Elliot v Vandenberg
[2021] NZHC 1378
•10 June 2021
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 terms of the Deed are confidential between the parties.
[8] In the meantime Mr Elliot had begun the course of communications which became a subject of Ms Vandenberg’s 2019 application under the Act. In the Judgment, Judge Kellar records contents of some 24 communications sent or posted mostly by Mr Elliot (a few by Ms Parcell) over the period June 2018 to October 2019. Most were addressed directly to Ms Vandenberg, four to her lawyers, and two to people at her business. Those passages are each set out in the Judgment.3 It is unnecessary to set them all out here. A few will suffice to illustrate the sort of things Mr Elliot was doing and writing:
(a)1 June 2018 email:
Think about it and be smart, use wisdom and you would probably have figured out the way I make money is through litigations. It’s my job to raise cases against companies, which I am very good at.
(b)6 June 2018 email:
I am determined and consistent and will keep coming at you with more and more legal ammunition. I am a one man army and my mind is a weapon of mass destruction. I am the general and I along with Kirsten [Parcell] will be victorious at the end of this war.
(c)12 June 2018 email (to Ms Vandenberg’s lawyer):
Kerri Vandenberg is just another pay cheque for you, and your [sic] nothing more than another greedy, lying lawyer.
You are disgusting.
3 At [41]–[60].
(d)14 June 2018 email (to the Head Office of Ms Vandenberg’s business):
Kerri Vandenberg is a very nasty individual in my opinion. I am unsure if it’s the fake tan making her bitter or if it’s her hatred for the wrinkly skin that adorns her body.
(e)19 June 2018 email (to Ms Vandenberg’s lawyer):
Your [sic] a useless, hopeless, horrible lawyer … a white supremacy supporter and a suppressor of the truth, justice and due process.
I’m going to legally destroy you at the tribunal.
(f)22 June 2018 email (to Ms Vandenberg’s lawyer):
Be sure to advise your client that she could be facing legal prosecution under s 258 of the crimes act 1961…
Like I said previously I have been doing this since 1993 and I’m the best non-qualified legal bro in the biz. I wipe the floor with everyone and haven’t lost yet.
[9] After the Deed was executed (on 24 May 2019), there was a four month period with no contact between the parties.
[10] There then occurred, on 28 September 2019, an incident at a bar in Napier. Ms Vandenberg and her husband had gone with other people to the bar where Mr Elliot happened to be a bouncer. The parties gave evidence as to their views of what had happened. Mr Elliot deposed that he had been “verbally and physically abused” by Ms Vandenberg.
[11] Mr Elliot then engaged in conduct through October 2019 directed at Ms Vandenberg, most of which was in writing. The following quotations and events illustrate the sort of things Mr Elliot was doing and writing during October 2019:
(a)14 October email (under the heading “Gym Membership”):
Hi Kerri, I am writing to inform you that I will be joining up at your Napier Gym next week …
(b)16 October 2019 — Mr Elliot visits the gym, purportedly to join as a member. He was advised he would be trespassing if he returned to the premises.
(c)16 October 2019 email (under the heading “Oral Trespass”):
I was disappointed to discover that you have trespassed me from [the gym].
… you are not a decent human being. Assaulting me at my place of work whilst being caught on CCTV. Calling me a “black nigger” in front of witnesses, and saying several times that you were glad that my baby died. This is a true reflection of the evil which is entrenched deeply within your heart.
There is a warrant out for your arrest in relation to your assault on me, so do the right thing by handing yourself in to police. You can run but you can’t hide. [There was in fact no such warrant issued].
I made a complaint against you to the Human Rights Commission a couple of weeks ago for calling me a black Nigger. … because you have now trespassed me in relation to the provision of goods & services, it is now under the jurisdiction of the Human Rights Commission.
I will be uploading the CCTV footage of your assault on me to Facebook. I’m telling the world what you said and did. This is also perfectly legal … It is my personal information and I have the right to do with it what I please. The video will go viral I assure you that much Kerri Vandenberg.
Checkmate!! I win.
(d)21 October 2019 post on Ms Parcell’s Facebook page:
…Kerri is wanted for questioning by Napier Police.
[Ms Vandenberg was not “wanted for questioning” by the police].
[On the same day Ms Parcell uploaded the CCTV video referred to in Mr Elliot’s 16 October 2019 email to her Facebook account and encouraged people to share the video].
