Burrows v Thomson
[2018] NZHC 2761
•24 October 2018
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 contact.
[7] Almost a year later, on 2 June 2015, the respondent emailed Mr Burrows in the following terms:
I promised a year ago that I would let you know whether I wanted to keep in touch now that a year’s gone by. This was a decision I needed to make on my own. I have thought long and hard about this. And it has taken me this long to come to a decision because each answer has disadvantages. I’m not angry any more [sic]. But, I have decided against renewing our bridging partnership. This is difficult for me to say because I know it might cause you some pain and I don’t want to do that. Despite my decision, I feel friendly towards you and want you to do well in bridge and life.
…
It makes me worry that if something happens, the same behaviour will occur. And as much as you waiting a year lessens that worry, it hasn’t made it go away. I do not like conflict. I avoid it when possible and I would always be on tenterhooks waiting for some conflict to erupt. It is not what I need in my life right now. And I judge it likely to happen again given that bridge is not a priority for me right now.
So, I ask that you do me the courtesy of accepting what I say above, respond to my message if you want to reflect how you feel and what this means to you. But, then don’t press the point.
[8]He replied the following day as follows:
Thank you for writing to me. I appreciate you have told me how you feel. However this is not what we agreed to last year.
We agreed to you contacting me and arranging a meeting. We also agreed to a number of subsequent meetings to see how we feel about continuing and to offering each other choices. These agreements were documented.
[9]Later that day, she replied as follows:
Wayne I don’t care what we agreed last year. Decisions regarding who I have contact with and who I don’t are nobody’s business but mine. It is not up for negotiation and is unreasonable to have such expectation regardless of what I agreed to get you to leave me alone when you were harassing me. I have no intention of offering you the choice because a decision whilst affecting you is not one that should be based on anyone’s feelings but my own.
[10] Through these emails, the respondent made it clear that she wanted contact to stop. However, she agreed to meet with Mr Burrows twice the following month (9 and 18 July 2015) and again on 18 October 2015. She explained this as happening because, firstly, she is the kind of person who avoids conflict and gives in fairly easily; and, secondly, the meetings were brokered by her father who was hoping to mediate between them.
[11] On 5 December 2015, both were at a Christmas function at the Palmerston North Bridge Club. In front of others, Mr Burrows approached the respondent, calling her “vile and abusive”.
[12] A week later, on 12 December 2015, Mr Burrows travelled from Palmerston North to an Amnesty International Human Rights Breakfast held in Wellington, knowing the respondent was involved in its organisation. Although he had purchased a ticket lawfully, he was not a regular attender at such events and he had a written flyer with him, entitled, “Human Rights Day – a personal statement”. Judge Davidson accepted the evidence before him that Mr Burrows intended to disseminate the flyer at the meeting.3
[13] Before the event took place, Mr Burrows went with the respondent and the organiser of the event, Ms Taylor, to a nearby café to speak. Both Ms Taylor and the respondent found his manner to be demanding, bullying and aggressive, prompting Ms Taylor to inquire with the café staff as to the whereabouts of the nearest police station to report his behaviour. During this conversation, Mr Burrows said that he intended to make the respondent’s life miserable.
[14] Later that day, the respondent discovered a copy of the flyer in her home letterbox, the relevant portions of which are as follows:
3 Thomson v Burrows, above n 2, at [28].
I have had a personal conflict with [the respondent]. That is an abuse of power not equality of power.
I wouldn’t expect a sister to want to cause me harm and I would expect a sister to do whatever she could to fix the situation if she did cause me harm.
[The respondent] has a choice she can do nothing and her words, (for example “Oh go to hell” or her lies and broken promises) will continue to destroy or she can sit down and with words make her best attempt to save the situation, that her words and her failing to keep them have caused. Today according to facebook she is hosting this event in honour of the Universal Declaration of Human Rights, she is doing that whilst simultaneously trampling on another human being thus depriving them of dignity and humanity.
