Porter v T
[2021] NZHC 2886
•28 October 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-001328
[2021] NZHC 2886
UNDER the Harassment Act 1997 IN THE MATTER
of an appeal of extension of Harassment Order
BETWEEN
ELLA SOPHIE PORTER
Appellant
AND
T
Respondent
Hearing: 27 October 2021 Appearances:
R Ord for Appellant
D Mitchell for Respondent
Judgment:
28 October 2021
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 28 October 2021 at 2.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar
Date:…………………………
Solicitors/counsel:
R Ord, AucklandD Mitchell, Auckland
PORTER v T [2021] NZHC 2886 [28 October 2021]
Introduction
[1] The appellant, Ella Porter, has harassed and stalked the respondent, T,1 for some years. On 13 September 2019, T obtained a restraining order from Judge Harrison at the District Court in Auckland under s 16 of the Harassment Act 1997. The order incorporated the standard conditions set out in s 19 of the Act, requiring inter alia that Ms Porter not do or threaten to do any one of a number of specified acts against T or his family members. The order was imposed for a term of two years, expiring on 13 September 2021.
[2] Ms Porter however continued to stalk, harass, abuse, threaten and intimidate T and to defame his good character and reputation.
[3] The police became involved and, in April 2020, Ms Porter was charged with breaching the restraining order. In June 2020, she was further charged with threatening to damage property and, in March 2021, with threatening to kill.
[4] On 16 March 2021, Ms Porter, acting on her own behalf, filed an application seeking to discharge the restraining order. She filed an affidavit in support of that application. T opposed Ms Porter’s application and filed a notice of opposition. He also filed his own application, dated 28 April 2021, seeking to vary the restraining order by extending the term for a period of 20 years as from 13 September 2021. He filed an affidavit outlining Ms Porter’s continued harassment of him and his family.
[5] Ms Porter did not file a notice of opposition. Rather, she sent a letter to the District Court on 11 May 2021 advising that she wished to “remove” her application seeking to discharge the restraining order. She said that she did not want to put either T or herself through another Court hearing.
[6] On 26 March 2021, Ms Porter entered guilty pleas to the various charges laid against her and, on 28 May 2021, she appeared before Judge Rielly in the District Court at Nelson for sentence.2 The Judge imposed a sentence of two years’ intensive
1 T has name suppression pursuant to an order made by Judge Rielly in the District Court at Nelson:
Police v Porter [2021] NZDC 10630 at [20].
2 Police v Porter, above n 1.
supervision requiring that Ms Porter live at a specified address in Nelson, that she not leave that address without the approval of a probation officer, that she not make contact with T or any relative of his, that she comply with the restraining order, that she not enter named suburbs in Auckland, that she not visit various business premises where T might be working, that she not consume alcohol or drugs except as prescribed to her, that she attend an assessment for a stopping violence programme, that she attend an assessment for one on one counselling and that she be subject to judicial monitoring every three months for the duration of the sentence.
[7] T’s application to vary the restraining order was allocated a callover date of 24 June 2021.
[8] On 16 June 2021, Ms Porter sent an email to the Registry seeking that the callover be adjourned. She advised the Court that she was still trying to obtain legal representation and that she was getting a report from a clinical psychologist. She indicated that that might take up to five weeks.
[9] Ms Porter’s email was only made available to T’s counsel at 4.36pm on 21 June 2021. T, through his counsel, promptly filed a memorandum opposing the application for an adjournment. He indicated that he would be seeking an order granting his application for a variation because no opposition had been filed. In the alternative, he advised that he would be seeking a hearing at the first available date, together with timetable directions.
[10] Ms Porter’s request for an adjournment was referred to Judge Harrison. On 22 June 2021, he issued a minute refusing to adjourn the callover but granting Ms Porter’s application to withdraw the application to discharge the restraining order. He reserved costs and stated: “The callover will make directions for the hearing of the application to extend the period of the restraining order”. The Registry sent these directions to Ms Porter and counsel for T. The email also advised that appearances were expected at the callover. Ms Porter then requested that she should be able to attend the callover remotely. Judge Harrison issued a further minute, recording that, as Ms Porter resided in Christchurch, she could appear by video link or phone if that could be arranged. The Registry advised Ms Porter of this on the afternoon of Tuesday 22 June 2021.
[11] T’s application to vary the restraining order was called before Judge Harrison in the District Court at Waitakere on 24 June 2021. Ms Porter was in attendance. Following the hearing, the Judge issued a minute dated 1 July 2021, recording that:
(a)Ms Porter’s application to discharge the restraining order had been withdrawn;
(b)Ms Porter’s application for an adjournment had been declined; and
(c)T’s application to extend the term of the restraining order was granted. The order was extended for a period of 10 years from 13 September 2021, with leave reserved to T to seek a further extension if necessary.
These rulings were recorded in formal advice from the Registry dated 1 July 2021 and an order incorporating the rulings was sealed on the same day.
