Haden v H
[2021] NZHC 3169
•24 November 2021
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 about her, as well as seeking information about her from Government departments. She has also made a complaint about her to the Law Society.
The applicant has requested “directions” preventing the respondent from posting material on-line about her, her family, employer or other associates and from contacting any of them.
I consider the Court does have the jurisdiction under District Court Rule 20.26(2) to make an interim restraining order under the Act on an ex-parte basis pursuant to the Rules which give the Court power to issue an interim injunction in ordinary civil proceedings.
1 [H] v Haden [2021] NZDC 20011.
2 [H] v Haden CIV-2019-004-000259, 20 March 2020 at [1]–[8] (footnotes omitted).
I also consider such an order is best calculated to ensure the object of the Act is attained and to promote the ends of justice. The reasons for that are as follows:
• The affirmations of the applicant and exhibits attached to them show a prima facie case for a restraining order.
• The delay in the proceeding so far, together with the indefinite further delay (which is likely to be months) before a hearing of the application takes place, will mean that the applicant would otherwise be left without the protection which the Act is intended to bestow and would be unjust to her.
• An interim order is just that. It will last only until a full hearing can take place. The order will be limited to provide some level of protection to the applicant while maintaining as far as practicable the respondent's right to freedom of expression.
There will be an interim restraining order against the respondent to continue until the substantive hearing of the application (unless earlier discharged by the Court) on the standard conditions and the following special conditions:
• The respondent must not contact or approach the applicant or any member of the applicant’s immediate family directly or indirectly by any means whatsoever.
• The respondent must not, after this order is served on her by email, make any posting on the internet on publicly available sites or on social media which refers to the applicant or any member of her family in any way whatever.
The hearing of the substantive application on 24 March is vacated. The Registrar is to liaise with the parties to allocate another date as soon as that may be practicable.
[6] By document dated 23 March the appellant applied to discharge the order. The matter was subsequently set down for hearing on 24 August. On 13 August the appellant filed a memorandum in which she said, inter alia:
While I should properly defend this gross abuse of process, it is probably far easier to deal with it by way of consent.
…
I have attached my undertaking in the wording of her application and hope that this brings all proceedings to an end.
[7] The attached undertaking, including undertakings not to contact the respondent in particular ways, concluded:
This undertaking does not constitute an admission by me that I have harassed the appellant in any way.
[8] The appellant also sought an adjournment of the hearing on 24 August based on medical grounds. The position was then reviewed by Judge Tuohy who by minute dated 17 August said:
The immediate issue is the respondent’s application for an application based on her inability to take part due to a medical condition.
However that issue may have been overtaken as a result of the respondent’s latest memorandum dated 13 August 2020 in which she indicates a wish to deal with (the application) by way of consent in order to bring an end to the matter. She attached a signed undertaking in terms of the application.
An undertaking is not a consent order and a breach of it does not have the consequences of the breach of an order.
A consent order in terms of the respondent’s undertaking should conclude the proceeding. I will make one on the papers if the respondent indicates her consent to that by email to the Court and the indicates her acceptance of that outcome by email to the Court, such emails to be provided by 4 pm, 18 August 2020.
I do not intend by this appraisal to initiate a negotiation process. If this result is not accepted by the parties, the Court will decide on the application for an adjournment and address, as far as necessary, the other matters raised in the memorandum.
[9] Subsequently by email to the Registrar dated 17 August the appellant stated “I agree to a consent order in the terms of my undertaking”. The respondent responded seeking particular conditions of an order under the Act. By minute dated 20 August 2020 Judge Tuohy responded to the emails in the following way:
Both parties have responded. The respondent has provided written consent to a final restraining order in terms of her undertaking dated 13 August 2020. That understanding [sic] mirrored word for word the special conditions sought by the applicant in her original application filed on 14 February 2019.
However, despite the advice in my Minute that I did not intend to initiate a negotiation process, the applicant is seeking some specific additional conditions.
