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Peters v Bennett [2018] NZHC 2206 (27 August 2018)

Last Updated: 12 March 2019

JUDGMENT OF VENNING J

Re: Application to Transfer Proceedings

Solicitors:

This judgment was delivered by me on 27 August 2018 at 10.30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Clifton Killip Lyon, Auckland Crown Law Office, Wellington

PETERS v BENNETT & ORS [2018] NZHC 2206 [27 August 2018]

[1] The second, fourth and fifth defendants (the Crown defendants) apply for an order transferring the claim and all documents filed in this proceeding from the Auckland registry of the High Court to the Wellington registry of the High Court.

[2] The application is made on the grounds that the proceeding was commenced in the wrong registry. The Crown defendants rely on rule 5.1(c). They also argue that rule 1.2 applies.

[3] The application is opposed by the plaintiff. The first and third defendants abide the decision of the Court.

[4] Rule 5.1(1)(c) of the High Court Rules provides:

(c) when the Crown is a defendant, the registry nearest to the place where the cause of action or a material part of it arose:

[5] The plaintiff’s claim against the defendants alleges interference with his privacy, particularly his privacy in relation to his dealing with the Ministry of Social Development (MSD) regarding his entitlement to superannuation.

[6] The two fundamental requirements for a claim for interference with privacy are:

(a) the existence of facts in respect of which there is a reasonable expectation of privacy; and
(b) publicity given to those private facts that would be considered highly offensive to an objective, reasonable person.

[7] The plaintiff alleges that his privacy was breached by the various defendants during the course of various meetings or disclosures in July and August 2017.

[8] The Crown say that the plaintiff’s allegations against the first and third defendant are that the disclosure occurred on 1 August 2017 and 31 July 2017 at meetings held in ministerial offices in Wellington.
[9] The claim against the second defendant arises as a result of an alleged disclosure from the fifth defendant to the second defendant that took place in Wellington on 20 July 2017 and then on 1 August 2017 at a meeting held in ministerial offices in Wellington. As against the fourth and fifth defendants the cause of action is alleged to have arisen as a result of an alleged disclosure to the second defendant that took place in Wellington on 31 July 2017 at a meeting in the ministerial offices and on 15 August 2017 as a result of conveyance to the third defendant of a written memorandum that took place in Wellington.

[10] As against the fourth defendant the breach is said to extend to its failure to have in place systems to secure personal information.

[11] I agree with Mr Fisher that the focus of the second part of the cause of action, namely the publicity of the private facts, is Wellington based. (In making that observation I note the point made by Mr Richards for the first and third defendants, that it is not accepted the other aspect of the second part of the cause of action, namely that disclosure would be considered highly offensive is made out.)

[12] The real issue is whether Mr Peters’ dealings with MSD and the disclosure of his private information to MSD in Auckland is a material part of the first aspect of the cause of action.

[13] Mr Henry submits that a material part of the cause of action arose in Auckland as it was the Auckland office of the Ministry of Social Development that has at all times been the office responsible in respect of the matters in issue. It was the Auckland office to which the plaintiff applied for superannuation. It is the Auckland office which Mr Peters’ partner attended. It is the Auckland office that corresponded with Mr Peters and it is the Auckland office Mr Peters dealt with to attend to the issue of the overpayment. Mr Henry submitted it is the Auckland office of MSD that is the government department responsible.

[14] As Asher J noted in K v Chief Executive, Department of Labour:1

¹ K v Chief Executive, Department of Labour [2009] NZHC 1512; 19 PRNZ 222.

[17] The concept of “part of the cause of action” is difficult to define with

precision. Clearly, as Lord Esher in Read v Brown (1888) 22 QBD 128, 131 (CA) stated, it is:

every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.

[18] The concept was considered by McGechan J in National Bank of New Zealand Limited v Glennie (1992) 6 PRNZ 292 at 294:

A cause of action is an assembly of facts which entitles a plaintiff to relief (including discretionary relief). The meaning of "part" of a cause of action is self-evident accordingly. However, the mere circumstance of being "part" of a cause of action will not suffice in itself. The policy in r 107 is to exclude merely trivial parts, conferring rights only where the part cause of action concerned is "material". The distinction is one of degree, looking to relative significance in the context of the particular claim. In a r 107 context, the assessment is to be made on the basis of the statement of claim, as filed. One looks to the allegations, in so far as components of the cause of action, as so made, to determine such "materiality".

I accept the often quoted statement of Quilliam J in Colman v Attorney- General (1978) 3 PRNZ 577 in a similar context of “material” being “pertinent, germane or essential to”.

