Paul Garde v MD

District Court of NSW|2009-12-10

Appeal dismissed. DECISION: 2 year APVO with the mandatory A, B & C orders imposed by the learned magistrate confirmed. Costs of appeal as assessed to be paid by appellant. Orders of court costs as imposed by the learned magistrate confirmed. The two orders, now lo longer having relevance, imposed by the learned magistrate quashed:

CATCHWORDS: Criminal Law - Local Court Appeal to District Court - against Apprehended Personal Violence Order - objective and aims of domestic violence legislation - scope of appellate jurisdiction - rehearing - not to abe on basis law and events are frozen to time original application heard - evidence rejected at first instance may be admissible on appeal - Local Court judgment can be received at appeal hearing - what constitutes intimidation - publications may constitute intimidation - findings of intimidation - fear and reasonable grounds for fearing.

Edwards v Noble (1971) 125 CLR 298 at E304 Camilleri Stock Feeds Ply v EPA (1993) 32 NSWLR 683 at p 689 Gianoutsos v Glykis (2006) 65 NSWLR 539 at 544 at [31] CASES CITED: Charara v The Queen [2006] NSWCCA 244 Ex Parte Currie v Dempsey (1968) 70 SR 1 at p10 Queen v Apostolides (1984) 154 CLR 563 Fox v Percy (2003) 214 CLR 118

PARTIES: Paul Garde MD

COUNSEL: Respondant: M England Appellant: D Hand

JUDGMENT

The Crimes (Domestic and Personal Violence) Act 2007 (the Act) was enacted to protect persons from domestic and personal violence. Listed among the objects for the Act is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. The Act aims to achieve that objective by numerous means, including ensuring that access to the courts is safe, speedy, inexpensive and simple, as is consistent with justice.

Frankly, that has not occurred in this case. Events giving rise to the issues between the appellant and respondent began in and, on one view of the case before, 2006.

The court journey began on 3 November 2006 when MD, the respondent and hereafter the complainant, sought protection offered by the Act based upon writings, principally letters, authored by Paul Garde, the appellant and hereafter the defendant. As a consequence of the complaint, the defendant was summonsed to appear in the Local Court on 17 November 2006 to answer the complaint and be dealt with according to law.

There were five appearances before the Local Court, before a hearing was embarked upon before Magistrate Forbes on 29 June 2007. It was adjourned part-heard. A further date was set for early October. On that occasion the defendant failed to attend. It proceeded ex parte. Further evidence was led on that occasion, and orders made against the defendant prohibiting, inter alia, intimidation and the distribution of personal or financial information. Orders were also made in respect of costs.

The defendant launched an appeal to the District Court. In the face of ex parte orders it was held an appeal was not an appropriate remedy. An annulment of the Local Court proceedings was required. Time was passing. An annulment was granted conditional upon the evidence thus far led being preserved and the matter going before a replacement magistrate. The need for replacement was occasioned by the retirement of Magistrate Forbes. Time was passing.

On 5 March 2009 the matter was allocated to Magistrate Curran. He completed the matter the following day. His Honour made orders against the defendant, namely the mandatory orders described as A, B, C, which included a prohibition against intimidating the complainant. His Honour further ordered: "The defendant not post any material referring directly or indirectly to the complainant on the noticeboard of the owners' corporation, and the defendant not distribute personal or financial information about the complainant to any other residents." Finally, his Honour made an order for costs. The defendant appealed to this court against the orders made in the Local Court. This appeal was lodged on 1 April 2009. A further eight months have now passed before the parties have a resolution to a problem first raised before the courts in November 2006. Frankly, the resolution of this matter cannot be described as "speedy, inexpensive and simple as is consistent with justice".

Jurisdictional and Procedural Issues 7. Three issues have arisen as to the jurisdictional nature of an apprehended personal violence order appeal to the District Court. Firstly, whether on a rehearing any judgment can only be given as ought to have been given at the original hearing; that is, whether the judgment should be given regarding time, events and the law as frozen.

The second issue was whether evidence rejected for tender at the original hearing could be retendered in this hearing in the event the circumstances have changed. Thirdly, whether the judgment of the Local Court should be received in evidence.

