Hoare v Pallikaros
[2024] VCC 1761
•9 October 2024
| 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-22-0120
| Julian Hoare | Appellant |
| v | |
| Chris Pallikaros | Respondent |
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| JUDGE: | CLAYTON |
| WHEREHELD: | Melbourne |
| DATEOFHEARING: | 9 October 2024 |
| DATEOFJUDGMENT: | 9 October 2024 |
| CASEMAYBECITED AS: | Hoare v Pallikaros |
| MEDIUMNEUTRALCITATION: | [2024] VCC 1761 |
EX TEMPORE - REASONS FOR JUDGMENT
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Subject: APPEAL - PERSONAL SAFETY INTERVENTION ORDER ACT 2010
Catchwords: Appeal – re-hearing of appeal – previous appeal heard in a manner contrary to law due to subsequent Supreme Court ruling – capacity of court to deal with expired intervention order – whether order of the Magistrates Court should be set aside.
LegislationCited: Personal Safety Intervention Order Act 2010; Crimes (Domestic and Personal Violence) Act 2007; Appeal Costs Act 1998
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Wass v DPP (NSW) [2023] NSWCA 71; Majumdar v DPP [2024] NSWCA 117; DDD
v Magistrates' Court of Victoria [2023] VSC 89; New South Wales Police v Murphy [2024] NSWSC 617
Judgment:The court’s jurisdiction is not enlivened. The plaintiff’s application is dismissed. The appellant is granted a certificate pursuant to s10 Appeal Costs Act 1998.
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| APPEARANCES: | Counsel | Solicitors |
FortheAppellant: | Mr A Patton | Best Hooper Lawyers |
FortheRespondent | Appeared in person |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
1Dr Hoare appeals from a decision of the Magistrates' Court to grant a final order, intervention order, against him and that order was made on 4 November 2021 and it expired on 4 November 2023.
2Dr Hoare appealed the order on 30 November 2021 and that appeal was heard on 8 and 9 November 2022 before Judge Robertson who reserved her decision. Prior to delivering her ruling Justice Dixon in the Supreme Court handed down his decision in AAA v County Court of Victoria & Ors [2023] VSC 13 which had the effect of changing the manner in which intervention order appeals are determined in this court. As a result of that, Dr Hoare's appeal had been conducted in a manner contrary to the law, and therefore no decision could be given and that hearing needed to be conducted again.
3The appeal was relisted but in the meantime the order had expired and that gave rise to a question about the court's capacity to deal with an expired order. I will deal with that question at the top of these reasons. I think, because I cannot find any other decisions that deal directly with this question, it is worth setting out the provisions of the Personal Safety Intervention Orders Act and the comparable provisions of the New South Wales Crimes Act.
4Section 80 of the Personal Safety Intervention Orders Act 2010 under power of the court to vary or revoke personal safety intervention orders establishes that the court may order the variation or revocation of a personal safety intervention order on an application under this division.
5In deciding whether to make an order under sub-s1 the court must have regard to all the circumstances of the case and in particular the following; (a) the applicant's reasons for seeking the variation of revocation, (b) the safety of the protected person, (c) the protected person's view about the variation or revocation, (d) whether or not the protected person is legally represented, (e) if the protected
person has a guardian the guardian's views. If the court decides not to grant an application for the revocation of a personal safety intervention order the court may instead order the variation of the intervention order in the way the court considers appropriate.
6And then at s83 the power of the court to extend a final order provides that the court may order the extension of a final order on an application under this division, the court may order the extension of a final order if the court is satisfied on the balance of probabilities that if the order is not extended the respondent is likely to commit prohibited behaviour or stalking against the protected person.
7And s3 provides that sub-s2 applies whether or not the respondent has (a) committed prohibited behaviour or stalking against the prohibited person while the final order was in force or (b) complied with the order while it has been in force.
8In comparison, s 73 of the New South Wales Crimes (Domestic and Personal Violence) Act 2007 provides in relation to a variation or revocation of final apprehended violence orders and interim court orders the following:
(1) The court must be satisfied that in all the circumstances it is proper to so vary or revoke a final apprehended violence order or interim court order.
(2) In particular a final apprehended violence order or interim court order may be varied under this section in one or more of the following ways;
a.by extending or reducing the period in which the order is in force;
b.amending or deleting any prohibitions or restrictions specified; or
c.by specifying additional prohibitions or restrictions in the order.
9The legislation provides at sub-s3 that the court may decline to hear an application in respect of an order if it is satisfied there has been no change in the circumstances.
10So it seems to me that the New South Wales legislation rolls up the power to extend the order into the power to vary the order, and in New South Wales requires that the court must be satisfied that in all the circumstances it is proper to extend the order. In Victoria however, the court must be satisfied that the respondent is likely to commit prohibited behaviour against the protected person if the order is not extended.
11In Wass v DPP (NSW) [2023] NSWCA 71 the order had expired and no application to extend the order under s83 had been made. The Court of Appeal held that there was no power to vary or revoke an order that had expired.
12In Majumdar v DPP [2024] NSWCA 117 Mr Majumdar had applied to revoke the order before it expired but by the time the revocation application was dealt with the order had expired. It was held that it had been open to Mr Majumdar to apply to extend the order for the purposes of setting it aside but he had not done so and there was no reason for the magistrate to extend the order of his own accord. So Majumdar suggests that the legitimate way in New South Wales, to deal with the situation where the order has expired prior to hearing of the application for revocation is to apply for an extension of the order.
