Lawton v Sewell
[2023] NZHC 2929
•19 October 2023
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2021-441-95
[2023] NZHC 2929
IN THE MATTER of Section 34 of the Harassment Act 1997 BETWEEN
JULIAN EDWARD LAWTON
Appellant
AND
DENISE CHERIDAH SEWELL
Respondent
Hearing: 13 October 2023 (via VMR) Appearances:
P N Ross for Appellant
L J Blomfield for Respondent
Judgment:
19 October 2023
JUDGMENT OF McQUEEN J
[1] On 5 November 2021, Judge Kelly in the Napier District Court declined Mr Lawton’s application for a restraining order against Ms Sewell.1 By way of a notice of appeal dated 30 November 2021, Mr Lawton appeals that decision.2
[2] The matter currently before the Court is an interlocutory application by Mr Lawton dated 12 June 2023 to adduce further evidence on appeal. Mr Lawton seeks to adduce evidence relating to events that have taken place following the District Court decision, saying that it shows that representations made by Ms Sewell to the District Court have not been fulfilled and that this is relevant to his appeal. He says
1 Lawton v Sewell [2021] NZDC 21701.
2 An amended notice of appeal dated 29 May 2023 was subsequently filed. I note that this appeal has been slow to progress, including due to periods where Mr Lawton or his counsel has not met timetable orders.
LAWTON v SEWELL [2023] NZHC 2929 [19 October 2023]
that the evidence is cogent, material, and could not have been put before the District Court.
[3] Mr Lawton’s application is opposed by Ms Sewell, who says that the further evidence does not assist Mr Lawton in relation to any of the reasons given by the District Court for declining his application for a restraining order. She notes also that to the extent that the evidence relates to matters which occurred after October 2022, that evidence is disputed, and that therefore if leave is granted to Mr Lawton, she must also have the opportunity to respond, and that cross-examination will likely be required. She says therefore that to admit the further evidence will result in substantial relitigation on appeal.
[4] For the reasons below, I consider that Mr Lawton’s application should be dismissed.
Background
Factual background
[5] It is not necessary to recount the full background of the present proceeding at the current juncture. It will suffice instead to say, drawing on the District Court judgment, that Mr Lawton and Ms Sewell are neighbours in the sense that they live in close proximity to each other. Mr Lawton owns an east facing property on Chaucer Road North in Napier. Mr Lawton’s immediate neighbour to the north is Mr Simpson. Ms Sewell owns a property abutting the rear of Mr Simpson’s property. Thus, a part of Mr Simpson’s property separates Mr Lawton’s property from Ms Sewell’s property. Mr Lawton has access to the rear of his section by virtue of a right of way over part of Ms Sewell’s property and over the rear of Mr Simpson’s property. Ms Sewell’s property is the burdened land (or servient tenement), and Mr Lawton’s property is the benefitted land (or dominant tenement).
[6] In 2020, a dispute arose between Mr Lawton and Mr Simpson on the one hand, and Ms Sewell on the other, when Mr Simpson converted a shed adjacent to the right of way into accommodation. This involved the right of way being used by various tradespeople. The dispute escalated. This included Mr Lawton and Mr Simpson
seeking to ‘trespass’ Ms Sewell from the right of way because of Ms Sewell’s actions, said to block passage along the right of way or otherwise inhibit Mr Lawton and/or Mr Simpson’s ability to use the right of way. This involved the use of signs on the right of way, which indicated that Ms Sewell was concerned about the use of the right of way, including by larger vehicles used by tradespeople, given children were often present in the area. This also involved the placement of cars, a trampoline, teddy bears, and stones upon the right of way. An event occurred on 20 December 2020 where, during an altercation with Mr Lawton and his partner, Ms Sewell threw eggs at Mr Lawton’s car.
