Garcev v Higgs
[2020] VCC 927
•30 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATIONS LIST |
Case No. AP-19-1391
| PETER GARCEV | Appellant |
| v | |
| BRONWYN HIGGS | Respondent |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23 and 24 June 2020 | |
DATE OF JUDGMENT: | 30 June 2020 | |
CASE MAY BE CITED AS: | Garcev v Higgs | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 927 | |
JUDGMENT
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Subject: APPEAL
Catchwords: Appeal pursuant to Personal Safety Intervention Orders Act 2010 – appeal against orders made in the Magistrates’ Court granting a final order by way of extension of existing order – appeal as to costs orders – whether ten-year order appropriate
Legislation Cited: Personal Safety Intervention Orders Act 2010
Judgment:Appeal dismissed – orders of the Magistrates’ Court confirmed – orders made as to costs.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Levine | The Law Professionals |
| For the Respondent | Mr J Willee | Asprey Lawyers |
HIS HONOUR:
Preliminary
1 This is an appeal against an extension of a Personal Safety Intervention Order made on 13 June 2019, and in respect of costs Orders made on 27 April 2017 and 13 June 2019. Central to the appeal in this Court and the applications in the Magistrates’ Court is a dispute about the construction and placement of a boundary fence between Ms Bronwyn Higgs’ property at 8 Railway Place, and her neighbour, Mr Peter Garcev, at 10 Railway Place, Footscray. Despite being able to co-exist in relative harmony over many years, since about 2015, the relationship between the parties deteriorated significantly and has led to an entrenched and bitter situation. I am satisfied from the evidence that this has been largely as a result of Mr Garcev’s inappropriate, abusive and aggressive behaviour.
2 This is an appeal under Subdivision 1 of Division 11 of the Personal Safety Intervention Orders Act 2010 (“the Act”). The appeal is conducted by way of re-hearing.
3 Pursuant to the provisions of Division 6 of Part 3 the Act, the onus lies upon Ms Higgs, as the original applicant, to satisfy the Court, on the balance of probabilities, that Mr Garcev has committed “prohibitive behaviour” (as defined by s5 and s7 of the Act), and that behaviour is likely to continue or to occur again. Further, that behaviour must be such as to cause a reasonable person to fear for their safety. Mr Garcev also takes issue with the term of the order, ten years.
4 Insofar as the appeal relates to costs Orders made, Ms Higgs, again, bears the onus to satisfy the Court that there were exceptional circumstances such as to justify the making of the costs Orders, or, alternatively, that the making of the relevant application by Mr Garcev was vexatious, frivolous or in bad faith.
A brief summary of the relevant evidence
5 Ms Higgs gave evidence. She first met her neighbour, Mr Garcev, when he was a young man, around 1984. She lives alone, although her brother visits from time to time.
6 Ms Higgs said the problems started in about 2009 when she approached Mr Garcev to replace the existing dividing fence between their respective properties. They initially agreed for the replacement to be a Colorbond fence; however, this was not permitted under local Council regulations. Subsequently, Mr Garcev changed his mind and wanted a higher fence. He started to become hostile. As time passed, the fence deteriorated, and part of it fell down.
7 Eventually, in 2015, Ms Higgs arranged to send a fencing notice to Mr Garcev. He claimed that he was being harassed. He made a range of accusations against Ms Higgs. At the outset, he was not abusive, but was hostile, jabbing his finger and speaking loudly towards her. This behaviour continued throughout 2015.
8 In about September or October 2016, Ms Higgs obtained a quotation from a fencing contractor and sent it to Mr Garcev. He said the fence did not need replacing, but merely some maintenance. Ms Higgs said she was prepared to pay for the full costs of the fence just to have the matter resolved. Around this time, Mr Garcev came to her house and said that he had already purchased the materials. Ms Higgs responded that she had paid a deposit to the fencing contractor. He said it had to be a metal fence.
9 In November 2016, Mr Garcev started to demolish the fence. He started to construct a metal fence of varying height, between 2 to 2.5 metres. Ms Higgs noted it was not on the correct boundary. She contacted the Maribyrnong Council and an officer came to inspect it. The fence was constructed about 8 centimetres from the original boundary line, towards Ms Higgs’ property.
