Nienkemper v Ridling
[2025] NZHC 322
•27 February 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-003120
[2025] NZHC 322
UNDER section 124 District Courts Act 1947 and rule 20.4 High Court Rules 2016 BETWEEN
ANTHONY CLEMENTS KARLOFF NIENKEMPER
Appellant
AND
MARK RIDLING
Respondent
Hearing: 6 November 2024 Counsel:
K E Hogan for Appellant
D P Hoskin and P J Muir for Respondent
Judgment:
27 February 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 27 February 2025 at 2 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Zhang Law (Auckland) for Appellant
Steindle Williams Legal (Auckland) for Respondent
NIENKEMPER v RIDLING [2025] NZHC 322 [27 February 2025]
Introduction
[1] Mr Nienkemper and Mr Ridling share (with others) a right-of-way. The two men have clashed repeatedly over Mr Ridling’s use of the right-of-way and Mr Nienkemper’s responses to what he contends are breaches by Mr Ridling of the terms of the right-of-way easement.
[2] Mr Nienkemper applied to the District Court for a restraining order against Mr Ridling pursuant to the Harassment Act 1997 (the Act). His application was roundly dismissed by Judge M-E Sharp on 23 November 2023:1
[64] The antagonist and the harasser here (to use that term in a colloquial sense) is in fact Mr Nienkemper and not Mr Ridling. It is time that Mr Nienkemper accepted that he has misinterpreted and misapplied the legal position in respect to the easements and who has the right to use this driveway and service entrance. It is time that he stopped causing problems for his neighbours, for the management committee and particularly for Mr Ridling. It is more than time that he stops intentionally creating a nuisance and involving the police (and from time to time ambulances) in respect to incidents that he has provoked and created.
[65] I find Mr Ridling to have been reasonable and accommodating as indeed the Body Corporate management committee has. I also accept that Mr Ridling only wants a quiet life without interference with his easement rights. As long as Mr Nienkemper continues to engage in deliberate, consistent and unreasonable provocation of Mr Ridling, as he has, then the disputes will continue, but frankly I endorse the police’s lack of action in respect to the repeated complaints made by Mr Nienkemper, because he is the problem here and not Mr Ridling.
[3] Mr Nienkemper now appeals the Judge’s decision.2
Legal context
[4] Before I delve into the Judge’s findings, I will set out the legal context, because the actions of the parties must be assessed in that context.
1 Nienkemper v Ridling [2023] NZDC 26444 [District Court decision].
2 There is a general right of appeal pursuant to s 34 of the Harassment Act 1997.
[5] First, there are the rights and obligations of the parties created by the right-of-way easement.3 The terms of the easement4 give the parties the right, at all times, to go over and along the easement facility. There is:5
… the right to have the easement facility kept clear at all times of obstructions (whether caused by parked vehicles, deposit of materials, or unreasonable impediment) to the use and enjoyment of the driveway.
[6] Whether something obstructs the use and enjoyment of a driveway which is subject to an easement facility is a matter of fact and degree. A right-of-way easement might be just wide enough for a single vehicle, or it might be wide enough for several vehicles. In the former case, parking a vehicle on the right-of-way for even a brief period might be unduly obstructive; in the latter case, perhaps not. It must also be taken into account that a right-of-way applies to the entirety of the easement. So, parking permanently on even a wide right-of-way is probably impermissible.6
[7] Second, there is the restraining order regime created by the Act pursuant to which 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.7
[8]The power to make a restraining order is set out in s 16:
(1)Subject to section 17, the court may make a restraining order if it is satisfied that—
(a)the respondent has harassed, or is harassing, the applicant; and
(b)the following requirements are met:
(i)the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
3 Mr Nienkemper was granted leave by O’Gorman J (Nienkemper v Ridling [2024] NZHC 1714) to adduce evidence at the appeal in the form of an affidavit by Mr Gibbons, a lawyer specialising in property and resource management law. This was not opposed. As I told counsel, I will treat the affidavit as submissions by Mr Gibbons on the relevant law on the basis that those submissions are not contested.
4 It is a “statutory easement”. Its terms are prescribed in the Land Transfer Regulations 2002 and the Property Law Act 1952.
