[1] Ian Hyndman is a close friend of David Henderson, a Christchurch businessman, who has been engaged in a protracted battle with Robert Walker, the liquidator of Property Ventures Ltd (PVL) and a number of other companies of which David Henderson was formerly a director. The battle between Mr Henderson and Mr Walker has become personal. Mr Walker came into possession of a laptop owned by PVL but used by Mr Henderson for business and personal matters (the Laptop). Mr Walker or his agents disclosed some of that information to the IRD, the Official Assignee and other third parties. Mr Hyndman claims his private and confidential information was included in those disclosures and he has brought proceedings against Mr Walker claiming breach of confidential information, breach of privacy, misfeasance in public office, breach of statutory duty and contempt of court.

[2] These proceedings and the factual and legal context are closely tied to parallel proceedings brought by Mr Henderson under CIV-2014-409-45 and the subject of a separate decision.¹

[3] Mr Hyndman seeks declarations in respect of his five causes of action, orders that Mr Walker provide a schedule of material accessed and to whom it has been distributed and $50,000 for personal anguish, humiliation and stress.

[4] Mr Walker denies that he made any unlawful disclosures and, even if he did, says that none met the required standard to establish the various claims.

¹Henderson v Walker [2019] NZHC 2184.

Background

[5] PVL was placed into receivership in March 2010 and liquidated on 27 July 2010, but the liquidation was stayed until 8 February 2012. This caused Mr Walker some considerable frustration. However, on 13 December 2010, Mr Walker was appointed liquidator of five companies that were members of the wider PVL group and of which Mr Henderson was a former director. Mr Henderson had been adjudicated bankrupt on 29 November 2010.

[6] Frustrated at what he saw as deliberate non-compliance by Mr Henderson with his notice pursuant to s 261 of the Companies Act 1993, requiring the records of the five companies, Mr Walker alerted the police to what he considered was Mr Henderson’s criminal behaviour by repeated failures to comply with the s 261 notice.²

[7] Following the devastating earthquake in Christchurch on 22 February 2011, a red zone was erected around the central business district, which included Mr Henderson’s business premises. Following approval, Mr Henderson entered the Christchurch red zone and removed the server for PVL.

[8] Following intervention by both Mr Walker and the receiver for PVL, on 6 April 2011 the New Zealand Police were granted search warrants in respect of Mr Henderson’s business premises at 96 and 110 Lichfield Street, Christchurch (the Warrants). The police removed boxes of materials, computers and the Laptop. They also removed a tape drive, which was a backup of PVL’s server (the Tape Drive). The seized items were provided to Mr Walker.

[9] Mr Henderson has since obtained a declaration that the Warrants were unlawful and inconsistent with s 21 of the New Zealand Bill of Rights Act 1990.³Mr Walker’s role in holding the materials seized as a result of the Warrants is discussed later in this decision but Mr Hyndman's position is that Mr Walker can only have held those

²Companies Act 1993, s 258A.

³GP96 Ltd v Attorney-General HC Christchurch CIV-2014-009-366, 7 May 2015.

materials as agent of the police because the purpose of the Warrants was to seize the materials in order to determine whether a criminal offence had been committed.

[10] There was media interest in these events, the fact of the Warrants being reported both by Stuff and The National Business Review (NBR). On 27 May 2011, NBR published an article headlined, “Who Snitched on Hendo to SFO?”. The article referred to Mr Walker’s delivery to the Serious Fraud Office of more than 7,000 documents about “numerous inter-company transactions within the Property Ventures group”. It recorded Mr Walker as having told the NBR he was absolutely determined in his pursuit of Mr Henderson, which had involved the Warrants in order to obtain documents. It quoted Mr Walker as saying:

I have about 45,000 emails from him and a great deal of other evidence. He’s been saying a lot of interesting things.

[11] Concerned about whether Mr Walker had access to his private information and worried about what he might do with it, Mr Henderson engaged a private investigator, Wayne Idour. Mr Idour telephoned Mr Walker in early June 2011 and recorded that telephone conversation. Although there is some dispute about whether Mr Idour misrepresented himself by saying he was phoning on behalf of a number of creditors or, as Mr Henderson contended, he was effectively phoning on behalf of Mr Henderson as a creditor, there is no doubt Mr Walker said some revealing things in that telephone conversation. He told Mr Idour he held Mr Henderson’s personal computer with over 5,000 emails. Mr Walker made his personal feelings about Mr Henderson abundantly clear, using derogatory terms. He described Mr Henderson as not thinking the law applied to him but then said, by holding Mr Henderson’s personal computer, “I hold vast amounts of information”. He alluded to the fact he was not entirely clear whether he had a “complete legal right to all this stuff”. He referred to Mr Henderson’s access to the red zone, taking the main computer, and then said:

And that’s where all the data’s sitting. But there was a umm tape backup. I can’t access it but we’ve got it. We’ve also got other sources of information, I’ve tried to build it all up, but it’s incredibly difficult and I’m getting resistance here, there and everywhere. I can see, I can get that basically I’ve probably got more information than I can ever deal with to be honest umm and not withstanding that I’m kinda at the margins of the law of being able to give people stuff. I mean, no doubt he’ll start squealing about the Privacy Act

in the near future and I’ll just say “little pricks like you – you have no rights, see you in Court, Fuck Off”.

[12] Mr Walker suggested that Mr Idour could “come and look at everything”. He said he did not know how far he could go and again referred to privacy issues. He then commented that he would push it right up to the edge and slightly beyond because he knew Mr Henderson had no means of enforcing anything against him.

[13] Throughout 2011 and 2012, Mr Henderson complained on multiple occasions to the police, Mr Walker and the Official Assignee about his private information being held and distributed by Mr Walker. Eventually, around September 2012, Mr Walker confirmed, following a memorandum of arrangement he entered into with the police, that he had returned to the police all the records he obtained following the execution of the Warrants (other than information related directly to the companies of which he was liquidator).

