NZLII Home | Databases | WorldLII | Search | Feedback

High Court of New Zealand Decisions

You are here:  NZLII >> Databases >> High Court of New Zealand Decisions >> 2016 >> [2016] NZHC 2004

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Waxman v Crouch [2016] NZHC 2004 (29 August 2016)

Last Updated: 1 September 2016


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 she had sent to the landlord which is not derogatory of Mr Crouch.

(b) This led Ms Waxman to serve Mr Crouch with a trespass notice, on

18 June 2015. It was also served by registered post on 19 June 2015.

(c) There was a “confrontation” between them on 18 June 2015 in their shared driveway. Mr Crouch got out of his car and asked for an explanation from Ms Waxman who remained in her car. Ms Waxman says Mr Crouch was shouting and she found his demeanour threatening and aggressive. Mr Crouch says he was objecting to a near collision of their cars, he was at least 10 feet away from Ms Waxman’s car and he video-recorded the incident on his smartphone. Afterwards Ms Waxman called Police on 111. The Police took no action but did provide Ms Waxman with a link to Ministry of Justice guidance about applying for a restraining order under the Act.

(d) On 11 August 2015 Mr Crouch deposited a bag of junk mail, that had originally been in Ms Waxman’s letterbox and had been moved to his letterbox, in Ms Waxman’s driveway along with a note accusing Ms Waxman of putting it in his mail box. Ms Waxman denies doing so. She found the note threatening and accusatory.

(e) On 13 August 2015 Mr Crouch sent a formal letter to Ms Waxman entitled “Unacceptable Anti-Social Behaviour”, warning that he would seek a restraining order against her “if you do not persist from your ongoing belligerent and anti-social behaviour directed at me and my family”. Ms Waxman found the letter derogatory and threatening and says it caused her distress.

[5] On 19 August 2015 Ms Waxman applied for a restraining order against Mr Crouch. Ms Waxman says Mr Crouch’s behaviour has caused her “severe distress” and has made her fearful of leaving home on some occasions. She says she is scared of his retaliation to her seeking the restraining order.

[6] Mr Crouch opposed Ms Waxman’s application as entirely lacking in merit and argued each point. He provided letters of support from neighbours who were also upset with Ms Waxman. He suggests the application for a restraining order was in “revenge” for her mistaken belief that he was “the ring leader” in a successful neighbourhood attempt to get a Noise Abatement Notice by Auckland Council against Ms Waxman and her four dogs in July 2015. Ms Waxman denies that.

District Court decision

[7] Judge Sharp heard evidence from both parties and issued an oral judgment on

21 January 2016. She preferred the evidence of Mr Crouch as fair and honest.2 She found Ms Waxman’s evidence pedantic, argumentative, “exaggerative” and “just plain difficult”.3 She found that Mr Crouch had not committed any “specified act” under the Act but found that “Ms Waxman has been the person who has been harassing Mr Crouch”.4

[8] Judge Sharp doubted the email contact was offensive material and did not consider it would have caused distress to a reasonable person in her circumstances. She did not consider the driveway confrontation was threatening and considered neither it nor the placement of the bag of junk mail on Ms Waxman’s driveway a specified act.5 She did not consider the 13 August 2015 letter to be threatening or a

specified act.6 She found Ms Waxman was honest in her belief that Mr Crouch had

been harassing her but that he had not been and there was no pattern of harassing behaviour.7




2 Waxman judgment, above n 1, at [19].

3 At [20].

4 At [22].

5 At [26]-[28].

6 At [29].

7 At [31].

[9] Judge Sharp suggested that Ms Waxman seek professional assistance if she sees that there has been harassment because the judge could not see, “for the life of me, that her views are founded in fact”.8 In any event, the judge did not consider Mr Crouch’s behaviour would cause, or threaten to cause, distress to a reasonable person in Ms Waxman’s circumstances. She also referred to some history of bad feeling in the neighbourhood. She refused to grant the restraining order Ms Waxman sought. She even considered the application, and Ms Waxman’s attitude towards Mr Crouch, to be vexatious. She invited an application for costs on an indemnity basis which she subsequently granted.9

The law

The Harassment Act

[10] Section 6 of the Act sets out its object which must, according to s 6(3) guide any court who exercises a power conferred under it. Under s 6(1) the object is specified:

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.