13And that approach was endorsed by the New South Wales Supreme Court in Commissioner of New South Wales Police v Murphy [2024] NSWSC 617 where a judge dismissed the ground of appeal that obtaining an extension for the purposes of revoking the claim was an improper purpose. The court said that to seek an extension in those circumstances is the right thing to do, otherwise the litigant's legal rights are at the mercy of the exigencies of court lists and the sometimes oppressive workloads of magistrates. However, if the order is not extended, then by the reasoning in the authorities of Wass, Majumbar and Murphy, even though the application was made before the expiration of the order, there is nothing there for the court to vary or revoke.
14In Victoria the power to extend can only be exercised where the court is satisfied on the balance of probabilities that the respondent will commit prohibited behaviour if the order is not extended. Arguably this precludes the court from extending the order in the circumstances of Murphy or Majumdar where the purpose of the extension is to revoke the order.
15In the present case I do not consider that it would have been open to Dr Hoare to seek to extend the order after it expired in November 2023. He would have had to satisfy the court that he, the respondent to that order, would continue to commit the prohibited behaviour. That, I think, is clearly an untenable situation.
16Therefore, in circumstances where, through no fault of the appellant, the appeal has not been heard prior to the expiration of the order, the question is what power does the court now have to deal with an expired order?
17In DDD v Magistrates' Court of Victoria [2023] VSC 89 Justice Croucher held that after the expiry date the final order no longer exists and consequently he found that the Magistrates' Court had no power to vary or extend. Does this mean that similarly the County Court on appeal has no power to confirm, set aside or vary the relevant decision? All of Wass, Majumdar, Murphy and DDD are of one voice, that once an order has expired the magistrate has no power to deal with it. However, for the following reasons those cases are distinguishable from this case.
18First, those were cases dealing with the Magistrates' Court capacity to deal with an expired order and this is an appeal from a decision of the Magistrates' Court. Second, in the New South Wales cases the court was satisfied that an option existed for a party whose case had not been reached due to court exigencies prior to expiration of the order.
19That was to seek to extend the order for the purposes of having it set aside. That is not an option that is available in Victoria given the difference in legislation where on an extension application the Magistrates' Court would have to be satisfied that,
at the time the extension was sought the person seeking the extension was likely to continue to commit the prohibited behaviour.
20Third, the effects of the making of a final personal safety intervention order can outlast the duration of the order, and the examples that have been given are the suspension of a firearms licence or the impact on employment opportunities. There would be an injustice if an incorrect decision in the court below was rendered unappealable by circumstances outside the control of the appellant, such as court delays. Accordingly, I am satisfied that the fact that the order has now expired does not preclude me from hearing and determining the appeal on the basis that there is no utility in the appeal.
21Dr Hoare was represented by counsel at the appeal and counsel provided comprehensive and helpful written submissions and Mr Pallikaros appeared for himself.
The Magistrate’s reasons
22Turning now to the reasons of the magistrate. The magistrate heard the case over three days and delivered her decision on 4 November 2021. As only Dr Hoare seeks to appeal the magistrate's decision, I have extracted from her reasons those parts that deal with Mr Pallikaros' application. I am not dealing with Dr Hoare's application against Mr Pallikaros, except so far as the evidence in Dr Hoare's application is relevant to any of the findings of the magistrate on this appeal.
23I say that because I do not want Dr Hoare, who I know is in court today, to consider that I am not dealing with the evidence about Mr Pallikaros' conduct because I am somehow overlooking or ignoring it. I am not dealing with it in a direct way because it is Dr Hoare's appeal, not Mr Pallikaros' appeal.
24The learned magistrate summarised the evidence in Mr Pallikaros' application as follows: The application of Mr Pallikaros is that Dr Hoare has committed prohibited behaviour by harassing and intimidating him and by keeping him under
surveillance. The behaviour includes videoing, aggressive verbal abuse, making persistent verbal demands and complaints, causing in excess of 153 emails to be sent by Mrs Hoare, despite a letter from Mr Pallikaros' legal representative requesting that all communication take place through them and cautioning an application pursuant to this Act in the event that he did not desist.
25The conduct has caused Mr Pallikaros, he says, significant stress and distress. He has been intimidated he says. His stress is exacerbated because Dr Hoare also harasses and challenges contractors on the site, at times causing them to abandon the site. This conduct has caused delays and expense. Mr Pallikaros' has called the police on six occasions due to what he regards as the harassing conduct of Dr Hoare. It is Mr Pallikaros' evidence that on each occasion that a confrontation occurred it followed from Dr Hoare and Mrs Hoare approaching him or his property.
26Mr Pallikaros asserts that the persistent past conduct of Dr Hoare and his determination to obstruct either the construction of his home or his enjoyment of it, indicate that Dr Hoare will continue to harass and seek to intimidate him. Mr Pallikaros alleges there have been two occasions on which Dr Hoare has contravened the interim intervention order by videoing him from his balcony, photographs are produced to support these allegations.