[14] After investigation, the police decided not to pursue the alleged criminal offending and applied to the District Court for directions under s 199 of the Summary Proceedings Act as to who was entitled to the material seized pursuant to the Warrants.⁴Around the same time, Mr Walker applied to the High Court for directions under s 266 of the Companies Act regarding return of the information to which he claimed he was entitled as liquidator. By this time, the stay of PVL’s liquidation had been lifted.

[15] The District Court ordered the return of the Tape Drive.⁵By this stage the Laptop had been returned to Mr Henderson. Associate Judge Osborne (as he then was) considered orders for possession of the electronic data copied from the Laptop.⁶

[16] Associate Judge Osborne noted Mr Walker’s undertaking that his immediate need for the documents was in relation to civil proceedings before the High Court that were potentially affected by statutory limitations under the Limitation Act 2010. He specifically referred to Mr Walker’s undertaking that he would not disclose

⁴The application was made prior to the Search and Surveillance Act 2012 coming into force.

⁵Riach v Property Ventures Ltd DC Christchurch CIV-2012-009-2031, 13 May 2013.

⁶Associate Judge Osborne became a High Court Judge in 2018.

information that may have been contained on the external hard drive of the Laptop that was not relevant or that was privileged.⁷

[17] Associate Judge Osborne was in no doubt that the physical property sought by Mr Walker was his property as liquidator. In respect of the personal information contained on the hard drive, Associate Judge Osborne said:

[48] At some point in the history of his involvement with the various Henderson companies and his control of his personal affairs, Mr Henderson, (or his employees) chose to carry on the hard drive of the laptop information relating to the affairs of a number of different legal persons. Once that decision and practice was adopted, there would be an intermingling to be dealt with in the event that any of those persons was subsequently placed either in bankruptcy or in liquidation. The legal right to access of documents relating to the affairs of those persons would pass to their administrator. That is precisely what has happened in this case with the liquidation of Property Ventures and a number of other companies in the group.

[49] The real issue of substance in this case is not whether the liquidator of Property Ventures and other companies in the group should have access to documents related to the affairs of Property Ventures and the group. Rather, the issue is how that should be done assuming that some of the documents held on the hard drives may arguably relate solely to other persons.

[18] Associate Judge Osborne directed the police to deliver to Mr Walker the external hard drive and flash drives on which were stored electronic data extracted from the Laptop. He directed Mr Walker to complete a list categorising the electronic documents as follows:

(i) Documents required to be disclosed by the liquidator in relation to existing High Court proceedings;

(ii) Documents which relate to the affairs of Property Ventures Ltd or any related company of which the liquidator is liquidator, other than documents which are disclosed under paragraph (b)(i) above;

(iii) Documents which do not fall into either of the preceding ((i) or (ii)) categories.

[19] The Tape Drive was a backup of PVL’s server and included a backup of the Laptop. The Laptop (and therefore the Tape Drive) contained documents of a private nature (the Private Documents). They included personal emails between Mr Henderson and his wife; personal emails between Mr Henderson and his friends

⁷At [44].

(including Mr Hyndman); personal photographs; legally privileged material; and emails unrelated to the affairs of the companies of which Mr Walker was liquidator.

[20] Mr Walker accepted the Private Documents were private.⁸

[21] Between April 2011 and February 2016, Mr Walker made various distributions of Mr Henderson’s private information to the IRD, the office of the Official Assignee, the police, lawyers, and three distributions to private individuals.

Alleged distributions of Mr Hyndman’s private information

[22] Following Mr Henderson’s bankruptcy, Mr Hyndman became director of a number of companies of which Mr Henderson could no longer be a director. On 9 February 2012, Mr Walker and John Scutter were, between them, appointed liquidators of 15 companies in respect of which Mr Hyndman was a director. Mr Hyndman believes he was caught in the cross-fire of the enmity between Mr Walker and Mr Henderson and that Mr Walker provided his private information to outsiders.

[23] The breaches of privacy that Mr Hyndman considers most egregious are Mr Walker’s alleged provisions of personal information to Garry Holden. Mr Holden was the partner of Mr Hyndman’s former de facto partner. He had no interest in PVL or any of the group companies but intensely disliked Mr Hyndman (and by association Mr Henderson).

[24] Mr Holden had harassed Mr Hyndman for around three years, mainly by abusive text and email messages. By 24 February 2012, Mr Walker was on notice that Mr Hyndman was being harassed by Mr Holden.

[25] In 2014, Mr Hyndman laid a criminal complaint with the police and successfully applied for a three-year restraining order against Mr Holden under the

Mr Walker questioned whether legal privilege attached to some of them, contending that the privilege belonged to him as liquidator of the various companies. That proposition was not pursued by his counsel.

Harassment Act 1997. Mr Holden was interviewed by the police and admitted sending the texts and emails.

[26] When interviewed by the police as a result of Mr Hyndman’s complaint of criminal harassment in February 2014, Mr Holden admitted being good friends with Mr Walker, saying they got on like a house on fire.

[27] Mr Hyndman maintains that Mr Walker passed his private information to Mr Holden. Mr Hyndman claims that, from 21 July 2011, Mr Holden sent a series of text messages to him referring to information that could only have come from the Laptop. He claims Mr Walker either provided this information directly to Mr Holden or to Mr Thorne (who had a gripe against Mr Henderson), who in turn sent it on to Mr Holden.

May 2011

[28] Mr Hyndman alleges he received a text message from Mr Holden on 9 May 2011 that said:

Robert Walker, what a good man, he on the case of Hynd and Hend, everyone assisting. How sweet it is!

[29] Mr Fowler QC, for Mr Walker, submitted that, at its highest, this alleged⁹text message would suggest Mr Walker had made Mr Holden aware that he was pursuing both Mr Hyndman and Mr Henderson.

[30] Given Mr Walker had been appointed liquidator of PVL and other PVL companies in December 2010, Mr Fowler submitted that Mr Holden could have obtained this information from any other source. There was nothing in the text message that could be considered inherently confidential or private and, as Mr Moss for Mr Hyndman acknowledged, it was contextual only.

