Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
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].
[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