[11] According to s 6(2), the Act aims to achieve its object by:

(a) making the most serious types of harassment criminal offences:

(b) empowering the court to make orders to protect victims of harassment who are not covered by domestic violence legislation:

(c) providing effective sanctions for breaches of the criminal and civil law relating to harassment.

[12] Part 3 of the Act governs “civil harassment”. In particular s 9 empowers any

person being harassed by another person (unless they have been in a domestic


8 At [31].

9 At [43](b) and Costs judgment, above n 1.

relationship) to apply for a restraining order. Section 16 provides the court with power to make a restraining order if it is “satisfied” of certain matters. As Toogood J has stated in Munro v Collection House (NZ) Ltd five steps are involved:10

• First, to determine whether the respondent has harassed, or is harassing, the applicant;11

• Second, to find whether the behaviour in respect of which the application is made causes the applicant distress, or threatens to do so;12

• Third, to make the mixed objective/subjective assessment of whether that behaviour would cause, or threaten to cause, distress to a reasonable person in the applicant’s particular circumstances;13

• Fourth, to decide whether, in all the circumstances, the degree of distress caused or threatened by that behaviour justifies the making of an order;14 and

• Fifth, to decide whether the making of an order is necessary to protect the applicant from further harassment.15

[13] Section 3(1) defines the meaning of harassment for the purposes of the 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.

[14] The specified acts so required may be of the same or different types (s 3(2(a)) and need not be done to the same person as long as the pattern of behaviour is directed against the same person (s 3(2)(b)).

[15] A “specified act” is defined in s 4(1) to mean 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:


10 Munro v Collection House (NZ) Ltd HC Auckland CIV-2010-404-8473, 10 June 2011.

11 Sections 16(1)(a) and 17.

12 Section 16(1)(b)(i).

13 Section 16(1)(b)(ii).

14 Section 16(1)(b)(iii).

15 Section 16(1)(c).

(d) making contact with that person (whether by telephone, correspondence, electronic communication, 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:

(ea) giving offensive material to a person by placing the material in any electronic media where it is likely that it will be seen by, 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.


[16] Section 17 provides a defence. A specified act cannot be relied upon to establish harassment for the purposes of s 16 if the respondent proves it was done for a lawful purpose.

[17] Section 34(1) empowers a court to dismiss proceedings if it is satisfied that they are “frivolous or vexatious or an abuse of the procedure of the court”. If a court is satisfied a person “has persistently instituted vexatious proceedings” under the Act it may prohibit that person from commencing further proceedings without leave of the court.

When to issue restraining orders

[18] The definition of “specified act” under s 4(1) is very broad. In particular, the definition under s 4(1)(d) includes “making contact with that person (whether by telephone, correspondence, electronic communication, or in any other way)”. Construed literally, and in isolation, that would mean that sending an email, note or letter is a specified act irrespective of its content. But as Ellis J pointed out in Mooney v Wilkinson the wording of s 4(1)(f), “acting in any other way” that causes fear for safety, colours the interpretation of the rest of s 4: “In short, what is potentially restrained by the Act is (repeated) conduct of a kind that causes the

person at whom it is directed to fear reasonably for his or her safety.”16 This

interpretation is consistent with the scheme and purpose of the Act.

[19] In addition, the occurrence of two or more specified acts is a necessary, but not sufficient, condition for conduct to constitute “harassment” under s 3. The additional elements are a “pattern of behaviour” which must be “directed against” a person. The overall definition of harassment must be interpreted in light of both its text but also the purpose of the Act set out in s 6. As Toogood J stated in Munro v Collection House (NZ) Ltd “for example, merely stopping, or making contact with, a person twice within a period of 12 months would not usually be sufficient to constitute harassment which satisfies the first criterion under s 16(1) for the making

of a restraining order”.17

[20] The first of the five steps in making a restraining order requires a determination that the respondent has harassed, or is harassing, the applicant in terms of the Act. Putting together Ellis J’s interpretation of specified act and Toogood J’s interpretation of harassment, this 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.

[21] In addition, the New Zealand Bill of Rights Act 1990 applies to acts done by the judiciary under s 3. So the Bill of Rights applies to the process of deciding whether to issue restraining orders under the Act. Relevantly here, the right to freedom of expression in s 14 of the Bill of Rights is particularly pertinent to making a restraining order based on, or directed against, communication. That section provides that “[e]veryone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. That right may only be subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” under s 5. And s 6 requires that, wherever an enactment can be given a meaning that is consistent with the rights and freedoms in the Bill of Rights, “that meaning shall be preferred to any other meaning”.