[7] By the time Mr Lawton’s application for the restraining order was heard in the District Court, the dispute had all but ceased, with Mr Lawton accepting that the situation between him and Ms Sewell had “been good for nine months since January 2021”.3 Mr Lawton nevertheless pursued the application for a restraining order, to pre-emptively guard against deterioration of the situation in the future.
The District Court decision
[8] The District Court Judge first set out the legal test for a restraining order, the evidence provided by the parties, and also their submissions.4 Section 9(1) of the Harassment Act 1997 (the Act) provides that a person who is being or has been harassed by another person may apply to the court for a restraining order in respect of that other person. ‘Harassment’ is defined in s 3 of the Act as follows:
…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.
[9] What constitutes a ‘specified act’ is set out in ss 4(1) and 4(2), which provide that a specified act is any of the following:
4 Meaning of specified act
(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
3 Above n 1, at [29], [37] and [97].
4 The District Court Judge heard oral evidence from Mr Lawton, Mr Simpson, Ms Sewell, Ms Katie Subritzky (Mr Lawton’s partner) and Ms Tricia Fitzgerald (Mr Lawton’s tenant).
(a)watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, 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:
(f)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:
(g)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.
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—
(i)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,—
(iii)whether or not acting in that way causes or is likely to cause person B to fear for person B’s safety.
(3)Subsection (2) does not limit the generality of subsection (1)(f).
[10] If the court is satisfied that there has been harassment, the court’s jurisdiction is engaged. Then the court must assess whether the factors contained in ss 16(1)(b) and 16(1)(c) are established, being that:5
(a)the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
(b)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and
(c)in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(d)the making of an order is necessary to protect the applicant from further harassment.
[11] The Judge considered the evidence and submissions of the parties. His Honour concluded that:
(a)the incident involving the throwing of eggs on 20 December 2020 constituted a specified act, being interference with Mr Lawton’s property by Ms Sewell, but this incident would not cause a reasonable person to fear for their safety;6
(b)while the actions of Ms Sewell in placing objects on the right of way was undoubtedly annoying to Mr Lawton, on the balance of probabilities, Mr Lawton was not prevented or hindered in accessing his place of residence in the terms of s 4(1)(a) of the Act;
5 See Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [32]. Section 16 of the Act is also subject to s 17, which provides: “A specified act cannot be relied on to establish harassment for the purposes of section 16(1)(a) if the respondent proves that the specified act was done for a lawful purpose.” The Judge also considered that the level of distress must merit the court interfering with Ms Sewell’s rights of free movement and speech: NR v District Court at Auckland and MR [2016] NZCA 429 at [35].
6 Although not expressly recorded by the Judge, this finding appears to relate to s 4(1)(c) of the Act.
(c)the signs placed upon the right of way did not meet the threshold of being offensive in the terms of s (4)(1)(e) of the Act, as they contained no insult;
(d)the egg throwing incident was the only incident which was a qualifying specified act;
(e)in any event, the criteria in ss 16(1)(b) and 16(1)(c) of the Act had not been met—as none of the behaviour could be considered to be distressing, or threatening to cause distress, and any degree of distress was so low that it did not justify interfering with Ms Sewell’s freedom of movement and speech on her land; and
(f)a restraining order was not necessary to protect Mr Lawton in the future—as nothing had occurred for a period of nine months, and there was no indication in the evidence that the dispute would start again.
[12] Accordingly, the Judge dismissed Mr Lawton’s application for a restraining order. The Judge noted that if a restraining order was made it would have been likely to aggravate rather that resolve the situation. His Honour encouraged the parties to clarify their understandings of their rights and obligations in relation to the right of way, and if necessary, to renew their efforts at reaching an agreement about the use of the right of way.
