Mooney v Wilkinson - [2015] NZHC 2488

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CIV-2013-406-167 [2015] NZHC 2488

UNDER the Harassment Act 1997

IN THE MATTER OF

an appeal from a decision of the District
Court

BETWEEN

MICHAEL ALLAN MOONEY Appellant

AND

ROBIN DAVID WILKINSON, JUDY WENDY SHANAHAN AND ANNA LINDSEY EATHERLEY

Respondents

Hearing: 20 August 2015

Counsel:

Appellant in person
S F Gaines for Respondents

Judgment:

12 October 2015

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4.30 pm on the 12th day of October 2015

MOONEY v WILKINSON [2015] NZHC 2488 [12 October 2015]

[1] Mr Mooney is an internationally respected professional tennis coach. The respondents are (or were) members of the Management Committee of the Marlborough Tennis Club (the MTC).

[2] For five years, ending on 30 January 2010, Mr Mooney was contracted to provide professional coaching services at the MTC. After the expiry of his contract his continued coaching of young people on the tennis courts leased by the MTC from the Marlborough District Council (the MDC) generated friction between him and the respondents. There were confrontations of various kinds and, in 2011, the Committee issued a trespass notice banning Mr Mooney from the MTC’s premises.1
There was a dispute as to the area over which the MTC had the necessary authority

to issue such a notice and thus over the proper ambit of the notice. Mr Mooney and the respondents also had different views about the rights of members of the public to access the tennis courts, based on different interpretations of the lease with the MDC.

[3] Mr Mooney commenced proceedings in the District Court at Blenheim under s 19 of the Harassment Act 1997 (the Act) seeking restraining orders against each of the respondents. That application, which was heard on 8 April 2013 and
3 May 2013, was dismissed in a judgment of Judge W K Hastings dated

2 September 2013.2

[4] Mr Mooney seeks to appeal from that judgment. Because the appeal was filed out of time, leave is required. I nonetheless indicated to him that I would hear him on the merits of the appeal and that I would make a decision about whether leave should be granted in that context, later.

[5] Mr Mooney also sought to file new evidence in support of his appeal. That was understandably opposed by Mr Gaines who said that it was neither fresh (most was dated well before the District Court hearing) nor relevant. The only “new” evidence relates to more recent damage to Mr Mooney’s property and abusive
anonymous phone calls he has received. Although Mr Mooney suggests that there

1 There can be little doubt that, with the benefit of hindsight, the issuing of the trespass notice was an unnecessarily inflammatory act.
2 Mooney v Wilkinson DC Blenheim CIV-2013-006-000042, 043, 044, 2 September 2013.

may be some connection between these events and the respondents there is no conceivable basis upon which I could draw that conclusion. For that reason the evidence…

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 Mooney v Wilkinson

Details

AGLC: Mooney v Wilkinson [2015] NZHC 2488
Case: [2015] NZHC 2488
Decision Date: 12 October 2015

CaseChat Overview and Summary

In Mooney v Wilkinson, the appellant, Michael Mooney, a professional tennis coach, brought an appeal from a decision of the District Court, seeking to overturn a judgment dismissing his application for restraining orders against the respondents, Robin Wilkinson, Judy Shanahan, and Anna Eatherley. The respondents were members of the Management Committee of the Marlborough Tennis Club, with whom the appellant had a contentious history. The appeal was heard by the High Court of New Zealand, Blenheim Registry, and the judgment was delivered on 12 October 2015. The appellant argued that the District Court erred in its interpretation of the lease, failed to regard the trespass notice as a specified act, and made various factual and chronological errors. Additionally, the appellant raised procedural issues and claimed that the hearing process and delay in judgment resulted in unfairness.

The court found that the appellant's arguments regarding the interpretation of the lease and procedural defects were irrelevant to the appeal, as the focus should be on the Harassment Act 1997. The court considered the matter afresh and found that the events complained of by the appellant did not qualify as harassment under the Act. The court held that harassment under the Act requires conduct that causes the person at whom it is directed to fear reasonably for their safety, and that harassment is not intended to encompass mutual contact or dialogue between parties, even if fractious. The court concluded that the evidence in this case did not support the making of a restraining order under the Act, as the interactions between the appellant and the respondents did not qualify as harassment.

Accordingly, the court granted leave to the appellant to bring the appeal out of time, but dismissed the appeal. Costs were to follow the event in the ordinary way, on a 2B basis.

Orders