5 Land Transfer Regulations, sch 4, cl 6(3)(b).
6 Breslin v Lyons [2013] NZCA 161; and Fuge v Wimax New Zealand Ltd [2022] NZHC 1121.
7 Harassment Act, s 9.
(ii)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and
(iii)in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c)the making of an order is necessary to protect the applicant from further harassment.
(2)For the purposes of subsection (1)(a), a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally.
(3)To avoid any doubt, an order may be made under subsection (1) where the need for protection arises from the risk of the respondent doing, or encouraging another person to do, a specified act of a different type from the specified act found to have occurred for the purposes of paragraph (a) of that subsection.
[9] The meaning of “harassment” is set out in s 3:
(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.
(2)To avoid any doubt,—
(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.
(3)For the purposes of this Act, a person also harasses another person if—
(a)he or she engages in a pattern of behaviour that is directed against that other person; and
(b)that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.
(4)For the purposes of subsection (3), continuing act includes a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).
[10] The meaning of “specified act” is set out in s 4:
(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(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:
(ea)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:
(f)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.
(2)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—
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,—
whether or not acting in that way causes or is likely to cause person B to fear for person B’s safety.
Subsection (2) does not limit the generality of subsection (1)(f).
[11] A specified act cannot be relied on to establish harassment if it was done for a lawful purpose. The onus of proving such is on the respondent.8
[12] Mr Nienkemper’s allegations against Mr Ridling related to Mr Ridling’s actions in respect of the right-of-way. Mr Nienkemper had the onus of proving that the actions occurred, that they were specified acts, and that they formed part of a pattern of behaviour amounting to harassment. If Mr Ridling could prove that any act of his, despite being a specified act, was done for a lawful purpose then Mr Nienkemper could not rely on that act to advance his application.
[13] Even if Mr Nienkemper proved that he was harassed by Mr Ridling, to get a restraining order he would also have to satisfy the Court of the requirements set out in s 16 of the Act.
The Judge’s decision
[14] The only witnesses who gave oral evidence were Mr Nienkemper and Mr Ridling. The latter had also filed two affidavits.
[15] The Judge summarised the incidents involving Mr Ridling which Mr Nienkemper (who represented himself) relied on as specified acts forming a pattern of behaviour amounting to harassment:9
(a)18 October 2022 he stated that Mr Ridling had his vehicle legally wheel clamped and afterwards he cut off that wheel clamp. This was followed, he says in his affidavit of 19 April 2023 (which I will refer to as his first affidavit) by Mr Ridling then threatening Mr Nienkemper and Alex with a sledgehammer, which he stated he was going to use on them. At para [4] of that affidavit, Mr Nienkemper said that Mr Ridling also threatened to throw his sledgehammer through his window and this was recorded on CCTV. He said that he reported this to the police, but a particular sergeant of the local police took no action. That hapless sergeant has been the subject of a good amount of criticism by Mr Nienkemper throughout this proceeding because he has consistently taken no action against Mr Ridling despite Mr Nienkemper’s very many and varied complaints which have required constant police intervention.
8 Harassment Act, s 17.
9 District Court decision, above n 1, at [6].
(b)The next incident of which he complains in his first affidavit occurred the next day on 19 October 2022 — when, apparently, according to para [5]of the first affidavit, Mr Ridling escalated his threats by intentionally smashing six of the concrete blocks down the driveway. These were concrete blocks that Mr Nienkemper had placed on the driveway. Once again this was reported to the police, but Sergeant Hanley and another sergeant took no action, for which they are much criticised.
(c)The next incident took place on 23 January 2023. Mr Nienkemper states that he parked his vehicle on the shared easement in the same manner that Mr Ridling daily parks all his vehicles on their shared easement, but Mr Ridling refused to accept it and threatened to remove his vehicle with his tractor. To protect his vehicle, Mr Nienkemper stood in front of it and Mr Ridling yelled at him to move or “he’d run me down”, and then struck Mr Nienkemper in the chest with his tractor fork hoists. I am not sure whether police arrived at the time, but again no police action was taken against Mr Ridling.
