Nienkemper v Ridling
[2024] NZHC 1714
•26 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-3120
[2024] NZHC 1714
UNDER Section 124 District Court Act 2016 and Rule 20.4 High Court Rules 2016 BETWEEN
ANTHONY CLEMENTS KARLOFF NIENKEMPER
Appellant
AND
MARK RIDLING
Respondent
Hearing: 20 June 2024 Appearances:
K E Hogan for Appellant P J Muir for Respondent
Judgment:
26 June 2024
JUDGMENT OF O’GORMAN J
[Application by respondent to adduce fresh evidence on appeal]
This judgment was delivered by me on 26 June 2024 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/counsel:
K E Hogan, Barrister, Auckland Zhang Law, Auckland
Steindle Williams Legal, Auckland
NIENKEMPER v RIDLING [2024] NZHC 1714 [26 June 2024]
[1] This proceeding is an appeal by Mr Nienkemper challenging a decision delivered by Judge M-E Sharp in the District Court on 23 November 2023.1 In that decision, Judge Sharp dismissed an application by Mr Nienkemper for a restraining order against the respondent, Mr Ridling, under the Harassment Act 1997.
[2]The applications before me for determination are:
(a)an application by the appellant, Mr Nienkemper, to adduce further evidence in support of his appeal; and
(b)an application by the respondent to adduce fresh evidence on appeal, as contained in the affidavit of Mr Ridling sworn on 30 April 2024.
[3] There are two affidavits in support of the appellant’s application , namely that by Mr Nienkemper dated 8 April 2024 and an affidavit from Mr Gibbons dated 9 April 2024.
(a)At the end of an “introduction and background” section, Mr Nienkemper’s affidavit says in para 1.14 that he seeks to rely on “the following evidence” in support of his appeal. What follows is a combination of factual statements and legal submissions, with reference to various videos. In the hearing, it was clarified that the “new evidence” that is the subject of the present application is the content of the affidavit itself, plus clarification as to the admissibility of one particular video (recorded on 26 June 2023) that was referred to but not played during the District Court hearing.
(b)Mr Gibbons is a specialist property and resource management lawyer, experienced in dealing with complex issues in subdivisions, unit titles, land development and infrastructure. His affidavit provides expert evidence about the disputed rights and obligations under easement 7644979.4. This evidence was not before Judge Sharp in the District Court proceeding and is relied on by the appellant to
1 Nienkemper v Ridling [2023] NZDC 26444.
substantiate alleged errors of law. The respondent does not oppose the evidence of Mr Gibbons being received for the purposes of the appeal.
Legal principles
[4] Both applications are made under r 20.16 of the High Court Rules, which provides as follows:
20.16 Further evidence
(1)Without leave, a party to an appeal may adduce further evidence on a question of fact if the evidence is necessary to determine an interlocutory application that relates to the appeal.
(2)In all other cases, a party to an appeal may adduce further evidence only with the leave of the court.
(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.
(4)Further evidence under this rule must be given by affidavit, unless the court otherwise directs.
[5]In B v A, Wylie J summarised the relevant principles as follows:2
(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;
(d)generally, the further evidence must be fresh, credible, and cogent;
2 B v A [2020] NZHC 580 at [25] citing Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [39]–[44]; Nation v Nation [2005] 3 NZLR 46 (CA); Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); Comalco NZ Ltd v TVNZ Ltd (1996) 10 PRNZ 573 (HC); Complaints Committee No 1 of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).
(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”.
[6] In McLaughlan v Zhong, one relevant consideration for assessing the overall interests of justice was the fact that the appellant was not represented by counsel at trial.3 This did not by itself invoke fairness principles or issues of procedural irregularity, but it was relevant to the discretion to permit the evidence even if it was reasonably available for the hearing at first instance.4
Grounds of opposition
[7] The respondent opposes the admission of the evidence set out in the affidavit of Mr Nienkemper sworn on 8 April 2024. The grounds of opposition are:
(a)there are no special reasons for hearing the evidence (there was no procedural injustice, and it simply represents a change of heart about how the case should have been conducted);
(b)the opposed evidence is not relevant, credible and/or cogent;
(c)the majority of the opposed evidence is not new — it could with reasonable diligence have been produced at the District Court trial; and
(d)the interests of justice do not require the evidence to be heard.
3 McLaughlan v Zhong HC Auckland, CIV-2011-404-4508, 17 August 2011 at [13].
4 At [13]–[15].
[8] I analyse those issues below, under the nine different headings used in Mr Nienkemper’s affidavit.
Analysis of Mr Nienkemper’s affidavit
1. Introduction and background
[9] Paragraphs 1.1 through to 1.14 are not new and mostly represent no more than an overview summary or introduction.
