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 order is discharged, but that such risk is indeed a reality.

The law

[6]                  The application is governed by r 20.16(2) which specifies a leave requirement. Rule 20.16(3) in turn provides:

20.16   Further evidence

…

(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.

…

[7]                  It is axiomatic that, ordinarily, an appeal proceeds on the evidence available to the decision-maker without the parties having an opportunity to, as Ms Perry puts it, “shore-up or bolster” their case. Nevertheless, a discretion exists to admit further evidence in circumstances typically defined by reference to the “fresh, cogent and credible” test.3

[8]                  In the recent decision of B v A,4 the relevant principles were identified as follows:

(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;

3      Cogency, in that context, including relevance and therefore admissibility.

4      B v A [2020] NZHC 580 at [25].

(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. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and

(h)the standard to be met is “rightly high”.

[9]I respectfully adopt this approach.

[10]              In terms of the relevancy of the proposed evidence, the starting point is s 110 of the Act which required that in this case the Family Court consider the likelihood of future “family violence”.5 Family violence is, in turn, defined by s 9(2) of the Act to include “psychological abuse” and s 9(3) identifies that this may be in the nature of abuse which “causes the person, or may cause the person, cumulative harm”.

[11]              Section 11 of the Act sets out a non-exhaustive list of examples of “psychological abuse”. However, the precise meaning of that term is largely left open by the Act. In the recent decision of GS v LM,6 Katz J endorsed the following observations of Judge A P Walsh in G v C:7

While it is impossible to define psychological abuse absolutely, I think it can be said that there are some characteristics of behaviour that are peculiar to psychological abuse such as:

·Behaviour which chips at a person’s confidence or is designed to “put a person down” or humiliate that person.

·Abusive power which by degrees makes another person apprehensive and unsettled.

·Exploiting an emotional or psychological vulnerability of another party.

5      Family Violence Act 2018, s 110(2)(h).

6      GS v LM [2021] NZHC 2522, [2021] NZFLR 673 at [28].

7      G v C (1997) 16 FRNZ 201 (FC) at 208.

·Indulging in behaviour designed to unsettle, antagonise, offend, annoy, provoke or worry another party.

·Implicit or explicit threats.

[12]              These examples of psychological abuse clearly focus on the effect that the conduct has on a victim. The purpose behind the conduct may also be relevant. In that context, it is unsurprising that the courts have identified psychological abuse as extending to communications with third parties containing defamatory material designed to undermine the applicant’s standing within family or community. Examples include H-YC v PJE8 and Clark v Coles.9

Mr Paul’s position

[13]              Ms Perry says that the relevant evidence post-dates the hearing and is therefore fresh, that it is credible in that it is sourced from a high profile third party and supported by screenshot and that it is relevant for the reasons previously stated. She relies on the inclusion of “psychological abuse” in the definition of “family violence” in s 9 of the Act and emphasises that in the case under appeal, Mr Paul relied on various communications by Ms Logan to third parties, including his parents, which were deeply distressing to them and therefore to him and submits that the communication to KC continues this history of psychological abuse. Finally, Ms Perry says that in assessing whether the Family Court Judge was correct in finding a risk of future family violence, it is highly relevant that Ms Logan’s campaign of what Mr Paul identifies as psychological abuse has continued beyond the judgment date.

Ms Logan’s position

[14]              Ms Logan denies that the message was sent by her. She says, maintaining the position promoted by her at the Family Court hearing, that her phone and other methods of electronic communication must have been “hacked” by the respondent who then proceeded to manufacture messages to fortify his allegation of family violence.

8      H-YC v PJE FC Auckland FAM-2008-004-1560, 5 July 2011.

9      Clark v Coles [2013] NZFC 7488.

[15]              I note that the District Court Judge found no evidence to support that proposition on the material available to her.

Discussion

[16]              Ms Perry notes that in an unsworn affidavit, Ms Logan has chosen to answer substantively the allegations advanced in KC’s affidavit. She suggests that in doing so Ms Logan has consented to admission of the affidavit. She does not go so far as to say that Ms Logan is now estopped from opposing admission, nor do I intend to resolve the application on that basis.

[17]              I am nevertheless persuaded that the affidavit should be admitted. It is undoubtedly fresh in that it relates to alleged psychological abuse subsequent to the hearing. It is relevant and cogent for the reasons Ms Perry describes. It exemplifies what the Family Court Judge portended – a risk of future family violence by unsolicited contact with the respondent and/or third parties connected to the respondent. It also satisfies the threshold level of credibility in that it is evidence from a third party not otherwise invested in the litigation and is supported by a screenshot.

[18]              As was the case before the Family Court, Ms Logan at this stage produces no evidence establishing her “hacking” claims.   In any event, admission pursuant to     r 20.16(2) does not preclude a future credibility challenge by her based on her own or any expert evidence.

Result

[19]              I am satisfied that leave should be granted in terms of r 20.16(2). I grant the application and admit KC’s affidavit accordingly. Since the application was opposed, I grant costs in favour of Mr Paul calculated on the basis of a one-hour hearing or 0.2 of a day.

[20]              I note that, given Ms Logan’s intention to now file sworn evidence in opposition to the affidavit including, seemingly, expert evidence supporting her “hacking” thesis, it may be wise to identify (for the purposes of the Judge hearing the substantive appeal) that it may run over the half-day allocated. However, as I indicated

in the course of the hearing, that is not an invitation to either party to extend their argument into the time available.

Muir J