While this text message was referred to in Mr Hyndman’s second amended statement of claim, it was not included in evidence. Nor did Mr Walker concede this fact. Ultimately, however, nothing turns on this text message.

September 2011

[31] On 22 September 2011, Mr Hyndman received a series of text messages from Mr Holden saying:

P.s. Wayne is working for me!

He even got me copies emails between you and H. Back then you stated I was pot smoker and pokie addict, great emails. Your number now blocked.

[32] It does not appear to be in dispute that the reference to Wayne must be to Wayne Idour, the private investigator who recorded the telephone call he held with Mr Walker. Mr Hyndman says the email Mr Holden refers to is a personal email between him and Mr Henderson on the Laptop, which (jokingly) insinuated that Mr Holden smoked cannabis and was addicted to gambling. The context for the exchange between Mr Henderson and Mr Hyndman was an aggressive and abusive email Mr Holden sent Mr Hyndman, which Mr Hyndman forwarded to Mr Henderson. Mr Henderson then replied to Mr Holden on 26 July 2010 with a tongue-in-cheek draft message for Mr Hyndman to send to Mr Holden – which Mr Hyndman says he never did. All he did with it was forward it to the lawyer acting for him at the time.

[33] In this email, Mr Henderson drafted the comment:

Given you are now driving buses, I am left to assume the pokies and the dope cleaned out your share ...

[34] It is difficult to ignore the remarkable coincidence between the language employed by Mr Henderson in the draft email and Mr Holden’s text to Mr Hyndman. Mr Walker categorically denied forwarding this email to Mr Holden or Mr Thorne. He said, once he understood Mr Holden’s behaviour, he wanted nothing more to do with him. It is fair to say, however, Mr Walker was somewhat more equivocal as to whether his agent, Mr Eathorne,¹⁰might have forwarded the email to Mr Thorne and he could not categorically refute the proposition that Mr Thorne forwarded that email to Mr Holden.

¹⁰Mr Eathorne was either an employee of, or contractor to, Mr Walker.

[35] Mr Fowler put to Mr Hyndman in cross-examination that the reference to “Wayne” was to Wayne Idour, the private investigator hired by Mr Henderson, and that it was Mr Idour who provided the email to Mr Holden. Unfortunately, Mr Idour has since died and was unable to give evidence. Mr Hyndman strongly refuted the suggestion that Mr Idour was working for Mr Holden. Mr Hyndman gave evidence he checked this with Mr Idour, who denied having ever worked for Mr Holden (or Mr Walker).

[36] In Mr Fowler’s submission, it was implausible to suggest that Mr Holden and Mr Walker conspired with each other to falsely attribute the source of the email to Mr Idour. However, I do not understand Mr Hyndman to have been suggesting any sort of collusion. When Mr Fowler put this proposition to Mr Hyndman in cross-examination, Mr Hyndman rejected it. Nor is it necessary to find collusion to reject the proposition that Mr Idour was the person who provided Mr Holden with the email. While Mr Fowler spoke of Mr Holden “covering for Mr Walker”, Mr Holden may have had any number of reasons for lying to Mr Hyndman. It is unnecessary to speculate on his motivations.

[37] A further difficulty for the theory Mr Idour provided the email to Mr Holden is the question of how Mr Idour could have come into possession of the email. Mr Hyndman’s evidence was that he only provided the email to Mr Henderson and his lawyer. Mr Walker then came into possession of Mr Henderson’s copy.

[38] On balance, I am satisfied Mr Holden indirectly obtained the email from Mr Walker, likely by Mr Eathorne providing it to Mr Thorne or to Mr Holden directly, a possibility not ruled out by Mr Walker’s evidence. That version of events is more plausible than Mr Idour providing it to Mr Holden, which is inconsistent with Mr Hyndman’s evidence. I accept that, if indeed the reference to “Wayne” does refer to Mr Idour, then Mr Holden’s text messages were not entirely truthful, for whatever reason.

February 2012

[39] At 1.20 pm on 20 February 2012, Mr Hyndman received a text message from Mr Holden that said:

Knock knock. Whos there ?. Robert. Robert who ?. Robert Walker, and he has you in his sights.

[40] At 3.02 pm on the same day, Mr Scutter emailed a letter to Mr Hyndman requesting disclosure of various information and documents in connection with the liquidations of companies in respect of which he was a director.

[41] This was the first communication Mr Walker or Mr Scutter sent to Mr Hyndman. Mr Moss posed the interesting question of how Mr Holden could have known Mr Walker had Mr Hyndman “in his sights” other than by Mr Walker telling Mr Holden of that (or alternatively telling Mr Thorne, who passed that information on to Mr Holden).

[42] Mr Walker denies telling Mr Holden of Mr Scutter’s appointment and says any concerns about timing are ultimately irrelevant because the companies in the PVL group were inevitably going to be placed into liquidation.

[43] I accept there was nothing private or confidential in Mr Scutter’s appointment. This is another example of context.

May 2012

[44] Mr Hyndman refers to an email from Mr Holden, under his pseudonym, to Mr Henderson on 5 May 2012 when Mr Holden told Mr Henderson that he understood Mr Henderson had called Mr Walker “a crook” recently. Three days earlier, Mr Henderson had emailed Mr Walker saying, amongst other things, that he was “a crook”. As I have observed in relation to Mr Henderson’s claim, the use of that same language in such close proximity in time, is nothing short of a remarkable coincidence. It is impossible to disregard an inference that Mr Henderson’s email was passed on either directly or indirectly to Mr Holden. There was no impact on Mr Hyndman, however, and, again, this email was referred to for context.

December 2012

[45] On 21 December 2012, a decision in Gibbston Downs Wines Ltd v Property Ventures Ltd (in liq and in rec) was released by the Registry to the lawyers for the parties.¹¹It was favourable to Mr Walker and included criticisms of Mr Henderson.