[12] Ms Porter appeals the Judge’s rulings. The appeal was advanced on two grounds – first, that Ms Porter has an intellectual disability but was nevertheless required to represent herself in the District Court, and secondly, that any extension of the restraining order should have been for less than 10 years.
The hearing in the District Court
[13] When the matter was called, Ms Porter was not in Court. Mr Mitchell, appearing for T, advised the Judge that she was outside the courtroom. He also advised the Judge that “she’s a bit fragile”. Ms Porter was then called into Court.
[14] The Judge started by observing that he had before him an application to discharge the restraining order and that Ms Porter wanted to withdraw that application. Ms Porter replied “yep”. The Judge then said as follows:
Yes, very well. Yes, I’ve noted that is withdrawn. Secondly, there’s an application, I think, filed on your behalf, Ms Porter, for this matter to be adjourned. Well that application is declined. Apparently, a solicitor has been engaged but there’s no record on the file of the involvement of the solicitor and he seeks an adjournment because he will be on leave for about four months. And I’m not prepared to adjourn the matter at all and certainly not for such a period of time. So that application is declined.
[15]Next the Judge went on to comment as follows:
Now, there’s your application Mr Mitchell to extend the duration of this order.
The Judge immediately commented that this “appears to be justified. It’s a question of how long”. He then had a discussion with Mr Mitchell. Mr Mitchell advised him that Ms Porter had been convicted of breaching the order. The Judge then said:
Alright, well, in view of that, is it appropriate to extend this order for 20 years? It’s a long time. What I had in mind was five years, for a further five. …
Mr Mitchell then made further submissions arguing that 20 years would be more appropriate in the circumstances. The Judge then commented as follows:
Alright, well I understand that. I am unaware of any case that [an] order has been [imposed] (sic) for that length of time. Perhaps we could compromise, Mr Mitchell, we make it 10 years.
Mr Mitchell then asked the Judge – “are you able to make that order today …”. The Judge replied “yes”. Mr Mitchell, after obtaining instructions from his client, indicated that a 10 year extension would be acceptable. The Judge then said:
It’s a significant period but in all the circumstances here, it seems appropriate Ms Porter doesn’t seem to pay any regard to Court orders so. All right, thank you, Mr Mitchell. Ms Porter do you have anything you wish to say about the extension of the restraining order? No? All right.
Mr Mitchell then asked whether leave could be reserved to T to come back to the Court to apply for a further extension at the end of the 10 year period. The Judge responded “yes” and went on to ask when the current order expired. He then made his formal orders.
The appeal
[16] The appeal is brought pursuant to s 34 of the Harassment Act. The High Court Rules 2016 and ss 126 to 128 of the District Courts Act 2016 apply as if the appeal were an appeal under s 124 of the District Courts Act. Pursuant to r 20.18 and s 127 of the District Courts Act, such appeals are by way of rehearing.
[17] The approach to appeals by way of rehearing is well settled. It was encapsulated by the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar,3 which held that an appellate Court is required to come to its own view on the merits of the case. Elias CJ noted as follows:
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
(citations omitted)
[18] If the appeal succeeds, pursuant to r 20.19 and s 128 of the District Courts Act, this Court, as the appellate Court, can:
(a)make any decision it thinks should have been made;
(b)direct the District Court—
(i)to rehear the proceeding; or
(ii)to consider or determine, whether for the first time or again, any matters this Court directs; or
(iii)to enter judgment for a specified party to the proceeding; or
(c)make any further or other orders it thinks fit.
Submissions
[19] Mr Ord, appearing for Ms Porter, noted that Ms Porter’s request for an adjournment was declined and that as a result she was unrepresented. He noted that she has limited intellectual ability and that it is clear from the transcript that she did not advance any argument against the extension of the restraining order sought by T.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
He referred to various health assessments carried out in relation to Ms Porter and submitted that it was arguable that she was unable to conduct her own case. He submitted that the Judge erred by proceeding and that he breached the audi alteram partem rule. He also went on to argue that the substantive decision – a 10 year extension – was arbitrary, noting that the Judge gave no reasons for an extension of that length and submitting that rather the Judge reached a compromise with T’s counsel. He accepted that, given Ms Porter’s obsessive behaviour, a restraining order was both justified and understandable, but argued that Ms Porter is now gaining insight into her behaviour, and that there were reasonable grounds to limit any extension to a lesser period, perhaps two to three years. He submitted that the injustice which occurred could be righted either by sending the matter back to the District Court or by reducing the term of the restraining order.
[20] Mr Mitchell, for T, argued that the appeal proceeded by way of a rehearing and that the rehearing cured any procedural defects in the Court below. He referred to T’s unchallenged evidence that there had been continued and serious breaches of the restraining order and put it to me that T reasonably feared for his and his family’s safety. He referred to the particular facts of the case and argued that an extension of the restraining order for a significant period was required, given that Ms Porter has persistently disregarded the order in the past. He referred to Mitchell v Police,4 and suggested that the restraining order could have been imposed for an indefinite period. He submitted that the 10 year extension granted by the Judge was justified, and that it struck the appropriate balance between Ms Porter’s rights and the rights of T and his family to be protected from her.
