Mooney v Wilkinson
[2015] NZHC 2488
•12 October 2015
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
CourtBETWEEN
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 RespondentsJudgment:
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 is simply not relevant.
[6] Accordingly I agree with Mr Gaines that, at best, some of the material provides some wider context to the present dispute. Although I said to Mr Mooney that I would consider that material, and have done so, I have formed the view that it could not possibly have a bearing on the outcome of the appeal and I decline leave for it to be adduced accordingly.
[7] I also record at the outset that Mr Mooney frankly admitted that his motivation in pursuing these proceedings was strategic. What he really seeks is a “settlement” with the MTC which would permit him to continue his coaching activities on their courts, on the days on which they are open to the public. Access to the courts is particularly important for night coaching because, as I understand it, there are no other courts in the wider vicinity that have the requisite lighting.
Approach on appeal
[8] A right of appeal against the judgment of the District Court is conferred by s 34(1) of the Act. The appeal is by way of rehearing.3
[9] The approach of the Court on a general right of appeal is as explained in
Austin, Nichols & Co Inc v Stichting Lodestar:4
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellant court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
3 Section 34(2) provides that ss 74 to 78 of the District Courts Act 1947 applies to this appeal as if it were an appeal under s 72 of that Act.
4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
[10] The Court noted that the appeal court must be persuaded that the decision is wrong but in reaching that view no deference is required beyond the “customary caution” appropriate when seeing the witnesses provides an advantage in assessing credibility, where that is important.
The Harassment Act 1997
[11] The object of the 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.
[12] “Harassment” is defined in s 3 as follows:
(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 two separate occasions within a period of 12 months.
[13] “Specified act” is defined in s 4 as follows:
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, 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:
(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.
(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).
[14] Once harassment has been established in the above terms, s 16 sets out when a court may make a restraining 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
(c) The making of an order is necessary to protect the applicant from further harassment.
[15] Section 17 prevents reliance on a specified act if the defence of “lawful purpose” has been made out:
17 Defence to prove that specified acts done for lawful purpose
A specified act cannot be relied on to establish harassment for the purposes of section 16(1)(a) if the respondent proves that the specified act was done for a lawful purpose.
[16] The combined operation and effect of the above provisions was discussed by Toogood J in Munro v Collection House (NZ) Ltd.5 That decision was referred to and applied by Judge Hastings in the District Court.6 For reasons that will become obvious, however, I do not need to repeat the relevant dicta here.
The District Court decision
[17] Because of the approach I propose taking in this appeal it is not necessary to set out the learned District Court Judge’s analysis or reasoning in this judgment. But it is convenient to adopt his description of the behaviour said by Mr Mooney to constitute harassment by the respondents. This is set out between [29] and [33] of Judge Hastings’ judgment, as follows:
[29] Mr Mooney alleges eight specified acts against Ms Eatherley:
(a) Mr Mooney said that Ms Eatherley sent an email in 2009 proposing to remove Mr Mooney’s coaching services from club advertising, which was before his contract ended. Ms Eatherley said in her affidavit that she did not recall sending this email, but if she did, she did it in her capacity as a committee member. She said it was merely a proposal for committee members to consider in anticipation of the end of Mr Mooney’s contract.
(b) Mr Mooney said that on 11 May 2011, Ms Eatherley told him to stop photographing children, particularly her child, playing tennis on the courts. Mr Mooney said that he was
5 Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011.
6 Mooney v Wilkinson DC Blenheim CIV-2013-006-000042, 043, 044, 3 September 2013.
photographing children playing on the back courts for, but not at the request of, a lawyer who was investigating “council issues and concerns”. He said that Ms Eatherly ran up to him, tried to yank the camera from around his neck, and called him a “dirty old man”. Ms Eatherley said that this was the third time that Mr Mooney had photographed her son without permission, and she denied calling Mr Mooney a dirty old man. She said she told him that he was scruffy.