(e)22 October 2019 email:
… If you treat people badly, the universe will serve you with an extra dose of your own medicine. Cosmic law dictates that every action is met with an equal and opposite reaction. You are now in the court of public opinion via social media. I am loved by the masses and you are hated. This has nothing to do with anything of my doing, you have brought this upon yourself. You only have yourself to blame. The universe hasn’t finished with you yet, make sure to sleep with one eye open, the reaper is coming to collect.
[12] Judge Kellar found the above conduct on the part of Mr Elliot constituted harassment which had continued through to 22 October 2019 and that Mr Elliot had not yet finished harassing Ms Vandenberg.4 His Honour found the behaviour had distressed Ms Vandenberg and made her concerned about her safety (and the safety of her staff).5 He further found it was reasonably foreseeable and expected that Mr Elliot’s behaviour would cause anyone to be concerned for their wellbeing.6
[13]Judge Kellar recorded the position adopted by Mr Elliot at the hearing:
[68] Although Mr Elliot does not dispute that he communicated with Ms Vandenberg in the manner outlined above, he deposed that he has not made constant threats against the applicant and has not tried to harm her business. It is abundantly apparent from the above matters, however, that he has engaged on a campaign to do just that.
[69] Mr Elliot also submits that no order should be made because most of the communication occurred before the confidential settlement of claims in the Employment Relations Authority and the Human Rights Tribunal. There is no evidence before the court to suggest that those settlements ousted the jurisdiction of the court to make restraining orders.
[70] Ms Vandenberg’s right to reputation and to live her life free from harassment of this kind is a justifiable limit on any right Mr Elliot might have had to level these kinds of unfounded accusations against her in the way he chose to do.
[14] In relation to the position to the case against Ms Parcell, as an “associated person”, the Judge recorded:
[71] Correspondence from Mr Elliot shows that he has encouraged Ms Parcell to take action which amount to specified acts against Ms Vandenberg. On 4 June 2018 Mr Elliot sent an email stating:
4 At [65].
5 At [61].
6 At [62].
I am actively encouraging Kirsten my Fiancé, to raise a Personal Grievance against you on the basis of the illegal transgressions that I have explained and outlined in this email.
[72]On 16 October 2019, Mr Elliot sent an email stating:
I will be uploading the CCTV footage of your assault to me to Facebook. I am telling the world what you said and did …
[73] On 21 October 2019, Ms Parcell uploaded the CCTV video referred to in Mr Elliot’s email of 16 October 2019 to her Facebook account and encouraged people to share the video.
[74] The above matters support the view that Mr Elliot would continue to use Ms Parcell to harass Ms Vandenberg. Accordingly, there is direction that the restraining order also apply against Ms Parcell.
Leave to appeal out of time
[15] The appeal from the Judgment had to be filed within 20 working days after the decision was given.7 This Court may by special leave extend the time for appealing.8
[16] The Supreme Court has identified considerations relevant to the discretion to extend the time for appealing as:9
(a)the length of the delay;
(b)the reasons for the delay;
(c)the parties’ conduct, particularly that of the applicant;
(d)the extent of the prejudice or hardship caused by the delay;
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally; and
(f)in some limited cases, the prospective merits of the appeal.
7 High Court Rules 2016, r 20.4(2).
8 Rule 20.4(3)(b).
9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39].
Mr Elliot’s grounds of appeal
[17] Mr Elliot’s notice of appeal contained 10 paragraphs setting out grounds of appeal. They can essentially be reduced to four matters:
(a)Grounds 1–7 — the Deed. These grounds, in some respects repetitive, all connect so as to produce the proposition that the District Court erred in assessing whether Mr Elliot had harassed Ms Vandenberg by extensive reference to matters settled by the Deed.
(b)Ground 8 — exclusion of oral evidence. Mr Elliot asserted that the District Court erred in not granting him, as a litigant in person, leave to adduce oral evidence of a witness who had not provided an affidavit. Mr Ross abandoned this appeal ground at the hearing.
(c)Ground 9 — inability to cross-examine. As Mr Elliot was precluded from himself cross-examining Ms Vandenberg, the Court erred in not ensuring that there was in place under s 95(5) Evidence Act 2006 a means of having Ms Vandenberg cross-examined. Mr Ross abandoned this ground also at the appeal hearing.
(d)Ground 10 — costs. Mr Elliot seeks to have the consequential costs order quashed in the event the restraining order is quashed.
What was not appealed
[18]Mr Elliot did not seek to appeal a number of aspects of the Judgment.