[10] On questioning of Mr Nienkemper’s counsel, Ms Hogan, it appears there are minor details that might not already be contained in the record on appeal (i.e., Judge Sharp’s decision, the notes of evidence, and any evidence before the District Court). For example, there might not be any reference to Mr Nienkemper being disabled and his title and role on behalf of the Body Corporate.
[11] I accept it would not usually be appropriate to allow augmentation of such facts, but I nevertheless consider that it is in the interests of justice to allow Mr Nienkemper to provide that summary in the present circumstances. I do not see that any of it is particularly contentious. To the extent it is, it has already been squarely challenged in the District Court process, so I do not foresee any need for cross-examination, even though aspects of it (such as para 1.10) are no doubt vigorously disputed. Rather, I regard this type of introduction or overview as something that would normally be made as a matter of legal submission at the commencement of an appeal. If Mr Nienkemper feels it important for the appeal court to have that overview, then I consider it reasonable and convenient to receive it in this form, as a summary of Mr Nienkemper’s position on these introductory points.
2. Errors in respect of easement
[12] I do not grant leave for any of the paragraphs in pt 2 of the affidavit to be included by way of further evidence. This refers to alleged errors of law in assessing the rights and obligations under easement 7644979.4. Those issues of law are now addressed in the proposed affidavit of Mr Gibbons. Mr Nienkemper does not have the expertise to interpret that evidence as a matter of opinion. To the extent that his factual
views were relevant for the issues for determination before the District Court, this is addressed in the notes of evidence included in the record.
[13] Counsel for the respondent confirmed that the accuracy of the new evidence of Mr Gibbons is accepted, which is why no opposition is raised to that material being admitted for the appeal.
[14] The appellant will be able to advance any allegation about errors of law as legal submissions, based on the evidence of Mr Gibbons.
3. Errors in respect of footage produced at hearing
[15] Paragraphs 3.1–3.3 seek to refer to and rely on the content of a video recording made on 26 June 2023, but which was not played or viewed by Judge Sharp in the hearing.
[16] As is evident from the notes of evidence, Mr Nienkemper’s first affidavit at trial referred at exhibit 4 to electronic material, and the printed copy of his affidavit had a screenshot at exhibit 4. A USB key containing electronic material was provided to the Court and to counsel for Mr Ridling, but there were difficulties at trial locating relevant material within it (the electronic files were not labelled with discovery or evidence references).
[17] Mr Nienkemper wishes to pursue points on appeal concerning the failure of Judge Sharp to view some relevant material that was available on his laptop while he was in the witness box (see para 5.5 of his affidavit) and Judge Sharp’s finding that no threats were made by Mr Ridling despite the content of the 26 June 2023 video that he wished to show but did not manage to.
[18] The respondent takes the position that, if the video was not played during the hearing, then it is inadmissible now for the purposes of the appeal. The video was available at the time of the hearing, and any failure to play it was the fault of Mr Nienkemper, rather than judicial error.
[19] On these issues, I give leave for the appellant to produce the video that he has referred to in paras 3.1 and 3.2 of his affidavit, but I do not permit him to adduce the evidence set out in those paragraphs. As currently drafted, those paragraphs incorrectly imply that Judge Sharp saw the video. For the purposes of explaining what occurred at the hearing in terms of displaying videos, both parties should refer to the notes of evidence. These indicate that the material exhibited to Mr Nienkemper’s affidavit was on a USB stick provided to the Court and counsel, but that this particular video could not be found and played during the hearing (for whatever reason).
[20] Legal submissions on appeal may be made on behalf of Mr Nienkemper about the significance of that, including by reference to the content of the video as admitted on appeal by this decision. The respondent may also maintain his position in the substantive appeal that any failure to play the video does not constitute an error by Judge Sharp.
[21] I grant leave for Mr Nienkemper to give the further evidence set out in paras 3.4 and 3.5 of his affidavit. These appear to me to be more in the nature of legal submissions anyway. I do not understand that those paragraphs introduce any new evidence as such. It is nevertheless a convenient summary of Mr Nienkemper’s position on those alleged errors. Counsel for Mr Ridling indicated that the videos referred to in paras 3.4(a)–(c) were all played in court and are therefore already evidential material that may be included in the record on appeal.
[22] I acknowledge the respondent’s position that there is no substantive merit in the appeal points addressed in paras 3.4 and 3.5 of Mr Nienkemper’s affidavit, but I consider that those issues are better dealt with in the substantive appeal rather than at this admissibility stage. I see no prejudice arising from these paragraphs being before the Court.
