LINCOLN v DISTRICT COURT at Christchurch [2021] NZHC 417

LINCOLN v DISTRICT COURT at Christchurch [2021] NZHC 417 [8 March 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2020-409-44[2021] NZHC 417UNDER the Judicial Review Procedure Act 2016IN THE MATTER an application for review of the DistrictCourt Judge's trial directionsBETWEEN RICHARD LINCOLNApplicantAND DISTRICT COURT at ChristchurchFirst RespondentAND GEOFFREY BARCLAY CAVELLSecond RespondentHearing: 25 November 2020Appearances: R Lincoln (Applicant) in personC M Ruane for Second RespondentAttendance of G Taylor for First Respondent, abiding, excusedJudgment: 8 March 2021JUDGMENT OF OSBORNE JThis judgment was delivered by me on 8 March 2021 at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:[1] In this proceeding, Richard Lincoln applies for judicial review of aDistrict Court direction in relation to a proceeding he commenced in that Court againstthe second respondent, Geoffrey Cavell, under the Harassment Act 1997.[2] On 10 October 2019, Judge P R Kellar, in setting the District Court proceedingdown for hearing, directed that Mr Lincoln was not to cross-examine Mr Cavell.1[3] Mr Lincoln made submissions, in response, against the direction made.[4] Judge Kellar issued a further Minute dated 11 December 2019, whichrecorded:2Mr Lincoln is applying for a restraining order under the Harassment Act 1997.Section 95(1) of the Evidence Act 2006 applies because Mr Lincoln:(a) he is a party to a civil proceeding concerning harassment; and(b) he wishes to cross-examine a party who has made allegations of"harassment" as defined in section 3 of the Harassment Act 1997, inthat Mr Cavell's affidavit in reply contains allegations of harassment.Therefore, Mr Lincoln may not personally cross-examine Mr Cavell.("the 11 December 2019 direction").[5] After receipt of further submissions from Mr Lincoln, Judge Kellar issuedfurther directions (further directions).3 His Honour recorded that he had made hisdecision. His Honour noted that, as Mr Lincoln had signalled that he would not beinstructing counsel to cross-examine Mr Cavell, he was directing that counsel beappointed to cross-examine Mr Cavell in respect of any allegations Mr Lincoln makesthat Mr Cavell harassed him.[6] Mr Lincoln seeks to have the 11 December 2019 direction quashed on thisreview.1 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 10 October 2019.2 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 11 December 2019 (Minute).3 Lincoln v Cavell DC Christchurch CIV-2019-009-001659, 15 January 2020 (Minute).Restrictions on cross-examination by parties in person[7] Section 95 Evidence Act 2006 contains and provides for restrictions on cross-examination by parties in person in identified proceedings, including those concerningharassment. In particular s 95(1) of the Act provides:(1) A defendant in a sexual case, or a defendant in or a party to criminalor civil proceedings concerning family violence or harassment, is notentitled to personally cross-examine—(a) a complainant, or a party who has made allegations of familyviolence or harassment:(b) a child (other than a complainant) who is a witness, unless theJudge gives permission.[8] By s 4(1) of the Act the term "harassment" has (unless the context otherwiserequires) the same meaning as s 3 Harassment Act.The meaning of "harassment"[9] Section 3(1) Harassment Act provides:(1) For the purposes of this Act, a person harasses another person if he orshe engages in a pattern of behaviour that is directed against that otherperson, being a pattern of behaviour that includes doing any specifiedact to the other person on at least 2 separate occasions within a periodof 12 months.[10] Section 4 Harassment Act sets out acts which constitute "specified acts" underthe Act. This includes (under s 4(1)(d)) making contact with the person, whether bytelephone, correspondence, electronic communication or in any other way. It alsoincludes (under s 4(1)(f)) acting in any other way that causes the person to fear fortheir safety and that would cause a reasonable person in that person's particularcircumstances to fear for their safety.[11] Under s 3(2)(a) Harassment Act, the pattern of behaviour may involve differenttypes of specified acts.