Henderson v Wharton HC Whangarei CIV-2011-488-000078 [2011] NZHC 1161 (29 September 2011)

Last Updated: 20 October 2011

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

_{CIV-2011-488-000078}

UNDER the Harassment Act 1997

IN THE MATTER OF an appeal against a decision of the District

Court at Kaitaia

BETWEEN JODI LOUISE HENDERSON Appellant

AND SHILO JAY WHARTON AND JASON HEREMIA TOKI

Respondents

Hearing: 29 September 2011

Appearances: R Mark for Appellant

Respondents in Person

Judgment: 29 September 2011 at 2:30 PM

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 29 September 2011 at 2.30 pm, pursuant to Rule 11.5 of the

_{High Court Rules.}

Registrar/Deputy Registrar

Date...............

Copy to: R Mark, PO Box 172, Kerikeri

Ms S J Wharton and Mr J H Toki, 862 Paponga Road, RD1 Kohukohu, Hokianga

0491

HENDERSON V WHARTON AND TOKI HC WHA CIV-2011-488-000078 29 September 2011

Introduction

[1] The appellant, Ms Henderson and the respondents, Ms Wharton and Mr Toki, are neighbours at Kohukohu. Although they are neighbours they have fallen out over access to a private road, Beazley Road.

[2] Matters deteriorated to the stage where they made cross applications for restraining orders under the Harassment Act 1997 in the District Court. In a decision delivered on 20 December 2010 Judge de Ridder dismissed both Ms Wharton and Mr Toki’s application for a restraining order against Ms Henderson and Ms Henderson’s application for a restraining order against Ms Wharton and Mr Toki.

[3] Ms Wharton and Mr Toki accept the judgment of Judge de Ridder. Ms Henderson has appealed against the decision insofar as it relates to the Judge’s refusal to grant her a restraining order against the respondents.

Background

[4] The parties live in a remote rural area in north-west Northland. Ms Henderson lives on Beazley Road and has done so since 1991. The applicants bought their property on the corner of Paponga Road and Beazley Road in 2008. Beazley Road is not a public road. It was not maintained by the Far North District Council.

[5] In July 2000, some eight years before the respondents bought their property, the Council purported to give Ms Henderson authority to control the movement of stock and vehicles on the road but to allow pedestrian access. It was this issue of access to and the use of Beazley Road that caused the initial problems between the parties after the respondents bought their property. Various incidents occurred between the parties. For present purposes, it is unnecessary to recite them all. They are fully set out in the judgment of the District Court Judge.

[6] On 22 March 2010, and following considerable correspondence between the

Council and the parties, the Council wrote to Ms Henderson and rescinded the

authority it had purported to give her in July 2000 to control the movement of stock and vehicles on Beazley Road. It appears that the Council accepted it had no lawful basis for its earlier decision.

[7] Unfortunately by that time there had been a number of incidents between the parties.

[8] As the respondents accept the Judge’s rejection of their allegations of harassment against Ms Henderson it is unnecessary to recite the incidents the respondents complained of in this decision. For her part Ms Henderson raised a number of complaints against Ms Wharton and Mr Toki. Three remain relevant to this appeal.

[9] The first complaint relevant for present purposes, is a sign the respondents erected on their property. Ms Henderson saw it on about 8 December 2009. The respondents believed Ms Henderson was filming or photographing their family including their daughter. The Judge was not satisfied that there was any such pattern of behaviour by Ms Henderson. Ms Wharton and Mr Toki erected a sign on their boundary fence, including the words “Anyone who captures images of our property/person/children or otherwise, whilst loitering by our boundary fence of Beazley Road, will be considered perverse and of a paedophilic nature, and shall be reported to the appropriate authorities. No exceptions”.

[10] The Judge found the respondents had erected the sign, that it was offensive to Ms Henderson and was left where it would be found by her or brought to her attention. As such it qualified as a specified act in accordance with s 4(1)(e) of the Act.

[11] Further, on a number of other occasions during December 2009, notices were placed in public buildings about the area which referred to the “Paponga parasite”. Again the Judge found that, given the wording of the notices, it was clear they were specifically directed at Ms Henderson, were offensive and were left where they would be found by Ms Henderson or brought to her attention. The Judge found the

respondents had been responsible for placing the notices and that placing such notices amounted to a specified act in accordance with s 4(1)(e).

[12] Finally, for present purposes, the Judge recorded that Ms Wharton and Mr Toki had written extensive letters to a large number of Government bodies and other organisations. However, he concluded that the correspondence was driven by the respondents’ belief they were being denied their rightful access to Beazley Road. Whilst on occasions some of the language used in the correspondence was intemperate and offensive the Judge considered that it was not part of a pattern of behaviour directed towards Ms Henderson, but rather was a pattern of conduct designed to ensure they had full and free access to Beazley Road as they believed was their right.

[13] In relation to the sign on the respondents’ property the Judge concluded that the respondents believed Ms Henderson was photographing their family, in particular their children, and the sign was an attempt to stop such photographing. He concluded the attempt was for a lawful purpose and protected pursuant to s 17 of the Act as it was done for a lawful purpose.

