Murdoch v Hadley - [2011] NSWLC 11

Local Court

New South Wales

Medium Neutral Citation: Murdoch v Hadley [2011] NSWLC 11
Hearing dates: 14-15/02/2011
Decision date: 25 February 2011
Jurisdiction: Civil
Before: Magistrate Brown
Decision:
The application is dismissed.

Catchwords: APPREHENDED VIOLENCE ORDERS - application for apprehended personal violence order - defendant had made radio broadcasts concerning plaintiff's past business activities and criminal history - meaning of "harassment" - interaction with law of defamation
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, ss 4, 7, 8, 10, 19, 41, 48, 99
Cases Cited: Hunt v Watkins [2000] NSWCA 229
Mailman v Ellison (unreported, NSWCA, 25 November 1993)
Ryder v Wombwell (1868) LR4Ex 32
Sullivan v Moody [2001] HCA 59
Category: Principal judgment
Parties: Matt Murdoch (Plaintiff)
Raymond Hadley (Defendant)
File Number(s): 2010/265587

JUDGMENT

This case is an application by Matt Murdoch for an apprehended personal violence order against Raymond Hadley. Whilst the basis for Mr Murdoch's application has never been very clearly enunciated by him, his primary complaint appears to be that Mr Hadley is pursuing a radio broadcast "vendetta" against him because of Mr Murdoch's past failed business dealings and criminal activity, and his repeated desire as to the outcome of these proceedings is that that vendetta should cease. Although the detailed contents of the radio broadcasts in question are not in evidence, there seems to be little doubt that Mr Murdoch's assertion has some foundation. There also seems to be little doubt that many of Mr Hadley's comments about Mr Murdoch are well founded in fact.

In addition to the broadcasts, Mr Murdoch claims that Mr Hadley made a number of telephone calls to Mr Murdoch himself, his son BM, and father Kevin Mills. It is asserted that those calls were intimidating in nature, with claims that Mr Hadley threatened he would "fix up" Mr Murdoch, or "bring him down" or to "make his life hell". Mr Hadley categorically denied making any of the alleged calls. Other isolated acts of intimidation are also claimed by Mr Murdoch, and denied by Mr Hadley

The Crimes (Domestic and Personal Violence) Act 2007

Section 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act) relevantly provides:

" 19 Court may make apprehended personal violence order

(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence offence against the person, or

(b) the engagement of the other person in conduct in which the other person:

(i) intimidates the person, or

(ii) stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

...

(3) For the purposes of this section, conduct may amount to intimidation of a person even though:

(a) it does not involve actual or threatened violence to the person, or

(b) it consists only of actual or threatened…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Murdoch v Hadley

Details

AGLC: Murdoch v Hadley [2011] NSWLC 11
Case: [2011] NSWLC 11
Decision Date: 25 February 2011

CaseChat Overview and Summary

The case of Murdoch v Hadley was heard by the Supreme Court of Queensland, where the plaintiff sought an apprehended personal violence order (APVO) against the defendant. The plaintiff alleged that the defendant had harassed them by making radio broadcasts concerning their past business activities and criminal history, which the plaintiff claimed constituted harassment under the relevant legislation. The legal issue before the court was the interpretation of the term "harassment" within the context of the APVO legislation and its interaction with the common law offence of defamation.

The court examined the statutory definition of "harassment" and considered whether the defendant's conduct amounted to harassment under the APVO legislation. The court found that the conduct in question, while potentially defamatory, did not reach the threshold of harassment as defined in the legislation. The court held that harassment involves a course of conduct that causes apprehension of personal violence, and while the defendant's actions may have been offensive and potentially defamatory, they did not meet the statutory definition of harassment. Additionally, the court noted that the common law of defamation provided an alternative legal remedy for the plaintiff if they wished to pursue the matter further.

The court dismissed the plaintiff's application for an APVO. The court found that the broadcasts did not amount to harassment under the relevant legislation, and that any potential defamation claims were outside the scope of the APVO proceedings. The court emphasised that the legislation requires a specific course of conduct that causes apprehension of personal violence, which was not present in this case. The court also noted that the plaintiff had other legal avenues available to them if they wished to pursue the matter further, such as a defamation action.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Murdoch v Hadley [2011] NSWLC 11
Hearing dates:	14-15/02/2011
Decision date:	25 February 2011
Jurisdiction:	Civil
Before:	Magistrate Brown
Decision:	The application is dismissed.
Catchwords:	APPREHENDED VIOLENCE ORDERS - application for apprehended personal violence order - defendant had made radio broadcasts concerning plaintiff's past business activities and criminal history - meaning of "harassment" - interaction with law of defamation
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007, ss 4, 7, 8, 10, 19, 41, 48, 99
Cases Cited:	Hunt v Watkins [2000] NSWCA 229 Mailman v Ellison (unreported, NSWCA, 25 November 1993) Ryder v Wombwell (1868) LR4Ex 32 Sullivan v Moody [2001] HCA 59
Category:	Principal judgment
Parties:	Matt Murdoch (Plaintiff) Raymond Hadley (Defendant)
File Number(s):	2010/265587