[12] Nothing in the context of s 95 of the Evidence Act requires the term"harassment" as used therein to be given a different meaning than that provided in s 3Harassment Act.The harassment proceeding – Mr Lincoln's case[13] Mr Lincoln's harassment proceeding relates back at least in part to an incidenton 23 November 2018. Mr Lincoln's car had been damaged, apparently by scratchingof some kind, which occurred when Mr Cavell was leaving Mr Lincoln's address thatday.[14] Mr Lincoln made a claim against Mr Cavell in the Disputes Tribunal fornegligent damage. He was awarded the repair costs. Mr Cavell later paid the awardedsum, but only after Mr Lincoln had issued bankruptcy proceedings over the debt.[15] Subsequently, on 19 July 2019, Mr Lincoln commenced the harassmentproceeding against Mr Cavell in the District Court. He referred to a long-standingpersonal relationship he had with Mr Cavell's ex-wife. He has made sworn allegationsof harassment on the part of Mr Cavell.[16] As such, in the harassment proceeding, it is Mr Lincoln's case that Mr Cavellharassed Mr Lincoln.The harassment proceeding – Mr Cavell's defence[17] In response to Mr Lincoln's harassment proceeding, Mr Cavell filed a noticeof defence supported by an affidavit. In his affidavit, Mr Cavell made allegations asto:(a) Mr Lincoln's involvement in relationship property issues betweenMr Cavell and his ex-wife and in matters involving the Cavell Trust;(b) actions taken by Mr Lincoln to send Mr Cavell a copy of a letter he hadreceived from the Police advising that the Police were consideringlaying charges against Mr Cavell, a step in Mr Cavell's belief by whichMr Lincoln was using his complaint to the Police to try to extractmoney from Mr Cavell for damage over and above the damage whichMr Cavell accepted he had caused;(c) Mr Lincoln's claims to be acting for Mr Cavell's ex-wifenotwithstanding that Mr Lincoln has not been admitted to practice;(d) Mr Lincoln's making of various wild and unfounded accusationsaround the affairs of the Cavell Trust and the value of the Trust; and(e) Mr Lincoln's involvement and interference leading to a delay in the saleof the former family home of Mr Cavell and his ex-wife.The District Court's application of s 95(1)(a) Evidence Act[18] In making the 11 December 2019 direction, Judge Kellar expressly founds 95(1) Evidence Act to apply. Judge Kellar specifically referred to the three relevantlimbs which his Honour found to give rise the s 95 restriction on cross-examination inthe District Court proceeding.[19] First his Honour identified that there is a "civil proceeding concerningharassment". It is common ground here that that is so.[20] Secondly, his Honour observed that Mr Lincoln is "a party" to that proceeding(in terms of s 95(1)). Mr Lincoln submits he does not fall within the intended ambitof "party" under s 95(1).[21] Thirdly, Judge Kellar found that Mr Cavell was in terms of s 95(1)(a) a "party"who had made allegations of harassment. Mr Lincoln similarly submits that Mr Cavelldoes not fall within the intended ambit of "party" under s 95(1)(a).[22] Fourthly, his Honour found that Mr Lincoln (representing himself) intended to(personally) cross-examine Mr Cavell. That was clearly so. Mr Lincoln had served anotice requiring Mr Cavell to be available for cross-examination.Mr Lincoln's position as to review[23] By his statement of claim Mr Lincoln seeks the setting aside of the11 December 2019 direction.[24] His statement of claim identifies three grounds of alleged invalidity:(a) Natural justice:the 11 December 2019 direction was made in Mr Lincoln's absence,without his knowledge and without any opportunity to makesubmissions and to argue the point.(b) The scope of a statutory restriction on cross-examination:as a matter of law the District Court did not have power to make the11 December 2019 direction because s 95(1) Evidence Act is notintended to prevent self-represented victims of harassment fromcross-examining a respondent against whom they have applied for arestraining order.(c) Conduct amounting to harassment:the 11 December 2019 direction is premised on an error of fact in thatMr Cavell has not made an allegation or allegations of harassmentagainst Mr Lincoln.[25] Additionally, by his statement of claim here Mr Lincoln raises two issues inrelation to the further directions, being:(a) To the extent the further directions permit cross-examination ofMr Cavell "limited to" any allegations Mr Lincoln makes thatMr Cavell harassed him, the limit would prevent counsel appointedfrom cross-examining Mr Cavell on allegations such as those whichsuggest Mr Cavell was provoked by Mr Lincoln; and(b) the further directions in relation to the appointment of counsel do notclearly state where appointed counsel's duties will lie.