Huang v Fitzgerald (Ruling)
[2021] VCC 1280
•3 September 2021
| 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-21-0227
| KAI HUANG | Applicant |
| v | |
| ALEXANDER FITZGERALD | Respondent |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 July and 16 August 2021 | |
DATE OF RULING: | 3 September 2021 | |
CASE MAY BE CITED AS: | Huang v Fitzgerald (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1280 | |
RULING
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Subject:INTERVENTION ORDER APPEAL
Catchwords: Personal Safety Intervention Order – dispute between neighbours – costs application by respondent
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic), s5, s10, s61, s111
Ruling: Magistrates’ Court Order confirmed and costs application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | The applicant appeared in person | - |
| For the Respondent | The respondent appeared in person | - |
HIS HONOUR:
Introduction
1On 21 January 2020, in the Magistrates’ Court at Melbourne, Kai Huang obtained an Interim Intervention Order against Alexander Fitzgerald. He did so under the Personal Safety Intervention Orders Act 2010 (Vic) (“the Act”). Ultimately, on 3 February 2021, Mr Huang’s application for a final intervention order came for hearing. Unfortunately, he did not appear and his application was struck out. Subsequently, he sought the reinstatement of his application but this application was refused. On 25 February 2021, he appealed to this Court.
2The appeal came before me on 1 July 2021. Having heard the evidence of Mr Huang, it became clear that both parties had misunderstood the directions given by another judge of this Court. The appeal was adjourned to 16 August 2021 to allow the parties to call other witnesses. The rest of the evidence was heard that day. After giving brief oral reasons and stating that I would either confirm the magistrate’s order or vary it by refusing the application, I adjourned the appeal to 3 September 2021 for the delivery of full reasons, the making of the Order and the determination of an application for costs made by Mr Fitzgerald.
Circumstances
3In 2017, Mr Huang and his wife bought a property at 41 Nursery Avenue, Frankston for the purposes of renting. They live in Hawthorn. Mr Fitzgerald and his wife, Amanda Tipping, live at number 39. After initial friendly relations between Mr Huang and Mr Fitzgerald, relations turned sour over the type and number of persons occupying Mr Huang’s property. It was rented through Airbnb. Generally, the tenants stayed for short periods but on occasions, many stayed at the same time. A series of incidents occurred involving Mr Fitzgerald, Mr Huang and his family and some of the tenants. These incidents formed the basis of Mr Huang’s application for an intervention order.
4Pausing there. Having heard from each of Mr Huang, his wife, Mr Fitzgerald and his wife, I consider each of them to be a truthful witness.
5I will discuss the various incidents.
Tin in the driveway
6Mr Huang discovered a piece of tin in his driveway. It is depicted in a photograph, which was admitted into evidence. It is V-shaped. It looks like an off-cut. Apart from the fact that Mr Fitzgerald threw tree branches into the driveway, there is no evidence linking Mr Fitzgerald to the piece of tin. Mr Fitzgerald denied placing it there or causing anyone else to do so. He pointed out that tradespersons had worked on Mr Huang’s property. Plainly, there is insufficient evidence to establish that Mr Fitzgerald placed the tin in the driveway or caused someone else to do so. The fact that he threw tree branches onto Mr Huang’s driveway has no probative value in relation to the piece of tin.
Banner
7During 2018, Mr Fitzgerald erected a banner on his property, facing Mr Huang’s dwelling. The banner displayed a message in large letters. It read: “Neighbours not Strangers.com.” He also placed a sign on the side of his house also facing Mr Huang’s dwelling, which said: “Airbnb Not Welcome.” He illuminated the banner with lights. Mr Fitzgerald did these things because he was upset with Mr Huang’s tenants. He sought to make a point, particularly to the tenants.
Megaphone
8On 21 October 2019, Mr Fitzgerald stood on his balcony and used a megaphone to broadcast Mr Huang’s name and residential address in Hawthorn. He did this for about half an hour. He says it was to gain Mr Huang’s attention. Whether it was intended or not, the fact of the broadcast and its content of the broadcast disturbed Mr Huang a great deal. He felt so unsafe that he reported the matter to the police.
