Faesenkloet v Jenkin
[2014] NZHC 1637
•11 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-000873 [2014] NZHC 1637
BETWEEN HERBERT JOHN FAESENKLOET Plaintiff
ANDPAUL JENKIN Defendant
Hearing: 16 June 2014
Counsel: PJ Dale for Plaintiff
WGC Templeton for Defendant
Judgment: 11 July 2014
JUDGMENT OF ASHER J
This judgment was delivered by me on Friday, 11 July 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Neilsons Lawyers Ltd, Auckland.
PJ Dale, Auckland.
Dyer Whitechurch, Auckland. WGC Templeton, Auckland.
FAESENKLOET v JENKIN [2014] NZHC 1637 [11 July 2014]
Introduction
[1] The plaintiff, Herbert John Faesenkloet, and the defendant, Paul Jenkin, are neighbours living in Titirangi. Over the years they have fallen out. On 28 April
2014 Mr Faesenkloet obtained interim orders that Mr Jenkin remove a camera situated on the roof of the garage adjacent to a driveway running to Mr Faesenkloet’s property. The orders were obtained without there being any appearance on behalf of Mr Jenkin. The orders were to remain in place for a limited time and to be renewed by a Duty Judge, and leave was reserved for Mr Jenkin to apply on 24 hours notice to re-install the camera to the property. He has so applied. I must determine whether the orders are to be continued.
[2] Mr Jenkin has explained why he did not appear at the original injunction hearing. There is no point in recounting those circumstances as it is sensibly accepted by Mr Dale for Mr Faesenkloet that as the original application for an interim injunction was not heard and determined on a defended basis, this application should be heard today de novo. He accepts that for all intents and purposes the application should be treated as a new application with him having to make out a case for an interim injunction that the camera be removed in the usual way.
The dispute between the parties
[3] Mr Faesenkloet resides at 48 Kohu Road, Titirangi. Mr Jenkin is his neighbour at 50 Kohu Road. The respective positions of the houses, the driveway, the garage and the CCTV camera are best shown in a plan of both properties drawn by Mr Jenkin who is an architect. The general accuracy of this plan has not been contested for the purposes of this application. This is the plan:
[4] There is a good deal of bush in both sections and the side of Kohu Road, and the driveway from Kohu Road up to Mr Faesenkloet’s home (the driveway) is through trees and shrubs. The garage adjoining the driveway situated on Mr Jenkin’s property (the garage) is not a garage used for the parking of cars. As can be seen from the plan there is another driveway going off Kohu Road to Mr Jenkin’s house at
50 Kohu Road and to his studio.
[5] The garage is situated around half a metre above the driveway to Mr Faesenkloet’s property and cannot be entered by vehicles. It has a large door on its front. Apparently its usual use is to store household items and tools and garden devices. It has been used on at least one occasion to receive catering supplies for a large function that was being held at Mr Jenkin’s property, the goods being delivered
from the driveway. There is a stone wall and pedestrian gate directly in front of the garage, that abut the driveway.
[6] The driveway, as it goes off Kohu Road and goes up towards Mr Faesenkloet’s property past the garage, is initially on Council road reserve as is shown on the plan. The driveway then goes onto Mr Faesenkloet’s property further up the hill. Thus the driveway to Mr Faesenkloet’s house is partly on road reserve owned by the Council, and then is on Mr Faesenkloet’s property as it approaches the house. It is on Council land as it goes past Mr Jenkin’s garage.
[7] The Council has in earlier correspondence made it clear that from its perspective both Mr Faesenkloet and Mr Jenkin have the right of any resident to use the road reserve area including that part of the driveway on Council land by driving and parking cars on the driveway, providing it is a reasonable use. The Council has stated that it considers that neither Mr Faesenkloet or Mr Jenkin has any exclusive use or rights beyond the ordinary public in relation to the driveway in front of the garage on which the camera was placed. Mr Faesenkloet and Mr Jenkin have not disputed this.