[19] First, there is no appeal ground asserting, if the District Court correctly included consideration of Mr Elliot’s conduct before the Deed was executed, that Mr Elliot’s conduct did not amount to “harassment”.
[20] Secondly, there is no appeal against the District Court’s findings that Mr Elliot’s conduct had distressed Ms Vandenberg, that it caused her to be concerned
about her safety, and that it was reasonably foreseeable and expected the behaviour would cause anyone concern for their wellbeing.
[21] Thirdly, there is no appeal against the District Court’s finding that the appropriate term of the order, if granted, was five years.
[22] Fourthly, it was not identified as a ground of appeal that a restraining order was an inappropriate remedy by reason of Ms Vandenberg now living in Australia (or having other remedies short of a restraining order). There was a suggestion of such a ground in submissions made by Mr Ross for the hearing but they do not constitute stated grounds of the appeal.
Harassment
Statutory regime and principles
[23] Judge Kellar identified the statutory regime and the principles which apply when the court is examining if an applicant has been harassed. The law is correctly reviewed in the Judgment at [2]–[18]. In particular, his Honour undertook the five stage enquiry identified in Munro v Collection House (NZ) Ltd:10
·First, to determine whether the respondent has harassed, or is harassing, the applicant;11
·Second, to find whether the behaviour in respect of which the application is made causes the applicant distress, or threatens to do so;12
·Third, to make the mixed objective/subjective assessment of whether that behaviour would cause, or threaten to cause, distress to a reasonable person in the applicant’s particular circumstances;13
·Fourth, to decide whether, in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order;14 and
10 Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [32].
11 Harassment Act 1997, ss 16(1)(a) and 17.
12 Section 16(1)(b)(i).
13 Section 16(1)(b)(ii).
14 Section 16(1)(b)(iii).
·Fifth, to decide whether the making of an order is necessary to protect the applicant from further harassment.15
[24]“Harassment” has the meaning set out in s 3 of the Act:
3Meaning of harassment
(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
(2)To avoid any doubt,—
(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.
(3)For the purposes of this Act, a person also harasses another person if—
(a)he or she engages in a pattern of behaviour that is directed against that other person; and
(b)that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.
(4)For the purposes of subsection (3), continuing act includes a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).
[25] “Specified act” (as an ingredient of “harassment” under s 3 of the Act) has the meaning set out in s 4 of the Act:
4Meaning of specified act
(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a)watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business,
15 Section 16(1)(c).
employment, or any other place that the person frequents for any purpose:
(b)following, stopping, or accosting that person:
(c)entering, or interfering with, property in that person’s possession:
(d)making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):
(e)giving offensive material to that person or leaving it where it will be found by, given to, or brought to the attention of that person:
(ea)giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:
(f)acting in any other way—
(i)that causes that person (person A) to fear for his or her safety; and
(ii)that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety.
(2)To avoid any doubt, subsection (1)(f) includes the situation where—
(a)a person acts in a particular way; and
(b)the act is done in relation to a person (person B) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (person A); and
(c)acting in that way—
causes person A to fear for his or her safety; and
(ii)would cause a reasonable person in person A’s particular circumstances to fear for his or her safety,—
whether or not acting in that way causes or is likely to cause person B to fear for person B’s safety.
Subsection (2) does not limit the generality of subsection (1)(f).
[26] The Court of Appeal in NR v District Court at Auckland identified the function of specified acts, over-ruling the High Court judgment which had wrongly limited its consideration of the respondent’s pattern of conduct to those matters that met the
definition of specified acts.16 Simon France J, delivering the judgment of the Court, stated:
The role of specified acts
[32] The High Court judgment has proceeded on an incorrect approach to the function of specified acts. Duffy J’s analyses of the pattern of conduct, of necessity and of duration were wrongly limited to those matters that met the definition of specified acts. It is seemingly for this reason that there was such a focus on identifying which of the conduct came within the definition of specified act.
[33] The Act does not limit the analysis of pattern of behaviour and harassment to specified acts. The role of specified acts is first as a gatekeeper, there needing to be two such acts within a 12-month period to engage jurisdiction.17 Thereafter a court is to assess all of the defendant’s conduct.18 The other role of specified acts is to define the scope of an order. Section 19(1) provides that the effect of a restraining order is that the person subject to the order may not do, or threaten to do, any specified act in relation to those protected by it.
