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Court of Appeal of New Zealand |
Last Updated: 18 September 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
[1] The appellant, NR, has filed seven proceedings in this Court. Judgment has already been delivered in two of these proceedings[2] and a direction given that the remaining five are to be heard together.[3]
[2] The proceedings in this Court all stem from two proceedings in the District Court. The first of these, which we will call the harassment proceeding, was commenced by the respondent MR; the second, which we will call the civil proceeding, by the appellant. We describe each in turn.
[3] The harassment proceeding resulted from the breakdown of the relationship between MR and the appellant in February 2012. MR was working as a sex worker and NR was one of her clients for about two months. As a result of a dispute, MR indicated to NR that she wanted no further contact. When NR did not concur, MR brought the harassment proceeding. On 9 May 2013 Judge Sharp made a restraining order against NR under s 16 of the Harassment Act 1997, for a duration of five years.[4]
[4] Following the dispute between the appellant and MR, the appellant commenced a civil proceeding against MR pleading a number of quite different causes of action.[5] The statement of claim in that proceeding was struck out in its entirety by Judge Gibson, on the basis the proceeding was frivolous and vexatious.[6]
[5] The outcome of those two proceedings in the District Court germinated a multitude of applications and appeals, first to the High Court and now to this Court. The present hearing deals with seven interlocutory applications made in three of the appeals.[7] We will describe first the three appeals and the seven applications, and then return to consider the submissions and make our decision on each application in turn.
The appeals
NR v District Court at Auckland and MR CA461/2014
[6] Justice Duffy heard together three matters relating to the harassment proceeding:
- (a) an appeal against Judge Sharp’s decision making a restraining order;
- (b) an appeal against Judge Sharp’s subsequent decision awarding MR indemnity costs against NR; and
- (c) an application for judicial review of four interlocutory decisions of the District Court.
[7] Justice Duffy allowed both appeals, reducing the duration of the restraining order from five years to 12 months and the costs order from indemnity to scale costs.[8] The Judge dismissed the application for judicial review as moot.
[8] NR appeals Duffy J’s decision to dismiss his application for judicial review of the four interlocutory decisions of the District Court, and also applies for leave to bring a second appeal to this Court from Duffy J’s decision not to set aside each of the restraining order and the costs order.
[9] MR applies for leave to cross-appeal against those parts of Duffy J’s decision reducing the duration of the restraining order and also reducing the quantum of the costs order.
[10] Five applications in this appeal are for decision:
- (a) The appellant’s application filed on 20 August 2014 for leave to appeal against the decision of Duffy J not to set aside the restraining order.
- (b) MR’s application filed on 27 August 2014 for leave to cross-appeal.
- (c) MR’s application filed on 27 August 2014 for an order prohibiting disclosure of the non-redacted form of an affidavit she swore on 25 August 2014 in relation to her application for leave to cross-appeal.
- (d) NR’s application filed on 9 September 2014 to strike out the affidavit of MR referred to above. Alternatively, NR applies for leave to crossexamine MR.
- (e) Although not strictly an application, NR filed on 2 June 2015 a memorandum complaining that an article published on 28 February 2015 in the New Zealand Herald was contemptuous and expanded on the merits of CA461/2014 and his other appeals while they are still before the Court. He requested this Court to consider inviting the editor of the Herald explain its intention in publishing the article.
NR v MR CA522/2014
[11] In a judgment delivered on 30 April 2014 Andrews J dismissed an appeal against Judge Gibson’s decision striking out the statement of claim in the civil proceeding.[9] NR applied to the High Court for leave to appeal that decision, and applied also for Andrews J to recuse herself from hearing his application for leave to appeal. Justice Andrews refused to recuse herself.[10] NR appeals against her refusal.
[12] The application for decision is an application filed by NR on 5 November 2014 to adduce further evidence in support of his appeal, in the form of an affidavit he affirmed on 22 September 2014.