[13] For present purposes, it is also relevant to note the Judge’s statement that although he was not required to determine whether either party had breached the terms of the easement creating the right of way:7
….I observe that while Ms Sewell appears to now better understand her obligations in relation to the right of way, Mr Lawton appears less clear. References to ‘my right of way’ and the ‘rights of the holder of the dominant tenement being greater than those of the servient tenement’ betray a poor understanding of how the rights and obligations associated with rights of way operate, as does the issuing of a trespass notice to Ms Sewell in respect of her land which is subject to the right of way. Use of the only terminology such as ‘dominant’ and ‘servient’ has likely contributed to this. In my experience, people sometimes interpret these terms to mean more than they do.
7 Above n 1, at [123].
The application to adduce further evidence on appeal
[14] Mr Lawton applies to adduce further evidence on appeal. The evidence he wishes to adduce is not specifically identified in his notice of application, but it is apparent that it is evidence relating to further events from October 2022 onwards.8
[15] The grounds relied upon by Mr Lawton in his application to adduce further evidence on appeal are:
(a)The decision under appeal relied upon representations made to the Court that past behaviour was made in ignorance of the legal rights of the parties so that future behaviour would be different.
(b)Events subsequent to the end of the various Court proceedings demonstrate that this representation, relied upon by the District Court, has not in practice been met.
(c)The necessity limb of the test for making a restraining order is engaged by the post-judgment conduct. To this end, the evidence is cogent, material, and could not have been adduced in the original proceedings as it came into existence after those proceedings had concluded.
(d)As further set out in the annexed affidavit of Julian Edward Lawton, sworn in support of this application.
[16] In his affidavit in support of the present application, Mr Lawton deposes that Ms Sewell, motivated by malice, has reverted to ignoring his and Mr Simpson’s rights of access, and “has committed further specified acts”. Mr Lawton says that this happened after both the District Court hearing in relation to his application and a further hearing in relation to an application for a restraining order against Ms Sewell made by Mr Simpson. Mr Lawton takes issue with the District Court’s findings (under appeal) that the parties did not understand the nature of the rights concerned, and also that a restraining order was not necessary, as Ms Sewell was then aware of the nature of the rights concerned.
[17] Mr Lawton says that Ms Sewell gave an undertaking that she would behave differently in the future, and that this was relied on by the District Court. I note that the affidavit addresses other matters, the relevance of which is questionable, including
8 Described in [23] of the affidavit of Mr Lawton filed in support of the application to adduce further evidence on appeal, dated 12 June 2023.
a discussion of Mr Lawton’s intended claim in tort for damage to his car as a result of the egg throwing incident.
Ms Sewell’s opposition
[18]Ms Sewell opposes Mr Lawton’s application on the following grounds:
3.1The appellant’s application for a restraining order was declined for several reasons including, importantly, that there had not been two specified acts within a 12 month period. Proof of two such acts is required to engage the Court’s jurisdiction to make a restraining order.
3.2The further evidence that the appellant wishes to adduce does not assist on that matter or any of the other reasons (apart from necessity) given by the Judge for declining Mr Lawton’s application for a restraining order.
3.3The further evidence which relates to a timeline of events said to have occurred after October 2022 is disputed by the respondent.
3.4If leave is granted Ms Sewell must have the opportunity to respond to that further evidence.
3.5Cross-examination of the parties on that further evidence will be required.
3.6The further evidence will likely trigger a substantial re-litigation of the substantive case before the High Court.
[19] Ms Sewell has also filed an affidavit in support of her opposition to Mr Lawton’s application to adduce further evidence. She says she did not give an undertaking to the District Court as Mr Lawton asserts. She accepts that between Mr Lawton making his application for a restraining order and prior to the hearing, she had offered an undertaking to Mr Lawton about mutual expectations for use of the right of way and sought to establish a process for communication, however they were unable to reach an agreement.
