Porter v T - [2021] NZHC 2886

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, Auckland
D 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…

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.

Continue reading Porter v T

Details

AGLC: Porter v T [2021] NZHC 2886
Case: [2021] NZHC 2886
Decision Date: 28 October 2021

CaseChat Overview and Summary

Ella Porter, the appellant, has been engaged in a pattern of harassment and stalking against T, the respondent, over several years. The dispute centres around a restraining order obtained by T under the Harassment Act 1997, initially imposed for two years and set to expire on 13 September 2021. Despite the order, Porter continued her harassing activities, leading to charges and a subsequent sentence of two years' intensive supervision. T sought to extend the restraining order by 20 years, which the District Court Judge granted for a period of 10 years, with leave reserved for further extension. Porter appealed this decision on two grounds: she claimed she was intellectually disabled and should not have been required to represent herself, and that any extension of the restraining order should have been for less than 10 years.

The court examined whether Porter was afforded a fair hearing, considering her intellectual disability and the procedural fairness of the hearing. The Judge's decision to decline an adjournment and proceed with the hearing without allowing Porter a proper opportunity to be heard was scrutinized. The court found that the Judge failed to provide Porter a fair hearing by not considering her intellectual disability, not giving her a chance to elaborate on her request for an adjournment, and predetermining the matter without allowing her to comment on the extension of the restraining order. Consequently, the appeal was allowed, and the matter was remitted to the District Court for rehearing. The restraining order was directed to remain in force pending further order of the District Court. The court refrained from ordering costs against T, as the procedural issues were not of his making.

Orders