Lincoln v District Court at Christchurch
[2021] NZHC 417
•8 March 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-44
[2021] NZHC 417
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
an application for review of the District Court Judge’s trial directions
BETWEEN
RICHARD LINCOLN
Applicant
AND
DISTRICT COURT at Christchurch First Respondent
AND
GEOFFREY BARCLAY CAVELL
Second Respondent
Hearing: 25 November 2020 Appearances:
R Lincoln (Applicant) in person
C M Ruane for Second Respondent
Attendance of G Taylor for First Respondent, abiding, excusedJudgment:
8 March 2021
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 8 March 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
LINCOLN v DISTRICT COURT at Christchurch [2021] NZHC 417 [8 March 2021]
[1] In this proceeding, Richard Lincoln applies for judicial review of a District Court direction in relation to a proceeding he commenced in that Court against the second respondent, Geoffrey Cavell, under the Harassment Act 1997.
[2] On 10 October 2019, Judge P R Kellar, in setting the District Court proceeding down for hearing, directed that Mr Lincoln was not to cross-examine Mr Cavell.1
[3]Mr Lincoln made submissions, in response, against the direction made.
[4] Judge Kellar issued a further Minute dated 11 December 2019, which recorded:2
Mr Lincoln is applying for a restraining order under the Harassment Act 1997. Section 95(1) of the Evidence Act 2006 applies because Mr Lincoln:
(a)he is a party to a civil proceeding concerning harassment; and
(b)he wishes to cross-examine a party who has made allegations of “harassment” as defined in section 3 of the Harassment Act 1997, in that Mr Cavell’s affidavit in reply contains allegations of harassment.
Therefore, Mr Lincoln may not personally cross-examine Mr Cavell.
(“the 11 December 2019 direction”).
[5] After receipt of further submissions from Mr Lincoln, Judge Kellar issued further directions (further directions).3 His Honour recorded that he had made his decision. His Honour noted that, as Mr Lincoln had signalled that he would not be instructing counsel to cross-examine Mr Cavell, he was directing that counsel be appointed to cross-examine Mr Cavell in respect of any allegations Mr Lincoln makes that Mr Cavell harassed him.
[6] Mr Lincoln seeks to have the 11 December 2019 direction quashed on this review.
1 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 10 October 2019.
2 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 11 December 2019 (Minute).
3 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 15 January 2020 (Minute).
Restrictions on cross-examination by parties in person
[7] Section 95 Evidence Act 2006 contains and provides for restrictions on cross- examination by parties in person in identified proceedings, including those concerning harassment. In particular s 95(1) of the Act provides:
(1)A defendant in a sexual case, or a defendant in or a party to criminal or civil proceedings concerning family violence or harassment, is not entitled to personally cross-examine—
(a)a complainant, or a party who has made allegations of family violence or harassment:
(b)a child (other than a complainant) who is a witness, unless the Judge gives permission.
[8] By s 4(1) of the Act the term “harassment” has (unless the context otherwise requires) the same meaning as s 3 Harassment Act.
The meaning of “harassment”
[9]Section 3(1) Harassment Act provides:
(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.
[10] Section 4 Harassment Act sets out acts which constitute “specified acts” under the Act. This includes (under s 4(1)(d)) making contact with the person, whether by telephone, correspondence, electronic communication or in any other way. It also includes (under s 4(1)(f)) acting in any other way that causes the person to fear for their safety and that would cause a reasonable person in that person’s particular circumstances to fear for their safety.
[11] Under s 3(2)(a) Harassment Act, the pattern of behaviour may involve different types of specified acts.
[12] Nothing in the context of s 95 of the Evidence Act requires the term “harassment” as used therein to be given a different meaning than that provided in s 3 Harassment Act.
The harassment proceeding – Mr Lincoln’s case
[13] Mr Lincoln’s harassment proceeding relates back at least in part to an incident on 23 November 2018. Mr Lincoln’s car had been damaged, apparently by scratching of some kind, which occurred when Mr Cavell was leaving Mr Lincoln’s address that day.