[15] A week later, on 19 December 2015, Mr Burrows’ wife texted the respondent requesting a meeting. She replied that she would be uncomfortable with any meeting. A few days later, at around 6 pm on 22 December 2015, he and his wife went to her home, unannounced and uninvited. She said to him that he was trespassing and asked him to leave. He acknowledges that she said that he was trespassing, but disputes that he was told to leave. As a result of that incident, she contacted the police.
[16] In January and February 2016, Mr Burrows sent a large number of postcards to the respondent, both to her home and work. The content included as follows:
You verbally abused me. You lied to me. You didn’t keep arrangements. What sort of person would do that?
And she’ll promise you the Garden of Eden then she’ll carelessly cut you and laugh while you’re bleeding. (Billy Joel)
Promises mean everything but after they are broken sorry means nothing. Thanks for nothing.
Broken promises are worse than lies. You don’t just make them believe you make them hope.
What sort of person would lie and not keep arrangements. Someone with no integrity whatsoever.
There is no greater fraud than a promise not kept.
[17] Because these messages were written on postcards, rather than in a letter in a sealed envelope, they were easily readable by anyone handling the postcard.
[18] As well as sending the postcards, Mr Burrows wrote to the respondent on 8 February 2016. In the letter, amongst other things, he said as follows:
I will not stay silent about how you have treated me. … I will tell my story. I will tell it as widely as I can. … To be clear I am convinced, 100%, that you have been abusive to me. … Lying, not keeping promises and verbal abuse are all things that are on my things of emotional or physical abuse or bullying.
[19] On 12 February 2016, Mr Burrows went to the respondent’s place of work. He approached her in the foyer, saying, “When will you stop abusing me?” He was holding up a card with some writing. When she went to the elevator, he followed her to level 5. By this stage, she was visibly distressed, sufficient for a receptionist to activate a duress alarm. The police were called and he was escorted from the building.
[20] A substantive hearing took place before Judge Davidson on 16 and 17 June 2016, during which Mr Burrows wore t-shirts with wording that the Judge noted was along the lines of:
Never be bullied into silence. Speak your truth even when you’re [sic] voice shakes.
[The respondent] is an abusive liar. I will not be silent for your comfort.
[21] At the conclusion of the hearing, Mr Burrows signed an undertaking in the following terms:
I, Wayne John Burrows hereby undertake that I will not contact [the respondent] in any form whatsoever, including digital and other social media, as if an order had been made under the Harassment Act on the standard terms in Form 97 District Court Rules.
More specifically I undertake not to contact [the respondent] directly or indirectly or to refer to her in any social media.
I acknowledge that if I breach the terms of this undertaking this document can be produced in support of any application for a restraining order made by [the respondent].
Dated this 17th day of June 2016.
[22] Following the signing of the undertaking by Mr Burrows, there was no contact until a chance encounter at Auckland Airport five months later on 21 November 2016.
As the applicant and her work associates left the terminal to catch a taxi, he followed her, saying, “You’re an abuser”, or words to that effect.
[23] His campaign recommenced. At 11.09 am on 14 February 2017, he emailed her, her father and her lawyer, making it clear that he intended to continue contacting her, believing that he was entitled to do so for a lawful purpose and that, as such, this would not amount to either a breach of his undertaking or any restraining order.
[24]In another email sent soon after, he wrote:
As noted previously, I will continue to stand up against her abuse as is my right as is every day put to victims of such abuse by organisations helping abuse victims. I will continue to 1. Speak out against [the respondent’s] abuse.
2. Stand up against [the respondent’s] abuse. 3. Challenge [the respondent] on her abuse. 4. Ask [the respondent] to change from her abusive ways. … I refuse to stay quiet and in pain.
[25] Soon after this, on 17 February 2017, there was a further incident near her work place. Mr Burrows had travelled by train from Palmerston North, arriving around
8.30 am, intending to fly to Australia that afternoon. He went to the area near her place of work, saying this was to view an area where he had been unlawfully arrested the previous year. He encountered the respondent with a colleague, and a physical incident arose sufficient to lead to the involvement of the police.
[26] The restraining order was then made on 10 March 2017. On the making of the order Mr Burrows reacted in such a way that led to him having to be calmed by two security officers and three police officers.