The appeal is brought pursuant to s 84 of the Act. Relevantly that section provides: " 84 Review and appeal provisions concerning making etc of apprehended violence orders :

(2) An appeal may be made to the District Court: (a) by the defendant against the making of an apprehended violence order by the Local Court...

(3) An appeal under subs (2): (a) may be made under Part 3 of the Crimes (Appeal and Review) Act 2001 , in the same way as an application may be made under that Part by a defendant against a conviction arising from a court attendance notice dealt with under Part 2 of Chapter 4 of the Criminal Procedure Act 1986 , and...

(4) The Crimes (Appeal and Review) Act 2001 applies to an application or appeal arising under this section, with such modifications as are made by or in accordance with regulations under that Act...

(6) In this section 'party' to an apprehended violence order means:

(a) The protected person (whether or not the applicant) but only if the protected person is above the age of sixteen years, or...

(c) The defendant." The relevant provisions of the Crimes (Appeal and Review) Act 2001 applying to an APVO appeal is s 18: (18) Appeals against convictions to be by way of rehearing on the transcripts of evidence:

(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the Local Court proceedings...

(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the court is satisfied that it is in the interests of justice that fresh evidence be given.

(3)..." Within the definitions section (s 3), fresh evidence is defined as: " Fresh evidence . In relation to appeal proceedings means evidence in addition to or in substitution of the evidence given in the proceedings from which the appeal proceedings have arisen." An analysis of an appeal by way of a rehearing where further additional evidence is received was given in 1971 by Barwick CJ. It is a useful starting point (see Edwards v Noble (1971) 125 CLR 298 at E304): "...The consequence of that description of the appeal is that the appeal is one of fact, as well as on law, and that the appellate court in deciding it may apply the law as it may then exist:

Further, where additional evidence has been received it may do so in the light of that evidence, along with what had been adduced before the court from which the appeal is brought. A rehearing is not, however, a retrial of the issues..." In Camilleri Stock Feeds Pty v EPA (1993) 32 NSWLR 683 at p 689, Kirby P reached a conclusion that: "Appeal by 'way of rehearing' must, by the nature of the wording and context of the subsection, be considered in the light of the words "on the evidence...given in the proceedings before", and "on any evidence in addition to or in substitution for the evidence so given".

Clearly, the "rehearing" proceeds by the terms of the subsection upon the basis of the evidence before the Land and Environment Court. This requirement is qualified by the facility of "addition" to or "substitution" for such evidence. This must be so because the words are qualfied by "and". The context does not lend itself to an interpretation the conferral of jurisdiction of an original nature, such as a hearing de novo generally requires. In such a de novo appeal the matter is entirely relitigated and determined on " completely new evidence". (emphasis in original) 10. McClellan CJ at CL noted in Gianoutsos v Glykis (2006) 65 NSWLR 539 at 544 at [31]: "It is clear from the terms of s 18 that an appeal to the District Court by a defendant in the Local Court is not merely a mechanism which, once invoked, allows the trial to be started afresh. The appeal is to be conducted on the basis of certified transcripts of the evidence given in the Local Court and fresh evidence may only be given with leave of the court."

Section 18 of the Crimes (Local Courts Appeal and Review) Act 2001 was also the subject of CCA analysis in Charara v The Queen [2006] NSWCCA 244. In this case Mason P, speaking with approval of Kirby and Hoeben JJ, said: "[17] The appeal is to be by way of rehearing on the Local Court transcripts, obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave subject to the District Court being satisfied that it is in the interests of justice that this should occur.

[18] The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court.

[19] The nature of an appeal " by way of rehearing" has been discussed in many cases. The procedure to be adopted, powers to be exercised and functions to be performed must first be sought in the language of the particular statute. One thing, however, is clear " the 'rehearing'" does not involve a completely fresh hearing in the appellate court of all of the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits." (References omitted.)

The first issue raised is whether, as with many appeals to superior courts, the appeal judgment is given repairing or confirming the judgment as it ought to have been given in the court below in the original hearing - time, circumstance and law frozen to reflect time, circumstance and law at the time of the original judgment. That matter has already been referred to in Edwards v Noble but it is more fully dealt with in Ex Parte Currie v Dempsey (1968) 70 SR 1 at p10. In that case Jacobs and Holmes JJ, speaking as a majority, were seeking to distinguish between an appeal in the strict sense of that term and a "rehearing" by commencing with a passage from an English Court of Appeal judgment: "On an appeal strictly so called such a judgment can only be given as ought to have been given at the original hearing; but on a rehearing such a judgment may be given as ought to be given if the case came at the time before the court of first instance.