[46] On 27 December 2012, and before the decision had been released publicly or uploaded to legal databases, Mr Hyndman received a text message from Mr Holden, who was not involved in the proceeding, which said:

Copy of Osbournes judgement doing the rounds at The Monday Room. What a hoot. He can spot crooks when he sees them.

[47] On 29 December 2012, Mr Hyndman received another text message from Mr Holden, which said:

Yehaah, another win by Robert Walker over the crooks.

[48] Mr Walker denies supplying a copy of the judgment to Mr Holden and/or Mr Thorne.

[49] There is nothing private or confidential in a public court judgment but, again, this email is relevant context. In saying that, there was nothing to stop Mr Walker distributing that judgment amongst his contacts, whether or not he did so as a means to celebrate his success.

January 2013

[50] On 13 January 2013, Mr Hyndman received another text message from Mr Holden, which said:

Ho ho, you start email stating you owner caryard. Geez that says enough. Frank and honest?. Maybe then you should tell the buyers you send to bodgey finance mob, you get a 500 kickback!. Thank god the heroes of everyone, Walker, Van Beynen and a line up of ex cultists exposing you and your crook mate. You have no idea who sees your and the crooks emails, 100s people. Oh!, telling a male he looking good and so does he truck has huge homo connotations!

(emphasis added)

¹¹Gibbston Downs Wines Ltd v Property Ventures Ltd (in liq and in rec) [2012] NZHC 3592.

[51] While Mr Hyndman says this is indicative of the fact that a number of people have viewed his private emails, in Mr Fowler’s submission, the text message should not be read that way. He referred to the fact the text message discusses an article by journalist Martin van Beynen and submitted it was not evident what the message had to do with Mr Walker or his alleged involvement in the disclosure of Mr Hyndman’s personal information.

[52] In Mr Moss’ submission, the significance of the message is that it can be inferred the emails referred to are between Mr Hyndman and Mr Henderson. In this context he referred to the text message from Mr Holden on 22 September 2011 referring to emails between Mr Hyndman and Mr Henderson.

An inference of further distributions

[53] Another incident relevant to overall context was a message Mr Holden left on the answering machine of a relative of Mr Hyndman’s ex-partner on 11 November 2011. Mr Holden said, “I’m working with Robert Walker” and made a reference to Mr Hyndman sitting on a “red chair” and said he had tapes “from all the meetings”. There was evidence that, when Mr Henderson and his friends met, they would sit in red chairs. Mr Moss accepted that, while information about red chairs was not private, this message was relevant to an assessment of whether Mr Walker had disclosed information that would likely have been contained on the Laptop and Tape Drive.

[54] It is also relevant to an assessment of Mr Walker’s evidence that, once he discovered Mr Holden was “toxic”, he distanced himself from Mr Holden.

[55] Mr Hyndman is only aware (because Mr Holden has used the information to harass him) of the examples discussed above where he says Mr Walker disclosed private information to Mr Holden.

[56] Mr Hyndman suspects that the examples are not the only instances of such disclosures of private information to Mr Holden, or to other people, such as Mr Thorne, because:

(a) Mr Walker stated in his conversation with Mr Idour on 11 June 2011 that he would provide any personal information off the Laptop to anybody who wanted it.

(b) In the same conversation, Mr Walker made it clear that he did not care about the Privacy Act, was not going to spend money getting a legal opinion about the Privacy Act, and that people like Mr Henderson have no rights.

(c) In the same conversation, Mr Walker said that he was sick of laws applying to him (and not Mr Henderson), and that he would go beyond the law because Mr Henderson had no means of enforcing anything against him.

(d) Mr Walker breached his undertaking to the Court (noted at [16] above) by providing information that was not relevant, including Mr Hyndman’s personal information.

(e) Mr Holden’s text messages suggest that Mr Walker showed him Mr Hyndman’s emails and say that Mr Hyndman has no idea who sees them.

[57] Mr Hyndman says Mr Walker continued to correspond with Mr Holden until (at least) either July 2013 or February 2014, despite being put on notice by the email dated 24 February 2012 that Mr Holden had been harassing Mr Hyndman for two years (at that point).

[58] Mr Holden confirmed in his police interview on 11 February 2014 that he had heard from Mr Walker just “a couple of days ago”.

[59] At a New Zealand Institute of Chartered Accountants disciplinary hearing on 16 April 2014, Mr Walker told Mr Hyndman that he had stopped communicating with Mr Holden, and by his email dated 15 May 2014, said the last email he sent Mr Holden
was on 30 July 2013 and he had not communicated with Mr Holden for nearly a year (which contradicted what Mr Holden told the police).

Disclosure of private information to Grahame Thorne

[60] Mr Hyndman says that, on 8 July 2013, an email from a false email address was sent by a friend of Mr Thorne’s named Jo-Anne Cole, or by Mr Thorne himself, to Mr Hyndman. The email insinuated that Mr Hyndman had recently entered into an unlawful “title transfer” and that Mr Walker had “caught scent of it and is hot on the trail”.

[61] As Mr Fowler pointed out, the land purchase occurred in 2013, whereas the information at issue in these proceedings was sourced from the Laptop and Tape Drive retrieved as a result of the Warrants in April 2011. There was therefore no link between any information Ms Cole might have obtained (whether via Mr Thorne or otherwise) and Mr Walker.

[62] Mr Hyndman suspects there are further examples of which he is not aware of disclosures of his private information by Mr Walker to Mr Thorne. He notes that Mr Walker told Mr Henderson in a telephone conversation on 13 January 2013 that he had provided information to Mr Thorne and refers to the emails dating back to February 2011 between Mr Walker and Mr Thorne. Mr Hyndman says Mr Thorne, either personally or through Ms Cole, used the information to engage with and harass him. Mr Hyndman’s statement of claim pleads that, without the benefit of discovery, those issues remained unknown. Discovery has now, of course, taken place and there is no evidence of any further disclosures.