NR v District Court at Auckland, MR and Jackson Russell CA460/2014
[13] Having struck out NR’s statement of claim in the civil proceeding, Judge Gibson awarded indemnity costs because the proceeding was an abuse of process.[11] NR applied for judicial review of the costs decision on natural justice grounds. Justice Katz dismissed that application, because no grounds for judicial review were made out.[12] NR appeals against the judgment of Katz J on various grounds.
[14] The application for decision is one filed by NR on 28 October 2014, to adduce further evidence in the form of an affidavit he affirmed on 23 October 2014 in support of this appeal.
[15] NR also seeks leave to adduce in evidence in support of the appeal:
- (a) NR’s memorandum of 25 August 2014 in reply to Jackson Russell’s (the third respondent in the civil proceeding in the District Court) costs memorandum.
- (b) The minute/order of Katz J dated 17 September 2014.
There can be no objection to NR relying on those two documents at the hearing of this appeal, so we say no more about them.
Our decision on each application
[16] We now deal with each of the seven applications, and the order in which we do so is deliberate.
CA461/2014 MR’s application for leave to cross-appeal
[17] In her application MR submitted Duffy J erred in finding that certain communications by NR could not constitute specified acts of harassment for the purposes of section 4 of the Harassment Act 1997. Further, she submits it is of both public and private interest that this Court consider the proper approach to determining the duration of a restraining order.
[18] We agree this application raises questions of sufficient importance that leave to cross-appeal against the relevant parts of Duffy J’s decision should be granted. We accordingly allow MR’s application for leave to cross-appeal.
[19] We envisage MR’s cross-appeal will focus on these questions:
- (a) “Specified acts” under the Harassment Act: Did the High Court Judge err in her approach to what constituted specified acts as defined in the Harassment Act? In particular, did the Judge err in holding that certain acts of NR between 8 February 2012 and 29 October 2012 were not specified acts and/or part of a pattern of behaviour by NR directed against MR?
- (b) District Court’s findings: Did the High Court Judge err in her treatment of the District Court’s judgment, in deciding to set aside the five year restraining order and substitute a one year order?
- (c) Costs: Did the High Court Judge err in setting aside the indemnity costs order made by the District Court and substituting an order for scale costs on a 2B basis?
CA461/2014 NR’s application for leave to appeal
[20] We allow this application for two reasons. First, NR has appealed as of right against the High Court’s refusal of his application for judicial review. One of the issues, if not the primary issue, he raises in that appeal is alleged procedural failures of the High Court (and earlier of the District Court) in dealing with his defence of lawful purpose.
[21] It would be artificial and unsatisfactory for this Court to have to deal with that point without consideration of the questions raised on NR’s application for leave to appeal and MR’s application for leave to cross-appeal. Lawful purpose is inextricably bound up with issues (a) and (b), and very relevant to issue (c), set out in [19] above.
[22] Secondly, because we are granting MR leave to cross-appeal, NR should also have leave to appeal against the making of a restraining order against him, albeit for the much reduced duration of one year.
[23] We consider NR’s appeal should focus on these two questions:
- (a) Defence of lawful purpose: Did the High Court Judge err in rejecting NR’s defence of lawful purpose — that NR’s impugned actions toward MR were for the “lawful purpose of making MR aware of his claims in an effort to resolve the dispute between the parties privately, which was (or at least ought to be) in everyone’s interest”.[13]
- (b) Costs: Did the High Court Judge err in awarding MR 2B scale costs in respect of her harassment proceeding in the District Court?
CA461/2014 MR’s application for non-disclosure of non-redacted affidavit and NR’s application to strike out MR’s affidavit or cross-examine her
[24] MR applies for an order prohibiting disclosure of the original, non-redacted form of her affidavit on the basis the interest in disclosure of the confidential information does not outweigh the interest in preventing harm to her. She says the redacted or confidential information is of no importance to the proceeding, and it is necessary to protect her from harassment and it is in the interests of justice that her whereabouts not be disclosed to NR.
