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…

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 Tranter v Kemp

Details

AGLC: Tranter v Kemp [2020] NZHC 1257
Case: [2020] NZHC 1257
Decision Date: 8 June 2020

CaseChat Overview and Summary

The High Court of New Zealand, Nelson Registry, heard an appeal from Mr Tranter against a decision of the District Court to make a restraining order and order to take down a website under the Harassment Act 1997 and the District Court Act 2016. The appeal involved a dispute between Mr Tranter and Ms Kemp, who, along with her partner, owned a landscaping business that had performed work for Mr Tranter. The parties disagreed about the cost of the work, which resulted in legal proceedings and a decision by a Disputes Tribunal. Despite the resolution of the financial dispute, Mr Tranter published a blog and distributed a flyer that contained personal and professional criticisms of Ms Kemp and her business, leading to the District Court's orders. The court had to decide whether the District Court correctly identified the specified acts under the Harassment Act that warranted the orders, and whether the orders under the Harmful Digital Communications Act were justified and necessary.

The court found that the District Court did not adequately identify the specified acts that constituted harassment under the Act. However, the court did not need to resolve the disputed conduct as it concluded that a restraining order was not necessary to protect Ms Kemp from further harassment. The court confirmed that Mr Tranter's publications were excessive, motivated by a desire to punish Ms Kemp rather than a legitimate public interest, and likely to cause serious emotional stress. The court found that the takedown orders under the Harmful Digital Communications Act were necessary, but modified the orders to prohibit Mr Tranter from commenting on the dispute and encouraging others to engage in similar conduct. The restraining order under the Harassment Act was quashed as unnecessary.

The court allowed the appeal in part, quashed the restraining order under the Harassment Act, and confirmed the order under the Harmful Digital Communications Act with the specified modifications. Each party was ordered to bear their own costs.

Orders