9The use of the megaphone occurred only once. It was not repeated.
Water taps
10On two occasions – 9 June 2019 and 25 December 2019 – part of the water tap in the front yard of Mr Huang’s property was cut away from the rest of the tap. Mr Huang calls it the “water tag”. Some sort of cutting device was needed to cut it off. Its removal meant there was no water supply to the house until repaired by the relevant water authority. This inconvenienced guests. One set of guests sought monetary compensation from Mr Huang for their inconvenience. He paid them compensation. Mr Huang believes Mr Fitzgerald was responsible. His belief is based on the history of their interactions. Mr Fitzgerald denies he was responsible. As I said earlier, he is a truthful witness. Apart from the fact of their dispute occurring at this time and any legitimate inference I could draw, there is no evidence linking Mr Fitzgerald to the damage to the tap. Mr Huang’s belief is not evidence and the history of interaction provides no legitimate basis for me to infer Mr Fitzgerald was responsible. Accordingly, I could not find as a fact that he was responsible.
Asbestos
11Based on what he was told by a guest, Mr Huang alleges Mr Fitzgerald placed asbestos on his property. He also alleges Mr Fitzgerald told one of his guests about the asbestos. Mr Fitzgerald denied both allegations. He did add that there is asbestos in the garden beds of Mr Huang’s property.
12The evidence of the guest’s statement to Mr Huang must be weighed against Mr Fitzgerald’s denial. I did not hear from the guest or, in fact, any guest. Again, there is insufficient evidence for me to find Mr Fitzgerald placed asbestos in Mr Huang’s property.
Cameras
13Mr Fitzgerald installed CCTV cameras facing down the side of his house near the boundary fence. These cameras do not now view into Mr Huang’s property. According to Mr Fitzgerald, these cameras were part of a larger group of cameras installed to deter burglars. Mr Fitzgerald’s home had been burgled. The cameras were intended to act as a deterrent to would be burglars.
14There is no basis for me to conclude the installation and continued use of these cameras constitutes any form of prohibited behaviour. They do now, and always did, serve a legitimate purpose.
Door
15The issues about a door are unusual. A door was removed from an entrance to Mr Huang’s house during a burglary. Subsequently, it was used to block a gap in the dividing fence. Gradually, it managed to slide under the fence and into Mr Fitzgerald’s property. Mr Fitzgerald asked Mr Huang to remove the door. He was ignored. It was removed by Mr Fitzgerald and thrown by him over the fence onto the driveway. At least, Mr Huang was present when this happened. On landing, the door further disintegrated. However, it was already in a poor condition before being thrown. It is depicted in two photographs which comprise Exhibit C.
16Although the circumstances are unusual, Mr Fitzgerald’s action do not amount to prohibited behaviour.
Spa
17Mr Huang gave evidence about his spa. There is no evidence linking Mr Fitzgerald as being the cause of its condition.
Dumping rubbish
18The allegation of dumping rubbish on the adjacent parklands lacks substance. Mr Fitzgerald gave evidence of his caretaking of this parkland over many years. I accept his evidence.
Scaffolding
19There is scaffolding at the rear of Mr Fitzgerald’s house. It was erected in 2016 to enable painting of the rear of the house. The painting of the rear and the rest of the exterior of the house proceeds at a desultory pace. But the continued presence of the scaffolding may be an eyesore from Mr Huang’s perspective but is innocuous in the context of this proceeding.
Cleaner
20Mr Fitzgerald spoke to the cleaner once. He made a request of her to convey information to Mr Huang and ask him to call Mr Fitzgerald.
21Strictly speaking, I have only Mr Fitzgerald’s version of what happened and it is innocuous.
Guests
22Mr Huang relies upon what he was told by guests about Mr Fitzgerald’s communication with them. He relies upon a text message, which became Exhibit A. Mr Fitzgerald agrees he spoke to guests. He queried why the guest or guests were there in light of the rules of Airbnb. In a non-technical sense, this was a form of harassment, in that the guests conveyed a version of the interchange to Mr Huang.
