Rashbrooke v Schmuck [2013] NZHC 2041 (13 August 2013)

Last Updated: 26 August 2013

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2013-488-365 [2013] NZHC 2041

BETWEEN MICHAEL RASHBROOKE Appellant

AND DOUGLAS CRAIG SCHMUCK Respondent

Hearing: 12 August 2013

Counsel: D J Watkins for Appellant

A L Hyndman for Respondent

Judgment: 13 August 2013

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 13 August 2013 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Henderson Reeves Connell Rishworth, Whangarei

Counsel:

_{D J Watkins, Kaikohe}

RASHBROOKE v SCHMUCK [2013] NZHC 2041 [13 August 2013]

The appeal

[1] Mr Schmuck brought proceedings in the District Court at Kaikohe against Mr

Rashbrooke, under the Harassment Act 1997 (the Act). In a judgment delivered on

18 February 2013, Judge de Ridder dismissed the application.1 However, he made no order as to costs in favour of Mr Rashbrooke.

[2] Mr Rashbrooke applies for an order that the appeal be brought out of time. If an extension were granted, he appeals against the Judge’s refusal to order costs. Counsel agree that there is jurisdiction to entertain an appeal on those grounds, under s 34(1AA)(a) of the Act.

Background

[3] For many years, Mr Rashbrooke and Mr Schmuck have been embroiled in disputes about whether Mr Schmuck is entitled to carry on a boatyard business on, what Mr Rashbrooke contends is, reserve land. The business is adjacent to the Walls Bay Esplanade Reserve. A slipway runs from Mr Schmuck’s land across the reserve to enable boats to be taken to and from the water.

[4] Mr Rashbrooke’s interest is as a member of Bay of Islands Coastal Watchdog Inc, a body that seeks to maintain and preserve the reserve area. The legal status of the area over which the slipway runs has been the subject of consideration at territorial authority level, in the Environment Court and most recently in Parliament.

[5] Mr Schmuck has issued a number of proceedings against Mr Rashbrooke, under the Act, going back (at least) to 2005.2 In the present proceeding, Mr Schmuck alleged that Mr Rashbrooke had committed four acts that, together, amounted to “harassment”. The term “harassment” is defined by s 3(1) of the Act:3

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

1 _{Schmuck v Rashbrooke DC Kaikohe CIV 2012-027-108, 18 February 2013.}

2. Schmuck v Rashbrooke DC Kaikohe CIV 2003-027-365, 24 June 2005 (Judge Hole). That order expired on 30 April 2006: para [18].

3 The term “specified act”, to which the s 3(1) definition refers, is set out at para [10] below.

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 separate occasion, as long as the pattern of behaviour is directed against the same person.

[6] On each of the four occasions, Mr Rashbrooke photographed either Mr Schmuck or the reserve and slipway. Judge de Ridder found that all but one of the acts did not constitute a “specified act” for the purpose of constituting “harassment”. The fact that there was only one act that came into that category meant that the definition of “harassment” had not been met, and the application had to be dismissed.

Analysis

[7] In the present case, in refusing to make an order for costs in favour of Mr

Rashbrooke, Judge de Ridder said:

[33] I am not satisfied that the grounds for the making of a restraining order are made out and accordingly the application is dismissed. In all the circumstances, especially considering Mr Rashbrooke again taking photographs when there was no need, I do not propose to make any order for costs.

(emphasis added)

[8] The one occasion on which the Judge found a “specified act” occurred on 29

May 2012. On that occasion, Mr Rashbrooke observed a boat parked on the slipway, while work was being carried out on it. Mr Rashbrooke took a photograph of the work. Mr Schmuck, observing Mr Rashbrooke doing so, approached Mr Rashbrooke in an attempt to take away the camera. A physical confrontation ensued. A complaint was lodged with the Police and Mr Schmuck was warned about his

_behaviour.4

4 Schmuck v Rashbrooke DC Kaikohe CIV 2012-027-108, 18 February 2013 at paras [19] and

[20].