[20] As to the proposed additional evidence, Ms Sewell does not accept that Mr Lawton’s description of the events that allegedly occurred from October 2022 onwards is accurate. She says that if leave is granted allowing Mr Lawton to give that evidence, then she would need to be given an opportunity to respond. Ms Sewell accepts the description of one event as it is summarised in another District Court
judgment, this one relating to Mr Simpson’s application for a restraining order.9 Essentially, she does not accept that vehicles have been parked in a manner which prevents or hinders Mr Lawton’s access to his property, or which is contrary to any undertaking given to the Court, because she gave no undertaking.
Relevant law
[21] The Act provides that a party may appeal a decision of the District Court to refuse to make a restraining order.10 The High Court Rules 2016 and ss 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to such an appeal, which is a general appeal.11 The applicable rule as to further evidence on appeal is therefore r 20.16 of the High Court Rules, which provides:
20.16 Further evidence
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(3)The court may grant leave only if there are special reasons for hearing the evidence. An example of a special reason is that the evidence relates to matters that have arisen after the date of the decision appealed against and that are or may be relevant to the determination of the appeal.
(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[22] In short, where leave is required, it will only be granted if there are special reasons. The evidence must be cogent, likely to be material, and must not have been able to be reasonably been discovered at an earlier stage. An appeal should not be
9 Simpson and Edmonds v Sewell [2022] NZDC 8650.
10 Harassment Act 1997, s 34.
11 Section 34(2).
turned into a new trial.12 The relevant principles governing the receipt of further evidence, as agreed by counsel, have been described by Wylie J in B v A as follows:13
(a)The Court can receive further evidence if it thinks that the interests of justice require it to do so.
(b)It is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time.
(c)Admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re- litigation before the appellate Court of the substantive case will count against admitting the further evidence.
(d)Generally, the further evidence must be fresh, credible and cogent.
(e)Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial.
(f)The absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency.
(g)The interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources.
12 Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557, [1991] NZAR 337 at [6].
13 B v A [2020] NZHC 580, (2020) 26 PRNZ 58 at [25]; citing Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [39]–[44]; Nation v Nation [2005] 3 NZLR 46 (CA); Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); Comalco NZ Ltd v TVNZ Ltd (1996) 10 PRNZ 573; and Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760.
A high value is placed on finality when the parties have been afforded the opportunity and failed to take it.
(h)The standard to be met is “rightly high”.
Positions of the parties
Mr Lawton
[23] Mr Ross, counsel for Mr Lawton, submits that the evidence which Mr Lawton seeks to adduce is directed at the issue of whether Ms Sewell has complied with representations made to the District Court that her behaviour would change. Mr Ross highlighted that the decision whether to make a restraining order was an evaluative one, and said:
If it appears to the District Court that a person in the position of the respondent carried out acts that might be specified acts or form part of a pattern of harassment, but that person did not ignorant of his or her legal rights, but having been properly informed of them has changed his or her ways, that could reasonably count against the exercise of the discretion to make an order.
In that sense, evidence that despite having asserted that there would not be future infringing behaviour the person had reverted to the former behaviour would clearly be material to the outcome of the appeal as it would mean that the Court made the decision not to grant a restraining order on a false premise.
That would only be discernible if evidence that the respondent had conducted in the pattern of behaviour after the court hearing [was] introduced on appeal.
(Emphasis in original).
[24] Mr Ross submits that the evidence is fresh and cogent, credible, and could not have been placed before the District Court. He highlights that Mr Lawton was not represented by counsel in the District Court. Mr Ross also compares applications for restraining orders pursuant to the Act to applications for protection orders under the Family Violence Act 2018. He submits therefore that although it is technically civil litigation it has a unique context, involving the assessment of an evolving risk, and the assessment of potential future conduct. He submits that in this context it would be artificial to ignore matters that have occurred after the District Court hearing.
Ms Sewell
[25] Ms Blomfield, counsel for Ms Sewell, submits that it is important to contextualise the evidence sought to be admitted within the inquiry this Court will be required to undertake in the substantive appeal. She says that the evidence sought to be admitted is only relevant to the final step in the inquiry, namely, whether the court considers it necessary to make a restraining order. She says that it does not assist Mr Lawton to establish that two specified acts have occurred within a 12 month period or that the District Court was wrong as to whether its jurisdiction to make a restraining order was engaged. She says therefore that the admission of the evidence will not assist Mr Lawton, nor will it assist the Court to determine the appeal.
