Rumney v Kyriakoulis (Ruling)
[2024] VCC 1945
•6 December 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-23-1443
| MATTHEW RUMNEY | Appellant |
| v | |
| PETER KYRIAKOULIS | Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2024 | |
DATE OF RULING: | 6 December 2024 | |
CASE MAY BE CITED AS: | Rumney v Kyriakoulis (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1945 | |
RULING
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Subject:PERSONAL SAFETY INTERVENTION ORDER APPEAL
Catchwords: Appellant was former patient of respondent – appellant sent multiple emails over a protracted period demanding a refund for treatment – Magistrate found conduct constituted harassment and cyberstalking – likely to cause harm or arouse apprehension of fear – not exempt by 61(4)(a) – normal course of business exception did not apply – appellate jurisdiction of this Court not enlivened
Legislation Cited: Personal Safety Intervention Orders Act2010 (Vic), ss1, 5, 7, 10, 61 and 96; Crimes Act1958 (Vic), s21A; Personal Safety Intervention Orders Bill 2010 (Vic), cl 11; Crimes (Stalking) Act 2003 (Vic), s3(2); Crimes (Stalking and Family Violence) Bill 2003 (Vic); Crimes (Stalking) Bill 2003 (Vic), cl 3(1); Crimes (Family Violence) Bill 2003 (Vic); Criminal Code Act 1899 (Qld), s359B and s359D
Cases Cited:AAA v County Court of Victoria & Ors [2023] VSC 13; Lee v Lee (2019) 266 CLR 129; Craig v State of South Australia (1995) 184 CLR 163; Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Berlyn v Brouskos (2002) 134 A Crim R 111;
R v Amundsen [2016] QCA 177Ruling: Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Brown | Slades & Parsons |
| For the Respondent | Ms J Willard | Stephen Andrianakis & Associates |
HER HONOUR:
Introduction
1This is an appeal by Mr Matthew Rumney, from a decision of Magistrate Spowart at the Magistrates’ Court in Frankston, granting a personal safety intervention order for the protection of Mr Peter Kyriakoulis (“the PSIO”).
2The Magistrate heard evidence over two days (6 April 2023 and 31 August 2023) and delivered her reasons for making the PSIO, on 28 September 2023. Both parties were represented by counsel in the Magistrates’ Court and on the appeal before me.
3The findings of the Magistrate included that Mr Rumney’s conduct towards Mr Kyriakoulis constituted “harassment” within the meaning of s7 of the Personal Safety Intervention Orders Act 2010 (“the PSIO Act”) Act and “cyberstalking” within the meaning of s10 of the PSIO Act. The PSIO was made operative for a period of three years.
Background
4Mr Kyriakoulis is a psychologist. Mr Rumney is an accounts officer and surety administrator and was once his patient.[1]
[1]Transcript (“T”) from 31 August 2023 hearing at T9
5Between December 2015 and November 2017, Mr Rumney attended approximately twenty-one treatment sessions of psychological counselling with Mr Kyriakoulis, on referral from his doctor.
6Mr Rumney was dissatisfied with the outcome of the treatment and the treatment itself. He considered he had made no improvement in the areas he had sought to address.
7In May 2018, Mr Rumney made a complaint to the Australian Health Practitioner Regulation Agency (“APHRA”) which contained a nine-page narrative of his concerns.[2]
[2]Joint Court Book (“JCB”) 34-50
8In 2020, Mr Rumney obtained a copy of his treatment file from Mr Kyriakoulis.
9Mr Rumney then became concerned about the contents of the file.
10Some of his concerns were that a consent form had not been signed by him, that he had not received handouts and brochures which the file documented as having been provided to him, and that some or all of the progress notes may have been written on a date other than the date nominated.
11Thereafter, Mr Rumney lodged two complaints with the Health Services Commissioner (“HSC”) and two more complaints with APHRA (five in total). He also attempted to lodge a sixth complaint, which was rejected by the relevant regulatory body.
12On 18 January 2021, Mr Rumney sent a long email to Mr Kyriakoulis about his dissatisfaction with the contents of the file, his treatment and outcomes.[3]
[3]JCB 52-56
13Between 4 September 2021 and 18 September 2022, Mr Rumney sent thirty-three emails to Mr Kyriakoulis and/or the psychology practice where he worked. Some of the emails demanded a refund of the treatment fees, others contained complaints.[4]
[4]JCB 58
14It was not in dispute that Mr Rumney sent the emails.
15On 15 September 2022, Mr Kyriakoulis applied for a PSIO. His application included reference to “harassing and threatening emails”, repeated complaints to regulatory bodies and authorities for the psychology profession, and unheeded requests for Mr Rumney to stop sending the emails.[5]
[5] Application and Summons for an Intervention Order dated 15 September 2022.
16On 21 September 2022, an interim PSIO was granted. It was not in dispute before the Magistrate that following the making of the Interim PSIO, Mr Rumney ceased sending the emails.