Provision of flash drives including all emails from the Laptop to Mr Slevin on 14 June 2011 and 26 August 2011

[63] On 14 June 2011, Mr Slevin, a solicitor working for the Insolvency and Trustee Service, requested that Mr Walker provide a clone of the Laptop “pursuant to s 171 of the Insolvency Act 2006”. Mr Walker was unable to provide a clone and instead provided a flash drive. The flash drive contained emails and some voice recordings.
[64] Mr Slevin was unable to search the flash drive so, in mid-August 2011, he asked Mr Eathorne to provide emails in searchable form. On 26 August 2011, Mr Eathorne provided a second flash drive. Given the conclusions Mr Slevin reached after having viewed the emails, on 31 October 2011 he forwarded the flash drive to Mr Wolmarans, Acting Investigations Manager of the National Enforcement Unit. Mr Wolmarans was unable to search the flash drive, so Mr Slevin provided him with copies of the relevant emails.

[65] By her judgment dated 30 March 2017, Hinton J considered whether Mr Slevin’s request constituted an unreasonable search and seizure for the purposes of s 21 of the New Zealand Bill of Rights Act.¹²She noted that, during the course of locating relevant emails, Mr Slevin also viewed irrelevant emails, including personal communications. Hinton J held the s 171 request was unlawful because it was a blanket demand for all documents even though s 171 does not extend to personal documents that are clearly irrelevant to a bankruptcy.

[66] Mr Hyndman says some of his emails to and from Mr Henderson would have been included on the flash drives. The distributions of the flash drives to Mr Slevin are mentioned as background in Mr Hyndman’s statement of claim, although they are not clearly pleaded as particulars for the claims in breach of confidence and breach of privacy. Nevertheless, the parties referred to them in argument, and I have considered them.

Breach of privacy in CIV-2012-409-2486

[67] Mr Hyndman also alleges a breach of privacy in relation to his suspicion that private emails between him and Mr Henderson were disclosed by way of discovery in other court proceedings where Mr Walker was a party as liquidator. This occurred in February 2016. In Walker v Forbes, Lang J held that Mr Walker was in contempt in respect of this discovery.¹³He accepted, however, this was inadvertent because Mr Walker had passed responsibility for discovery to his lawyers. Lang J also

¹²Henderson v Attorney-General [2017] NZHC 606.

¹³Walker v Forbes [2017] NZHC 1090.

considered that all reasonably practicable steps had been taken to limit any damage following the inadvertent discovery.

[68] Mr Hyndman is unsure whether any of his private information was included in that discovery.

Mr Hyndman’s claim

[69] Mr Hyndman believes that Mr Walker distributed a mix of private and company information to third parties who had no right to the information and, given they held hostility towards both Mr Hyndman and Mr Henderson, those third parties used the information to cause Mr Hyndman significant stress, humiliation and mental illness. Mr Hyndman says his mental health continues to suffer because he does not know who had access to, and potentially continues to hold, his private information. He says he suffers from depression and insomnia. No medical evidence was provided.

[70] Whether Mr Walker knew the information would be used in the manner in which Mr Hyndman claims it was, matters not. The issue is whether Mr Walker disclosed Mr Hyndman’s private information in breach of the law.

[71] In the related claim by Mr Henderson, I discussed my conclusion that Mr Walker had no right to deal with the information on the Laptop (in particular) until February 2012 when the stay of the PVL liquidation was lifted. The disclosure of Mr Henderson’s private information on the Laptop included communications with Mr Hyndman.

[72] It is reasonably clear to me that Mr Hyndman was caught in the fallout of Mr Walker’s antipathy towards Mr Henderson. I am in no doubt that Mr Walker passed information to Mr Thorne and, from the various communications referred to above, it is reasonable to conclude that, for a time anyway, he also passed information to Mr Holden.

[73] I now turn to consider Mr Hyndman’s claims in relation to his various causes of action.

Breach of duty of confidentiality

[74] In Coco v AN Clarke (Engineers) Ltd, Megarry J set out the three elements required to establish a breach of confidence:¹⁴

(a) the information has the necessary quality of confidence about it;

(b) the information has been imparted in circumstances importing an obligation of confidence; and

(c) there has been an unauthorised use of that information.

Does the information have the necessary quality of confidence about it?

[75] Mr Walker claims that none of his disclosures in relation to Mr Hyndman carried with them the necessary quality of confidence.

[76] While it may be that many of the specific disclosures on which Mr Hyndman relies cannot be considered in and of themselves to have the necessary quality of confidence, they do build a picture of Mr Walker disclosing emails that included communications either to or from Mr Hyndman. The email joking that Mr Holden was a pot smoker and pokie addict, drafted by Mr Henderson on 26 July 2010, does, in my assessment, have the necessary quality of confidence. That email was clearly a private communication between close friends.

[77] Mr Holden’s text message of 13 January 2013, telling Mr Hyndman he had no idea who saw the emails between him and Mr Henderson, is troubling to say the least. While it may be Mr Holden was simply aware that Mr Walker had seen thousands of Mr Henderson’s emails (which was public information as a result of the NBR article), it was not, as far as I can see, in the public domain that Mr Henderson’s emails included emails to and from Mr Hyndman.

[78] I am prepared to accept that Mr Walker was primarily focused on Mr Henderson’s business dealings, but he clearly took some pleasure in sharing

¹⁴Coco v AN Clarke (Engineers) Ltd [1969] RPC 41 (Ch) at 47.

private information to which he had access with those he knew were hostile to both Mr Henderson and Mr Hyndman. I find it is more likely than not that some of the emails shared by Mr Walker had the necessary quality of confidence because, for instance, they involved private communications between Mr Henderson and Mr Hyndman as close friends. As Mr Moss submitted, there was clearly a “chain of communication” between Mr Walker and adversaries of Mr Hyndman and Mr Henderson. In the absence of concrete evidence, however, and in light of Mr Walker’s primary focus on Mr Henderson’s business dealings, I find the number of such emails was likely to be minimal.

