Tranter v Kemp

[2020] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-3

[2020] NZHC 1257

UNDER

the Harassment Act 1997 and District Court Act 2016

IN THE MATTER

of an appeal against a decision of the District Court at Nelson making a restraining order and order to take down a website

BETWEEN

PAUL JAMES TRANTER

Appellant

AND

DEBORAH MAREE KEMP

Respondent

Hearing:	3 June 2020 (AVL)
Counsel:	L S B Acland for Appellant Y E Clarrise for Respondent
Judgment:	8 June 2020

JUDGMENT OF SIMON FRANCE J

[1]    On 17 December 2019, the District Court imposed a two-year restraint on   Mr Tranter under the Harassment Act 1997 in favour of Ms Kemp.1 The order expires on 17 December 2021. At the same time the Court made an order for one year under the Harmful Digital Communications Act 2015 requiring Mr Tranter to take down material related to Ms Kemp and her business and refrain from reposting the same or similar content.2 Mr Tranter appeals against both orders.

1      Kemp v Tranter [2019] NZDC 25308.

2      At [36]-[37].

TRANTER v KEMP [2020] NZHC 1257 [8 June 2020]

[2]    Ms Kemp along with her partner are principals in a landscaping business (the business). The business did work for Mr Tranter. The work was delayed. The invoice was for a greater sum than Mr Tranter contended had been agreed. He did not pay. Matters deteriorated from there.

[3]    Proceedings were filed in the District Court by the business to enforce its invoice. Eventually the matter was transferred to the Disputes Tribunal.3 The Tribunal agreed with Mr Tranter that the agreement was that the job would cost no more than

$5,000 (excluding GST). The original invoice of $9,576.64 (GST inclusive) was reduced to $5,750 (GST inclusive).4 The Tribunal also found that the business breached s 28 of the Consumer Guarantees Act 1993 with the consequence that     Mr Tranter directly incurred legal expenses through a need to re-negotiate underlying contracts that depended on the work being done. Damages of $750 were awarded.5

[4]    That should have ended matters. It did not. The day after the Tribunal decision, Mr Tranter emailed the business alerting them to a publication or blog he was going to publish. The email said the publication would be made available in a Google search, would be posted to social media and would be the subject of a leaflet drop. The email gave the business seven days to review, comment or request amendments.

[5]    No response was made. The publication went live sometime in early April. The content appeared under the general heading “Mapua Landscapes A Thouroughly Unpleasant Experience”, accompanied by the headline:

THINKING OF USING MAPUA LANDSCAPES T/A MAPUA CONTRACTING 15 WARREN PLACE, Mapua 7005 …

THINK AGAIN!

[6]    There was then a photo of Ms Kemp and her partner. The article queried why the work took so long and claims the invoice was “three times” what it should be. This is inaccurate given the Tribunal held Mr Tranter expected an invoice no greater than

$5,000. The article says that in response to a complaint from him, Mr Tranter was threatened at his work, and then dragged through the courts. A series of bullet points

3      Mapua Landscapes Ltd v Tranter Disputes Tribunal Nelson CIV-2018-042-400, 26 March 2019.

4 At [17].

5 At [42].

then detailed the events from Mr Tranter’s viewpoint. This section of the article concludes:

The customer maintains this was the most sickening, irrational, unreasonable experience he had ever experienced … READ ON

[7]    The balance of the lengthy publication (several pages) is an expanded description of the events. These are prefaced by a disclaimer that there is “no malicious intent or implied on a personal level”. The contract negotiations and work including the delays that had occurred are outlined. There then follows a description of the aftermath following presentation of the invoice. It begins with a statement that “Debbie and Darron began a campaign of harassment and intimidation for payment of their invoice”. There is a long description of the legal processes including setting out what are described as Mr Tranter’s closing arguments at the Tribunal. Unexpectedly the article stops there without describing the Tribunal decision although that must have been to hand. The article concludes by observing that any losses suffered by the business through the process are of their own making, and expresses the hope that if the business continues, it learns from the experience.