(d)The next incident described at para [8] of Mr Nienkemper’s affidavit occurred on 26 January 2023 when a 40 foot container truck entered the property, that I will describe shortly, in order to service Mr Ridling’s business which is a neighbour of Mr Nienkemper and others who live at the address. Unfortunately, it was not possible because of the placement of Mr Nienkemper’s vehicle (which I find to have been quite deliberate on his part) for him to again leave the property and quite a fracas ensued in which the driver of the truck did some damage to Mr Nienkemper’s car in order to try to move it so that his truck could get around and exit the premises. Again the infamous Sergeant Hanley refused to take action against either Mr Ridling and in this case the truck driver.
(e)The last incident of which he complains in the first affidavit is one that occurred in April 2023 where Mr Nienkemper claims at para [9] that [what] Mr Nienkemper refers to as “my BC property (Body Corporate)”, claiming falsely that “I’m on his property”. Mark Ridling then sent an email to Mr Nienkemper and a text on 8 April 2023, Mr Nienkemper claims, threatening him and his property. Mr Nienkemper then reveals that he has continually reported to the police asking for help to stop this behaviour, but the police refuse to act on it.
[16] The Judge discussed each of these allegations and found, variously, that they were overstated, not established, or resulted from Mr Nienkemper’s intemperate actions. The Judge found also that Mr Ridling was entitled to remove the wheel clamp and did not threaten Mr Nienkemper. I will quote the Judge’s comments because they are challenged on the appeal:
[13] I have seen a short video and photos of Mr Ridling and the sledgehammer that was in his hand. I find that there was nothing threatening about it. He just happened to be holding it at the time that he spoke with
Mr Nienkemper and I did not see or hear any threat to throw the sledgehammer through his window. Again, I understand why Sergeant Hanley took no action. Those are just some of the incidents which have been spoken of.
[17] The Judge reviewed the requirements of the Act and held:
[47] A restraining order should not be granted in this case and will not be because it is not justified. I decide:
(a)That Mr Ridling has not harassed the applicant, Mr Nienkemper.
(b)In addition, I do not consider that Mr Nienkemper has been distressed by Mr Ridling’s behaviour. In fact, I have reached the uncomfortable conclusion that Mr Nienkemper thrives on the animosity and the dispute which he is the one that has provoked in every circumstance that I have seen.
(c)There is certainly no necessity to make a restraining order to protect Mr Nienkemper from Mr Ridling, whom I am satisfied just wants a quiet life and to be able to run his business in the way that the Body Corporate is perfectly happy with, which involves allowing his businesses vehicles, his client’s vehicles to access the driveway which is in two parts, a service entrance and an actual driveway over which as I have said there are various easements.
[18] As to the “lawful purpose” defence put forward by Mr Ridling, the Judge held:
[54] Here I have no evidence that Mr Ridling was ever the aggressor in any situation. The aggressor and the provoker of any incident was always Mr Nienkemper, seemingly in the belief that he was entitled, if not required, to police the driveway and the access of others to it in a totally misguided misinterpretation of the legal position. He took acts to obstruct Mr Ridling’s lawful access to the driveway and he then was obdurate about trying to set himself up as a victim when Mr Ridling took (as I find in general) perfectly reasonable steps to pursue his lawful purpose, which was to unobstruct his easement rights over the driveway and carry out his business by accessing it.
[55] His purposes were lawful at all times. He did not exceed them. The steps that he took were legitimate and where there is any conflict between the evidence of Mr Ridling and Mr Nienkemper, I prefer the evidence of Mr Ridling, who seemed to me to be a perfectly reasonable and low-key witness. I accept that he wants no trouble and just wants to go about his business in an inoffensive and appropriate way, but Mr Nienkemper wants nothing of that kind. It seems to me Mr Nienkemper thrives on conflict; why that is so, I have no idea. It might be engendered by an ignorance of the legal position. I am not sure.
[56] I am satisfied that none of the so-called specified acts of which Mr Nienkemper complains in fact are and were specified acts, but should I be wrong in that, then I am not satisfied on the balance of probabilities that the degree of distress caused or threatened by Mr Ridling’s behaviour justifies the
making of an order. I do not actually accept that any distress has been caused to Mr Nienkemper. Any distress that he has experienced is all of his own making.