The Magistrate’s decision
17The Magistrate found Mr Kyriakoulis was a credible and reliable witness. She accepted his evidence that as a result of the emails, he was in fear and apprehension of harm.
18The Magistrate found that:
“… by contacting [Mr Kyriakoulis] by electronic communication, the state of mind that existed is that [Mr Rumney] in all the particular circumstances ought to have understood that engaging [in] a course of conduct of that kind would be likely to cause such harm or arouse such apprehension of fear and it actually did have that result.”[6]
(Emphasis added.)
[6]Transcript of Ruling on 28 September 2023 at T11
19The Magistrate also found that in sending the emails, Mr Rumney had engaged in a course of conduct which was intimidating, demeaning and derogatory to Mr Kyriakoulis and therefore met the definition of “harassment” under the PSIO Act.
20During the hearing before the Magistrate, Mr Rumney relied on s61(4) of the PSIO Act, which provides an exception to stalking, where the conduct was engaged in without malice, in the normal course of a lawful business.
21The Magistrate found the provision did not apply. In the alternative, even if it applied, the relationship between Mr Rumney and Mr Kyriakoulis had ended in 2017 and therefore the “normal course of business [was] at an end”. Repeated demeaning and threatening emails sent five years after the end of any “business” dealings were not “in the normal course of a lawful business”.
22The Magistrate took into account Mr Rumney’s admission that he had become “fixated” with the issue of obtaining a refund and found he was unable to let his concerns go, even when they had been dealt with and dismissed by the regulatory bodies.[7] She considered that, in all the circumstances, it was appropriate to make the PSIO.
[7]Ibid at T13
Appeal by rehearing
23Pursuant to s96 of the PSIO Act, the appeal is to be conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.
24To enliven the jurisdiction of this Court, Mr Rumney must first demonstrate that the Magistrate made a factual, legal or discretionary error.[8]
[8]AAA v County Court of Victoria & Ors [2023] VSC 13 at paragraph [50]
25For reasons explained in this ruling, I find that Mr Rumney has not made out any of his grounds of appeal and the jurisdiction of the Court has therefore not been enlivened.
Appeal grounds
26Mr Rumney relies on five grounds of appeal – all described as “[l]egal/factual”:
(a) the finding that Mr Rumney’s conduct in sending the emails to Mr Kyriakoulis constituted harassment for the purposes of s7 of the PSIO Act, was not reasonably open;
(b) the Magistrate failed to consider (a relevant matter), namely, whether Mr Rumney’s conduct in sending the emails would have caused a reasonable person to fear for their safety as required by s61(1)(a)(i)(B) of the PSIO Act, or if the Court finds the Magistrate impliedly considered it, then such finding was not reasonably open because Mr Rumney made no threats to Mr Kyriakoulis’s safety (implied or otherwise);
(c) the finding that Mr Rumney’s conduct in sending the emails constituted stalking for the purposes of s10 of the PSIO Act, was not reasonably open. It was further submitted that it was not reasonably open to the Magistrate to find that Mr Rumney possessed the requisite intention, as he was pursuing a legitimate consumer dispute. There was nothing about the number or nature of the emails which could properly support a conclusion that the appellant held the required intention;
(d) the finding that s61(4)(a) of the PSIO Act could have no application to the facts of the case was incorrect. In particular, the Magistrate’s interpretation of s61(4)(a) that Mr Rumney was acting in a private capacity, was unduly narrow. It was submitted that the provision applies to all kinds of business transactions; and
(e) failing to find that Mr Rumney’s conduct was undertaken in the “normal” course of a lawful business, trade, profession or enterprise (assuming that s61(4) of the PSIO Act could apply to the facts of the case), which conclusion, it was submitted, would have been reached had the Magistrate properly analysed the evidence before her.
Mr Kyriakoulis’s submissions
27Mr Kyriakoulis submits the Magistrate made no errors. After hearing evidence over two days, the Magistrate delivered a comprehensive, evidentiary and factually-sound ruling.
28In particular, Mr Kyriakoulis submits:
(a) the contents of the thirty-four emails formed a sufficient basis for the findings of harassment under the PSIO Act, which findings were open on the evidence;
(b) the Magistrate was not required to consider whether Mr Rumney’s behaviour would cause a reasonable person to fear for his or her safety, if satisfied that his conduct met the definition of stalking and was likely to continue;
(c) Mr Rumney’s intent can be readily inferred from the content of the emails. It was reasonably open to the Magistrate, to make findings about the intent element, on the evidence before her;
(d) s61(4)(a) of the PSIO Act had no application to the issues in dispute before the Magistrate and in any event, it was open to the Magistrate to find that the emails had not been sent “without malice”; and
(e) the Magistrate rightly concluded that sending emails with a demeaning and threatening tone, five years after the relationship ended was not part of the normal course of business.