[22] I consider the Bill of Rights supports and reinforces Ellis J’s and Toogood J’s interpretations of “harassment” for the purposes of a court’s first step in deciding whether to issue a restraining order under the Act. I also consider the right to

freedom of expression, or any other rights and freedoms under the Bill of Rights Act relevant in the circumstances, should be explicitly considered in steps four and five of a court’s decision process. In step four that would involve considering the relevant right or freedom as part of the “all the circumstances” relevant to whether the degree of distress justifies making the order. In step five it would involve considering the relevant right or freedom in deciding whether making the order is “necessary” to protect the applicant from further harassment.

[23] As s 6(1)(a) makes clear, behaviour that may appear innocent or trivial when viewed in isolation may amount to harassment when viewed in context. So the context of alleged harassment is crucial to a court deciding whether the conditions for a restraining order are met. Those conditions must involve a pattern of repeated acts directed against a person that causes that person to fear reasonably for his or her safety, paying due regard to the rights and freedoms guaranteed under the Bill of Rights.

Approach to appeal

[24] Mr Templeton, for Ms Waxman, submits that Judge Sharp’s judgment suffered from specific defects of procedural unfairness, a lack of impartiality and unfounded findings of vexatiousness which mean the judgment should be set aside. To constitute an error of law justifying setting aside a judgment such an error must have had a material effect on its outcome.18

[25] More generally, s 34 of the Act provides for a general right of appeal of a District Court decision under the Act, with reference to the usual general right of appeal under s 72 of the District Courts Act 1947. Under s 75 of the District Courts Act such an appeal “must be by way of rehearing”.

[26] As the High Court has found previously,19 the Supreme Court’s approach in

Austin, Nichols applies to appeals of decisions on restraining orders under the Act.20

It accords with Parliament’s intent in providing for appeal by way of rehearing that

18 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA).

19 Clarke v Watts [2014] NZHC 822 at [22]; Mooney v Wilkinson [2015] NZHC 2488 at [9]- [10].

20 Austin, Nichols & Co In v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]- [5]

and [16].

the High Court be required to come to its own decision on the merits of an appeal of a decision under the Harassment Act in accordance with Austin, Nichols. The appellant is entitled to judgment in accordance with the opinion of the appellate court which must not defer to the court below though it may take into account any the advantage the lower court had in assessing the credibility of witnesses.21 This is not the sort of case that attracts the more restrictive approach to the scope of appeal discussed by the Supreme Court in Kacem v Bashir as an exception to the Austin, Nichols approach.22

Application of the law to the facts

The merits of the case

[27] Judge Sharp had the advantage of hearing the witnesses in this case directly. But I do not consider the evidence before me, including the notes of evidence from that hearing, establishes the basis for any different outcome on the question of whether a restraining order should be issued. There was un-neighbourly behaviour on both sides. But Mr Crouch’s actions do not amount to harassment when viewed in context as is required.

[28] I agree with Judge Sharp that the trespass notice issued against Mr Crouch, the 18 June incident, the junk mail and the 13 August 2015 formal letter do not qualify as specified acts capable of constituting harassment under the Act in terms of the first step of deciding whether to issue a restraining order:

(a) The trespass notice is not Mr Crouch’s act.

(b) Ms Waxman’s account of the 18 June 2015 incident in the driveway involved Mr Crouch shouting at her. But the context is that he believed he had just avoided a car accident between them. He was some way away from Ms Waxman’s car which she was inside. And he was video-recording the incident. That hardly indicates there was any reasonable fear for the safety of Ms Waxman or her daughter.


(c)
The note with the junk mail might reasonably be regarded as irritating but nothing more.
(d)
The 13 August 2015 letter, while robust, resembles a standard
lawyer’s letter in tone. I do not consider it would cause a reasonable


person to fear for his or her safety.
[29]
The
email of 16 June 2015 is offensive in its characterisation of

Ms Waxman’s mental state. It describes her behaviour as “strange, obsessive and misguided”. It details the views of Mr Crouch, and an unnamed “mental health practitioner”, of Ms Waxman as “suffering from some form of delusional psychosis, with possibly psychopathic tendencies”. It states “you really are the most disturbed person we have come across and we have genuine fears for our safety and sanity as you carry on your misguided campaign against your neighbours”. It impugns Ms Waxman’s professional competence as a doctor, her treatment of her dogs and her treatment of her children.