...The distinction generally to be drawn is a distinction between an appeal which, although it may involve a reconsideration of the evidence, can only involve a reconsideration of evidence already given in the lower court in the light of the law as it existed at the time of the lower court's decision and an appeal by way of rehearing which would usually involve a duty to give a decision appropriate in fact and in law as at the date of the hearing of the appeal."

I indicated during the course of argument that I would be holding the court's mandate to receive fresh evidence extended to receiving evidence from the complainant as to the continuation of any fear he may still have of intimidation from the defendant. I indicated my finding of the subjective element of fear and the objective consideration of whether there were reasonable grounds for such fear would be based not only on historical matters revealed by the record of evidence before the Local Court, but upon my assessment of a contemporary situation whether or not evidence was called by the complainant. Over objection, leave was given to the complainant to adduce fresh evidence on these topics. The complainant also sought leave to adduce evidence rejected by the magistrate, namely further examples of writings by the defendant where it was asserted before the magistrate, inter alia, he (the defendant) stated facts and opinions of a derogatory nature subsequent to the filing of a complaint. The magistrate excluded the tender on the basis of inadequate notice of those documents to the defence.

Clearly those documents did not form part of the evidence before the magistrate. Their status was documents that had been excluded from evidence in the exercise of discretion by the magistrate. Insofar as s 18(1) of the Crimes (Local Court Appeal and Review) Act was concerned they were not admissible. On reflection, however, they may have qualified as fresh evidence on the basis that they were "evidence in addition to the evidence given in the [original] proceedings." Insofar as 18(2) was concerned I was mindful "that receiving any fresh evidence is exceptional under s 18(2) and also when the adversary principles discussed in the Queen v Apostolides (1984) 154 CLR 563 are kept in mind." (See Chara ante). Nonetheless, I accept there may be reasons when it will be in the interests of justice that evidence excluded, particularly if wrongly excluded in the Local Court hearing, could be given at the rehearing proceedings. As events turned out, however, I also excluded the earlier excluded evidence on the same basis as it had been excluded before the magistrate.

The second issue was whether I should have rejected the remarks and findings of Curran LCM. These remarks and findings did not form part of the record of evidence. The evidence of the complainant was not put in issue by evidence from the defence, nor did the cross-examination conducted, as events turned out by the defendant, attack the veracity of the complainant. Indeed, in his submissions to the learned magistrate the defendant conceded the complainant may well have experienced fear but circumstances had changed so drastically by March of 2009 that it would be unreasonable to act on those fears. In reality, there was no credibility issue arising from the Local Court judgment.

Mr Hand, counsel for the defendant, argued I should not receive the judgment. His argument was that I was equally as well placed as his Honour in the court below to evaluate the issues. My initial response was to reject access to the Local Court magistrate's remarks. Indeed, the first day of the hearing had been before Forbes LCM seventeen months earlier. The second magistrate had had to read those earlier transcripts himself. The pronouncement from the Court of Criminal Appeal on this matter is hardly strong. Indeed, Mason P by way of obiter and in circumstances where he notes the point had not been argued in Chara said at para [23]-[24]; 23. Howie and Johnson Criminal Practice and Procedure NSW state that the reasons of the magistrate for finding the offence proved are not "evidence" and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrain from reading the reasons of the Local Court when the appealing was de novo . But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the "certified transcript of evidence" referred to in s.18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.

The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons, the District Court would be driven to speculation or deciding the issues entirely afresh. Neither such course would be consonant with the statutory scheme...

Earlier in the same judgment the President had quoted a passage from Fox v Percy (2003) 214 CLR 118 per Gleeson CJ, Gummow and Kirby JJ at p 118 [22]: "...these limitations include the disadvantage that the appellate court has when compared with a trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcripts, cannot always fully share. Furthermore the appellate court does not typically get taken to or read all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity normally over a long interval to reflect upon that evidence and to draw conclusions from it viewed as a whole."

