Wakefield v O'Byrne
[2025] NZHC 1747
•30 June 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-632
[2025] NZHC 1747
UNDER the Harassment Act 1997 IN THE MATTER
of an appeal under section 34 of the Harassment Act 1997
BETWEEN
WENDY MAY WAKEFIELD
Appellant
AND
ROGER WILLIAM O’BYRNE
Respondent
Hearing: 23 June 2025 Appearances:
R E Walsh and J D Kaye for Appellant C Light for Respondent
Judgment:
30 June 2025
JUDGMENT OF ASSOCIATE JUDGE LESTER
(application for leave to appeal out of time)
WAKEFIELD v O’BYRNE [2025] NZHC 1747 [30 June 2025]
[1] Ms Wakefield, the appellant, seeks leave to appeal a 12 September 2023 decision of Judge Tuohy dismissing her application for a restraining order against Mr O’Byrne under the Harassment Act 1997.1
[2] Ms Wakefield has an existing appeal before this Court, which is only against the costs order issued against her made by Judge Tuohy on 19 October 2023.2 There is a cross-appeal against that costs order by Mr O’Byrne.
[3] Ms Wakefield and Mr O’Byrne own neighbouring properties in North Canterbury. Ms Wakefield has a small holding of around 12 hectares and has lived there since 2008. Mr O’Byrne has a farm of around 200 hectares and has lived and worked there for at least 37 years.
[4] In the seven years prior to 2022, Ms Wakefield and Mr O’Byrne have been embroiled in a bitter feud. In 2022, Ms Wakefield applied to the District Court for a restraining order.
[5] The following history of the matter is taken from Boldt J’s Minute in this appeal dated 20 November 2024.3
[4] In a reserved decision issued on 12 September 2023, Judge Tuohy dismissed Ms Wakefield’s application. While he did not accept that all the conduct she complained of amounted to harassment, or to specified acts for the purposes of the Act, he found that three incidents undoubtedly qualified. Nonetheless, the Judge dismissed the application because those incidents were more than a year apart. Section 3(1) of the Act provides that to qualify as harassment, the respondent must engage in a “pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months”.
[5] But Judge Tuohy’s decision contained an error. The Judge erroneously recorded that the third incident occurred in May 2023, when in fact it occurred in May 2022, only around three months after the second incident, meaning he thought that the application was jurisdictionally barred when it was not. The Judge concluded his decision by observing:
[84] … If the jurisdictional bar did not exist, it is very likely that I would have made a restraining order against [Mr O’Byrne] to prevent any further infringements of [Ms Wakefield’s] property rights.
1 Wakefield v O’Byrne [2023] NZDC 19269.
2 Wakefield v O’Byrne DC Christchurch CIV-2022-009-535, 19 October 2023.
3 Wakefield v O’Byrne HC Christchurch CIV-2023-409-632, 20 November 2024.
[6] In other words, the Judge’s error was probably the difference between the success and failure of Ms Wakefield’s application.
[7] The error initially went unnoticed. On 19 October 2023 the Judge awarded costs to Mr O’Byrne as the successful party, but reduced the award to 70 per cent. He observed:
[9] … It is also relevant that Ms Wakefield did establish a pattern of behaviour which included three specified acts on Mr O’Byrne’s part, one of which was a serious and physically intimidating breach of her rights. Mr O’Byrne’s success was the result of a jurisdictional time limit.
[8] When Ms Wakefield noticed the Judge’s mistake about the timing of the second and third specified acts, she did two things. First, she lodged an appeal to this Court. But that appeal did not seek to challenge the Judge’s substantive decision. Instead, she appealed against the costs award, contending Mr O’Byrne was not entitled to an award because he had succeeded only as the result of a judicial error. Second, she applied to the Judge to recall his 12 September 2023 decision.
[9] On 1 March 2024, the Judge acknowledged his error, but held he was unable to recall his decision because judgment had been sealed. He observed that Ms Wakefield’s only remedy, if she wished to challenge his decision, was to appeal to this Court.