[8] The camera was situated on the roof of the garage. The camera is obvious and on a high pole placed on the roof. It does not face up to Mr Faesenkloet’s property or house. It is clear that the area filmed by the camera is an area facing away from Mr Faesenkloet’s house and on an angle facing down towards the road. The part of the driveway that is filmed is entirely of land owned by the Council. As the shadow of the camera coverage marked on the plan shows, the camera films only part of the driveway in front of the garage.
[9] Mr Jenkin deposed that the reason the camera was put in place was to identify persons who had over the years damaged or vandalised the garage. He summarised the damage as follows:
(a) The new roller door at the front of the garage was pummelled and damaged just prior to Christmas 2013. The door was left permanently dented and marked.
(b) Smashed window – as a result of a rock having been thrown through the window. Late 2010.
(c) Brickwork levered off the face of the building. 2009/2010 (d) Brickwork levered from beneath the foundation. 2009/2010
(e) Gate latch booted in during the installation of the new gate on two occasions. 2010
[10] It appears that the garage door damage caused prior to Christmas 2013 was the final catalyst leading Mr Jenkin to put a camera in place in February 2014. The photographs produced show numerous small dents to a new looking door.
[11] There are references in correspondence which show Mr Jenkin’s belief that it was Mr Faesenkloet who had caused at least some of the damage to the garage over the years. This is denied by Mr Faesenkloet.
[12] There has been an unfortunate history of incidents between both Mr Faesenkloet and Mr Jenkin. For instance, in 2009 Mr Faesenkloet sought an order under the Harassment Act 1993 against Mr Jenkin. In 2010 Mr Jenkin filed similar proceedings against Mr Faesenkloet. In neither of these cases were orders ultimately made.
[13] Mr Faesenkloet asserts that Mr Jenkin blasts his horn at him, makes offensive remarks and gestures, pulls faces, acts bizarrely to visitors and is generally unpleasant. He asserts that Mr Jenkin has made a number of defamatory remarks about him, alleging that he is a “P addict”. He states that Mr Jenkin painted the letter “P” in large letters on the door of the garage in question and he appears to have taken the view that this was intended to be a sign that Mr Faesenkloet used P or methamphetamine. He accuses Mr Jenkin of shouting to visitors that Mr Faesenkloet is a P addict. There has been solicitors’ correspondence on some of these topics. He claims that after an exchange the “P” sign was changed to read “Parking 10”. Photographs demonstrate that the words “P 10 min only” were put on the door. Other neighbours and visitors have filed affidavits alleging unneighbourly or erratic behaviour on Mr Jenkin’s part.
[14] Mr Jenkin in reply does not deny that there has been a long history of contention between him and Mr Faesenkloet. He suspects Mr Faesenkloet of having vandalised the garage. He states he put the sign “P” and an arrow pointing down the
drive (away from Mr Faesenkloet’s home) not to designate any use of P, but to make the parking situation clear. He asserts that this followed an incident where Mr Faesenkloet parked his car in front of the garage and then after it had been towed and recovered, parked it there again. He admits that he made complaints about Mr Faesenkloet parking his vehicle across his drive.
[15] Like Mr Faesenkloet, Mr Jenkin asserts that his neighbour has been guilty of unneighbourly conduct and refers to an occasion when Mr Faesenkloet opposed a submission on a plan change supported by Mr Jenkin, and asserted that he was “anti- social, rude, violent and abusive”.
[16] It is most unfortunate this dispute has arisen between these two neighbours, as they are both long term residents and have all the appearances of being otherwise good members of the community. The irrationality of the dispute is demonstrated by Mr Jenkin spray painting the parking sign on the very garage door that he is trying to preserve from vandals, and also by Mr Faesenkloet’s belief that the “P” is accusing him, when the arrow is pointing down to the road and away from his property. In this interim hearing I cannot evaluate who (if either) is most responsible for this unfortunate state of affairs, although in fairness to Mr Faesenkloet I note that he has presented the greater amount of corroborative material to support his assertions of bad behaviour than has Mr Jenkin.
[17] I observe that in the original application in relation to which orders were granted, there were a number of matters that were not made clear in the affidavits filed in support. It appeared from those papers that the driveway being filmed was Mr Faesenkloet’s driveway. It appeared that the camera was facing towards his home. It appeared that all those using the driveway were being filmed. There was no reference to the disputes about the use of the driveway, or the Council’s ownership of the land in question. For reasons that I set out, had these matters all been disclosed I consider it unlikely that the interim injunction would have been ordered.