[25] NR applies to strike out MR’s redacted affidavit on the basis it does not conform to statutory requirements, was not properly served and contains inadmissible material, in that it contains statements of MR’s opinion on the High Court decision in these proceedings. He says it does not comply with statutory requirements because MR’s place of residence is redacted, and it is a sham because MR’s initials differ within the affidavit.
[26] NR’s application is groundless. MR was entitled to file an affidavit in support of her application for leave to cross-appeal. Form 1 in Schedule 1 to the Court of Appeal (Civil) Rules 2005 expressly makes provision for affidavits in support of an application for leave to appeal. There is no proper basis to allege the affidavit is a sham or contains inadmissible evidence. In any case, the Court hearing the substantive appeal will be able to discern and disregard anything inadmissible.
[27] Further, given the subject-matter and background of these proceedings, MR’s place of residence was properly redacted to protect her, and there is no basis to permit the application for cross-examination in these circumstances.[14] Accordingly we dismiss NR’s application, and allow MR’s application for an order of nondisclosure of the non-redacted version of her affidavit.
CA460/2014 NR’s application to adduce further evidence
[28] In a memorandum he filed on 28 October 2014, NR advised he was amending his grounds of appeal to add a ground that Katz J was actually biased against him.
[29] NR seeks to adduce three pieces of further evidence, set out in
[14]–[15]. For MR, Mr Hollyman opposes admission of any of these documents. In respect of the memorandum and minute, although accepting their potential relevance to NR’s allegation of bias, Mr Hollyman submits they do not meet the threshold of cogency or credibility set out in r 45 of the Court of Appeal (Civil) Rules, because they provide no basis for an allegation of bias or other procedural impropriety.
[30] Although we are inclined to agree with Mr Hollyman’s submission, we can see no real objection to the admission of these two documents because they are part of the High Court record. We accordingly order that they be admitted in evidence on this appeal.
[31] The affidavit affirmed by NR is in a different category. Much of it offends against the rules relating to the contents of affidavits, in that it goes well beyond admissible evidence relevant to the appeal.[15] Nevertheless, there is some admissible, relevant material in the affidavit and the Court hearing this appeal will readily be able to discern what that is and discard the rest.
[32] Accordingly, we allow the application and order that the three documents become part of the evidence on this appeal.
CA522/2014 NR’s application to adduce further evidence
[33] In a memorandum filed on 3 October 2014, MR’s counsel advised that MR abides this Court’s decision on this appeal, and therefore there is no opposition to this application.
[34] Leave to rely on the Judgment (No 3) of Andrews J is not required, since it is the judgment under appeal.[16]
[35] As far as we are aware, the affidavit dated 22 September 2014 NR seeks to adduce has not been filed and we therefore cannot rule on it. That must therefore be a matter for the Court that hears this appeal.
NR’s complaint against the New Zealand Herald
[36] The Supreme Court released a judgment declining various applications for leave to appeal on 27 February 2015.[17] NR complains a New Zealand Herald article published on 28 February was published so close in time to the judgment and purported to cover issues beyond those addressed in the judgment, that the clear inference is the publisher “has correctly foreshadowed the decision of the Court of Appeal in CA532/2014, likely by having affected that decision”. Alternatively, he says, the writer had “intimate knowledge of the Court of Appeal’s workings and was aware that the Appellant’s applications had been or would be prejudged by that Court”.
[37] He requested that this Court invite the editor of the New Zealand Herald, or a responsible delegate, to appear to explain the newspaper’s intention in publishing the article, based on a Minute issued by Wylie J in respect of John Banks’ conviction and sentence in 2014.[18]
[38] The circumstances in Banks were very different to the present. Further, given the proceedings in respect of which the New Zealand Herald published the article are no longer live (having been finally determined by the Supreme Court), it is not appropriate or possible for this Court to address the matter. In any case, NR’s complaint is misconceived. The New Zealand Herald did say the Court of Appeal “threw out all the man’s applications”. But this was clearly referring to the applications in respect of which NR had applied for leave to appeal to the Supreme Court, having already been determined by this Court by its usual processes — not to the asyetundetermined matters before this Court in any of NR’s pending appeals, as he complains. In short, NR has misread the article.
