Logan v Paul - [2022] NZHC 1729

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-106

[2022] NZHC 1729

UNDER Section 177 of the Family Violence Act 2018

IN THE MATTER

Of an Appeal against a Judgment of the Family Court at Auckland

BETWEEN

LOGAN

Applicant

AND

PAUL

Respondent

Hearing: 19 July 2022

Counsel:

Applicant in person via VMR

J Perry for Respondent via VMR

Judgment:

19 July 2022

Reissued:

5 August 2022

(ORAL) JUDGMENT OF MUIR J

Solicitors: Keegan Alexander, Auckland

LOGAN v PAUL [2022] NZHC 1729 [19 July 2022]

Introduction

[1] The respondent to the substantive appeal, who I will identify as Mr Paul to protect his anonymity, applies under r 20.16 of the High Court Rules 2016 for leave to adduce further evidence in respect of an appeal scheduled to be heard in this Court in September 2022.

Background

[2] Mr Paul and the appellant, who I will call Ms Logan, again adopting a pseudonym, were in a brief domestic relationship. Following its conclusion, Mr Paul obtained a protection order against the appellant which is said to have been breached on various occasions. In 2021, Ms Logan herself filed an application seeking a protection order against Mr Paul and that the protection order against her be discharged. These applications came before the Family Court in 2021 with a resumed hearing and oral decision by Judge von Keisenberg on 13 January 2022.1 Her Honour dismissed the application to discharge the restraining order against Ms Logan and declined Ms Logan’s own application for such an order.2 Subsequently, her Honour awarded costs in favour of Mr Paul. Ms Logan appeals those decisions.

[3] After the decision, a message was received by a person who I will identify as KC on her Instagram account ostensibly from Ms Logan. KC is the sister of Mr Paul’s current partner.

[4] On 7 July 2022, Mr Paul made application seeking leave to adduce evidence from KC who says in her affidavit that after some earlier communications with Ms Logan, she received a message on 2 May 2022 warning her about Mr Paul and describing him as violent, “incredibly dangerous”, “addicted to meth and other drugs” and subject to a protection order in favour of Ms Logan – something that was demonstrably untrue since the Family Court had declined a protection order against him. The sender of the message urged KC “not to tell your sister this information has come from me”, the implication being that it was intended to be conveyed but anonymously.

1 [Paul] v [Logan] [2022] NZFC 290.
2 At [82].

[5] Mr Paul says that this evidence should be admitted on appeal and that it illustrates not only a risk of family violence as defined in the Family Violence Act 2018 (the Act) if the…

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 Logan v Paul

Details

AGLC: Logan v Paul [2022] NZHC 1729
Case: [2022] NZHC 1729
Decision Date: 19 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the court heard an application by Mr. Paul to adduce further evidence in an appeal against a Family Court judgment. The appeal concerned a protection order obtained by Mr. Paul against Ms. Logan, which she sought to discharge. The Family Court dismissed Ms. Logan's application and awarded costs to Mr. Paul. After the Family Court decision, a message was received by KC, sister of Mr. Paul's current partner, ostensibly from Ms. Logan. The message described Mr. Paul as violent and dangerous, which Mr. Paul claimed was false. Mr. Paul sought leave to present this evidence on appeal.

The court considered whether to admit the new evidence under rule 20.16 of the High Court Rules 2016. The court noted that ordinarily an appeal proceeds on the evidence available to the decision-maker. However, further evidence may be admitted in exceptional circumstances if it is fresh, cogent and credible. The court identified several principles from previous cases, including that the interests of justice may require the admission of further evidence and that the evidence must be relevant to the appeal. The court concluded that the new evidence was fresh, credible and relevant as it demonstrated a risk of future family violence by Ms. Logan in the form of psychological abuse. The court granted Mr. Paul's application to adduce the further evidence and awarded him costs.

In summary, the court granted leave for Mr. Paul to present additional evidence in his appeal against the Family Court's decision to dismiss Ms. Logan's application to discharge a protection order. The evidence related to a message allegedly sent by Ms. Logan which the court found to be relevant to the risk of future family violence. The court awarded Mr. Paul costs for the application.

Orders