Toresen v Murphy [2016] NZHC 1549 (8 July 2016)

High Court of New Zealand

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Toresen v Murphy [2016] NZHC 1549 (8 July 2016)

Last Updated: 17 August 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003154 [2016] NZHC 1549

UNDER	the Harrassment Act 1997
BETWEEN	DANIEL JAMES TORESEN First Appellant PAUL JOHN DALE Second Appellant
AND	JOHN PATRICK MURPHY Respondent

Hearing:	28 June 2016
Appearances:	E Telle for the Appellants J P Murphy on own behalf (assisted by McKenzie Friend, Mr Palmer)
Judgment:	8 July 2016

_{JUDGMENT OF WOODHOUSE J}

This judgment was delivered by me on 8 July 2016 at 3 pm

Pursuant to Rule 11.5 of the High Court Rules

----------------------------------------------------- Registrar/Deputy Registrar

Solicitors: Neilsons Lawyers, Onehunga, Auckland

Copy To: J P Murphy, Greenlane, Auckland

TORESEN v MURPHY [2016] NZHC 1549 [8 July 2016]

[1] The appellants have appealed against decisions of the District Court on an application they made for a restraining order under the Harrassment Act 1997 (“the Act”) against the respondent. An order was made for a restraining order for

12 months.¹ The appellants contend that there was error in the Judge’s refusing to

make an indefinite order; that is, an order pending further order of the Court.

[2] The appellants, on a subsequent decision relating to costs, contend that the

Judge was in error in not awarding indemnity costs.

[3] When this matter came before me in the appeals case management list, Mr Murphy said that he would consent to a variation of the order by making it an indefinite order, subject to agreement of the appellants to accept a specified sum for costs. For the appellants, Mr Telle, indicated that it was likely that the appellants would agree to the proposal. It is unnecessary to go into the detail of the discussions because I subsequently received a memorandum recording the precise terms. This has been signed by Mr Telle for the appellants, Mr Murphy for himself, and by his McKenzie friend, Mr Palmer. I note that Mr Palmer actively and constructively assisted Mr Murphy in the course of the hearing before me.

[4] The proposed variation, by consent, as recorded in the memorandum, is as follows:

An order extending the restraining order the subject of the appeal for an indefinite period pending further order of the Court and pursuant to ss 21 to

23 of the Harrassment Act 1997.

[5] The memorandum also records that, upon the variation order being made, the parties consent to the following orders:

(a) An order that the appellants’ appeal is at an end on the basis that there is no issue as to costs.

(b) An order that the respondent’s application to seek leave to file an

appeal out of time is withdrawn and on the basis that there is no issue as to costs.

¹ Toresen v Murphy [2015] NZDC 2447.

(c) An order that the application to stay proceedings (under High Court number CIV-2016-404-000364) is withdrawn on the basis that there is no issue as to costs.

[6] On an appeal of this nature the appellate court cannot quash the decision under appeal simply because the parties consent. It is for that reason, in those particular circumstances, that Edwards J earlier declined, in effect, to allow the appeal by consent. I agree with her decision. However, what is now proposed, in what is a civil proceeding, is a variation of an order by consent. I am satisfied that this Court does have jurisdiction to make that order. It is not an order founded on a proposition that the District Court Judge was in error. It is a decision made by this Court exercising powers available to the District Court to grant a variation. The power of this Court to act in that way is derived from r 20.19(c) of the High Court Rules, which applies on an appeal pursuant to s 34(2) of the Harrassment Act 1997. Rule 20.19(1)(c) empowers this Court, on an appeal, to “make any order the Court thinks just.” When that provision is compared with other powers on an appeal, I am satisfied that it extends to the granting of the order for variation that is now sought. Similar powers are derived from s 76 of the District Courts Act 1947 which also apply.

[7] I am fully satisfied that it is just to make an order in this way. This is because it is just to bring this drawn out proceeding to an end expeditiously, without further cost to the parties (which could be reasonably substantial) and in a way which has the clear agreement of both parties. The last point is reinforced by the fact that Mr Murphy, although acting on his own behalf, has the assistance of Mr Palmer.

[8] For these reasons there are orders as recorded in [4] and [5] above.

[9] These orders are to be sealed in and issued out of the District Court. The proceeding is remitted back to the District Court for that purpose.

Woodhouse J