O’NEILL v MALCOURONNE [2021] NZCA 556

O'NEILL v MALCOURONNE [2021] NZCA 556 [21 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA262/2021[2021] NZCA 556BETWEEN MARY JELENA O'NEILLApplicantAND PETER JAMES MALCOURONNERespondentCourt: French and Courtney JJCounsel: N M Pender for ApplicantS A Keall for RespondentJudgment:(On the papers)21 October 2021 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to file the application for leave toappeal under s 36 of the Harassment Act 1997 is granted.B The application for leave to file an amended application for leave to appealis granted.C The application for leave to appeal is declined.D The applicant must pay the respondent costs for a standard application ona band A basis with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mrs O'Neill seeks leave under s 36 of the Harassment Act 1997 (the Act) toappeal a decision of Clark J in the High Court.1 The application for leave was filedout of time and accordingly Mrs O'Neill also seeks an extension of time. In addition,she applies for leave to amend her application for leave to appeal.Background[2] Mrs O'Neill and Mr Malcouronne are neighbours. There has been ongoingconflict and in 2019 both applied for a restraining order under the Act against the other.There was a hearing in the District Court before Judge Harvey. On 19 February 2020,the Judge issued two restraining orders.2 One was against Mrs O'Neill in favour ofMr Malcouronne and his partner for two years.3 The other order was againstMr Malcouronne in favour of Mrs O'Neill for one year.4 The Judge found that whathe described as Mrs O'Neill's "relentless and obsessive pattern of behaviour"warranted a longer period of restraint.5 In a separate costs judgment, the Judge heldthat costs should lie where they fell.6[3] Dissatisfied with that outcome, Mr Malcouronne appealed to the High Court.Clark J allowed the appeal.7 She held there was an insufficient evidential basis for theCourt to be satisfied that making an order against Mr Malcouronne was necessary toprotect Mrs O'Neill from further harassment.8 She set aside the restraining orderagainst Mr Malcouronne and also remitted the issue of costs in the District Court backto that Court for reconsideration in light of her judgment.9[4] It is this decision of Clark J that Mrs O'Neill now wishes to appeal.1 Malcouronne v O'Neill [2021] NZHC 641 [High Court judgment].2 O'Neill v Malcouronne [2020] NZDC 2991.3 At [69]–[72].4 At [73]–[75].5 At [75].6 Malcouronne v O'Neill [2020] NZDC 2814 at [11].7 High Court judgment, above n 1.8 At [119]–[128].9 At [129]–[130].[5] The application for leave to appeal was filed eight working days out of time.10That is a short period of delay. Further, there is an explanation for the delay involvingmiscommunications with Mrs O'Neill's lawyers. In those circumstances, we consideran extension of time should be granted and we so order.[6] We turn now to consider the application for leave to appeal. We do so on thebasis of the amended notice of application which Mrs O'Neill wishes to replace theapplication she originally filed. We are satisfied there is no prejudice toMr Malcouronne in allowing the amendment and the application for leave to amend isalso accordingly granted.The application for leave to appeal[7] The application sets out the proposed grounds of appeal. They areconveniently summarised in submissions filed on behalf of Mrs O'Neill in thefollowing terms:(1) The High Court Judge erred in the exercise of the court's appellatejurisdiction by failing to take account of the special advantageenjoyed by the trial judge when assessing issues of character andthe dynamic interplay of the parties' relationship.(2) The High Court Judge breached the appellant's right to naturaljustice by taking account of contentious evidence that had not beenthe subject of cross examination.(3) The High Court Judge's findings about the respondent's removalof a rubbish bag that the appellant had left out for collection, werenot supported by the evidence.(4) The High Court Judge's finding that the respondent'sencouragement of another person to block access to the appellant'sproperty on 20 March 2019 was for a lawful or legitimate purposeand therefore not a "specified act" misconstrued both the evidenceand the legal test.(5) The High Court Judge's finding that there was no evidence to showthat the appellant was in need of protection from the respondentwas not supported by the evidence and misconstrued the object ofthe Act.10 Court of Appeal (Civil) Rules 2005, r 14(2)(a).(6) The High Court Judge's finding that the respondent had takena "conciliatory and responsible position throughout", in contrast tothe appellant, was unreasonable.[8] Mrs O'Neill submits that these grounds raise important issues about thejurisdiction of an appellate court and its application of natural justice principles whenconsidering appeals against orders made under the Act. She seeks the followingremedies:(a) judgment reversing the High Court's decision to set aside therestraining order against Mr Malcouronne;(b) an order re-affirming that costs in the District Court should lie wherethey fall; and(c) orders awarding her costs in the High Court and this Court.Analysis[9] Although s 36 of the Act does not itself stipulate the matters to which this Courtshould take into account when deciding whether to grant leave, the general principlesfor second appeals are well established. The proposed appeal must raise somequestion of law or fact capable of serious argument in a case involving some interest,public or private of sufficient importance to outweigh the cost and delay of the furtherappeal.11[10] In this case, Mrs O'Neill has failed to persuade us that those criteria aresatisfied. The law regarding the approach by appellate courts towards challengedfindings of fact, including findings of credibility, and the rules of natural justice arewell settled. There is nothing in the Act that calls for a different set of principles.The proposed appeal does not therefore raise any issue of law or fact of general orpublic importance requiring this Court's guidance.11 Waller v Hider [1998] 1 NZLR 412 (CA) at 413.[11] Correctly analysed, all of the issues which Mrs O'Neill wishes to raise areentirely case-specific. Further, what private significance the High Court findingsmight have for the parties is greatly reduced by the fact that the restraining orderagainst Mr Malcouronne has already expired and indeed had done so before theHigh Court delivered its judgment. As for the strength of the proposed appeal, it isnot immediately apparent to us that the approach taken by Clark J was anything otherthan orthodox. The chances of this proposed second appeal succeeding are in ourassessment low.[12] Having regard to all these circumstances, we conclude that it would not be inthe interests of justice to grant leave to appeal. The application is accordinglydeclined.[13] As regards the costs of the application, there is no reason why costs should notfollow the event. We therefore order that the unsuccessful applicant must pay therespondent costs for a standard application on a band A basis with usual disbursements.Outcome[14] The application for an extension of time to file the application for leave toappeal under s 36 of the Harassment Act 1997 is granted.[15] The application for leave to file an amended application for leave to appeal isgranted.[16] The application for leave to appeal is declined.[17] The applicant must pay the respondent costs for a standard application ona band A basis with usual disbursements.Solicitors:Cathedral Lane Law, Napier for ApplicantSouness Stone Law Partnership, Hastings for Respondent