27Dr Hoare has been charged in regard to one incident and that charge is pending. Dr Hoare denied that he has contravened the interim order. Dr Hoare denied that his conduct towards Mr Pallikaros constituted harassment. When he took footage of works it was solely, he says, for the purpose of recording activity on the worksite in order to document unsafe practices or departure from sanctioned works. He was particularly concerned to ensure that his property was not undermined. When he approached the property of Mr Pallikaros he did so for legal purposes. He did not trespass and had no intention to harass or stalk.
28Emails were sent by Mrs Hoare to Mr Pallikaros regarding the works because Mr Pallikaros was the responsible builder and had certain obligations and because Mr Pallikaros' lawyer had engaged in improper conduct, Dr Hoare was not prepared to engage with that lawyer. When Dr Hoare approached Mr Pallikaros with legitimate concerns Mr Pallikaros, he says, was unresponsive save for when he became abusive.
29Dr Hoare denied the allegation he filmed Mr Pallikaros at the site on 15 March 2021 as alleged by Mr and Mrs Pallikaros. Dr Hoare has expressed his intention to continue to assert his legal rights to challenge the legality and compliance of the works being undertaken by Mr Pallikaros. He and his wife disputed the recorded boundary of the property claiming entitlement due to adverse possession.
30The learned magistrate made the following findings.
“I am satisfied that Dr Hoare has engaged in conduct including filming, approaching and following, persisting in causing emails to be sent despite a reasonable request that they be directed to a legal practitioner, which constitutes deliberate intimidation and harassment of Mr Pallikaros. I note that in a recording created on 10 February 2020 by Mrs Hoare, Dr Hoare responds to aggressive verbal abuse by Mr Pallikaros as follows. 'I am a member of the public. I can stand here all day'.
This expression of an intent to exercise the lawful right was, in my assessment, given the context and history, an example of Dr Hoare's capacity to use the exercise of an entitlement as a form of harassment. Dr Hoare asserts in his particulars the following. 'I have lawfully and determinately exercised all the legal options open to me to oppose his', that is Pallikaros, 'personal house development which I do not consider complies with the Building Act and regulations. It is my intention to continue to further pursue my legitimate appeal rights but at all times within the framework of the law'.
Mr Pallikaros has estimated that the building works require another 12 months to completion. Given the progress of works to date it is reasonable to anticipate a longer period. There exists between the parties entrenched animosity unfortunately combined with proximity. There is the necessity that the parties resolve the issue of the disputed boundary in the near future. Mr Pallikaros minimises his aggressive behaviours. Dr Hoare lacks perspective or insight in pursuit of his perceived entitlements.
Having regard to the above I am satisfied with regard to the applications, Mr Pallikaros and Dr Hoare, that each has been subject to prohibited behaviour by the other. Mr Pallikaros by the harassing conduct of Dr Hoare and Dr Hoare by the assault and verbal aggressions of Mr Pallikaros. And I am also satisfied that there is a likelihood that the behaviour will occur again. With regard to the application of Mr Pallikaros against Dr Julian Hoare, I will order that Dr Julian Hoare not commit prohibited behaviour that he not follows or keep Mr Pallikaros under surveillance and that he not engage another person to do those things which I have prohibited.”
31The final order against Dr Hoare specified that he was not to keep Mr Pallikaros under surveillance, not to publish on the internet or by email or by any other electronic communication, any material about Mr Pallikaros. I note here that the terms of the order were different to the terms of the order against Mr Pallikaros in relation to Dr Hoare and Mrs Hoare.
Grounds of appeal
32Turning now to the grounds of appeal. Dr Hoare relies on three grounds of appeal.
33Ground 1 - that it was not reasonably open to the learned magistrate to find that the appellant had caused the impugned emails to be sent.
34Ground 2 - that it was not reasonably open to the learned magistrate to find that either the content and/or the volume of the impugned emails amounted to harassment and intimidation.
35Ground 3 - that the learned magistrate did not afford the appellant procedural fairness and natural justice in that she failed to alert the appellant or his legal representatives to the possibility of finding that the appellant caused the emails to be sent and did not afford him the opportunity to make submissions on this point.
Mr Pallikaros’ submissions
36Mr Pallikaros says the appeal should be dismissed as the learned magistrate did not err. He says that even if she did make a mistake about the emails, that mistake was not a material error because the main reason she granted the intervention order was because of the police intervention, the videos, the harassment of workers that formed probably 90 per cent of harassment for the four years. I have taken that submission from the submissions that Mr Pallikaros made on the previous occasion in this appeal. He says that even if Dr Hoare had not caused the emails to be sent there was sufficient evidence before the learned magistrate for her to be satisfied that the orders should be made.
Dr Hoare's submissions about the email evidence
37Dr Hoare submits that the evidence was as follows:
(a)the emails sent to Mr Pallikaros were not always directed or addressed to him, some were sent to other building industry professionals and he was copied into the email;
(b)some of the emails included responsive emails that had been “replied all” to by others;
(c)the emails sent by Mrs Hoare were mostly sent to multiple recipients about construction work, particularly when litigation and related proceedings were on foot.
38Mr Pallikaros conceded that Dr Hoare had sent virtually none of the emails. Dr Hoare submits Mr Pallikaros’ evidence that Mrs Hoare was representing Dr Hoare was inadmissible speculation. Mrs Hoare said she had written the emails as she had been repeatedly told that she had to communicate with the project manager, which was the respondent. Dr Hoare said he did not know the content of the emails sent by Mrs Hoare. It was not reasonably open to the magistrate to conclude that the volume or content of the emails amounted to harassment or were intimidatory in the circumstances.