[19] Finally, the Judge held:
[61] Lastly, and should I be wrong in respect to all of the former (which I do not consider I am) there is no restraining order necessary to protect Mr Nienkemper. I repeat: Mr Nienkemper is his own worst enemy. He seems to enjoy continuing a dispute of his own making with Mr Ridling. If he really needed protection from Mr Ridling, he would not place himself in — potentially — harm’s way, as he has exhibited himself to do on many occasions.
The Appeal
[20] The grounds of appeal at the hearing before me are that the Judge:
(a)Failed to give sufficient weight to the following relevant considerations:
(i)Mr Nienkemper was acting pursuant to his easement rights;
(ii)Mr Ridling had threatened Mr Nienkemper on 18.10.22;
(iii)Mr Ridling’s behaviour amounted to harassment;
(iv)The reasonable distress Mr Ridling’s behaviour had caused Mr Nienkemper.
(b)Erred in law by:
(i)stopping Mr Nienkemper from giving relevant evidence;
(ii)admitting the evidence of Ms Gallichan without her being made available for cross-examination.
(c)Erred in principle by not appointing an amicus to assist the Court or standby counsel to assist Mr Nienkemper.
[21] The first ground relates to the wheel-clamping incident. Ms Hogan, relying on Mr Gibbons’s affidavit, submits that Mr Nienkemper had a legal right to affix the wheel-clamp to Mr Ridling’s vehicle because it was parked on the right-of-way easement. Ms Hogan submits that Mr Nienkemper was entitled to have the entire easement area kept free of obstructions and was able to exercise enforcement rights, which include remedying the default.
[22] As I have said, whether parking a vehicle on land subject to a right-of-way easement amounts to an unlawful obstruction is a matter of fact and degree. The right-of-way in question runs from the bottom of David Sidwell Place and services a predominantly commercial community. The exception is the block of apartments in which Mr Nienkemper lives. Mr Ridling’s business premises are across the right-of-way from the apartments. Ms Hogan helpfully provided me at the hearing with a Google Maps depiction. I reproduce it as the appendix to this Judgment. The markings are mine. “N” labels Mr Nienkemper’s apartment. “R’s” labels Mr Ridling’s premises. The carpark with the label “Apartments” is the residents’ carpark for the block of apartments.
[23] The evidence is clear that Mr Ridling, and people associated with his business, frequently parked on the right-of-way for periods of time. I cannot say whether any, some or all of those parkings constituted unlawful obstructions of the right-of-way. I can say that, looking at the vehicles parked towards David Sidwell Place (as shown in the appendix), the right-of-way is not blocked by the vehicles shown.
[24] But, regardless of the level of obstruction, Mr Nienkemper was not permitted by law to wheel-clamp a vehicle parked on the right-of-way. That is not an action to clear the obstruction. Nor is it an action vindicable by the rights he has under the right-of-way easement.
[25] The next ground of appeal relates to the allegation that, during the incident when Mr Ridling removed the wheel-clamp, he threatened Mr Nienkemper with the sledgehammer he used to accomplish that. Ms Hogan submits that the Judge was factually wrong in her finding which I quote at [16]; and in particular in her finding that, upon viewing a video of the incident, the Judge “did not see or hear any threat to throw the sledgehammer through his window” — essentially, a finding that there was no threat.
[26] I had the video played in Court during the hearing. It appears to have been taken by Mr Nienkemper, or on behalf of Mr Nienkemper while Mr Nienkemper was present. I infer it was taken from the upper storey of Mr Nienkemper’s apartment. The video shows Mr Ridling with a sledgehammer walking past Mr Nienkemper’s
viewing place towards his car which had its wheel clamped. In answer to a remark by Mr Nienkemper, Mr Ridling is recorded clearly as saying words to the effect, “I’ll put it through your window, mate”. Mr Ridling is then shown using the sledgehammer to break the wheel-clamp. He then goes further down the right-of-way and uses the sledgehammer to break several concrete blocks which Mr Nienkemper had placed along the edge of the right-of-way (this incident is said to be a separate act of harassment, and I quote the Judge’s summary at [15](b)]).