[30] If there were other specified acts rising to the same level there might be a basis for considering there existed a pattern of behaviour directed against Ms Waxman which could satisfy the definition of harassment. As it is, there is not. This accords with Judge Sharp’s judgment.23

[31] I accept, as did Judge Sharp, that Ms Waxman’s belief that Mr Crouch was harassing her was honestly held and Mr Crouch’s behaviour clearly caused her distress.24 But, even if the first two steps were satisfied, I do not consider the pattern of behaviour would cause distress to a reasonable person in Ms Waxman’s circumstances, in terms of step three, let alone distress of such a degree as to justify a restraining order in step four. And I agree with Judge Sharp that it is not necessary to protect Ms Waxman from further harassment.

[32] Accordingly, I do not consider that the merits of the case justify overturning

Judge Sharp’s decision on appeal.

Procedural challenges

[33] Mr Templeton, for Ms Waxman, also complains of five specific aspects of procedural unfairness in the District Court’s process and of a lack of impartiality and unfairness. These complaints, rather in the nature of grounds of judicial review, amount to submissions that Judge Sharp’s decision should be overturned on the basis of error of law. I do not agree that any of these arguments justifies a different decision on the merits of the case.

[34] First, Mr Templeton submits Mr Crouch’s non-compliance with timetabling orders was procedurally unfair. In particular he complains about the late filing of Mr Manning’s affidavit two days after the court timetable and a day before the hearing on 21 January 2016. Mr Templeton also says Mr Manning’s affidavit should not have been admitted because it was not sworn and it is not clear it was witnessed at the time. He submits the Manning affidavit “changed the goalposts” in the hearing and introduced the notion of vexatiousness. At the hearing Ms Waxman, representing herself, asked the judge whether the unsworn affidavit was “valid to the Court for review” as a procedural matter. Judge Sharp advised that, if Ms Waxman was taking the point, she would offer her an adjournment if Ms Waxman considered she was prejudiced. Ms Waxman confirmed that the content of the affidavit was not a surprise and did not object to proceeding, saying “[t]hat’s fine, I have no issue Ma’am”. The context was that the hearing followed three adjournments occasioned by Mr Crouch.

[35] I do not consider the failure to insist on a fourth adjournment when Ms Waxman did not ask for one, despite being told it was an option, or the late filing of Mr Manning’s affidavit, was procedural unfairness constituting an error of law that justifies a successful appeal. I find:

(a) Mr Manning’s affidavit is signed on 21 December 2015 as being sworn though it is not clear it was signed before Constable Martin at the Newmarket Police Station who certified it as a true copy and signed it as “sighted and witnessed”.

(b) Judge Sharp stated the views of neighbours “aided” her credibility findings which she was required to make in order to determine the application.25 But the reasoning that led to her decision on the application did not turn on those findings. As Mr Templeton responsibly acknowledged, the views of the neighbours are not relevant to whether instances of behaviour qualify legally as specified acts. My judgment on appeal does not rely on those views.

(c) Ms Waxman’s response when advised she would be offered an adjournment indicates she wished to continue with the hearing despite the late filing.

[36] Second, Mr Templeton submits Ms Waxman was prejudiced by not being able to file reply affidavits due to Mr Crouch’s delays. However, as Mr Simmonds submitted, Ms Waxman had not sought to file reply affidavits. She confirmed to the Court that she did not object to the Manning affidavit. She was not taken by surprise by its contents and she was willing to proceed with the hearing. Again, my decision on appeal does not depend on this evidence which is largely irrelevant to whether a restraining order should be granted. This does not amount to an error of law.

[37] Third, Mr Templeton submits that allowing unsworn evidence to be put to Ms Waxman in cross-examination without prior notice was unfair. This was a letter from another neighbour Mr Hewitt which characterised Ms Waxman as vexatious. Counsel for Mr Crouch indicated that it had not been filed as an affidavit as they had missed the timing. There is now no general prohibition on the use of an inadmissible document in cross-examining a witness and s 90(3) of the Evidence Act 2006 envisages it. The only limit is that, by virtue of the definition of “offer evidence” in

s 4, a party is not allowed to elicit inadmissible evidence by cross-examining.26 Here

the cross-examination does appear to have been intended to elicit inadmissible evidence. However, as Ms Waxman responded fully to the evidence and it is not relevant to the issuance of a restraining order, there is no error of law sufficient to

justify a successful appeal of that decision.