District Court decision
[27] Mr Burrows had submitted that the application should be dismissed under s 32 of the Act as frivolous, vexatious or an abuse of process. Judge Davidson rejected this submission:4
[52] When the history of contact between them, particularly from December 2015 to February 2017 is considered, she is plainly entitled to bring the proceedings. To label her proceedings as frivolous, vexatious, or an abuse
4 Thomson v Burrows, above n 2.
of process would be nonsense. There is nothing frivolous or vexatious about her application. Nor is it an abuse of process.
[28] Mr Burrows had also submitted that his behaviour had the protection of lawful process under s 17 of the Act. His Honour stated that, while he had no difficulty in accepting that a person was entitled to challenge another about a perceived breach of the terms of an agreement, most people would see this in relation to agreements that were commercial in nature, although he supposed an agreement of a moral nature could also be challenged.5 However, he determined that s 17 could not justify an open- ended response by Mr Burrows, noting that:6
Here the exact terms of the 2014 agreement were somewhat imprecise, reflecting the fact that it was nothing more than some form of agreement between two individuals about possible future contact. Once the applicant made it clear … that she wanted no further contact, it should have ceased.
[29] Mr Burrows further submitted that there was no evidence to show that the respondent actually was in fear or that a reasonable person in her position would be in fear. Judge Davidson found that his behaviour was such that it “clearly would cause her fear, viewed subjectively; or any reasonable person in her position, viewed objectively, to fear” and that “this [had] undoubtedly caused her stress, viewed subjectively; and would cause a reasonable person in her position to feel distress, viewed objectively”.7
Appellate review
[30] A right of appeal against a judgment of the District Court is conferred by s 34(1) of the Act. Section 34(2) of the Act equates an appeal against a restraining order to one brought against a decision of the District Court in any other type of civil proceeding. The applicable standard of appeal is thus that articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, with the appellate court having the responsibility of arriving at its own assessment of the merits of the case.8
5 At [53].
6 At [54].
7 At [56].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and [16].
[31] While the Court of Appeal in Surrey v Surrey took that view that a challenge to a finding of “necessity” gives rise to an appeal against a discretionary decision rather than requiring a fresh evaluative assessment,9 this is no longer the correct appellate approach, with the Court of Appeal determining in SN v MN that the Surrey approach has not survived the later Supreme Court decision of Kacem v Bashir.10
[32] As with all such appeals, the appeal court must be persuaded that the decision under appeal is wrong. In reaching that view, no deference is required to the decision of the lower court beyond the “customary caution” appropriate in relation to the advantage that the court below has had in seeing the witnesses in relation to assessing credibility. In the present case, there were credibility issues in respect of which Judge Davidson made findings. I accept that I am obliged to accord some deference to those findings, although ultimately, the decision is for me.
[33] However, in the present case, while there was no evidence, as such, called in the appeal, Mr Burrows was self-represented. As is often the case with litigants in person, his submissions were not confined to issues of law, but effectively involved him repeating the sort of evidence given in the court below. I also had the opportunity of observing his behaviour, including the apparent depth and intensity of his anger toward the respondent and his apparent conviction that she had seriously wronged him and that, as a result, he was fully entitled to engage in the behaviour that led to the making of the harassment order.
The statutory scheme
[34]Section 6 sets out the object of the Act:
6 Object
(1)The object of this Act is to provide greater protection to victims of harassment by—
(a)recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and
9 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581.
10 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [46], citing Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [33]–[35].
(b)ensuring that there is adequate legal protection for all victims of harassment.
(2)This Act aims to achieve its object by—
(a)making the most serious types of harassment criminal offences:
(b)empowering the court to make orders to protect victims of harassment who are not covered by domestic violence legislation:
(c)providing effective sanctions for breaches of the criminal and civil law relating to harassment.
…
[35]The term “harassment” is defined by s 3 of the Act as follows:
3Meaning of harassment
(1)For the purposes of this Act, a person harasses another person if he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months.
(2)To avoid any doubt,—
(a)the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:
(b)the specified acts need not be done to the same person on each separate occasion, as long as the pattern of behaviour is directed against the same person.
