[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…

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 Wallis v Rebolledo

Details

AGLC: Wallis v Rebolledo [2017] NZHC 2565
Case: [2017] NZHC 2565
Decision Date: 20 October 2017

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