10 Subsequently, the Council arranged for an inspector to undertake a site inspection and Ms Higgs was advised that no permit for the fence had been obtained. A planning contravention notice was issued.[1] Nonetheless, construction of the fence went ahead, and in parts it encroached up to 20 centimetres into Ms Higgs’ property. Mr Garcev completed the fence in about December 2016 using rusty metal panels. It was over the allowable height of 2 metres.
[1]Exhibit G
11 In about December 2016, Ms Higgs’ brother put a string line along the correct boundary. Mr Garcev demanded “What is this?” He became incensed and yelled at her. She showed him where the corner posts had been but he said that the boundary was wrong. Ms Higgs said he called her an idiot. She claims he said, “If you cross me you fucking bitch – I’ll get you if you cross me – you won’t know when – you fucking mole”. Ms Higgs said that this sort of abuse became almost a daily occurrence for two and a half months.
12 Ms Higgs said that the threats became vile after the Council visit. She claims Mr Garcev said: “The council, the courts or the police won’t help you, you fucking mole.”
13 As a result of this abuse, on 18 or 19 December 2016, Ms Higgs went to the Sunshine Magistrates’ Court and was granted an Interim Protection Order.
14 Around and after that time, acts of vandalism occurred, in particular involving Ms Higgs’ car. The registration plates were stolen several times, and on one occasion, they were replaced. Ms Higgs contacted the police on each occasion, as she had to provide a police report in order to replace the plates. Her car was damaged on several occasions. Her mailbox was vandalised.
15 In addition, stones were thrown from the direction of Mr Garcev’s house onto her roof and backyard. On some occasions, vegetable matter and bones were also dumped into her backyard.
16 The Protection Order was made final in January 2017 for a period of two years.
17 In March 2017, Mr Garcev lodged an appeal and sought a rehearing, saying that he had not been provided with any documentation relating to the Protection Order. At the same time, he made application for his own protection order, claiming that he had been intimidated by Ms Higgs. The application for a re-hearing was refused and costs ordered against him. The application for a protection order was withdrawn.
18 The abuse was less frequent after these events, but one morning, around April 2017, Ms Higgs got up and sat on her front veranda at about 3.00am. Mr Garcev arrived in a car and was unloading boxes into his mother’s nearby house. He saw Ms Higgs, and exploded with a stream of invective, calling her a “fucking mole”, “fucking bitch”, “fucking witch”. She said she found the encounter very unsettling and was upset by it. She complained to the police about these episodes and it was suggested she install security cameras.
19 In about September 2017, a process server served a fencing notice at Ms Higgs’ instigation. Mr Garcev’s mother arrived at her front gate one evening with a neighbour. It was said that she had been “kicked out of the house” where she lived with Mr Garcev. Mrs Garcev asked Ms Higgs to drop the legal proceedings. Ms Higgs offered to help her by ringing someone to assist. Mr Garcev arrived at the scene and started an abusive tirade, suggesting Ms Higgs had involved his seventy-seven-year-old mother in their dispute. He used profane language. He brought a copy of the fencing notice with him and brandished it in front of her, threw it on the ground and, when she picked it up, he knocked it from her hand. The whole incident was caught on CCTV footage, which I have observed.[2] Part of the incident was also audio recorded on a mobile phone. I have heard the audio recording.[3] Ms Higgs left but was very unsettled by the incident.
[2]Exhibit J
[3]Exhibit K
20 There was a further incident in about September 2018. Ms Higgs had wanted to go into her backyard with a friend, but there were stones thrown from the direction of Mr Garcev’s premises. She saw a brick on the ground and went inside. As a result, she rarely goes into her backyard for fear of being hit, and the state of her garden has deteriorated. Her garden was a source of enjoyment for her.
21 The first Protection Order was granted in January 2017. Mr Garcev claimed he was not made aware of the Order. He filed an Application for Rehearing dated 23 February 2017.[4] The reason given was “Did not know, never informed”. That application was refused. A costs Order was made against Mr Garcev that he pay $5,116.00.[5]
[4]Exhibit B
[5]The original Order did not fix the amount of costs. A subsequent Order of 13 June 2019 did.
22 Ms Higgs sought an extension of that Protection Order in January 2019. The matter was initially adjourned, as Mr Garcev sought legal representation. There was a further mention of the matter in March 2019. Ms Higgs provided the video and audio recordings. At a directions hearing in April 2019, Mr Garcev asserted he was unable to open the recordings. Ms Higgs provided further recordings on CD‑ROM.
