Jones v Wallace
[2020] NZHC 1721
•17 July 2020
IN THE HIGH COURT OF NEW ZEALAND [NAME OF REGISTRY]
WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-10
[2020] NZHC 1721
UNDER The Harassment Act 1997 BETWEEN
JONATHON MELVYN JONES and SAMANTHA JAYNE JONES
Appellants
AND
JOANNE DAVINA WALLACE
Respondent
Hearing: 15 July 2020 Appearances:
Appellants in person
N Hartwell for Respondent
Judgment:
17 July 2020
JUDGMENT OF LANG J
[on appeal against issue of restraining order]
This judgment was delivered by me on 17 July 2020 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Webb Ross McNab Kilpatrick Ltd, Whangarei
JONES v WALLACE [2020] NZHC 1721 [17 July 2020]
Copy to: Appellants
[1] Mr and Mrs Jones and Ms Joanne Wallace are neighbours. Their relationship has been fraught for a considerable period.
[2] On 27 November 2018, Judge G M Harrison granted Mr and Mrs Jones a restraining order against Ms Wallace under s 16 of the Harassment Act 1997 (the Act).1 Mr and Mrs Jones sought to have the order last for a period of five years but the Judge held that a period of one year was sufficient in the first instance.2
[3] Issues continued to arise over the next 12 months. Mr and Mrs Jones therefore renewed their application for an extension of the restraining order at the end of 2019. In a judgment delivered on 5 December 2019, Judge Harrison granted an extension of the restraining order for a further period of five years.3 The Judge also granted a cross- application by Ms Wallace for a restraining order against Mr and Mrs Jones for the same period.
[4] Mr and Mrs Jones appeal against the Judge’s decision. Ms Wallace has not cross-appealed against the decision to extend the restraining order against her for a further five year period.
Relevant principles
[5]The Act defines the term “harassment” as follows:
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:
1 Jones v Wallace [2018] NZDC 24253.
2 At [16].
3 Jones v Wallace [2019] NZDC 24626.
(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.
[6] It follows from s 3(1) that a person can only be found to have harassed another person under the Act where he or she engages in a pattern of behaviour that includes doing any “specified act” on at least two occasions within a 12 month period. Section 4 of the Act provides the following definition of “specified act” for the purposes of s 3:
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.
(Emphasis added)
(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).
[7] Section 9 of the Act permits any person who is being, or has been, harassed by another person to apply to the Court for a restraining order against that person. Section 16 of the Act prescribes the grounds the applicant must establish before the Court can make such an order:
16 Power to make restraining order
(1)Subject to section 17 , the Court may make a restraining order if it is satisfied that—
(a)The respondent has harassed, or is harassing, the applicant; and
(b)The following requirements are met:
(i) The behaviour in respect of which the application is made causes the applicant distress, or threatens to cause the applicant distress; and
(ii) That behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and
(iii) In all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and
(a)The making of an order is necessary to protect the applicant from further harassment.
[8] As will be evident, s 16 is subject to s 17. Section 17 prohibits a specified act from being relied on to establish harassment for the purposes of s 16 where the respondent proves the act in question “was done for a lawful purpose”. As Toogood J observed in Munro v Collection House (NZ) Ltd:4
…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.
[9] It is not necessary for the act in question to be expressly authorised by statute or in some other way. It will be sufficient if, viewed objectively and in context, the act in question can be regarded as legitimate. As Cooke J observed in C v L:5
[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 purposes” 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 of circumstances of the communications.
[10] An act that may outwardly appear to be for an innocent or legitimate purpose may nevertheless be unlawful by virtue of the manner or circumstances in which it is carried out. This reflects one of the objects of the Act, which is to provide greater protection to victims of harassment by recognising that conduct which may seem innocent or trivial may nevertheless amount to harassment when viewed in context.6
This case
[11]Ms Wallace relied on the following acts as constituting acts of harassment:
(a)A person associated with Mr and Mrs Jones trespassed on Ms Wallace’s land.
4 Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011 at [36].
5 C v L [2019] NZHC 485 at [52].
6 Harassment Act 1997, s 6(1)(a).
(b)Mr and Mrs Jones installed nails that protrude from a fence built around their property.
(c)Mr and Mrs Jones installed a waratah on their driveway.
