LAWTON v SEWELL [2023] NZHC 2929

LAWTON v SEWELL [2023] NZHC 2929 [19 October 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2021-441-95[2023] NZHC 2929IN THE MATTER of Section 34 of the Harassment Act 1997BETWEEN JULIAN EDWARD LAWTONAppellantAND DENISE CHERIDAH SEWELLRespondentHearing: 13 October 2023 (via VMR)Appearances: P N Ross for AppellantL J Blomfield for RespondentJudgment: 19 October 2023JUDGMENT OF McQUEEN J[1] On 5 November 2021, Judge Kelly in the Napier District Court declinedMr Lawton's application for a restraining order against Ms Sewell.1 By way of a noticeof appeal dated 30 November 2021, Mr Lawton appeals that decision.2[2] The matter currently before the Court is an interlocutory application byMr Lawton dated 12 June 2023 to adduce further evidence on appeal. Mr Lawtonseeks to adduce evidence relating to events that have taken place following the DistrictCourt decision, saying that it shows that representations made by Ms Sewell to theDistrict Court have not been fulfilled and that this is relevant to his appeal. He says1 Lawton v Sewell [2021] NZDC 21701.2 An amended notice of appeal dated 29 May 2023 was subsequently filed. I note that this appealhas been slow to progress, including due to periods where Mr Lawton or his counsel has not mettimetable orders.that the evidence is cogent, material, and could not have been put before the DistrictCourt.[3] Mr Lawton's application is opposed by Ms Sewell, who says that the furtherevidence does not assist Mr Lawton in relation to any of the reasons given by theDistrict Court for declining his application for a restraining order. She notes also thatto the extent that the evidence relates to matters which occurred after October 2022,that evidence is disputed, and that therefore if leave is granted to Mr Lawton, she mustalso have the opportunity to respond, and that cross-examination will likely berequired. She says therefore that to admit the further evidence will result in substantialrelitigation on appeal.[4] For the reasons below, I consider that Mr Lawton's application should bedismissed.BackgroundFactual background[5] It is not necessary to recount the full background of the present proceeding atthe current juncture. It will suffice instead to say, drawing on the District Courtjudgment, that Mr Lawton and Ms Sewell are neighbours in the sense that they live inclose proximity to each other. Mr Lawton owns an east facing property onChaucer Road North in Napier. Mr Lawton's immediate neighbour to the north isMr Simpson. Ms Sewell owns a property abutting the rear of Mr Simpson's property.Thus, a part of Mr Simpson's property separates Mr Lawton's property fromMs Sewell's property. Mr Lawton has access to the rear of his section by virtue of aright of way over part of Ms Sewell's property and over the rear of Mr Simpson'sproperty. Ms Sewell's property is the burdened land (or servient tenement), andMr Lawton's property is the benefitted land (or dominant tenement).[6] In 2020, a dispute arose between Mr Lawton and Mr Simpson on the one hand,and Ms Sewell on the other, when Mr Simpson converted a shed adjacent to the rightof way into accommodation. This involved the right of way being used by varioustradespeople. The dispute escalated. This included Mr Lawton and Mr Simpsonseeking to 'trespass' Ms Sewell from the right of way because of Ms Sewell's actions,said to block passage along the right of way or otherwise inhibit Mr Lawton and/orMr Simpson's ability to use the right of way. This involved the use of signs on theright of way, which indicated that Ms Sewell was concerned about the use of the rightof way, including by larger vehicles used by tradespeople, given children were oftenpresent in the area. This also involved the placement of cars, a trampoline, teddy bears,and stones upon the right of way. An event occurred on 20 December 2020 where,during an altercation with Mr Lawton and his partner, Ms Sewell threw eggs atMr Lawton's car.[7] By the time Mr Lawton's application for the restraining order was heard in theDistrict Court, the dispute had all but ceased, with Mr Lawton accepting that thesituation between him and Ms Sewell had "been good for nine months sinceJanuary 2021".3 Mr Lawton nevertheless pursued the application for a restrainingorder, to pre-emptively guard against deterioration of the situation in the future.The District Court decision[8] The District Court Judge first set out the legal test for a restraining order, theevidence provided by the parties, and also their submissions.4 Section 9(1) of theHarassment Act 1997 (the Act) provides that a person who is being or has beenharassed by another person may apply to the court for a restraining order in respect ofthat other person. 'Harassment' is defined in s 3 of the Act as follows:a person harasses another person if he or she engages in a pattern ofbehaviour that is directed against that other person, being a pattern ofbehaviour that includes doing any specified act to the other person on at least2 separate occasions within a period of 12 months.