Evidence before the magistrate about the emails
39Dealing first with ground 1, evidence that Dr Hoare caused the emails to be sent. Mr Pallikaros put evidence before the magistrate via two emails that he had been sent 163 emails. It is now agreed that it was 183 emails.
40It was put to him that there were not 183 emails from Dr Hoare, and Mr Pallikaros agreed. Mr Pallikaros said that Mrs Hoare was representing Dr Hoare. The magistrate invited counsel to challenge Mr Pallikaros' evidence about how he reached that conclusion and what observation he had made. Mr Pallikaros gave evidence at transcript 75 that, 'Well that's how I would envisage it. I don't have any proof that it's from him but I would envisage it comes from him by the wording, by the way the building, um, you know the writing of all the emails, the description of all the emails or all the wording on the emails relate to'.
41It was put to Mr Pallikaros that there was no evidence to back up his claim of harassment by email. The magistrate noted that Mr Pallikaros did not put his case that any particular email constituted harassment and on that basis she did not allow Dr Hoare's counsel to go to each email individually.
42Counsel for Dr Hoare said that Mr Pallikaros referred to hundreds of emails but actually she, counsel, had counted, I think at that point, ]this was during the hearing before all of the emails came before the court, 24 emails authored by Mrs Hoare on various dates.
43Before the magistrate, Dr Hoare’s counsel submitted that that was not an inappropriate number of emails, the tone was always appropriate and the matters that were raised were legitimate concerns, and one of those emails was signed jointly but the others were all only authored by Mrs Hoare.
44In the Magistrates’ Court Counsel said that 'As long as there is no suggesting that Mrs Hoare is engaging in the conduct she is engaging in at the behest of Dr Hoare', to which the magistrate responded, 'Well no, it's also relevant with regard to this, is that it's Dr Hoare has also pursued Mr Pallikaros for information and clarification with respect to building works and he has not done it by email, save on that occasion to which you referred. His methodology is, according to the evidence of Mr Pallikaros, make demands from his balcony or from the street'.
45Counsel for Dr Hoare then conceded that, outside the duties and obligations with respect to the protection works, Mr Pallikaros did not have a legal obligation to respond to Dr Hoare. There was some toing and froing about whether the demands that were made were legitimate demands because there was an obligation to respond and counsel in the court below submitted that there was an obligation to respond in relation to the protection works but not otherwise.
46The legal obligations on Mr Pallikaros were that he was required to have a visible permit and plans onsite, insurance and so on. But in terms of responding to particular queries or concerns from neighbours or the public there was no legislative basis outside the protection work and the protection work had been resolved. That was the evidence before the magistrate. It became clear that all the emails that Mr Pallikaros relied on had not got through to the court due to some technical difficulties and there was some discussion about whether the balance of the emails could be admitted. Ultimately that course was adopted.
47Dr Hoare's counsel made application to the magistrate that she read the emails. The magistrate acceded to that application and said, 'It's your application today that I now take the time to read them and otherwise I would be prepared to deal
with this matter on the basis of the frequency of the contact and I might say the context of the communication that says, "Please do not make contact with me again, make contact with my lawyers"'.
48Dr Hoare's evidence about the emails was, at transcript 92, court book 219, he was asked, 'So you intended to seek that clarification because you hadn't had a response to your wife's attempts via email to get answers to these questions?' And he responded, 'I haven't read her emails. She does all the hard work but I assume she would've written to the relevant building surveyor or to Mr Pallikaros saying "What's happening here, are you going to install or construct the board tiers or not but I" and then he's interrupted "When you" and then he goes on "Sorry, but I certainly wanted to know for my own personal knowledge"'.
49As far as I can tell from reading the transcript that's the only direct reference that Dr Hoare makes to the emails. Mrs Hoare's evidence about the emails was that 'All my emails have been absolutely professional. They may have been detailed but that doesn't mean harassment'. And she says, 'We have written many emails to their, to Mr Pallikaros and the building surveyor about, look soil is moving et cetera, et cetera'.
50Before turning to consider whether it was reasonably open to the magistrate to find that Dr Hoare caused the emails to be sent, it is necessary to examine the other evidence before the court. This provides the context for the magistrate to draw any inferences and reach any conclusions and enables me to examine whether such inferences were open.
Evidence about harassment
51The magistrate had before her, in addition to hearing from Mr and Mrs Pallikaros and Dr and Mrs Hoare, a timeline provided by Mr Pallikaros, which I understand became the further and better particulars of the complaint, and which he adopted as his sworn evidence, and that details events from at least 2018, I think it goes
back earlier, which Mr Pallikaros characterised as harassment. I am just going to briefly summarise those matters.
52In February 2018 threatening Magistrates' Court action. Dr Hoare and Mrs Hoare harassing the building surveyor, Mike Neighbour, who subsequently left the job. Dr Hoare lodging a complaint with the Legal Services Commissioner against Mr Pallikaros' solicitor. Dr Hoare blocking the driveway in May 2019 so that trucks and a bobcat could not leave the site. In August 2019 Mr Pallikaros' lawyer advised Dr Hoare and Mrs Hoare that if they continued to contact Mr Pallikaros personally, they will take proceedings to get an intervention order.