(c) On 29 May 2012, Mr Mooney had organised an “annual match” against Nelson, and that he had paid for the use of the courts. He said that after lunch, Ms Eatherley “ran in ranting just behind me”, asked if he was coaching, and told him to leave. Jeremy Crouch told the Court that he heard Ms Eatherley say after lunch that Mr Mooney had been hiding in bushes photographing children playing tennis on the back courts. Ms Eatherley said that she told Mr Mooney that he could not run a private tournament involving
12 paying clients on a day when the club was also running a tournament. She said that a green-fee is a nominal payment
to permit members of the public to play tennis; it is not a
licence to run “a private tournament” after the committee
had declined his request to use the back courts for that purpose on a day when the club was also running a tournament. She said she expressed her view to Mr Mooney “openly and honestly” but did not threaten him.
(d) Also on 29 May 2012, in the carpark, Mr Mooney alleges that Ms Eatherley confronted Mr Mooney to tell him that he was scaring her son. Mr Mooney said that he walked to her car to ask her son if this was true. He said her son did not reply to his question. Mr Mooney also said that she danced around him singing that he was “a cripple”. Ms Eatherley said that she and her son were alone in the car park. Mr Mooney approached her. She told him that he was scaring people, including her son. She said Mr Mooney then approached her son, who was sitting in her car, to ask if this was true. Her son did not reply because he was scared of Mr Mooney. She said she and her son were both shaken by the incident and that it was “unusual and uncomfortable”. She said it was ridiculous to suggest in those circumstances, alone in a car park with her son, that she would be dancing around Mr Mooney calling him a cripple. She said that Mr Mooney “does not understand social and personal boundaries. He thinks ... approaching a woman in a car park who is alone with her child for the purpose of continuing an argument without any end, should not elicit any response from the mother”. I accept that there was a confrontation in the car park, but I do not accept that Ms Eatherley danced or called Mr Mooney a cripple.
(e) Mr Mooney said that on 25 June 2012 he entered the club to watch his children play in a tournament. He said Ms Eatherley and her parents shook their fists at him, and as he passed her, he said that she started to follow him, and at
the drinking fountain, asked him why he was there. Ms Eatherley denied shaking her fist at him, and considered that Mr Mooney was being provocative by waving and smiling as he went past. She admitted that she asked him to leave for that reason. Given the age she said her parents were, I do not believe that they or Ms Eatherley would have shaken their fists at Mr Mooney. I do accept that Mr Mooney waved and smiled, and that Ms Eatherley asked him to leave because she thought he was being provocative.
(f) Mr Mooney said that in August or September 2012, Ms Eatherley sent a formal letter of complaint to the Australian Academy of Tennis Coaches about Mr Mooney, and that when the CEO of that organisation asked for verification of “the unfounded accusations”, there was no reply and no response to the AATC’s offer of mediation. Ms Eatherley said that she corresponded with the AATC “in the hope that the organisation would assist in the resolution of the issues with Mr Mooney”. She said that her email reflected the club’s position.
(g) Mr Mooney said that on 7 September 2012, Ms Eatherley sent emails to parents advising them that Mr Mooney had no right to provide professional coaching services on the courts. One of the parents forwarded the email to Mr Mooney. Ms Eatherley stated in her affidavit that her email reflected the legal advice received by the committee, that after his contract ended, and under the terms of the lease, Mr Mooney had no right to provide coaching services on the courts.
(h) Mr Mooney said that on 23 September 2012, Ms Eatherley sent emails to a group of his students advising them that he had no right to provide professional coaching services on club courts. Ms Eatherley again said that what was written in the emails “reflects the legal opinion the club received regarding the public’s rights of access and use of the tennis courts”.
[30] The evidence shows that confrontations occurred on these dates. The dispute lies in the detail, and whether they can be called “specified acts” within the meaning of s 4.
The Allegations against Ms Shanahan
[31] Mr Mooney alleges four specified acts committed by Ms Shanahan: (a) He said that in September 2011, his daughter Hannah was
playing a game with Jacob Buellens. Mr Buellens and
Hannah Mooney both said that they had paid the correct fee by hiring a key for $20 at the Copthorne Hotel. Mr Buellens said that Ms Shanahan interrupted their play and told them both to leave. When shown the key as evidence that they had paid the green fee, Mr Buellens said that Ms Shanahan told him he could stay but Ms Mooney had to leave “because of your Dad”. Ms Mooney said “to be treated like that was
malicious and horrible and I now feel intimidated to go down to the club”. Ms Shanahan said that she asked whether or not Ms Mooney had paid a fee because Ms Mooney had been overseas, had not paid a membership fee, and was no longer a club member. She admitted discussing with Ms Mooney that “it was difficult to have a welcoming environment at the club while Hannah’s father was suing us”. She said that her words and conduct were “forthright, direct and honestly stated” but that they were not threatening.