[9] The Judge, when discussing the 29 May 2012 incident and what followed, said:

[28] The photograph taken by Mr Rashbrooke on 29 May of the boat on the slipway clearly constitutes watching Mr Schmuck’s place of business. Whatever the exact extent of Mr Schmuck’s rights are in regard to access over the reserve area, there can be no dispute that he has the right to use the slipway between his boatyard and the shoreline. The nub of the issue appears to be Mr Rashbrooke’s assertion that, although Mr Schmuck has the right to use the slipway to move boats to and from the water, he is not permitted to allow work to be carried out on boats whilst they are on that part of the slipway that is within the reserve area. It is clear from the voluminous documents filed in respect of this matter that this has been an ongoing bone of contention for a long period of time. Clearly Mr Rashbrooke is determined to maintain close scrutiny of the reserve area in order to observe and record any activity that, in his view, breaches provisions relating to the use of reserve land. This is again a further instance of him clearly watching Mr Schmuck’s place of business.

[29] After the physical confrontation on 29 May Mr Rashbrooke again went to the reserve area the next day to take photographs to assist in pursuing a complaint to the police about Mr Schmuck’s behaviour the day before. It is clear that a complaint was made to the police. I am not satisfied that the evidence establishes that on this occasion Mr Rashbrooke was watching Mr Schmuck’s place of business. Rather, his intent appears to have been to record the general area where he alleged that he was assaulted by Mr Schmuck. In those circumstances, even if his conduct could be said to have amounted to watching Mr Schmuck’s place of business, in my view he was doing so for lawful purpose, and thus cannot be relied upon to establish harassment as provided for by s 17 of the Act.

...

[32] The next activity relied upon all takes place in a short period of time between 25 and 30 May. I am not satisfied that the incidents over those three days constitute a pattern of behaviour. Notwithstanding that, Mr Rashbrooke’s taking of further photographs on 29 May was clearly unnecessarily provocative. Especially given he had previously been the subject of a restraining order involving taking photographs of Mr Schmuck’s place of business, and on 23 February 2011 was a party to an agreement recorded in the District Court which included a condition not to bring a camera to the Walls Bay reserve or take any photographs in that reserve. The issues surrounding this reserve and the differing perspectives on that of Mr Schmuck and Mr Rashbrooke are very well established. Ultimately, presumably there will be some definitive resolution of all outstanding legal issues surrounding the extent and nature of Mr Schmuck’s rights in relation to use of the reserve area. In the meantime, there is no need whatsoever for Mr Rashbrooke to take photographs of Mr Schmuck’s place of business or of boats positioned on the slipway.

[10] Mr Rashbrooke is concerned that the Judge found that he was not acting for a

“lawful purpose”,5 in taking the view that a “specified act” had occurred on 29 May

2012. The definition of “specified act” is contained in s 4(1) of the Act. Relevantly, it provides:

4 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, ..., that person's place of ... business ...: (emphasis added)

[11] It appears, from the passages in Judge de Ridder’s judgment to which I have referred6 that the Judge did not regard Mr Rashbrooke as acting for a lawful purpose on the occasion that he photographed the boat on the slipway, on 29 May 2012.7 The Judge was satisfied that Mr Rashbrooke was “watching Mr Schmuck’s place of business”, for the purposes of s 4(1)(a) of the Act.

[12] That the Judge was alive to the “lawful purpose” defence is clear from the way in which he dealt with photographs taken the day after the altercation. The Judge found that Mr Rashbrooke was entitled to rely upon s 17 of the Act, a defence relating to “lawful purpose”, in relation to the time Mr Rashbrooke took photographs to assist pursuing a complaint to the Police about the physical confrontation that occurred on 29 May.8 Section 17 provides:

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.

[13] Judge de Ridder characterised Mr Rashbrooke’s photography of 29 May 2012

as “clearly unnecessarily provocative”.9 He was also concerned about the nature of the continuing behaviour, particularly against the background of a previous

5 _{Harassment Act 1997, s 17, set out at para [12] below.}

6 _{See para [9] above.}

7. Schmuck v Rashbrooke DC Kaikohe CIV 2012-027-108, 18 February 2013 at para [28], set out at para [10] above.

8 _{Ibid, at para [29].}

9 Ibid, at para [32].

restraining order and an agreement not to take a camera to the Walls Bay Reserve or to take any photographs in the reserve, recorded by a District Court Judge on 23

February 2011.