[8]    This lengthy description has been required because the publication (and the preceding email) is said to be the first “specified act” required to be proved under the Harassment Act as a prerequisite to the making of a restraining order.6 That legislation requires that in order to establish harassment there must be at least two such specified acts within a 12-month period.7

[9] In mid to late April, as flagged in the original email, a flyer was distributed. It is not easy to discern exactly how widely it was distributed in the district, but the parties live in a small community and it is safe to infer there would have been widespread knowledge of it. The flyer was in effect a copy of the first page of the article, being the introduction and the bullet points previously detailed. It included the photo of Ms Kemp and her partner as well as the headings outlined at [5] above. The flyer does not identify the author, although there is a link to the web page earlier

6      Harassment Act 1997, ss 16, 3 and 4.

7      Section 3(1).

posted.    The flyer is said to be another “specified act” for the purposes of the harassment claim.

[10]   Ms Kemp contacted an organisation called Netsafe about the internet publication. Netsafe reviewed it and contacted Mr Tranter to advise it considered the publication breached the Harmful Digital Communications Act. The focus was the publication of the photo. It requested Mr Tranter to take it down. He did so but soon after reposted an amended version but without the photo. This amended version, said to be another “specified act”, expanded on some of the contents but also included copies of various emails and correspondence.

[11]   The judgment under appeal does not identify what conduct the Court found amounted to the specified acts required by the Act as a prerequisite to making an order. The respondent relies on the two internet publications and the flyer, together with the emails to the business that preceded each publication. There was other disputed conduct that had been relied on before the District Court. The Court did not make specific findings which resolved these disputes and the respondent does not rely on the conduct in seeking to uphold the present orders. Given that, I will only briefly describe the disputed conduct.

[12]   By way of introductory comment, I observe the District Court drew favourable conclusions about Ms Kemp’s evidence, finding her to be clear, sincere and calm.8 That was also the Court’s initial assessment of Mr Tranter; however, his evidence under cross-examination about the motivations underlying the publications caused the Court to reject that assessment of sincerity. The Court rejected the proposition that the material was by way of a business review made in the public interest and considered Mr Tranter was seeking to punish Ms Kemp and the business.9 There is no reason on appeal for me to differ. The latter conclusion about the motives for publication seems inevitable given the excessive nature of the content and what are, in my view, self- serving disclaimers. The credibility findings, however, are specific to this topic of the publications and do not necessarily assist to resolve the factual disputes about the other alleged events.

8 At [14].

9 At [15].

[13]   Ms Kemp alleged three community-based incidents. Two involved her and one her partner. The two involving her were both chance encounters. The first was when she and Mr Tranter encountered each other at the local dairy. As they looked at each other, Ms Kemp says Mr Tranter pointed a milk bottle at her like a gun and pretended to shoot her. Mr Tranter accepts the meeting occurred but denies the milk bottle account. He says he had his arms full of groceries and could not do that. The second occasion arose when they passed in opposite directions while they were both driving. It is said Mr Tranter gave Ms Kemp the fingers. Mr Tranter accepts they passed in this manner, said he only realised afterwards it was Ms Kemp and says he did not make the gesture.

[14]   The third incident occurred when Ms Kemp’s partner went back to the work site to collect a sign. He decided to go to the office to speak to Mr Tranter about the dispute. It seems common ground it became heated. The partner says Mr Tranter produced a knife and drove it into a table in a threatening manner. Mr Tranter denies this, and was supported in this by his son who was present in the building (though not in the office). The partner made a police complaint. In terms of harassment considerations, I note that the contact here was deliberate but Mr Tranter was not the initiator.

[15]   In a subsequent affidavit filed in support of a Mode of Evidence application,10 Ms Kemp further alleged Mr Tranter tried to intimidate her at a Judicial Settlement Conference that had occurred prior to the referral of the matter to the Disputes Tribunal. She said he stared at her and positioned his middle finger next to his head so as to be giving her the fingers. Ms Kemp also alleged Mr Tranter blocked her from accessing the bathrooms. Mr Tranter denied these events, and claimed he was in the company of his wife and two lawyers during the break at the Judicial Settlement Conference.