[27] I find the Judge was in error not to find that Mr Ridling said words to the effect which I quote above. But, in the context of the events that were occurring at the time, I do not think that matters. The words were capable of being a threat, but were equally capable of being seen as a spontaneous remark without actual intent.
[28] The next ground of appeal is that the Judge erred in finding that Mr Ridling, at all times, acted lawfully. This submission relates to Mr Nienkemper’s allegations that Mr Ridling not only threatened violence but that he and his agents regularly hindered access to Mr Nienkemper’s residence via unlawful parking on the right-of-way.
[29] I have read the notes of evidence. The Judge had the advantage of seeing and hearing both Mr Nienkemper and Mr Ridling. Essentially, the Judge held that where Mr Ridling took direct action (such as to counter Mr Nienkemper’s positioning of vehicles) it was in response to provocation and to clear unreasonable obstructions to his right to use the right-of-way. It might be that the Judge was not as clinical in her statements at [55] of her decision (which I quote at [18]) as she might have been. But, the key finding that Mr Nienkemper was the provocateur and that Mr Ridling’s purpose in responding was lawful was open to the Judge on the evidence.
[30] Having submitted that the Judge erred in failing to find that Mr Ridling harassed Mr Nienkemper, Ms Hogan turned to the Act’s downstream requirements. The submission is that the Judge failed to give sufficient weight to the evidence that Mr Ridling’s behaviour had reasonably caused Mr Nienkemper distress.
[31] Again, I do not think the Judge expressed herself as clinically as she might have. In her [56] (which I quote at [18]), she first said that if Mr Ridling’s acts did
amount to specified acts, “then [she was] not satisfied on the balance of probabilities that the degree of distress … justifies the making of an order”. Then the Judge went further by saying she did not accept that any distress was caused, before qualifying that remark with, “any distress that he has experienced is all of his own making”.
[32] My reading of the evidence is that Mr Nienkemper was certainly upset by Mr Ridling’s actions and acted in response to that upset. He was not unemotional. But the key finding by the Judge, which was open to her on the evidence, was that Mr Nienkemper was the instigator of the conflicts recorded in evidence and not a victim of harassment by Mr Ridling. Therefore, any distress he suffered did not justify the making of a restraining order.
[33] Ms Hogan went on to refer to matters of process which, it is submitted, in effect, denied Mr Nienkemper a fair hearing. The first is that the Judge stopped Mr Nienkemper from giving relevant evidence.
[34] I do not give weight to this submission because, apart from the next point, there is no identification of excluded evidence which, had it been included, could have materially affected the outcome of the hearing.
[35] The identified piece of excluded evidence is the video of the sledgehammer incident to which I have referred. Confusingly, although it seems the Judge stopped Mr Nienkemper from playing the video in his evidence, she watched it after the hearing and referred to it in her Judgment. Whether or not the Judge should have allowed Mr Nienkemper to play the video is not a matter I have to resolve. The Judge watched the video and commented on it. I have watched the video too. It does not materially alter the evidential picture painted at the trial.
[36] The next ground of appeal is that the Judge erred in law by admitting the evidence of Ms Gallichan (on behalf of Mr Ridling) without her being made available for cross-examination. The Judge refers to this in her Judgment:
[23] Another issue arose yesterday because counsel for Mr Ridling, Mr Muir, sought at the outset that one of the deponents of an affidavit in support of Mr Ridling should not be able to be cross-examined. Her name is Amber Claire [Gallichan]. She is a Body Corporate management committee
member. In her affidavit she makes no bones about the fact that she considers herself to have been badly harassed by Mr Nienkemper and is intimidated by him and is very nervous of him. Therefore, Mr Muir asked that the applicant, Mr Nienkemper who is self-represented, should not be allowed to cross-examine her.
[24] Given s 95 of the Evidence Act 2000 restrictions on cross-examination by parties in person, I decided that I should exercise my discretion to order that she may not be personally cross-examined. Of course, she could have been cross-examined had a notice to present for cross-examination ever been issued and had Mr Nienkemper been legally represented, but neither of those things occurred.
