C v L
[2019] NZHC 485
•19 March 2019
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES PURSUANT TO SECTION 39 OF THE HARASSMENT ACT 1997. IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2018-441-93
[2019] NZHC 485
UNDER Section 34 of the Harassment Act 1997 IN THE MATTER OF
An appeal from a decision of the District Court making a restraining order
BETWEEN
C
Appellant
AND
L
Respondent
Hearing: 7 March 2019 Appearances:
P Ross for the Appellant
D O’Connor for the Respondent
Judgment:
19 March 2019
JUDGMENT OF COOKE J
[1] C appeals against the decision of the District Court dated 12 October 2018 granting a restraining order under the Harassment Act 1997 (the Act) against him in favour of L.1 C contends that the District Court Judge erred in identifying particular specified acts as is required to make such an order, that he erred in applying the defence of lawful purpose of s 17 of the Act, that the length of the restraining order was unduly long, and that the Court erred in uplifting its costs award by 25 per cent.
1 L v C [2018] NZDC 19841.
C v L [2019] NZHC 485 [19 March 2019]
The statutory provisions
[2]The object of the Act is set out in the following terms:
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
(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.
(3) Any court which, or any person who, exercises any power conferred by or under this Act must be guided in the exercise of that power by the object specified in subsection (1).
[3] In fulfilment of that object, the Act sets out two types of harassment, criminal harassment under Part 2, and civil harassment under Part 3. If a person commits criminal harassment they commit an offence and become liable to imprisonment for term not exceeding two years. Broadly speaking criminal harassment means engagement in harassment as defined by the Act when intending, or knowing that the harassment will cause fear for safety of the person or another in a family relationship with that person.
[4] Civil harassment under Part 3 contemplates a person making an application for a restraining order under s 9. The Court can then make a restraining order under s 16, which provides:
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.
(2) For the purposes of subsection (1)(a), a respondent who encourages another person to do a specified act to the applicant is regarded as having done that specified act personally.
(3) To avoid any doubt, an order may be made under subsection (1) where the need for protection arises from the risk of the respondent doing, or encouraging another person to do, a specified act of a different type from the specified act found to have occurred for the purposes of paragraph (a) of that subsection.
[5] Section 17 deals with acts done for a lawful purpose, which I will return to in greater detail below.
[6]A definition of “harassment” is provided under s 3:
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 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).
[7] This definition requires a pattern of behaviour that includes a “specified act”. This is defined in the following terms:
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.
(2) To avoid any doubt, subsection (1)(f) includes the situation where—
(a)a person acts in a particular way; and
(b)the act is done in relation to a person (person B) in circumstances in which the act is to be regarded, in accordance with section 5(b), as done to another person (person A); and
(c)acting in that way—
(i)causes person A to fear for his or her safety; and
(ii)would cause a reasonable person in person A’s particular circumstances to fear for his or her safety,—
whether or not acting in that way causes or is likely to cause person B to fear for person B’s safety.
(3) Subsection (2) does not limit the generality of subsection (1)(f).
[8] Section 19 sets out standard conditions of a restraining order, and s 20 empowers the Court to impose special conditions. The duration of a restraining order is set under s 21, but lasts for one year if no period is set. Orders can be varied or discharged under ss 22–24. Under s 29 the standard of proof applicable to an application for a restraining order is the balance of probabilities.
[9] It is then an offence to contravene a restraining order under s 25, under which a person is liable to imprisonment for a term not exceeding six months, or a fine not exceeding $5,000. Higher terms of imprisonment can be imposed in the case of multiple offences in the manner defined in s 25.
[10] Under s 9 a person may not apply for a civil harassment order if they are in a domestic relationship. Domestic relationships are controlled by the Domestic Violence Act 1995.
[11] There are other general provisions, including a right of appeal to the High Court under s 34 which proceeds as if this is an appeal under ss 124 and 127 of the District Court 2016. This a general right of appeal which proceeds by way of re- hearing, and accordingly involves the approach outlined by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.2 I proceed with this appeal on that basis.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141. Given the close statutory controls involved in granting an order, this is not a situation that involves an appeal from a discretion of the kind referred to in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
Approach mandated by the New Zealand Bill of Rights Act 1990
[12] The Act overtly involves the exercise of power which can limit rights affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA). That is particularly so with respect to the right of freedom of expression under s 14 of the NZBORA, but also other rights. Given that, it becomes necessary to ensure that the Act is interpreted and applied in a manner that is consistent with the requirements of NZBORA.