(3)For the purposes of this Act, a person also harasses another person if—
(a)he or she engages in a pattern of behaviour that is directed against that other person; and
(b)that pattern of behaviour includes doing any specified act to the other person that is one continuing act carried out over any period.
(4)For the purposes of subsection (3), continuing act includes a specified act done on any one occasion that continues to have effect over a protracted period (for example, where offensive material about a person is placed in any electronic media and remains there for a protracted period).
[36] The “specified acts” to which the definition of “harassment” refers are set out in s 4(1) of the Act:
4Meaning of specified act
(1)For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:
(a)watching, loitering near, or preventing or hindering access to or from, that person’s place of residence, business, employment, or any other place that the person frequents for any purpose:
(b)following, stopping, or accosting that person:
(c)entering, or interfering with, property in that person’s possession:
(d)making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way):
(e)giving offensive material to that person or leaving it where it will be found by, given to, or brought to the attention of that person:
(ea) giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, or brought to the attention of, that person:
(f)acting in any other way—
(i)that causes that person (person A) to fear for his or her safety; and
(ii)that would cause a reasonable person in person A’s particular circumstances to fear for his or her safety.
[37] Once harassment has been established, the court may make a restraining order in these circumstances:
16Power to make restraining order
(1)Subject to section 17, the [District Court] may make a restraining order if it is satisfied that—
(a)the respondent has harassed, or is harassing, the applicant; and
(b)the following requirements are met:
(i)the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and
(ii)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and
(iii)in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(c)the making of an order is necessary to protect the applicant from further harassment.
…
[38]Section 17 of the Act provides as follows:
17Defence to prove that specified acts done for lawful purpose
A specified act cannot be relied on to establish harassment for the purposes of section 16(1)(a) if the respondent proves that the specified act was done for a lawful purpose.
[39] In Wallis v Rebolledo, Heath J drew the following propositions from these statutory provisions:11
(a)The object of the Act is to provide greater protection to victims of harassment who are not able to obtain protection orders under the domestic violence legislation. This object is achieved by:
(i)Enlarging the type of behaviour beyond “domestic violence” (as defined in the Domestic Violence Act 1995) to ensure protection is available to someone who is not in a defined domestic relationship; and
(ii)Extending the scope of unacceptable behaviour (including what might otherwise be regarded as innocuous or trivial in nature), which is of a kind that requires a protective order to cover those who are not in a domestic relationship.
(b)The circumstances in which restraining orders may be made contain three distinct dimensions:
(i)The first involves words or conduct on the part of the person alleged to be harassing the other. These are the “specified
11 Wallis v Rebolledo [2017] NZHC 2565 at [9] (citations omitted).
acts” to which s 4(1) of the Act refers. These give rise to the pattern of behaviour required to establish harassment.
(ii)The second involves the effect of the alleged behaviour on the applicant for the restraining order. In short, the behaviour must be such as to cause distress to a reasonable person in the position of the applicant, or to threaten him or her.
(iii)The third is the statutory acknowledgement that while the first and second elements might be established, the Court must stand back and determine whether, in the circumstances of the particular case, a restraining order “is necessary to protect the applicant from further harassment”.
[40]His Honour stated:12
[10] The Act is designed “to provide greater protection to victims of harassment” by ensuring adequate legal protection is available for such victims. In proceedings that have no criminal element, that objective is to be achieved by “providing effective sanctions for breaches of the … civil law relating to harassment”. The question whether it is necessary to make a restraining order is informed by those objects.
Mr Burrows’ case
[41] Mr Burrows advanced on appeal principally the same submissions that he had made in the District Court. Mr Burrows also took the opportunity to mount a sustained attack on the character and honesty of Ms Thompson. He showed no restraint in the language he used to describe her, calling her a pathological liar, asserting that “morally she belongs in the gutter”, as well as often repeating his claim that she had been abusive towards him. This is no justification for any of these claims. Repeatedly during the hearing of this appeal he needed to be reminded by the Court to focus on the legal issues relating to his appeal rather than denigrating the respondent.
[42] It was clear from the vehemence of his comments about the respondent that Mr Burrows still harbours a deep-seated and intense animosity towards her.