[26] With reference to the factors identified by Wylie J in B v A, Ms Blomfield submits:
(a)it is not in the interest of justice to receive the further evidence;
(b)the evidence is disputed and is likely to require cross-examination, in that while it is fresh evidence, its credibility must be tested;
(c)the evidence is unlikely to alter the outcome of appeal, as the District Court did not conclude that it has jurisdiction to make the order sought, and therefore even if leave is granted, Mr Lawton’s appeal must fail; and
(d)in the circumstances, the Court should not grant leave for evidence to be adduced which ultimately cannot influence the outcome of the appeal.
[27] Ms Blomfield also submits that Mr Lawton has misunderstood the nature of the steps that must be established for a restraining order to be made. She says that the steps in the test are cumulative, meaning that they must all be established before the court can exercise its discretion to make a restraining order. Referring to Mr Lawton’s amended notice of appeal, Ms Blomfield submits that Mr Lawton is not challenging the District Court’s findings that the requirements contained in s 16(1)(b) of the Act
were not satisfied. On that basis, Ms Blomfield submits that the admission of the evidence could not affect the outcome of the appeal, and that the application should therefore be dismissed.
Analysis
[28] I first address the question of whether Ms Sewell provided an undertaking before the District Court to change her behaviour following gaining a better understanding of the parties’ relevant rights, as this underpins Mr Lawton’s application to adduce further evidence. As noted above, Ms Sewell has said in her affidavit that she made no such undertaking. It is necessary then to consider carefully what is said about this in the District Court judgment.
[29]As described above, the District Court Judge stated:14
I observe that while Ms Sewell appears to now better understand her obligations in relation to the right of way, Mr Lawton appears less clear. References to ‘my right of way’ and the ‘rights of the holder of the dominant tenement being greater than those of the servient tenement’ betray a poor understanding of how the rights and obligations associated with rights of way operate, as does the issuing of a trespass notice to Ms Sewell in respect of her land which is subject to the right of way. Use of the only terminology such as ‘dominant’ and ‘servient’ has likely contributed to this. In my experience, people sometimes interpret these terms to mean more than they do.
[30] The District Court Judge also referred to a draft or proposed undertaking between Ms Sewell and Mr Lawton in relation to the use of the right of way.15 Before the District Court, that undertaking had not been entered into, as “the sole remaining unresolved issue between them was a definition of the term ‘parking”.16 The Judge referred also to Ms Sewell saying that she was “prepared to give an undertaking”, in return for Mr Lawton acting in a manner consistent with his right to use the right of way that did not include parking or the use of it as a workspace.17 The Judge stated:18
Subsequently, on 8 March 2021, Mr McAleer (Mr Lawton’s McKenzie friend) proposed a draft undertaking for Mr Sewell’s consideration. Negotiations on the draft followed and the sole remaining issue is Mr Lawton’s insistence that there be no time limit on the definition of ‘parking’.
14 Above n 1, at [123].
15 At [36].
16 At [36].
17 At [85].
18 At [86].
[31] Again, there is no indication that before the District Court that the proposed undertaking had been agreed to. Specifically, the Judge noted at the conclusion of the judgment that:19
The parties are encouraged to clarify their understandings of what their rights and obligations are in relation to the right of way, and if necessary, to renew their efforts at reaching an agreement about the use of the right of way. The disputes over the right of way ought not [to] be beyond resolve given both parties share that objective.
[32] It is clear to me that Ms Sewell made no undertaking of the kind alleged by Mr Lawton before the District Court, or in fact, any undertaking at all. Rather, at the time of the District Court hearing, the matter of any proposed or draft undertaking was unresolved. This conclusion is reinforced by my reading of the notes of evidence before the District Court.