The issue
[18] In this proceeding Mr Faesenkloet has put forward two claims, only one of which is relevant to the interim injunction application. That is the claim, that installation of the camera “… constitutes an intentional and unauthorised intrusion into the plaintiff’s rights of privacy and is an infringement of the plaintiff’s reasonable expectations of privacy.” It is alleged that the installation of the camera is offensive, and that the defendant has failed or refused to remove it despite demands. The second cause of action, not relevant to this interim injunction application, is a defamation claim.
[19] Adopting the usual approach to interim injunctions in New Zealand I am required to consider:1
(a) Where there is a serious question to be tried.
(b) Whether damages would be an adequate remedy. (c) The balance of convenience.
(d) The overall justice of the case.
[20] Mr Dale for Mr Faesenkloet submitted that the installation of the camera was offensive because:
(a) It implied that the plaintiff’s conduct warrants supervision.
(b) It implied the camera is or might have been installed by the Police.
(c) The defendant has previously stated publically that the plaintiff is a P
addict.
1 Harvest Bakeries Ltd v Klissers Farmhouse Bakers Ltd [1985] 2 NZLR 129 (CA).
(d)It enabled the defendant to take photographs of any person entering or leaving the plaintiff ’s property, and when the defendant had no legitimate interest in that information.
(e) The defendant’s intention in placing the camera on his property was to annoy the plaintiff, and to dissuade visitors coming to the plaintiff’s property.
A serious question to be tried of intentional and unauthorised intrusion on rights of privacy?
Hosking v Runting
[21] In support of the existence of the tort of invasion of privacy Mr Dale relied on the Court of Appeal decision in Hosking v Runting2 and the High Court decision of C v Holland.3 He relied on the “expectation of privacy” referred to by the Supreme Court in Hamed v R.4
[22] Mr Templeton for Mr Jenkin did not contest the existence of a tort of invasion of privacy in New Zealand, but submitted that it could not be invoked in this case. He pointed to the fact that the filming was of an area of public land, and argued that the tort could not apply in those circumstances. He submitted that Mr Jenkin had good reason to put in a camera, and its presence was not offensive.
[23] There is no general right of privacy referred to in the New Zealand Bill of Rights Act 1990.5 In Hosking v Runting the tort of invasion of privacy was recognised.6 The Court was dealing with a situation different from the present, where a television presenter was seeking an injunction to stop the publication of photographs in a magazine of his wife walking down a public street with her twin daughters in a push chair. Gault P and Blanchard J in their joint judgment noted in
respect of the tort of invasion of privacy that it would be artificial to deal with the
2 Hosking v Runting [2005] 1 NZLR 1 (CA).
3 C v Holland [2012] NZHC 2155, [2012] 3 NZLR 672.
4 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.
5 Lange v Atkinson [2000] 3 NZLR 385 (CA) at 396.
6 Hosking v Runting, above n 2.
matter through the concept, adopted by the British Courts, of breach of confidence.7
The Court of Appeal chose a different route, relying on a range of legal principles. Gault P and Blanchard J observed:8
In this jurisdiction it can be said that there are two fundamental requirements for a successful claim for interference with privacy:
1.The existence of facts in respect of which there is a reasonable expectation of privacy; and
2.Publicity given to those private facts that would be considered highly offensive to an objective reasonable person.
[24] The plaintiff failed in Hosking v Runting because there was not a reasonable expectation of privacy, or highly offensive conduct.9 While the judgments emphasised the public nature of the place where the photographs were taken, this was not treated as determinative.10 The judgments do not preclude a claim arising from conduct in a public place.
[25] In this case the privacy issue is not the publishing of private facts as in Hosking v Runting. It is, rather, the filming of persons in a situation where, it is argued by Mr Dale, they were entitled to privacy and protection from intrusion. Until recently the issue of protection from intrusion has received little attention in the civil context.