As a matter of practicality it seems to me the judge conducting the rehearing is able to reduce, if not minimise, the disadvantages of not seeing and hearing the witnesses and being part of the ambience of the case below by reading the remarks and understanding the basis for finding of the court below. It was on this basis that I accepted that I should inform myself of his Honour's remarks.

A third issue concerned me as to who was, as it were, to prosecute the appeal. The parties agreed the burden to establish the need for an order still fell upon the complainant even though he was not the respondent to this appeal. Authority for this proposition is also to be found in the Gianoutsos case earlier referred to at p 546 [42]: "Although the appeal was by way of rehearing the onus remained on the appellant, Dr Gianoutsos, to prove his case to the relevant standard. The duty of the District Court judge was to determine the matter having regard to the evidence tendered in the Local Court and any further evidence admitted on the appeal..."

In those circumstances it fell to the complainant to establish the magistrate's apprehended personal violence orders were still called for.

The Court's Task 20. The Court if satisfied on the balance of probabilities that a complainant has reasonable grounds to fear and does in fact fear the engagement by the defendant in conduct which intimidates, the complainant may make an APVO provided the Court views the conduct as of sufficient potency or seriousness as to warrant the making of an order (s 20(1)(b) of The Act).

"Intimidation" includes conduct amounting to harassment (s 7(1b) of The Act. "Harassment" means "to trouble by repeated attacks, to disturb persistently, to torment as with trouble or cares", (Macquarie Dictionary Revised Third Edition). Clearly conduct may amount to intimidation even if it does not involve actual or threatened violence to the person (s 20(3)(b) of the Act). Indeed, this case presents text book examples of such intimidation.

In determining the Court's approach to the making of an order I must consider the safety and protection of the complainant, any hardship that may be caused to either party by making or not making the order and any other relevant matters. If I determine to confirm the APVO made by the Local Court magistrate I just ensure the order imposes only those restrictions on the defendant that in my opinion are necessary for the safety and protection of the complainant (s 20 of the Act). That becomes important, as will be seen towards the end.

The complainant and defendant were both residents of a group of some seventy-plus residents in a Surry Hills Strata Plan known as Durham Village. Those residents were all part of the same strata title plan. The complainant's case was that the defendant, in a continuing stream of publications, principally letters, mounted vitriolic and poisonous attacks upon him in circumstances where the defendant must have known that the publications would be seen by, or reckless as to whether they would be seen by the complainant.

The circulation of the publications followed one of three courses. One or two were directed to the complainant personally, or his agent/legal representative directly, for example, exhibit 22. Some were directed to the Owners Corporation or Executive Committee of what I can describe as the Durham Village Strata Title Plan of which the complainant was a member and would become aware of that correspondence by simply carrying out his duties as a member of the Executive Committee of the Corporation, or Committee, as the case may be, (see, for example, exhibit 21). The third area of distribution was to third parties such as Harvey's Strata Title Management, the registrar of the CTTT, and third party owners of varying residences within Durham Village, or a mock-up newspaper attached to the Durham Village noticeboard.

The element of reckless, earlier referred to, attaches to the second and third courses of distribution. In respect of the second group, the recklessness verges towards a certainty that the complainant would see the correspondence. In respect of the third group, the recklessness is better described as a strong likelihood the complainant would see the correspondence.

