Ajani v Thomaes - [2018] NZHC 3218

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-89

[2018] NZHC 3218

UNDER section 124 of the District Court Act 2016 and section 34 of the Harassment Act 1997

IN THE MATTER

of an appeal against the judgment of Judge DJ McDonald in case CIV-2015-088- 540/[2018] NZDC 12863 given in the District Court at Whangarei on 3 July 2018 refusing a cross-application under the Harassment Act 1997

BETWEEN

JANETTE ANN AJANI

Appellant

AND

LIEF THOMAES

Respondent

Hearing: 21 November 2018

Appearances:

A P Holgate for Appellant

Respondent in person (together with McKenzie Friend, Mr Harold Van Blommestein)

Judgment:

7 December 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 7 December 2018 at 2:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
The Conveyancing Shop Lawyers Ltd (Pukekohe) for Appellant

AJANI v THOMAES [2018] NZHC 3218 [7 December 2018]

Introduction

[1] Ms Thomaes and Ms Ajani are neighbours who share a right-of-way. They are at feud with each other. There is a lengthy history of conflict between them, which has involved others also, and the Courts have been involved in the past to resolve disputes concerning them. I do not need to go into detail, it is summarised by Judge DJ McDonald in the Judgment which Ms Ajani now appeals.1

[2] The Harassment Act 1997 (“the Act”) has as its object the provision of greater protection to victims of harassment by:2

(a)recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and

(b)ensuring that there is adequate legal protection for all victims of harassment.

[3] One way the Act provides for adequate legal protection for victims of harassment is by empowering the Courts to grant restraining orders against proven harassers to protect the harassed.3 On 9 March 2016, Ms Thomaes obtained such a restraining order against Ms Ajani. It expired after 18 months, but Ms Thomaes applied to extend it. On 29 August 2017, Ms Ajani, in response, applied to discharge Ms Thomaes’s restraining order and she also applied for a restraining order against Ms Thomaes. These are the applications that came before Judge McDonald.

[4] Partway through the hearing, Ms Ajani made a significant concession. She withdrew her application to discharge Ms Thomaes’s restraining order. By consent, Judge McDonald extended the term of Ms Thomaes’s restraining order to 22 September 2019.

[5] That left Ms Ajani’s application, opposed by Ms Thomaes, for a restraining order against Ms Thomaes.

1      Thomaes v Ajani [2018] NZDC 12863.
2      Harassment Act 1997, s 6(1).
3      Section 16.

[6] Judge McDonald considered four alleged acts which Ms Ajani submitted, taken together, satisfied the Act’s definition of what constitutes harassment. The Judge found two of the alleged acts proven and that they constituted harassment. However, that was not the end of the matter. Section 16(1) of the Act states the Court may make a restraining order if it…

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 Ajani v Thomaes

Details

AGLC: Ajani v Thomaes [2018] NZHC 3218
Case: [2018] NZHC 3218
Decision Date: 7 December 2018

CaseChat Overview and Summary

Ms Ajani appeals against a decision of Judge McDonald declining her application for a restraining order against Ms Thomaes under the Harassment Act 1997. Ms Thomaes had obtained a restraining order against Ms Ajani. The appeal proceeds by way of a rehearing. The appeal raises two issues. First, whether the Judge was wrong to conclude that the acts which he found proven would not cause distress to a reasonable person in Ms Ajani’s particular circumstances. Second, whether the Judge was wrong to conclude that the making of a restraining order was not necessary to protect Ms Ajani from further harassment. The appeal is dismissed. In relation to the first issue, I accept Judge McDonald’s finding. The particular circumstances included deliberate provocation on the part of Ms Ajani and knowledge by her of how Ms Thomaes was likely to react. In relation to the second issue, I accept the Judge’s conclusion that the making of a restraining order is not necessary to protect Ms Ajani from further harassment. If Ms Ajani does not provoke Ms Thomaes, then Ms Thomaes will not bother her. There is a real possibility that if Ms Ajani obtains a restraining order she will use it as a weapon in the feud. That is to say, Ms Ajani could characterise any interaction with Ms Thomaes, provoked or otherwise, as Ms Thomaes breaching Ms Ajani’s restraining order. I think that is a real possibility and a reason to leave things as they are.

Orders