23 At the hearing on 13 June 2019, Ms Higgs’ application was granted, and the Protection Order extended for ten years. A costs Order was made against Mr Garcev in the sum of $4,400.00.
24 The fencing dispute issue was finalised in the Magistrates’ Court in November 2019, and Ms Higgs obtained an Order that a fence be erected, using appropriate materials, including an Order that the existing metal fence be demolished.[6] Costs were also awarded against Mr Garcev in the sum of $2893.10. The fence has not been completed in accordance with the Order. The costs remain unpaid.
[6]Exhibit D
25 In March 2020, Mr Garcev began clearing the site. He removed part of the fence but built a shed and parked two cars across the boundary where the fence was to be constructed. The cars and the shed were in part on Ms Higgs’ land. Ms Higgs retained a fencing contractor who went to speak to Mr Garcev but, according to Ms Higgs, he returned terrified and walked away.
26 Ms Higgs produced various photographs of the fence in various stages.[7]
[7]Exhibit F
27 In cross-examination, Ms Higgs accepted she was unable to identify anyone as being responsible for vandalising her car. She reported the incident to the police on a number of occasions. She said further, that she has not seen Mr Garcev throw any stones or other material, but at least part of her property into which stones were thrown is such that they could only have come from Mr Garcev’s property. She said she engaged a surveyor in 2017 and the surveyor’s report was provided with the fencing notice, which she gave to her solicitors to provide to Mr Garcev.
28 Ms Higgs accepted there was some damage to the CCTV video footage. It froze on several occasions. She denied editing or in any other way manipulating the recordings.
29 Ms Higgs said she wanted to sell her property and move from the area. It was difficult because of the situation with the boundary fence.
30 Evidence was given by Mr Gordon McMeikan, a forensic digital examination specialist. His report was tendered.[8] He viewed the audio and video files and said neither had been tampered with. There were some anomalies, including where the video froze, which he could not account for, and there was a period at the beginning of the audio file which was unaccounted; however, this did not indicate either file had been altered or tampered with.
[8]Exhibit E
31 Mr McMeikan’s evidence was somewhat complex and technical, although he is undoubtedly an expert in the area. He was cross-examined thoroughly. Despite some small anomalies in the video and audio recordings, his evidence was that neither had been modified or interfered with.
32 Evidence was given by Ms Higgs’ brother, Mr Peter Higgs. Mr Higgs has lived in country Victoria, but worked at a sports stadium in Melbourne and regularly stayed with his sister over weekends, and occasionally for longer periods.
33 In around December 2016, he put a string line along the place where the boundary fence had been, after it had been demolished. He confirmed Mr Garcev had pulled it down, and although not abusive at that time, he was aggressive. He said, in the months that followed, he regularly observed Mr Garcev abusing and using profane language towards his sister. Mr Garcev constructed the fence some distance into Ms Higgs’ property, using rusty old panels, as might be seen on construction sites.
34 Mr Higgs recalled an episode at Christmas 2016 or 2017, when some friends arrived at Ms Higgs’ house and Mr Garcev was abusive towards them. He recalled damage being caused to Ms Higgs’ car, although did not see who did it.
35 Mr Higgs was present when the incident of September 2017 occurred. He confirmed his sister went towards the gate to assist Mr Garcev’s mother. He was standing on the veranda. He witnessed Mr Garcev being abusive and throw a paper towards his sister and subsequently, knock it from her hands. Mr Higgs urged her to come inside. He thought the incident had occurred around the middle of the day, but when shown the footage, accepted it occurred at night.
36 Evidence was given by Mr Garcev. He had little recollection of the events in the Magistrates’ Court in 2017.
37 Mr Garcev denied ever being abusive, threatening or aggressive towards Ms Higgs. He accepted he had arguments with her. He denied throwing any stones, damaging her car or mailbox, or any other of her property. He said he had had items thrown into his property. He denied having the car described by Ms Higgs when she observed him in the early hours of one morning.
38 In relation to the photograph produced by Ms Higgs of her vehicle,[9] he said that was the vehicle which had been abandoned in the lane.
[9]Part of exhibit F
39 He denied that he was the person shown in the video footage in the September incident, and that he was the person heard in the audio footage. He denied one of the other women present in the footage was his mother. He did not know the third woman.