[79] I am satisfied the other specific disclosures referred to by Mr Hyndman – including the text messages on 9 May 2011, 20 February 2012, 27 and 29 December 2012 and 13 January 2013 – involved matters already in the public domain, which cannot attract the necessary quality of confidence.¹⁵

[80] Counsel also drew my attention to two emails contained on the Laptop that have the necessary quality of confidence. The first was an email in which Mr Hyndman forwarded to Mr Henderson an abusive email from Mr Holden, which included allegations of impropriety and discussed Mr Hyndman’s previous relationship with his ex-partner. This was clearly a private communication between close friends and included very personal information. The second was a privileged email concerning PVL sent to both Mr Hyndman and Mr Henderson by their lawyers. There can be no doubt this privileged communication had the necessary quality of confidence.

Was the information imparted in circumstances importing an obligation of confidence?

[81] A detailed discussion of the principles relating to circumstances importing an obligation of confidence can be found in my decision on Mr Henderson’s claim.¹⁶I briefly summarise those principles here. Whether information is imparted in circumstances importing an obligation of confidence involves a factual assessment of

Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963] 3 All ER 413 (CA) at 415 per Lord Greene MR.

¹⁶Henderson v Walker, above n 1, at [144]–[160] and [170]–[183].

whether the circumstances are such that a reasonable individual, standing in the shoes of the recipient of the information, would have realised that, on reasonable grounds, the information was being given in confidence.¹⁷

[82] Following the Court of Appeal’s decision in Hosking v Runting establishing a separate tort of invasion of privacy,¹⁸New Zealand courts should be cautious about applying English authorities on breach of confidence, in particular Lord Goff’s comment in the Spycatcher case that an individual who innocently comes into possession of “obviously confidential” information could be held liable if he or she had notice of its confidentiality.¹⁹

[83] In New Zealand, the basis for judicial intervention is that a person has received information in confidence. In most cases, the focus is on the relationship between the confider and the confidant in which the information was disclosed. Mere notice that information has the necessary quality of confidence will not suffice.

[84] In relation to Mr Henderson, I was satisfied that Mr Walker received the information contained on the Laptop in circumstances importing an obligation of confidence. Mr Walker either acquired the Laptop as an agent for the police who acquired it pursuant to the Warrant, or under an implied exercise of his power as liquidator to obtain documents under s 261 of the Companies Act. Either way, the principles established by Marcel v Commission of Police of the Metropolis suggest an individual or entity who acquires documents by compulsion does so subject to an obligation of confidence.²⁰There is nothing in pt 16 of the Companies Act to preclude a liquidator from owing an obligation of confidence to a director or former director of a company in liquidation.²¹

¹⁷Coco v AN Clarke (Engineers) Ltd, above n 14, at 48.

¹⁸Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

¹⁹Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (HL) (the Spycatcher case) at 281.

²⁰Marcel v Commission of Police of the Metropolis [1992] Ch 225 (CA) at 261 per Nolan LJ and 262 per Sir Christopher Slade. See also The Stepping Stone Nursery Ltd v Attorney-General [2002] 3 NZLR 414 at [27]–[28].

²¹Some general support for this proposition can be derived from the Court of Appeal’s decision in

Finnigan v Ellis [2017] NZCA 488, [2018] 2 NZLR 123.

[85] This does not, however, assist Mr Hyndman. Mr Walker had a direct relationship of confidence with Mr Henderson because it was Mr Henderson’s documents that were obtained. Although Mr Hyndman clearly had an interest in the information contained in some of those documents, the documents were not his. This is demonstrated by the fact that, had Mr Walker exercised his power under s 261 of the Companies Act, it would have been by notice to Mr Henderson, not Mr Hyndman.

[86] Equally, Mr Hyndman cannot benefit from the relationship of confidence between Mr Walker and Mr Henderson because he has no standing to sue for a breach of confidence in relation to Mr Henderson. As the Court of Appeal of England and Wales held in Fraser v Evans:²²

... the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed.

The fact some of the confidential information on the Laptop also related to Mr Hyndman does not change this. To conclude otherwise would allow Mr Hyndman to, in effect, circumvent the requirement to demonstrate a relationship of confidence.

[87] Similarly, Mr Walker was not a third-party recipient of information obtained in breach of a different relationship of confidence involving Mr Hyndman.²³

[88] Nor does Mr Hyndman fall into the categories of cases where an obligation of confidence can arise in the absence of any relationship of confidence. Mr Hyndman has not alleged Mr Walker obtained the information surreptitiously or by other improper means.²⁴Even though the Warrant was found to be unlawful, and Mr Walker undoubtedly played some role in police obtaining the Warrant, Mr Walker was not legally responsible for the actions of the police. This is also not a case in which “obviously confidential” information has come in Mr Walker’s possession with his

²²Fraser v Evans [1969] 1 QB 349 at 361, [1969] 1 All ER 8 (CA) per Lord Denning MR.

²³Compare Hunt v A [2007] NZCA 332, [2008] 1 NZLR 368 at [92]–[94].

²⁴Compare Lord Ashburton v Pape [1913] 2 Ch 469 at 475; Exchange Telegraph Co Ltd v Gregory & Co [1896] 1 QB 147 (CA); Distillers Co (Biochemicals) Ltd v Times Newspapers Ltd [1975] QB 613, [1975] 1 All ER 41 (QB); ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431, [1982] 2 All ER 241 (Ch); Franklin v Giddins [1978] Qd R 72; and Deta Nominees Pty Ltd v Viscount Plastics Products Pty Ltd [1979] VicRp 17; [1979] VR 167 at 191.

notice of its confidential nature.²⁵There is no evidence demonstrating Mr Walker had seen the two confidential emails that were provided to Mr Slevin on the flash drives, and the email of 26 July 2010 joking that Mr Holden was a pot smoker and pokie addict was not so obviously confidential that it should affect the conscience of Mr Walker in the absence of a relationship of confidence, particularly when that email was not marked as confidential.

[89] Accordingly, Mr Walker did not owe an obligation of confidence to Mr Hyndman, so this cause of action cannot succeed.