Did the publications, in content and/or frequency, constitute harassment? Of the twenty-three publications tendered in the original hearing, eighteen emanate from, and are the work of the defendant. Some, Exhibit 3, are relatively short, others are more than a page. For example, Exhibit 19B goes into a fourth page. (The exhibit numbers given are those before the magistrate). Some have annexures attached to which the defendant referred in his letters. I understand those eighteen publications are tendered as a sample of publications seen by the complainant over a three or four year period to March 2009. Contained in the publications are a series of allegations. Some replicated in other publications. Some allegations actually nominate the complainant, others do not nominate him, but impute or imply misconduct by a person who certainly fits the complainant. I tabulate below a number of allegations to be found in the publications:
- Exhibit 1 (12/4/06). "I refer also to the well known stalking of myself in 2005 & 2006 by a mentally disturbed individual with seemingly unfettered access to the common area foyers of Durham Village and in constant telephonic stalking of my home, mobile and office phones.
- Contempt of court by MD as duly authorised agent for...
- MD's recent well publicised threats to take the law into his own hands and break into yet another owner's premises.
- I have referred to the recent vandalising of my front door locks by the sadly deranged individual(s) who are stalking me by phone.
- Exhibit 2 (18/7/06). Two 15+ year gay tenants have been harassed out of Durham Village recently by the all too well known actions of one individual. I have also been extensively stalked/harassed and had my common property, front door and car vandalised...the humiliating spectacle of one individual's personality disorder and alcohol abuse issues.
- Neither I nor my dog will be intimidated out of this building by a permanent personality disorder or alco abuse of anyone.
- Exhibit 3. Would the Owners Corpn. now urgently confirm to we Owners that Mr MD (mortgagee in possession) debts of circa $7,800,000 in mortgages on his small APT.10 have not also been placed as mortgages on Durham Village.
- Exhibit 4 (29/9/06). "For the information of my well known stalker I fax herewith some informative material on grandiose delusion-related psychosis. There are many owners in Durham Village very concerned for this individual's increasingly well-known personal battles with many demons and financial woes". Attached to that writing by the defendant was an annexure which was a pamphlet headed "Psychosis The Sane Guide".
- Exhibit 6 (17/10/06). "Re my ongoing harassment/gay discrimination by OC SP 20659 and its authorised agent MD. [I] Am not surprised that the redoubtable MD (of the 7.8 million in mortgages) has delegated this sleazy task to Messrs Harvies…Harvies Licensee should be under no illusion that they are dealing with some alcohol-sozzled chronically unemployable dunderhead who lives off the earnings of a mail order bride and engaging in disputation with me."
- Exhibit 8 (19/10/06). "Re further vitriolic obscene homophobic abuse by Director MD."
- "I was too far removed to tell how highly intoxicated Mr MD was…police have advised me to keep safe distance with no AVO in place to protect me."
- "I was greatly shocked to hear from elderly grandmother of two young children…that a highly intoxicated Mr MD recently attended at her premises, followed a few steps behind by an elderly bawling male 'Minder' who helped him stay upright."
- "[the owner] received a veritable blizzard of over 50 or 60 letters from the said inebriated visitor thrust under her door until she had to engage a solicitor to stop the said harassment."
- Exhibit 11 (30/10/06). "I had the misfortune to encounter a Mr MD in an extremely intoxicated condition in the car park of Durham Village. After carefully checking there were no other witnesses around he proceeded to shout obscene homophobic abuse at my anti stalker companion canine and myself and then obscenely rubbed his hand and crotch in a masturbatory gesture."
- "These rancid attacks on long term owner…were compounded. I understand by Mr MD repeatedly leering over (the owners) adjoining neighbour's fence…at [her] four year old grandchild home at the relevant time."
- "Mr MD's close personal friend and fellow executive committee director was recently sprung peering through [the same owner] keyhole when her two very young grandchildren were at home."
- Exhibit 12 (2/11/06). "We Owners have now ascertained that Mr MD has circa 7,800,000.00 in duty stamped mortgages on his very run down apartment in Durham Village…"
- Exhibit 14 (10/11/06). "Sexual harassment of gay residents by Chairman MD…"
- "To my stalking(sic) over the past 12 months by a well known alcoholic with unfettered access to all common area foyers."
- Exhibit 15 (undated). "I have given OCS SP 20659 an opportunity to exonerate itself upon the overdue removal of MD (the second harassing CTTT application signed by MD must also be withdrawn by the OC and MD's costs of gluing up my common property door locks in January be paid for by him of course."
- Exhibit 16 (undated). "Warning to all Durham Village residents and owners re rampant bullying of tenant and owners. Add to the 2005 Body Corporate AGM you may have witnessed me being abused and bellowed at for three hours. Owner/Director's meeting by former Chairman Mr MD the unsigned present chairman…"
- "Resident caretaker/best mate of chairman got a 50 percent pay rise in a phoney stage managed non-transparent 'tender' process this year."
- Exhibit 17 (8307). MD...will bellow abuse at you at the OC'S AGM for 2-3 hours & the AGM minutes thereafter falsified on Christmas Eve by MD to conceal same.

An AVO will be taken out against you by MD by way of intimidation in the Local Court.