Result
[39] The application by NR in CA461/2014 for leave to appeal is allowed.
[40] The application by MR in CA461/2014 for leave to cross-appeal is also allowed.
[41] The application by MR for non-disclosure of the non-redacted form of her affidavit filed in support of her application to cross-appeal in CA461/2014 is allowed. We make an order prohibiting disclosure of the non-redacted form of MR’s affidavit.
[42] The application by NR to strike out the affidavit of MR filed in support of her application to cross-appeal in CA461/2014 is dismissed.
[43] The application of NR in CA461/2014 requesting this Court to invite the New Zealand Herald to explain its 28 February 2015 article is dismissed.
[44] The application of NR in CA460/2014 to adduce further evidence in support of that appeal is allowed.
[45] The application of NR in CA522/2014 to adduce further evidence in support of that appeal cannot be dealt with, because the only proposed evidence requiring leave is not presently before the Court. Accordingly that application is adjourned for decision by the Court that hears that appeal substantively.
[46] No order as to costs in respect of the application in CA522/2014 is appropriate, since MR abides this Court’s decision in that appeal.
[47] No order for costs on NR’s application in relation to the New Zealand Herald article, since it was essentially a request to this Court.
[48] The costs appropriate on each of the other five applications are costs to the successful party for, or as for, an application for leave to appeal on a band A basis with usual disbursements. We order accordingly.
[49] By consent, we continue the order of the High Court that the names or any identifying particulars of NR and MR are suppressed from publication.
Solicitors:
Crown Law Office, Wellington
for Respondent District Court at Auckland
Wilson Harle, Auckland for Respondent MR
[2] CA144/2014, determined on 30 October 2014 in NR v M [2014] NZCA 526; and CA532/2014, determined on 19 March 2015 in NR v MR [2015] NZCA 81.
[3] N v R CA443/2014, 3 October 2014 (Minute (No 1) of Wild J).
[4] MLR v NR DC Auckland CIV-2012-004-1034, 9 May 2013.
[5] Comprising breach of contract, defamation, breach of confidence, unjust enrichment, breach of the Consumer Guarantees Act 1993, breach of privacy, malicious filing.
[6] R v R DC Auckland CIV-2012-004-1388, 11 November 2013.
[7] All seven interlocutory applications are being dealt with together pursuant to NR v MR CA461/2014, 29 May 2015 (Minute of Miller J) and NR v District Court at Auckland CA461/2014, 2 June 2015 (Minute of Miller J).
[8] NR v District Court at Auckland [2014] NZHC 1767.
[9] NR v MR [2014] NZHC 863.
[10] NR v MR HC Auckland CIV-2013-404-4701, 26 August 2014 (Minute of Andrews J). This was the second application NR made for Andrews J to recuse herself: the first was refused by a Minute of Andrews J dated 14 July 2014. Leave to appeal the substantive decision was declined by Andrews J in NR v MR [2014] NZHC 2045 and by this Court in NR v MR [2015] NZCA 81.
[11] [NR] v [MR] DC Auckland CIV-2012-004-1388, 13 December 2013.
[12] NR v District Court at Auckland [2014] NZHC 1919.
[13] We have taken that statement from paragraph 6(a) of NR’s application for leave to appeal.
[14] Rule 7.28 of the High Court Rules provides a Judge may “in special circumstances” order crossexamination of a person who has made an affidavit relating to an interlocutory application.
[15] Rule 11 of the Court of Appeal (Civil) Rules 2005, which applies r 9.76 of the High Court Rules.
[16] NR v MR [2014] NZHC 2045.
[17] N v M [2015] NZSC 15.
[18] The New Zealand Herald published an article, reporting on a poll the newspaper had undertaken regarding the appropriate sentence for Mr Banks, prior to his being sentenced in R v Banks [2014] NZHC 1807.
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