[34] The wording of s 3(1) is that harassment occurs if a person engages in a pattern of behaviour “that includes doing any specific act”.19 The pattern must include such acts but is not limited to them. The existence of a pattern is to be assessed by looking at all conduct. Once a pattern of behaviour is found to exist, its nature is to be assessed against the criteria set out in s 16(1)(b) and
(c) which provide:
16 Power to make restraining order
(1)Subject to section 17, the court may make a restraining order if it is satisfied that—
…
(b)the following requirements are met:
(i)the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
(ii)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and
16 NR v District Court at Auckland [2016] NZCA 429, [2016] NZFLR 775.
17 Harassment Act, s 3(1).
18 A similar view was taken by Clifford J in Clarke v Watts [2014] NZHC 822 at [15]. We use the terminology of “defendant” for clarity’s sake but note that R was the “respondent” to M’s application.
19 Emphasis added.
(iii)in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c)the making of an order is necessary to protect the applicant from further harassment.
[27] Accordingly, once it is established that two specified acts have occurred within the 12-month period to engage jurisdiction, the court is not limited to the specified acts in question or the 12-month period in assessing whether there has been harassment and, if so, in its consideration of a restraining order.
Application of law to the facts
[28] As I have noted, it is not a ground of Mr Elliot’s appeal that the Judge (if he was correct in considering the whole pattern of conduct both pre-Deed and post-Deed), was incorrect to find that it constituted harassment.
[29] It is therefore necessary to turn to Mr Elliot’s single substantive ground, relating to the Judge’s extensive reference to matters settled by the Deed.
First proposed ground of appeal — the Deed
The construction of the Deed
[30] The (Settlement) Deed (dated 24 May 2019) was not mentioned in the Judgment. Undoubtedly because the Deed itself had not been produced in evidence and was therefore not before the District Court.
[31] By agreement between the parties, a copy of the Deed has been admitted in evidence on this appeal.
[32] The Deed in its “Background” defines “Dispute” as the dispute regarding the termination of Mr Elliot’s membership at Ms Vandenberg’s gym and “Complaint” as the complaint which Mr Elliot had made against Ms Vandenberg to the HRC.
[33] The provisions in the Deed on which Mr Elliot places particular emphasis on this appeal are as follows:
Background
…
GThe parties have agreed to settle the Dispute and the Complaint and all other related claims and issues (collectively referred to as the “Claim”) on the terms set out below.
Agreement
1. Vandenberg … will pay to Elliot the sum of … (“Settlement Payment”), in full and final settlement of the Claim.
2. …
3.Once the Settlement Payment has been received, Elliot undertakes not to pursue any claim or complaint or action against Vandenberg … in relation to the Claim.
4.Once the Settlement Payment has been received in full, this Deed may be pleaded as an absolute bar to any further or other claim or complaint or action in connection with the Claim.
[34] Mr Ross submits that by cl 4 of the Deed Ms Vandenberg was precluded from later asserting any complaint as to issues which had arisen between the parties before the date of the deed (24 May 2019). That, in Mr Ross’s submissions, is the effect of the Deed because there has been a full and final settlement of the “Claim” which in turn is defined to include “all other related issues”. Mr Ross submits, because Mr Elliot’s conduct towards Ms Vandenberg arose out of the gym membership dispute, Ms Vandenberg was precluded from later complaining about that pre-Deed conduct.
[35] Ms Borcoski submitted the Deed, properly construed, did not operate so as to preclude Ms Vandenberg relying upon and the court taking into account Mr Elliot’s pre-Deed conduct towards Ms Vandenberg. This was for a number of reasons:
(a)Ms Borcoski first noted the para G (above at [33]) reference in the settlement of “all other related claims and issues,” and submitted that such settlement could not properly be construed to preclude Mr Vandenberg’s later reference to the fact of the conduct which Mr Elliot had engaged in.
(b)Secondly, Ms Borcoski noted that the context in which the Deed must be construed is that Mr Elliot, with a self-declared tendency to pursue
litigation, had been pursuing two claims or complaints, the first over his gym membership termination and the second through the HRC. Hence the agreed settlement referred to in para G of the Deed must be construed to refer to the claims and issues in relation to those disputes.
(c)Thirdly, Ms Borcoski observed that the single payment required under the deed was a payment to Mr Elliot, not by Mr Elliot. The agreements in cls 3 and 4 (whereby, once the settlement payment has been received Mr Elliot is not to pursue any claim or complaint in relation to that Claim and the Deed, and the Deed acts as an absolute bar to any such further or other claim or complaint) must be read as an undertaking on the part of Mr Elliot only and as an absolute bar to further or other claims of Mr Elliot only.