[9] What constitutes a 'specified act' is set out in ss 4(1) and 4(2), which providethat a specified act is any of the following:4 Meaning of specified act(1) For the purposes of this Act, a specified act, in relation to a person,means any of the following acts:3 Above n 1, at [29], [37] and [97].4 The District Court Judge heard oral evidence from Mr Lawton, Mr Simpson, Ms Sewell, Ms KatieSubritzky (Mr Lawton's partner) and Ms Tricia Fitzgerald (Mr Lawton's tenant).(a) watching, loitering near, or preventing or hindering access toor from, that person's place of residence, business,employment, or any other place that the person frequents forany purpose:(b) following, stopping, or accosting that person:(c) entering, or interfering with, property in that person'spossession:(d) making contact with that person (whether by telephone,correspondence, electronic communication, or in any otherway):(e) giving offensive material to that person or leaving it where itwill be found by, given to, or brought to the attention of thatperson:(f) giving offensive material to a person by placing the materialin any electronic media where it is likely that it will be seenby, or brought to the attention of, that person:(g) acting in any other way—(i) that causes that person (person A) to fear for his or hersafety; and(ii) that would cause a reasonable person in person A'sparticular circumstances to fear for his or her safety.(2) To avoid any doubt, subsection (1)(f) includes the situation where—(a) a person acts in a particular way; and(b) the act is done in relation to a person (person B) incircumstances in which the act is to be regarded, inaccordance with section 5(b), as done to another person(person A); and(c) acting in that way—(i) causes person A to fear for his or her safety; and(ii) would cause a reasonable person in person A'sparticular circumstances to fear for his or her safety,—(iii) whether or not acting in that way causes or is likely tocause person B to fear for person B's safety.(3) Subsection (2) does not limit the generality of subsection (1)(f).[10] If the court is satisfied that there has been harassment, the court's jurisdictionis engaged. Then the court must assess whether the factors contained in ss 16(1)(b)and 16(1)(c) are established, being that:5(a) the behaviour in respect of which the application is made causes theapplicant distress or threatens to cause the applicant distress; and(b) that behaviour would cause distress, or would threaten to cause distress,to a reasonable person in the applicant's particular circumstances; and(c) in all the circumstances, the degree of distress caused or threatened bythat behaviour justifies the making of an order; and(d) the making of an order is necessary to protect the applicant from furtherharassment.[11] The Judge considered the evidence and submissions of the parties. His Honourconcluded that:(a) the incident involving the throwing of eggs on 20 December 2020constituted a specified act, being interference with Mr Lawton'sproperty by Ms Sewell, but this incident would not cause a reasonableperson to fear for their safety;6(b) while the actions of Ms Sewell in placing objects on the right of waywas undoubtedly annoying to Mr Lawton, on the balance ofprobabilities, Mr Lawton was not prevented or hindered in accessinghis place of residence in the terms of s 4(1)(a) of the Act;5 See Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [32].Section 16 of the Act is also subject to s 17, which provides: "A specified act cannot be relied onto establish harassment for the purposes of section 16(1)(a) if the respondent proves that thespecified act was done for a lawful purpose." The Judge also considered that the level of distressmust merit the court interfering with Ms Sewell's rights of free movement and speech: NR vDistrict Court at Auckland and MR [2016] NZCA 429 at [35].6 Although not expressly recorded by the Judge, this finding appears to relate to s 4(1)(c) of the Act.(c) the signs placed upon the right of way did not meet the threshold ofbeing offensive in the terms of s (4)(1)(e) of the Act, as they containedno insult;(d) the egg throwing incident was the only incident which was a qualifyingspecified act;(e) in any event, the criteria in ss 16(1)(b) and 16(1)(c) of the Act had notbeen met—as none of the behaviour could be considered to bedistressing, or threatening to cause distress, and any degree of distresswas so low that it did not justify interfering with Ms Sewell's freedomof movement and speech on her land; and(f) a restraining order was not necessary to protect Mr Lawton in thefuture—as nothing had occurred for a period of nine months, and therewas no indication in the evidence that the dispute would start again.[12] Accordingly, the Judge dismissed Mr Lawton's application for a restrainingorder. The Judge noted that if a restraining order was made it would have been likelyto aggravate rather that resolve the situation. His Honour encouraged the parties toclarify their understandings of their rights and obligations in relation to the right ofway, and if necessary, to renew their efforts at reaching an agreement about the use ofthe right of way.