Burrows v Thomson - [2018] NZHC 2761

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-292

[2018] NZHC 2761

UNDER the Harassment Act 1997

IN THE MATTER OF

making a Restraining Order

BETWEEN

WAYNE JOHN BURROWS

Appellant

AND

AMY KATRINA COMPTON THOMSON

Respondent

Hearing: 18 October 2018

Counsel:

Appellant in Person

J C LaHatte for Respondent

Judgment:

24 October 2018

JUDGMENT OF CHURCHMAN J

Contents

Introduction [1]

Background [4]

District Court decision [27]

Appellate review [30]

The statutory scheme [34]

Mr Burrows's case [41]

Intention to create legal relations [51]

Analysis [57]

Was the restraining order necessary?  [57]
Were Mr Burrows’ actions taken for a lawful purpose?  [62]
Was the Judge entitled to find that the respondent feared for her safety?  [65] The right to freedom of expression under the New Zealand Bill of Rights Act 1990  [70] Was the Court biased against Mr Burrows?  [73]
Was three years too long a period for the restraining order?  [76]

Result [82]

Costs [85]

BURROWS v THOMSON [2018] NZHC 2761 [24 October 2018]

Introduction

[1] The respondent applied, under the Harassment Act 1997 (the Act), at the Wellington District Court for a restraining order against Mr Wayne Burrows. She alleged that Mr Burrows had engaged in a number of “specified acts” that formed a pattern of behaviour amounting to harassment against her.1

[2] On 10 March 2017, Judge Davidson made a restraining order against Mr Burrows on standard conditions for a period of three years.2

[3] Mr Burrows appeals against both the restraining order itself and its length. His grounds of appeal can be summarised as follows:

(a)that Judge Davidson erred in law in not finding that he had a defence for his actions under s 17 of the Act as they were taken for a lawful purpose;

(b)that Judge Davidson erred in law in finding that his actions were such as to make the respondent fear for her safety;

(c)that Judge Davidson erred in law in discounting his right to freedom of expression as guaranteed under the New Zealand Bill of Rights Act 1990 (NZBORA); and

(d)that both Judge Davidson and the Court staff were biased against him.

Background

[4] In his decision, Judge Davidson provides a comprehensive background of this matter which I largely replicate here.

[5] Mr Burrows and the respondent had known each other since 2008 through their mutual interest in bridge, Mr Burrows having mentored and helped develop the

1 Harassment Act 1997, s 3(1).
2 Thomson v Burrows [2017] NZDC 5681.

respondent’s game. There was, however, some tension at times between them, particularly when, from late 2013, the respondent began to reduce her degree of commitment to bridge. Contact reduced even further in early 2014 when she moved from Palmerston North to Wellington.

[6] On 22 June 2014, they discussed future contact and, although each has a slightly different view about what was agreed, it appears they agreed that, if he did not contact her for a year, the respondent would reconsider future…

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 Burrows v Thomson

Details

AGLC: Burrows v Thomson [2018] NZHC 2761
Case: [2018] NZHC 2761
Decision Date: 24 October 2018

CaseChat Overview and Summary

In Burrows v Thomson [2018] NZHC 2761, the High Court of New Zealand considered an appeal against a restraining order made under the Harassment Act 1997. The appellant, Mr Burrows, had engaged in a pattern of harassing behaviour towards the respondent, Ms Thomson. The appeal centred on several grounds, including whether the restraining order was necessary, if Mr Burrows' actions were taken for a lawful purpose, and whether the court was biased against him.

The court found that Mr Burrows' behaviour constituted harassment as defined by the Act, with his actions forming a pattern of behaviour that included acts such as following, stopping, or accosting Ms Thomson, and making contact with her. The court held that the restraining order was necessary to protect Ms Thomson from further harassment. It also rejected Mr Burrows' argument that his actions were taken for a lawful purpose, finding that nothing in the Act protected or justified his conduct.

Regarding the right to freedom of expression under the New Zealand Bill of Rights Act 1990, the court held that Ms Thomson's right to reputation and to live her life free from harassment was a justifiable limit on any right Mr Burrows might have had to level unfounded accusations against her.

The court further dismissed Mr Burrows' claim of bias against both Judge Davidson and the court staff, finding no evidence to support such a claim. Finally, the court upheld the three-year duration of the restraining order, finding that a shorter period was unlikely to convince Mr Burrows to cease his harassing behaviour.

The appeal was dismissed, and costs were awarded on a 2B basis. The parties were invited to settle costs between themselves, with the respondent to file a memorandum on costs if settlement was not achieved.

Orders