[16]   A feature of the case is that there was very limited cross-examination of the parties on these factual matters. Ms Kemp was asked if Mr Tranter had groceries in his arms at the dairy and denied this, although I observe he must have been carrying

10     Evidence Act 2006, s 103.

at least the milk bottle. Other than this, the disputed matters were not explored. Reviewing the matter on appeal, and without specific findings from the Judge,11 I would not have been satisfied any of the disputed matters had been established to have included them in a pattern of conduct in a consideration of harassment.12 I also observe none of the events were initiated by Mr Tranter. They were either by chance, initiated by the respondent or a product of the respondent’s litigation.

Harmful Digital Communications Act order

[17]   The parties are agreed I should consider this issue afresh. The judgment under appeal does not contain separate reasons or analysis of the relevant statutory scheme.

[18]An interim order was made under the Harmful Digital Communications Act on

27 May 2019, pending  the  determination  of  the  application  for  final  orders.13  Mr Tranter complied with this and the online postings have been unavailable since then. An interim order lapses at the time of the substantive hearing.14 Section 19 of the Act provides for orders requiring material to be taken down, preventing repeat conduct and ordering a defendant not to encourage others to engage in similar communications. Section 19(5) sets out mandatory considerations:

(5)   In deciding whether or not to make an order, and the form of an order, the court must take into account the following:

(a)the content of the communication and the level of harm caused or likely to be caused by it:

(b)the purpose of the communicator, in particular whether the communication was intended to cause harm:

(c)the occasion, context, and subject matter of the communication:

(d)the extent to which the communication has spread beyond the original parties to the communication:

(e)the age and vulnerability of the affected individual:

(f)the truth or falsity of the statement:

11  Kemp v Tranter, above n 1, at [33] refers, very briefly, to the Court having heard this evidence.  The context could suggest that impliedly it is being believed, but in the absence of any express statement by the Court, and with there having been no cross-examination, I do not treat it as a finding.

12     Harassment Act 1997, s 3.

13     Sections 18 and 19(a).

14     Section 18(2).

(g)whether the communication is in the public interest:

(h)the conduct of the defendant, including any attempt by the defendant to minimise the harm caused:

(i)the conduct of the affected individual or complainant:

(j)the technical and operational practicalities, and the costs, of an order:

(k)the appropriate individual or other person who should be subject to the order.

[19]   Harm is defined as serious emotional stress.15 In considering whether to make an order the Court is instructed to act consistently with the New Zealand Bill of Rights Act 1990.16

[20]   As a preliminary matter, the appellant notes the application was  made  by  Ms Kemp on behalf of the business. The Act only allows for applications by individuals, not corporate entities.17 I will treat it as an application by Ms Kemp recognising, though, that the harm must be to her, not the business.

[21]   A theme of Mr Tranter’s response to both applications was to emphasise his posts were directed at the company, not its directors. While this is so to a certain extent, there are numerous references to Ms Kemp and her partner individually. There are allegations of false invoices, doctoring photos and similar conduct which the reader would inevitably see as an allegation against the individuals. And of course the original post and the flyer had a photo of the two individuals. I am accordingly satisfied the publications and flyer were directed at both the individuals and the business.

[22]   I have had regard to all the subs (5) matters, but comment specifically only on what are the key matters in this case. The starting point is the District Court finding, which I accept, as to the motivation underlying the publications. They were clearly designed to be a destructive attack on the business and its principals. The publications are not objective and present selective material. They maintained allegations of dishonesty found not to have been proved at the Tribunal. The second publication

15     Section 4.

16     Section 19(6).

17     Section 11(1).

included numerous documents and generally displays a complete lack of balance both in itself and as regards the issue.

[23]    Other than the delay aspect, Mr Tranter does not criticise the quality of the work done, a fact not acknowledged in the publications. Overall, this was an extraordinarily excessive response to a situation which had been resolved at the Disputes Tribunal.