[13] For present purposes, it is also relevant to note the Judge's statement thatalthough he was not required to determine whether either party had breached the termsof the easement creating the right of way:7.I observe that while Ms Sewell appears to now better understand herobligations in relation to the right of way, Mr Lawton appears less clear.References to 'my right of way' and the 'rights of the holder of the dominanttenement being greater than those of the servient tenement' betray a poorunderstanding of how the rights and obligations associated with rights of wayoperate, as does the issuing of a trespass notice to Ms Sewell in respect of herland which is subject to the right of way. Use of the only terminology such as'dominant' and 'servient' has likely contributed to this. In my experience,people sometimes interpret these terms to mean more than they do.7 Above n 1, at [123].The application to adduce further evidence on appeal[14] Mr Lawton applies to adduce further evidence on appeal. The evidence hewishes to adduce is not specifically identified in his notice of application, but it isapparent that it is evidence relating to further events from October 2022 onwards.8[15] The grounds relied upon by Mr Lawton in his application to adduce furtherevidence on appeal are:(a) The decision under appeal relied upon representations made to theCourt that past behaviour was made in ignorance of the legal rights ofthe parties so that future behaviour would be different.(b) Events subsequent to the end of the various Court proceedingsdemonstrate that this representation, relied upon by the District Court,has not in practice been met.(c) The necessity limb of the test for making a restraining order isengaged by the post-judgment conduct. To this end, the evidence iscogent, material, and could not have been adduced in the originalproceedings as it came into existence after those proceedings hadconcluded.(d) As further set out in the annexed affidavit of Julian Edward Lawton,sworn in support of this application.[16] In his affidavit in support of the present application, Mr Lawton deposes thatMs Sewell, motivated by malice, has reverted to ignoring his and Mr Simpson's rightsof access, and "has committed further specified acts". Mr Lawton says that thishappened after both the District Court hearing in relation to his application and afurther hearing in relation to an application for a restraining order against Ms Sewellmade by Mr Simpson. Mr Lawton takes issue with the District Court's findings (underappeal) that the parties did not understand the nature of the rights concerned, and alsothat a restraining order was not necessary, as Ms Sewell was then aware of the natureof the rights concerned.[17] Mr Lawton says that Ms Sewell gave an undertaking that she would behavedifferently in the future, and that this was relied on by the District Court. I note thatthe affidavit addresses other matters, the relevance of which is questionable, including8 Described in [23] of the affidavit of Mr Lawton filed in support of the application to adduce furtherevidence on appeal, dated 12 June 2023.a discussion of Mr Lawton's intended claim in tort for damage to his car as a result ofthe egg throwing incident.Ms Sewell's opposition[18] Ms Sewell opposes Mr Lawton's application on the following grounds:3.1 The appellant's application for a restraining order was declined forseveral reasons including, importantly, that there had not been twospecified acts within a 12 month period. Proof of two such acts isrequired to engage the Court's jurisdiction to make a restraining order.3.2 The further evidence that the appellant wishes to adduce does notassist on that matter or any of the other reasons (apart from necessity)given by the Judge for declining Mr Lawton's application for arestraining order.3.3 The further evidence which relates to a timeline of events said to haveoccurred after October 2022 is disputed by the respondent.3.4 If leave is granted Ms Sewell must have the opportunity to respond tothat further evidence.3.5 Cross-examination of the parties on that further evidence will berequired.3.6 The further evidence will likely trigger a substantial re-litigation ofthe substantive case before the High Court.[19] Ms Sewell has also filed an affidavit in support of her opposition toMr Lawton's application to adduce further evidence. She says she did not give anundertaking to the District Court as Mr Lawton asserts. She accepts that betweenMr Lawton making his application for a restraining order and prior to the hearing, shehad offered an undertaking to Mr Lawton about mutual expectations for use of theright of way and sought to establish a process for communication, however they wereunable to reach an agreement.