[14] Mr Lincoln made a claim against Mr Cavell in the Disputes Tribunal for negligent damage. He was awarded the repair costs. Mr Cavell later paid the awarded sum, but only after Mr Lincoln had issued bankruptcy proceedings over the debt.
[15] Subsequently, on 19 July 2019, Mr Lincoln commenced the harassment proceeding against Mr Cavell in the District Court. He referred to a long-standing personal relationship he had with Mr Cavell’s ex-wife. He has made sworn allegations of harassment on the part of Mr Cavell.
[16] As such, in the harassment proceeding, it is Mr Lincoln’s case that Mr Cavell harassed Mr Lincoln.
The harassment proceeding – Mr Cavell’s defence
[17] In response to Mr Lincoln’s harassment proceeding, Mr Cavell filed a notice of defence supported by an affidavit. In his affidavit, Mr Cavell made allegations as to:
(a)Mr Lincoln’s involvement in relationship property issues between Mr Cavell and his ex-wife and in matters involving the Cavell Trust;
(b)actions taken by Mr Lincoln to send Mr Cavell a copy of a letter he had received from the Police advising that the Police were considering laying charges against Mr Cavell, a step in Mr Cavell’s belief by which
Mr Lincoln was using his complaint to the Police to try to extract money from Mr Cavell for damage over and above the damage which Mr Cavell accepted he had caused;
(c)Mr Lincoln’s claims to be acting for Mr Cavell’s ex-wife notwithstanding that Mr Lincoln has not been admitted to practice;
(d)Mr Lincoln’s making of various wild and unfounded accusations around the affairs of the Cavell Trust and the value of the Trust; and
(e)Mr Lincoln’s involvement and interference leading to a delay in the sale of the former family home of Mr Cavell and his ex-wife.
The District Court’s application of s 95(1)(a) Evidence Act
[18] In making the 11 December 2019 direction, Judge Kellar expressly found s 95(1) Evidence Act to apply. Judge Kellar specifically referred to the three relevant limbs which his Honour found to give rise the s 95 restriction on cross-examination in the District Court proceeding.
[19] First his Honour identified that there is a “civil proceeding concerning harassment”. It is common ground here that that is so.
[20] Secondly, his Honour observed that Mr Lincoln is “a party” to that proceeding (in terms of s 95(1)). Mr Lincoln submits he does not fall within the intended ambit of “party” under s 95(1).
[21] Thirdly, Judge Kellar found that Mr Cavell was in terms of s 95(1)(a) a “party” who had made allegations of harassment. Mr Lincoln similarly submits that Mr Cavell does not fall within the intended ambit of “party” under s 95(1)(a).
[22] Fourthly, his Honour found that Mr Lincoln (representing himself) intended to (personally) cross-examine Mr Cavell. That was clearly so. Mr Lincoln had served a notice requiring Mr Cavell to be available for cross-examination.
Mr Lincoln’s position as to review
[23] By his statement of claim Mr Lincoln seeks the setting aside of the 11 December 2019 direction.
[24]His statement of claim identifies three grounds of alleged invalidity:
(a)Natural justice:
the 11 December 2019 direction was made in Mr Lincoln’s absence, without his knowledge and without any opportunity to make submissions and to argue the point.
(b)The scope of a statutory restriction on cross-examination:
as a matter of law the District Court did not have power to make the 11 December 2019 direction because s 95(1) Evidence Act is not intended to prevent self-represented victims of harassment from cross-examining a respondent against whom they have applied for a restraining order.
(c)Conduct amounting to harassment:
the 11 December 2019 direction is premised on an error of fact in that Mr Cavell has not made an allegation or allegations of harassment against Mr Lincoln.