Breach of privacy

[90] I accept the invasion of privacy tort is applicable to the disclosure of private documents to a third party without authorisation for the reasons set out in my decision concerning Mr Henderson’s claim.²⁶Although the Court of Appeal in Hosking v Runting formulated the tort by reference to situations involving “widespread publicity”, privacy is a multifaceted interest that requires protection in a variety of different contexts.²⁷On a broader view of the tort, the plaintiff must establish:²⁸

(a) a reasonable expectation of privacy in relation to information or affairs; and

(b) qualifying conduct in relation to the information or affairs that would be considered highly offensive to an objective reasonable person.

[91] A reasonable expectation of privacy exists in respect of information or affairs that “a reasonable person, applying contemporary standards of morals and behaviours, would understand to be meant to be unobserved.”²⁹Winkelmann J, as she then was, and Professor Moreham have also suggested incorporating a normative element into

²⁵Compare Attorney-General v Guardian Newspapers Ltd (No 2), above n 19, at 281.

²⁶Henderson v Walker, above n 1, at [199]–[220].

²⁷Hosking v Runting, above n 18, at [125] per Gault P and Blanchard J.

²⁸Compare Hosking v Runting, above n 18, at [117] per Gault P and Blanchard J; and C v Holland

[2012] NZHC 2155, [2012] NZHC 3 NZLR 672 at [94].

Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63, (2001) 208 CLR 199 at [42] per Gleeson CJ.

the reasonable expectations test to establish and protect “minimum standards needed to secure the community and individual benefits of privacy”.³⁰

[92] The requirement for the conduct to be highly offensive ensures the tort is reserved for invasions of privacy that are “truly humiliating and distressful or otherwise harmful to the individual concerned”.³¹What is highly offensive is assessed from the perspective of a reasonable person in the position of the plaintiff as opposed to a reasonable bystander.³²The focus is on whether the conduct of the defendant is offensive, not just whether the information itself is offensive in nature. The nature of the information is one consideration, but other important considerations include the circumstances and extent of any disclosure and the nature of the relationship between the parties.

[93] Finally, the invasion of privacy tort must contain a notice requirement of some sort, although it is not at present necessary to decide whether the requisite standard is knowledge, recklessness or negligence.³³

Did Mr Hyndman have a reasonable expectation of privacy in relation to his information on the Laptop?

[94] I accept the 26 July 2010 email joking that Mr Holden was a pot smoker and pokie addict, and others like it, were clearly sent on the basis they were intended for Mr Hyndman’s eyes only. This was a private communication between close friends. I do not accept Mr Fowler’s submission that it was Mr Henderson as the sender of the emails who had the expectation of privacy rather than Mr Hyndman. Mr Hyndman as receiver clearly also had an expectation of privacy.

[95] For the reasons outlined at [78], I would be willing to find on the balance of probabilities that Mr Walker disclosed other private communications of this kind as

³⁰Helen Winkelmann, Judge of the Court of Appeal of New Zealand Sir Bruce Slane Memorial Lecture (Victoria University of Wellington, 30 October 2018) at 19; and Nicole Moreham “Unpacking the reasonable expectation of privacy test” (2018) 134 LQR 651.

³¹Hosking v Runting, above n 18, at [126] per Gault P and Blanchard J.

³²P v D [2000] 2 NZLR 591 (HC) at [39].

³³Stephen Todd (ed) The Law of Torts in New Zealand (online ed, Thomson Reuters) at at [17.5.04] (footnote omitted).

part of the “chain of communication” between him and adversaries of Mr Hyndman and Mr Henderson.

[96] I am satisfied the other specific disclosures referred to by Mr Hyndman – including the text messages on 9 May 2011, 20 February 2012, 27 and 29 December 2012 and 13 January 2013 – involved matters of public knowledge in respect of which Mr Hyndman could not have a reasonable expectation of privacy. In fact, many of those text messages referred to information that did not come from the Laptop and did not even concern Mr Hyndman.

[97] I also accept Mr Hyndman has a reasonable expectation of privacy in relation to the abusive email from Mr Holden that he forwarded to Mr Henderson. This was a private communication between close friends and included very personal information. Similarly, Mr Hyndman had a reasonable expectation of privacy in relation to the privileged email concerning PVL.

Did Mr Walker have notice that the information was private?

[98] Mr Walker knew there was personal information on the Laptop from as early as 27 May 2011. I have already found the disclosure of the 26 July 2010 email joking that Mr Holden was a pot smoker and pokie addict (and any similar disclosures) likely occurred after 27 May 2011, so no issue arises of Mr Walker lacking notice the information was private. The provision of the flash drives to Mr Slevin also occurred after 27 May 2011 (on 14 June 2011 and 26 August 2011).

Would disclosure be considered highly offensive to a reasonable person?

[99] There is, however, no realistic argument that disclosure of emails of the kind sent on 26 July 2010 would be considered highly offensive by a reasonable person. There is nothing embarrassing or compromising, or even particularly personal, in the 26 July 2010 email. There is also no evidence to suggest any other documents disclosed by Mr Walker to Mr Holden or Mr Thorne were more personal in nature. Furthermore, the emails were disclosed to a very limited audience of two or three private individuals, albeit individuals who held grudges against Mr Hyndman and Mr Henderson.
[100] Equally, the provision of the flash drives to Mr Slevin would not be considered highly offensive from the perspective of a reasonable person in Mr Hyndman’s shoes. Unlike Mr Henderson, Mr Hyndman had a limited amount of private information on the Laptop.

[101] There is also no evidence suggesting any of Mr Hyndman’s private emails were included in the discovery provided in CIV-2012-409-2486.

[102] In those circumstances, Mr Hyndman’s claim for invasion of privacy cannot succeed and it is dismissed.

Misfeasance in public office

[103] The elements for the tort of misfeasance in public office are:³⁴

(a) the plaintiff must have standing to sue;

(b) the defendant must be a public officer;

(c) the defendant must have acted or omitted to act in purported exercise of his or her public office unlawfully either intentionally, or with reckless indifference as to whether he or she was acting beyond the limits of his or her public office;

(d) the defendant must have acted or omitted to act either;

(i) with malice towards the plaintiff, that is, with intention to harm;

(ii) knowing his conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or

(iii) with reckless indifference as to whether the plaintiff would be harmed; and

³⁴Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [40].