[20] As to the proposed additional evidence, Ms Sewell does not accept thatMr Lawton's description of the events that allegedly occurred from October 2022onwards is accurate. She says that if leave is granted allowing Mr Lawton to give thatevidence, then she would need to be given an opportunity to respond. Ms Sewellaccepts the description of one event as it is summarised in another District Courtjudgment, this one relating to Mr Simpson's application for a restraining order.9Essentially, she does not accept that vehicles have been parked in a manner whichprevents or hinders Mr Lawton's access to his property, or which is contrary to anyundertaking given to the Court, because she gave no undertaking.Relevant law[21] The Act provides that a party may appeal a decision of the District Court torefuse to make a restraining order.10 The High Court Rules 2016 and ss 126 to 130 ofthe District Court Act 2016, with all necessary modifications, apply to such an appeal,which is a general appeal.11 The applicable rule as to further evidence on appeal istherefore r 20.16 of the High Court Rules, which provides:20.16 Further evidence(1) Without leave, a party to an appeal may adduce further evidence on aquestion of fact if the evidence is necessary to determine aninterlocutory application that relates to the appeal.(2) In all other cases, a party to an appeal may adduce further evidenceonly with the leave of the court.(3) The court may grant leave only if there are special reasons for hearingthe evidence. An example of a special reason is that the evidencerelates to matters that have arisen after the date of the decisionappealed against and that are or may be relevant to the determinationof the appeal.(4) Further evidence under this rule must be given by affidavit, unless thecourt otherwise directs.[22] In short, where leave is required, it will only be granted if there are specialreasons. The evidence must be cogent, likely to be material, and must not have beenable to be reasonably been discovered at an earlier stage. An appeal should not be9 Simpson and Edmonds v Sewell [2022] NZDC 8650.10 Harassment Act 1997, s 34.11 Section 34(2).turned into a new trial.12 The relevant principles governing the receipt of furtherevidence, as agreed by counsel, have been described by Wylie J in B v A as follows:13(a) The Court can receive further evidence if it thinks that the interests ofjustice require it to do so.(b) It is wrong to allow an appellant to bolster his or her case withadditional evidence that was available at the lower Court hearing, butnot adduced because of the particular view of the case being taken atthe time.(c) Admitting further evidence on appeal is exceptional rather than routine.A change of heart about how a case should have been run will notsuffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will countagainst admitting the further evidence.(d) Generally, the further evidence must be fresh, credible and cogent.(e) Evidence will not be regarded as fresh if it could, with reasonablediligence, have been produced at the trial.(f) The absence of freshness is not an absolute disqualification. When thefurther evidence is not fresh, it will not generally be admitted unless thecircumstances are exceptional and the grounds compelling. In addition,the further evidence needs to pass the tests of credibility and cogency.(g) The interests of justice require the parties to put their best case forwardat trial, in order to avoid wasting the Court's limited time and resources.12 Telecom Corporation of New Zealand Ltd v Commerce Commission [1991] 2 NZLR 557, [1991]NZAR 337 at [6].13 B v A [2020] NZHC 580, (2020) 26 PRNZ 58 at [25]; citing Hodgson v Hodgson [2015] NZCA404, [2015] NZFLR 979 at [39]–[44]; Nation v Nation [2005] 3 NZLR 46 (CA); Telecom Corp ofNZ Ltd v Commerce Commission [1991] 2 NZLR 557 (CA); Comalco NZ Ltd v TVNZ Ltd (1996)10 PRNZ 573; and Complaints Committee No 1 of the Auckland District Law Society v P (2007)18 PRNZ 760.A high value is placed on finality when the parties have been affordedthe opportunity and failed to take it.(h) The standard to be met is "rightly high".Positions of the partiesMr Lawton[23] Mr Ross, counsel for Mr Lawton, submits that the evidence which Mr Lawtonseeks to adduce is directed at the issue of whether Ms Sewell has complied withrepresentations made to the District Court that her behaviour would change. Mr Rosshighlighted that the decision whether to make a restraining order was an evaluativeone, and said:If it appears to the District Court that a person in the position of the respondentcarried out acts that might be specified acts or form part of a pattern ofharassment, but that person did not ignorant of his or her legal rights, buthaving been properly informed of them has changed his or her ways, that couldreasonably count against the exercise of the discretion to make an order.In that sense, evidence that despite having asserted that there would not befuture infringing behaviour the person had reverted to the former behaviourwould clearly be material to the outcome of the appeal as it would mean thatthe Court made the decision not to grant a restraining order on a false premise.That would only be discernible if evidence that the respondent had conductedin the pattern of behaviour after the court hearing [was] introduced on appeal.