(b) Mr Mooney claims that on 23 September 2011, Ms Shanahan was present when he was arrested for breach of the trespass order. Mr Mooney does not allege that Ms Shanahan sought the order or that obtaining it was in itself a specified act. Ms Shanahan said that she arrived at the car park as the Police were moving onto the courts to arrest Mr Mooney. She said that Mr Mooney staged his arrest and brought a press photographer with him. She said that the photographer confirmed to her that Mr Mooney invited him to be present at his arrest. A photograph of the arrest appeared in the local paper, which, she said, embarrassed the club.
(c) Mr Mooney said that in September 2011 his daughter Hannah tried to join the club, but her application was refused. He said that his daughter was told she could join when he withdrew his threat of legal action. Ms Mooney said that when she was told this, she swore at Ms Shanahan. Ms Shanahan said this verbal tirade was “the deciding moment”. She said that Ms Mooney’s language was “foul and unacceptable”, and that parents and children were in the clubhouse at the time. She said that the club constitution permits the committee to determine membership at its discretion and does not require the committee to give reasons for declining membership.
(d) Mr Mooney said that in August 2012, Ms Shanahan told a parent and her son that Mr Mooney had no right to provide professional coaching services on the courts “due to club rules”. Ms Shanahan said she said this in her capacity as a committee member.
[32] Once again, the evidence shows that confrontations occurred on these dates. The dispute lies in the detail, and whether they can be called “specified acts” within the meaning of s 4.
The Allegations against Mr Wilkinson
[33] Mr Mooney also sought a restraining order against Mr Wilkinson, and alleged that a considerable number of his acts constituted harassment. Included in these acts are Mr Wilkinson’s alleged involvement in the arrests of Mr Mooney on 23 and 26 September 2011 for breaching the trespass notice dated 2 June 2011, his phoning the police on 10 December 2011, his involvement in arranging for the trespass notice to be affixed to the window
of the clubhouse on 11 January 2011 in plain view of people in the vicinity, his involvement in receiving payment and then returning Hannah Mooney’s membership fee, and his request for Hannah Mooney to sign her membership form. On the second day of the hearing however, Mr Wilkinson gave evidence that he had resigned as operations manager at the Marlborough Tennis Club in April 2013 and had moved back to Christchurch three weeks earlier. There is therefore no longer any practical purpose in considering whether or not to grant a restraining order against Mr Wilkinson. I will consider only Mr Mooney’s allegations against Ms Shanahan and Ms Eatherley.
The appeal
[18] Mr Mooney’s grounds of appeal were, I think, accurately summarised by
Mr Gaines as follows:
(a) the District Court failed to interpret the lease (which Mr Mooney says
gives him the right to coach on the MTC’s courts);
(b)various procedural matters, the rather attenuated hearing process and the time until judgment was given has resulted in unfairness;
(c) the District Court failed to regard the trespass notice as a “specified act”;
(d)the District Court made various factual and chronological errors (which are said to have led to errors in terms of considering whether there had been two “specified acts” within 12 months of each other, as required by the s 3 definition of harassment).
Discussion
[19] As far as the lease is concerned, I appreciate that there is a genuine difference of view as to its interpretation. I would even, perhaps, go so far as to say that it does not strike me that Mr Mooney’s position in that respect is unarguable. But the difficulty he faces is that the proper interpretation of the lease cannot be relevant to these, Harassment Act, proceedings. That is precisely what the learned District Court Judge said at [8] of his judgment. The point was reiterated in this Court by
Mallon J in her minute dated 18 November 2014. I am unable to take that matter further.