4. Amber Claire
[23] I understand that this witness’s full name is Amber Claire Gellechan. Judge Sharp made an order under s 95 of the Evidence Act 2006 to exempt Ms Gellechan from cross-examination, taking into account a number of factors including fairness, stress for Ms Gellechan and the appellant’s lack of legal representation.5 Ms Gellechan was also excused from appearing as a witness because the appellant did not give prior notice to cross-examine her.
[24] The appellant apparently challenges these decisions on appeal. To understand Mr Nienkemper’s allegations about the unfair impact of these decisions, I grant leave for Mr Nienkemper to give the evidence set out in para 4.3 about the matters on which he would have cross-examined Ms Gellechan.
[25] However, I do not grant leave for Mr Nienkemper to give the evidence set out in paras 4.1 or 4.2. That material is not fresh, I do not consider it would negate the Judge’s concern about friction and potential distress to the witness, the new allegations would be contentious and would cause an evidential distraction of requiring a response, and I consider it unnecessary to enable Mr Nienkemper to pursue his appeal arguments in this category.
5. Procedural unfairness
[26] I allow leave for the content of paras 5.1–5.4 of the affidavit about Mr Nienkemper’s election to be self-represented and the fact that no amicus curiae was appointed. This ensures he can articulate his appeal points under this category.
[27] I acknowledge the respondent’s submissions that an amicus is appointed for the benefit of the Court rather than a party, and no procedural unfairness arises from any failure to appoint one. However, those are matters for the substantive appeal.
5 Nienkemper v Ridling [2023] NZDC 26395 at [13].
[28] I do not grant leave for para 5.5 to be included because these are matters that should be readily evident from the notes of evidence and therefore advanced as submissions in the appeal hearing without any further evidence.
6. Risk of prejudice
[29] In pt 6 of the affidavit, Mr Nienkemper wishes to refer to an allegation of shoulder barging outside of the courtroom at the hearing. This subject matter also arises under Mr Ridling’s application to give evidence, as reflected in paras 6 and 7 of his affidavit.
[30] I do not grant leave for either party to raise these issues on appeal. There is no evidence to suggest that the Judge took these allegations into account. To the contrary, the evidence is that Judge Sharp said she would not consider them.
[31] Accordingly, these matters, along with allegations of other subsequent events (paras 8–10 of Mr Ridling’s affidavit), are neither necessary nor suitable for being addressed in this appeal (as opposed to a first instance process). Any issues from those events give rise to new issues rather than impacting on the correctness of the District Court’s decision in this appeal.
7. Genuineness of my application
[32] I do not grant leave for pt 7 of Mr Nienkemper’s affidavit. Any comments by Judge Davenport are irrelevant and were not made with the benefit of the full evidence before Judge Sharp.
8. Chronology of assaults, threats, harassment by Mr Ridling
[33] I accept the respondent’s position that the chronology set out in para 8.1 is not new material and should not be accepted as further evidence.
[34] To the extent it represents a relevant chronology of matters addressed in the evidence before the District Court, it can be presented in legal submissions, by reference to the evidence.
9. Impact of Judge Sharp decision
[35] I do not grant leave for the content of para 9 because these post-hearing concerns are not relevant for the purposes of determining the merits of the appeal.
Other affidavits
[36] For the reasons already referred to above, I decline leave to allow the further evidence in Mr Ridling’s affidavit. These were not matters assessed by the District Court in the decision under appeal, and it is not appropriate for them to be raised in the first instance in this appeal.
[37] I grant leave (unopposed) for admission of the affidavit of Mr Gibbons. Matters of law are commonly the subject of legal submissions rather than expert evidence. In this case, I nevertheless consider it helpful because of the specialist skill of legally interpreting factual documents not otherwise in evidence. The substantive issues at trial focused on the appropriateness of a restraining order, rather than determination of disputed easement rights and obligations. The appeal nevertheless raises such alleged errors of law, the assessment of which will be assisted by Mr Gibbons’ evidence.
Result
[38] I grant leave for the following paragraphs of Mr Nienkemper’s affidavit to be adduced: 1.1–1.14, 3.4–3.5, 4.3 and 5.1–5.4. I direct that the balance should be redacted, or the affidavit replaced to include only those paragraphs for which leave has been granted.
[39] I give leave for the appellant to produce the video that he has referred to in paras 3.1 and 3.2 of his affidavit and to make legal submissions about the content of that video, but I do not permit him to adduce the evidence set out in those paragraphs.
[40]I grant leave by consent for the affidavit of Mr Gibbons to be adduced.
[41]I decline leave for Mr Ridling’s affidavit.
[42] In the circumstances of this mixed outcome, my inclination is that costs should lie where they fall on this application. If the parties do not agree on costs, then any memoranda are to be filed within 15 working days, for my determination on the papers.
O’Gorman J