Lawton v Sewell - [2023] NZHC 2929

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…

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 Lawton v Sewell

Details

AGLC: Lawton v Sewell [2023] NZHC 2929
Case: [2023] NZHC 2929
Decision Date: 19 October 2023

CaseChat Overview and Summary

The case of Lawton v Sewell was heard in the High Court of New Zealand Napier Registry. Mr Lawton, the appellant, sought to appeal the decision of the District Court declining his application for a restraining order against Ms Sewell, the respondent. He applied to adduce further evidence on appeal, relating to events postdating the District Court decision. Ms Sewell opposed the application on the grounds that the evidence was not relevant to the issues on appeal and would result in substantial relitigation. The court was required to determine whether the application should be granted, based on the grounds that the evidence was fresh, credible, and could not have been reasonably discovered earlier, and that it was in the interests of justice to receive the evidence. After considering the arguments of both parties and the relevant legal principles, the court found that Mr Lawton's application to adduce further evidence should be dismissed. The court held that the evidence was not relevant to the issues on appeal and would likely result in substantial relitigation. The court also found that the application was based on a misunderstanding of the District Court's findings and that the notice of appeal was insufficiently particularised. Costs for this matter were reserved until the determination of the substantive appeal.

Orders