Relevant legal principles
Factual error
29The relevant legal principle applicable to factual error is found in the High Court case of Lee v Lee.[9] In that case, the majority of the court said:
“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”. … .”[10]
(Footnotes omitted.)
[9](2019) 266 CLR 129
[10]Ibid at paragraph [55]
Legal error
Applying the wrong test
30Applying the wrong test is an error of law. In Craig v State of South Australia,[11] the High Court said:
“… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court….”[12]
[11](1995) 184 CLR 163
[12](Ibid) at 179-80
A finding not reasonably open to a court
31A finding which is not reasonably open to a court is one which is not supported by some evidence and is always an error of law.[13]
[13]Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 at paragraph [85]
Consequence of the error
32Not every error invalidates a decision. In Hossain v Minister for Immigration and Border Protection,[14] Edelman J said, the error must be material in the sense it deprived the litigant of a successful outcome:
“In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.”[15]
(Emphasis added.)
(Footnotes omitted.)
[14](2018) 264 CLR 123
[15](Ibid) at 147-8, paragraph [72]
Relevant provisions
33The provisions of the PSIO Act relevant to resolution of the appeal are set out below.
34Section 1 provides:
“Purposes
The main purposes of this Act are—
(a)to protect the safety of victims of assault, sexual assault, harassment, property damage or interference with property, stalking and serious threats; and
(b) to promote and assist in the resolution of disputes through mediation where appropriate.”
(Emphasis added.)
35Section 61 (relevantly) provides:
“Power of court to make final order
(1) The court may make a final order if the court is satisfied, on the balance of probabilities. that—
(a) the respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.
…
(4) Despite subsection (1), the court must not make a final order if satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour or stalking without malice—
(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or
(b) for the purpose of an industrial dispute; or
(c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.
… .”
(Emphasis added. )
36Section 5 provides that:
“Meaning of prohibited behaviour
For the purposes of this Act, prohibited behaviour is—
(a) assault; or
(b) sexual assault; or
(c) harassment; or
(d) property damage or interference; or
(e) making a serious threat.”
37Section 7 provides:
“Meaning of harassment
For the purposes of this Act, 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.
Examples
A makes derogatory taunts to B, including racial taunts or taunts about B's sexual orientation or gender identity.
A sexually harasses B.
A, a former employee of B, repeatedly telephones B at her workplace and makes insulting remarks about B to the person who answers the telephone.
A encourages another child to taunt B.
A repeatedly leaves pamphlets in B's mailbox that state that it is wrong to gender transition and that everyone's gender expression should match the sex they were assigned at birth.”
(Emphasis added.)
38Section 10 (relevantly) provides:
“Meaning of stalking
(1) A person (the first person) stalks another person (the second person) if the first person engages in a course of conduct—
(a) with the intention of causing physical or mental harm to the second person, including self-harm, or of arousing apprehension or fear in the second person for his or her own safety or that of any other person; and
(b) that includes any of the following—
(i) following the second person or any other person;
(ii) contacting the second person or any other person by post, telephone, fax, text message, email or other electronic communication or by any other means whatsoever;
(iii) publishing on the Internet or by an email or other electronic communication to any person a statement or other material—
(A) relating to the second person or any other person; or
(B) purporting to relate to, or to originate from, the second person or any other person;
…
(viia) making threats to the second person;
(viib)using abusive or offensive words to or in the presence of the second person;
…
(x) acting in any other way that could reasonably be expected—
(A) to cause physical or mental harm to the second person, including self-harm; or
(B) to arouse apprehension or fear in the second person for his or her own safety or that of any other person.
(2) For the purposes of this Act, the first person has the intention to cause physical or mental harm to the second person, including self-harm, or to arouse apprehension or fear in the second person for his or her own safety or that of any other person if—
(a) the first person knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b) the first person in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.
(3) In this section—
mental harm includes—
(a) psychological harm; and
(b) suicidal thoughts.”
(Emphasis added.)
Course of conduct
39There is no definition of “course of conduct” in the PSIO Act. However, the expression has been considered in the context of the offence of stalking under s21A of the Crimes Act 1958, the text of which was in very similar terms to s10 of the PSIO Act.
40In Berlyn v Brouskos,[16] Nettle J said:
“…The essence of stalking under the American model, and thus I think an essential element of stalking as defined by s 21A of the Crimes Act, is a course of conduct of the kind prescribed in the California Penal Code. And for the reasons already given that means that there must be a pattern of conduct evidencing a continuity of purpose … It is readily conceivable that conduct on two separate occasions may not always constitute a pattern of conduct evidencing a continuity of purpose and it is unlikely that conduct on only one occasion could constitute a pattern of conduct evidencing a continuity of purpose, unless the conduct were protracted. In order to constitute a pattern of conduct there must be something more, and I think with respect that McDonald J was correct when his Honour said in Gunes, in effect, that the something more is that the conduct must be engaged in on more than one occasion, or it must be protracted.