(Emphasis in original).[24] Mr Ross submits that the evidence is fresh and cogent, credible, and could nothave been placed before the District Court. He highlights that Mr Lawton was notrepresented by counsel in the District Court. Mr Ross also compares applications forrestraining orders pursuant to the Act to applications for protection orders under theFamily Violence Act 2018. He submits therefore that although it is technically civillitigation it has a unique context, involving the assessment of an evolving risk, and theassessment of potential future conduct. He submits that in this context it would beartificial to ignore matters that have occurred after the District Court hearing.Ms Sewell[25] Ms Blomfield, counsel for Ms Sewell, submits that it is important tocontextualise the evidence sought to be admitted within the inquiry this Court will berequired to undertake in the substantive appeal. She says that the evidence sought tobe admitted is only relevant to the final step in the inquiry, namely, whether the courtconsiders it necessary to make a restraining order. She says that it does not assistMr Lawton to establish that two specified acts have occurred within a 12 month periodor that the District Court was wrong as to whether its jurisdiction to make a restrainingorder was engaged. She says therefore that the admission of the evidence will not assistMr Lawton, nor will it assist the Court to determine the appeal.[26] With reference to the factors identified by Wylie J in B v A, Ms Blomfieldsubmits:(a) it is not in the interest of justice to receive the further evidence;(b) the evidence is disputed and is likely to require cross-examination, inthat while it is fresh evidence, its credibility must be tested;(c) the evidence is unlikely to alter the outcome of appeal, as the DistrictCourt did not conclude that it has jurisdiction to make the order sought,and therefore even if leave is granted, Mr Lawton's appeal must fail;and(d) in the circumstances, the Court should not grant leave for evidence tobe adduced which ultimately cannot influence the outcome of theappeal.[27] Ms Blomfield also submits that Mr Lawton has misunderstood the nature ofthe steps that must be established for a restraining order to be made. She says that thesteps in the test are cumulative, meaning that they must all be established before thecourt can exercise its discretion to make a restraining order. Referring to Mr Lawton'samended notice of appeal, Ms Blomfield submits that Mr Lawton is not challengingthe District Court's findings that the requirements contained in s 16(1)(b) of the Actwere not satisfied. On that basis, Ms Blomfield submits that the admission of theevidence could not affect the outcome of the appeal, and that the application shouldtherefore be dismissed.Analysis[28] I first address the question of whether Ms Sewell provided an undertakingbefore the District Court to change her behaviour following gaining a betterunderstanding of the parties' relevant rights, as this underpins Mr Lawton's applicationto adduce further evidence. As noted above, Ms Sewell has said in her affidavit thatshe made no such undertaking. It is necessary then to consider carefully what is saidabout this in the District Court judgment.[29] As described above, the District Court Judge stated:14I observe that while Ms Sewell appears to now better understand herobligations in relation to the right of way, Mr Lawton appears less clear.References to 'my right of way' and the 'rights of the holder of the dominanttenement being greater than those of the servient tenement' betray a poorunderstanding of how the rights and obligations associated with rights of wayoperate, as does the issuing of a trespass notice to Ms Sewell in respect of herland which is subject to the right of way. Use of the only terminology such as'dominant' and 'servient' has likely contributed to this. In my experience,people sometimes interpret these terms to mean more than they do.[30] The District Court Judge also referred to a draft or proposed undertakingbetween Ms Sewell and Mr Lawton in relation to the use of the right of way.15 Beforethe District Court, that undertaking had not been entered into, as "the sole remainingunresolved issue between them was a definition of the term 'parking".16 The Judgereferred also to Ms Sewell saying that she was "prepared to give an undertaking", inreturn for Mr Lawton acting in a manner consistent with his right to use the right ofway that did not include parking or the use of it as a workspace.17 The Judge stated:18Subsequently, on 8 March 2021, Mr McAleer (Mr Lawton's McKenzie friend)proposed a draft undertaking for Mr Sewell's consideration. Negotiations onthe draft followed and the sole remaining issue is Mr Lawton's insistence thatthere be no time limit on the definition of 'parking'.14 Above n 1, at [123].15 At [36].16 At [36].17 At [85].18 At [86].