OUR EXPERIENCE WITH THE NZ HARASSMENT ACT 1997

INTRODUCTION

Neighbours from hell, harassment, bullying, the so-called “Justice” system, neighbourhood wars; these are all themes we’re familiar with. They seem to be hitting the headlines all-too frequently, don’t they? When we had to take our next-door neighbour to court under the 1997 Harassment Act, nothing we had read or heard had prepared us for the debacle that is our court system. I wrote this to try to help others, should anyone else encounter neighbourhood harassment as we did. I don’t want anyone who is experiencing harassment, to make the same mistakes we made.

As well as this article (I hope!), there are plenty of websites that can help you. If you Google “harassment act” (New Zealand pages only) you find them all. However, this article tells you what they don’t tell you - and what you need to know. We wrote this article because no matter how many questions we asked, and were asked, we were completely unprepared for court.

LESSONS WE’VE LEARNED - PURSUING A HARASSMENT ACT ACTION

Let’s be quite clear - Court (or “litigation”) is a last resort. Our experience is that it is an expensive, farcical circus with absolutely no certainty. You have to have a rock-hard, water-tight case before you go to court. And know this: there is a game and there is a process - play the game and go through the process. If you go to court, you will enter a money-hungry legal fiasco. However, the more money you spend, the more resources you will be able to commit. It’s like a poker game, without the fun. What we’ve written, below, are the steps in the process where we’ve learnt some bitter lessons. We want to show you the potential pitfalls and where we tripped up. We want to show you where you can benefit from our mistakes and lessons:

Lesson 1 - Talk to Your Harasser (and Record it!)

These things can start with the smallest of things. What you think is trivial may be important to your potential harasser. Our mistake was not realising how pettiness and petulance can escalate into abuse and harassment. If you’re being harassed, you need to talk to your harasser - and have an activated recording device with you (see later). Ask them to stop the harassment - you’ll be recording their response. At this same time, try to discover what has set off the behaviour, and see if it is possible to resolve things. If you have experienced fear or distress as a result of the harassment, as we did, it’s not unreasonable that the thought of confronting your harasser is as upsetting as the harassment. In that case, this is when you seek outside help.

Lesson 2 - Talk to the Community Constable

Ask the advice of your local Community Constable on what to do. As a result of your complaint, he will likely visit your harasser. We found that the Community Constable works on the principle that one visit to your harasser will scare him enough to do the job. It’s true in some cases, but our bitter experience is that it didn’t. So, you should look to the future. Make sure you impress upon the Constable to get that first incident recorded in an Incident Report. Put that request to him in writing.

Use the opportunity to establish your relationship with your Constable. Get his contact details, including the Constable’s email. If you continue to experience harassment, email a short note on each incident. It is to your advantage show a pattern of behaviour from your harasser. The constable may visit your harasser again, on the basis of future incidents you report to him. If the harassment continues, you should formally ask the Constable (again in writing) for a mediation conference that he could facilitate and referee. Make sure he also records your request in his Reports - you may need these reports for court. And, you may need this to show the judge you are a reasonable person, by asking for mediation.

Finally, if your case looks like heading to court, make sure the Constable will appear. We feel our Constable let us down, badly. He didn’t record some crucial facts in his reports, particularly from his first visit. In fact, there was no report from his first visit! Our harasser was able to use these omissions to make some deeply offensive counter-allegations. Be prepared for this. Well, we had to drag our Constable kicking and screaming to Court. The reason he gave for his reluctance was that he was the “whole” community’s constable, and he had to remain “impartial.” By that logic, any burglar or assailant would have nothing to fear from the police testifying - burglars and assailants are all part of our community, aren’t they? I suspect he didn’t want to appear to avoid getting a hard time from the court - after all, he made a couple of serious cock-ups. Still, we’ll never know the truth, will we?

Lesson 3 - Understand the Harassment Act 1997

Do your own research where you can. The more you understand the Act yourself, the less you have to ask a lawyer and the less money you have to spend. By the time you are conducting this research; your mindset is heading towards court. It’s not inevitable yet, but it is not a bad thing to prepare for the worst. However, your understanding of the Act allows you to understand what is in your advantage to record, your journey. For example, the Act stipulates the Applicant (that’s you, the one being harassed) must prove fear and/or distress. Our judge kept harping on at my wife and I asking what fear we have, and snorting when it was clear fear wasn’t an issue. Our lawyer had to remind him that the significant distress we’d been put under did, indeed, fulfil the requirement of the Act. This was not long after the judge snapped, “No! I don’t have to remember anything - I just have to apply the law.” Don’t you just love it?