That is not to suggest that proscribed conduct which is engaged in on more than one occasion or which is protracted will necessarily constitute a course of conduct evidencing a continuity of purpose. It may not, and I do not take McDonald J to have suggested otherwise. Something additional about the conduct or the surrounding circumstances will need to be shown before it can be said of the conduct that it amounts to a pattern of conduct evidencing a continuity of purpose. But I think that for all intents and purposes, it will not be open to say of conduct that it amounts to a course of conduct unless it is engaged in on more than one occasion or unless it is protracted; whatever else may need to be shown.”[17]
(Emphasis added.)
(Footnotes omitted.)
[16] (2002) 134 A Crim R 111 (“Berlyn”)
[17](Ibid) at 117, paragraphs [24]-[25]
Analysis
Ground 1 – was it reasonably open to the Magistrate to find that the conduct of Mr Rumney constituted “harassment” within the meaning of the PSIO Act?
41The evidence before the Magistrate, which is capable of supporting this finding included the following:
(a) The thirty-four emails sent to Mr Kyriakoulis and/or his workplace which included:
(i)repeated demands for a refund of the full amount of the consultation fees, including the Medicare rebate;
(ii)accusations that Mr Kyriakoulis had “tampered with file notes” and created deliberately false and misleading notes, accompanied by internet links relating to public figures who had been disciplined for improper dealings at work;[18]
[18]JCB 64
(iii)the content of some of the emails, which could be construed as veiled or implied threats to publish negative reviews about Mr Kyriakoulis on Google;[19]
[19]JCB 89 and 92
(iv)threats to continue making complaints “to regulatory bodies” unless the refund is made and that the “refund should be the least of [his] worries” and that “[he] will take this as far as [he has] to”;[20]
[20]JCB 101
(v)threats to “disclose this unprofessional conduct to whoever [he wishes], including members of the medical profession”;[21] and
[21]JCB 110
(vi)accusations of lies and fraud, and threats that the demands will continue and “[he’s] going public”;[22]
(b) the evidence of Mr Kyriakoulis (which the Magistrate accepted) was that:
(i)following the first complaint to APHRA,[23] there were a number of other complaints made to regulatory bodies which involved no action being taken against Mr Kyriakoulis;
(ii)when he read some of the emails, he considered they contained threats to give bad reviews, which caused him to fear for his reputation and his practice. The relentless nature of the emails caused him to fear what else Mr Rumney might be capable of doing;[24]
(iii)he told Mr Rumney to stop, he engaged lawyers who did the same and his lawyer even sent a proposed deed of settlement to Mr Rumney, but he did not respond to that;[25]
(iv)he considered the emails disclosed a “brooding anger” which was escalating. He considered it was a compulsion and Mr Rumney would not stop;[26] and
(v)he considered the behaviour was “malicious, and … the harassment was relentless”.[27]
[22]JCB 126
[23]APHRA took action to require Mr Kyriakoulis to make changes to his practice including the introduction of an electronic note-keeping system, which he implemented into his practise, Transcript from 6 April 2023 hearing at T97.
[24]Transcript from 6 April 2023 hearing at T20
[25]Ibid at T25, T31 – T32 and T34
[26]Ibid at T35 – T39
[27]Ibid at T39
42To satisfy the requirements of s7 of the PSIO Act, the behaviour must firstly be found to constitute “a course of conduct”.
43“Course of conduct” is not defined in the PSIO Act. Applying the test in Berlyn, the conduct must be protracted and must be capable of being described as having a continuity of purpose.
44The emails were sent by Mr Rumney to My Kyriakoulis, or his workplace, between 18 January 2021 and 18 September 2022. The Magistrate’s findings that harassment had occurred included the following:
“… I find the tone, repeated nature of communication, and what can only be described as relentless demands for an immediate refund constituted prohibited behaviour and that they are harassment.
They show a course of conduct towards the applicant which is intimidating and frequently demeaning and derogatory. … .”[28]
[28]Transcript of Ruling on 28 September 2023 at T10–11
45The Magistrate was satisfied that Mr Rumney had engaged in a course of conduct when she referred to the “repeated nature of communication … and relentless demands”. I consider that the requirements of “protracted” and “continuity of purpose” were met by those findings. The evidence was capable of supporting them, because it showed that the repeated conduct continued over many months, accompanied by the relevant purpose of the clearly-stated determination to continue until Mr Rumney received a full refund.
46To satisfy the remainder of the requirements of s7 of the PSIO Act, the Magistrate had to be satisfied that the evidence supported a finding that the course of conduct was “demeaning, derogatory or intimidating”.
47As the Magistrate observed, it was not necessary to go beyond the emails to find that this element is made out. However, if it was, the Magistrate also accepted Mr Kyriakoulis’s evidence that he had become fearful for his safety, his reputation and his practice.
48The evidence supporting a finding that the conduct was demeaning and derogatory is contained in a number of emails which characterise Mr Kyriakoulis as incompetent, unprofessional, a liar and a fraud.