[31] Again, there is no indication that before the District Court that the proposedundertaking had been agreed to. Specifically, the Judge noted at the conclusion of thejudgment that:19The parties are encouraged to clarify their understandings of what their rightsand obligations are in relation to the right of way, and if necessary, to renewtheir efforts at reaching an agreement about the use of the right of way. Thedisputes over the right of way ought not [to] be beyond resolve given bothparties share that objective.[32] It is clear to me that Ms Sewell made no undertaking of the kind alleged byMr Lawton before the District Court, or in fact, any undertaking at all. Rather, at thetime of the District Court hearing, the matter of any proposed or draft undertaking wasunresolved. This conclusion is reinforced by my reading of the notes of evidencebefore the District Court.[33] Nor do I consider that Ms Sewell made any representations to theDistrict Court that her behaviour would change. Rather, in my view, at the time of theDistrict Court hearing, her behaviour had changed, with the parties accepting that therehad been a period of nine months without issue. Again, the notes of evidence in theDistrict Court do not show that Ms Sewell represented to the District Court that herbehaviour would change in any particular manner.[34] Further, I do not consider that the Judge's comments as to Ms Sewell betterunderstanding the nature of the rights concerned is a matter that supports Mr Lawton'sapplication to adduce the further evidence. This is because there is no indication in theDistrict Court judgment that Ms Sewell undertook to change her behaviour havingobtained a greater understanding of the parties' relative rights in relation to the rightof way.[35] In response to my questions at the hearing, Mr Ross responsibly conceded thathe was not able to maintain the position that such representations had been made oran undertaking given. Nonetheless, Mr Ross continued to argue that even without suchan undertaking, Ms Sewell's subsequent behaviour in 2022 is relevant to the Judge'sexercise of his discretion in terms of the fifth element set out in s 16(1)(c) of the Act,19 At [144].relating to the necessity that a restraining order be made to protect the applicant fromfurther harassment. Mr Ross argues that the Judge was influenced by the parties'misunderstanding of the nature of the rights relating to the right of way. He says thatthe proposed evidence will assist this Court on the appeal because the Court will thenbe able to re-evaluate the necessity for a restraining order in light of Ms Sewell'ssubsequent behaviour. He says that the appeal is a rehearing and Court must thereforeaddress all matters.[36] In my view, the notice of appeal and the application to adduce further evidenceare based squarely on Ms Sewell having made representations or given an undertakingto the District Court. I sought to clarify the issues on appeal with Mr Ross. This wasbecause Ms Blomfield had made the point in her written submissions that there is noappeal against the Judge's findings in relation to s 16(1)(b)—rather, the notice ofappeal focuses on whether there were two specified acts, and whether the Judgecorrectly exercised his discretion in relation to s 16(1)(c). She argues that theconsequence of this is that the proposed evidence will not be of assistance as theJudge's findings on the s 16(1)(b) matters are not under challenge and the appeal istherefore unable to succeed.[37] Mr Ross confirmed that the first and second points on appeal relate to whetherthere are two specified acts. He said that there is a legal question as to whether theJudge erred in requiring that Mr Lawton had to demonstrate a need to use the right ofway at the particular time it was subject to obstruction. I accept that this is a properquestion to advance on appeal. Depending on the answer to that question, it may bethat a second specified act exists, alongside the specified act found by the Judge inrelation to the egg throwing incident. However, that question is not one that requiresthe additional evidence sought to be adduced. Further, I agree with Ms Blomfield thatas the additional evidence relates to events from October 2022, even if one of thoseevents did constitute a specified act, alongside the specified act found by the Judge,this could not meet the requirement in s 3(1) of the Act that the two specified eventsoccur within a period of 12 months. And, if Mr Lawton is alleging that the events in2022 establish two specified acts, that would be an entirely new case that is unrelatedto the matter under appeal.[38] The third point on appeal simply records the findings of the Judge that therewas not a pattern of behaviour that would cause distress to a reasonable person in theposition of Mr Lawton, and that the Judge was not minded to exercise his discretionto make an order. These appear to relate to matters in s 16(1)(b). Again, as submittedby Ms Blomfield, there does not seem to be a question to be determined in this pointof appeal.