Search and surveillance cases
[26] It has, however, been examined closely in the context of security against unreasonable search and seizure. The position in New Zealand in 2007 relating to search and seizure was summed up by the Court of Appeal in R v Williams:11
It is now necessary to assess the nature of the privacy interest involved. The highest expectation of privacy relates to searches of the person and particularly intimate searches, such as strip searches (as in Pratt), or invasive procedures, such as DNA testing (as in Shaheed). In terms of searches of property, residential property will have the highest expectation of privacy attached to it - see, for example, R v McManamy (2002) 19 CRNZ 669 (CA).
7 Campbell v MGN Ltd [2004] UKHL 22, [2004] AC 457; Hosking v Runting, above n 2, at [116].
8 At [117].
9 At [164]–[165].
10 At [86], [71], [164] and [260].
11 R v Williams [2007] 3 NZLR 207 (CA) at [113] (authorities referred to omitted).
There will be some gradation even within a residential property, however. The public areas will invoke a lesser expectation of privacy than the private areas of the house - see Fraser at 453 (CA). Inaccessible areas such as drawers and cupboards (particularly ones where one would expect to find private correspondence or intimate clothing) would count as private areas. There will be less privacy expected in the garden, particularly in the front garden. The same applies to garages or outbuildings. There is also a lesser expectation of privacy in vehicles, in commercial premises and on farmland, apart from the areas around the farm residences.
(emphasis added)
[27] The position in relation to surveillance was fully reviewed by the Supreme Court in 2011 in Hamed v R.12 In that case Blanchard J considered that surveillance of a public place would not generally be regarded as a search because it did not involve any state intrusion into reasonable expectations of privacy.13 He considered that the position could be different if the video surveillance of the public place involved the use of equipment that captured images that were not able to be seen by the naked eye, such as the use of infrared imaging.14 McGrath J generally agreed with the judgment of Blanchard J on these issues, and McGrath J has also expressed similar views on the definition of search in R v Ngan.15
[28] Similarly Gault J agreed with the reasons of Blanchard J for finding that the rights of the appellants in Hamed v R had been breached.16 There is no clear indication that Gault J agreed with Blanchard J’s reasoning in relation to surveillance of public places.17 Tipping J favoured a more liberal approach, and that surveillance in a public place could well constitute a search, although the fact that the search was in a public area would be highly relevant to the reasonableness analysis.18 Elias CJ considered that persons observed in a public place could be subject to a search, and that the secret observation of persons who considered themselves to be out of sight or earshot could intrude onto their personal freedom and amount to an unreasonable
search.19
12 Hamed v R, above n 4.
13 At [163] and [167].
14 At [263].
15 R v Ngan [2008] 2 NZLR 48 at [106]–[111].
16 At [281].
17 At [285] Gault J stated: “The extent to which the expectations of privacy of the appellants were
breached must be weighed.”
18 At [222].
19 At [12].
I except from this the evidence obtained by means of the camera alongside Reid Road. That involved trespassing for a small distance only into a private rural property but not a search, and was therefore not in breach of s 21, since the camera recorded only what took place on the public road where there could be no reasonable expectation of privacy.
[30] The various judgments in Hamed v R were considered in Lorigan v R where the Court of Appeal held:21
[22] We consider that the test (for assessing whether surveillance of a public place not involving any trespass by the police is a search) that has the support of a majority of the Supreme Court is that proposed by Blanchard J in Hamed v R. The test is whether the surveillance by the police involves state intrusion into reasonable expectations of privacy. That is similar to the test applied (in a different context admittedly) by McGrath J to determine whether police action amounted to a search in R v Ngan. And it is also broadly consistent with the test applied by the Chief Justice in Hamed v R, which involved assessing whether the privacy rights of those in the area under surveillance were breached. Although Blanchard J and the Chief Justice reached different results, the tests they applied were broadly the same.
[23] Applying that test to the facts of this case, we consider that the answer to that question is “no” (with the exception of the night-vision camera). We consider that surveillance of a public area not involving trespass and image- enhancing equipment involves no (or, at most, minimal) intrusion into the privacy rights of those in the area under surveillance. It does not come within the test outlined above for a search. Such activity therefore is lawful and does not require a warrant.