[14] As for the notices that were placed in public places, the Judge again considered that they were designed to indirectly persuade Ms Henderson to stop her behaviour. The Judge considered it was not part of a broader pattern of behaviour towards Ms Henderson but rather was a focussed attempt arising out of what the respondents believed Ms Henderson to be doing. The Judge was not satisfied that the respondents had engaged in a pattern of behaviour against Ms Henderson as was required by s 3 of the Act. He considered that the respondents’ focus was to obtain full and unrestricted access to Beazley Road.

[15] For those reasons the Judge declined Ms Henderson’s application for a

restraining order.

[16] Where there is a conflict between the parties on the evidence and credibility is in issue, the District Court Judge has had the advantage of seeing and hearing the witnesses give their evidence: Austin, Nichols & Co Inc v Stichting Lodestar;[1] Rea v International Insurance Brokers (Nelson Marlborough) Ltd[2] and also Rangatira Ltd

_{v Commissioner of Inland Revenue.}[3]

[17] In this case, however, it is not so much the Judge’s credibility findings that are challenged but rather his conclusion that, despite his findings the respondents were responsible for the erection of the sign, the placing of notices and the correspondence with the various Government and other agencies, the erection of a sign on their property was done for a lawful purpose and the placing of the notices in public buildings was not a sufficient pattern of behaviour to qualify under s 3 as harassment. Further the Judge considered the letters were not a pattern of behaviour directed against Ms Henderson, rather they were directed at ensuring their access to Beazley Road.

[18] To resolve the appeal it is necessary to consider the scheme of the Act. Section 9 provides that:

Any person who is being or has been harassed by another person may apply to the Court for a restraining order in respect of that other person.

The clear intent is to enable a person who is being harassed to have the harassment stopped. The object of the Act is set out in s 6:

(1) The object of this Act is to provide greater protection to victims of harassment by—

(a) Recognising that behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context; and

(b) Ensuring that there is adequate legal protection for all victims of harassment.

Subject to section 17, the Court may make a restraining order if it is satisfied that:

(a) The respondent has harassed or is harassing, the applicant; and

(b) The following requirements are met:

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

(ii) That behaviour would cause distress, or would threaten to cause distress, to a reasonable person in the applicant's particular circumstances; and

(iii) In all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order; and

(c) The making of an order is necessary to protect the applicant from further harassment.

[20] It is significant that before the Court can consider making a restraining order the applicant must satisfy all of the requirements in (a), (b) and (c). If the requirements are met the Court may make the restraining order. The wording of the section suggests the Court retains a discretion. However, if the Court was to come to the conclusion that making an order was necessary to protect the applicant from further harassment it is likely the discretion against making an order would only be exercised rarely.

[21] The first requirement under s 16(1)(a) is that the respondent has harassed or is harassing the applicant. Harassment is defined in s 3 of the Act as:

... 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.

[22] The focus turns to “specified act”. The phrase “specified act” is defined in

s 4 as:

Meaning of “specified act”

(1) For the purposes of this Act, a specified act, in relation to a person, means any of the following acts:

(a) Watching, loitering near, or preventing or hindering access to or from, that person's place of residence, business, employment, or any other place that the person frequents for any purpose:

(b) Following, stopping, or accosting that person:

(c) Entering, or interfering with, property in that person's possession:

(d) Making contact with that person (whether by telephone, correspondence, or in any other way):

(e) Giving offensive material to that person, or leaving it where it will be found by, given to, or brought to the attention of, that person:

(f) Acting in any other way—

(i) That causes that person (“person A”) to fear for his

or her safety; and

(ii) That would cause a reasonable person in person A's particular circumstances to fear for his or her safety.

[23] The nature of what is required for a specified act is to be taken from and is informed by the provisions of s 4(1). In the present case the focus is on s 4(1)(e).

[24] Finally and relevantly for this appeal s 17 provides a defence:

17. Defence to prove that specified acts done for lawful purpose

A specified act cannot be relied on to establish harassment for the purposes of section 16(1)(a) if the respondent proves that the specified act was done for a lawful purpose.

The correspondence with Government organisations and other agencies

[25] In this case, as the District Court Judge found, the respondents had written extensive letters to a large number of Government organisations and other agencies. That correspondence was driven by their belief they were being denied their rightful access to Beazley Road. The Judge found the correspondence was directed at obtaining access to Beazley Road. While the language was at times offensive about

Ms Henderson and her actions the Judge considered the correspondence was in pursuit of the respondents’ belief, which ultimately has been confirmed, that they were entitled to full and free access to Beazley Road.

[26] The Judge found the pattern of behaviour was not directed against Ms

Henderson, but rather was directed at the object of obtaining access to Beazley Road.

[27] However, as Mr Mark submits, while the respondents were entitled to write to the Government organisation and other agencies about access to Beazley Road in pursuit of their attempt to gain access, they were not entitled to include offensive material about Ms Henderson in the letters. By doing so they continued their pattern of behaviour directed against her.

