Elliot v Vandenberg - [2021] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-425

[2021] NZHC 1378

BETWEEN
STEPHEN RANIERA RANGI ELLIOT

Appellant

AND

KERRI ALISON VANDENBERG

Respondent

Hearing: 25 May 2021

Counsel:

P N Ross for Appellant

M J Borcoski and M R Johnson for Respondent

Judgment:

10 June 2021

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 10 June 2021 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ELLIOT v VANDENBERG [2021] NZHC 1378 [10 June 2021]

Introduction

[1] The respondent, Kerri Vandenberg, obtained a restraining order under the Harassment Act 1997 against the appellant, Stephen Raniera Rangi Elliot.1 The restraining order also applied against Mr Elliot’s partner, Ms Parcell, as an “associated person” under s 18 of the Act.2

[2] Mr Elliot seeks to appeal the District Court judgment (the Judgment) (including the costs order which followed the event).

[3] Mr Elliot applies for leave to appeal, having filed his notice of appeal marginally outside the 20 day time limit.

The Judgment — overview

[4] Mr Elliot and Ms Parcell represented themselves in the District Court, although in the course of the case management proceeding, Mr Elliot had indicated to the Court that he intended to retain counsel for the hearing itself.

[5] Judge P R Kellar heard Ms Vandenberg’s application on 25 June 2020 and delivered his reserved judgment on 10 August 2020. It is detailed in its examination of the law to be applied under the Act (17 paragraphs devoted to that). No point was taken on the appeal in relation to the Judge’s statement of law.

[6] The Judgment is detailed in its examination of the factual history of communications Ms Vandenberg and others received from Mr Elliot spanning the period June 2018 to October 2019 (32 paragraphs). Ms Vandenberg’s complaints as to harassment related almost entirely to the content of things written (mostly by Mr Elliot but some by Ms Parcell) in emails or social media postings. So there was no room for dispute as to what it was Mr Elliot had said. The Judgment carefully traverses all those communications (and the background to them).

1 Vandenberg v Elliot [2020] NZDC 15702 [the Judgment]. At [74], the restraining order also applied against Mr Elliot’s partner.
2 At [74].

[7] Ms Parcell had been an employee in Ms Vandenberg’s Hawke’s Bay gym business. Through that Ms Vandenberg came to know Mr Elliot, who was also given a membership at the gym. From early-June 2018 issues arose between Mr Elliot and Ms Parcell, and Ms Vandenberg which ultimately led to Ms Parcell pursuing a personal grievance claim on which Mr Elliot acted as her advocate. Mr Elliot then made his own complaint to the Human Rights Commission (HRC) about Ms Vandenberg. Through mediation, Mr Elliot’s HRC complaint and dispute over his gym membership termination were both settled on terms recorded in a settlement deed dated 24 May 2019 (the Deed). The…

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 Elliot v Vandenberg

Details

AGLC: Elliot v Vandenberg [2021] NZHC 1378
Case: [2021] NZHC 1378
Decision Date: 10 June 2021

CaseChat Overview and Summary

In Elliot v Vandenberg, the appellant, Stephen Raniera Rangi Elliot, appealed against the District Court judgment which had found he had harassed Ms Kerri Alison Vandenberg under the Harassment Act 1997 and ordered a five year restraining order against him and his partner, Ms Parcell. Mr Elliot filed his notice of appeal outside the 20 day time limit. The appeal grounds were that the District Court erred in considering his conduct before a settlement deed was executed and in excluding certain evidence. He also sought to have the costs order quashed. Ms Vandenberg did not seek to appeal any aspect of the District Court judgment. The court found the settlement deed did not bar Ms Vandenberg from referring to Mr Elliot’s pre-deed conduct. The court also found Mr Elliot’s post-deed conduct amounted to harassment. The appeal grounds were abandoned at the hearing. The court found the circumstances of the appeal were exceptional and awarded costs to Ms Vandenberg. The appeal was dismissed and the appellant was ordered to pay the respondent's costs of the proceeding on a 2B basis, together with the respondent’s reasonable disbursements.

Orders