[25] I minuted that direction and my reasons for doing so and will not repeat them now. But her evidence was compelling. In particular, I note and am persuaded that she considered Mr Nienkemper to have a menacing demeanour, exhibiting erratic and unpredictable behaviour, unnecessarily antagonising neighbouring property owners and having a personal vendetta against the respondent, Mr Ridling; behaving abusively, intimidatingly and insultingly towards Ms [Gallichan] with the intention of forcing her to break the law; going out of his way to make a nuisance of himself and continually provoke others around him; intentionally obstructing the right of way serving the properties of the Body Corporate and the respondent. And that his claim to being victimised by anybody, let alone Mr Ridling is outlandish.
[37] The Judge’s reasons for granting the application for an order that Ms Gallichan not be cross-examined were given in her pre-trial ruling of 22 November 2023:10
[7] The next matter is the direction that is sought by the respondent to exempt a witness, Amber-Claire [Gallichan] from being cross-examined by the applicant. This application is opposed by the [applicant] on the grounds that she has put herself forward as a witness on behalf of the respondent and the interests of justice require that he should be allowed to cross-examine her. I say at the outset that this is a difficult matter because the applicant is self-represented (albeit I accept that that is his right), however, s 95 of the Evidence Act 2006 provides for restrictions on cross-examination by parties in person.
[8] Subsection (1), a party to a civil proceeding concerning harassment is not entitled to personally cross-examine—
(b)any other witness (for example, a propensity witness) who has made an allegation against that party, —
(i)in a civil proceeding of harassment.
[9] Subsection (2) provides me with discretion to order that a party to a harassment proceeding must not personally cross-examine a witness.
[10] Subsection (3) provides a non-exhaustive list of grounds upon which such an order may be grounded, (d) including the nature of the proceeding, (e)
10 Nienkemper v Ridling [2023] NZDC 26395.
the relationship of the witness to the unrepresented party, (f) any other grounds likely to prompt the purpose of the Act.
[11] Subsection (4) requires me to have regard to the need to ensure fairness of the proceeding, the need to minimise the stress on the witness, and any other factor that is relevant to the just determination of the proceeding.
[12] The witness concerned, Ms [Gallichan], is a member of the Body Corporate served by the right of way which is at the hub of this proceeding and of which Mr Nienkemper, the applicant, is also a member. She has made allegations against the applicant regarding his harassment propensity and clearly considers herself to be harassed by him. She says that she has felt threatened by him and inter alia, that he has a menacing demeanour; his behaviour is erratic and unpredictable; has a personal vendetta against the respondent; has behaved abusively, intimidatingly, and insultingly towards her with the intention of forcing her to break the law, et cetera, et cetera.
[13] Whilst on the one hand I accept that the Court should be very cautious before it prevents in particular an applicant and a person in an application of this kind from cross-examining any witness, when the stakes are as high as these are, given the very high tensions between the parties and between the applicant and the Body Corporate concerned, and given Ms [Gallichan’s] concerns about the applicant’s conduct towards her and others, it seems to me that in order to ensure fairness of the proceeding, and to minimise the stress on Ms [Gallichan] (having taken into account the matters that I have listed at s 95(3)(d), (e), and (f)) the application should be granted. I hereby direct that the applicant shall not be able to cross-examine Ms [Gallichan]. Were he to be legally represented, of course he would have been able to do so.
[38] This issue arose unexpectedly on the morning of trial. Mr Nienkemper had not given notice to cross-examine Ms Gallichan. I do not know why Mr Muir made his unheralded application on the morning of trial. I suspect he apprehended that Mr Nienkemper, self-represented, simply assumed the deponents of affidavits would be available for cross-examination (the transcript shows that this was Mr Nienkemper’s expectation). So, Mr Muir made a pre-emptive application.
[39] There was no affidavit from Ms Gallichan expressing concern at being questioned by Mr Nienkemper. Mr Muir relied on her evidential affidavit.
[40] The contents of Ms Gallichan’s affidavit go directly to the main issue the Judge had to resolve: was Mr Nienkemper the “antagonist and the harasser”11 as opposed to Mr Ridling?