(e) the plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff’s claimed loss.

[104] The main hurdle for Mr Hyndman’s claim is whether Mr Walker, in his capacity as a liquidator, is a public officer. I have addressed, and rejected, this argument in some detail in the decision concerning Mr Henderson’s claim.³⁵I do not propose to repeat that analysis in full here.

[105] In short, I am satisfied that, although the role of liquidator is prescribed by the Companies Act and liquidators must comply with certain statutory duties, the position is fundamentally of a private nature and concerns the internal affairs of the company in liquidation. This conclusion is supported by the scheme of pt 16 of the Companies Act, including that a liquidator’s principal duty is essentially to carry out the liquidation in a reasonable and efficient manner.³⁶Liquidators are practitioners who charge fees for their work. Comparable English and Australian authorities suggest public officials are limited to individuals who exercise executive or administrative power, which liquidators do not.³⁷

[106] Finally, misfeasance in public office is only actionable on proof of damage and a claim for damages for humiliation, anxiety and distress will not suffice.³⁸

Breach of statutory duty

[107] The elements of a claim for breach of statutory duty are:³⁹

(a) a breach of statutory duty;

(b) a legislative intention that breach of the obligation should be a ground of civil liability in relation to a class of persons to which the plaintiff belongs;

³⁵See Henderson v Walker, above n 1, at [277]–[298].

³⁶Companies Act 1993, s 253.

³⁷Society of Lloyd’s v Henderson [2007] EWCA Civ 930, [2008] 1 WLR 2255 at [23]; Three Rivers District Council v Bank of England [2003] 2 AC 1 (HL) at 190 per Lord Steyn and 229 per Lord Hobhouse; and Henderson v McCafferty [2000] QSC 410, [2002] 1 Qd R 170 at [33]–[35].

³⁸Garrett v Attorney-General [1993] 3 NZLR 600 (HC) at 608.

³⁹Stephen Todd Laws of New Zealand Tort (online ed) at [87].

(c) injury or damage of a kind for which the law awards damages and against which the statute was designed to give protection; and

(d) a causal nexus between the breach of the obligation and the injury or damage.

[108] Again, I have addressed, and rejected, this cause of action in the decision concerning Mr Henderson’s claim and I do not propose to repeat my analysis in full in this decision.⁴⁰In brief, Mr Hyndman’s claim fails for two reasons. First, he cannot point to any statutory duty that has been breached. The powers provided to liquidators by pt 16 of the Companies Act are expressed in permissive terms and do not impose an obligation on a liquidator to act in any particular way.⁴¹Secondly, Parliament did not intend breaches of pt 16 of the Companies Act to be a ground of civil liability because pt 16 provides its own enforcement mechanism.⁴²

Contempt

[109] As originally pleaded, the claim Mr Walker was in contempt of Court related to discovery in associated proceedings brought by PVL, and Mr Walker as liquidator, against former directors and auditors of the PVL group. This has already been addressed by the High Court decision in Walker v Forbes, where the Court made a finding of contempt but imposed no penalty in respect of the disclosure in the main PVL proceedings.⁴³

[110] Mr Hyndman still maintains Mr Walker was in contempt, however, in relation to a further distribution by Mr Walker on 4 July 2013 of a flash drive containing some of the contents of the Laptop and Tape Drive to Ron McQuilter of Paragon New Zealand, a private investigator acting on behalf of the Official Assignee’s office. Less than a month earlier, on 11 June 2013, Associate Judge Osborne had directed that Mr Walker was entitled to the contents of the Laptop and Tape Drive, subject to conditions as set out above at [18] above. In summary, Mr Walker was to complete an

⁴⁰See Henderson v Walker, above n 1, at [299]–[305].

⁴¹Mr Hyndman relied upon sections 253, 260 and 261 and schedule 6 of the Companies Act 1993.

⁴²See Companies Act 1993, s 286.

⁴³Walker v Forbes, above n 13.

analysis of the electronic data delivered to him and file and serve a memorandum listing the documents into various categories of relevance. Following receipt of that memorandum, Mr Henderson was entitled to request the return or deletion of irrelevant documents. This order was made on the basis of an undertaking given by Mr Walker that he would not disclose information that was not relevant or was privileged.

[111] Mr Hyndman’s interest in the matter presumably arises from the fact some of his private information was also contained on the Laptop, although, as I have said, there is no evidence suggesting any of Mr Hyndman’s personal documents were provided in the discovery.

[112] In any event, I have addressed in full the reasons for dismissing this claim in the judgment concerning Mr Henderson.⁴⁴In summary, Associate Judge Osborne’s order did not require Mr Walker to delete or quarantine private documents until the analysis had been completed and Mr Henderson had exercised his right to request that course of action. The distribution to Mr McQuilter on 11 June 2013 preceded the completion of that analysis, which occurred around 2 September 2013. In the intervening period, the Court relied on Mr Walker’s undertaking not to disclose irrelevant or privileged documents. Like Mr Henderson, Mr Hyndman pleads contempt of Court on the basis of a breach of Associate Judge Osborne’s order and not a breach of Mr Walker’s undertaking. For that reason, I decline to make the declaration Mr Hyndman seeks.

Result

[113] Mr Hyndman’s causes of action in breach of confidence, invasion of privacy, misfeasance in public office, breach of statutory duty, and contempt are dismissed.

⁴⁴Henderson v Walker, above n 1, at [306]–[315].

[114] Mr Walker is entitled to some measure of costs. If the parties are unable to agree, submissions on Mr Walker’s behalf are to be filed and served within 28 days of this decision, with any response 14 days thereafter.

Thomas J

Solicitors:

Canterbury Legal, Christchurch for Plaintiff

Luke Cunningham Clere, Wellington for Defendant

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URL: http://www.nzlii.org/nz/cases/NZHC/2019/2188.html