[13] The approach to the interpretation of legislation potentially inconsistent with NZBORA is set out in R v Hansen.3 Less assistance is provided by the authorities on the question of the exercise of powers, including discretionary powers, which potentially involve limitations on fundamental rights. In the present case it seems to me that the approach required to the question of interpretation under Hansen also identifies how the discretionary powers are constrained by the NZBORA.
[14] I start by addressing the requirements of ss 4, 5 and 6 of NZBORA by applying the steps set out by Tipping J in Hansen.4 As far as I can tell, such an analysis has not been engaged in in the earlier cases concerning the Act. Applying steps one and two it is clear that the Act is apparently inconsistent with the rights in NZBORA, and particularly the right of freedom of expression in s 14. The next step involves s 5 of NZBORA — does the inconsistency involve demonstrably justified reasonable limits. This involves a proportionality analysis of the kind described by the Supreme Court of Canada in R v Oakes5 and was summarised by Tipping J in the following way:6
(a)does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)
(i)is the limiting measure rationally connected with its purpose?
(ii)does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
(iii)is the limit in due proportion to the importance of the objective?
3 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
4 At [92].
5 R v Oakes [1986] 1 SCR 103.
6 R v Hansen, above n 3, at [104].
[15] Applying that test, it seems to me that the legislation meets the requirement for a demonstrably justified limitation. The meaning of harassment is closely defined, and there are carefully formulated tests before the statutory threshold for making a protection order can be met. The purposes of the legislation are also clearly articulated in the objects section. It is directed towards the distress that can be caused by behaviour of this kind. Section 16 sets an appropriate standard for determining whether an order should be made which involves standards directed not only the person applying for the order, but a reasonable person in that person’s circumstances. Moreover, an order can only be made if it is justified, and only if it is “necessary to protect the applicant from further harassment”.7 The requirement of necessity may be particularly important in establishing a justified limit on fundamental rights.
[16] The overall regime of the Act is also of significance. A protection order is first issued by the Court on notice, and following Court scrutiny, including on the terms and conditions of any protection order. It is only if an order is breached that potential offending is involved. Therefore in this area of intimidatory behaviour the legislature sets up a regime where an order may be made against a person — in effect an order requiring them to “back off” — before more significant sanction of the State is invoked. There is also a careful regime for discharge of variation of the orders, as well as rights of appeal, such as that exercised in the present case.
[17] The Act also exists within a broader legislative context. The legislature has addressed the question of potential offending when persons disturb others in other ways. In Brooker v Police and Morse v Police the Supreme Court engaged in what can be described as a recalibration of the disorderly behaviour offences under the Summary Offences Act 1981 in light of NZBORA.8 Whilst the Act addresses only a particular type of behaviour — described as intimidatory behaviour — in relation to this kind of behaviour it involves a more proportionate response than that which might potentially have previously be applied under the Summary Offences Act 1981. The Act itself also contemplates when behaviour might move into that involving offending
7 Harassment Act 1997, s16(1)(c).
8 Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91; and Morse v Police [2011] NZSC 45, [2012] 2 NZLR 1. It is noteworthy that the Summary Offences Act 1981 also includes an offence of intimidation (s 21). This was not in issue in these cases.
when there is the additional mens rea element as defined by s 8.9 Offending can also arise if a protection order is breached. To some extent, therefore, the Act might be seen as occupying a gap created by rights compliant interpretation of other legislation.
Appropriate approach to the exercise of power
[18] As indicated the Act has a series of provisions that regulate the making of a restraining order. First, the person applying for the order must be being harassed as defined by the Act, which requires the applicant to show a pattern of behaviour. This includes the requirement to identify conduct meeting the definition of a “specified act”. The requirements of s 16 must also then be satisfied. In NR v District Court at Auckland the Court of Appeal explained the relevance of the specified acts. It held:10
[33] The Act does not limit the analysis of pattern of behaviour and harassment to specified acts. The role of specified acts is first as a gatekeeper, there needing to be two such acts within a 12-month period to engage jurisdiction. Thereafter a court is to assess all of the defendant’s conduct. The other role of specified acts is to define the scope of an order. Section 19(1) provides that the effect of a restraining order is that the person subject to the order may not do, or threaten to do, any specified act in relation to those protected by it.