[25] Additionally, by his statement of claim here Mr Lincoln raises two issues in relation to the further directions, being:
(a)To the extent the further directions permit cross-examination of Mr Cavell “limited to” any allegations Mr Lincoln makes that Mr Cavell harassed him, the limit would prevent counsel appointed from cross-examining Mr Cavell on allegations such as those which suggest Mr Cavell was provoked by Mr Lincoln; and
(b)the further directions in relation to the appointment of counsel do not clearly state where appointed counsel’s duties will lie.
[26] Mr Lincoln’s statement of claim did not seek any specific remedy in relation to the further directions but did include a catch-all, namely “such other order as the Court thinks just and fit”.
[27] In his submissions Mr Lincoln has clarified that his primary focus is to have the 11 December 2019 direction set aside, upon the basis that the further directions (which flow from the earlier direction) will then also fall away. In the event this Court does not set aside the 11 December 2019 direction, Mr Lincoln submits this Court should clarify the nature and ambit of appointed counsel’s duties in cross-examination.
Mr Cavell’s position as to review
[28] For Mr Cavell, Mr Ruane submits Mr Cavell’s allegations as to Mr Lincoln’s behaviour, if made out, constitute “harassment” in terms of s 3 Harassment Act.
[29] Mr Ruane submits that Mr Cavell’s allegations (as summarised at [17] above) constitute allegations of harassment.
[30] On this basis, Mr Ruane submits that both s 95(1) and s 95(2) of the Evidence Act provide jurisdiction for the 11 December 2019 direction. Mr Ruane submits the considerations relevant in this case under both s 95(3) and s 95(4) supported the making of the order, notwithstanding that Judge Kellar may not have expanded in detail on the reasons for his Honour’s decision.
[31] In the alternative, Mr Ruane submits this Court (if finding that the decision was flawed) may direct reconsideration under s 17 Judicial Review Procedure Act 2016.
Natural justice in relation to the 11 December direction
[32] When Judge Kellar, on setting the harassment proceeding down for hearing, made his first direction on 10 October 2019, it was in the absence of Mr Lincoln. It appears this occasion gave rise to Mr Lincoln’s assertion in his statement of claim that the 11 December 2019 direction had been made without any opportunity provided for him to make submissions and to argue the point.
[33] For Mr Cavell, Mr Ruane has observed the 10 October 2019 hearing was an on-notice hearing at which Mr Lincoln did not appear.
[34] Be that as it may, it is not the 10 October 2019 direction which is the subject of Mr Lincoln’s application for review. It is the 11 December 2019 direction.
[35] Those directions were made after Mr Lincoln had taken the opportunity on two occasions (11 October 2019 and 5 November 2019) to make submissions as to why the District Court should not issue a direction barring cross-examination.
[36]Mr Lincoln has not established a breach of natural justice principles.
The scope of statutory restriction on cross-examination
The relevant party alleging harassment
[37] This case involves what appears to be the novel situation — at least in terms of authority — in which the party who claims to make allegations of harassment against the other is the defendant rather than the plaintiff in a District Court proceeding commenced under the Harassment Act.
[38] I will now expand upon the statutory regime under s 95 Evidence Act as it applies to this particular situation.
[39] The term “party” as used in s 95(1) Evidence Act, consistently with the definition in s 4 of the Act means any party to the proceeding. As applied to a civil proceeding concerning harassment, the term includes a defendant (who has made allegations of harassment against the plaintiff).
[40] The extension under s 95 Evidence Act to make restrictions on cross-examination applicable in civil proceedings (involving domestic violence or harassment) as well as criminal proceedings served to expand the restrictions which had previously existed under s 23F Evidence Act 1908.4 In expanding the scope of
4 See the commentary in Matthew Downs (ed) Cross on Evidence (looseleaf ed, LexisNexis, NZ) at [EVA 95.1].
the restrictions under s 95 Evidence Act Parliament by the inclusion of “parties” must be taken to have included parties whether or not they were the “originating” party or the “responding” party. If the legislative intent had been to limit categories to the responding party (in s 95(1)) and the originating party (in s 95(1)(a)) that would have been simply achieved by referring to the descriptions appropriate to those respective roles (defendant or respondent in s 95(1) and complainant, applicant or plaintiff in s 95(1)(a)). The inclusion of “party”, having its usual meaning as reflected in s 4 Evidence Act, involved a further extension to the protection of those making harassment allegations, which is consistent with the protective nature of the restrictions.