49The evidence supporting a finding that the conduct was intimidating is to be found by considering the totality of the emails. Some of them contain threats “to inform whoever [he wishes]”.[29] Some of them contain orders “get my refund paid immediately ... ignoring me isn’t going to stop me”[30] and one of the demands for the refund was accompanied by a threat to make further complaints to regulatory authorities.[31]
[29]JCB 60
[30]JCB 116
[31]JCB 97
50The tone of the emails and their likely cumulative effect on the recipient is capable of being viewed as intimidating conduct and that is the view the Magistrate took.
51The evidence in support of a finding of harassment was overwhelming.
52Although the Magistrate did not go so far, the evidence was also capable of supporting a finding of harassment on the basis that at least some of the complaints to regulatory bodies were capable of being described as “conduct that is carried on by or through a third person” in accordance with the definition of harassment in s7 of the PSIO Act .
53This ground has not been made out.
Ground 2 – did the Magistrate fail to take into account a relevant consideration as required by the PSIO Act?
54By this ground, Mr Rumney asserts the Magistrate made an error of law by failing to take into account whether his conduct “would cause a reasonable person to fear for his or her safety” as required by s61(1)(a)(i)(B).
55It is useful in considering the ground to return to the text of the provision.
56Section 61 provides:
“Power of court to make final order
(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(a) the respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.”
(Emphasis added.)
57Pursuant to this provision, a final order can be made on two alternative or disjunctive grounds, either on the ground of “prohibited behaviour” under s61(1)(a)(i) or on the ground of “stalking” under s61(1)(a)(ii).
58The Magistrate expressly found the course of conduct engaged in by Mr Rumney constituted harassment.
59The Magistrate then expressly found the conduct was likely to happen again, because Mr Rumney had become fixated with the issue.
60The Magistrate did not expressly make a finding that the behaviour “would cause a reasonable person to fear for his or her safety”. However, it is implicit in her findings. In particular, the reference to “tone” and “relentless demands”, and to what they constitute “taken as a whole”.
61I accept the submission on behalf of Mr Kyriakoulis that the finding was supported by the combination of circumstances, the number and content of the emails and the time which had elapsed since the therapeutic relationship had ceased.[32]
[32]JCB 27, Submissions in Reply To Appellant’s Submissions, dated 23 June 202 at paragraphs [15]-[18]
62If I am wrong about that, I consider any failure by the Magistrate to address this element is not a material error, in the sense that it did not deprive Mr Rumney of a different outcome in the proceeding.
63The reason for that is, that the Magistrate was satisfied on the alternate ground under s61(1)(a)(ii), namely that the conduct constituted “stalking”. Further, the Magistrate expressly found it was likely the conduct would happen again, as Mr Rumney had developed a fixation.
64Having made those two findings, the only other finding required in order to make the Order, was that it was appropriate in all the circumstances to do so. The Magistrate expressly made that finding.
65Therefore, even if the Magistrate failed to address the requirements of s61(1)(a)(i)(B), that did not deprive Mr Rumney of a successful outcome as he was also found to have stalked Mr Kyriakoulis.
66This ground has not been made out.
Ground 3 – was Mr Rumney “pursuing a legitimate consumer dispute” such that he did not possess the requisite intention to qualify his conduct as stalking?
67The submission about this ground was supported by reference to the surrounding circumstances. First, it was said that all the contacts were by email, there were (only) thirty-three emails over twenty months and there is nothing in the number or their content which would properly support the required intention.
68
Counsel for Mr Kyriakoulis submitted that, based on the totality of the evidence, including the emails themselves, it was not open to the Magistrate to find that
Mr Rumney ought to have understood that engaging in a course of conduct of that kind would be likely to cause harm or arouse such apprehension or fear, and it actually did have that result.
69Doubtless, there can be any number of motivations for stalking. The pursuit of a legitimate consumer dispute is not inconsistent with “stalking” if the pursuit otherwise satisfies the elements of “stalking” under the PSIO Act.
70Section 10(2)(b) of the PSIO Act provides as follows:
“(2) For the purposes of this Act, the first person has the intention to cause physical or mental harm to the second person, including self-harm, or to arouse apprehension or fear in the second person for his or her own safety or that of any other person if—
…
(b) the first person in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.”
(Emphasis added.)
71The submissions on behalf of Mr Kyriakoulis refer to the following circumstances which the Magistrate took into account and which are relevant to her findings under this provision:
(a) the professional relationship had ended five years prior to the emails being sent; and
(b) the content of the emails includes threats such as “I’m not going to stop demanding it”, “do I need to come up and collect a cheque”, “[t]his is absolutely disgusting unprofessionalism and I’m not keeping quiet about it” and “[i]gnoring me isn’t going to stop me, it will drive me on even further and I’m going public”.[33]
[33]Emails reproduced in Mr Kyriakoulis’s Submissions dated 23 June 202 at paragraph [24]
72The behaviour did not stop, even after requests for it to stop by Mr Kyriakoulis and his lawyer[34].