The sign on the respondents’ property

[28] I turn to the issue of the sign. The Judge found that, while the sign was offensive and a specified act in terms of s 4(1)(e) as it would undoubtedly have come to the attention of Ms Henderson, it was done for a lawful purpose, namely in an attempt to stop Ms Henderson photographing them and their family, particularly their children.

[29] However, I am not able to accept that erecting an offensive sign on the edge of one’s property directed at a neighbour, can be justified on the basis it was erected to achieve a lawful purpose, namely to stop someone taking photographs. There are a number of other lawful and inoffensive ways to address such concerns. Further, the District Court Judge had found that the respondents were mistaken. He did not consider that Ms Henderson’s actions of photographing the respondents and their property was harassment or improper. The Judge concluded that he could not be satisfied there was any pattern of behaviour of Ms Henderson in photographing the family.

[30] I agree with Mr Mark’s submission based on Beadle v Allen[4] that the offensive comments directed at Ms Henderson on the sign which is the specified act, cannot reasonably be said to have been included on the sign to achieve a lawful purpose.

[31] I therefore accept the appellant’s submission that s 17 could not be applied to provide a defence to the erection of the offensive sign on the respondents’ property.

The notices

[32] Again in relation to the notices, the Judge accepted that, whilst offensive and specified acts in terms of s 4, leaving the notices in public areas was not part of a broader pattern of behaviour but rather was a focused attempt directed at preventing Ms Henderson from photographing the family.

[33] While s 3 required Ms Henderson, as an applicant for a restraining order, to establish the respondents had engaged in a pattern of behaviour directed against her, what is a pattern of behaviour is informed by the wording of s 3(1) which confirms that the pattern of behaviour must include doing a specified act on at least two separate occasions within a period of 12 months. Section 3(2)(a) confirms that to avoid any doubt specified acts may be the same type of specified act on each separate occasion, or different types of specified acts.

[34] It is difficult to see how it can be said that erecting the sign on 8 December and also leaving notices in public buildings around the same time did not amount to a pattern of behaviour for the purposes of s 3, without even considering the other matters Mr Mark referred to. A sufficiently repetitive pattern of behaviour is

established.[5]

[35] In summary to this point, I accept that the respondents cannot establish the erection of a sign was done for a lawful purpose. I also consider that the placing of

_{the notices directed at Ms Henderson and writing letters to Government and other}

agencies containing offensive material was a sufficient pattern of behaviour for the purposes of s 3. To that extent I differ from Judge de Ridder’s conclusions on those issues.

The remaining requirements of s 16

[36] However, that is not an end of the matter. As noted above, s 16 requires the Court to be satisfied that not only have the respondents harassed Ms Henderson but also that the requirements in (b) and (c) of s 16 are met.

[37] In the present case I accept that the offensive material would have caused Ms Henderson distress and that such behaviour would cause distress to a reasonable person in her circumstances. However, that is not enough. To support the making of a restraining order the Court must also be satisfied that, in all the circumstances the degree of distress caused justifies the making of the order and importantly, that the making of the order is necessary to protect the applicant, in this case, Ms Henderson, from further harassment.

[38] In relation to this last consideration, the cause of the problems between the parties is particularly relevant. It is apparent from the evidence before the District Court and the Judge’s conclusions in that Court that, as the Judge put it:

[35] ... the difficulties between the parties arose out of two conflicting and diametrically opposed views about rights of access to Beazley Road, and both parties’ actions were founded in their respective beliefs. ... Now that the legal status of the road has been confirmed, and the applicants’ rights of access, along with any other persons is confirmed, there is no need for any further conflict between the parties, and no need for a restraining order.

[39] The Judge therefore clearly came to the view that in terms of s 16(1)(c) it was not necessary to make a restraining order to protect Ms Henderson from further harassment. That was a conclusion open to the Judge on the evidence before him having seen and heard the witnesses. It is confirmed by the stance taken by Ms Wharton and Ms Toki to this appeal, namely that, as they have recorded, they accept the decision, they view the matter closed and wish to move on and lead their lives in a peaceful manner.

[40] It is also supported by the timing of events. Matters came to a head towards the end of 2009. The offensive sign and public notices were posted in December

2009. But on 22 March 2010 the Council rescinded the authority it had wrongly purported to give Ms Henderson. The respondents achieved the access they desired and which had been the source of the problems between the parties. There is no evidence of any matter of concern or anything that could amount to harassment occurring after that date. The incidents described by the appellant and Mr Gillard in their affidavits after that date are trivial.

Result

[41] For those reasons I conclude the Judge was right to find it was unnecessary to make an order to protect Ms Henderson from further harassment. The Judge was therefore right to decline Ms Henderson’s application for a restraining order.

_{[42] The appeal is dismissed. I make no order for costs.}

Venning J

---

[1] _{Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 at [13].}
[2] _{International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA).}

[3] Rangatira Ltd v Commissioner of Inland Revenue [1997] 1 NZLR 129 (PC).
[4] _{Beadle v Allen [2000] NZFLR 639.}
[5] W v W [2004] NZFLR 1048.