[26] Mr Lincoln's statement of claim did not seek any specific remedy in relationto the further directions but did include a catch-all, namely "such other order as theCourt thinks just and fit".[27] In his submissions Mr Lincoln has clarified that his primary focus is to havethe 11 December 2019 direction set aside, upon the basis that the further directions(which flow from the earlier direction) will then also fall away. In the event this Courtdoes not set aside the 11 December 2019 direction, Mr Lincoln submits this Courtshould clarify the nature and ambit of appointed counsel's duties in cross-examination.Mr Cavell's position as to review[28] For Mr Cavell, Mr Ruane submits Mr Cavell's allegations as to Mr Lincoln'sbehaviour, if made out, constitute "harassment" in terms of s 3 Harassment Act.[29] Mr Ruane submits that Mr Cavell's allegations (as summarised at [17] above)constitute allegations of harassment.[30] On this basis, Mr Ruane submits that both s 95(1) and s 95(2) of the EvidenceAct provide jurisdiction for the 11 December 2019 direction. Mr Ruane submits theconsiderations relevant in this case under both s 95(3) and s 95(4) supported themaking of the order, notwithstanding that Judge Kellar may not have expanded indetail on the reasons for his Honour's decision.[31] In the alternative, Mr Ruane submits this Court (if finding that the decision wasflawed) may direct reconsideration under s 17 Judicial Review Procedure Act 2016.Natural justice in relation to the 11 December direction[32] When Judge Kellar, on setting the harassment proceeding down for hearing,made his first direction on 10 October 2019, it was in the absence of Mr Lincoln. Itappears this occasion gave rise to Mr Lincoln's assertion in his statement of claim thatthe 11 December 2019 direction had been made without any opportunity provided forhim to make submissions and to argue the point.[33] For Mr Cavell, Mr Ruane has observed the 10 October 2019 hearing was anon-notice hearing at which Mr Lincoln did not appear.[34] Be that as it may, it is not the 10 October 2019 direction which is the subjectof Mr Lincoln's application for review. It is the 11 December 2019 direction.[35] Those directions were made after Mr Lincoln had taken the opportunity on twooccasions (11 October 2019 and 5 November 2019) to make submissions as to whythe District Court should not issue a direction barring cross-examination.[36] Mr Lincoln has not established a breach of natural justice principles.The scope of statutory restriction on cross-examinationThe relevant party alleging harassment[37] This case involves what appears to be the novel situation — at least in termsof authority — in which the party who claims to make allegations of harassmentagainst the other is the defendant rather than the plaintiff in a District Court proceedingcommenced under the Harassment Act.[38] I will now expand upon the statutory regime under s 95 Evidence Act as itapplies to this particular situation.[39] The term "party" as used in s 95(1) Evidence Act, consistently with thedefinition in s 4 of the Act means any party to the proceeding. As applied to a civilproceeding concerning harassment, the term includes a defendant (who has madeallegations of harassment against the plaintiff).[40] The extension under s 95 Evidence Act to make restrictions oncross-examination applicable in civil proceedings (involving domestic violence orharassment) as well as criminal proceedings served to expand the restrictions whichhad previously existed under s 23F Evidence Act 1908.4 In expanding the scope of4 See the commentary in Matthew Downs (ed) Cross on Evidence (looseleaf ed, LexisNexis, NZ)at [EVA 95.1].the restrictions under s 95 Evidence Act Parliament by the inclusion of "parties" mustbe taken to have included parties whether or not they were the "originating" party orthe "responding" party. If the legislative intent had been to limit categories to theresponding party (in s 95(1)) and the originating party (in s 95(1)(a)) that would havebeen simply achieved by referring to the descriptions appropriate to those respectiveroles (defendant or respondent in s 95(1) and complainant, applicant or plaintiff in s95(1)(a)). The inclusion of "party", having its usual meaning as reflected in s 4Evidence Act, involved a further extension to the protection of those makingharassment allegations, which is consistent with the protective nature of therestrictions.