[20] Similarly, the alleged defects of process concerned get Mr Mooney nowhere. Any such defects would necessarily be cured by the de novo hearing of the appeal. Again, therefore, I do not propose to consider them further.
[21] I accept that the factual matters referred to at [18](c) and (d) above are potentially relevant on appeal. But I do not propose to approach them by asking whether Judge Hastings erred in the way in which he dealt with them. As I have said, this is a general appeal and I should therefore consider the matter afresh. And when that is done, I consider the issues can easily be resolved.
[22] Put simply, on any view of the evidence, there was no “harassment” in the relevant sense, here. In my view, therefore, Mr Mooney does not get over the first hurdle. It is not simply a matter of determining whether any of the incidents or conduct complained about could constitute a “specific act” and then counting the occasions on which such acts occurred within a 12 month period; the point is altogether more fundamental.
[23] I have already set out the relevant definitions of “harassment” and “specified act” above. In my view a proper interpretation of those terms means that the events complained of by Mr Mooney do not qualify as harassment regardless of when, or how often, they occurred, for the reasons that follow.
[24] First, the definition of “specified act” lists a number of acts, some of which may not, by themselves, be thought to be of a harassing kind. The proposition that acts which may, in most circumstances, be innocent, but in others be harassment, is made quite clear in paragraph (a) of the objects provision noted at [11] above.
[25] To take the most obvious example, one person “making contact” with another will, in the ordinary course, be an anodyne and inoffensive act, regardless of whether it occurs regularly or more than twice during a 12 month period. Something more is
required to turn such contact into harassment. And what that “something” is, in my
view, is made clear by subs (1)(f) of the definition which states that harassment is:
(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.
[26] The use of the words “Acting in any other way that …” is a clear indication that the other specific acts named in the preceding part of the definition must (in order to qualify as a specified act) all have the same effect, namely of causing reasonable fear in the person at whom they are directed. If that were not the case then para (f) would simply read “Acting in any way that …”. An application of the interpretive principle that words or phrases take their colour from the words or
phrases which surround them, suggests the same conclusion.7 In short, what is
potentially restrained by the Act is (repeated) conduct of a kind that causes the person at whom it is directed to fear reasonably for his or her safety.
[27] The second and related point is that the definitions of “harassment” and of “specified act” contemplate the existence of a bright line between the actor (Person A, the harasser) and the person who is the unwilling object of Person A’s attentions (Person B, the harassed). Harassment is not intended to, and in my view does not, encompass what is essentially some form of dialogue or mutual contact between Persons A and B, however fractious that contact might be.
[28] The reality of the present case is that Mr Mooney was actively engaged in a highly disputatious way with certain of the MTC Committee members over some period of time. While he might perceive himself as more “passive” and the Committee as the aggressors, I do not accept that perception is accurate. However justified Mr Mooney might have felt, and notwithstanding the provocation he might himself have experienced, he has deliberately engaged in acts which he knew would
be provocative. By way of example only he quite candidly admitted that he
7 Essentially the noscitur a sociis principle.
deliberately flouted the trespass order in the knowledge that he would be arrested.8
That is not the act of a person made fearful by the trespass order and it is not an act
of a “Person B”.
Conclusions
[29] For the reasons I have just given I agree with Judge Hastings’ conclusion that the evidence in this case does not support the making of a restraining order under s 16. On any analysis the interactions between Mr Mooney and the respondents do not qualify as harassment by them of him. Although I accept that what has occurred has been distressing for him, the threshold is simply not met. That conclusion is supported by the fact that all the events in which it is accepted or established that the respondents were involved are historic. Two of them are no longer on the MTC Committee at all. Even if the harassment threshold were crossed an order against the respondents could not be said to be necessary to protect Mr Mooney from further harassment.
[30] Given my engagement with the merits I consider it is appropriate to grant leave to Mr Mooney to bring the appeal out of time but for the appeal to be
dismissed. Costs should follow the event in the ordinary way, on a 2B basis.
Solicitors: Gaines Law, Blenheim, for Respondents
Copy to: Mr Mooney
“Rebecca Ellis J”
8 Again, the fact that he might have been justified in his belief that the order was invalid is neither here nor there.
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