[39] This leaves the fourth and fifth points of appeal. The fourth point is focused onMs Sewell behaving contrary to undertakings she is said to have given to the DistrictCourt. As discussed above, no such undertakings were given. The fifth point of appealis a statement of assertion that Ms Sewell started obstructing the right of way again,following the conclusion of the applications brought by Mr Lawton and Mr Simpson.Although not expressly stated, it appears that these points are intended to relate toestablishing that order is necessary to protect the applicant from harassment, unders 16(1)(c).[40] I note that the District Court Judge did not base the decision to declineMr Lawton's application on an undertaking given by Ms Sewell—because no suchundertaking was made. Rather, Mr Lawton's application failed at the first thresholdtest, which requires that there have been two specified acts on at least two separateoccasions within a period of 12 months. The Judge then went on to say that even if hewas wrong in that conclusion, he was not satisfied that the requirements of s 16(1)(b)and (c) were met.[41] It follows then that in order to be successful on appeal, Mr Lawton will berequired to establish not only that the first threshold test of two specified acts was metbut that the Judge was wrong to conclude that the requirements of s 16(1)(b) and (c)were not met.[42] It is in this context that the points of appeal raised by Mr Lawton are important.It does not seem to me that Mr Lawton has properly identified any points of appeal inrelation to s 16(1)(b). The content of the third point of appeal in the amended noticeof appeal is nothing more than a summary of certain of the District Court's findings.Even at the hearing, Mr Ross did not identify for me anything under appeal in relationto the s 16(1)(b) matters beyond the suggestion that this is a general appeal by way ofrehearing. In my view this is insufficient. Of further concern to me is that even inrelation to the necessity limb (s 16(1)(c)), the fourth and fifth points of appeal rest onthe allegation of further behaviour by Ms Sewell in breach of her purportedundertaking, which it is now accepted by Mr Ross does not exist. Nonetheless, I notethat Ms Blomfield accepted that the proposed evidence could be relevant to thenecessity requirement.[43] It is imperative that an appellant properly particularises their grounds of appealthrough their notice of appeal. As stated by r 20.9(1)(c) of the High Court Rules, anotice of appeal must specify "the grounds of the appeal in sufficient detail to fullyinform the court, the other parties to the appeal, and the decision-maker of the issuesin the appeal". The difficulties discussed above raise a concern that Mr Lawton'snotice of appeal is insufficiently particularised and/or based on a misunderstanding ofthe Judge's findings. This must be taken into account in the assessment of hisapplication to adduce further evidence, owing to the self-evident requirement thatfurther evidence must be relevant to the issues on appeal.[44] Against this context, I now assess the application to admit further evidence.[45] I am not persuaded by Mr Ross' argument that, on appeal, this Court would beassisted by the proposed evidence. Fundamentally, I do not consider the evidencerelevant to the matters on appeal, as identified in the amended notice of appeal and incircumstances where it is now accepted that Ms Sewell did not give any undertakingor make representations at the hearing before the District Court. I record that inreaching this conclusion, it is for the purpose only of the current application to adducefurther evidence and it is entirely a matter for the Judge hearing the appeal to maketheir own assessment of what is properly identified as matters under appeal.[46] That conclusion is sufficient to dispose of the application. In case I am wrong,however, I go on to consider whether the application should be granted on the basisthat the proposed evidence might be relevant to the assessment that the order isnecessary under s 16(1)(c) (or even more generally, as submitted by Mr Ross).[47] I do not consider there are any special reasons justifying the inclusion of thefurther evidence or that it would be in the interests of justice to do so. Although theevidence is fresh, it is disputed. It is likely to result in substantial relitigation andrequire cross-examination at the hearing of the appeal. The fact that the evidence isdisputed is a matter that goes to its credibility and cogency. I do not accept Mr Ross'argument that the appeal should be dealt with based on "the assessment of an evolvingrisk". While Mr Lawton's appeal is a general appeal, it is a cardinal principle of thecourt's appellant function that appeals are determined on the material that was beforethe first instance court, unless there are special reasons requiring the introduction ofnew evidence.Result[48] For the reasons above, I dismiss Mr Lawton's application to adduce furtherevidence on the appeal.[49] Costs for this matter are reserved until the determination of the substantiveappeal.McQueen JSolicitors:Cathedral Lane Law, Napier for AppellantSainsbury Logan & Williams