[24] We are supported in this view by Blanchard J in Hamed v R who makes it clear that non-trespass surveillance of a public place is not generally a search. We also derive support from Elias CJ’s opinion that those in public places have a very limited privacy right (albeit in the context of the s 30
Evidence Act balancing exercise). The judgment of Tipping J also makes it clear that he considers that people in a public place have little expectation of privacy (albeit in the context of unreasonableness).
(emphasis added)
[31] Mr Lorigan sought leave to appeal. The Supreme Court refused leave. In a brief judgment, Tipping, McGrath and William Young JJ stated:22
The Court of Appeal analysed the approach of this Court in Hamed v R and held, in line with the preponderance of the views of the various members of
20 At [205].
21 Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729.
22 Lorigan v R [2012] NZSC 67 at [2].
the Court, that the disputed evidence was admissible. This was a straightforward and unsurprising application by the Court of Appeal of a decision of this Court to the circumstances of the present case.
[32] The earlier Court of Appeal decision of R v Gardiner is also relevant.23 This was again a surveillance case in the criminal context where a camera lawfully placed outside the boundaries of a property filmed the back door area and kitchen/dining room window on a neighbouring property. The purpose was the surveillance of illegal activity involving misuse of drugs. It was accepted in that case that the fact the camera was lawfully in place was not a barrier to an inquiry as to whether focussing of a camera on neighbouring land constituted an unlawful intrusion. It was observed:24
Such is the importance of personal privacy that it will be a case out of the ordinary where surveillance by video is reasonable when it encompasses the interior of a dwelling. What is to be regarded as reasonable is influenced by the international standards [set out in Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights] that no one is to be subject to arbitrary or unlawful interference with privacy or home.
[33] In addition, Parliament has recently affirmed the protection of privacy from surveillance of activities without a surveillance device warrant in “private premises” in s 46(1) of the Search and Surveillance Act 2012 and distinguished these from “non-private premises”.
[34] However, while non-private premises are defined as those to which the public is frequently permitted to have access, there can be public places which as a matter of practice are not frequently accessed by the public. While the public right to access will mean usually a much lesser expectation of privacy than when there is only private access, the legal designation of public or private is not determinative. The Court will examine the nature of the intrusion and any reasonable expectations of privacy. However, if there is a public right of access to the land, the reasonable
expectations of privacy will be much lower than in a private place.
23 R v Gardiner (1997) 15 CRNZ 131 (CA).
24 At 136.
[35] In C v Holland Whata J had to deal with an intrusion into a secluded area in private space in a civil context.25 The plaintiff had been surreptitiously filmed by the defendant who had installed a recording device in the roof cavity above the shower that she used. The property was partly owned by the defendant and the plaintiff was a flatmate. The plaintiff was videoed while she was showering. The videos were never published but the plaintiff brought an action for invasion of privacy. Whata J surveyed United States, New Zealand and English law and concluded that while the tort of invasion of privacy had never been affirmatively recognised in New Zealand,
there were a number of statutes and authorities that supported its existence. He concluded that the concept of privacy linked to personal autonomy was a value worth protecting,26 and that it was justifiable to protect it.27
[36] He noted the distinction between a tort of intrusion upon seclusion as opposed to information or privacy.28 He stated the elements of the tort to be as follows:29
(a) An intentional and unauthorised intrusion;
(b) Into seclusion (namely intimate personal activity, space or affairs); (c) Involving infringement of a reasonable expectation of privacy;
(d) That is highly offensive to a reasonable person.
[37] Whata J did not have to consider an intrusion into an activity, space or affairs that occurred in a public place. However, His Honour’s assessment of the elements of the tort would not preclude the invasion being in or of a public area. In Hosking the photographing occurred in a public place. The recognition of a tort of invasion of privacy does not turn on the lawfulness of the initiating act of the defendant, but rather whether there has been a highly offensive intrusion into a place or situation where there is a reasonable expectation of privacy. It is the circumstances of the
intrusion, and the reasonable expectation of the person intruded upon, that are the
25 C v Holland, above n 3.
26 At [65].
27 At [71]–[75].
28 At [87].
29 At [94].
key. If the camera in C v Holland had been in a public shower, the intrusion would have been no less offensive and would have been a criminal offence.30 It is the unauthorised intrusion into a place where privacy is reasonably expected that is important, not whether the place was in public or private premises.
