Burrows v Thomson
[2018] NZHC 2093
•15 August 2018
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2018-454-000030
[2018] NZHC 2093
BETWEEN WAYNE JOHN BURROWS
Appellant
AND
AMY KATRINA THOMSON
Respondent
Hearing: 1 August 2018 Counsel;
Appellant in person D R Davies as amicus
Judgment:
15 August 2018
JUDGMENT OF COLLINS J
[Appeal against dismissal of application for restraining order as an abuse of the procedure of the court]
PART I INTRODUCTION
The issue
[1] Mr Burrows appeals from a decision of Judge Smith in the District Court. The issue is as follows:
Did Judge Smith err when he dismissed an application for a restraining order against Ms Thomson sought by Mr Burrows under the Harassment Act 1997 (the Act)?
BURROWS v THOMSON [2018] NZHC 2093 [15 August 2018]
[2] Judge Smith dismissed Mr Burrows’ application because he considered it to be “frivolous or vexatious or an abuse of the procedure of the court”.1
[3] This judgment explains why I am dismissing Mr Burrows’ appeal. To assist in understanding my reasons, I shall first explain the background and then set out the relevant provisions of the Act. I shall then summarise Judge Smith’s decision and the grounds of appeal. Thereafter, I shall analyse the grounds of appeal before summarising my conclusions.
PART II
BACKGROUND
The relationship between Mr Burrows and Ms Thomson
[4] Mr Burrows met Ms Thomson at a bridge club in Palmerston North in 2008. Approximately 18 months after first meeting her, Mr Burrows invited Ms Thomson to play bridge with him. He says that over the next four to five years they developed an effective and successful bridge partnership.
[5] In late 2013, Ms Thomson left Palmerston North. She moved permanently to Wellington in early 2014. Prior to that, the parties’ relationship, which was never more than platonic, began to deteriorate. According to Mr Burrows, Ms Thomson failed to turn up for bridge practice sessions, cancelled her participation in tournaments and became “generally inconsiderate”. Mr Burrows says that he and Ms Thomson discussed what they expected of each other from their bridge partnership and friendship. He says Ms Thomson and he agreed they would maintain their bridge partnership and friendship.
[6] Mr Burrows says that when he contacted Ms Thomson in early March 2014, she behaved in a “most extraordinary manner”. He says that she made excuses about why they could not have bridge practice sessions or catch up. Mr Burrows says their relationship deteriorated into one that involved Ms Thomson verbally abusing him and engaging in “stonewalling”. Mr Burrows says that Ms Thomson also engaged in
1 Burrows v Thomson [2018] NZDC 5020; Harassment Act 1997, s 32.
“gaslighting”, a form of psychological manipulation that involved Ms Thomson pretending that previous discussions had never occurred or were quite different than what had happened.
Specified acts
[7] As is required by the Act, Mr Burrows identified in an affidavit the specified acts that he relied upon in support of his application for restraining orders. I explain the meaning of “specified acts” and the other key requirements of the Act at [16] to [22]. Mr Burrows identified six specified acts that he says constituted harassment by Ms Thomson.
[8] First, Mr Burrows says that, on 31 March 2014, he tried to arrange a meeting with Ms Thomson. He says she became angry with him during an online conversation and twice told him to “go to hell”.
[9] Second, Mr Burrows says that, on 25 April 2014, he and Ms Thomson arranged to meet in Palmerston North to play in a bridge tournament. He says that on the morning of 25 April 2014 Ms Thomson arranged to meet with Mr Burrows in order to have a walk and to talk to him. He says, however, that when Ms Thomson arrived in Palmerston North she did not want to engage with him and said that she could see no point in talking.
[10] Third, Mr Burrows says that, in late June 2014, he offered to discuss the parties’ issues in order to find a resolution. Ms Thomson, however, rejected that offer. Instead she gave Mr Burrows two options, either a short-term arrangement for some bridge practice with no guarantee of on-going long-term contact or a one-year hiatus in their relationship after which she would resume their bridge partnership. Mr Burrows says they agreed to the second option but that after the one-year period had passed Ms Thomson reneged on their agreement, writing to Mr Burrows saying she was not going to resume their bridge partnership. Mr Burrows explains:
This was not what we had agreed and I wrote back to her in those terms. [Ms] Thomson wrote back saying she did not care what we agreed. In that email exchange [Ms] Thomson acknowledged that what she was doing was likely to cause me some pain. And pain it did cause. Immediately, on
receiving that email, I walked around for a day as if I had been knocked out. I was emotionally shattered.