(d)Mr and Mrs Jones placed branches on Ms Wallace’s driveway.
(e)Mr Jones followed Ms Wallace in her motor vehicle and abusing her.
(f)Mrs Jones acted in an offensive way towards Ms Wallace.
[12]The Judge found two of these grounds proved in his decision:7
[2] Since that time, there has been ongoing conflict between the parties to these proceedings. It is regrettable that matters have descended to a point where Mrs Wallace now seeks a restraining order against Mr and Mrs Jones. In support of her application, she itemises a number of acts which she claims amount to acts of harassment. She refers to trespass on her land, which the Joneses deny. She claims that nails protrude from a fence that the Joneses are building, which is dangerous and threatening to her. There is a steel waratah established on the mutual driveway or on its edge which is creating, it seems, something of a hazard to passing traffic, although Mr Jones says that when work is finally complete on the entrance to the driveway, that waratah will be removed.
[3] Ms Wallace also complains that she has been followed by Mr Jones in his motor vehicle, that on an occasion he shouted at her and accused her of being a medusa. She complains that Mrs Jones extended “the finger” to her and also that unexplained acts have occurred, such as the placing of branches on the driveway to restrict access to her property. Mr Jones denies doing this. He says Ms Wallace had contractors on the property, undertaking trimming o of the trees. I cannot make any final decision on that aspect of the matter.
[4] It seems to me that the only way to resolve the conflict between these neighbours, which is plainly ongoing, is to make an order also in favour of Ms Wallace against Mr and Mrs Jones. I am satisfied that the two acts of harassment required by s 4 of the Act have been established from the particulars that I have earlier referred to. I can see no other way of attempting to control what I have said will plainly be ongoing conflict.
[13] As will be evident, the Judge found two of the grounds proved but he did not specify which. I now deal with each in turn.
7 Jones v Wallace, above n 3.
Decision
Trespass to Ms Wallace’s land
[14] Ms Wallace relies under this ground on a photograph provided to her by the police in which the person taking the photograph is plainly on Ms Wallace’s land. The photograph depicts Mr and Mrs Jones on their property.
[15] Mr and Mrs Jones have always denied that anyone connected with them took the photograph whist on Ms Wallace’s land. They say the photograph was taken by a police photographer and this seems to be borne out by the fact that it is contained within a series of photographs provided by the police. In any event, it is not possible to say this act caused Ms Wallace to fear for her safety or that any reasonable person in Ms Wallace’s position would fear for his or her safety. There is no evidence that Ms Wallace became aware of the fact that somebody had been on her land until she received the photograph.
[16]There was no basis on which the Judge could have found this ground proved.
Protruding nails
[17] Mr and Mrs Jones are in the process of constructing a substantial fence around their property to minimise their contact with Ms Wallace. Ms Wallace produced a photograph showing that nails protruded from her side of the fence. She says the nails could be a hazard to children and other persons who walk near the fence.
[18] Mr and Mrs Jones point out that they built the fence on their side of the boundary, and that they have now ground the ends of the nails down so that they no longer present as a hazard to persons on Ms Wallace’s property.
[19] I fail to see how this act could amount to an act of harassment in terms of s 4 of the Act.
Installation of the waratah
[20] Mr and Mrs Jones make the point that they have their own driveway, as does Ms Wallace. Each driveway sits beside the other. They say the Judge was therefore incorrect to refer to a “mutual driveway” in the passage set out above.8
[21] Mr and Mrs Jones have always contended they installed the waratah on their driveway to deal with issues relating to traffic using the driveway. Again, I fail to see how this could amount to an act of harassment for the purposes of the Act. It is hardly the type of act that could cause Ms Wallace or any reasonable person to fear for their safety. I do not consider this alleged ground of harassment has been made out.
Branches on Ms Wallace’s driveway
[22] It is plain from the Judge’s decision that he was unable to make any final decision regarding this issue.
Mr Jones following Ms Wallace
[23] In an affidavit filed in support of her application, Ms Wallace referred to the following incident:
Then on the 10th of April [2019] as I pulled out of my drive, Jon Jones was again working on the top of his pillar and shouted something out at me. I stopped my ute, reversed & said “I beg your pardon?”, Jon Jones then called me “Medusa”, said “I can’t look” & turned away. I drove off. Again they say they phoned the police. I imagine it was in the hope of getting me arrested for speaking to them having a Restraining Order on me?