[34] The wording of s 3(1) is that harassment occurs if a person engages in a pattern of behaviour “that includes doing any specific act”. The pattern must include such acts but is not limited to them. The existence of a pattern is to be assessed by looking at all conduct. Once a pattern of behaviour is found to exist, its nature is to be assessed against the criteria set out in s 16(1)(b) and
(c) …
[35] It can be seen the Act requires the pattern of behaviour to be causing the applicant distress in circumstances where the reasonable person would likewise feel distress. Further, there is a requirement to ensure the level of distress merits interfering with the defendant’s rights of free movement and speech, and that the order is necessary to protect the applicant in the future. The establishment of a relevant pattern of behaviour is therefore very much only the starting point.
[19] In addressing the requirements of s 16, Toogood J set out an approach in Munro v Collection House (NZ) Ltd in the following terms:11
9 Where the normal criminal burden of proof would be applicable rather than the civil burden referred to in s 29.
10 NR v District Court at Auckland [2016] NZCA 429, [2016] NZFLR 775 per Simon France J (footnotes omitted).
11 Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [32] (footnotes omitted).
• First, to determine whether the respondent has harassed, or is harassing, the applicant;
• Second, to find whether the behaviour in respect of which the application is made causes the applicant distress, or threatens to do so;
• Third, to make the mixed objective/subjective assessment of whether that behaviour would cause, or threaten to cause, distress to a reasonable person in the applicant’s particular circumstances;
• Fourth, to decide whether, in all the circumstances, the degree of distress caused or threatened by that behaviour justified the making of an order; and
• Fifth, to decide whether the making of an order is necessary to protect the applicant from further harassment.
[20] The first element carries with it the pattern of behaviour referred to by the Court of Appeal in NR. The last two elements — requiring justification for making the order and establishing that the order is necessary to protect the applicant from further harassment — engage the concepts arising from s 5 of NZBORA. A Court should only make orders that are both justified and necessary. What is justified and necessary is informed by what is demonstrably justified in a free and democratic society, which in turn is informed by the concept of proportionality. This applies also to the scope and conditions of such an order, limited by what is justified and necessary to prevent ongoing harassment. In this way NZBORA is relevant not only at the interpretation phase, but also at the application phase.12
The facts
[21] With the exception of particular matters addressed below, the factual findings of the District Court Judge are not challenged. I accordingly largely rely on those findings although I have referred to the evidence itself for the purposes of obtaining a fuller understanding of some of the findings made by the Judge.13
[22] L and C live across the street from one another in Napier. L is a solo mother who lives alone with her child, who was approximately 14 months old at the time of the application for the order under the Act. She is a solicitor. C is a man in his early
12 This is evident from the Court of Appeal’s judgment in NR v District Court at Auckland, above n 10, at [35]. See also Waxman v Crouch [2016] NZHC 2004 at [21]–[23] per Palmer J.
13 L v C, above n 1, particularly at [7]–[8] and [13]–[20].
70s who has lived with his wife at their address since 2003. L moved in in December 2013 and has two dogs living with her. C says that for a number of years L’s dogs have barked in an uncontrolled way, including at various times during the night which has woken him up and deprived him of sleep. He has complained to a number of parties, including the Napier City Council. After conducting a survey of the neighbourhood for the purpose of canvassing the views of other neighbours, the Council advised C that it was proposing to take no further action.
[23] He first approached L in June 2016. This was early in the morning when L was in her yard loading her car. C spoke to her in emphatic terms about the dogs “mindless barking”. L responded by instructing C to text her if her dogs were disturbing him with their barking.
[24] On 3 July at 4.47am C then sent L a text. He identified a number of times when the dogs were said to have barked through to 1.00am earlier that morning. He stated in his text:
Hopefully this wakes you just as [one of the dogs] woke me before I came out on Patrol.14
[25] The next day C hand delivered L a letter complaining in forthright terms about her dogs barking stating that, inter alia:
You are on notice – if this is not fixed, by you, forthwith, then I will escalate the matter by contacting neighbours, Noise Control, the Ranger and the SPCA and also seek what legal remedies are available.