[11] Fourth, Mr Burrows says that, during the course of June to October 2015, efforts were made, with the assistance of Ms Thomson’s father, to reconcile the parties’ differences. He says that during these efforts Ms Thomson was unreasonable, unwilling to make any concessions and unfairly blamed him for not accurately recollecting the arrangements that had been made in June 2014.
[12] Fifth, in 2016 Ms Thomson applied for a restraining order under the Act against Mr Burrows. The hearing of that application took place before Judge Davidson on 16 and 17 June 2016. For reasons that are explained in his judgment, Judge Davidson did not issue the restraining order in favour of Ms Thomson until 10 March 2017. One of the reasons for the delay was that on 17 June 2016 Mr Burrows signed an undertaking promising not to make any contact with Ms Thomson.
[13] The evidence produced by Ms Thomson included “a large number of postcards”, which according to Judge Davidson contained statements from Mr Burrows that she had verbally abused him, lied to him and reneged on their agreement. In her evidence, Ms Thomson said the postcards she had produced as evidence were a small sample of the postcards Mr Burrows had sent her. Mr Burrows claims, however, that this proved to be inaccurate and that all the postcards that Mr Burrows had sent Ms Thomson were presented in evidence. He regards her conduct in this respect as abusive and dishonest.
[14] Sixth, Mr Burrows says that on 17 February 2017, when he was walking along a central Wellington street he came upon Ms Thomson with a male companion. He says the male companion attacked him:
… without reason causing bruising to my arms. They maliciously claimed I was there to see [Ms] Thomson, which I was not. They would not let me walk up the street unimpeded. They made no attempt to wait for me to pass. Instead, on seeing me they walked towards me and [Ms] Thomson’s male associate began to push, hold and grab me. He also threatened me verbally.
[15] Mr Burrows says that he became incredibly stressed and hurt by Ms Thomson’s behaviour and that, since June 2015, he has suffered from severe sleep deprivation,
and has required medical treatment and counselling to cope with the stresses inflicted upon him by Ms Thomson’s conduct. Mr Burrows has explained that he has suspended his pursuit of a PhD in mathematics and has had little income since Ms Thomson commenced what Mr Burrows describes as her pattern of harassment against him.
PART III
HARASSMENT ACT 1997
Object of the Act
[16] The object of the Act “is to provide greater protection to victims of harassment” than was available prior to the passing of the Act.2 The Act aims to provide “adequate legal protection for all victims of harassment” by, amongst other measures, “empowering the [District Court] to make orders to protect victims of harassment who are not covered by domestic violence legislation”, and by making the “most serious types of harassment criminal offences”.3
Applications for a restraining order
[17] Section 9 of the Act governs applications for restraining orders. Relevantly, s 9(1) provides:
9 Application for restraining order
(1) Subject to subsection (4), any person who is being or has been harassed by another person may apply to the court for a restraining order in respect of that other person.
…
Meaning of harassment or a specified act
[18]Section 3 of the Act defines harassment in the following terms:
3 Meaning 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
2 Harassment Act 1997, s 6(1).
3 Section 6(1) and (2).
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.
…
[19]“Specified act” is defined in s 4 of the Act in the following way:
4 Meaning 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.
…
[20] The term “safety” is defined in s 2 of the Act as including a person’s mental wellbeing.
Court powers
[21]Section 16 sets out the power of the District Court to make a restraining order:
16 Power to make restraining order
(1)Subject to section 17, the 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.
…
[22]Section 32(1) of the Act provides:
32 Vexatious proceedings
(1) A court may dismiss any proceedings before it under this Act if it is satisfied that they are frivolous or vexatious or an abuse of the procedure of the court.
…
PART IV
JUDGE SMITH’S DECISION AND GROUNDS OF APPEAL
Judge Smith’s decision
[23] Judge Smith heard Mr Burrows’ application on 15 March 2018. He announced at the end of the hearing that he would be striking out Mr Burrows’ application. Judge Smith’s reasons for that decision were delivered on 16 March 2018.
[24] Mr Burrows’ application relied upon the definition of “specified act” in s 4(1)(f) of the Act. He maintained Ms Thomson’s conduct caused him to fear for his safety and that her conduct would cause a reasonable person in his circumstances to fear for his or her safety.