[14] The decision of the District Court of 23 February 2011 to which Judge de Ridder referred dealt with an earlier application by Mr Schmuck for a restraining order, under the Act. The application was resolved on the basis of an agreement, recorded in a Minute issued by Judge Rota:

[2] The parties mutually agree also that on the expiry of six months from 23 February 2011, should no concern be expressed to this court by either party as to the compliance of either of them with the terms of their agreement now made, the substantive application for restraining order to which their agreement relates is to be formally withdrawn.

[3] Their mutual agreement is, tht:

(a) The respondent will not bring a camera to the [Walls] Bay reserve at Opua, and will not take any photos in or of that reserve.

(b) The respondent will not exercise his rights to access the [Walls] Bay reserve or adjoining roads for the purpose of gathering any evidence regarding boatyard activities on that reserve; and

(c) The applicant will allow the respondent the use of his wharf and structures with prior permission.

[15] After the period of six months had expired, Mr Schmuck found it necessary, again, to seek a restraining order. He attempted to reactivate the application resolved by the mutual agreement. However, in a judgment given on 21 November 2011, Judge de Ridder found that, due to effluxion of time, the application was no longer extant. In doing so, he did not say anything to suggest that the “mutual agreement” was no longer in force.

[16] With respect to Judge de Ridder, I consider that the photography that occurred on 29 May 2012 was not so dissimilar from that which occurred the following day to put the conduct beyond the s 17 protection. Although, in a strict sense, Mr Rashbrooke was watching Mr Schmuck’s business, his purpose was to obtain further evidence about (what he regarded as) Mr Schmuck’s unlawful activity. Taking photographs from a public area will not normally be regarded as untoward.

In the context of a judgment dealing with search and seizure issues, three Judges of the Supreme Court10 in Hamed v R held:11

[167] ... People in the community do not expect to be free from the observation of others, including law enforcement officers, in open public spaces such as a roadway or other community-owned land like a park, nor would any such expectation be objectively reasonable. The position may not be the same, however, if the video surveillance of the public space involves the use of equipment which captures images not able to be seen by the naked eye, such as the use of infra-red imaging.

Although not completely analogous, those observations do lend support to the proposition that photography in a public place is generally lawful, though in limited circumstances the photography may be sufficiently intrusive to fall within s 4(1)(a).

[17] While I lean towards lawful conduct on 29 May 2012, there remain questions about standard of proof that I do not regard myself as being in as good a position as Judge de Ridder to assess. He had the advantage of seeing and hearing the witnesses. The onus of proof was on Mr Rashbrooke to demonstrate a “lawful purpose”.

[18] I do not need to express a concluded view on the issue because there were distinct grounds on which the Judge was entitled to refuse costs. In particular:

(a) Mr Rashbrooke was party to an agreement not to bring a camera to the reserve or to take any photographs there.

(b) The agreement recorded by Judge Rota on 23 February 201112

remained in force.

(c) Mr Rashbrooke had been the subject of a previous restraining order

involving the taking of photographs of Mr Schmuck’s place of

_business.13

10 _{Blanchard J, with whom McGrath and Gault JJ appear to have agreed on this point.}

11 _{Hamed v R [2012] 2 NZLR 305 (SC).}

12 _{See para [14] above.}

13. Schmuck v Rashbrooke DC Kaikohe CIV 2003-027-365, 24 June 2005 (Judge Hole). That order expired on 30 April 2006: para [18].

(d) The photography on 29 May was “clearly unnecessarily provocative”,

as Judge de Ridder observed.14

(e) There was no need for further photographs to be taken for evidential purposes. The authorities were well aware of Mr Rashbrooke’s views and what was going on, both on the slipway and in terms of the legal dispute.

[19] I consider, in those circumstances, that a refusal of costs was justified.

Result

[20] For those reasons, I extend the time for appealing but dismiss the appeal.

[21] Mr Schmuck is entitled to costs on the appeal. They are awarded on a 2B

basis, together with reasonable disbursements. Both costs and disbursements are to be fixed by the Registrar.

_{Delivered at 4.00pm on 13 August 2013}

P R Heath J

14. Schmuck v Rashbrooke DC Kaikohe CIV 2012-027-108, 18 February 2013 at para [32], set out at para [9] above.