Drain pipe
23There is no evidence linking the blocking of the drain pipe to Mr Fitzgerald.
Local law of Council
24Mr Fitzgerald and his wife encouraged the Frankston City Council to make a local law regulating the use of premises catering for short stay accommodation. Whether through their efforts or not, a local law called the “Short Stay Rental Accommodation Local Law” was made and commenced operating on 10 April 2020. It is important to examine that local law.
25The local law defines the meaning of “short stay rental accommodation”. Relevant to this proceeding, it then prohibits the advertising and use of property for such purposes unless it is registered with the Council. A mechanism is set out for registration.
26Next, there is a part of the local law dealing with the cancellation of registration. I will not read out all of the provisions enabling the Council to cancel a registration, however, one provision is significant in this context. Clause 2.6.1(b) provides:
“Registration may be cancelled when:
(a) …
(b) Council receives no less than three substantiated complaints concerning the activities taking place at the property from residents located within the proximity over a rolling period of 12 months and such complaint would amount to a breach of this Local Law.”
27Next, the Local Law spells out the standards expected of the owners and occupiers. These are set out in Part 3, which has the title “Standard of Management”. I would quote two provisions by way of example of the standards expected:
“3.4The owner and occupant must ensure the use of the property does not interfere with the reasonable use and enjoyment by nearby residents of their land, or otherwise cause a nuisance.
3.5Any person who behaves in an unacceptable manner shall be guilty of an offence. Unacceptable behaviour includes but is not limited to:
(a) Loud or aggressive behaviour; or
(b) Yelling, screaming or arguing.”
28The word “nuisance” is not defined in the Local Law and would bear its common meaning – “a person or thing that causes annoyance or bother”. Clause 3.4 is directed at the owner of a property or its occupier at a particular time. Clause 3.5 is directed at those occupying the property.
29The Local Law is carefully drafted and is wide-ranging in its application. From Mr Huang’s perspective, it carries the ultimate sanction of cancellation of registration.
Subsequent events
30This Local Law has replaced any need for Mr Fitzgerald to engage in a form of self-help. It is unsurprising then that neither Mr Fitzgerald nor Ms Tipping has had any contact with Mr Huang in the last 18 months, for there is no need. If there is a perceived infringement of the Local Law by Mr Huang or any of his guests, Mr Fitzgerald’s remedy and that of his neighbours lie in complaining to the Frankston City Council. Mr Fitzgerald and his wife believe, correctly in my view, that it is the Council’s obligation to enforce its laws.
Relevant law
31Under s61(1)(a) of the Act, the Court may make a final order if the Court is satisfied, on the balance of probabilities, that the respondent, Mr Fitzgerald, has:
(a) committed prohibited behaviour against the affected person, Mr Huang, and:
(i)is likely to continue to do so or do so again; and
(ii)the respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety.
(b) stalked the affected person and is likely to continue to do so or do so again.
32Sub paragraph (b) requires that the respondent and the affected member are not family members, which is the situation here. Sub-paragraph (c) requires it must be appropriate in all the circumstances of the case to make a final order.
33The expression “prohibited behaviour” is defined in s5 of the Act in terms of five categories – assault, sexual assault, harassment, property damage or interference; or making a serious threat. Each of those categories is the subject of further definition.
34“Stalking” is extensively defined in s10. It must involve a person engaging in a course of conduct with the intention of causing physical harm to another person, including self-harm, or of arousing apprehension or fear in that person for his or her own safety or that of any other person. Accordingly, to establish “stalking” a party must prove a certain intention of the other person. However, sub-section (2) gives an extended meaning to the issue of intention.
35Apart from intention, it is important to remember that the concept of stalking in this Act requires a course of conduct. Usually, a course of conduct involves more than a single instance of behaviour although, exceptionally, it can include a single protracted event.
36Returning to prohibited behaviour, neither “assault” nor “sexual assault” applies here. The word “harassment” is given a particular meaning in this legislation. It is defined as:
“… harassment means a course of conduct by a person towards another person that is demeaning, derogatory or intimidating and includes such conduct that is carried on by or through a third person.”
