C v L

Case [2019] NZHC 485 19 March 2019

No judgment structure available for this case.

Type to search within this case.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading C v L

Details

AGLC: C v L [2019] NZHC 485
Case: [2019] NZHC 485
Decision Date: 19 March 2019

CaseChat Overview and Summary

C appeals against a decision of the District Court granting a restraining order under the Harassment Act 1997 against him in favour of L. C contends that the District Court erred in identifying particular acts as specified acts, in applying the defence of lawful purpose under s 17 of the Act, in setting the length of the restraining order, and in uplifting its costs award by 25 per cent. The Act aims to provide protection to victims of harassment by recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. The Act provides a right of appeal to the High Court which proceeds as if this is an appeal under ss 124 and 127 of the District Court 2016. This is an appeal from a discretion of the kind referred to in Austin, Nichols & Co Inc v Stichting Lodestar. The approach mandated by the New Zealand Bill of Rights Act 1990 involves the application of the steps set out by Tipping J in Hansen. Applying those steps it seems that the Act is consistent with the rights affirmed by the NZBORA. The overall regime of the Act is 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. 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. The Act contemplates when behaviour might move into that involving offending when there is the additional mens rea element. The Act has a series of provisions that regulate the making of a restraining order. 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 that includes the requirement to identify conduct meeting the definition of a specified act. The requirements of s 16 must also be satisfied. 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. 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. In relation to two of the categories of incident Mr Ross relied upon the Judge found: 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 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. 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. But given that there were many other events that were properly treated as qualifying specified events within a 12 month period, Mr Ross’ 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. Mr Ross’s second argument is that the Court wrongfully rejected the defence of lawful purpose. The Court held that C’s communications 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. 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. I do not accept that s 21(2)(c) set a standard term of one year. 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. 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. 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. 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”. 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

Orders