[34]During the hearing before the Magistrate, submissions were made that Mr Kyriakoulis’ evidence about this ought not be accepted because there were no letters and no deed produced in support of it. The Magistrate rejected that submission and accepted Mr Kyriakoulis’ evidence that the letters and deed had been sent.
73The Magistrate accepted that Mr Kyriakoulis genuinely held fear, apprehension and harm as a result of the emails and Mr Rumney:
“…in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse apprehension and fear … .”[35]
[35]Transcript of Ruling on 28 September 2023 at T11
74In the Magistrate’s Ruling, “all the particular circumstances” included the content of the messages. Although the Magistrate did not specifically refer to any particular message, it is clear from the content of the messages that Mr Rumney ought to have understood that sending them would be likely to cause harm.
75In particular, he sent those messages to his former psychologist, accusing him of incompetence and unprofessionalism and threatening to “go public” with those accusations. Other messages contained implied or veiled threats to post negative reviews on Google. Others still are directed at Mr Kyriakoulis’s reputation and livelihood. For example, one email threatens to “disclose this unprofessional conduct to whomever I wish including members of the medical profession”.[36]
[36]JCB 110
76I do not accept the submission that “in all the circumstances, [he] could not be expected to have understood that sending those emails would be likely to cause harm or apprehension or fear”.[37]
[37]Appellant’s Submissions for the Preliminary Hearing, dated 15 May 2024, JCB 11 at paragraph [26] This document has erroneously been described as “Respondent’s Submissions for the Preliminary Hearing”.
77Mr Rumney is an intelligent, educated man who works in a responsible position. He must be taken to have been able to understand that Mr Kyriakoulis earned his livelihood as a psychologist, and that threats to go public with allegations of incompetence and dishonesty, could cause Mr Kyriakoulis to fear for his reputation and income. It is difficult to understand how the circumstances and the content of the emails could provide anything other than the expectation that he ought to have understood the likely effect of the emails he was sending.
78Further, there was evidence, which the Magistrate accepted that Mr Rumney did not stop when requested to do so. That provides a further basis on which the Magistrate could find Mr Rumney ought to have understood the likely effect of his emails.
79This ground also fails.
Grounds 4 and 5 – did s61(4)(a) provide an exemption or exception for Mr Rumney’s conduct, such that he was not liable to be subject to a PSIO order?
80Both of these grounds relate to the proper interpretation of s61(4)(a) of the PSIO Act. It is therefore convenient to deal with them together.
81During the hearing before the Magistrate and on the appeal, counsel for Mr Rumney argued that s61(4)(a) of the PSIO Act exempts Mr Rumney from being subject to a finding of stalking.
82The reason for this was said to be because Mr Rumney was engaged in the prohibited behaviour or stalking “in the normal course of a lawful business”. It was further submitted that consumer complaints and disputes were part of business and all Mr Rumney was doing was engaging in such complaints by “robust” communications.
83Before addressing these submissions, it is convenient to recall the text of the provision:
“(4) Despite subsection (1), the court must not make a final order if satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour or stalking without malice—
(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material) …”
84Submissions were made to the Magistrate that Mr Rumney was seeking a refund of the treatment fees, which process was described as “a business dispute”.[38]
[38]Transcript from 6 April 2023 hearing at T80 – T90
85No reference to any authority or any statutory interpretation principle was relied upon in the hearing before the Magistrate, in support of that submission.
86The Magistrate rejected the submission on a number of grounds as follows:
(a) when he sent the emails, Mr Rumney was acting in a private capacity and not engaged in the behaviour “in the normal course of lawful business”;
(b) the fact there may have been a professional relationship in the past, does not attract the operation of s61(4) of the PSIO Act. Had that been the case, the legislation would have expressly stated that;
(c) the interpretation suggested by Mr Rumney does not promote the purpose of the legislation, as contained in s1, which is “to protect the safety of victims of … harassment … [and] stalking”,; and
(d) in the event she was wrong, the Magistrate focused on the word “normal” in the provision and said that any ‘normal course of business’ would have been at an end when the therapeutic relationship ended in 2017. It was not to be expected that, in the normal course of business, a person sends repeated demanding and threatening emails five years after the business relationship ended.[39]
[39]Transcript of Ruling on 28 September 2023 at T11 – T13
What is the correct construction of s61(4) of the PSIO Act?
87The question whether Mr Rumney’s conduct fell within the exception in s61(4) of the PSIO Act turns on the proper construction of the provision itself.
88At the appeal hearing, neither party made any submissions specifically directed to the legislative history of the provision or the intent of Parliament. However, I consider that in order to resolve the appeal grounds, it is necessary to address these matters before returning to the submissions actually made by the parties.
89Section 61(4) formed part of the PSIO Act when it first came into operation in 2011.
