Wallis v Rebolledo

Case [2017] NZHC 2565


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-152 [2017] NZHC 2565

BETWEEN

PHILIP WALLIS

Appellant

AND

FELIPE REBOLLEDO AND CHELSEA WITHERS

Respondents

Hearing: 28 June 2017

Counsel:

P Wallis, in person, Appellant
R Thompson for Respondents

Judgment:

20 October 2017

JUDGMENT OF HEATH J

This judgment was delivered by me on 20 October 2017 at 2.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
R Thompson, Auckland
Copy to:

P Wallis, Appellant

WALLIS v REBOLLEDO AND WITHERS [2017] NZHC 2565 [20 October 2017]

The appeal

[1]      Mr Felipe Rebolledo and Ms Chelsea Withers applied, under the Harassment Act 1997 (the Act), to the District Court at Waitakere for a restraining order against Mr  Philip  Wallis.    They  alleged  that  Mr  Wallis  had  engaged  in  a  number  of “specified acts” that formed a pattern of behaviour amounting to harassment against them.1

[2]      On 19 December 2016, after a defended hearing at which all three parties gave evidence, Judge Cunningham made a restraining order against Mr Wallis, for a period of two years.2     A special condition of the order permits Mr Wallis to be present in the vicinity of Mr Rebolledo or Ms Withers when giving surfing lessons at Piha Beach or, more generally, within the Piha community.3

[3]      Mr Wallis appeals against the restraining order.4   In doing so, he raises three questions:

(a)       Did he receive a fair trial?

(b)      Did the Judge err in making factual findings about the existence of

“specified acts”?

(c)       If the Judge did not err in that way, was it “necessary” to make an

order?

[4]      Mr Thompson, for Mr Rebolledo and Ms Withers, opposes the appeal.  He submits that Mr Wallis received a fair hearing in the District Court.  On the merits, Mr Thompson supports Judge Cunningham’s decision for the reasons that she gave.

The statutory scheme

[5]      The term “harassment” is defined by s 3 of the Act:

1      Harassment Act 1997, s 3(1).   See also the definition of “harassment” in s 4(1) of the Act.

Section 4(1) of the Act is set out at para [8] below.

2      Rebolledo v Wallis [2016] NZDC 25582.

3      Ibid, at para [83], set out at para [32] below.

4      I discuss the test for appellate review at paras [11]–[13] below.

3        Meaning of harassment

(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 2 separate occasions within a period of 12 months.

(2)      To avoid any doubt,—

(a)       the specified acts required for the purposes of subsection (1) may be the same type of specified act on each separate occasion, or different types of specified acts:

(b)       the specified acts need not be done to the same person on each…

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Wallis v Rebolledo [2017] NZHC 2565
Case
[2017] NZHC 2565
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CaseChat Overview and Summary

In the High Court of New Zealand, the case of Wallis v Rebolledo [2017] NZHC 2565 involved an appeal by Mr Philip Wallis against a restraining order made against him under the Harassment Act 1997. Mr Rebolledo and Ms Withers had obtained a restraining order from the District Court, which permitted Mr Wallis to be present in the vicinity of Mr Rebolledo or Ms Withers when giving surfing lessons at Piha Beach or within the Piha community. The appeal raised questions about whether Mr Wallis received a fair trial, whether the judge erred in making factual findings about the existence of "specified acts," and whether it was necessary to make an order. The respondents opposed the appeal.

The court found that the appeal did not turn on the fair trial arguments advanced by Mr Wallis. However, the court held that the judge had failed to discretely consider whether it was necessary to make a restraining order. The court found that, although the conduct in which Mr Wallis engaged was sufficiently serious to denounce the conduct and compel him to understand the nature and consequences of his actions, it was not necessary to make a restraining order when the very presence of Mr Rebolledo and Ms Withers carrying on business activities in the vicinity of Mr Wallis was the situation most likely to provoke prohibited behaviour on his part.

The appeal was allowed, and the restraining order made by the District Court on 19 December 2016 was set aside. There would be no order as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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