Have a look at this site for you to understand if your case fulfils the requirements of the Act:

www.howtolaw.co.nz/html/ml061.asp - “How to take action against harassment”

In essence, you need to prove to the court;

• you’ve suffered two specified incidents (preferably physical) within a 12-month period
• you have suffered fear and/or distress
• you have suffered a sustained period of harassment (including verbal abuse)

We also contacted Citizen’s Advice, as part of our research before we secured a lawyer. However, they are so overworked and underskilled in this area, that they couldn’t help us. Don’t burden them - conduct your own research on the Internet if you can.

Lesson 4 - Research your Rights

There can be many reasons that spark off neighbourhood harassment; property boundaries, paths, roads, right-of-ways, or simply a clash of personalities. Frankly, you may never know the truth of why or how your harassment started. However, do know your rights in respect of the areas of tension. Research the Internet. Ask your Council. For example, Christchurch City Council provided us with a colour satellite photo (for $20!!) which showed us exactly where the boundaries were between our neighbour and harasser. Before then, we didn’t know!! Most councils, including Christchurch, have a council Information website or enquiry email. You can have many questions asked, in respect of arhttp://www.blogger.com/img/blank.gifeas of tension; trees, parks, path rules, park rules, road rules and many more. Here’s some sites we found helpful:

• www.ccc.govt.nz - Christchurch City Council website
• info@ccc.govt.nz - Christchurch City Council email, for specific enquiries
• www.landtransport.govt.nz/roadcode - New Zealand Road Code
• www.ltsa.govt.nz/roadcode/about-other-road-users - New Zealand Road Code

Actually, we did a lot of this research to keep busy as much as anything, and to stop ourselves feeling so powerless in the face of sustained harassment - as well as feeling powerless in the face of institutional, indolent officialdom! As a result, we felt like our research was doing something to contribute to the case.

Lesson 5 - Know your Harasser

Understand the deeper reasons why you are being harassed. Remember, it should not be your fault you are being harassed. Understanding your harasser can lead to your own healing, as you try to move on with your life. We learnt that that our harasser was the youngest of three, and had unresolved feelings of being left out. In addition, she was bullied - because she knew how to bully. It helped us realise that it was her deep insecurities which fed her need to bring others, like us, down.

Cynically, you can use your understanding of your harasser to predict what may come next. Learn your harasser’s habits. For example, our harasser hit me with her car on the footpath of her driveway, then tried to say she always stopped at that point on the path. We were able to video record her car on later occasions which disproved this. Knowing your harasser’s movements will allow you to direct your resources better. For example; when/where to set up a fixed video camera, or when to wear a recording device (see below).

Lesson 6 - Keep a Log of all Incidents

As you experience further incidents, write them down in a little notebook and type them in a computer. We started writing them in a notebook, but then we found it easier to have a rolling log (an MS-WordTM file) on our computer. This gave our harasser’s lawyer an opportunity to imply we’d simply made it up and typed it on our computer. Cover your bases - you may even wish to email copy the Community Constable each time there is an incident.

Lesson 7 - Buy Recording Devices

You will have a need for video and audio recording devices, depending on your budget. These can capture video and/or audio footage of the harassment. My advice to you is to have a mix of recording devices. Preferably, buy digital recording devices, as they can create files that can be played back in court. Frankly, this isn’t the Cold War or James Bond - these devices have a reliability problem, despite your need. The battery might run out, or the device may fail, just when you need it. This was our experience! Here’s some devices:

• Dick Smith for MP3 recorders. Priced anywhere between $30 to $200. As well as testing them in-store for sound, make sure you can activate it and use it quickly and easily

• Spy Pen Camera. Look on TradeMe, and you’ll find them between $1 reserve and $99.
www.trademe.co.nz/Electronics-photography/Video-cameras/Video-cameras/auction-230482590.htm

Lesson 8 - Secure Recordings of your Harassment

Make sure you secure as many recordings as you can. This might be upsetting and distressing, but take comfort from the fact that you are doing something to stop the harassment. You’ll record lots of crap, but persevere. If you have a technical competence, it helps. If not, secure the help of a friend who is. Test the results of your recording with people who haven’t heard them before. You know what your harasser says, so its clear as glass. But to others it may be noise. The judge has to hear them and believe the recordings say what you say they say (if that makes sense).

Don’t rush to Court with just a couple of recordings. We did, to our cost. Your harasser may try to deny some or all of your accusations. Build up your bank of recordings to the degree that there is so much hard evidence that simply can not be denied away. The last thing you want is to be in a position where the judge has to rely on your word against your harasser. Our mistake was letting ourselves be provoked into issuing court papers to our harasser too soon. We had some recordings, but not enough, really.

If you have any 50-50 or marginal recordings that you feel are useful, you can get them cleaned up. Tandem Voice Booth in Christchurch was able to do this for us, but it wasn’t cheap. Shop around - we looked in Yellow PagesTM for sound engineers and similar.

