O'Neill v Malcouronne - [2021] NZCA 556

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA262/2021
[2021] NZCA 556

BETWEEN	MARY JELENA O’NEILL Applicant
AND	PETER JAMES MALCOURONNE Respondent

Court:	French and Courtney JJ
Counsel:	N M Pender for Applicant S A Keall for Respondent
Judgment: (On the papers)	21 October 2021 at 10 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the application for leave to appeal under s 36 of the Harassment Act 1997 is granted.
BThe application for leave to file an amended application for leave to appeal is granted.
CThe application for leave to appeal is declined.
DThe applicant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mrs O’Neill seeks leave under s 36 of the Harassment Act 1997 (the Act) to appeal a decision of Clark J in the High Court.[1] The application for leave was filed out of time and accordingly Mrs O’Neill also seeks an extension of time. In addition, she applies for leave to amend her application for leave to appeal.

Background

[1]Malcouronne v O’Neill [2021] NZHC 641 [High Court judgment].

Mrs O’Neill and Mr Malcouronne are neighbours. There has been ongoing conflict and in 2019 both applied for a restraining order under the Act against the other. There was a hearing in the District Court before Judge Harvey. On 19 February 2020, the Judge issued two restraining orders.[2] One was against Mrs O’Neill in favour of Mr Malcouronne and his partner for two years.[3] The other order was against Mr Malcouronne in favour of Mrs O’Neill for one year.[4] The Judge found that what he described as Mrs O’Neill’s “relentless and obsessive pattern of behaviour” warranted a longer period of restraint.[5] In a separate costs judgment, the Judge held that costs should lie where they fell.[6]
[2]O’Neill v Malcouronne [2020] NZDC 2991.
[3]At [69]–[72].
[4]At [73]–[75].
[5]At [75].
[6]Malcouronne v O’Neill [2020] NZDC 2814 at [11].
Dissatisfied with that outcome, Mr Malcouronne appealed to the High Court. Clark J allowed the appeal.[7] She held there was an insufficient evidential basis for the Court to be satisfied that making an order against Mr Malcouronne was necessary to protect Mrs O’Neill from further harassment.[8] She set aside the restraining order against Mr Malcouronne and also remitted the issue of costs in the District Court back to that Court for reconsideration in light of her judgment.[9]
[7]High Court judgment, above n 1.
[8]At [119]–[128].
[9]At [129]–[130].
It is this decision of Clark J that Mrs O’Neill now wishes to appeal.
The application for leave to appeal was filed eight working days out of time.[10] That is a short period of delay. Further, there is an explanation for the delay involving miscommunications with Mrs O’Neill’s lawyers. In those circumstances, we consider an extension of time should be granted and we so order.
[10]Court of Appeal (Civil) Rules 2005,…

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.

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Details

Case: [2021] NZCA 556
Decision Date: 21 October 2021 at 10 am

CaseChat Overview and Summary

Mrs O'Neill sought leave to appeal the High Court decision of Clark J which set aside a restraining order against Mr Malcouronne. The Court of Appeal granted Mrs O'Neill an extension of time to file the application for leave to appeal and also granted her leave to file an amended application for leave to appeal. However, the Court declined Mrs O'Neill's application for leave to appeal. The Court found that the proposed grounds of appeal did not raise any issue of law or fact of general or public importance requiring the Court's guidance. All of the issues Mrs O'Neill wished to raise were entirely case-specific and the chances of the proposed appeal succeeding were low. The Court also found that the restraining order against Mr Malcouronne had already expired before the High Court delivered its judgment. The Court ordered that Mrs O'Neill must pay Mr Malcouronne costs for a standard application on a band A basis with usual disbursements.

Orders