53In September 2019 an email from Dr and Mrs Hoare that they will not deal with the lawyers and will deal directly with Mr Pallikaros despite the earlier email from the lawyers. November 2019 Dr Hoare on his balcony taking photographs and yelling at a contractor to leave the site and stop work. And Mr Pallikaros said that he felt intimidated and harassed and had to calm his worker down who wanted to leave the site. Mr Pallikaros said that Dr Hoare said to him 'Your house will never be built'.
54Tenth February 2020 Mr Pallikaros says Dr Hoare trespassed on his land and refused to leave and he said he felt intimidated and harassed and was very upset and he felt that Dr Hoare was trying to cause delays. Eleventh February 2020 Mr Pallikaros said Dr Hoare yelled at his workers telling them what to do and that Mr Pallikaros said he felt very anxious by the constant harassment.
55Seventeenth February 2020 Mr Pallikaros said Dr Hoare took photos of him and yelled at him while quoting the Building Act and calling him repeatedly 'master builder, master builder' which caused him stress and anxiety. He said that it caused him to have to leave the building site to calm down and that it was creating difficulty with him carrying out his work safely.
56On 4 March 2020 Dr Hoare stood in front of trucks blocking them from leaving the site. Mr Pallikaros left the site. Dr Hoare followed Mr Pallikaros up and down the street. Mr Pallikaros said he went to get into his car and this led to the incident where Mr Pallikaros ultimately knocked Dr Hoare's mobile phone out of his hand.
57In the video taken by Dr Hoare he can be heard saying 'You are not complying; you're endangering the health of your workers and my property. What are you going to say to that?' Dr Hoare then asserted that Mr Pallikaros had broken the law and will be prosecuted and that Dr Hoare was talking to Mr Pallikaros in his capacity as a builder and that 'If you are the builder you have to talk to people'.
58On 12 March 2020 Mr Pallikaros says that water was running from Dr Hoare's property into his basement. Mr Pallikaros considered this was sabotage causing additional costs directed by the damage to the work that was already done. On 17 March 2020 Mr Pallikaros says Dr Hoare yelled at him a recitation of the Building Act, accused him of wrong practices and that caused him to feel intimidated and harassed. On 23 March 2020 Mr Pallikaros says that Dr Hoare yelled at him about the condition of the site.
59On 24 March 2020 Mr Pallikaros says Dr Hoare was hanging over the fence yelling at Mr Pallikaros' surveyor and calling out to him, Mr Pallikaros, about correct levels. Mr Pallikaros said his excavator driver could not stand Dr Hoare yelling at him anymore. Mr Pallikaros told Dr Hoare to stop but he did not stop and Mr Pallikaros' workers walked off the site. Mr Pallikaros said that this was intimidating and harassment that caused him stress.
60On 25 March 2020 Mr Pallikaros said Dr Hoare lent over his fence and yelled at Mr Pallikaros and his workers. On 26 March 2020 Mr Pallikaros says Dr Hoare again lent over the fence, was videoing his workers and yelling from his balcony and fence and again workers of Mr Pallikaros walked off the site. Mr Pallikaros says Dr Hoare was continually asserting that Mr Pallikaros was not complying with
his building permit and that that was causing him a great deal of stress and was intimidating.
61On 30 March 2020 Mr Pallikaros says Dr Hoare followed Mr Pallikaros up and down the street and was less than a meter from him while videoing him and raising his voice. Mr Pallikaros said this went on for 20 minutes and left him feeling very shaken, scared and intimidated. On 14 April 2020 Mr Pallikaros says Dr Hoare was again leaning over the fence and yelling from his balcony at Mr Pallikaros. On 17 April 2020 Mr Pallikaros says Dr Hoare was taking photos of him and taunting and intimidating him.
62On 7 May 2020 Mr Pallikaros said Dr Hoare took photos of Mr Pallikaros and taunted him with the Building Act, in his words 'continuously and relentlessly'. On
11 May 2020 Mr Pallikaros says Dr Hoare took photos and videos of Mr Pallikaros and told Mr Pallikaros that he would take him to court. On 12 May 2020 Mr Pallikaros says Dr Hoare was yelling out and asking questions to Mr Pallikaros' excavator driver.
63On 13 May 2020 Mr Pallikaros says Dr Hoare followed Mr Pallikaros to the other side of the road and stood on the road for five minutes asking Mr Pallikaros for copies of the engineering plans and this conduct was witnessed by Mr Pallikaros' workers. Mr Pallikaros said that this caused him to feel exhausted. On 19 May 2020 Mr Pallikaros said Dr Hoare walked between an excavator and working vehicles in front of the site, which was a no-go zone with boards and signage, and Dr Hoare entered without permission and photographed his workers.
64On 21 May 2020 Dr Hoare taunted and harassed Mr Pallikaros' worker, causing the worker to walk off the site and this caused a great deal of stress for Mr Pallikaros. On 26 May 2020 Mr Pallikaros says Dr Hoare said to an unknown person on Dr Hoare's balcony, in Mr Pallikaros' presence words to the effect that, 'There are so many faults with the construction that Mr Pallikaros won't be there for much longer and a for sale sign will be on his block soon'. And on 30 May 2020
Mr Pallikaros said that Dr Hoare again filmed the construction site from his balcony and that on 1 June 2020 Dr Hoare filmed the site from his balcony.