Lesson 9 - See your Doctor and a Therapist

There are two reasons for consulting with your doctor:

• He will genuinely be able to help you, medically, to deal with the effects of the harassment
• You will need a letter from him to prove the medical effects of the harassment in court

One of the requirements of the act is that you have to prove you’ve experienced fear and/or distress from the harassment. Discuss any distress and fear with your doctor or therapist. The Doctor should be your primary contact, as doctors may prescribe help for you, including recommending appropriate counselling.

Again, seek commitment from your doctor that, if it looks like heading to court, he will write a letter for you. There’s a fact doctors need to know: signing a sworn affidavit means the doctor can be called to court, signing a letter means the doctor can’t be called. Tell your doctor that.

Lesson 10 - Research and Choose your Lawyer

Phone around, shop around. Secure a lawyer with previous successful Harassment Act cases, if at all. I wouldn’t recommend contracting a lawyer who has no experience of the Harassment Act.. We started with the firm of our family lawyer. We then spoke with the firm’s expert in this area. Sadly, as well as charging $100 more per hour than we the lawyer we eventually chose, he claimed the Act was just for old perverts stalking young girls. So, sadly, we had to look around.

When you’re interviewing lawyers, ask to read about the successful cases as part of your research. If they invite you for a meeting, ask to have it confirmed in writing that you won’t be charged for that initial meeting. Initial meetings shouldn’t be chargeable, as they are often introductions and assessments on the part of the lawyers, as well as you.

As you are narrowing your shortlist of lawyers, ask yourself some questions: Do you trust him? Are you comfortable with him? It is the professional duty of your lawyer to believe you. However, does he have empathy? Do you feel listened to and understood?

As part of your negotiations, try and seek agreement on detailed bills. Our local MP warned us that law firms are notorious for producing large, but understated bills. The invoice we received on October 2008 was described only as “Our fee:” alongside $5,380. Let’s face it, we deserve more from our legal servants. Tell him how you want your bills laid out.

Lesson 11 - Ask your Lawyer about Legal Aid

Again, please know that litigation is a last resort and expensive. You will likely be spending a significant 4-5 figure sum. We had to. Look up this website:

• www.lsa.govt.nz
• www.lsa.govt.nz/legal-aid/can-I-get-legal-aid/index.php
• www.lsa.govt.nz/documents/form502090.pdf

Do the online calculator. If it shows you’re eligible, download the form. It’s horrendous and long and seems to be a deterrent, rather than an aid. However, please persevere. Ensure you have some savings to employ. If you don’t have liquid cash, look at mortgage options if you feel a protracted case is in the offing. Treat the process like a major poker game - don’t play with what you can’t afford to lose. Remember, there are absolutely no guarantees or certainties here. Even if you secure a Restraining Order, you may not have your costs awarded. You may even have to pay for your harassers' costs!!! Nothing is certain in this circus.

Lesson 12 - Make sure all your Communication is in Writing

Tell your lawyer you want as much as possible in writing. Swap email addresses. Of course, discuss everything over the phone, but then follow it up with writing. Ensure that your lawyer accepts only instructions in writing. This ensures clarity and avoids confusion. And, if your lawyer does something that you did not agree, you have some recourse. Lawyers will never admit any mistakes, but at least you can use any problems you may have with your lawyer as a negotiating point to have some money off your bills.

Lesson 13 - Build your Support Network

We can tell you that the court process is as stressful as the harassment. Make sure you have friends and family around you. Talk to them about what you’re going through. Talk to your other neighbours, if your harasser is a neighbour. Have they experienced similar harassment, which you can use in court as corroborative evidence of behaviour of your harasser? Ask them if they would write an affidavit of their experiences.

Lesson 14 - Confirm and Collect Statements from your Support Network

Ask those who are involved, if they will they sign a sworn statement (an affidavit). Approach the Community Constable, the doctor, your therapist, and any other witnesses.

You need to make it clear to them that if they sign an affidavit, they will likely be called to court to be subjected to cross-examination by the defence lawyer. This is the defence lawyer’s right. If the defence lawyer doesn’t call your supporter to the stand, then the defence is telling the court that the content of the supporting affidavits is accepted. We made a huge mistake here in not understanding this. We committed to court, before securing commitment from our supporters:

Lesson 15 - People will let you Down - Accept it

Be aware, witnesses will fall out of the process. They simply “don’t want to get involved.” Don’t be judgmental or critical of your support network - this is all an unfortunate reality of the process.

• My wife’s doctor expressed she didn’t “want to get involved,” despite the fact that my wife broke down in the doctor’s study. “You’re just one patient,” says the doctor,” and I have hundreds I have to look after.”

• Our Community Constable recommended us seeking a harassment order - but then balked at signing an affidavit and appearing in court!!!