[41] The interpretation of "party" as covering any opposing party is also consistentwith the philosophy underlying the Law Commission's conclusion that the formers 23F restrictions should be expanded. The relevant part of the Commission's reportstated:5The Law Commission considered that in other cases also [other than inrelation to unrepresented defendants in sexual cases] it would help reducestress for the witness, and therefore improve the quality of the evidence, if thedefendant or opposing party did not personally cross-examine the witness.(emphasis added)Cross-examination of witnesses under s 95(5) Evidence Act[42] Once a defendant or party is precluded from personally cross-examining awitness (whether automatically under s 95(1) or pursuant to a Judge's order unders 95(2)) that defendant or party has the rights in relation to cross-examination that areset out in s 95(5) Evidence Act. The alternative means by which cross-examinationmay take place are set out in subss (a) and (b), which refer only to the "defendant" andnot also to the "party" identified in the opening words to s 95(5). It is apparent thereference only to the defendant in subsections (a) and (b) is a legislative oversight —the obvious legislative intent of subsections (a) and (b) is to provide the alternativemechanisms by which the "defendant or party" referred to at the start of s 95(5) may5 Law Commission Evidence: Reform of the Law (NZLC R55 vol 1, 1999) at [414].have cross-examination conducted.6 The reference to "defendant" only is an obviousdrafting error which in the context of s 95(5) is properly addressed by reading thereference to "defendant" in subsections (a) and (b) as "defendant or party".7Conduct amounting to harassmentThe particularisation of "specified acts"[43] I remind myself that when a court is considering whether a situation exists asdefined in s 95(1)(a) Evidence Act (above at [7]) one element is whether a party to theproceeding has made allegations of harassment arising from the commission of"specified acts" as defined in s 4 Harassment Act. The protection under s 95(1)(a)applies to a complainant or party who has made allegations of family violence orharassment.[44] In his affidavit filed in the District Court Mr Cavell has focused on variousaspects of Mr Lincoln's behaviour towards him, with specific examples. He deposedthe behaviour caused him "great distress".[45] In his written synopsis, Mr Lincoln submitted that (contrary to Judge Kellar'sconclusion that Mr Cavell's affidavit contains allegations of harassment):As a matter of fact any allegations made by the respondent in his evidence inthe present case are insufficiently particularised to satisfy the definition ofharassment in s 3 of the Harassment Act. At best he has only alleged specifiedacts [46] As matters stood before Judge Kellar, the particularisation of allegations wasnot in issue. The allegations were made in Mr Cavell's affidavit evidence rather thanin a pleading.6 See commentaries in Simon France (ed) Adams on Criminal Law – Evidence (looseleaf ed,Thomson Reuters) at [EA 95.03]; and Elisabeth McDonald and Scott Optican (eds) Mahoney onEvidence Act & Analysis (4th ed, Thomson Reuters, Wellington, 2018) at [EV 95.03].7 See the discussion in Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed,LexisNexis, Wellington, 2015) at 312-314, citing Inco Europe Ltd v First Choice Distribution[2000] 2 All ER 109 (HL) at 115.[47] What first matters in terms of s 95(1)(a) is whether or not a party has madeallegations of conduct which (if established) constitute "harassment". Mr Lincolnhimself through his written submission accepts that there have been acts alleged.[48] The requirement under s 95 Evidence Act that such allegations have been madedoes not import a requirement that the allegations be substantiated or established toany particular standard of proof or even prima facie level.[49] Rather, simply what triggers s 95(1)(a) is that the party proposed to be cross-examined has made such allegations of "harassment".[50] The definition of "harassment" requires there to be a "specified act" as set outin s 4 Harassment Act (as summarised at [9] to [12] above). It must be borne in mindthat the first object of the Harassment Act, in terms of s 6(1)(a) is to recognise thatbehaviour that may appear innocent or trivial when viewed in isolation may amountto harassment when viewed in context. Mr Cavell's affidavit refers to a context whichis broader than the alleged acts themselves.