I agree with the applicant that conditions (1), (2) and (3) she seeks are already covered by the existing restraining order, at least as they relate to her. They also would be covered by the standard conditions together with the consented special condition, particularly having regard to s 3(4) and s 19(1)A of the Harassment Act.
In summary, I consider that a restraining order in terms of the respondent’s consent, properly interpreted, covers what the applicant is seeking.
Further compliance or lack of is a matter of enforcement.
Therefore I make a final order granting a restraining order for a duration of five years on the standard conditions and the special condition in terms of the respondent’s undertaking dated 13 August 2020.
This brings the proceeding to an end.
[10] This is the second main judgment subject to appeal. The only additional matter of importance is that prosecution action has been commenced against the appellant for failing to comply with the restraining order. I understand that it has been adjourned pending the outcome of these appeals.
Requirements of the legislation
[11] The Act sets out requirements that need to be met before restraining orders may be made. For example, in s 3 it provides a meaning of “harassment” which requires a pattern of behaviour directed at a person that includes specified acts on at least two separate occasions within a period of 12 months. Section 4 then sets out a detailed definition of a “specified act”. Under s 25(2) an offence is created if a restraining order under which a person is liable for imprisonment for a term not exceeding six months or a fine not exceeding $5,000.
[12] In C v L this Court gave consideration to the approach to be applied to applications under the Act given the right of freedom of expression in the New Zealand Bill of Rights Act 1990. The Act plainly contemplated orders have the effect of limiting the freedom of expression. After reviewing the provisions of the Act the following overall conclusions were reached:3
… it seems to me that the legislation meets the requirement for a demonstrably justified limitation. The meaning of harassment is closely defined, and there are carefully formulated tests before the statutory threshold for making a protection order can be met. The purposes of the legislation are also clearly articulated in the objects section. It is directed towards the distress that can be caused by behaviour of this kind. Section 16 sets an appropriate standard for determining whether an order should be made which involves standards directed not only the person applying for the order, but a reasonable person in that person’s circumstances. Moreover, an order can only be made if it is
3 C v L [2019] NZHC 485 at [15]–[16].
justified, and only if it is “necessary to protect the applicant from further harassment”.4 The requirement of necessity may be particularly important in establishing a justified limit on fundamental rights.
The overall regime of the Act is also of significance. A protection order is first issued by the Court on notice, and following Court scrutiny, including on the terms and conditions of any protection order. It is only if an order is breached that potential offending is involved. Therefore in this area of intimidatory behaviour the legislature sets up a regime where an order may be made against a person — in effect an order requiring them to “back off” — before more significant sanction of the State is invoked. There is also a careful regime for discharge of variation of the orders, as well as rights of appeal, such as that exercised in the present case.
Leave to appeal
[13] The appellant seeks to appeal against both the interim and final decision, as well as associated decisions of the District Court. She did not seek to appeal these decisions within time and she accordingly seeks leave to appeal. Under s 34(2) of the Act and r 20.4(2) of the High Court Rules 2016 appeals are required to be brought within 20 working days, with special leave to appeal out of time contemplated by r 20.4(3). The appellant is well out of time. It is nevertheless appropriate for special leave to be granted to appeal the interim and final decisions given the following considerations:
(a)The appellant is now facing prosecution for breach of the restraining orders, and says she did not properly understand the effect of the orders once she provided an undertaking. I accept that that provides some explanation as to why she did not earlier appeal the decisions. The respondent also did not oppose leave being granted in relation to the final order made. But the interim order is inherently interrelated with a final order, such that leave to appeal to both decisions would be appropriate.
(b)As I will explain below, the Court had no jurisdiction to make the interim order, and it did not address the requirements of the Act when making the final order. It would be inappropriate to allow such orders
4 Harassment Act 1997, s 16(1)(c).
to continue to have any effect, particularly in circumstances where criminal proceedings may follow a failure to follow the orders.