[36] I find the meaning of the settlement agreement in the Deed is clear. The Deed through its operative provisions (especially cls 3 and 4 as relied upon by Mr Elliot) did not bar Ms Vandenberg either from later making application under the Harassment Act or, in the context of such application, relying upon Mr Elliot’s pre-Deed conduct towards her. The points made by Ms Borcoski are in favour of that construction. But, more significantly, the way in which cl 4 operates makes it clear that the bar therein expressed was upon Mr Elliot pursuing any further or other claim or complaint in connection with the Claim. That is plain when one takes into account what must be taken as the deliberate qualification in cl 4, namely “Once the Settlement Payment has been received in full”. It was Ms Vandenberg alone who was to make a settlement payment. If cl 4 had been drafted with the intention of operating against Ms Vandenberg, the qualifying words “Once the Settlement Payment has been received in full” would have been omitted. Otherwise the bar in cl 4 (on Mr Elliot’s argument obtained for his benefit as well) would not have come into operation for as long as Ms Vandenberg failed to make the settlement payment. The reason for the qualification in cl 4 as to the settlement payment being received in full was plainly because Ms Vandenberg was to receive the benefit of the bar in cl 4 only once she had made the settlement payment. That was the benefit she was procuring through her payment.
[37] Accordingly the terms of the Deed, properly construed, constituted a full and final settlement of Mr Elliot’s complaints both as to his gym membership termination and to the HRC. Properly construed it does not represent a settlement of any issues which Ms Vandenberg might have had arising from conduct, harassing or otherwise, on the part of Mr Elliot (or Ms Parcell). The Deed does not have the effect claimed by Mr Elliot.
[38] Accordingly, the Judge was correct when assessing whether harassment had been established, to consider Mr Elliot’s (and Ms Parcell’s) pre-Deed conduct.
Mr Elliot’s post-Deed conduct
[39] Had I found the Deed precluded Ms Vandenberg from relying upon Mr Elliot’s pre-Deed conduct as relevant to her subsequent application under the Harassment Act, it would become necessary to examine whether the making of the restraining order was nevertheless justified by reference to Mr Elliot’s post-Deed conduct.
[40] At [11] above, I have summarised the resumed contact between the parties which began with the bar incident on 28 September 2019 and then involved Mr Elliot’s communications in the following weeks (at [12] above).
[41] Before discussing those communications as a group, there are two particular observations to be made. First, the initial email as to joining the gym (at [11](a) above), while it may have seemed trivial out of context, has to be considered for its full import in context. The objects of the Act, under s 6(1)(a), require the Court to recognise that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context.
[42] Secondly, conduct deliberately brought about through another person constitutes behaviour on the part of the instigator. In relation to the Facebook messages and CCTV footage posted on Ms Parcell’s Facebook page on 21 October 2019 it is clear from Mr Elliot’s communications before and afterwards that he had both instigated and approved those communications.
[43] The whole series of communications through October 2019, culminating in the threats implicit in the 22 October 2019 email, entitled the Court to reach the conclusion not only that there were the required specified acts within a one year period, but also that they constituted harassment. That is, Mr Elliot engaged in a pattern of behaviour directed against Ms Vandenberg which included two or more specified acts.
[44] While a small number of acts occurring within a short period will not always be found to constitute a “pattern of behaviour”, the statutory regime recognises that as few as two specified acts may in appropriate circumstances be found to constitute harassment. Mr Elliot’s behaviour in October 2019 clearly constituted a pattern of behaviour, self-evidently orchestrated through his 16 October 2019 visit to the gym. That visit was an act calculated to bring about Mr Elliot’s refused admission and his commencement of a fresh complaint to the HRC. The behaviour throughout October was all directed against Ms Vandenberg.
[45] Judge Kellar’s factual findings as to Ms Vandenberg’s distress apply equally to this October conduct, even if it is considered in isolation from Mr Elliot’s earlier conduct. Judge Kellar’s finding that Mr Elliot would continue to direct such conduct towards Ms Vandenberg equally applies.
[46] In those circumstances the making of a restraining order, based upon the post- Deed conduct alone, was clearly justified.
Second and third proposed grounds of appeal
[47] Each of the second and third proposed grounds of appeal was abandoned (above at [17]). They do not require further discussion.
Appeal in relation to costs
[48] By reason of my earlier findings, on Mr Ross’s concession the appeal against the costs order in the District Court falls away.