…
This end of [the neighbourhood] does not have a dog problem, it has a dog owner problem, and fixing that is long overdue
[26] On 14 July counsel for L wrote to C requesting that he cease contact with her given the current communications, and indicating that an application would be made under the Act if further contact was made. On 23 August 2016 solicitors for C replied disputing some of the factual matters in counsel’s letter, providing a long schedule of
14 The reference to “Patrol” refers to Mr C’s view that he fulfils the role of a patroller under neighbourhood patrols of the type suggested by Police.
times and dates when it is alleged the dogs were barking, and suggesting that the dogs be fitted with ultrasonic anti-bark devices.
[27] There was no further interaction until March 2017 when C complained to the Chief Executive of the Napier City Council, and also to the Mayor. An investigation was then undertaken by the Council, and in October 2017 the Council sent a letter to C advising him that L had met her obligations under the Dog Control Act 1996 and that no further action was required.
[28] Sometime in November or December 2017 C then decided to re-engage directly with L. He hand delivered a note to L complaining that the dogs had woken him on two occasions and that:
If I continue hearing barking either side of midnight then I will purchase a handheld megaphone and advise you at FULL volume, from your gate, that I have been woken yet again.
[29] On 8 December he hand delivered a further note which again complained about barking and stated:
You are now fully in megaphone territory and will be advised at FULL volume, from your gate, your name, address and a advisory of the times they have barked.
If you are out i will either wait until you get home to make the announcement or make it the following night when you are at home.
[30]In January 2018 he hand delivered a further note stating:
When i get woken by barking dogs, might be a good time to start a bit of research – wonder how many properties were advertised on open market before their titles were registered to the companies below
He then lists five companies in which L was a director or shareholder and finished by saying “Guess privilege is still a factor”. During cross-examination he was asked about this letter by the Judge, and he gave the following answers:
Q.[C] do you accept that listing companies like that is more than an implied threat?
A. Well I –
Q. The whole point of it is that you do not do as I want you to do, I am going to escalate that to these companies, is it not?
A. The whole point was to get attention.
Q. No answer the question. Is it the point of sending that to indicate to her that you were prepared to escalate this to involve those companies?
A. I hoped she might see it that way, yes.
[31] In February 2018 L telephoned the Police about C’s interactions with her. The Police came and saw her and said that they would speak with C.
[32] In February 2018 C decided to make a complaint about L to the Law Society. By letter dated 27 March the Law Society made a decision to take no further action.
[33] On 21 May 2018 C again approached L outside her front gate at 8.30 in the morning. C described the interaction between them in the following way in his affidavit.
21)I said, “Barrister Fatso, what do I have to do to get it through your thick skull that I do not want to be woken by the mindless barking of your untrained dogs?”
22)She looked at me, startled. I commented, “There is a certain symmetry. You don’t want to hear from me and I don’t want to hear from your dogs.”
23)I told her that the solution was in her own hands, “Stop the barking and you won’t hear from me.”
24)As she went around the front of her vehicle to get in, I said, “If I get woken again, I will be here to tell you.”
[34] This altercation led L to contact the Police. C then approached L again on 24 May, standing at her gate at 8.20am complaining the dogs had woken him with their “mindless barking at 2.26am”. She again phoned the Police.
[35] The Police and L then took action. On 24 May C was charged with intimidation in contravention of s 21(1)(b) of the Summary Offences Act 1981. In addition trespass notices were served by the Police given that the area beyond L’s gate was still within her property.
[36] On 5 June C posted an article on the Neighbourly website entitled “Word of Caution to Locals” complaining about the situation, and particularly the fact that he was facing charges as a consequence of complaining about a neighbour’s dogs. On the same day C entered a coffee shop where L was present. C denied that he followed her in there, indicating it was the nearest coffee shop to his lawyer’s office. It would appear that the Judge did not accept that explanation.15
[37] On 6 June C parked his car outside L’s office. Again C said that parking there had nothing to do with her office being in the building. Again the Judge appears to have rejected his explanation on that point.16 On 7 June C parked his car outside L’s office and the same explanation was given.
[38] On the same day there was a further altercation. The Judge described it in the following way:
[20] There is no doubt that on 7 June 2018 the Respondent approached the Applicant outside her house while she was holding her baby. He crossed the road, walked directly towards her, stared at her when he was about two metres away from her and then turned and walked away. This conduct could not be described as anything other than significantly intimidatory bearing in mind the history by that time and the Applicant’s knowledge that the Respondent was showing considerable interest in the paternity of her child.