Analysis
[21] I start by observing that there was nothing before the Judge demonstrating that Ms Porter has a reduced intellectual capacity. He should perhaps have apprehended that this might be an issue. In her application for an adjournment, Ms Porter advised that she was seeking a psychological report. Mr Mitchell warned the Judge that Ms Porter was “a bit fragile”. It is unfortunate that the Judge did not pick up on these cues and make further inquiry.
4 Mitchell v Police [2019] NZHC 2017.
[22] It is clear from various reports from clinical psychologists that have been obtained for other purposes that Ms Porter has significant cognitive difficulties. Relevantly, in 12 October 2020, a consultant psychiatrist reported that Ms Porter was unfit to stand trial and that she was likely to have difficulty instructing counsel. In December 2020, another clinical psychologist expressed the opinion that Ms Porter had the cognitive capacity “to meet a low threshold for fitness to stand trial” but that “the interplay between her autism spectrum disorder, low intelligence and psychopathology [might] have a negative impact on her decisional competence”.
[23] Had the Judge appreciated this, it is inevitable that an adjournment would have been granted to enable Ms Porter to obtain legal representation.
[24] Notwithstanding that none of these reports was before the Judge and that he was unaware of her limited ability to represent herself, in my view, he nevertheless failed to afford Ms Porter a fair hearing.
[25] First, the Judge declined Ms Porter’s application for an adjournment without giving her the opportunity to elaborate on why she wanted or needed an adjournment. This decision was initially made on the papers with very limited information. The Judge did not convene a telephone conference to explore the matter nor did he delay making the decision until he had heard from Ms Porter and considered her submissions. Rather, when the matter was called he repeated his decision, again without giving her the opportunity to comment. Moreover, he gave no reasons for declining her request and it seems from the transcript relied on matters which, insofar as I am aware, were not before him.
[26] Secondly, the Judge expressed the view at the outset that T’s application to extend the duration of the restraining order was justified and that it was simply a question of how long. He did not hear from Ms Porter on whether or not an extension was justified. He rather ventured that what he initially had in mind was five years. He then suggested a compromise of 10 years to T’s counsel. The Judge did belatedly ask Ms Porter if she had anything to say about the extension of the restraining order but, by this stage, he had made it clear what his decision was going to be. The Judge
appears to have pre-determined the matter without giving Ms Porter a proper opportunity to be heard.
[27] Thirdly, what occurred at the hearing on 24 June has to be seen in context. The matter was set down for a callover, not a substantive hearing. The minute the Judge issued on 22 June 2021 discussed in [10] above recorded that, at the callover, he would make directions for the hearing of the application to extend the duration of the restraining order. Ms Porter could not have been expected to appreciate that the Judge might hear the matter and make substantive orders on the day. Nor it seems did T’s counsel. He expressly asked the Judge whether he was able to make the order that day, to which the Judge unequivocally, and without consulting Ms Porter, replied “yes”.
[28] The Judge did not, in my judgment, afford Ms Porter a fair hearing. Apart from saying “yep” once (when she was asked to confirm whether she wished to withdraw her application to discharge the restraining order), Ms Porter did not say anything at all in the course of the hearing. She was offered one other opportunity to comment, but only after the Judge had made his views clear.
[29]Accordingly, the appeal is allowed.
[30] I have considered whether it is appropriate for me to deal with the duration of any extension, or whether the matter should be remitted to the District Court.
[31]I have decided that it should be remitted to the District Court because:
(a)apart from a short affidavit filed in support of the appeal, Ms Porter’s account of events and how an extended order might affect her is unknown;
(b)the Judge’s rulings are not supported by a reasoned judgment. He made no reference nor undertook any analysis of such evidence as was available from T. The decisions are not supported by any reasoning. The decision to extend the restraining order appears to have been
simply a compromise between the position the Judge initially thought was appropriate – a five year extension – and the 20 year extension that T had applied for. There is no discussion of relevant principles or issues and no consideration of the impact on Ms Porter that any lengthy extension might have; and
(c)if the matter is remitted to the District Court to consider afresh, Ms Porter’s right of appeal is preserved and she will not be left with an appeal only if leave if granted.
[32] In my judgment, the only fair result is to remit the matter to the District Court for rehearing. To protect T’s position in the interim, it is appropriate to direct that the restraining order is to remain in force pending the further order of the District Court. I so order.
[33] This leaves outstanding the issue of costs. Mr Ord did not seek costs on behalf of his client. That was clearly appropriate. Even had he done so, I would not have ordered costs against T. What occurred was not of his making and it should not result in a costs order against him.
Wylie J
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