Malcouronne v O'Neill - [2021] NZHC 641

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-021

[2021] NZHC 641

BETWEEN
PETER JAMES MALCOURONNE

Appellant

AND

MARY JELENA O’NEILL

Respondent

Hearing: 6 October 2020

Appearances:

S K Keall for Appellant P Ross for Respondent

Judgment:

26 March 2021

JUDGMENT OF CLARK J

Table of Contents

Para Nos.

Introduction [1]

The statutory scheme [4]

Specified acts [11]

Patterns of behaviour [16]

Background facts [18]

District Court’s recitation of the incidents [20]
District Court’s conclusions [56]

District Court costs decision [63]

The appeal [65]

Grounds of appeal [65]

Principles applicable to the appeal [72]
Grounds of appeal — “specified acts”? [75]

First specified act: “watching” [75]

Second specified act: blocking access [80]

Third specified act: “retaliatory filming”  [89] Ground of appeal — pattern of behaviour amounting to harassment?  [91] The rubbish bag incident  [100]
Evidence not considered in the hearing  [108]
Assessment  [119]
Result  [129]

MALCOURONNE v O’NEILL [2021] NZHC 641 [26 March 2021]

Introduction

[1] Since June 2018 Peter Malcouronne has lived with his partner and their children on Shakespeare Road, Napier. Ms O’Neill and her husband live next door. Although immediate neighbours the relationship between Mr Malcouronne and Ms O’Neill has been far from neighbourly. In 2019 both parties applied under the Harassment Act 1977 (the Act) for a restraining order against the other.

[2] In an oral judgment delivered on 19 February 2020, Judge Harvey made an order against Ms O’Neill in favour of Mr Malcouronne and his partner, Ms Spicer.1 The order was to last for two years. The Judge also made a restraining order against Mr Malcouronne to last for one year. The reason for the disparity in the duration of the orders was attributed to Ms O’Neill’s “relentless and obsessive pattern of behaviour” which required a longer period of restraint than the order relating to Mr Malcouronne.2

[3] Mr Malcouronne appeals the District Court decision. The key issue raised by the appeal concerns the Judge’s determination that Mr Malcouronne engaged in a pattern of behaviour that amounted to harassment under the Act. Mr Malcouronne also appeals the Judge’s later decision in which he determined that costs should lie where they fall.3

The statutory scheme

[4] Before turning to the history between the neighbours, I set out the operative statutory provisions and the requirements that must be met before a court may make a restraining order.

[5]The object of the Act is set out in s 6:

6 Object

(1)The object of this Act is to provide greater protection to victims of harassment by—

1 O’Neill v Malcouronne [2020] NZDC 2991 [District Court decision].
2 At [26].
3 Malcouronne v O’Neill [2020] NZDC 2814 [Costs decision].

(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…

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.

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Details

Case: [2021] NZHC 641
Decision Date: 26 March 2021

CaseChat Overview and Summary

In Malcouronne v O'Neill, the High Court of New Zealand reviewed a case involving a dispute between neighbors. Mr. Malcouronne appealed the District Court's decision, which had granted a restraining order against him for two years while also imposing a one-year order against Ms. O'Neill. The High Court found that the District Court had erred in its determination that Mr. Malcouronne engaged in a pattern of behavior amounting to harassment under the Harassment Act 1977. The Court concluded that the evidence demonstrated that Ms. O'Neill was the primary source of harassment, and there was no sufficient evidential basis for the Court to be satisfied that a restraining order against Mr. Malcouronne was necessary to protect Ms. O'Neill from further harassment. Consequently, the appeal was allowed, and the restraining order against Mr. Malcouronne was set aside. Mr. Malcouronne is entitled to his reasonable costs and disbursements in the District Court, and the question of costs in the District Court is remitted to the District Court for determination. Additionally, Mr. Malcouronne is entitled to 2B costs and reasonable disbursements in the High Court.

Orders