37As one can see, “harassment” has been given a particular meaning. The definition also requires a “course of conduct”.
38Interference with reference to property is qualified by the word “substantial”.
39“Serious threat” means either a threat to kill or threat to inflict serious injury.
Discussion
40Of the various acts attributed by Mr Huang to Mr Fitzgerald, only those relating to the banner, the megaphone and the communication with guests come within the definition of harassment. Together they are a course of conduct which is demeaning to Mr Huang.
41In a society composed of persons from vastly different backgrounds, the concept of a “reasonable person” is not easy to apply. It is a fictional concept better fitted to a largely homogenous society. I accept these activities of Mr Fitzgerald would cause a person like Mr Huang to fear for his safety. In particular, the use of the banner and the megaphone would be bizarre acts from Mr Huang’s perspective and cause him to be afraid for his safety.
42Equally significantly, there is a second limb to the granting of the relief of an intervention order. That is, a party must prove that the other party is likely to continue to commit prohibited behaviour towards the other party or stalk the other party or do so again. In this case, Mr Huang cannot prove either.
43The friction between Mr Huang and Mr Fitzgerald arose out of the latter’s reaction to the circumstances of the use of Mr Huang’s property for short stay guests. Since April 2020, the circumstances of such use have been regulated by the local Council. Mr Fitzgerald and Ms Tipping sought the intervention of the local Council through regulation. Whether through their efforts or not, a Local Law was made. Given the terms of the Local Law, I can easily accept the evidence of Mr Fitzgerald and Ms Tipping that further unhappiness with the use of Mr Huang’s property through Airbnb will be the subject of complaint to the Council. To reinforce that evidence, Mr Fitzgerald points to the lack of contact between him and Mr Huang for the past 18 months.
44Accordingly, Mr Huang does not establish what I described as the second limb.
45There is a third aspect of the making of a final intervention order. Even though an applicant establishes both limbs of the test in s61(1)(a), the Court must consider the appropriateness of making an order. This reflects the serious nature of an order. Its contravention can be the subject of prosecution for a criminal offence and the imposition of penalties including imprisonment.
46This consideration only arises if the applicant establishes both limbs, which Mr Huang cannot do.
47I will confirm the Order of the magistrate striking out the application to reinstate Mr Huang’s application for a final intervention order. If it were necessary, I would refuse Mr Huang’s application for a final intervention order.
Costs
48After giving short reasons and advising the Order I would make, Mr Fitzgerald applied for costs for himself and his wife. Both he and his wife are self-employed persons and he sought their respective loss of earnings incurred in attending the Court hearings involved in this appeal.
49Section 111 governs the awarding of costs under the Act. The primary position on costs is contained in sub-section (1), which provides:
“Each party to a proceeding for a personal safety intervention order under this Act must bear the party’s own costs of the proceeding.”
50However, there are exceptions contained in sub-section (3), which provides:
“Despite subsections (1) and (2)—
(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.”
51Starting with sub-section (3)(b), I do not consider Mr Huang’s application was vexatious, frivolous or in bad faith. He struck me as a genuine litigant, concerned to protect himself and his family from the perceived actions of Mr Fitzgerald.
52As to sub-section (1), the only circumstance that might come within the expression “exceptional circumstances” is the inability of Mr Huang to establish the second limb of the test for a final order in s61(1), namely, likely to continue to do so or do so again. This remained a consideration until after I heard from Mr Fitzgerald, Ms Tipping and reading the Local Law when it became clear that the second limb could not be established. At least until I heard their evidence, it was not an application that was bound to fail. I do not consider there are “exceptional circumstances” justifying a departure from the primary position of each party bearing their own costs.
Conclusion
53I will confirm the magistrate’s decision striking out Mr Huang’s application to reinstate his application for a final intervention order.
54I will refuse Mr Fitzgerald’s application for costs.
55I will request my associate to send a copy of this Ruling to Mr Huang and Mr Fitzgerald.
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