[38] While there is a distinction between the concepts of the unlawful publication of private facts, as in Hosking, and intrusion upon seclusion as in C v Holland, it is far from clear that there needs to be different torts in relation to both. They have these common elements:
(a) The existence of facts or circumstances in respect of which there is a reasonable expectation of privacy; and
(b)Publicity of, or an intentional and unauthorised intrusion into, those private facts or circumstances that would be considered highly offensive to an objective reasonable person.
[39] These elements do not turn on the place where the reasonable expectation of privacy arises. Hosking v Runting does not stand for the proposition that anything in the public domain is public and there is no reasonable expectation of privacy.31
Whether it is a public or private place, the issue is the existence of the reasonable expectation, and the nature of the intrusion.
[40] I conclude that the fact that Mr Jenkin’s camera surveys only his own land and public land, and does not film Mr Faesenkloet’s property is not a bar to Mr Faesenkloet’s claim. Nevertheless, the fact that it is not Mr Faesenkloet’s land that is being filmed, but rather Mr Jenkin’s land and land owned by the Council, will
be relevant in assessing whether there has been any actionable invasion.
30 Making an intimate visual recording: s 216H of the Crimes Act 1961.
31 In Hosking v Runting, above n 2, at [119] Gault P and Blanchard J quoted Gleeson J in
ABC v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 (HCA) at [42] that “There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public’ is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private.” At [250] Tipping J observed that “The parameters of any general duty are constantly being worked out and refined by the Courts. An underpinning jurisprudence can be allowed to develop for privacy….”
The factual issues
[41] The two issues that arise are whether Mr Faesenkloet has a reasonable expectation of privacy in relation to the area that is filmed by the camera, and whether the filming in the circumstances would be considered highly offensive to an objective reasonable person.
The expectation of privacy
[42] The driveway area filmed, being part of a driveway that was a distance away from the Faesenkloet home, and which was open to the public, is not a place where there is a high expectation of privacy.32 It is possible that Mr Faesenkloet might have a reasonable expectation of privacy in relation to a secluded area that was not on his land, but which for geographical or historical reasons was used by him exclusively, but that is not the case in relation to this driveway which was open to all
visitors to Mr Faesenkloet’s property, and occasional use by Mr Jenkin or his
invitees.
[43] I bear in mind the Court of Appeal’s statement in R v Fraser that “[r]easonable expectations of privacy for activities readily visible from outside the property must be significantly less than, for instance, for activities within buildings.”33 There is no evidence that Mr Faesenkloet or his invitees carry out any activities that could be regarded as intimate or private on the driveway. It is used for walking or driving up to and down from the Faesenkloet house.
[44] A driveway, particularly the road end of a driveway that is not in the immediate vicinity of the house, is not an area that is traditionally highly private, even if it is privately owned. Whereas it can be expected that only invitees will use, say, a back garden or a patio, a driveway, when it is the sole access to a house, will
be used on occasions by persons who have not been invited, but who wish to visit
32 In Hosking v Runting, above n 2, at [119] Gault P and Blanchard J considered that private facts which have a reasonable expectation of privacy are “those that may be known to some people, but not to the world at large. There is no simple test for what constitutes a private fact.” At [250] Tipping J observed that determining whether the expectation of privacy is reasonable is a value- based judgment reflecting contemporary societal values.
33 R v Fraser (1997) 15 CRNZ 44 (CA) at 56. This was confirmed by the Court of Appeal in
R v Gardiner, above n 22 at 136.
those in the household. The start of the driveway can be observed from the road. Those coming in and out can be seen.
[45] Given the public ownership, and the relatively public nature of the use, I conclude that there was no reasonable expectation of privacy of the driveway area filmed.
The degree of offensiveness
[46] Turning to whether the intrusion was highly offensive, Mr Dale submitted that this is Mr Faesenkloet’s only driveway and the only reasonable inference open to explain the existence of the camera was one of a deliberate and unreasonable provocation. He submitted that the surveillance was in those circumstances particularly offensive.