[39]On 8 June L filed the application for a restraining order.
[40] C had raised questions concerning the paternity of L’s child with the Police. In an email to Senior Constable O’Leary C stated:
With my daily walk I see things and try and nut out some of the vagaries of human nature, and one area that I would explore further, if [L] want to further escalate this matter of the mindless barking of her dogs, is the part the owner of [car registration] plays in the mix.
It would be no surprise to me to find he is/or was an employee of the council, but also is father of her child and I would be trying to find a little history on the acquisition of that fancy set of wheels – just strikes me as a little out of character.
[41]He was asked about this by the Court:
15 See L v C, above n 1, at [28].
16 Ibid.
Q. [C] does that not mean that if you do not get your own way about the barking dogs you are going to escalate the matter further, one of the things you are going to look into is who the father of the child is and what relationship he may have with anybody in authority? Is that not what you are saying?
A. It’s saying that I would consider looking into any number of things if it helped to stop the barking.
[42]On 15 June the Police charged C with a second offence of intimidation.17
[43] Finally on 8 July 2018 C’s wife approached L when she was putting her baby in the car. She said “where did you kidnap the baby”. L explained that she was alarmed by this, and that the only time she had ever spoken to C’s wife before was five years earlier at L’s housewarming party. The Judge held that the only conclusion that could be drawn was that C had involved his wife in making what he described to be a “very unfortunate comment about the Applicant and her child”.18
Specified events
[44] On appeal Mr Ross first argues that the District Court Judge erred in dealing with some of the events as specified events within the meaning of harassment in s 3 of the Act. The criticisms are focused on the reference to the publication on the Neighbourly website, the incident involving the coffee shop, and the parking outside L’s business premises.
[45] The District Court correctly identified the need to identify two specified acts within 12 months as a first stage when assessing the respondents conduct formed a pattern of behaviour.19 The Judge considered that a series of individual incidents met the requirement for specified acts, and that they involved far more than two separate occasions within a 12 month period.20
17 I was advised that C was subsequently convicted of a lesser offence under s 4 of the Summary Offences Act 1981. The correctness of that conviction is not before me. See paragraph [17] above.
18 L v C, above n 1, at [27].
19 At [25].
20 At [21]. The incidents the Judge seems to me to be referring to are those addressed in paragraphs [13]–[20] of the judgment rather than the total chronology of events that he earlier set out in [7].
[46] In relation to two of the categories of incident Mr Ross relied upon the Judge found:
[28] While the coffee shop incident and the two parking incidents do not in my view amount to “specified acts” for the purpose of determining this matter when they are taken in the context of everything else that was happening and the way the Respondent was behaving the only conclusion that I can reach is that those actions were also deliberate and intended as part of his fixation on the Applicant.
[47] I note Mr Ross’s point that C was not directly cross-examined on these events to challenge the excuses C had provided. But in any event it is clear that the Judge did not rely upon these incidents as specified acts.
[48] The posting on the Neighbourly website does appear to be included within the Judge’s finding on specified acts.21 I do not think that it can be so treated. Specified acts are directed to interactions with the relevant person. The placing of material in electronic media can be a specified act under s 4(1)(ea), but only when it is “offensive material” and only where it is “likely that it will be seen by, or bought to the attention of” the relevant person. I do not think those requirements were met in relation to the publication on the Neighbourly website.
[49] But given that there were many other events that were properly treated as qualifying specified events within a 12 month period, Mr Ross’s point does not take the argument very far. To the extent that the events Mr Ross refers to are taken into account when making the overall assessment, such criticisms of the findings are potentially relevant, and I address them below. But there is no material error of the Court in identifying that there were qualifying specified events.
Lawful purpose
[50] Mr Ross’s second argument is that the Court wrongfully rejected the defence of lawful purpose. Section 17 of the Act provides:
21 At [19].
17 Defence 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.
[51] Section 17 was addressed in Munro v Collection House (NZ) Ltd.22 In that case the relevant acts of harassment were that of a debt collection agency seeking to recover a debt duly owed by the applicant. The relevant communications involved letters from the collection agent to the applicant, and attempts to contact him by telephone. The Court held the District Court had rightly struck out the application. Toogood J held:
[36] However, s 17 is also relevant at this first stage. Section 16(1) is specifically made subject to s 17 which provides that, if the specified act upon which the applicant seeks to rely was done for a lawful purpose, the act cannot amount to harassment for the purposes of s 16(1)(a). The application for a restraining order would fail on that basis, whatever distress had been caused.