[25] Judge Smith accepted that the events Mr Burrows complained of caused him the problems that he had identified. The Judge concluded, however, that Mr Burrows could not possibly establish that Ms Thomson’s conduct would cause a reasonable person in Mr Burrows’ circumstances to fear for his or her safety. The Judge therefore concluded Mr Burrows’ application was frivolous, or vexatious, or an abuse of the procedure of the court and should be struck out pursuant to s 32(1) of the Act.
[26] In reaching his conclusion, Judge Smith said that Mr Burrows was obsessed about Ms Thomson’s conduct. The Judge also observed that there would be no purpose in issuing a restraining order as the parties had had no contact since the incident on 17 February 2017.
Grounds of appeal
[27]Mr Burrows has advanced six grounds of appeal:
(1)That an improper process was followed at the hearing when it was ordered that Ms Thomson need not be notified of Mr Burrows’ application.
(2)That Judge Smith erred in law when he applied the reasonable person test.
(3)That Judge Smith erred by not considering an aspect of Mr Burrows’ application that sought special conditions that would ameliorate the alleged harassment.
(4)That Mr Burrows was not allowed to present all of the material he prepared for his case.
(5)That the Court was biased against him.
(6)That Judge Smith’s decision was pre-determined.
[28] Mr Burrows’ appeal is brought pursuant to s 34 of the Act, which authorises an appeal where, amongst other steps, the District Court dismisses an application or otherwise finally determines a proceeding under the Act. Mr Burrows’ appeal is conducted as a rehearing, which means I am to apply the principles set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.4
PART V ANALYSIS
First ground of appeal
[29] Mr Burrows is concerned that the District Court process was “improper” because Judge Davidson directed that Mr Burrows’ application and accompanying affidavit not be served on Ms Thomson. That ruling was subsequently endorsed by Judge Smith in a minute dated 19 March 2018.
[30] Mr Burrows says that the direction in question offended r 20.39 of the District Court Rules 2014, which required the Registrar, upon receipt of his application, to
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141; Harassment Act 1997, s 34(2); District Court Act 2016, s 124; and Mooney v Wilkinson [2015] NZHC 2488 at [8]–[10].
“inform all parties to the proceeding of the date and time fixed for the hearing” and ensure the respondent was served with copies of the application, the notice of proceeding and any affidavit in support.
[31] Mr Burrows maintains he is concerned solely with ensuring the court processes were properly followed. He emphasises he has had no desire to see Ms Thomson or require her to attend court.
[32] Judge Davidson’s decision was based on r 20.25 of the District Court Rules, which allows a Judge to make directions that are not inconsistent with the District Court Act and “that the Judge thinks proper for regulating the business of the court over which he or she presides”.
[33] An object of the Act is to provide adequate legal protection for all victims of harassment.5 Judges Davidson and Smith were entitled to conclude that directing Mr Burrows’ proceedings to not be served on Ms Thomson would ensure her protection against further harassment by Mr Burrows. The Judges were, on this basis, also entitled to conclude that the orders made were “proper for regulating the business of the court” over which ultimately Judge Smith presided, in order to uphold and protect the integrity of the restraining order made by Judge Davidson in favour of Ms Thomson.
[34] No prejudice was, or could have been, suffered by Mr Burrows by the direction that he challenges. It could not have assisted Mr Burrows’ application to have had Ms Thomson served with his application and supporting affidavit. Ms Thomson would inevitably have opposed Mr Burrows’ application.
[35]There is, therefore, no legitimate basis for the first ground of appeal.
5 Harassment Act 1997, s 6.
Second ground of appeal
[36] Mr Burrows submits that Judge Smith erred in the way he applied the test for a specified act in s 4(1)(f) of the Act. Mr Burrows points out that in his decision Judge Smith said:6
The requirement for an act which causes a person to fear for their safety is an objective one. It has to be one that would cause a reasonable person, in the person’s particular circumstances to fear for his safety.
[37] Mr Burrows submits that Judge Smith erred in claiming that the requirement of s 4(1)(f) is an objective standard. He says:
The test is a mixed objective subjective test. A reasonable person test is objective but the consideration of “a person’s particular circumstances” is subjective. It is subjective because it relies on a person’s own particular circumstances.
[38] The first limb under s 4(1)(f)(i) of the Act is satisfied if the respondent has caused the applicant to fear for his or her safety. That is a purely subjective assessment. The second limb under s 4(1)(f)(ii), however, involves an objective assessment, which is predicated on the Court’s understanding of the applicant’s particular circumstances. Once the applicant’s particular circumstances are ascertained, an assessment is made as to whether or not a reasonable person would fear for his or her safety if placed in the applicant’s situation. Legal tests of this nature are sometimes referred to as “mixed objective subjective” tests. That is really a misnomer. There is no truly subjective element to the test, in the same way as under the first limb, and in the sense contended for by Mr Burrows. While the assessment may require the subjective character of a person’s circumstances to be taken into account, the test is ultimately objective, based on a reasonable person’s reaction in those circumstances.