[24] I accept that this could amount to a ground of harassment in terms of s 4(b) because it involved Mr Jones accosting Ms Wallace. It also clearly caused Ms Wallace to fear for her safety and could have caused any reasonable person to fear for their safety. Using a process of elimination I conclude it must be one of the grounds the Judge found to have been proved and I consider the Judge was entitled to find it proved.
8 At [6].
Abuse by Ms Jones
[25] Ms Wallace also relied on another incident that occurred two days before the incident involving Mr Jones. In her affidavit she described this as follows:
On the 8th April 2019 I attempted to mow the grass verge of my drive. With the Jones’s newly built fence they removed 2 sections of the boundary fence making it unable to be grazed by other neighbours I allow to. Samantha [Mrs Jones] came up their drive & was having a conversation with one of their daughters who had on a previous occasion told me to “get fucked”. Samantha looked at me & lifted her middle finger. Then obviously pleased with herself, she got into a car & drove up to the top of their drive, to no doubt tell her husband of her ‘good deeds’, …
[26] Again, the Judge must have found this ground proved. I accept that it could amount to an act of harassment because it involved Mrs Jones accosting Ms Wallace and making a gesture that is likely to have caused a reasonable person in her position to fear for their safety.
[27] Ms Wallace was therefore able to establish two acts of harassment that had happened within a 12 month period.
Should the Judge have made a restraining order?
[28]The Judge dealt with this issue in the following paragraph of his decision:9
[5] There is a discretion as to whether or not a restraining order should be made, as referred to in s 16 of the Act, and I am satisfied that the requirements of that section are met, such that mutual restraining orders are the best that this Court can do to attempt to regulate and to restrain the ongoing conflict. As a consequence, I make a restraining order in favour of Ms Wallace against Mr and Mrs Jones on standard conditions, also for a period of five years, which will be consistent with the extended period I now grant also in favour of Mr and Mrs Jones.
[29] It is not difficult to see why the Judge elected to exercise his discretion to make a restraining order in favour of Ms Wallace. He plainly considered the best chance of avoiding future conflict was to ensure neither party had anything to do with each other for a considerable period.
9 Jones v Wallace, above n 3.
[30] I consider the case for a restraining order is marginal. The two acts that Ms Wallace established were single incidents that fell at the very lowest end of the scale in terms of seriousness. However, I acknowledge the Judge was entitled to exercise his discretion in a way that minimised the risk of future conflict between these parties. Furthermore, the existence of a restraining order should not inconvenience Mr and Mrs Jones unduly because they are adamant they want to have nothing to do with Ms Wallace. They have built the fence to achieve that very purpose. I am therefore satisfied the Judge was entitled to exercise his discretion in favour of making an order against Mr and Mrs Jones.
Should the Judge have made an order that lasted for five years?
[31] Mr and Mrs Jones point out that the Judge extended the restraining order against Ms Wallace for a further five years because of continued acts of harassment by her during the 12 month period when the initial restraining order was in force. The Judge clearly felt this justified the extension of the order for a period of five years. His reason for imposing an order for the same duration against Mr and Mrs Jones is contained in the paragraph of his decision set out above at [22].
[32] I can understand why the Judge considered the best chance of reducing the conflict between these parties was to make an order having the same duration against each. This approach fails to take into account, however, the fact that Ms Wallace has not previously applied for a restraining order against Mr and Mrs Jones. Furthermore, I have already observed that the two acts of harassment that Ms Wallace established are at the lowest end of the spectrum in terms of seriousness. As the Judge remarked in his original decision, s 21 of the Act provides that a restraining order should be made for a period of one year unless the Court directs a longer period.10 It is therefore the norm unless reasons exist for making an order of longer duration. In the present case I do not consider such reasons exist so far as Mr and Mrs Jones are concerned.
10 Jones v Wallace, above n 1 at [16].
Result
[33] The appeal is allowed to the extent that the duration of the restraining order against Mr and Mrs Jones is reduced from five years to twelve months. It will therefore now expire on 5 December 2020.
Costs
[34] Mr and Mrs Jones have represented themselves in this proceeding. There will therefore be no order for costs but they are entitled to be reimbursed by Ms Wallace in respect of any disbursements they have expended in advancing the appeal.
Lang J
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