Anderson v Bruning - [2021] NZHC 602

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000149

[2021] NZHC 602

BETWEEN
DANIELLE JAYNE ANDERSON

Appellant

AND

SCOTT JOHN BRUNING and NEW ZEALAND POLICE

Respondents

Hearing: 25 February 2021

Appearances:

B P A Shamy for the Appellant A L Mills for the Respondent

Judgment:

23 March 2021

JUDGMENT OF NATION J

Introduction

[1] The appellant, Ms Anderson, said she paid $6,500 on 21 November 2019 for a red Holden Commodore BAJ518 (the vehicle). She says she allowed a person with whom she was in a relationship (Mr Bruning) to use the vehicle. There was a breakdown in their relationship and she had to leave the home she and Mr Bruning shared. She says he would not return the vehicle to her. While he had possession of the vehicle, he was caught driving while disqualified. On conviction for that offence, an order was made for confiscation of the vehicle. Ms Anderson says that, when she heard of this, she filed an appeal against the order for confiscation.

[2] With the assistance of Mr Shamy, a lawyer appointed to act for Ms Anderson on legal aid, affidavits were filed in support of her appeal. The deponents of those

ANDERSON v BRUNING [2021] NZHC 602 [23 March 2021]

affidavits were not at Court and available for cross-examination. Counsel for the Police said she did not wish to cross-examine them.

[3] The appeal proceeded based on the information in those affidavits and records put before the Court from the Police and the New Zealand Transport Agency (NZTA) without objection and correspondence that Ms Anderson had initially filed in support of her appeal.

[4]I consider all documents on the file are admissible as evidence.

[5] Some of the documents were in the nature of evidence as sworn affidavits. Other documents were part of the business records of the NZTA and the Police, meaning their admissibility is subject to s 19 of the Evidence Act 2006. By virtue of the circumstances in which business records are compiled, I accept the information (including hearsay statements) they contain is likely to be reliable.1 I am satisfied there would have been undue expense in requiring the makers of those documents to give evidence under s 19(1)(c) as such people were not available to give evidence on the hearing of the appeal. The documents that are part of the business records are clearly relevant to the proceeding and there is no prospect of unfair prejudice.

[6] I refer also to correspondence Ms Anderson filed initially in support of her appeal. It is evidence of the assertions she has made as to relevant matters.

[7] There was no objection to my reaching my decision with regard to all documents filed by the parties for the appeal.

[8]That information and evidence establishes the following:

(a) On 7 August 2018, Mr Bruning was convicted for driving with excess breath alcohol (third or subsequent offence). He was sentenced to supervision for one year and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anderson v Bruning

Details

AGLC: Anderson v Bruning [2021] NZHC 602
Case: [2021] NZHC 602
Decision Date: 23 March 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Anderson v Bruning addressed an appeal by Ms Anderson against the confiscation order of her vehicle, which had been driven by Mr Bruning while he was disqualified from driving. The court was tasked with determining whether the confiscation of the vehicle would cause undue hardship to Ms Anderson. The legal issues centered on whether Ms Anderson had established that the confiscation would result in undue hardship, considering she had paid for the vehicle and Mr Bruning had been the registered owner when he was caught driving while disqualified. The court examined the purpose of the legislation, which aims to deter driving while disqualified, and assessed whether Ms Anderson's actions, such as allowing Mr Bruning to use the vehicle knowing the risk of confiscation and arranging for the vehicle to be registered in another person's name, contributed to the situation. The court concluded that Ms Anderson had not demonstrated undue hardship, as the hardship she faced arose from her own actions in allowing Mr Bruning to use the vehicle and attempting to avoid confiscation by registering the vehicle in another person's name. The appeal was dismissed, and the order for the confiscation of the vehicle was upheld.

The final orders of the Court were that Ms Anderson's appeal against the order for the confiscation of the vehicle was dismissed.

Orders