65It was put to Mr Pallikaros in cross-examination that the reason that he was making the application for the personal safety intervention order was to prohibit Dr Hoare from documenting the building works and not to protect himself from harassment. Mr Pallikaros rejected that proposition and said that it was so that the 'Instigation from Dr Hoare would not happen again, and from, you know, from taking that interim intervention order Dr Hoare has not approached me physically as he has done in the past'. He said he thought that 'Coming up to my face and yelling at me and abusing me or trying to communicate to me and I said "No, stop communicating" is that abuse, I think it is'. He said he sought an intervention order only to prevent Dr Hoare stalking and communicating with him.
66Mrs Pallikaros gave evidence largely about the emails and their impact on both her and Mr Pallikaros. She gave evidence that over the past few years there had been incidents involving Dr Hoare where Mr Pallikaros had called her and asked her to come to the site or asked her to call the police. She gave evidence that on 13 February, I note there was no year provided, she had observed Dr Hoare with his camera and tripod out filming the site.
67She said that on another day, on 2 February 2018, she was on the street with some friends and Dr Hoare and Mrs Hoare came out. Mrs Hoare came up to within centimetres of her face and began talking to her. Mrs Pallikaros asked that she not speak to her. The friends that she was with had a Harley Davidson and Mrs Hoare relied on this exchange in evidence as evidence that Mr Pallikaros had engaged bikies to intimidate. Mrs Pallikaros gave evidence that the person labelled by the Hoares as a bikie was in fact an architect.
68The details of many of these altercations and interactions were disputed by both Dr and Mrs Hoare in their evidence but I set out here the evidence that was available to the magistrate to accept or reject in making her decision.
Findings on ground 1: that it was not reasonably open to the learned magistrate to find that the appellant had caused the impugned emails to be sent.
69It is clear from the evidence that I have set out that the magistrate was not labouring under any misapprehension that Dr Hoare had personally authored or signed the emails. Nor could she have accepted Mr Pallikaros' 'evidence' that Mrs Hoare was representing Dr Hoare, as Mr Pallikaros conceded that he had no such evidence. This amounted to nothing more than a submission by Mr Pallikaros that the court should infer that Dr Hoare had caused the emails to be sent. Although his name was assigned to 20 emails with an additional email coming from Mrs Hoare and identified as being on behalf of Dr Hoare, the magistrate proceeded on the basis that Mrs Hoare had sent most of the emails.
70To have decided that Dr Hoare caused the emails to be sent the magistrates must have drawn an inference based on the evidence before her. That evidence included: that Dr Hoare and Mrs Hoare were and are married and living together at a house neighbouring the property; that Dr and Mrs Hoare were both concerned by the construction and were involved in litigation in relation to that construction; and that the content of many of the emails reflected the same concerns Dr Hoare expressed to Mr Pallikaros in his verbal interactions with Mr Pallikaros, for example in relation to the fence, the excavation and the building permits.
71The magistrate noted for example that Dr Hoare was pursuing Mr Pallikaros for information and clarification regarding the building works, albeit that he had done it from the balcony and the street while his wife had done it in email. Mrs Hoare gave evidence that, 'We have written many emails and we have got nothing back', though Dr Hoare says this evidence was given only in relation to those emails which both Mrs Hoare and Dr Hoare had sent under both their names, specifically to the building surveyor.
72Dr Hoare said he did not read his wife's emails because, 'She does all the hard work' but he had assumed what she would have written, and while this is evidence that he was not involved in the drafting of the emails, it suggests they were of one
mind about the content. The magistrate was entitled not to accept Dr Hoare's evidence that he was not aware of the emails that his wife was sending. I consider that, having regard to those matters and that evidence, there was a basis upon which the magistrate could have inferred that Dr Hoare caused the emails to be sent.
Findings on ground 2: that it was not reasonably open to the learned magistrate to find that either the content and/or the volume of the impugned emails amounted to harassment and intimidation
73Turning now to whether the content or volume of the impugned emails amounted to harassment and intimidation. In addition to the evidence from Dr Hoare, Mrs Hoare, Mr Pallikaros and Mrs Pallikaros, the magistrate had before her the following:
(a)the timeline of events setting out the harassment which I have detailed already;
(b)a number of photographs;
(c)video footage from 4 June 2020 of Dr Hoare on his balcony taking what appears to be photographs of the site;
(d)video footage again on 4 June of Dr Hoare on his balcony either photographing or videoing the construction site. Dr Hoare is speaking in the footage but most of his words are largely inaudible. At one point he does say words to the effect that he will contact WorkSafe;
(e)video footage of Dr Hoare approaching Mr Pallikaros as he gets into his car. Dr Hoare tells Mr Pallikaros that he is not complying with his building permit and he is endangering the health of workers on his property and says, 'What are you going to say to that', and then there is the incident where Mr Pallikaros throws Dr Hoare's phone onto the ground;
(f)audio recording of Dr Hoare's assertion that he is entitled to see the building permit and that he is going to set foot onto Mr Pallikaros' property and then Dr Hoare can be heard repeatedly asserting in that recording that Mr Pallikaros has invited him onto his property, despite Mr Pallikaros disputing that. Mr Pallikaros becomes verbally abusive and in response Dr Hoare says, 'Oh dear, look at you, have you been taking your medication Chris?' And he then tells Mr Pallikaros that if he is building without a permit it is an indictable offence, and he asks Mr Pallikaros if Mr Pallikaros knows what indictable means and then says, 'It means jailable'. And in that recording he asserts he is a member of the public and can stand in the street all day and that although Mr Pallikaros might not like it, he is entitled to do so; the emails which are reproduced in the court book that I have been provided with.
