was “sensitive” in the way the word was used in the tort of privacy.
His claim for damages was over the effect on his reputation, and the manner in which the publication occurred. That was similar to a defamation argument.
But Gray said: “Defamation deals with the publication of untrue facts. This case involves the publication of true facts.”
While Peters argued he had an expectation of privacy, “sadly for those who bring themselves into the public eye, it’s not one-size-fits-all. It is case-by-case and person-by-person.
“For senior politicians seeking high office there are things which the public are legitimately interested in and may be entitled to know, that need to be considered.”
Tolley is set to give evidence, and can expect to be cross-examined by Peters’ lawyer Brian Henry, on Thursday morning, and Bennett later that day.
Tim Murphy is Co-Founder and Co-Editor of the Newsroom based in Auckland. The above article has been published under a Special Agreement.