…
[38] In my view, the Judge was right to conclude that the respondents’ defence based on s 17 was bound to succeed, and to strike out the application on that basis. Having regard to the scheme of the Act, once lawful purpose was established, as inevitably it would be in this case, the Court would not need to embark upon the second to fifth stages of the inquiry. Whether any distress was suffered by the applicant as a result of, the behaviour complained of and, if so, to what degree, become irrelevant. For the purposes of this appeal, therefore, it does not matter that the Judge may have gone too far in making factual findings on the distress issue.
[52] If an act complained of involves a legal right to communicate — such a statutory or contractual entitlement — s 17 potentially applies. But in my view whether a person is pursuing a “lawful purpose” is not limited to acts that are expressly authorised as a matter of law (by a statute or otherwise). It may also encompass steps that can be regarded as legitimate to take. It is the purpose of the relevant act, and whether that purpose is lawful that is the focus. The reference to that purpose being “lawful” seems to me to encompass purposes that are legitimate. This involves a consideration of the nature and circumstances of the communications.
[53] In arguing C had a valid defence under s 17, Mr Ross relied on the Dog Control Act 1996, including s 5, which provides:
22 Munro v Collection House (NZ) Ltd, above n 11.
5 Obligations of dog owners
(1) The obligations imposed on dog owners by this Act require every owner of a dog—
…
(e) to take all reasonable steps to ensure that the dog does not cause a nuisance to any other person, whether by persistent and loud barking or howling or by any other means:
…
[54] The Act also places a duty on territorial authorities to adopt a policy on dogs (s 10). Sections 55 and 56 further set out a procedure under which dog control officers may address complaints relating to barking. It would not be unusual for a territorial authority to set up a system for considering such complaints made to it. But here it is not suggested that there is any primary or delegated legislation contemplating communications by those affected with dog owners. As Mr Ross accepted the provisions accordingly do not directly confer any rights on a complainant. But he submitted that C must have the right to approach L about a statutory duty he was contending she was not meeting, or about a tort arising in nuisance.
[55] I accept that it would be possible to view a communication to a dog owner about their dog as being for the lawful purpose of requesting that owner comply with their legal duties given the impact on that person. As I said earlier, I do not think the defence is limited to circumstances where a person has an express legal right to engage in the communication.
[56] But the analysis involves further considerations. The District Court Judge adopted the view of Judge R L Kerr in Irvine v Edwards that acts that are lawful in themselves may become not lawful because the way they are performed or undertaken creates a harassment.23 Applying that approach the Judge held that C’s behaviour was intimidatory and not driven by any unlawful purpose.24
[57] I agree with this analysis. The requirement to establish a “lawful purpose” involves consideration of the nature and quality of the communication in order to
23 Irvine v Edwards [1989] DCR 171.
24 L v C, above n 1, at [23].
ascertain its purpose. That is so whether or not there is an express legal right to communicate. For example, if the communication from the debt collection agency in Munro went beyond legitimate demands for debts to be paid, and involved communications that involved improper threats or were otherwise intimidatory, then such communication could be held to be not for a lawful purpose. Similarly, communication by an affected person with the dog owner may not be for a lawful purpose because of the way it is undertaken.
[58] C’s communications here did not involve legitimate purposes. They were threatening and verbally abusive. They included implicit threats that companies with which L was associated might be contacted if she did not do something about her dogs, texts that were sent to her in the early hours of the morning, and verbal abuse. The general quality of them went beyond what can be seen as the pursuit of a lawful purpose, such as the request for a dog owner to meet prescribed legal responsibilities. They were not, in my view, communication for a lawful purpose.