40 When asked why, given his denial about being present, he had retained an expert and had gone to the trouble and expense to show the audio and the video had been manipulated, he said he had done so on the advice of his lawyers.
41 When asked why he did not conform to the Magistrates’ Court Order made in 2019 for the fence to be built on the correct boundary and using appropriate materials, he said he intended to comply with the Order when the Court case was over and when he had sufficient funds. He disagreed with the use of treated pine posts, which he said would rot after ten years.
Analysis of the evidence
42 This appeal comes to be determined largely upon the credibility of Ms Higgs on the one hand, and of Mr Garcev on the other. The audio and visual recordings and the evidence of Mr Higgs are also significant.
43 I found Ms Higgs a sensible and credible witness, answering questions in cross-examination in a responsive and honest way. There were some credit issues put to her. In the report of Mr McMeikan,[10] he obtained instructions from her that the “screen shots” she provided had not changed since the installation of the CCTV camera and equipment; however, according to the evidence of Mr Higgs, he observed his sister had upgraded her CCTV system with new equipment and cords. However, this evidence was not able to be put to Mr McMeikan and it is difficult to know whether it was of any significance to his conclusions.
[10]Paragraph 14.5
44 Further, there was some minor discrepancy between Ms Higgs’ evidence as to the language used by Mr Garcev, and what was recorded in her complaint document in the Magistrates’ Court; however, I found the discrepancy minor and it did not affect her credibility.
45 She gave a coherent account of a distressing and abusive dispute with Mr Garcev concerning the fence. I found her evidence about the confrontation in November to December 2016, the abuse which followed, the various incidents she described thereafter, and the altercation of September 2017 credible and reliable. Her evidence was supported by her brother.
46 I accept Ms Higgs’ evidence that she made a number of complaints to the police and to Council officers. I accept her evidence that Mr Garcev’s conduct has had a particularly distressing and unsettling effect upon her. I accept that it is her intention to sell her property, although there needs to be resolution in relation to the fence before she is able to do so.
47 Of particular significance, in my view, is the CCTV visual footage and the audio recording. I accept the evidence of Mr McMeikan that neither have been inappropriately tampered with. The visual footage shows a male, who I accept is Mr Garcev, approach Ms Higgs’ front gate, talk to her in a very aggressive manner, pointing his finger both towards her and towards his mother, and when she returns the paper to him, he very aggressively thrusts it from her hand. The audio footage recorded by Ms Higgs clearly provides evidence of aggression, the use of profanities towards Ms Higgs and delivered in a threatening manner. It was clearly designed to intimidate her. I accept she was very unsettled as a result.
48 While Ms Higgs complains of her car being vandalised, stones thrown onto her roof and backyard, and other damage to her property, I am unable to determine, to the required standard, that these acts were committed by Mr Garcev, as there is no eyewitness account that he was the perpetrator.
49 On the other hand, I reject the evidence of Mr Garcev. He was an evasive witness, regularly raising technical issues to refuse to answer questions put to him. He refused to make obvious concessions. He was not forthcoming and his demeanour was not that of an honest witness. He was identified by Ms Higgs and her brother as being present in the September incident captured on CCTV. The language in the audio recording coincides with the words Ms Higgs says he used, including involving his elderly mother in the dispute. It would be a near impossible coincidence for there to be another person at her house using that same language. It is clear it is Mr Garcev.
50 Of significance, in my view, is that throughout this acrimonious fencing dispute, there is no evidence that Mr Garcev has taken any single step to try and bring about a resolution of the situation. He has refused to comply with Council notices, he has refused to obtain appropriate permits, and, most significant of all, he has refused, at least to date, to comply with an Order of the Magistrates’ Court made in November 2019 that the fence be constructed on the appropriate boundary line. It is my view he has done, and will continue to do, everything within his power to avoid and evade proper resolution of the matter. I assess him as unreliable and untruthful.
51 From the video and audio recordings, and the evidence of Ms Higgs, I accept she has been the subject of profane and threatening abuse by Mr Garcev. That abuse has waxed and waned, but I accept that, in particular in 2016 to 2017, it was constant over a period of months. Mr Garcev’s behaviour is to be condemned. I accept without reservation Ms Higgs has been left distressed, unsettled and in a position now, where, subject to the resolution of the fence, she will have to sell her house.