[19] Materiality is considered on the basis of the allegations in the statement of claim: National Bank of NZ Ltd v Glennie (1992) 6 PRNZ 292,

294. It is irrelevant that a particular part of the cause of action may turn out to be uncontested: Krone (NZ) Technique Ltd v Connector Systems Ltd [1988] NZHC 549; (1988) 2 PRNZ 627 at 629. However, a minor background aspect of the cause of action will not be enough. The line between background facts and those sufficiently germane is ultimately imprecise, and turns on the Court’s perception of relevance.

[15] Mr Fisher argues that the first element has no geographical element. But the facts had to be disclosed somewhere in order for them to come into existence. The facts which it is said raise the expectation of privacy were disclosed by Mr Peters in Auckland.

[16] Next, Mr Fisher argues that Mr Peters’ dealings with the Auckland office of MSD were not sufficiently “pertinent, germane or enacted” to be a material part of the cause of action. But, the fact that the disclosure by Mr Peters of information to MSD
is not in issue in the claim is irrelevant on this issue.2 The disclosure of private information was still an important feature of the first aspect of the claim.

[17] As Asher J observed in K v Chief Executive, Department of Labour:

[24] It is useful to consider materiality decisions in other areas of law. Material parts of a cause of action for breach of contract are not limited to the place where the contract was breached: Anderson v Tuapeka County Council [1899] NZGazLawRp 112; (1899) 18 NZLR 509, 510, Scoula Co. Ltd v Hall [1930] NZLR 434, Tag Corp v Paper Sales (NZ) Ltd (1990) 2 PRNZ 440. So too in a Fair Trading Act claim, the place where the plaintiffs were misled or deceived may be a material part of the cause of action, as well as the place where the deceptive conduct occurred: McArdle v BNZ Finance Ltd (1990) 4 PRNZ 653, 654, Master Hansen. So here, the material parts of judicial review causes of action are not necessarily limited to the place of the decision under review. When a finding of fairness or lawfulness in judicial review involves evaluation of a significant issue of fact which arose or arises in a certain registry area, a material part of the cause of action can be said to arise in that area.

[18] I consider that the disclosure of the private facts by Mr Peters to the Auckland office of MSD was a relevant and material part of the cause of action even though ultimately that disclosure may not be in issue.

[19] Mr Fisher sought to argue that the disclosure in Auckland could not be relevant to the claim against the second and fifth defendants, but if the facts had not been disclosed by Mr Peters in Auckland and held in the officer there, they could not have been transmitted to Wellington where the disclosure involving the second and fifth defendants occurred.

[20] The second basis for the application for transfer is, in my view, premature. When the witnesses are identified, it may be more convenient for the trial to be held in Wellington, and rule 5.1(5) might be engaged. That can be revisited at a later and more appropriate time.

Result

[21] The application for transfer is dismissed. Costs are awarded to the plaintiff on a 2B basis plus disbursements.

² Krone (New Zealand) Technique Ltd v Connector System Ltd [1988] NZHC 549; (1988) 2 PRNZ 627 at 629.

Timetable

[22] At the conclusion of the hearing on transfer counsel discussed the issue of the timetable to advance the proceeding. Mr Henry sought orders for discovery. Ms Wills resisted discovery at this stage, noting that the Crown defendants had sought further particulars of the claim. While Mr Henry accepts the plaintiff’s claim will have to be repleaded and refined, he says the plaintiff needs discovery to enable him to do so in a meaningful way. As discussed with counsel, the Court is often faced with such an impasse. There are apparent deficiencies in the plaintiff’s claim at present but the defendants have been able to plead to the claim as it stands. Mr Henry has also clarified by way of memorandum that the plaintiff relies on the tort as discussed in Hosking v Runton.3

[23] I consider Ms Wills overstates the difficulties faced in completing discovery particularly if, as proposed, discovery is limited to discovery relevant to the tort of breach of privacy as currently understood and in relation to the fourth defendant to policies relating to the maintenance of private information as private.

I make the following directions:

(a) All parties are to provide discovery in accordance with rule 8.7 on that basis. The affidavits are to be filed and served by 5:00pm, Friday 26 October 2018.

(b) Inspection is to be completed by 5:00pm, Friday 30 November 2018.

(c) The plaintiff is to file and serve an amended statement of claim by 5:00pm, Wednesday 19 December 2018.

Fixture date

[24] Again, as discussed with counsel, the Court has pencilled in a two – three week commencing on 4 November 2019. That date and exact length will be confirmed at a later telephone conference.

³ Hosking v Runton [2004] NZCA 34; [2005] 1 NZLR 1.

[25] The file will be reviewed at a telephone conference at 9:00 am on Tuesday 12 February 2019.

[26] Leave is reserved to all parties to seek an earlier conference on 48 hours notice.





Venning J