[43] Mr Burrows did not confine his vituperative comments to the respondent. In both his written and oral submissions, he made intemperate and totally unwarranted comments about Judge Davidson.
12 Citations omitted.
[44] Some flavour of the tenor of Mr Burrows’ comments is seen at [24] of his written submissions dated 17 July 2018, where he said:
Essentially Davidson watched an assault in his courtroom and did almost nothing to stop it then lied by omission to the police when they arrived. Not only does this show Davidson’s bias but his behaviour is criminal. It is an offence under the Crimes Act 1961 “knowing any person to have been a party to the offence … actively suppresses any evidence against him or her, in order to enable him or her to … avoid arrest …” s 71 Accessory after the fact.
[45] In his submissions on appeal, Mr Burrows continued to describe Judge Davidson as a criminal.
[46] Mr Burrows’ willingness to interpret any attempt by the Court during the appeal to get him to focus on relevant issues and desist in his attacks on the character and integrity of the respondent, as being unauthorised constraints on his freedom to conduct his case as he saw fit, was unrestrained. He demonstrated his sense of victimhood by claiming that such attempts amounted to bullying and demanding first an adjournment and then that the Court recuse itself.
[47] In essence, the case advanced by Mr Burrows was that the correspondence the respondent sent him on 2 June 2015 indicating that she did not wish to continue their contact amounted to a breach of contract and abusive behaviour.
[48] Mr Burrows’ submissions were based on a highly developed sense of entitlement. He believed that because the respondent had done him what he thought was a legal wrong, he was entitled to continue to confront her with his views of her behaviour. At one point, he submitted that when people do you wrong, it is okay to publicly shame them. He claimed that he was entitled to cause distress to “an abuser”.
[49] Mr Burrows’ submissions, both written and oral, were consistent with the sentiments set out in the documentation referred to earlier in this judgment in maintaining his view that because he was convinced the respondent had been abusive of him and was a liar, he was entitled to express that view in any manner he saw fit.
[50] As Mr Burrows was unwilling to entertain any suggestion that he might have been mistaken in his view that he contractually enforceable rights against the
respondent, which he was entitled to hold the respondent accountable for breaching, it is necessary to briefly explain why Mr Burrows’ understanding of his legal entitlements is erroneous.
Intention to create legal relations
[51] Not all agreements between people will be enforceable contracts and, for an agreement to be enforceable, the parties must have intended to create a legally binding relationship.
[52] In the context of a domestic agreement, the presumption is that there will have been no such intention,13 although the question will be one of fact in light of the circumstances of the case.14
[53] This principle has been extended to agreements made between friends, where there could have been no expectation that an agreement could generate legal obligations. Jeremy Finn in Law of Contract in New Zealand gives an example of an agreement between friends in which A pays for cinema tickets, B pays for refreshments and C pays for the taxi fare.15 While there is a bargain between the parties, featuring offer, acceptance and consideration, this agreement is not of a nature to create a legal obligation between the friends.
[54] That social agreements between friends will not create legal relations has also been recognised in case law. In Coward v Motor Insurers’ Bureau, where there was an agreement between work colleagues in which one would drive the other to work in return for a contribution for costs, the English Court of Appeal held there was no contract as it was a social and domestic agreement, with no intention to create legal relations.16
13 Balfour v Balfour [1919] 2 KB 571, [1918-1919] All ER Rep 860.
14 Fleming v Beevers [1994] 1 NZLR 385 at 391.
15 Jeremy Finn “Intention to Create Legal Relations” in Jeremy Finn, Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (6th ed, LexisNexis, Wellington, 2018) at [5.3.3].
16 Coward v Motor Insurers’ Bureau [1963] 1 QB 359.
[55] The agreement between Mr Burrows and the respondent was of such a nature. It was merely an agreement between the two parties that there was to be no contact between the pair for a year, after which time, they would revisit the situation and discuss resuming their bridge partnership. There was no expectation that the respondent would be under any legal obligation to resume contact with Mr Burrows once the year had passed. She was, therefore, entitled to decide not to have any further contact with him, despite any initial agreement that she would meet with him once the year was up.
