Waxman v Crouch - [2016] NZHC 2004

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000228 [2016] NZHC 2004

BETWEEN
DEBORAH WAXMAN

Appellant

AND

MARK CROUCH Respondent

Hearing: 15 June 2016

Appearances:

W G C Templeton for Appellant
T A Simmonds for Respondent

Judgment:

29 August 2016

JUDGMENT OF PALMER J

This judgment is delivered by me on 29 August 2016 at 10.30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel:
W G C Templeton, Barrister, Auckland
T A Simmonds, Barrister, Auckland

WAXMAN v CROUCH [2016] NZHC 2004 [29 August 2016]

Summary

[1] Sometimes neighbours just can’t get along with each other. Occasionally, their interactions get out of hand. Ms Deborah Waxman and Mr Mark Crouch are neighbours in Remuera, Auckland. Ms Waxman sought a restraining order in the District Court against Mr Crouch under the Harassment Act 1997 (the Act). Not only did she fail, Judge Sharp considered it was Ms Waxman who was doing the
harassing, was vexatious, and ordered indemnity costs against her.1 Ms Waxman

appeals.

[2] I hold that harassment under the Act involves a respondent engaging in at least two specified acts in a pattern of behaviour directed against the applicant that causes the applicant to fear reasonably for his or her safety. A court’s decision to issue a restraining order must also pay due regard to the rights and freedoms guaranteed under the Bill of Rights.

[3] I uphold Judge Sharp’s judgment in declining the application for a restraining order here because the level of harassment does not meet the required level. Even if it did, the pattern of behaviour would not cause distress to a reasonable person in Ms Waxman’s circumstances let alone distress of such a degree as to justify a restraining order. However Ms Waxman was a litigant in person who honestly held a belief she was being harassed, was distressed by that and availed herself of a legal option pointed out to her by the Police of applying for a restraining order. I do not see how she can be said to have acted vexatiously to such an exceptionally bad, or flagrant level, as to have indemnity costs awarded against her. Accordingly, I quash that order and substitute an order for costs on a 2B basis.

Facts

[4] Ms Waxman applied in the District Court for a restraining order under the Act against her immediate neighbour Mr Crouch. She submitted Mr Crouch had engaged in a pattern of behaviour that constituted harassment, consisting of the
following:

1 Waxman v Crouch [2016] NZDC 934 [Waxman judgment] and Waxman v Crouch [2016] NZDC
9641 [Costs judgment].

(a) Mr Crouch sent Ms Waxman an email on 16 June 2015 that impugned Ms Waxman’s mental health and care for her children and four dogs, which she found highly offensive and caused her distress. Mr Crouch says that this was in response to Ms Waxman complaining about him and his family to his landlord. Ms Waxman produced a letter…

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 Waxman v Crouch

Details

AGLC: Waxman v Crouch [2016] NZHC 2004
Case: [2016] NZHC 2004
Decision Date: 29 August 2016

CaseChat Overview and Summary

Deborah Waxman sought a restraining order against her neighbour, Mark Crouch, under the Harassment Act 1997. The District Court dismissed her application, finding that she was the one doing the harassing and ordering indemnity costs against her. Ms Waxman appeals to the High Court.

The appeal raises issues about the threshold for finding harassment under the Act, the court's discretion to award costs, and the standard of review for the District Court's decision.

The High Court finds that harassment involves a pattern of behaviour directed against a person that causes them to fear reasonably for their safety. It is not enough for there to be two specified acts in isolation. The court's decision to issue a restraining order must also consider rights and freedoms under the Bill of Rights.

The High Court upholds the District Court's decision that Mr Crouch's behaviour did not amount to harassment. However, it finds the order for indemnity costs was inappropriate. Ms Waxman honestly believed she was being harassed and sought a restraining order, which is a legitimate legal option. Her actions did not rise to the exceptionally bad or flagrant level required for indemnity costs.

The final orders are that the appeal regarding the restraining order application is dismissed. The finding that Ms Waxman's application was vexatious is quashed. Indemnity costs are quashed and substituted with costs on a 2B basis. The parties are to bear their own costs of the appeal.

Orders