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Hyndman v Walker [2021] NZSC 58 (9 June 2021)

Last Updated: 9 June 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

2. The applicant must pay the respondent costs of $2,500.

____________________________________________________________________

REASONS

Introduction

• [1] The High Court dismissed Mr Hyndman’s tort claim for invasion of privacy, finding that he had a reasonable expectation of privacy in certain private communications but that their disclosure by Mr Walker did not meet the highly offensive threshold designed to discourage trivial claims.^[1]
• [2] The Court of Appeal dismissed Mr Hyndman’s appeal against that decision.^[2] The Court said:

[2] In this appeal Mr Hyndman asks us to modify the elements of the tort by removing the “highly offensive” requirement; alternatively, to find that, when the test is properly applied, Mr Walker’s behaviour and the circumstances of his disclosure were highly offensive and justify a declaration and a modest award of damages.

[3] As we explain later, we consider this tort may well benefit from re‑examination, and the opportunity to re-examine it very seldom arises. But it is not possible to remove the “highly offensive” requirement without reformulating the tort, and that is an exercise that courts must undertake with care having regard to the treatment accorded to privacy generally in New Zealand law and the need to balance rights of privacy against those of free expression. This case does not engage the latter rights, and for that reason it is an unsatisfactory vehicle for the reform counsel have asked us to undertake. Further, while Mr Walker’s conduct merits condemnation, Thomas J rightly found that the alleged breach of Mr Hyndman’s privacy was trifling. We also conclude that the claim would fail even if we were to adopt the more liberal formulation used in English law.

• [3] Mr Hyndman applies for leave to appeal against the Court of Appeal decision.

Ground of appeal

• [4] Mr Hyndman renews his submission made in the Court of Appeal that the tort of invasion of privacy needs modification and, in particular, he submits that the second limb of the test should not remain as a stand-alone test. He submits that the test in the United Kingdom strikes the right balance and in particular between free expression and privacy.
• [5] Mr Hyndman submits that this is the first case since Hosking v Runting^[3] where the issue has come before the Supreme Court. He submits that it is a matter of public importance because of the “seismic shift” since Hosking in the way in which private and public bodies collect and distribute private material and because of society’s changing views on the importance of the right to personal autonomy. He says that privacy cases are scarce at appellate level and therefore this case should be used as the vehicle for considering possible reform. He also submits that, because the content of the material disclosed was relatively benign, this forces the discussion to focus on the underlying purpose of the tort and what the law is trying to protect.
• [6] In addition, Mr Hyndman disagrees with the Court of Appeal that his case would fail under the United Kingdom test. He says that the circumstances of the disclosure and the fact that Mr Walker was a liquidator performing a statutory duty would lead to an actionable breach.

Grounds of opposition

• [7] Mr Walker opposes leave on two main grounds:

(a) The “substantial reform” of the tort proposed by Mr Hyndman cannot occur in a vacuum and without being able to balance rights of privacy against those of freedom of expression. This case does not engage any issues around freedom of expression.

(b) Even if the law of privacy were reformulated along the lines proposed by Mr Hyndman, he would still be unsuccessful in his claim. The disclosures were, in the words of the High Court, “fairly minor in the scheme of things”,^[4] in the words of the Court of Appeal, “trifling”,^[5] and even in Mr Hyndman’s own words, “relatively benign”. The futility of any appeal weighs heavily against the grant of leave.

Our assessment

• [8] The proposed appeal does not, for the reasons given by the Court of Appeal,^[6] provide a suitable vehicle for a reconsideration of the tort of invasion of privacy.
• [9] We also note the finding by the Court of Appeal that the same result would have been reached on the United Kingdom test. We acknowledge Mr Hyndman does not agree with the finding, but because this case is not suitable for reconsidering the tort of privacy, the point is academic. In any event, the finding of both the Courts below was that the alleged breach was not serious.

Result

• [10] The application for leave to appeal is dismissed.
• [11] The applicant must pay the respondent costs of $2,500.

Solicitors:
Canterbury Legal, Christchurch for Applicant
Luke Cunningham & Clere, Wellington for Respondent

^[1] Hyndman v Walker [2019] NZHC 2188 (Thomas J) [HC judgment], citing Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

^[2] Hyndman v Walker [2021] NZCA 25 (Miller, Clifford and Collins JJ) [CA judgment].

^[3] Hosking v Runting, above n 1.

^[4] Hyndman v Walker [2019] NZHC 3021 (Thomas J) at [13].

^[5] CA judgment, above n 2, at [3] and [76].

^[6] See above at [2].