[56] Similar observations have been made by the New Zealand courts in relation to harassment applications arising from one party no longer wishing to have contact with another. Glazebrook J in Surrey v Surrey said, “If an individual does not wish to associate with another person, it would normally be expected that the other person would respect his or her wishes in that regard.”17
Analysis
Was the restraining order necessary?
[57] A major plank of Mr Burrows’ case is that there was no necessity for a restraining order. He referred to several instances where they had interacted without the respondent apparently being fearful for her safety and submitted that this indicated it was not necessary for an harassment order to be in place.
[58] The first time Mr Burrows and the respondent met after she indicated she wanted contact to stop was at a bridge club function in Palmerston North. While it is likely that the respondent would have attended this event in the knowledge that she may encounter Mr Burrows, no reasonable person would have expected to have been confronted by him in the manner that she was, being called “vile and abusive” in front of others. Such a situation would have been distressing and would likely have made her reluctant to attend any such function in her hometown again, fearing a repeat of this behaviour. While this incident may appear trivial in isolation, it certainly paints the first brushstrokes of a broader picture of harassment.
17 Surrey v Surrey, above n 9, at [114].
[59] Mr Burrows’ decision to attend an event that the respondent had helped organise in another city, however, would not have been something that a reasonable person would have anticipated. It has an altogether more sinister complexion, revealing Mr Burrows’ growing obsession and the lengths that he was prepared to go to in exercising what he said was his entitlement to publicly confront and humiliate the respondent. To have him show up prior to the event, having purchased a ticket and threatening to make her life miserable, in light of his calling her “vile and abusive” in front of others at the earlier function, would have been something that most people would find distressing. Leaving the flyer in her letterbox in which he accused her of lying and trampling on his human rights, would also have been something that most people would find distressing and undoubtedly the respondent did.
[60] This behaviour continued, with Mr Burrows showing up at her home uninvited after having been informed that she would be uncomfortable with any such meeting, his sending her unsolicited postcards and letters, and then accosting her at her place of work. These all fit within the meaning of “specified acts”, forming a pattern of behaviour that I am satisfied constitutes harassment as defined by s 3 of the Act.
[61] Given Mr Burrows’ trenchantly expressed sense of entitlement to behave in the way he did, it is my view that, but for the police intervention at the February workplace incident and the signing of the undertaking by Mr Burrows at the hearing in June 2016, this harassment would have continued. While the undertaking did put a temporary halt on matters, Mr Burrows’ renewed harassment following the chance encounter at Auckland airport meant that Judge Davidson was correct to find that the making of an order was necessary to protect the applicant from further harassment.
Were Mr Burrows’ actions taken for a lawful purpose?
[62] Mr Burrows argues that Judge Davidson erred 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. He seeks to justify his actions by suggesting that the breach of the agreement entitled him to act in this manner. Mr Burrows submits that the respondent:
… cannot have blatant disregard for an agreement that she made and reasonably expect for the law to protect her from uncomfortable interactions with the person that she has harmed. It is not harassment to challenge another
person on their failure to keep agreements and or promises, not is it harassment to challenge a person on their manipulative, abusive behaviour.
[63] As explained above, Mr Burrows’ understanding of his legal rights and entitlements is fundamentally flawed. Judge Davidson remarked in his decision that the arrangement between Mr Burrows and the respondent appears to have concerned possible future contact and, whatever the exact terms of this arrangement might have been, “there can be no possible basis whatsoever to conclude that s 17 somehow or other exempts, protects or indemnifies [him] against all future contact”.18 I agree with that observation.
[64] On each occasion that contact was made, whether he initiated that contact or it happened by chance, Mr Burrows’ behaviour could be categorised as abusive, bullying and overbearing. He used language calculated to cause distress to the respondent. He maintains that he has an entitlement to cause distress to the respondent should he wish to do so. Judge Davidson was entitled to conclude that nothing in s 17 protected or justified his conduct.
Was the Judge entitled to find that the respondent feared for her safety?