[39] Like Judge Smith, I am satisfied Mr Burrows has suffered in the way he describes. The breakdown of his relationship with Ms Thomson has caused him emotional distress, which in turn has led him to suffer severe sleep deprivation. Mr Burrows’ deteriorating mental wellbeing in turn has caused him to discontinue his
6 Burrows v Thomson, above n 1, at [37].
PhD studies, thereby resulting in the suspension of his scholarship, which, I understand, was the primary source of Mr Burrows’ income.
[40] I am also satisfied that at the height of his distress Mr Burrows feared for his safety in the sense that he believed Ms Thomson’s conduct was affecting his mental wellbeing.
[41] Thankfully, at the hearing before me Mr Burrows was able to explain that he has recently changed his medication regime and that he is now beginning to sleep properly. In due course, he may be able to resume his PhD studies.
[42] While Mr Burrows satisfied the first limb of s 4(1)(f), he fell well short of meeting the second limb set out in that paragraph. In reaching this conclusion I have asked how a reasonable person would react if they had been placed in Mr Burrows’ particular circumstances. Like Judge Smith, I am satisfied that a reasonable person, even one possibly suffering from a fragile mental state, may have been disappointed by Ms Thomson’s behaviour, but would have recognised that it was consistent with events that sometimes occur in relationships between adults. A reasonable person, placed in Mr Burrows’ circumstances, would have accepted Ms Thomson’s decisions. They would not have feared for their safety.
[43]Accordingly, the second ground of appeal fails.
Third ground of appeal
[44] In his third ground of appeal, Mr Burrows points out that his application sought special conditions to ameliorate the harassment he says was being inflicted upon him by Ms Thomson.
[45] This is, however, not a ground of appeal unless Mr Burrows can demonstrate that a restraining order should have been issued. As I am satisfied that Judge Smith correctly dismissed Mr Burrows’ application, the third ground of appeal gains no traction and must therefore be dismissed.
Fourth ground of appeal
[46] Mr Burrows maintains that he was denied an opportunity to present all the evidence he wished to rely on in support of his application. This ground of appeal refers to the fact that during the hearing Judge Smith found Mr Burrows in contempt of court and ordered him to be detained in the court cells for approximately 40 minutes, after which Mr Burrows purged his contempt and the hearing resumed. I have, contemporaneously with this judgment, delivered a decision dismissing Mr Burrows’ appeal from the finding that his conduct at the hearing constituted contempt in the face of the court.7
[47] Judge Smith had the benefit of a comprehensive affidavit from Mr Burrows and written submissions that fully explained his case. In addition, when the hearing resumed Mr Burrows made extensive oral submissions and answered questions from Judge Smith. The transcript for that part of the hearing is 27 pages long. Mr Burrows has not identified any material matters that were not presented in the District Court hearing. In these circumstances, the fourth ground of appeal fails.
Fifth ground of appeal
[48] Mr Burrows’ fifth ground of appeal alleges that Judge Smith was biased towards him. This ground of appeal records that in his minute explaining why the proceedings should not be served on Ms Thomson, Judge Smith said:
There is no need for Ms Thomson to be here, for if the application is not sustainable, filing and serving it would be a further abuse of her.
[49]Mr Burrows points out:
(1)He was not asking for Ms Thomson to be present at the hearing.
(2)Filing an application for a harassment order is not an act of abuse.
7 Burrows v Solicitor-General [2018] NZHC 2092.
(3)Judge Smith was being asked to consider the criteria for strike-out in s 32 of the Act. That test does not engage consideration of whether or not an application is sustainable. Mr Burrows submits that:
This points to Judge Smith having completely the wrong mind set to deal with a s 32 hearing. It is clear throughout his judgment and conclusion that he was dealing not with the broad question of frivolity, vexatiousness and abuse of procedure but the minutiae of a reasonable person test.
Mr Burrows submits that this is evidence of bias on the part of Judge Smith.