11 District Court decision, above n 1, at [64], quoted at [2] above.
[41] No judge likes to adjourn a case which has been scheduled for a long period because one party (Mr Nienkemper) did not comply with the rules of procedure (to give notice to cross-examine). In this case, though, Ms Gallichan’s evidence was, on its face, powerfully against Mr Nienkemper’s application. In the interests of overall fairness, the Judge could have heard the evidence to the point where Ms Gallichan would be cross-examined and then adjourned to enable Mr Nienkemper to brief counsel to conduct cross-examination.
[42] However, I do not find the Judge’s decision on this matter to be consequential to this appeal.
[43] First, Mr Nienkemper has filed an affidavit in support of his appeal in which he sets out the matters on which he would have cross-examined Ms Gallichan:12
4.3I intended to put the following matters to Ms Clair while cross-examining her and was prevented from doing so:
(a)It was our body corporate committee (elected for three terms), not me personally, who decided to enforce our easement rights.
(b)I did not use up large amounts of body corporate funds, and I deny her implication the use of funds to enforce our easement rights was unconsented or wasteful. I did not have access to the BC funds and nor have I ever used BC funds.
(c)I have not made over 50 complaints to Police about the body corporates dispute. Most calls were made by others (Mr McCormick and Clem). Police have been called Police some 18 times — 7 times when I was being threatened or assaulted, other times when Mr Ridling was damaging our body corporate property or obstructing our easement.
(d)It was Shane King who was charged with assault with a weapon, I never have been.
(e)I walk with great difficulty and hold a disability card — I cannot “run down to the driveway” to enforce the easement.
(f)She met Mr Ridling in September 2022 when our body corporate trespassed Mr Ridling and his employee Mr King. Ms Clair joined forces with Mr Ridling at this time.
12 Mr Nienkemper refers to Ms Gallichan as “Ms Clair”, presumably because her given name is “Amber-Claire”.
(g)As above, Ms Clair harassed and swore at me at my front door on 29 September 2022.
(h)As above, Ms Clair approached my vehicle and threatened and abused me on 20 April 2023. I deny everything she says I did and said on that occasion — Clem’s video recording proves she has lied.
(i)Ms Clair was not elected to our body corporate committee until the AGM on 28 June 2023.
[44] These are matters which are largely peripheral to Ms Gallichan’s characterisation of Mr Nienkemper. Even if Ms Gallichan had accepted the propositions (and, with (h), that is highly unlikely) the thrust of her evidence would be uncontradicted.
[45] Ms Gallichan’s evidence is consistent with Mr Ridling’s evidence and with the other deponent’s (Mr McAlpine) description of his dealings with Mr Ridling.
[46] Mr Nienkemper’s evidence, particularly the positions he took on his own conduct and beliefs, are also consistent with Ms Gallichan’s views of him.
[47] The final ground of appeal is that the Judge erred by not appointing an amicus to assist the Court or standby counsel to assist Mr Nienkemper.
[48] I disagree. This was a civil action brought by Mr Nienkemper. He chose to represent himself. He had the same obligations as any party represented by counsel. The Judge did what she could to assist Mr Nienkemper; for example, she allowed him to have two people to assist him with evidence and submissions. Indeed the Judge, justifiably, said:
[5] I make it clear at the outset that I have done my level best to be fair to Mr Nienkemper since he is self-represented, and I have given him much greater latitude [than] I would normally, particularly in a proceeding of this nature. I have done so so that he does not feel aggrieved at the manner in which the hearing has been conducted. That is particularly pertinent because of some particular features of Mr Nienkemper’s personality to which I will refer again in due course in this judgment.
[49] It is not for a judge to try to make up the deficits in a case brought by a self-represented litigant. Nor is it for a judge to order, at public expense, counsel to
be made available to such a litigant if they are not putting forward their case competently.
Discussion
[50] Mr Nienkemper’s case was about Mr Ridling’s use of the right-of-way. Over a period of time, he repeatedly confronted Mr Ridling about that use and felt empowered to do so because he was a member of the Body Corporate’s management committee. Mr Ridling, on the occasions complained of specifically by Mr Nienkemper, responded to Mr Nienkemper’s actions.