74Dr Hoare has very helpfully provided a spreadsheet of the emails provided to the Magistrates' Court at pp1156-1193 of the court book which sets out the date, subject and content of each email as well as the sender and recipients. The magistrate set out at the outset of the hearing that the question was whether there was conduct in the nature of prohibited behaviour or stalking or whether the conduct was simply the legitimate exercise of a right. She noted that the context in which the behaviour had occurred was relevant to her assessment of whether the conduct was stalking or prohibited behaviour and relevant to whether the conduct was likely to happen again.
75She noted that was 'because of the nature of the relationship that exists between you as neighbours or disputants in legal proceedings or people with a fixed view about one another'. It is apparent from the magistrates' comments during the hearing and her reasons that she found Dr Hoare had engaged in prohibited behaviour because of all his conduct. The emails were only one component of that conduct. Though it is submitted that the magistrate relied heavily on the emails as a reason for making the order I do not accept that submission. It is
apparent that the emails are only one component and it is the entire context in which the emails were sent that was considered by the magistrate.
76The content of the emails was not apparently directly relevant to her assessment. She articulated clearly in the passage above that the context of the behaviour was a relevant factor in her assessment. She was alive to the prospect that the behaviour might be occurring as part of the legitimate exercise of a right. Plainly enough she rejected that characterisation having read all the emails and heard all the evidence.
77Mr Pallikaros gave evidence that on multiple occasions he felt intimidated by the conduct engaged in by Dr Hoare. It was open to the magistrate to accept that evidence, although incumbent upon her to determine objectively whether the conduct could amount to prohibited conduct. The fact that the emails on their face are not objectively demeaning or derogatory does not mean that they cannot constitute harassment as part of a course of a conduct. Multiple emails that assert non-compliance with legislative obligations, threaten litigation and costs can, depending on the context, constitute harassment.
78I do not accept the assertion that none of the emails could be considered intimidating but that is not relevant to my assessment, as it is plain that the magistrate did not make her determination on the basis of the content of the emails.
79Dr Hoare submits that the volume of emails could not be considered harassment given the context in which they were sent, being litigation between the parties where from time to time neither party was legally represented and given that many of the emails are to multiple recipients, and Mr Pallikaros is copied in. The magistrate does appear to have taken into consideration in her assessment of Dr Hoare's conduct the fact that the Hoares declined to engage with Mr Pallikaros' appointed lawyer.
80I am not sure that there is any objective standard about the quantity of emails that could be considered harassment. Dr Hoare submits that it is important to take into account the context of the volume and that having regard to the circumstances of this case the volume could not be said to be excessive or even large. Dr Hoare submits that if both parties were legally represented the volume of emails would likely be greater and questions whether that could possibly be considered harassment.
81I accept that context is vital to an assessment in this case. Had the behaviour consisted only of the emails the volume on its own might not have been sufficient to amount to harassment. I am satisfied that it was, however, reasonably open to the magistrate to find that the volume of the emails together with the other behaviour constituted a course of conduct that was intimidating and amounted to harassment.
Findings on ground 3: that the learned magistrate did not afford the appellant procedural fairness and natural justice in that she failed to alert the appellant or his legal representatives to the possibility of finding that the appellant caused the emails to be sent and did not afford him the opportunity to make submissions on this point
82Turning now to whether there was a denial of procedural fairness. It was put by Mr Pallikaros that Dr Hoare caused the emails to be sent. Dr Hoare submits that it was not squarely put to him in cross-examination that he had sent the emails or caused them to be sent. Further, Dr Hoare says that if the magistrate was going to draw an inference that was only open on the basis of what was described as collateral evidence, that is the fact that Dr and Mrs Hoare were married, lived next door, held similar concerns about the construction and so on, it was incumbent upon the magistrate to raise this with counsel.
83The magistrate could and should have directed counsel to make submissions about how she should treat the evidence if she was to reject Dr Hoare's evidence that he did not write the emails, or alternatively if she was going to draw an inference that he caused the emails to be sent. Dr Hoare submits that if the
magistrate was going to weave together collateral evidence so as to reach a conclusion it was incumbent to raise that with counsel, especially in circumstances where there was no overt clear line of evidence that would support the allegations made by Mr Pallikaros in his application that hundreds of emails had been sent by Dr Hoare. Dr Hoare submits that counsel could not be expected to have gleaned the path to a conclusion that the magistrate ultimately appears to have taken.
84While it could not be said that the magistrate made a decision on a matter that was not the subject of any evidence, or that Dr Hoare's counsel would have been taken by surprise that it was part of Mr Pallikaros' case that the emails were part of the claimed harassment, there is force in the submission that, in light of the evidence or more appropriately lack of evidence that came out supporting Mr Pallikaros' assertion that Dr Hoare had written or caused to be written hundreds of emails, the magistrate should have raised this with the parties and invited submissions and set out the basis upon which she might draw an inference. However, for the reasons below, I am not satisfied that, if the magistrate was in error in not so raising this matter, it constituted a material error.