[47] I accept that a deliberate intrusion designed to offend might be more offensive than one which is obviously accidental and incidental to another purpose. On the material presently before the Court there is little to support the claim that Mr Jenkin’s intention was driven by an intention to provoke. Mr Jenkin had formed the view that someone, probably Mr Faesenkloet, was trying to deliberately vandalise his garage, and that Mr Faesenkloet obstructed the garage by parking his car in front of or near it. He complained about Mr Faesenkloet’s parking in April
2011. He complained of damage by Mr Faesenkloet to his garage door by letter to Mr Faesenkloet’s lawyers on 14 February 2014. In his letter he also notified Mr Faesenkloet of an intention to have a function at his house, and how he would need access to the area in front of his garage for loading and unloading. He made a written complaint about vandalism by Mr Faesenkloet to the Police on 10 March
2014. He has exhibited photographs which do show damage to the garage door. His complaints were made before the filing of this proceeding.
[48] Thus, given his belief about Mr Faesenkloet’s deliberate parking in front of his garage, and that damage was deliberately done to it, he had a motive (whether rightly or wrongly based) to film the area. He did so to prove who was interfering with his garage. I do not accept that it was an act specifically designed to provoke
Mr Faesenkloet, although I have no doubt that Mr Jenkin was aware that it would further exacerbate the situation between him and his neighbour. He was seeking to catch Mr Faesenkloet on film. Provocation was incidental to that goal, and not the primary purpose of his setting up a camera.
[49] Mr Dale emphasised the fact that Mr Jenkin had spray painted his own door with “P” sign and indeed put spray blotches all over the door. This certainly casts doubt on the rationality of Mr Jenkin’s concern at preserving his garage from any form of vandalism. He may be unnaturally focused on his dispute with Mr Faesenkloet and proving him to be a vandal. However, it does not show that the intention of the camera was to provoke Mr Faesenkloet. It was to catch him or whoever was vandalising the garage. In any event, the intention behind the presence of the camera on the garage is largely irrelevant to determining whether the camera's intrusion into the reasonable expectations of privacy is highly offensive.
[50] To an extent the consideration of the reasonable expectation of privacy links with whether the intrusion was highly offensive. The greater the expectation, the more likely an intrusion will be offensive. The land that is not Mr Jenkin’s land that is surveyed by the camera is not large. It is not land used for any intimate purpose. While the camera will show all actions in relation to the front of the garage, it will only show those pedestrians and cars that pass on the right-hand side of the driveway going up close to the garage door. Persons who are so filmed are unlikely to be doing anything other than walking up or driving up or down the drive. Mr Faesenkloet’s land does not begin until some metres further up the drive, and there is no filming of his home or garden. On these facts I am unable to see how Mr Faesenkloet shows that the intrusion on to space used by him in the driveway could be regarded by an objective reasonable person as highly offensive.
[51] Mr Templeton has pointed out that none of the deponents who have filed affidavits in support of Mr Faesenkloet’s position have used words indicating that they find the presence of the camera highly offensive. One neighbour says that he would be concerned “of the effect on his privacy and the deterrent effect on visitors if it were there”. Another neighbour comments that she can understand why Mr Faesenkloet believes that the camera is “intrusive”, and that she would be
worried by the presence of a camera and what visitors “might think”. Another states that she cannot see any “justification” for the camera. Another visitor states that he believes the camera is “intrusive”. The strongest statement is by one neighbour who asserts that she would be “offended” by the camera if she owned Mr Faesenkloet’s property, although this comment appears to be against the background of all the disputes between Mr Faesenkloet and Mr Jenkin.
[52] The test is whether the intrusion into the place where there is the reasonable expectation of privacy would be highly offensive to a reasonable person.34 Therefore the evidence given by other neighbours is not determinative. Nevertheless, it is relevant that none of these deponents appear to me to consider the camera “highly offensive” on its own. For the reasons I have given I do not find this surprising. Indeed, even Mr Faesenkloet’s assertion that he finds the presence of the camera “seriously disturbing” appears to me to be in the context of the ongoing dispute, and
all the unpleasant incidents that have gone before. While the background is not irrelevant to the assessment of “highly offensive”, it is the objective impact of the actual intrusion that is the prime focus. I conclude that the filming was not highly offensive.