[33] Nor do I consider that Ms Sewell made any representations to the District Court that her behaviour would change. Rather, in my view, at the time of the District Court hearing, her behaviour had changed, with the parties accepting that there had been a period of nine months without issue. Again, the notes of evidence in the District Court do not show that Ms Sewell represented to the District Court that her behaviour would change in any particular manner.
[34] Further, I do not consider that the Judge’s comments as to Ms Sewell better understanding the nature of the rights concerned is a matter that supports Mr Lawton’s application to adduce the further evidence. This is because there is no indication in the District Court judgment that Ms Sewell undertook to change her behaviour having obtained a greater understanding of the parties’ relative rights in relation to the right of way.
[35] In response to my questions at the hearing, Mr Ross responsibly conceded that he was not able to maintain the position that such representations had been made or an undertaking given. Nonetheless, Mr Ross continued to argue that even without such an undertaking, Ms Sewell’s subsequent behaviour in 2022 is relevant to the Judge’s exercise of his discretion in terms of the fifth element set out in s 16(1)(c) of the Act,
19 At [144].
relating to the necessity that a restraining order be made to protect the applicant from further harassment. Mr Ross argues that the Judge was influenced by the parties’ misunderstanding of the nature of the rights relating to the right of way. He says that the proposed evidence will assist this Court on the appeal because the Court will then be able to re-evaluate the necessity for a restraining order in light of Ms Sewell’s subsequent behaviour. He says that the appeal is a rehearing and Court must therefore address all matters.
[36] In my view, the notice of appeal and the application to adduce further evidence are based squarely on Ms Sewell having made representations or given an undertaking to the District Court. I sought to clarify the issues on appeal with Mr Ross. This was because Ms Blomfield had made the point in her written submissions that there is no appeal against the Judge’s findings in relation to s 16(1)(b)—rather, the notice of appeal focuses on whether there were two specified acts, and whether the Judge correctly exercised his discretion in relation to s 16(1)(c). She argues that the consequence of this is that the proposed evidence will not be of assistance as the Judge’s findings on the s 16(1)(b) matters are not under challenge and the appeal is therefore unable to succeed.
[37] Mr Ross confirmed that the first and second points on appeal relate to whether there are two specified acts. He said that there is a legal question as to whether the Judge erred in requiring that Mr Lawton had to demonstrate a need to use the right of way at the particular time it was subject to obstruction. I accept that this is a proper question to advance on appeal. Depending on the answer to that question, it may be that a second specified act exists, alongside the specified act found by the Judge in relation to the egg throwing incident. However, that question is not one that requires the additional evidence sought to be adduced. Further, I agree with Ms Blomfield that as the additional evidence relates to events from October 2022, even if one of those events did constitute a specified act, alongside the specified act found by the Judge, this could not meet the requirement in s 3(1) of the Act that the two specified events occur within a period of 12 months. And, if Mr Lawton is alleging that the events in 2022 establish two specified acts, that would be an entirely new case that is unrelated to the matter under appeal.
[38] The third point on appeal simply records the findings of the Judge that there was not a pattern of behaviour that would cause distress to a reasonable person in the position of Mr Lawton, and that the Judge was not minded to exercise his discretion to make an order. These appear to relate to matters in s 16(1)(b). Again, as submitted by Ms Blomfield, there does not seem to be a question to be determined in this point of appeal.
[39] This leaves the fourth and fifth points of appeal. The fourth point is focused on Ms Sewell behaving contrary to undertakings she is said to have given to the District Court. As discussed above, no such undertakings were given. The fifth point of appeal is a statement of assertion that Ms Sewell started obstructing the right of way again, following the conclusion of the applications brought by Mr Lawton and Mr Simpson. Although not expressly stated, it appears that these points are intended to relate to establishing that order is necessary to protect the applicant from harassment, under s 16(1)(c).
