Toresen v Murphy - [2016] NZHC 1549

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003154 [2016] NZHC 1549

UNDER the Harrassment Act 1997

BETWEEN

DANIEL JAMES TORESEN First Appellant

PAUL JOHN DALE Second Appellant

AND

JOHN PATRICK MURPHY Respondent

Hearing: 28 June 2016

Appearances:

E Telle for the Appellants

J P Murphy on own behalf (assisted by McKenzie Friend, Mr Palmer)

Judgment:

8 July 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 8 July 2016 at 3 pm
Pursuant to Rule 11.5 of the High Court Rules

----------------------------------------------------- Registrar/Deputy Registrar

Solicitors: Neilsons Lawyers, Onehunga, Auckland
Copy To: J P Murphy, Greenlane, Auckland

TORESEN v MURPHY [2016] NZHC 1549 [8 July 2016]

[1] The appellants have appealed against decisions of the District Court on an application they made for a restraining order under the Harrassment Act 1997 (“the Act”) against the respondent. An order was made for a restraining order for
12 months.1 The appellants contend that there was error in the Judge’s refusing to

make an indefinite order; that is, an order pending further order of the Court.

[2] The appellants, on a subsequent decision relating to costs, contend that the

Judge was in error in not awarding indemnity costs.

[3] When this matter came before me in the appeals case management list, Mr Murphy said that he would consent to a variation of the order by making it an indefinite order, subject to agreement of the appellants to accept a specified sum for costs. For the appellants, Mr Telle, indicated that it was likely that the appellants would agree to the proposal. It is unnecessary to go into the detail of the discussions because I subsequently received a memorandum recording the precise terms. This has been signed by Mr Telle for the appellants, Mr Murphy for himself, and by his McKenzie friend, Mr Palmer. I note that Mr Palmer actively and constructively assisted Mr Murphy in the course of the hearing before me.

[4] The proposed variation, by consent, as recorded in the memorandum, is as follows:

An order extending the restraining order the subject of the appeal for an indefinite period pending further order of the Court and pursuant to ss 21 to
23 of the Harrassment Act 1997.

[5] The memorandum also records that, upon the variation order being made, the parties consent to the following orders:

(a) An order that the appellants’ appeal is at an end on the basis that there is no issue as to costs.

(b) An order that the respondent’s application to seek leave to file an
appeal out of time is withdrawn and on the basis that there is no issue as to costs.

1 Toresen v Murphy [2015] NZDC 2447.

(c) An order that the application to stay proceedings (under High Court number CIV-2016-404-000364) is withdrawn on the basis that there is no issue as to costs.

[6] On an appeal of this nature the appellate court cannot quash the decision under appeal simply because the parties consent. It is for…

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 Toresen v Murphy

Details

AGLC: Toresen v Murphy [2016] NZHC 1549
Case: [2016] NZHC 1549
Decision Date: 8 July 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Daniel James Toressen and Paul John Dale, the appellants, appealed against decisions of the District Court in relation to a restraining order made under the Harassment Act 1997 against John Patrick Murphy, the respondent. The appellants contested the District Court's decision to impose a restraining order for 12 months rather than indefinitely. They also appealed the District Court's refusal to award them indemnity costs. The High Court was required to determine whether it had jurisdiction to vary the restraining order by consent and, if so, whether it was just to do so in the circumstances. The Court also needed to decide whether it was appropriate to make an order regarding the indemnity costs.

The High Court found that it did have the jurisdiction to vary the restraining order by consent, as per Rule 20.19(c) of the High Court Rules and section 76 of the District Courts Act 1947. The Court was satisfied that it was just to bring the proceedings to an end expeditiously, without further cost to the parties, and with the clear agreement of both parties. The Court was not persuaded to quash the decision under appeal simply because the parties consented. Instead, it exercised its powers to grant a variation of the order, as it was a decision made by the Court, not based on an error by the District Court Judge. The Court also noted that the proceeding was to be remitted back to the District Court for the purpose of sealing and issuing the orders.

Orders