85Turning now to consider whether there was a material error. If I am wrong that the magistrate did not fall into error in her finding that Dr Hoare caused the emails to be sent, or that the volume of emails could constitute harassment, and dealing also with the issue of procedural fairness, I turn now to consider whether such error was material. That is, if the magistrate had not found that the emails were caused to be sent by Dr Hoare, whether that finding could have, not would have, but could have resulted in a different outcome. For the reasons below I am satisfied that the error was not material.
86Dr Hoare says that his conduct could not have amounted to harassment, and that I must look at the context which was the long-running dispute between the parties involving litigation before VCAT, the Building Appeals Board, the Magistrates'
Court and the Supreme Court on planning matters, protection works, adverse possession claims, property damage and costs.
87There was unchallenged evidence that it was Mrs Hoare who directed written communication to Mr Pallikaros and that she was seeking to raise legitimately held concerns. Dr Hoare submits that he engaged in filming and photography to document his concerns and that it was reasonable to film given that Mr Pallikaros' conduct, for example knocking his mobile phone from his hand and stomping on it, and it was not unreasonable to record his interactions with Mr Pallikaros and others under his control and direction on the construction site.
88Dr Hoare submits there was no evidence that Dr Hoare was abusive, and the evidence was that only Mr Pallikaros was abusive. Dr Hoare says that there were legitimate issues, demands and complaints made in the context of litigation which cannot amount to prohibited behaviour. Dr Hoare says he was vindicated by determinations at VCAT, the Building Appeals Board and the Magistrates' Court. Dr Hoare says the verbal exchanges could be described as argumentative and heightened but not abusive and that his behaviour was not demeaning, derogatory or intimidating and therefore did not constitute harassment as defined by the Act.
89However, I am satisfied that Mr Pallikaros' evidence about the conduct of Dr Hoare over a number of years, which consisted of:
(a)photographing and videoing Mr Pallikaros and workers on the site while also calling out from his balcony, and at least on one occasion saying he would call WorkSafe;
(b)yelling at Mr Pallikaros including and at least on one occasion using taunting language such as 'Have you taken your medication' and 'Master builder, master builder';
(c)asserting that Mr Pallikaros was endangering his workers, was in breach of the law and might be committing an indictable offence and be liable to go to gaol;
(d)standing in front of the driveway prohibiting trucks and vehicles from exiting the street;
(e)asserting that he had been invited onto Mr Pallikaros' property when plainly he had not;
(f)pursuing Mr Pallikaros in the street asking questions, despite Mr Pallikaros saying he did not want to talk to him; and
(g)asserting that he was entitled to behave in the way he was behaving;
was sufficient to constitute harassment, being a course of conduct that is intimidating, and therefore constitutes prohibited behaviour.
90The fact that Dr Hoare may have had legitimate complaints does not mean that his conduct cannot also constitute prohibited behaviour. I can see no basis upon which one could assert that blocking trucks and vehicles is simply the expression of a legitimate concern or that using taunting language is pursuing a legitimate interest. I do not accept that the videoing was done simply to document progress and concerns on the building site for use in litigation, given that the videoing at least occasionally was accompanied by yelling.
91I do not accept that Dr Hoare's primary motive in yelling out to workers was to raise his legitimate concerns or to have them stop work because of his legitimate concerns. However, even if that was his primary motive, the objective impact of that conduct was to cause harassment to Mr Pallikaros. I do not accept that harassing a person's workers cannot also cause harassment to that person. Yelling at Mr Pallikaros' workers could and I am satisfied did result, objectively, in harassment of Mr Pallikaros.
92If Dr Hoare had legitimate concerns about workers' safety, the appropriate way to raise that concern was through the appropriate authorities, not by pursuing Mr Pallikaros down the street saying he was endangering his workers. If Dr Hoare had legitimate concerns that the building permit was not valid, he was fully aware of the appropriate forum in which to raise that concern and evidently has pursued those legitimate concerns in the appropriate places.
93That legitimate concern does not mean his conduct in yelling out that Mr Pallikaros might be committing an indictable offence cannot be harassment or amount to intimidating behaviour. The mere existence of legitimate concerns does not provide a cover for harassment.
94Accordingly, even if I was satisfied that the magistrate had made an error, I do not consider it a material error. I am satisfied that the same order would have been made on the evidence even if the emails did not exist, as the evidence establishes a sufficient basis for the magistrate to have made the order. I am not persuaded that there could have been a different outcome.
95Accordingly, the court's jurisdiction is not enlivened and the appeal is dismissed. I briefly say that had I reached a different conclusion I would have acceded to Dr Hoare's application for new and fresh evidence.
96Dealing very briefly with costs. Dr Hoare seeks an order that he be indemnified pursuant to s10 of the Appeals Costs Act for costs thrown away due to the discontinuance of the appeal on 8 and 9 November 2022.
97The proceeding was discontinued because of the decision in AAA and the finding in that case that the accepted practice of this court in hearing such appeals until that time was on an incorrect basis. It follows that the reason for the discontinuance was not attributable to an act, negligence or fault of either party. Dr Hoare engaged solicitors and briefed counsel to prepare for and attend that hearing.
98I accept that he incurred costs that were thrown away in the preparation and running of that hearing and am satisfied that it is appropriate that those costs are indemnified by an indemnity certificate pursuant to s10.
99Those are my reasons.
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