90Clause 11 of the Explanatory Memorandum to the Personal Safety Intervention Orders Bill 2010 provides:
“[This clause] provides for circumstances in which the Bill does not apply. These exceptions are based on section 21A(4) of the Crimes Act 1958. Essentially, these provisions mean that a person performing certain types of official duties does not commit prohibited behaviour or stalking for the purposes of this Bill.”
(Emphasis added.)
91The intention as discerned from the Explanatory Memorandum was to provide an exception “for persons performing certain types of official duties”. I will come back to this.
92In 2003, s3(2) of the Crimes (Stalking) Act 2003[40] inserted s21A into the Crimes Act 1958. Section 21A was in identical terms to 61(4) of the PSIO Act.
[40]Act 105/2003
93Section 3(2) of the Crimes (Stalking) Act provides:
“After section 21A(4) of the Crimes Act 1958 insert—
(4A)In a proceeding for an offence against subsection (1) it is a defence to the charge for the accused to prove that the course of conduct was engaged in without malice—
(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or
(b)for the purpose of an industrial dispute; or
(c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.”
(Emphasis added.)
94In order to understand Parliament’s intention for the provision, it is useful to refer to a passage from the Second Reading Speech[41] of the Bill by the Attorney General, by which s21A(4A) was introduced into the Crimes Act:
“…. there were some communications over whether the original legislation relating to stalking was too broad. Indeed a number of media outlets expressed concern to the government that perhaps that aspect of the bill was too broad and would capture circumstances it was not intended to capture.
...
… following the introduction of the legislation concerns were raised that the proposed stalking amendments may have unintentionally restricted freedom of speech by extending the course of conduct which constituted stalking to cover the publication of material on the Internet. In particular, concerns were raised that the legislation could potentially make journalists and media organisations liable for stalking by virtue of the fact that the newspaper in which the article appeared was published on the Internet.
… The proposed amendments are intended to ensure that the offence of stalking does not apply to a range of legitimate conduct, such as the conduct engaged in by media organisations in the normal course of their business. … .”[42]
(Emphasis added.)
[41]The Second Reading Speech by the Attorney General of the Crimes (Stalking and Family Violence) Bill 2003 commenced, but was not completed, on 27 March 2003 in the Legislative Assembly. In June 2003, this Bill was split into two Bills – the Crimes (Stalking) Bill 2003 and the Crimes (Family Violence) Bill 2003, and the Second Reading was recommenced on 4 June 2003 and completed on 18 November 2003 (see footnote 41 below).
[42]
95The intention of Parliament as discerned from the Second Reading Speech, was expressly concerned with providing an exemption or exception to the legitimate work of journalists because of a concern their publications on the Internet could potentially be otherwise construed as “stalking” under the new provisions.
96It is not difficult to apprehend how the exception might apply to some professions, when considering the intention that “persons performing certain types of official duties” be exempt.
97For instance, the definition of stalking in s10 of the PSIO Act (and s21A of the Crimes Act) includes conduct such as:
(a) following a person;
(b) contacting a person;
(c) publishing on the Internet, material about a person; or
(d) keeping a person under surveillance.
98The official duties or indicia of the work of journalists readily fits within this criteria. Journalists may be required to follow someone for the purposes of asking for an interview, contact them to try to get their comment or opinion, film them in public places or publish articles about them on the Internet.
99I was not referred to and have been unable to find, any authorities in Victoria dealing with this provision, neither as it appears in the Crimes Act, nor in the PSIO Act.
100A similar provision exists in Queensland.
101Section 359B of the Criminal Code 1899 (Qld) (“the Code”) defines “unlawful stalking, intimidation and abuse” as:
“Unlawful stalking, intimidation, harassment or abuse” is conduct—
(a) intentionally directed at a person (the stalked person); and
(b) engaged in on any 1 occasion if the conduct is protracted or on more than 1 occasion; and
(c) consisting of 1 or more acts of the following, or a similar, type—
(i) following, loitering near, watching or approaching a person;
(ii) contacting a person in any way, including, for example, using any technology and over any distance;
Examples of ways of contacting a person, including using technology—
by telephone, mail, fax, SMS message, email, an app on a computer, smart phone or other electronic device, or an online social network
(iii) loitering near, watching, approaching or entering a place where a person lives, works or visits;
(iv)monitoring, tracking or surveilling a person’s movements, activities or interpersonal associations without the person’s consent, including, for example, using technology;
… .”
102Section 359D of the Code provides the relevant exceptions:
“Unlawful stalking, intimidation, harassment or abuse” does not include the following acts—
(a) acts done in the execution of a law or administration of an Act or for a purpose authorised by an Act;
(b) acts done for the purposes of a genuine industrial dispute;
(c) acts done for the purposes of a genuine political or other genuine public dispute or issue carried on in the public interest;
(d) reasonable conduct engaged in by a person for the person’s lawful trade, business or occupation;
(e) reasonable conduct engaged in by a person to obtain or give information that the person has a legitimate interest in obtaining or giving.”