[41] The interpretation of “party” as covering any opposing party is also consistent with the philosophy underlying the Law Commission’s conclusion that the former s 23F restrictions should be expanded. The relevant part of the Commission’s report stated:5
The Law Commission considered that in other cases also [other than in relation to unrepresented defendants in sexual cases] it would help reduce stress for the witness, and therefore improve the quality of the evidence, if the defendant or opposing party did not personally cross-examine the witness.
(emphasis added)
Cross-examination of witnesses under s 95(5) Evidence Act
[42] Once a defendant or party is precluded from personally cross-examining a witness (whether automatically under s 95(1) or pursuant to a Judge’s order under s 95(2)) that defendant or party has the rights in relation to cross-examination that are set out in s 95(5) Evidence Act. The alternative means by which cross-examination may take place are set out in subss (a) and (b), which refer only to the “defendant” and not also to the “party” identified in the opening words to s 95(5). It is apparent the reference only to the defendant in subsections (a) and (b) is a legislative oversight — the obvious legislative intent of subsections (a) and (b) is to provide the alternative mechanisms by which the “defendant or party” referred to at the start of s 95(5) may
5 Law Commission Evidence: Reform of the Law (NZLC R55 vol 1, 1999) at [414].
have cross-examination conducted.6 The reference to “defendant” only is an obvious drafting error which in the context of s 95(5) is properly addressed by reading the reference to “defendant” in subsections (a) and (b) as “defendant or party”.7
Conduct amounting to harassment
The particularisation of “specified acts”
[43] I remind myself that when a court is considering whether a situation exists as defined in s 95(1)(a) Evidence Act (above at [7]) one element is whether a party to the proceeding has made allegations of harassment arising from the commission of “specified acts” as defined in s 4 Harassment Act. The protection under s 95(1)(a) applies to a complainant or party who has made allegations of family violence or harassment.
[44] In his affidavit filed in the District Court Mr Cavell has focused on various aspects of Mr Lincoln’s behaviour towards him, with specific examples. He deposed the behaviour caused him “great distress”.
[45] In his written synopsis, Mr Lincoln submitted that (contrary to Judge Kellar’s conclusion that Mr Cavell’s affidavit contains allegations of harassment):
As a matter of fact any allegations made by the respondent in his evidence in the present case are insufficiently particularised to satisfy the definition of harassment in s 3 of the Harassment Act. At best he has only alleged specified acts …
[46] As matters stood before Judge Kellar, the particularisation of allegations was not in issue. The allegations were made in Mr Cavell’s affidavit evidence rather than in a pleading.
6 See commentaries in Simon France (ed) Adams on Criminal Law – Evidence (looseleaf ed, Thomson Reuters) at [EA 95.03]; and Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence Act & Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV 95.03].
7 See the discussion in Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis, Wellington, 2015) at 312-314, citing Inco Europe Ltd v First Choice Distribution [2000] 2 All ER 109 (HL) at 115.
[47] What first matters in terms of s 95(1)(a) is whether or not a party has made allegations of conduct which (if established) constitute “harassment”. Mr Lincoln himself through his written submission accepts that there have been acts alleged.
[48] The requirement under s 95 Evidence Act that such allegations have been made does not import a requirement that the allegations be substantiated or established to any particular standard of proof or even prima facie level.
[49] Rather, simply what triggers s 95(1)(a) is that the party proposed to be cross- examined has made such allegations of “harassment”.
[50] The definition of “harassment” requires there to be a “specified act” as set out in s 4 Harassment Act (as summarised at [9] to [12] above). It must be borne in mind that the first object of the Harassment Act, in terms of s 6(1)(a) is to recognise that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. Mr Cavell’s affidavit refers to a context which is broader than the alleged acts themselves.