Outcome
[49] I have found, despite Mr Ross’s best endeavours to point to a sustainable argument not fully articulated in the Court below, the Deed has a clear meaning which did not bar Ms Vandenberg from referring to it in any subsequent claim (whether under the Harassment Act or otherwise). I have also found that, in any event, Mr Elliot engaged in post-Deed conduct in October 2019 which clearly amounted to harassment when assessed in isolation.
[50]The appeal will be refused on substantive grounds.
Leave to appeal
[51] In the circumstances of this case, I would grant the leave sought by Mr Elliot to appeal. The power to extend time to appeal is generally exercised favourably where there has been only a short delay which has been properly explained provided other considerations justify the grant of leave.
The costs of this appeal
[52] Mr Ross had earlier notified the Court that Mr Elliot was in receipt of legal aid for this appeal.
[53] At the conclusion of counsels’ submissions, I invited their further submission in relation to potential costs orders (depending upon the outcome).
[54] I here focus on the outcome which has occurred, namely that leave to appeal is being refused.
[55] Section 45(2) Legal Services Act 2011 provides that no order for costs may be made against a legally aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.
[56] Under s 45(3) of the Act, the court in determining whether there are exceptional circumstances may take account of (amongst other things) the following conduct by the aided person:
(a)Any conduct [by the aided person] that causes the other person to incur unnecessary cost:
…
(d)Any unreasonable pursuit of 1 or more issues on which the aided person fails:
…
[57] Section 45(5) of the Act provides that, where no order for costs is able to be made by reason of the provisions of s 45, the court may make an order specifying what order for costs would have been made if the section had not affected costs liability.
[58] For Ms Vandenberg, Ms Borcoski submitted that their exist in relation to this appeal exceptional circumstances which justify the making of an order for costs under s 45(2). She invokes in particular s 45(3)(a) and (d). I take her submissions into account in the discussion which follows.
[59] Alternatively, Ms Borcoski submitted, were the Court not to make such a costs order, it should make an order specifying the costs that would otherwise have been payable (under s 45(3)).
[60] In either event, Ms Borcoski submitted that the amount of costs should be calculated on a 2B basis.
[61] In relation to Ms Vandenberg’s primary claim for an order for payment of costs under s 45(3) of the Act, Mr Ross submitted that there are not the exceptional circumstances in this case which would justify such an order. He submitted in particular that the issues in relation to the Deed had not been unreasonably pursued in this appeal.
[62] I am satisfied there have been exceptional circumstances in relation to this appeal which justify an award of costs. In reaching that conclusion I take into account the fact that the exceptional circumstances which the Court may take into account are not limited to those specifically identified in s 45(3) of the Act.
[63] The matters which contribute to my finding of exceptional circumstances include the following:
(a)Two of the three grounds of appeal were abandoned only at the hearing of the appeal. While the two grounds involved might be described as “procedural”, they had the potential individually and cumulatively, if sustained, to require a reference back to the District Court for a fresh hearing. Ms Borcoski therefore had to prepare carefully for those appeal grounds.
(b)While the appeal ground based on the construction of the Deed appeared initially attractive (if construction was approached on a purely literal basis), that construction is clearly unavailable when the full provisions of the Deed are taken into account. Furthermore, given the nature of Mr Elliot’s conduct in the post-Deed period, any appeal ground based on the Deed had no prospect of success: even had the Deed been construed as contended for by Mr Elliot, the making of the restraining order was justified by reference to Mr Elliot’s post-Deed conduct.
(c)I also take into account the fact that the failure of Mr Elliot to put the Deed in evidence in the District Court hearing and to develop the construction argument in that Court meant that this appeal was, in effect, a first instance hearing on that point (notified at the appeal hearing as the only point of defence). Had the parties had the benefit of Judge Kellar’s reasoning and decision on the construction point, the consideration of appeal and the filing of an appeal may well not have eventuated.
[64] These matters combine to make the circumstances relating to this appeal truly exceptional. In the exercise of the Court’s discretion, I find it appropriate to award costs to Ms Vandenberg on a 2B basis as sought.
Orders
[65]I order:
(a)the appellant is granted an extension of time to appeal the judgment in
Vandenberg v Elliot [2020] NZDC 15702;
(b)the appeal is dismissed; and
(c)the appellant is to pay to the respondent the costs of the proceeding, fixed on a 2B basis, together with the respondent’s reasonable disbursements.
Osborne J
Solicitors:
Cathedral Lane Law, Napier
SRB Law, Solicitors, Christchurch
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