[65] Mr Burrows submits that for an act to be a “specified act” there is a requirement that it causes the person to fear for their safety, relying on the decision of Mooney v Wilkinson in which Ellis J, having set out s 4(1)(f), concludes:19
[26] The use of the words “Acting in any other way that …” is a clear indication that the other specific acts named in the preceding part of the definition must (in order to qualify as a specified act) all have the same effect, namely of causing reasonable fear in the person at whom they are directed. If that were not the case then para (f) would simply read “Acting in any way that
…”. An application of the interpretive principle that words or phrases take their colour from the words or phrases which surround them, suggests the same conclusion. In short, what is potentially restrained by the Act is (repeated) conduct of a kind that causes the person at whom it is directed to fear reasonably for his or her safety.
[66] At [11] of his decision, Judge Davidson noted that there is conflicting authority regarding the requirement of fear, citing Mooney as holding that the requirement applies to all specified act in s 4(1)(a)–(f) inclusive, while Beadle v Allen contends
18 Thomson v Burrows, above n 2, at [55].
19 Mooney v Wilkinson [2015] NZHC 2488 (citation omitted).
that it only applies to s 4(1)(f).20 However, just as Judge Davidson in this case determined that it was not necessary for him to resolve this conflict as, even if the more rigorous requirement of proof of fear applies, he was entirely satisfied that the case had been made out, it is not necessary, for the same reason, for this Court to resolve this conflict either.
[67] As to whether or not the respondent feared for her safety, I have reached the same view as Judge Davidson. Mr Burrows knew both where she lived and worked, and, despite these places being in a different city, some distance from where he resided, he had turned up uninvited at both locations, demanding her attention. I am satisfied that the respondent would have had an objective fear for her emotional and psychological well-being, being subjected to verbal and psychological abuse of this nature. I am also satisfied that she had a subjective basis for fearing that Mr Burrows might cause her physical harm and that a reasonable person in her particular circumstances would have shared her fear. Mr Burrows argued that the respondent cannot have had any fear of him because she went up in the same lift as him on the occasion he turned up at her work on 12 February 2016. However, this submission ignores the factual finding made by Judge Davidson, which was:
When she went to the elevator he followed her to level 5. By this stage she was visibly distressed, sufficient for a receptionist to activate a duress alarm. The police were called and he was escorted from the building.
[68]That finding is one Judge Davidson was clearly entitled to make.
[69] By this stage, Mr Burrows’ actions had become obsessive and unpredictable. His behaviour was well beyond the limits of acceptable social norms. It was also deliberate. He intended to cause distress to the respondent and has maintained that he was entitled to do so as long as he did not physically threaten her with harm. Mr Burrows has no such legal right.
The right to freedom of expression under the New Zealand Bill of Rights Act 1990
[70] In his notice of appeal, Mr Burrows, under his ground of appeal concerning the right to freedom of expression, stated that Judge Davidson had not discussed his right
20 Beadle v Allen [2000] NZFLR 689.
to express truthful statements about the respondent. He submits that his saying to her words to the effect of “You’re an abuser” is not harassment as her behaviour towards him had been abusive. He admits that he called her a liar, but states that she is a liar and he is entitled to speak the truth. While Judge Davidson acknowledged Mr Burrows’ view that he had a right to speak the truth, Mr Burrows complains that, despite saying at [40] that he would discuss his rights under the NZBORA, the Judge remained silent on this issue for the remainder of the judgment.
[71] This argument can be disposed of shortly. There is no doubt that, in a case such as this, the Court must carefully consider whether the making of an harassment order would unreasonably constrain the rights of freedom of speech.21
[72] Although s 14 of the NZBORA provides for the right to freedom of expression, like all rights and freedoms contained in that Act, it is subject to “such reasonable limits … as can be demonstrably justified in a free and democratic society”.22 The respondent’s right to reputation and to live her life free from harassment of this kind is a justifiable limit on any right Mr Burrows might have had to level these kinds of unfounded accusations against her in the manner in which he chose to do.
Was the Court biased against Mr Burrows?