You will be stalked on your office/home/mobile phones constantly stopping only on occasions when MD is advised in writing via Harvies that Federal Authorities have placed traces on your incoming calls.

A highly intoxicated member of the executive committee will regularly scream at you in the car park "Fucken pooftah...I'm going to drive you outta here with my mates." Whilst rubbing his crotch at the same time in a bizarre masturbatory gesture.

Your front door locks will be glued up on the last night of your annual holidays by someone with a red master key to all of Durham Village.

Exhibit 18(24/11/06). MD and his treasurer misled Owners on the attached papers by claiming that long overdue structural building works only cost the OC "$30,000"...in the budget 2006/07. When this representation was made to the owners in the general meeting both Chairman MD and Treasurer...had the attached tax invoice dated 16/9/06 from Remedial Building Services, total also attached (for $64,108).

Exhibit 19A(12/12/06). "The attached article on office bullies correctly sums up the entirety of MD's conduct towards owners such as...,... and myself who refuse to be bullied or to pay obeisance to his narcissistic personality disorder. I also attach two relevant Herald articles on strata bullies which actually describes former Chairman MD as "On election they assume the role of a dictator deriding anyone who disagrees with them or their cronies and making sure everyone in the building knows they are top dog. They often have another agenda...be afraid, be very afraid" a truer word was never spoken of our OC.

19B(12/12/06). My...fellow resident MD (the unsigned regrettably my residence stalker also).

Psychologist also told me that MD also exhibits a bullying personality disorder known as narcissistic personality disorder aka anti-social personality disorder.

MD falsifies OC's AGM minutes to remove votes of PJG as proxy and to advance and own vote to advance personal interest of fellow director...

MD uses Owners Trust funds to advance his personal attacks on PJG.

MD publishes defamatory letter to all Owners falsely alleging that PJG was Chairman at the time of the Great Hail Storm in April 1999 and that I protected incompetent Harvies Strata Managers...

MD puts on agenda ultra vires by-laws to remove PJG CORRO. from strata file then falsifies as SEC-Y the same AGM minutes and mails out same on Xmas Eve to conceal what he has done.

MD uses his master key to my common area foyer to glue up my common property front door locks then refused to pay $210 locksmith costs. Gloats over same with mate and OC resident, caretaker...

Exhibit 23. The date of exhibit 23 is not made clear but it presents as a Durham Village newsflash. The rest of its name is hidden by the exhibit tag in the Local Court. ChairHitler, MD and Lucky...take shot at." Also on what may well be the front page, if it is a front page of a two page hand-up or pinup, "Where's the missing $7.8 million and what did Markie do with it??"

Thereafter there appear some articles, if that is what they can be called, mock articles of a derogatory turn in which clearly the butt of the articles is the complainant.

These publications as can be seen date from April 2006 through to April 2007. There is evidence which I accept that publications started before April 2006 and that they continued on after complaint was made in November 2006. The complainant also gave evidence that none of those allegations were true in fact. I am prepared to accept that that is so. Indeed, the proposition is not contested. The complainant puts the number of such communications he has seen up to 6 March 2009 as being in the hundred or so. Each constitutes an attack upon him, some more vitriolic than others. That they were made as a consequence of disputes arising from rights and privileges allowed within the strata title, is no excuse for their ferocity or inaccuracy. Indeed, they are deliberate inaccurate.

I regard the conduct of the defendant in publishing these false assertions as deliberate in circumstances where he knew the complainant would be confronted by them, or was reckless as to whether the complainant would be confronted by them, as constituting conduct by him that amounts to intimidation, on the basis that it is conduct amounting to harassment of the complainant.

The complainant gave evidence that he still fears that the defendant will engage in intimidatory conduct. Mr Hand for the defence accepted in submissions that may well be so. I am satisfied the complainant does hold this fear. He holds it on the basis of a long history of intimidatory conduct by the defendant. He holds it on the basis that there are still ongoing issues between the parties. I am satisfied he does hold such fears.

Are there reasonable grounds for holding these fears? This is an issue which has presented some difficulty for me to determine, that is, whether the holding of the fears rests on reasonable grounds.