[24]   Any business and any individual involved in business must accept there may be criticism, valid or otherwise as they see it, and that that right to freedom of expression allows aggrieved persons to publish those grievances. Sometimes those publications will be objectively disproportionate without justifying intervention of the type sought here. However, the material here displays excessiveness to a concerning degree, and was not in the public interest. The publications were not motivated by sentiments worthy of protection. They were likely to and did cause harm, and any repetition would cause further harm.

[25]   The takedown effected by the interim orders was necessary. The question is whether ongoing orders are. Through counsel, Mr Tranter has said he will not republish, but it is clear that the dispute still plays out. Each professes a desire to move on; neither seems able to actually do so.

[26]   For now, I consider tailored orders for the period imposed by the District Court are appropriate given that the dispute still continues.18 The material has been taken down. I modify the orders made to provide that:

(a)Mr Tranter refrain from publishing in any format other than Court proceedings comment on the underlying dispute and the subsequent events. I make this order in the expectation that the respondents will do likewise, and specifically refer to the power to vary if circumstances require.

(b)Mr Tranter is not to encourage anyone to engage in similar conduct and communications about Ms Kemp, or her partner. I observe that attacks

18     Pursuant to s 19 of the Harmful Digital Communications Act 2015.

on the business by Mr Tranter or someone he has encouraged are very likely to be seen as attacks on Ms Kemp.

[27]   No  other  orders  are  required  or  appropriate.   These  orders  last   until   31 December 2020.

Harassment Act order

[28]   Under the Harassment Act a court may make a restraining order if it is satisfied that the respondent has harassed (or is harassing) the applicant, and the following requirements are met:

(a)the behaviour in respect of which the application is made causes the applicant distress or threatens to cause the applicant distress; and

(b)that behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant’s particular circumstances; and

(c)in all of the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order.

[29]   The final requirement is that the court must be satisfied the making of an order is necessary to protect the applicant from further harassment.19

[30]   As noted, a person harasses another by engaging in a pattern of behaviour directed against that other person which includes doing any “specified act” on at least two separate occasions within a 12-month period.20 The meaning of a “specified act” is provided for in s 4 of the Act, and includes watching, loitering, or hindering access to or from that person’s home or business, following or stopping that person, entering or interfering with that person’s property, contacting that person, giving offensive material to that person including electronically, and acting in any other way that causes that person to reasonably fear for their safety.21

[31]   There are some not straightforward issues here about whether the two posts and the flyer are specified acts within the meaning of the Act. The respondent relies primarily on s 4(1)(e) and (ea) of the Harassment Act which deal with offensive

19     Harassment Act 1997, s 16(1)(c).

20     Section 3.

21     Section 4.

material. The present publications do not contain the type of name-calling and other such language one often finds in these cases.22 I do not suggest these features are essential to the concept of offensive but their absence means careful analysis would be required here to identify the features that make it offensive.

[32]   It is not necessary to undertake that analysis because I am satisfied a restraining order is not necessary to protect the applicant from further harassment.23 The harassment to date, assuming it meets the statutory test, consists solely of conduct now addressed by the orders under the Harmful Digital Communications Act.

[33]   Mr Tranter has not on the evidence, including the other allegations, initiated any contact other than by means of the publications. There is on the evidence no basis on which to conclude a risk of further harassment exists in any form other than that addressed by the order under the Harmful Digital Communications Act. In originally making a restraining order, the District Court did not consider the impact of its other order on the need for a restraining order under the Harassment Act, and in that respect erred.

Conclusions

[34]The appeal is allowed in part.

[35]The restraining order under the Harassment Act is quashed.

[36]   The order under the Harmful Digital Communications Act is confirmed on the terms set out in para [26]-[27].

[37]Each party has had success. Each party should bear their own costs.

Simon France J

Solicitors:

Rout Milner Fitchett, Nelson for Appellant Pitt and Moore, Nelson for Respondent

22     See, for example, NR v District Court at Auckland and MR [2016] NZCA 429; and Nottingham v R

[2019] NZCA 344.

23     Section 16(1)(c).