(c)The appellant appears in person, as she did in the lower Court. A degree of latitude should be allowed when litigants in person fail to meet procedural requirements such as time limits, particularly as they may not be as familiar with the requirements as those with legal training.
[14] To the extent that the appellant sought leave to appeal other decisions of the District Court I decline the application. Granting leave to appeal the two main decisions is all that is necessary to do justice in this case.
The interim decision
[15] In amongst her submissions criticising the lower Court decisions, the appellant contended that the District Court had no jurisdiction to make the orders that it did, and the only jurisdiction that the Court had to make such orders existed under s 16 of the Act. I accept that submission. More particularly with respect to the interim orders there was no jurisdiction to make such orders under the Act.
[16] The Judge proceeded on the basis that he had power to make interim orders under the District Court Rules 2014. Subpart 3 of part 20 of the District Court Rules deals with the procedure to be followed for applications under the Act. The Judge held that he derived jurisdiction to make the interim order under r 20.26(2). The footnotes to his decision of 20 March 2020 referred to rr 20.61, 7.45 and 7.16 as providing the source of the power to make interim orders on an ex parte basis.
[17] Unfortunately it appears that the Judge may have misread the Rules. Rule 20.26(2) provides the rules apply to proceedings under the Act with necessary modifications unless they are excluded by r 20.26(1). Under r 20.26(1)(p) the primary rule relied upon — r 7.45, the rule in relation to interim injunctions — is excluded as a rule that may be exercised by the District Court in relation to proceedings under the Act.
[18] More generally the provisions of the District Court Rules cannot be taken to supplement, or change the requirements for the grant of restraining orders under the Act. They do no more than provide the procedure by which such orders meeting the requirements of the Act are to be assessed. That is the reason why the power to grant interim injunctions under the Rules is excluded — no such orders are contemplated by the Act.
[19]The Act itself also addresses the procedural requirements. Section 15 provides:
15 Applications for restraining order to be on notice
Every application for a restraining order must be made on notice to—
(a)the respondent; and
(b)every person in respect of whom a direction under section 18 is sought—
in accordance with rules of court.
[20] That gives rise to further difficulties in relation to the other rule relied upon — r 7.16 which outlines the circumstances where orders can be made on a without notice basis. It is clear that the Act does not contemplate making interim orders on a without notice basis.
[21] The respondent sought to support the interim orders made here on the basis that the Court had jurisdiction to make them under r 7.36 — the power to make interlocutory orders — rather than r 7.45 and 7.16. I see a number of difficulties with that suggestion.
[22] First it is apparent that the only interlocutory order being made by the Court here was the grant of an interim injunction. That is an interlocutory order that the Court is expressly not able to make given the terms of r 20.26(1)(p). Jurisdiction to make that order is not created by simply calling it something else. Moreover, in any event, the source for making orders must be derived from the Act itself.
[23] I accept that the Court might be able to make an order if the requirements for issuing a restraining order under s 16 are met, with that restraining order only issued for a period of time until a further hearing is held. But it is not possible to interpret
the Judge’s orders here as being of that nature. The requirements of s 16, as informed by the other provisions of the Act, were not addressed. The Judge went no further than finding that “a prima facie case” for a restraining order was demonstrated. That is not the same as a finding that the requirements for such an order in s 16 were established. It is clear from the decision as a whole that the Judge was applying the approach required for the grant of an interim injunction, and was not reaching a final conclusion on the merits of the substantive application for a restraining order.
[24] It follows that the appeal against the orders decisions of the Court should be allowed.
Final orders
[25] There are then related concerns with the decision of the Court under which the final orders were made.