52 Given the evidence I have accepted, I am left in no doubt that Mr Garcev’s behaviour constitutes “harassment” within the definition of s7 of the Act. It is likely he has also caused assault to Ms Higgs.
53 Pursuant to s61 of the Act, I need also to be satisfied that that behaviour is likely to continue or occur again, and that such behaviour would put a reasonable person in fear for his or her safety.
54 Mr Garcev’s stubborn refusal to comply with the Orders and directions in relation to the fence to this day, in my assessment, is a clear indication that the behaviour is likely to continue or occur again. I am further left in little doubt that his behaviour would cause a reasonable person to fear for their safety.
55 Mr Garcev also takes issue with the term of the extension of the Protection Order. His counsel submitted a term of two or so years would be more appropriate. In my view, given the nature of his conduct over a considerable period, a term of ten years is entirely appropriate. It is Ms Higgs’ intention to sell the property, but she will be unable to do so until the fencing matter is resolved. It is uncertain how long that will take. In any event, given the threatening and abusive nature of his conduct, were she to move to another area, I am not satisfied that would offer a protection from his behaviour and a reduction in a fear for her safety.
Costs
56 On 27 April 2017, the Magistrates’ Court at Sunshine made an Order Mr Garcev bear costs of the proceedings. The Order records:
“That Mr Garcev bear the costs of these proceedings pursuant to s.111 in that, the court finds the application was brought in bad faith and was vexatious in nature.”
57 A short time before this Order was made, Mr Garcev withdrew the application he had made for a Protection Order. On 19 January 2017, Ms Higgs obtained a final Protection Order for a period of two years. Mr Garcev made application to have that Order set aside on the grounds that he “did not know, never informed”. On 9 March 2017, the rehearing application was refused. Although the Order of 27 April 2017 did not fix any specific amount for costs, the subsequent Order dated 13 June 2019 fixed costs of the 2017 Order in the sum of $5,116.00. It would appear the Magistrate or Judicial Registrar considered either Mr Garcev’s protection order application or application to set aside, or both, were “in bad faith and ... vexatious …”.
58 Prior to its expiration, Ms Higgs made application for an extension of the Protection Order. That matter was heard and determined in the Magistrates’ Court at Sunshine, and Orders made on 13 June 2019. A Protection Order was made for a period of ten years, and Mr Garcev was ordered to pay further costs in the sum of $4,400.00.
59 At the conclusion of this appeal, counsel for Ms Higgs applied for costs of this appeal, including reserve costs.
60 Section 111 of the Act provides that each party to a proceeding under the Act must bear their own costs; however, s111(3) states:
“(a)the court may make an order about costs if the court decides that exceptional circumstances warrant otherwise in a particular case; or
(b)if the court is satisfied in a particular case that the making of any application under this Act was vexatious, frivolous or in bad faith, the court may award costs against the applicant.”
61 I am satisfied that in respect of the costs Orders made in 2017, it was justified, given the withdrawal of the application for a Protection Order and the making of the application for a re-hearing were in bad faith and vexatious. He was able to provide no explanation in this Court to explain his conduct.
62 In respect of the 2019 Orders, exceptional circumstances existed such as to warrant an order for costs. I am further satisfied that those same circumstances exist such as to warrant an order for costs in this appeal.
63 The starting point is that generally, each party should bear their own costs. “Exceptional circumstances” is a phrase not defined in the Act. I was not taken to any authorities to assist in determining what “exceptional circumstances” mean. In my view, the phrase means circumstances which arise from the evidence, which indicate a course of conduct by one party so exceptional as to warrant a departure from the general rule. Those circumstances include conduct by a party that is inappropriate, egregious or demeaning towards another.
64 Given my findings as to the conduct of Mr Garcev, the abuse I am satisfied he has subjected Ms Higgs to, I am of the view it is appropriate that costs ought be awarded against him for the past hearings, and in respect of this appeal. Ms Higgs is a retired person, living alone and no doubt looking forward to a peaceful life. Instead, she has been subjected to the abuse by Mr Garcev to which I have referred and over a considerable period. Exceptional circumstances exist.
65 I will confirm the Orders as to costs previously made, and order that the costs held in the trust account of the solicitors for Ms Higgs be released to her. I will further order Ms Higgs’ costs of this appeal be paid by Mr Garcev.
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