(footnotes omitted)
[6] As noted by Boldt J, despite Judge Tuohy indicating Ms Wakefield should appeal his substantive decision, Ms Wakefield maintained her appeal against the costs decision alone.
[7] Boldt J recorded there was no dispute between the parties that Judge Tuohy had made a material error. Notwithstanding that common ground, Mr O’Byrne has cross-appealed the costs award in his favour. Based on the Judge Tuohy’s admittedly erroneous finding, he argues there was no basis to reduce the costs award.
[8] Mr Light, counsel for Mr O’Byrne, submitted before Boldt J that absent a challenge to the substantive judgment, it was not open to this Court to grant relief in respect of the costs award against Ms Wakefield.
[9] Boldt J doubted the correctness of Mr Light’s submission. His Honour, referring to r 20.19(4) and (6) of the High Court Rules 2016, said his preliminary view was that he was entitled to set aside Judge Tuohy’s costs decision despite there being no appeal against the substantive decision.
[10] His Honour’s approach is summarised by the following excerpt of his Minute dated 20 November 2024:
[16] Despite the absence of an appeal against the Judge’s substantive decision, I am not attracted to the suggestion I should consider the parties’ costs entitlements in reliance on a factual analysis which everyone, including the Judge himself, now acknowledges to have been erroneous. To do so would be to perpetuate and compound the Judge’s error, which is the antithesis of an appellate court’s function.
[11] Boldt J recorded in his Minute that the focus of Ms Wakefield’s appeal was as follows:
[13] Ms Walsh, on behalf of Ms Wakefield, invites me to set the Judge’s erroneous finding aside, but only for the purpose of the costs appeal. She advised that Ms Wakefield has decided she can live with the dismissal of her application, but is affronted at the prospect of having to pay Mr O’Byrne’s costs when she was successful on the merits.
[12] Accordingly, I had understood Ms Wakefield only sought leave to appeal the substantive decision to address the jurisdictional issue of whether her extant appeal against the costs judgment would be frustrated by not having appealed the substantive judgment.
[13] At the hearing on 23 June 2025, Ms Walsh explained her instructions were now that leave to appeal the substantive decision went beyond what could be called a jurisdictional precaution and that Ms Wakefield wanted the merits of the dismissal of her application to be revisited. This Court, being asked to confirm on appeal that the 12 September 2023 decision contained the accepted error, thereby removing any jurisdictional issue relating to the appeal against costs is one thing — it is quite another to re-open the issue of whether a restraining order should have been made against Mr O’Byrne in September 2023.
[14] I am satisfied leave to appeal should be granted, but on a condition that reflects Ms Wakefield’s intentions in respect of her appeal as recorded at [11] above. The condition is that while Ms Wakefield can seek an order correcting the accepted error in the 12 September 2023 judgment, she cannot request this Court remit her application back to the District Court for re-hearing, or request that this Court make a restraining order against Mr O’Byrne in the course of the appeal.
[15]The reasons for this limited leave are as follows.
[16] Mr O’Byrne has known that the costs award in his favour was disputed since the appeal was filed on 16 November 2023. Accordingly, granting limited leave will not alter the scope of the appeal beyond addressing what, in my view, is a technical jurisdictional point (the merit of which has already been commented on by Boldt J).
[17] Much of Mr Light’s submissions in opposition to the application for leave to appeal do not apply if the leave to appeal application is only made to address the jurisdictional issue relied on by Mr O’Byrne. Mr O’Byrne complains of delay, but when invited by the Court to agree to this application for leave and the substantive appeal being heard together, Mr Light declined to agree. That necessitated the adjournment of the appeal against the costs award and a separate hearing of the leave application.
[18] If leave is limited, the possibility that Mr O’Byrne would be prejudiced by the substantive issues being re-examined some years after the matters considered in Judge Tuohy’s decision is removed. The fact that the judgment contains an admitted error is enough to allow the Court to consider the costs issues which are at the heart of the original appeal against Judge Tuohy’s costs ruling. The substantive appeal could be granted to the extent of finding the 12 September 2023 judgment contained an error and go on to deal with costs.