Length of the order
[59] Mr Ross’s third argument was that the length of the protection order granted by the Court was too long. The Court decided to specify a period of five years under s 21. The Judge held:25
[34] I have had the opportunity of considering all of the material put before me and of observing both the Applicant and the Respondent giving evidence during the course of the hearing. Despite the fact that the original request was for an order for 12 months I am quite satisfied that a term significantly greater than that is required to protect the Applicant. It is quite evident from the material before me, and from his presentation in giving evidence, that the Respondent has no real appreciation of the considerable damage his persistent conduct towards the Applicant has caused. Without a greater term of protection than 12 months I cannot possible be satisfied that the purposes of this legislation would be met and that the Applicant would be protected as the law requires. In the end I assess a term of five years as being the appropriate duration for the restraining order. The restraining order will contain the standard conditions referred to in s 19 of the Act. If the Applicant requires any special conditions pursuant to s 20 of the Act Mr O’Connor is to file and serve a memorandum outlining the conditions sought within seven days of receipt of this judgment. Mr Ross will have seven days to respond.
25 At [34].
[60] Mr Ross emphasised two points, first that the period of the order was excessive particularly given that C’s conduct was of a diminishing kind, and secondly that the circumstances of the case did not warrant departure from the one year standard period of the order identified by s 21(2)(c).
Diminishing conduct
[61] I do not agree with the submission that C’s conduct was of a diminishing kind. On the contrary, the pattern of behaviour demonstrates that C’s conduct was escalating.
[62] Initially when L moved into the neighbourhood in 2013 there were no complaints at all. Beginning in June 2016 C then started making the complaints to L and he threatened to make contact with the authorities. After the exchange of lawyers’ letters in July and August 2016 matters settled down.
[63] In March 2017 C then complained to the City Council. After that complaint was effectively dismissed he then reengaged with L by delivering hand written notes to her in December 2017 and January 2018. The January 2018 letter took things to a new level by threatening to draw in the companies with which L was associated. L was sufficiently concerned by this stage to contact the Police.
[64] C then made the complaint to the Law Society. After that complaint was rejected in March 2018 things further escalated by the altercations, including the altercation on 21 May 2018 which involved C making abusive comments. This led to the charges under the Summary Offences Act 1981 being laid. Even after the laying of charges, and the serving of trespass notices, matters were further escalated by the quite menacing way that C approached L on while she was holding her baby on 7 June.
[65] L says in her affidavit that he found C’s conduct extremely distressing for herself and her baby, and that the harassment had escalated after he had been charged such that she was fearful for her safety and the safety of her child. She says she has taken time off work as a consequence of the stress, that she has installed a locked iron gate on her driveway to stop C entering her property, that she has installed security cameras as recommended by the Police, and that she no longer walks alone in the neighbourhood.
[66] Not only do these events give rise to a proper basis for the District Court Judge to make the order, but they also demonstrate why Mr Ross’ submission that C’s behaviour was diminishing is not supported by the facts.
[67] The publication in the Neighbourly website, and the incidents involving the coffee shop and the parking were taken into account by the Judge. But they have little true significance by themselves. If they are completely ignored the same conclusions can be reached in relation to C’s escalating conduct. So it seems to me that any error involved in the findings of the Judge on those matters is of no significance.
[68] It is also apparent from these findings that in my view the District Court Judge appropriately applied the provisions of the Act, as interpreted and applied in accordance with NZBORA rights. The requirements of the Act as described by the Court of Appeal in NR and the steps required by s 16 as described in Munro were in substance properly applied. Moreover the order was justified, and necessary to protect the applicant from further harassment.
One year period
[69] In terms of the length of the order, Mr Ross relied on the proposition that s 21(2)(c) set a standard term of one year. I do not accept that. Whilst the subsection creates a default period for an order it does not seem to me to create any standard period of time. The period of time that an order should be put in place is to be judged by the requirement for necessity set out in s 16(1)(c). The period of the order should be no more or less than necessary to protect the applicant from further harassment. Any period of time set by such an order could be criticised on the basis that it is arbitrary. But there should be no presumption in favour of one year. That period only arises when the Court has not determined a length of time for the order.
[70] In the present case there were legitimate reasons for the District Court Judge to assess that a longer period of time was required. The period of time under which the harassment had taken place had already extended over a period of over two years from June 2016 until the hearing in September 2018. During that period C had engaged with many official bodies, including the Council, the Law Society and ultimately the Police. That official interaction had not prevented him from taking
further action. Indeed for the reasons identified above his behaviour continued to escalate. He also developed conspiracy theories concerning L’s child, and made suggestions in relation to her ability to have her interests protected by the Law Society and the Police. The troubling aspect of this feature is C’s lack of acceptance of the decisions made by official bodies. This strongly suggests that formal orders are required to prevent the behaviour continuing.