25 At [17].

  1. Richard Mahoney, Elisabeth McDonald, Scott Optican, Yvette Tinsley Evidence Act 2000: Act and Analysis (3rd ed, Thomson Reuters, Wellington, 2014) re s 90.

[38] Fourth, Mr Templeton submits that Mr Crouch should not have been allowed to make unchallenged sworn statements after re-examination without being cross- examined. He says that was prejudicial because of the reference to dysfunctional family behaviour. I consider this procedure was irregular. But both of the parties were given the same opportunity. Even though Ms Waxman was self-represented and entitled to latitude in giving a statement, the Judge could reasonably have considered it would be unfair not to allow Mr Crouch to do the same. And I do not consider the matters raised by Mr Crouch in this portion of his evidence added materially to his case or influenced the judge’s decision. This is not an error of law.

[39] Fifth, Mr Templeton submits that evidence from one of Mr Crouch’s witnesses, an affidavit by Mr Olde, was admitted by the Judge but was not made available for cross-examination. Apparently he was otherwise engaged on the day, having agreed to be available. I agree this should not have happened. But I do not agree that it materially prejudiced Ms Waxman in relation to the restraining order decision. Ms Waxman’s evidence clearly rejected the evidence in Mr Olde’s affidavit and, as explained above, Judge Sharp’s decision on the restraining order did not turn on the opinion of the neighbours. Neither does mine on appeal.

[40] Sixth, Mr Templeton submits that Judge Sharp’s persistent questioning and interventions during Ms Waxman’s cross-examination of Mr Crouch demonstrated a lack of impartiality and resulted in prejudice and an unfair hearing. I agree that the tone of the Judge was sharp at times. But she was managing a hearing involving two very motivated parties, one of whom was, in person, cross-examining the other. In that context, apart from one comment, I consider the Judge’s interventions were aimed at ensuring Ms Waxman’s questions were relevant and not inappropriate.

[41] The one exception is a comment by the Judge that “You’d need a psychiatrist quite frankly to give evidence about your conduct”. In isolation that appears to be a gratuitous personal swipe at Ms Waxman. The context was that the Judge had observed Ms Waxman was asking Mr Crouch to give his opinion about her behaviour. Even in context it was an unnecessary and inappropriate comment. But I do not consider this comment, either on its own or together with the other matters complained of, demonstrated bias or would create, in the mind of a reasonable lay

observer a belief that a fair hearing had not been held. It does not constitute an error of law.

Vexatiousness and indemnity costs

[42] Finally, Mr Templeton submits Judge Sharp did not have the power to declare Ms Waxman vexatious under s 32 of the Act and he challenges the order which invited an application for indemnity costs. He says there are a number of factors in the judgment which do not suggest the application lacked any reasonable ground. Mr Simmonds, for Mr Crouch, submits the judge did not purport to make findings under s 32 (2) or (3) of the Act and that it was open to her to find the proceedings were vexatious under s 32(1).

[43] The relevant part of Judge Sharp’s judgment is her conclusion, in which she found Ms Waxman had not proved, on the balance of probabilities, Mr Crouch has harassed her “which means that I cannot and will not grant a restraining order to her against him”.27 After indicating that, even if she was wrong, she considered no order necessary and explaining why, the last three paragraphs of her judgment stated:

[40] On the other hand, the Court does have the power under s 32 of the Harassment Act to dismiss the proceedings before it under this Act if it is satisfied that they are frivolous or vexatious or abusive to the procedure of the Court. I consider that this application is vexatious.

[41] I consider that Ms Waxman’s attitude towards Mr Crouch is vexatious and I consider that in fact she is the one doing the harassing. I would strongly advise her to desist and if she feels unable to keep to herself and have no contact with Mr Crouch amongst other neighbours, that she should consider moving away to an area where there will not be such problems.

[42] The application is dismissed.