Conduct of the Defendant Since 6/3/09 32. Curran LCM was informed by the defendant that he had now moved to the Blue Mountains. He was also aware that the complainant had moved from Durham Village to a beachside area. Magistrate Curran described the parties as living "a long way from each other." An argument was advanced by the defendant that there was no need for an order because all the issues between the parties were tied up in their dealings relating to the rights and privileges associated with the Durham Village strata title plan.

Since the orders made by his Honour in the court below, there have been four communications by the defendant, either to the complainant personally or to his solicitors. Indeed there have been, I think, two communications by the complainant to the defendant. Although one of the defendant's letters may be described as slightly odd, none of them is offensive. Indeed, each is business-like, save for one each is devoid of extravagant or florid language. The defence rely upon this correspondence ranging from 24 March 2009 through to 26 October 2009 as evidence supporting an argument there is an absence of reasonable grounds for the complainant to fear any pursuit of intimidating conduct by the defendant.

There are still outstanding matters which are awaiting resolution as a consequence of interaction between the parties during their years at Durham Village. As best I can tell, these may include costs arising from these proceedings, a complaint to the Law Society of New South Wales and a complaint to the office of the Legal Services Commission (see exhibit 1).

The defendant is a qualified solicitor. The existence of an Apprehended Personal Violence Order against him must be a humiliation and embarrassment. Whether it is capable of prejudicing his employment opportunities is not a matter that has been addressed in evidence. Certainly any breach of the order may well be telling upon his prospects. The argument was advanced that his immediate past behaviour has been exemplary, indicative of a change in attitude. I accept that his immediate past behaviour is exemplary. Apart from the behaviour itself, I do not have any evidence as to what has caused it; that is why it has been exemplary. The most obvious answer to the question, and the inference I will draw, is that his behaviour has changed as a consequence of the order.

The only other evidence I have on the reasonableness of holding the fears is the long-term past behaviour. Past behaviour is recognised as one of the strongest predictors of future behaviour. In this case, the immediate past behaviour must also play a part, although, because of the existence of the Local Court's order, the Local Court's order will be given less weight. The standard of proof required is the balance of probabilities. I must say, if it was some higher standard, I would not have been satisfied. However, on the balances, I do find that the complainant has reasonable grounds to fear, at this time, the engagement in harassing conduct by the defendant.

Finally, I must determine whether the intimidating conduct anticipated and feared by the complainant is conduct sufficient to warrant the making of an order. This exercise borders on the metaphysical. How does a tribunal determine whether feared conduct of a person that the tribunal has only seen in the witness box, and conduct yet to occur, if indeed it does occur, is conduct sufficient to warrant the making of an order?

The matter has not been the subject of direct evidence - that is what conduct does he specifically fear? - but it is apparent the conduct feared is of a kind and quality as contained in the exhibits I have referred to, reflecting past conduct by the defendant; that is conduct amounting to harassment by means of vitriolic allegations contained in publications written in an extravagant style, published knowingly or recklessly so that the complainant will become aware of their contents. It is upon this basis I find the feared conduct is sufficient to warrant a continuation of the orders made.

Thus I am satisfied on the balance of probabilities that the complainant has reasonable grounds to fear, and in fact fears, the engagement of the defendant in conduct that would intimidate the complainant, which is conduct sufficient to warrant the making of orders.

The learned magistrate chose a two-year period as the proper duration of the order, on the basis of ongoing issues that should be resolved within that time span. Eight months of that two years has now expired. I am content to confirm the two year period and its commencement date on 6 March 2005.

There are, however, two orders imposed by the learned magistrate that now seem to me to be otiose; namely an order that the defendant not post any material on the Durham Village notice board of the Owners' Corporation. It seems to me such an order has no meaning as neither person frequents, and quite possibly many of the people now there do not know the parties. And, secondly, the defendant must not distribute personal or financial information about the complainant to the other residents of Durham Village. I see no reason why those orders should be maintained and I intend to delete them.

Subject to that, my formal orders are that the mandatory orders, so called A, B and C, made by the learned magistrate be confirmed. I make an order that the defendant pay the complainant's costs as assessed or otherwise agreed. Is there any other order I need to make? ENGLAND: May I ask your Honour to affirm the costs order made by the magistrate below on 6 March 2009?

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Source

Judgment (78 paragraphs)

Parties

Cases Cited (6)