[51] Whether or not the allegations made by Mr Cavell as to specific acts are subsequently found to have constituted a pattern of behaviour amounting to harassment or not, his affidavit contains allegations of conduct at least some of which a court might reasonably be found, if established, to constitute specified acts.
The identification of acts occurring on “at least two separate occasions within a period of 12 months”
[52] For conduct to constitute “harassment” there is a further timing requirement beyond the commission of specified acts.
[53] By reason of the definitions in ss 3–4 Harassment Act a party cannot be said to have made an allegation of “harassment” unless their pleading has identified at least two specified acts (on separate occasions) within a period of 12 months. Failing at least some specificity in that regard, the party in question has made an allegation as to the other party’s conduct in a way that does not qualify as alleged harassment.
[54] Parliament cannot have intended to remove a litigant’s general entitlement to cross-examine the other party upon the assertions of conduct which do not include each of the ingredients required to render the conduct “harassment”. That includes the ingredient that requires a multiplicity of acts within the required 12 month period.
[55] Mr Lincoln observed the Judge’s Minute does not assert that any of the specified acts (in terms of ss 3–4 Harassment Act) occurred on at least two separate occasions within a period of 12 months.
[56] For his part, Mr Ruane in his submissions identified six passages in Mr Cavell’s affidavit which he suggested are sufficient to raise allegations of harassment by Mr Lincoln. Those passages (as summarised by Mr Ruane) related to:
(a)Mr Lincoln’s involvement in the relationship property issues of Mr Cavell and his ex-wife and in the Cavell Trust (para 6);
(b)Mr Lincoln’s actions in sending Mr Cavell a copy of a letter he had received from the Police advising that the Police were considering laying charges against Mr Cavell (pursuant to a complaint by Mr Lincoln) (para 16);
(c)Mr Lincoln’s claim to be acting as the lawyer for Mr Cavell’s ex-wife (when not admitted to practise) (para 18);
(d)Mr Lincoln’s “various wild and unfounded accusations” around the affairs of the family trust and the value of the trust (para 20);
(e)Mr Lincoln’s involvement and interference causing delays in the sale of the Cavell’s family home (para 27); and
(f)Mr Lincoln’s behaviour towards Mr Cavell and interference with his family (para 34).
[57] In the course of his oral submissions, Mr Ruane accepted that he could not point to any specific material in Mr Cavell’s affidavit evidence which would enable
this Court to identify any two or more incidents of conduct which had occurred within a specific 12 month period. Dates are not provided by Mr Cavell in his affidavit.
[58] Mr Lincoln submitted, correctly, that the allegations made by Mr Cavell (for the most part very general) leave this Court unable to determine whether there is in fact an allegation of at least two separate occasions in which specified acts have occurred within a period of 12 months. Without such an allegation, the legal concept of “harassment” does not follow.
Outcome
[59] For this reason, Mr Lincoln has established that the Judge erred, in the 11 December 2019 direction, when his Honour determined on the basis of allegations made by Mr Cavell, that Mr Cavell had made qualifying allegations of “harassment” such as to trigger the restriction under s 95(1) Evidence Act.
Costs
[60] I will be reserving the costs and disbursements of the proceeding. Having regard to the fact that Mr Lincoln has represented himself my assumption is that the parties will accept that there should be no order as to costs, but that Mr Lincoln is entitled to an order for the payment of his reasonable disbursements. In the event the parties are unable to agree on costs, they will be determined on the papers with Mr Lincoln to file his memorandum first, to be followed within five working days by Mr Ruane (four page limit in each case).
Orders
[61]I order:
(a)the direction of Judge Kellar dated 11 December 2019 is set aside;
(b)the proceeding is remitted to the District Court; and
(c)the costs and disbursements of this application are reserved.
Osborne J
Solicitors:
Te Pōhue Chambers, Christchurch Crown Law, Wellington
Copy to:
Mr Lincoln
0
0
0