[51] Whether or not the allegations made by Mr Cavell as to specific acts aresubsequently found to have constituted a pattern of behaviour amounting toharassment or not, his affidavit contains allegations of conduct at least some of whicha court might reasonably be found, if established, to constitute specified acts.The identification of acts occurring on "at least two separate occasions within aperiod of 12 months"[52] For conduct to constitute "harassment" there is a further timing requirementbeyond the commission of specified acts.[53] By reason of the definitions in ss 3–4 Harassment Act a party cannot be said tohave made an allegation of "harassment" unless their pleading has identified at leasttwo specified acts (on separate occasions) within a period of 12 months. Failing atleast some specificity in that regard, the party in question has made an allegation as tothe other party's conduct in a way that does not qualify as alleged harassment.[54] Parliament cannot have intended to remove a litigant's general entitlement tocross-examine the other party upon the assertions of conduct which do not includeeach of the ingredients required to render the conduct "harassment". That includes theingredient that requires a multiplicity of acts within the required 12 month period.[55] Mr Lincoln observed the Judge's Minute does not assert that any of thespecified acts (in terms of ss 3–4 Harassment Act) occurred on at least two separateoccasions within a period of 12 months.[56] For his part, Mr Ruane in his submissions identified six passages in Mr Cavell'saffidavit which he suggested are sufficient to raise allegations of harassment by MrLincoln. Those passages (as summarised by Mr Ruane) related to:(a) Mr Lincoln's involvement in the relationship property issues ofMr Cavell and his ex-wife and in the Cavell Trust (para 6);(b) Mr Lincoln's actions in sending Mr Cavell a copy of a letter he hadreceived from the Police advising that the Police were consideringlaying charges against Mr Cavell (pursuant to a complaint byMr Lincoln) (para 16);(c) Mr Lincoln's claim to be acting as the lawyer for Mr Cavell's ex-wife(when not admitted to practise) (para 18);(d) Mr Lincoln's "various wild and unfounded accusations" around theaffairs of the family trust and the value of the trust (para 20);(e) Mr Lincoln's involvement and interference causing delays in the saleof the Cavell's family home (para 27); and(f) Mr Lincoln's behaviour towards Mr Cavell and interference with hisfamily (para 34).[57] In the course of his oral submissions, Mr Ruane accepted that he could notpoint to any specific material in Mr Cavell's affidavit evidence which would enablethis Court to identify any two or more incidents of conduct which had occurred withina specific 12 month period. Dates are not provided by Mr Cavell in his affidavit.[58] Mr Lincoln submitted, correctly, that the allegations made by Mr Cavell (forthe most part very general) leave this Court unable to determine whether there is infact an allegation of at least two separate occasions in which specified acts haveoccurred within a period of 12 months. Without such an allegation, the legal conceptof "harassment" does not follow.Outcome[59] For this reason, Mr Lincoln has established that the Judge erred, in the 11December 2019 direction, when his Honour determined on the basis of allegationsmade by Mr Cavell, that Mr Cavell had made qualifying allegations of "harassment"such as to trigger the restriction under s 95(1) Evidence Act.Costs[60] I will be reserving the costs and disbursements of the proceeding. Havingregard to the fact that Mr Lincoln has represented himself my assumption is that theparties will accept that there should be no order as to costs, but that Mr Lincoln isentitled to an order for the payment of his reasonable disbursements. In the event theparties are unable to agree on costs, they will be determined on the papers withMr Lincoln to file his memorandum first, to be followed within five working days byMr Ruane (four page limit in each case).Orders[61] I order:(a) the direction of Judge Kellar dated 11 December 2019 is set aside;(b) the proceeding is remitted to the District Court; and(c) the costs and disbursements of this application are reserved.Osborne JSolicitors:Te Pōhue Chambers, ChristchurchCrown Law, WellingtonCopy to:Mr Lincoln