Haden v H - [2021] NZHC 3169

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-347

[2021] NZHC 3169

BETWEEN
GRACE HADEN

Appellant

AND

[H]

Respondent

Hearing: 12 November 2021

Appearances:

G Haden Appellant in person [H] Respondent in person

Judgment:

24 November 2021

JUDGMENT OF COOKE J

[1] By notice of appeal, and an application for leave to appeal both dated 2 July 2021 the appellant seeks to appeal decisions of the District Court pursuant to which restraining orders were made under the Harassment Act 1997 (the Act) against the appellant in favour of the respondent.

Background

[2] I do not review the background in any detail as neither of the main decisions of the District Court subject to the appeal included any factual findings, and it does not seem appropriate for the Court to do so for the first time on appeal.

[3] Broadly speaking the appellant has engaged in conduct that has involved criticisms of the respondent by the appellant, including by posting material online and making adverse comment about the respondent to other persons. In a recent judgment of Judge D G Smith, the District Court has upheld defamation proceedings, awarding

HADEN v [H] [2021] NZHC 3169 [24 November 2021]

the respondent damages.1 That decision is itself being appealed by the appellant to this Court.

[4] By application dated 11 February 2019 the respondent filed an application for a restraining order under the Act supported by an affidavit of the same date. The appellant subsequently filed an affidavit dated 15 April 2019 indicating opposition to such orders. The proceedings then went through some case management conferences, which included transferring the proceedings to Wellington, and considering whether the proceedings should be heard together with the defamation proceedings that I referred to above.

[5] On 31 January 2020 Judge Hastings indicated that, in his view, the application for the restraining order should be dismissed because the applicant could no longer demonstrate the orders were necessary given the passage of time. The application was nevertheless pursued. The next steps were summarised by Judge Tuohy in the first of the main decisions subject to appeal. He said:2
This is an application for a restraining order under the Harassment Act which has been before this Court since early 2019. It has been the subject of lengthy delays which do not advance the objects of the Act.

The application has been set down for a half day hearing on 23 March 2020. The respondent, by email dated 18 March, has advised that she is now in self- isolation due to potential exposure to Covid-19. This information is supported by a certificate from a health professional.

It is obvious that the hearing on 23 March will have to be vacated. The applicant wanted it to proceed as she says that she continues to be harassed by the respondent. She has filed a further affirmation dated 17 March 2020 which exhibits material which shows the respondent continues to make on-line posts…

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 Haden v H

Details

AGLC: Haden v H [2021] NZHC 3169
Case: [2021] NZHC 3169
Decision Date: 24 November 2021

CaseChat Overview and Summary

Grace Haden appealed against decisions of the District Court which made restraining orders under the Harassment Act 1997 against her in favour of [H]. The appeal was heard in the High Court of New Zealand, Wellington Registry. The appellant contended that the District Court lacked jurisdiction to make the orders, and that the requirements of the Act were not properly addressed when making the final order. The appellant also sought leave to appeal out of time, as she did not appeal within the statutory period.

The court found that the District Court did not have jurisdiction to make the interim orders as it relied on the wrong rule. The court also found that the requirements of the Act were not properly addressed when making the final order, as the court made the order solely by consent without addressing the requirements of the Act. The court granted leave to appeal out of time and allowed the appeal, setting aside the restraining orders. The court held that the respondent's application for a restraining order, if she still wishes to pursue it, will need to be reconsidered by the District Court. The court did not award costs to either party given the confusion created by the appellant consenting to the restraining orders and the need for the grant of special leave to appeal out of time.

In summary, the court found that the District Court did not have jurisdiction to make the interim orders, and that the requirements of the Act were not properly addressed when making the final order. The court granted leave to appeal out of time and allowed the appeal, setting aside the restraining orders. The court did not award costs to either party.

Orders