[19] It is the fact Mr O’Byrne has taken a technical jurisdictional issue in support of his cross-appeal that prompted Ms Wakefield’s leave application to appeal the substantive judgment.
[20] Mr Light submits even though it is common ground that there was an error made by Judge Tuohy, it does not follow that the High Court will necessarily grant the appeal and make a restraining order. But again, this Court does not have to make a restraining order in order to address the real issue here, which is the costs award.
[21] In my view, the merits strongly favour the granting of leave. The passages from Judge Tuohy’s decision quoted by Boldt J, set out above, show that if
Judge Tuohy had not made the error in question, then in all likelihood Ms Wakefield would have obtained the order sought. That Judge Tuohy reduced the costs award in favour of Mr O’Byrne by 70 per cent, even though he was the successful party, speaks for itself as to how his Honour saw the merits.
[22] Ms Walsh, in her submissions in support of the extension, relies on r 1.19 of the High Court Rules. However, what is sought here by Ms Wakefield is an extension of time to bring the appeal. The principles governing such an application are discussed by the learned authors of McGechan on Procedure.4 The factors are:
(i)the length of delay and the reasons for it;
(ii)the parties’ conduct;
(iii)the extent of prejudice caused by the delay;
(iv)the prospective merits of the appeal; and
(v)whether the appeal raises public importance.
Length of delay and reasons for it
[23] Mr O’Byrne has known that he has been facing an appeal of the costs judgment since November 2023. There is clearly a delay in Ms Wakefield bringing the substantive appeal, but the limited leave granted means the appeal is only to address what I have characterised as a technical jurisdictional issue. Mr Light’s valid point that the delay is not expressly explained would be significant if leave to appeal was not limited in the way I have determined. Ms Wakefield made a deliberate decision only to appeal the costs decision and her change of mind is not explained. But if leave is limited as directed, the delay is explicable by the jurisdictional issue only coming to the fore during the hearing before Boldt J on 19 November 2024.
4 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR20.4.021], citing My Noodle Ltd v Queenstown Lakes District Council (2009) 19 PRNZ 518 (CA).
The parties’ conduct
[24] Mr Light is rightly critical of Ms Walsh’s failure to meet prior timetables. However, as noted, Mr O’Byrne did not agree to this leave application and the substantive appeal being dealt with together — necessitating a separate hearing. The original hearing of the leave application had to be vacated because of a failure by Ms Walsh to file her submissions on time. That is a matter that can be addressed in costs.
[25] That Mr O’Byrne considers he should be the beneficiary of an accepted judicial error — indeed, he seeks an increase in his costs award — somewhat evens the merits of this consideration.
Prejudice of delay
[26] As to the prejudice of delay, I do not consider there is any prejudice to Mr O’Byrne for the reasons I have already stated. If there is any prejudice, it is limited by the importance of addressing a technical and narrow jurisdictional point.
[27] The prejudice to Mr O’Byrne of a full appeal would be significant. The notice of appeal subject to this application sought that if the appeal was successful, the matter be remitted to the District Court. The hearing in that Court could not be heard until 2026 — four years or more after the events in issue. Mr O’Byrne, since the filing of the costs appeal, was entitled to assume that the prospect of a restraining order being made against him was at an end, at least in respect of those events.
Public importance
[28]There are no issues of public importance in this proceeding.
Conclusion
[29] Where a party has been the subject of a judicial error, the Court should be slow to let technical issues stand in the way of the error being addressed, particularly where there is no real prejudice to other parties in doing so. Again, the absence of prejudice
to Mr O’Byrne flows from the conditional nature of the leave granted. The appeal will be limited to costs, but with what was frankly a jurisdictional distraction, removed.
Costs
[30] While Ms Wakefield has been successful, she has been granted an indulgence and indeed, the leave sought is restricted from that which she sought at the hearing.
[31]Costs are to lie where they fall.
Associate Judge Lester
Solicitors:
Clark Boyce, Christchurch (for Appellant)
Shine Lawyers NZ Ltd, Christchurch (for Respondent)
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