[26] It is apparent from the terms of the decision, and the minutes surrounding it, that the Judge was making these orders solely by consent. The difficulty with this is that he did not address the requirements of s 16, or the Act more broadly. As was explained in C v L the Act has detailed requirements that must be established before a restraining order can be made.5 Such requirements are necessary to ensure that the justification exists to make an order that confines the fundamental right of freedom of expression. They are also important because the restraining order can give rise to offences for breaching the order. But it is apparent that the Judge did not address the Act’s requirements. Indeed, he said in the minute of 17 August 2020 that he would make the orders if they were consented to, but that he did not intend by this to “initiate a negotiation process”.
[27] Before an order can be made under the Act the requirements making the order need to be addressed. If a party consents to that order being made, or does not oppose, the matter can proceed effectively by way of formal proof. But the requirements of
5 C v L, above n 3.
the Act must still be addressed. The respondent relied on the decision of the District Court in P v H where Judge Shaw said:6
The Harassment Act 1997 does not provide for set procedures for the conduct of hearings for restraining orders. In the absence of any clear direction any procedures adopted must be sufficient to ensure that both parties obtain a fair hearing, that the interests of justice are met and that the object of the Act of providing protection to victims of harassment is not frustrated by the process.
The application of these principles should ensure that the procedure for each hearing can be regulated according to the nature of the application, the type and amount of material filed in support and opposition, whether the parties are represented by counsel, whether the application is opposed and in light of any other matters brought to the Court’s attention by the parties prior to the hearing.
At one end of the scale an unopposed application disclosing adequate grounds on the papers could be dealt with without the need for a hearing. At the other end a fully contested matter could require full cross-examination on the affidavits filed. Between those extremes circumstances may dictate a variation of approach.
[28] The District Court Rules were subsequently amended to make specific provision for applications under the Act in subpart 3 of part 20. I nevertheless generally agree with the approach Judge Shaw describes. But whilst orders may be able to be made without the need for a full hearing the requirements of the Act will still need to be satisfied.7 For example, the definition of “harassment” requires specified acts on at least two occasions within a period of 12 months, with a definition of “specified act” provided in s 4. The Judge would need to be satisfied that these prerequisites were satisfied, although that can be done in a more efficient way in some circumstances as Judge Shaw indicated. But here there was no attempt to address the requirements of the Act.
[29] The point is further demonstrated by the fact that the undertaking the appellant filed as the basis for her consent contained the express statement that “this undertaking does not constitute an admission by me that I have harassed the appellant in any way”. Whilst the appellant sent an email to the Registrar saying that she consented to an order in the form of her undertaking, this did not withdraw this aspect of what she had said. I accept the appellant’s submission that she did not fully understand the
6 P v H [1998] DCR 715 at 716.
7 I doubt whether orders can be made without a hearing being at least scheduled given s 15 of the Act. See also District Courts Act 2016, s 107.
implications of consenting to an order in the form of her undertaking. She was seeking to resolve the matter by formally promising not to engage in any further behaviour of the type outlined. In those circumstances before an order could be made under the Act the requirements of the Act would need to be addressed, and given the ambiguities of what the appellant had advised the Court, it seems to me that there would have needed to be a hearing at which the position was explained and considered. That may have been particularly appropriate given that the appellant was appearing in person.
[30]In those circumstances it seems to me that the order cannot stand.
[31] There is no basis for the appellant’s allegations that the Judge exhibited bias. But her criticisms appear to be directed to the fact that she had provided a specifically worded undertaking that was not intended to be an admission, and that the Judge had also made no reference to her affidavit filed in which she indicated an intention to defend the allegation that she engaged in harassment. So I see the appellant’s complaint to be more accurately addressed by the conclusions I have already reached.
Conclusion
[32] For the above reasons leave to appeal out of time is granted, the appeal is allowed, and the restraining orders are set aside.
[33] The effect of that decision is 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. I understand that the prosecution will no longer proceed given that the restraining orders were not lawfully made.
[34] Both parties appeared in person on this appeal. In those circumstances, and given the confusion created by the appellant apparently consenting to the restraining orders, and that she needed the indulgence of the grant of special leave to appeal out of time, there will be no award of costs.
Cooke J