[71] I also agree with the Judge that C appears to have no appreciation of the distress he has caused, and is causing. Mr O’Connor also took me through passages of C’s cross-examination that demonstrated a degree of prejudicial and irrational thinking by
C. Combined with the escalating actions that he has taken, there is good reason to suggest that a lengthy period of time is required to protect L from further harassment. If C does not desist the potential for prosecution for offences against the Act needs to exist.
[72] Whilst I accept that a period of five years was potentially on the upper end of the time period that would normally be appropriate, it seems to me that a period of three to five years was justified, and it was open for the Judge to conclude that five years was necessary to protect the applicant from further harassment.
District Court costs award
[73] Mr Ross also contends that the District Court erred in its costs decision. Costs were awarded on a 2B basis, but an increase of 25 per cent above the scale was ordered on the basis it “should have been clear after the initial affidavits for the parties had been filed that the Respondent had no defence to this application”.26
[74] Uplifts in costs award are regulated by r 14.6 of the District Court Rules 2014, which has equivalent terms to r 14.6 of the High Court Rules 2016. It is important that the focus is on the conduct of the party in the proceedings themselves and not the underlying conduct of the party that is the subject of the substantive proceedings. Generally costs award are not increased because of disapproval of the underlying conduct in issue in the proceeding. But if a party takes a step or amounts an argument
26 L v C, above n 1, at [35].
that lacks merit costs may be increased under r 14.6(3)(b). That is the basis upon which the District Court has increased costs here.
[75] In NR v District Court at Auckland the Court of Appeal overturned a High Court decision setting aside an award of indemnity costs in the District Court.27 The Court indicated that an appeal against a costs decision is an appeal against the exercise of a discretion.28 I approach this issue on this basis, and conclude that there is no basis to interfere with the decision of the Judge here. The nature of the factual material put before the Court as part of the application demonstrated that harassment had taken place. But C decided to defend the application on the basis that his conduct was justified. It was open for the District Court Judge to conclude that he was mounting a defence that had no merit, and accordingly it was open to him to increase the costs in the way that he did.
Costs of this appeal
[76] The respondent seeks costs on an indemnity basis in relation to the appeal. The basis for this is the District Court had already engaged in an uplift, that the appeal lacked merit, and that the respondent made an open proposal through counsel to reduce the five year term of the order to three years, and to remove the 25 per cent uplift in the District Court costs award in an attempt to avoid the costs of another hearing. There was no response. The respondent then asked the appellant to make a proposal on the duration of the restraining order and the costs award, and the appellant declined.
[77] I accept that there were available arguments to make on appeal. Treating the Neighbourly website publication as a specified act was an error, but it was largely inconsequential in the greater scheme of things. There is inherent uncertainty as to the scope of the defence in s 17, but ultimately given C’s behaviour, the argument that he was perusing a lawful purpose had no real merit.
[78] The point that was most arguable related to the length of the order. But given the proposals made by the respondent to compromise on both the length of the order,
27 NR v District Court at Auckland, above n 10, at [83]–[93].
28 At [89].
and then the costs award which the appellant did not take up, it seems to me that C has put L to unjustified expense. There should be an increase in costs under r 14.6 on the basis that the appellant has pursued arguments that lack merit (r 14.6(3)(b)(ii)). C’s conduct does not seem to me to reach the point justifying an award of indemnity costs given the standard for such an award apparent from other cases.29 In the circumstances of this case I consider it is properly addressed by an uplift, and I also uplift the cost award by 25 per cent.
[79] Accordingly the appeal is dismissed. Costs are awarded to the respondent on a 2B basis uplifted by 25 per cent, together with reasonable disbursements to be fixed by the Registrar.
Cooke J
Solicitors:
Cathedral Lane Law, Napier for Appellant
Sainsbury Logan & Williams, Napier for Respondent
29 Bradbury v Westpac Banking Corp [2009] NZCA 234, [2009] 3 NZLR 400 at [27]–[28]; and
Prebble v Huata [2005] NZSC 18, [2005] 2 NZLR 467 at [6].
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