[40] I note that the District Court Judge did not base the decision to decline Mr Lawton’s application on an undertaking given by Ms Sewell—because no such undertaking was made. Rather, Mr Lawton’s application failed at the first threshold test, which requires that there have been two specified acts on at least two separate occasions within a period of 12 months. The Judge then went on to say that even if he was wrong in that conclusion, he was not satisfied that the requirements of s 16(1)(b) and (c) were met.
[41] It follows then that in order to be successful on appeal, Mr Lawton will be required to establish not only that the first threshold test of two specified acts was met but that the Judge was wrong to conclude that the requirements of s 16(1)(b) and (c) were not met.
[42] It is in this context that the points of appeal raised by Mr Lawton are important. It does not seem to me that Mr Lawton has properly identified any points of appeal in relation to s 16(1)(b). The content of the third point of appeal in the amended notice of appeal is nothing more than a summary of certain of the District Court’s findings. Even at the hearing, Mr Ross did not identify for me anything under appeal in relation
to the s 16(1)(b) matters beyond the suggestion that this is a general appeal by way of rehearing. In my view this is insufficient. Of further concern to me is that even in relation to the necessity limb (s 16(1)(c)), the fourth and fifth points of appeal rest on the allegation of further behaviour by Ms Sewell in breach of her purported undertaking, which it is now accepted by Mr Ross does not exist. Nonetheless, I note that Ms Blomfield accepted that the proposed evidence could be relevant to the necessity requirement.
[43] It is imperative that an appellant properly particularises their grounds of appeal through their notice of appeal. As stated by r 20.9(1)(c) of the High Court Rules, a notice of appeal must specify “the grounds of the appeal in sufficient detail to fully inform the court, the other parties to the appeal, and the decision-maker of the issues in the appeal”. The difficulties discussed above raise a concern that Mr Lawton’s notice of appeal is insufficiently particularised and/or based on a misunderstanding of the Judge’s findings. This must be taken into account in the assessment of his application to adduce further evidence, owing to the self-evident requirement that further evidence must be relevant to the issues on appeal.
[44]Against this context, I now assess the application to admit further evidence.
[45] I am not persuaded by Mr Ross’ argument that, on appeal, this Court would be assisted by the proposed evidence. Fundamentally, I do not consider the evidence relevant to the matters on appeal, as identified in the amended notice of appeal and in circumstances where it is now accepted that Ms Sewell did not give any undertaking or make representations at the hearing before the District Court. I record that in reaching this conclusion, it is for the purpose only of the current application to adduce further evidence and it is entirely a matter for the Judge hearing the appeal to make their own assessment of what is properly identified as matters under appeal.
[46] That conclusion is sufficient to dispose of the application. In case I am wrong, however, I go on to consider whether the application should be granted on the basis that the proposed evidence might be relevant to the assessment that the order is necessary under s 16(1)(c) (or even more generally, as submitted by Mr Ross).
[47] I do not consider there are any special reasons justifying the inclusion of the further evidence or that it would be in the interests of justice to do so. Although the evidence is fresh, it is disputed. It is likely to result in substantial relitigation and require cross-examination at the hearing of the appeal. The fact that the evidence is disputed is a matter that goes to its credibility and cogency. I do not accept Mr Ross’ argument that the appeal should be dealt with based on “the assessment of an evolving risk”. While Mr Lawton’s appeal is a general appeal, it is a cardinal principle of the court’s appellant function that appeals are determined on the material that was before the first instance court, unless there are special reasons requiring the introduction of new evidence.
Result
[48] For the reasons above, I dismiss Mr Lawton’s application to adduce further evidence on the appeal.
[49] Costs for this matter are reserved until the determination of the substantive appeal.
McQueen J
Solicitors:
Cathedral Lane Law, Napier for Appellant Sainsbury Logan & Williams
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