[73] Mr Burrows’ final ground of appeal was that both Judge Davidson and the Court were biased against him and he submits that there are significant issues in the way in which Judge Davidson handled this case and his personal involvement in the case. He alleges numerous instances of how this bias worked against him, noting, for example, that Judge Davidson commented on the length of his submissions and that, despite the District Court Rules requiring that an application as filed be sufficient to grant an order and that amendments can only be made prior to the documents being served on a respondent, the Court allowed the respondent to file a supplementary affidavit after he had filed his defence.
21 Waxman v Crouch [2016] NZHC 2004.
22 New Zealand Bill of Rights Act 1990, s 5.
[74] He has levelled similar unfounded complaints against members of registry staff at the Wellington High Court as well, complaining that they lied and that their actions are “abusive” and “bullying”. These accusations appear to echo those he levelled against the respondent. Having regard to Mr Burrows’ behaviour in this Court, it appears that his standard response to a decision or ruling he does not like is to claim the maker was biased against him.
[75] There is nothing in Judge Davidson’s judgment that would indicate he was biased against Mr Burrows. I can understand why Judge Davidson might have been concerned at the length of Mr Burrows’ submission. In this Court, despite the best efforts of the Court to encourage Mr Burrows to stop repeating submissions he had already made and to focus on issues relevant to his appeal, he spoke continuously from
10.00 am until after 4.00 pm. While Judge Davidson elected not to address every issue raised by Mr Burrows in his submissions, this is not uncommon when dealing with lengthy and repetitive submissions, some of which were irrelevant to the central legal issues. There will also be occasions where the District Court, exercising its discretion over procedural matters, will allow a party to file a supplementary affidavit after a defence has been filed. There is, therefore, no basis to this ground of appeal.
Was three years too long a period for the restraining order?
[76] In his written submissions received by the Court on 28 September 2018, Mr Burrows complains that, while the ordinary duration of a restraining order is 12 months, the order issued by Judge Davidson was for three years. This is, however, the only reference to the duration of the restraining order in his written submissions. Orally, he claimed that given his recent good behaviour, there was no necessity for a duration of three years.
[77] Section 21(1) of the Act provides that “[a] restraining order may be made for such period (whether longer or shorter than 1 year) as the court considers necessary to protect the applicant from further harassment.”
[78] In NR v District Court at Auckland, which dealt with a restraining order made for five years, it was held that the harassment, being at a low to moderate level, did
not warrant a five-year order and an order of 12 months duration was imposed.23 In that case, after the application for a restraining order was made, the behaviour had stopped or, at least, reduced.
[79] In the case of Bleckman v O’Reilly, in which there had been unjustified maintaining of contact causing the applicant the same stress and discomfort as prior to the imposition of the restraining order, the order was extended for a duration of two years.24
[80] Mr Burrows’ harassment of the respondent, having ceased for a period of some five months after signing the undertaking, recommenced after the parties’ encounter at the airport. This would appear to indicate that a short period of reflection is unlikely to convince Mr Burrows that his actions are inappropriate. In view of Mr Burrows’ past pattern of behaviour the Court can have no confidence that if the restraining order was made for only one year, Mr Burrows would not, once again on its expiry, re- commence harassing the respondent. Mr Burrows appears to show no insight into the unacceptability of his actions and to have a sense of entitlement that does not bode well for voluntary long-term compliance with his obligations not to harass the respondent. That he believes he has an absolute entitlement to cause distress to the respondent provided he does not physically threaten her is deeply troubling.
[81] In these circumstances, I have reached the same conclusion that Judge Davidson did, that a restraining order of three years’ duration was required in this situation.
Result
[82]I find no error in any of the factual or legal findings of Judge Davidson.
[83] For the reasons given above, I am satisfied that the requirements for an harassment order are met and that such an order is necessary.
[84]The appeal is dismissed.
23 NR v District Court at Auckland [2014] NZHC 1767.
24 Bleckman v O’Reilly DC North Shore CIV-2010-044-001647, 20 September 2011.
Costs
[85] Costs are awarded on a 2B basis. The parties are invited to settle costs between themselves, but failing that, the respondent is to file a memorandum on costs within 14 days of the date of this decision, with Mr Burrows to have 14 days to reply.
Churchman J
Solicitors:
Ord Legal, Wellington for the Respondent
Copy to:
The appellant
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