[44] In an addendum to the judgment Judge Sharp ordered, among other things, “the application for cost that is made by Mr Simmonds will be on the basis of indemnity”. After receiving submissions from both parties on costs, in her costs judgment of 2 June 2016, Judge Sharp cited her finding that Ms Waxman acted

vexatiously in commencing the proceeding and that it was Ms Waxman who




27 Waxman judgment, above n 1, at [37].

harassed Mr Crouch and not the other way around.28 On that basis, she considered this to be one of those rare situations where an award of indemnity costs under r 14.6(4) of the District Court Rules 2014 was justified rather than costs on a 2B basis. She awarded costs of $7,000 plus GST against Ms Waxman in favour of Mr Crouch.29 The costs judgment is not under appeal but the findings of vexatiousness, which are the basis for the indemnity costs award, are appealed.

[45] I consider the text of her judgment indicates Judge Sharp dismissed the application on its merits. It is not clear to me whether she also dismissed the proceedings as vexatious under s 32. But she certainly found the application to be vexatious and found Ms Waxman’s attitude toward Mr Crouch was vexatious. That was in the context of having discussed s 32 as empowering her to dismiss the

proceedings if satisfied they are vexatious.30

[46] I am troubled by the finding that the application was vexatious and by the subsequent equation of that finding with the award of indemnity costs. The threshold for the award of indemnity costs is a high one. In Bradbury v Westpac Banking Corporation the Court of Appeal characterises indemnity costs as “exceptional and require exceptionally bad behaviour”, which is why “to justify an order for such costs the misconduct must be ‘flagrant’”.31 The Court endorsed the following, non- exhaustive, circumstances in which indemnity costs have been ordered:32

(a) the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;

(b) particular misconduct that causes loss of time to the court and to other parties;

(c) commencing or continuing proceedings for some ulterior motive;

(d) doing so in wilful disregard of known facts or clearly established law;

28 Costs judgment, above n 1, at [5]-[7].

29 At [7].

30 At [40] and [41].

31 Bradbury v Westpac Banking Corporation [2009] NZCA 234; [2009] 3 NZLR 400 (CA) at [28].

32 At [29] citing Hedley v Kiwi Co-operative Dairies Ltd (2002) 16 PRNZ 694 (HC).

(e) making allegations which ought never to have been made or unduly prolonging a case by groundless contentions, summarised in French J’s “hopeless case” test.

[47] Here I have found that, if there were other specified acts rising to the same level as Mr Crouch’s email of 16 June 2016, there might be a basis for considering there existed a pattern of behaviour directed against Ms Waxman causing her to fear reasonably for her safety which could satisfy the definition of harassment. Judge Sharp’s treatment of that email is consistent with that.33 These findings are not consistent with commencing the proceedings for an ulterior motive. Indeed, Ms Waxman was advised of the option of doing so by the Police. Neither are they

consistent with the submission that this was a “hopeless case”.

[48] Importantly, Judge Sharp and I both accept that Ms Waxman’s belief that Mr Crouch was harassing her was honestly held and Mr Crouch’s behaviour clearly caused her distress.34 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. As such, I do not see how Ms Waxman can be said to have acted vexatiously to such an

exceptionally bad, or flagrant level, as to have indemnity costs awarded against her.

[49] The indemnity costs order is not the subject of the appeal. But that order clearly rests entirely on the finding of vexatiousness in the judgment under appeal and that finding is appealed. The costs decision is supplemental to the substantive decision.35 Rule 20.19(6) of the High Court Rules empowers me, on an appeal, to exercise the power to make any order I think just, including any order as to costs (r 20.19(1)(c)) in favour of a party even if the party did not appeal against the

decision concerned. So, rather than prolong these proceedings further, I quash the

award of indemnity costs and substitute an order for costs on a 2B basis.






33 Waxman judgment at [24].

34 Waxman judgment, above n 1, at [24] and [31].

35 Wilson v Selwyn District Court (2004) 17 PRNZ 461 (HC).

Result

[50] I decline the appeal regarding the application for restraining orders. I uphold the appeal regarding the finding that Ms Waxman’s application for a restraining order was vexatious. I quash the award of indemnity costs for the District Court proceedings and substitute an order for costs against Ms Waxman on a 2B basis. I am inclined to let costs lie where they fall for this appeal as the parties enjoyed a relatively equal measure of success. But if the parties cannot agree they have leave to file memoranda.





Palmer J


NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2016/2004.html