[50] While there may have been a slight degree of misunderstanding on the part of Judge Smith as to the reasons why Mr Burrows was submitting that correct procedures had not been followed when it was determined his application and supporting affidavit need not be served on Ms Thomson, I can see no evidence of bias in the way in which Judge Smith heard and determined Mr Burrows’ application. The hearing, whilst unfortunately interrupted by the contempt of court incident, involved Mr Burrows having a full and reasonable opportunity to present his case, and a proper consideration of his application by Judge Smith.
[51]The fifth ground of appeal must also be dismissed.
Sixth ground of appeal
[52] Judge Smith referred to Judge Davidson’s judgment of 28 March 2017 in which he granted Ms Thomson’s application for a restraining order. Mr Burrows says Judge Smith should not have referred to that judgment and that “Judge Smith was likely biased by referring to the judgment of [Judge] Davidson”.
[53] It was entirely proper for Judge Smith to refer to Judge Davidson’s decision. Doing so was not evidence of a pre-determination of Mr Burrows’ application. The facts of that proceeding were so closely related to the application being made by Mr Burrows and that proceeding provided important context to Mr Burrows’ application. Mr Burrows has not demonstrated any other basis for his submission that Judge Smith had pre-determined his application.
[54]Accordingly, the sixth ground of appeal must be dismissed.
Section 32 criteria
[55] An application for a restraining order may be dismissed if the Court is satisfied that the application is frivolous, or vexatious, or an abuse of the procedure of the court.
[56] The application was based on the criteria in s 4(1)(f) of the Act. No other possible “specified act” was advanced in support of the application. As I have explained when dismissing the second ground of appeal, the criteria set out in s 4(1)(f) were not satisfied in the circumstances of this case. In addition, there is no utility in issuing a restraining order because there has been no contact between Mr Burrows and Ms Thomson since 17 February 2017. Indeed, since the hearing in the District Court, Mr Burrows’ circumstances appear to have improved. It is now possible that he may no longer suffer to nearly the same extent as he previously did when trying to deal with Ms Thomson’s conduct.
[57] The term “abuse” as used in s 32 of the Act (and r 15.1 of the District Court Rules 2014) is a technical and not a pejorative term.8 It refers to a use of judicial process that is technically compliant but “tends to produce unfairness and to undermine confidence in the administration of justice”.9 Lord Diplock has described the exercise of the power to strike out for abuse of process as a duty rather than a discretion, to ensure that litigants do not “bring the administration of justice into disrepute among right-thinking people”.10 Abuses of process are not limited to fixed categories and will depend on the circumstances of the case.11
[58] An abuse of process does not always require that the party deliberately seek to flout or exploit Court processes.12 So long as the conduct has that effect, it can be an abuse of process in an appropriate case. The Court will not allow judicial processes to become a means of oppressive conduct, whether intentionally or otherwise.13
8 Simpson v Whakatane District Court [2006] NZAR 247 (HC) at [67].
9 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.
10 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 536.
11 Reid v New Zealand Trotting Conference, above n 9, at 10.
12 Simpson v Whakatane District Court, above n 8, at [67].
13 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87].
Commencing a proceeding that cannot succeed against a person in favour of whom a restraining order has been granted is an abuse of the procedure of the court. Without there being any merit to the claim, it merely operates as a means of oppressive conduct and further harassment. I understand that Mr Burrows does not view his application in this way, but that is the effect of it. My conclusion in this respect is supported by s 6(3) of the Act. That provision states the exercise of any power under the Act, including the power to strike out an application under s 32(1), must be guided by the object of the Act, which is to provide greater protection to victims of harassment.
[59] This aspect of s 32(1) was clearly satisfied. I am therefore convinced that Judge Smith was right to dismiss the proceedings on the basis that it constituted an abuse of the procedure of the court. In these circumstances, it is not necessary to consider whether or not the proceedings were frivolous or vexatious.
[60] I also note that it would have been open to Judge Smith to dismiss Mr Burrows’ application under r 15.1(1)(a) of the District Court Rules, which provide that the Court “may strike out all or part of a pleading if it … discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading”. This rule applies, with any necessary modifications, in proceedings under the Act.14
Summary and disposition
[61] Mr Burrows’ appeal against the dismissal of his application for a restraining order is dismissed.
[62] Ms Davies appeared as amicus. Her fees will be paid by the Ministry of Justice. Whilst s 178(2)(b) of the Senior Courts Act 2016 allows the Court to make any costs order it thinks just in favour of an amicus, I consider it appropriate for this litigation to be brought to an end by making no order for costs.
14 District Court Rules 2014, r 20.26(2).
D B Collins J
Solicitors:
Ben Vanderkolk & Associates, Palmerston North
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