[51] On the evidence, as I have discussed, it was open to the Judge to find that Mr Ridling did not harass Mr Nienkemper because he did not engage in a pattern of behaviour directed against Mr Nienkemper that included doing to him a specified act on at least two separate occasions. There was no “pattern of behaviour”. There were responses to provocations by Mr Nienkemper. I accept that some of Mr Ridling’s actions could come within the statutory meaning of “specified act” (for example, Mr Ridling breaking the wheel-clamp and breaking the concrete blocks could be interfering with property in Mr Nienkemper’s possession). But, the former was for a lawful purpose (to free his vehicle from unlawful restraint).
[52] It was also open to the Judge to find that in all the circumstances (if there were specified acts amounting to harassment) the degree of distress caused by the alleged harassment did not justify the making of an order.
[53] Finally, I have the clear view that the Judge was correct to find the making of a restraining order is not necessary to protect Mr Nienkemper from further harassment (assuming that there had been harassment).
[54] The events complained of by Mr Nienkemper took place over the period 18 October 2022 to April 2023. For much of this time, Mr Nienkemper was a member of the Body Corporate’s management committee. Mr McAlpine, in his affidavit, exhibits the minutes of an emergency Body Corporate meeting held on 28 March 2023. At that meeting, the then chairman was removed from office and was
replaced by Mr McAlpine. A new committee was elected. Mr Nienkemper was not a member. Thereafter, things calmed down.
[55] Mr Nienkemper did not give evidence of contemporary incidents of confrontation with Mr Ridling.
[56] Mr Ridling said in evidence that he was retired, and had been for two years. He said he calls in to his business premises “once a week at most and that’s usually for two hours, on a bad day it’s four hours, so [he doesn’t] spend very much time there at all”.
[57] A short time later Mr Ridling was asked to comment on Mr McAlpine’s evidence:13
Q.Now, Ross McAlpine, the current chairperson of the body corporate, has sworn an affidavit attesting to your character and in support of you. What do you say to the points that he makes?
A.I would say that we get along fine, haven’t had any issues since the new body corp has come in, never had issues before that, and we just work through. If there’s a problem, we talk about it, there hasn’t been any problems, there isn’t. It’s really simple, we just – business is on both sides, so yeah, it’s been fine.
Q.And your view towards the future in terms of how to approach the issues or any disputes over the driveway, what, what is your approach to that?
A.I don’t think there are any. There hasn’t been a problem or an issue. We make sure that, for example, on that once a month we have a meeting, the guys park their trucks to one side, it’s for an hour and a half once a month, so that everybody can still get access through. There aren’t any issues as far as I am aware.
[58] Mr Ridling went on to say that there had been no issues between him and Mr Nienkemper in the months since the April 2023 incident.
[59] There was no submission made to me, and no suggestion in the evidence filed in the appeal, that there have been further incidents of confrontation.
13 Notes of evidence taken before Judge M-E Sharp at 96–97.
[60] There is another factor which illustrates why a restraining order would be inappropriate. What would be its terms? The disputes giving rise to the incidents complained of were disputes over the use of the right-of-way. Any restraining order would have to contain special conditions setting out what is lawful use and requiring Mr Ridling not to go beyond such use. To an extent, the Judge heard evidence about the parties’ views on what was and was not lawful use. But, there was insufficient evidence from which to prescribe lawful use in conditions which would be meaningful. And, general conditions which could prevent lawful use would not be appropriate. Ms Hogan, understandably, could not suggest conditions which would be apposite. In short, an application for a restraining order, in the circumstances of this case, was an inappropriate way to resolve disputes over the lawful use of a right- of-way easement.
Result
[61]The appeal is dismissed.
[62] I tend to the view that 2B costs in favour of Mr Ridling are appropriate. But, I will take memoranda from counsel if they wish to advocate for a different regime. Any memorandum on behalf of Mr Ridling is to be filed no later than 31 March 2025. Mr Nienkemper’s memorandum (if any) is to be filed no later than 28 April 2025.
Brewer J
APPENDIX
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