Conclusion on serious question to be tried
[53] It is my view that on the present state of the evidence there is no serious question to be tried that Mr Jenkin has committed the tort of invasion of privacy.
Balance of convenience / overall justice of the case
[54] The question of balance of convenience is linked to the issue of how “offensive” the camera really is, as the more offensive, the stronger the demand of convenience for urgent Court intervention.
[55] In balancing convenience, on the one hand, it can be said that the benefit to
Mr Jenkin of having his camera is limited to him improving his ability of catching a
34 Hosking v Runting, above n 2, at [165]. At [126] Gault P and Blanchard J set the threshold at a high level, more than mere inconvenience, and required the offensiveness to be “determined objectively, by reference to its extent and nature, to be offensive by causing real hurt or harm.” In C v Holland, above n 3, at [96] Whata J repeated this requirement.
person damaging the front of his garage. Given the fact that the front of the garage door is seldom used and of limited replacement value, there is no pressing daily need for a camera. The door has been cosmetically defaced by Mr Jenkin himself by his spray painting signs to stop people parking.
[56] On the other hand, all that Mr Faesenkloet will achieve if he obtains the interim injunction is that he will stop a very small portion of a piece of public road that he uses as a driveway to his house from being filmed. Now that he knows the area filmed by the camera, it will be easy for him or his friends who are walking up and down the driveway to avoid being filmed if they wish to do so. On the basis of some sample photographs that have been exhibited, persons in a car are unlikely to be shown on camera.
[57] It would seem therefore that Mr Faesenkloet has no clear ascendency on a balancing of convenience. Convenience does not, in my view, require intervention by urgent injunction.
Overall justice
[58] More importantly, there is a question whether an interim injunction of the High Court of New Zealand is required in such a situation. The interim injunction is given in urgent circumstances where a serious question and irremediable consequences demand it. It is granted to prevent significant consequences that cannot be fixed by a later hearing. If the issue, objectively viewed, is not of that importance, intervention may be inappropriate.
[59] The issue of course is not trivial to Mr Jenkin or Mr Faesenkloet. It is clear that it is of importance to them both. However, this present dispute must be seen as a symptom of a neighbour dispute that has spiraled out of control. The consequences of success or failure for either of them are not on an objective analysis serious. In particular, the overall justice of the case does not require an urgent remedy for Mr Faesenkloet.
Conclusion
[60] There is no reasonable expectation of privacy in the part of the driveway that is filmed. It is a driveway on public land going onto a public road, and open to being used by non-invitees of Mr Faesenkloet. It has not been shown that the presence of the surveillance camera overlooking Mr Jenkin’s garage and a small part of public road reserve used by Mr Faesenkloet would be highly offensive to an objective reasonable person. These two factors indicate that there is no serious question to be tried.
[61] Mr Faesenkloet is able to use his driveway, and indeed able to avoid the camera’s eye while it is filming. He has not shown that he will suffer any irremediable harm if the camera is left in place. The balance of convenience does not warrant an interim injunction.
[62] The overall justice of the case does not require Court intervention given these factors. This application arises from a dispute between neighbours where the differences between them are assuming an importance that is not objectively warranted.
[63] For these reasons, the plaintiff is not entitled to interim relief.
Result
[64] The order of 28 April 2014 granting an interim injunction is set aside, and the application for an interim injunction is dismissed.
[65] If the parties wish to pursue costs the respondent should file submissions within seven days, and the applicant within a further seven days. The submissions should not exceed three pages.
Comment
[66] The dispute is most unfortunate and both parties at the conclusion of the hearing indicated that they were amendable to a settlement conference being ordered. Such a dispute between neighbours, where there are no fundamental questions of
right or use at issue, should be able to be settled. I therefore refer the matter to the List Judge and suggest that given the unfortunate state of affairs that now exist between the parties, and the possibility that it can be resolved, a settlement conference be directed to take place as soon as possible.
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Asher J
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