(Emphasis added.)
103In R v Amundsen,[43] the Queensland Court of Appeal[44] considered s359D of the Code in the context of an appeal against conviction by a jury for unlawful stalking by Mr Amundsen of his former partner.
[43][2016] QCA 177 (“Amundsen”)
[44]Morrison JA (Fraser and Gotterson JJA agreeing)
104During the trial, Mr Amundsen had admitted much of the conduct alleged by the prosecution, but an argument was made that the exclusions in s359D of the Code applied to some of it, in particular s359D(d).
105The evidence disclosed that some of the stalking conduct was constituted by the conduct of a private investigator. Mr Amundsen had hired the investigator to follow and spy on his former partner and argued, in the Court of Appeal, that this conduct was not stalking by virtue of the exclusion in 359D(d) of the Code.
106The Court of Appeal rejected the argument.
107The brief but apposite basis of the rejection was that:
“…The investigator was not charged with stalking. Mr Amundsen’s retainer of the investigator does not cloak Mr Amundsen with the protection afforded by s 359D(d).”[45]
[45]Amundsen at paragraph [74]
108While the provision was not discussed in any greater detail, this example illustrates that private investigators are the type of lawful trade or business to which an exclusion, such as that in s359D(d) of the Code, can apply, but only to them directly, not to those who hire them.
109It is possible to imagine other types of lawful business which could attract the operation of the exclusion. The relevant considerations would be whether the particular indicia or official duties of the work, otherwise attracts the operation of the provisions. Then, if it is done without malice in furtherance of that work, the exception applies.
110For example, a process server might, in the course of their work, be required to follow someone or contact them repeatedly to serve court documents. Private investigators retained by insurance companies might be involved in following an insurance claimant for the purposes of surveillance. That might otherwise be a course of conduct over a period of time in order to carry out covert surveillance and therefore theoretically be captured by the provision.
111Other examples which come to mind are solicitors, debt collectors and clerks working for such people. In the lawful course of their business or “official duties”, such people might frequently be required to send letters, make demands, threaten proceedings or make repeated calls. Such conduct may well meet the criteria of prohibited behaviour, but if done without malice in the normal course of their business, it would be exempt due to the operation of s61(4)(a)
112This construction of the provision is inconsistent with the submissions made on behalf of Mr Rumney for two reasons.
113First, the text creating the exception in s61(4)(a) is directed to the person engaged “in the normal course of a lawful business”. It is not directed to the client of such a business. In the process server example, the provision would apply to the process server, not to the person being served. In the journalism example, the provision would apply to the journalist, not the interviewee.
114Therefore, Mr Rumney as a “patient” of a psychology practice, is not doing so “in the normal course of a lawful business [or] trade”. He is a client of such a business. As a client, he is no more engaging in a psychology practice than a person who buys a bread roll is engaged in a bakery business.
115Second, this interpretation is consistent with the purpose of the PSIO Act as enshrined in s1 of the PSIO Act, whereas the submission on behalf of Mr Rumney is not.
116Any construction of the provision ought to take into account and give effect to that purpose, which is focused on protection and safety.
117The submission made on behalf of Mr Rumney was illustrated by the example of a homeowner who engaged a builder for a renovation. Both were said to be “acting lawfully in the course of business”. Policy reasons were said to support the exclusion of conduct by the homeowner “robustly” disputing a bill or the quality of the builder’s work. However these were not articulated.
118The flaw in Mr Rumney’s argument, and its inconsistency with the purpose of the legislation, can be seen when the argument is taken to its logical conclusion.
119By virtue of the suggested operation of s61(4)(a) of the PSIO Act, the homeowner could “legitimately” engage in a course of conduct which otherwise amounts to stalking. That might include emailing numerous “robust” letters of demand, perhaps following the builder home or to various building sites, publishing on the Internet negative reviews about the builder’s work, tracing the builder’s internet usage, or maybe just loitering around his/her place of business and keeping the builder under surveillance. So long as they did it “without malice”, they would be immune from being made subject to an intervention order because they are in pursuit of a business dispute.
120This is contrary to the purpose of the PSIO Act, as it enables victimisation of the builder. It would allow a course of conduct which is potentially harmful to the builder’s business, mental health or reputation under the guise of a legitimate business dispute.
121The suggested interpretation creates more problems than it solves. It enables the homeowner to bypass the established lawful mechanisms for dispute resolution in place for direct confrontation by “robust” communication and other like behaviours.
122I reject the construction of s61(4)(a) of the PSIO Act as suggested by Mr Rumney, because it is inconsistent with provision’s legislative history and Parliament’s purpose. These two grounds therefore also fail.
Conclusion
123Mr Rumney has not made out any of his grounds and his appeal is therefore dismissed.
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Victoria, Legislative Assembly Parliamentary Debates (Hansard) 27 March 2003 at pages 692-694,
4 June 2003 at page 2093 and 18 November 2003 at pages 1674-1675.
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