• There was an incident at our primary school, but when we asked for evidence, the principal was reluctant to put anything in writing.

• The director of our local kindergarten was happy to put our experience in writing - but then her head office blocked it!!

Lesson 16 - Collecting and Writing the Sworn Affidavits

An affidavit is a sworn document. Because it is a sworn document, false statements are criminal offences. This is why affidavits are more important than mere letters or statements. The sworn affidavit is the backbone of court proceedings. All your evidence will be consolidated in your affidavit, and those other supporting affidavits.

Your lawyer will detail all incidents of harassment and the case for a restraining order in your affidavit. It’s one of your biggest expenses in the process, but you don’t really need to worry about it. We wrote a document for our legal team, and they assigned a lower-cost lawyer to write the affidavit. We recommend you also do this to keep costs down. A document from you is a good idea for your lawyer to understand incidents, context and time-lines. Don’t exaggerate. Do not lie. You will be caught out. If your harasser lies, and your lawyer does his job, your harasser will be caught out.

After you’ve agreed with your lawyer on the wording of the final affidavit, you’ll take it to another solicitor’s firm or a Justice of the Peace to have it witnessed and sworn. Consult you local Yellow Pages for where to find your nearest. After you swear these in front of a solicitor or JP, take them back to your lawyer.

Your harasser will be then be “served”- that is, your harasser will be sent your affidavits and other papers telling him that he is looking at court!! At this point, you are committing, albeit mentally, to court. At the very least, you are committing to meeting your harasser face-to-face in mediation

Lesson 17 - The Interim, before the First Hearing

After you’ve served your harasser, the best thing you can do is spend the next few days or weeks forgetting about it. Go on holiday. Take a break. Visit relatives out of town. Our harasser was our next door neighbour, so it was pretty important for us to get away from it all. It gave us some small comfort to serve her with court papers while we were sunning it up on holiday in Oz. But, let’s face it, we’d rather have not had to in the first place!

In the meantime, the defence lawyer will be writing a Reply Affidavit with your harasser. Expect your harasser to deny and lie. Remember, the more evidence you have, the more recordings you have, the more your harasser has to deny, so the more unlikely your harasser’s version is.

Our harasser took the opportunity to go on the offensive. Her reply affidavit contained a raft of allegations and counter-allegations that cleverly linked two disparate incidents. You need to be prepared for that also.

Lesson 18 - Initial Hearing - DO Agree to Mediation

Your initial hearing, the first court appearance, will be a pretty simple formality. You don’t even need to be there, and neither does your harasser. However, I think it is in your interest to attend. It gives you an opportunity to witness the debacle that is the court process, in a safe environment, before any major court appearance. You can look around, familiarise yourself with the court. Study the courtroom. Study your harasser’s lawyer. Study the formality and obsequiousness of the court proceedings. With hindsight, I wish I’d attended that first hearing. No words from our lawyer truly prepared us for the sham of the court experience. So I recommend you get what experience you can. Remember, courts are public places, so you can even attend another court case yourself to see what it’s like.

The Judge in the first hearing, who will not necessarily be your judge for the Main Hearing, will simply ask if both parties are willing to mediate. If there is no agreement to mediate, the judge will fix a date for the Main Hearing. Do agree to mediation. If you don’t, the system thinks you’re a baaaaaaadddd person. Sadly, agreeing to mediation, however distasteful, is part of the process. It would have cost us $1,100 just to draw up a memorandum of understanding (whatever the hell that is!). We thought it was too expensive to go through a part of the process that would achieve nothing from a stubborn, uncompromising harasser. However, it might have saved us, looking back. I believe that the fact that we didn’t agree to mediation prejudiced us, in the eyes of a Judge that clearly couldn’t be bothered. Beware of this. Judges, despite their $360,000 annual salary, feel they are overworked at the moment. In addition, they deal regularly with rape, murders, and assaults. So your case, however distressed you are, is likely to be seen as a little neighbourhood dispute. We certainly felt this from our judge.

I don’t think our lawyer impressed upon us the importance of agreeing to mediation, or we weren’t listening. We were so affected by the whole affair, that we probably wouldn’t have heard our lawyer, even if he did say, “Do mediate!” All we heard was, “You are not obliged to mediate.” In reality, you have to. So, I say, bite the bullet. You never know, you might secure the outcome you want. In mediation, you don’t have to agree to anything you don’t want to.

We cocked up by not giving clear instructions to our lawyer. My wife and I gave different instructions, verbally, to our lawyer. As a result, we only had ourselves to blame. Now, whenever we give instructions, it is by email, and we ensure the other of us is copied on that email. That was a bitter lesson, that one.

Lesson 19 - Ask the Judge if the Court will Facilitate the Mediation.

This could save you significant costs in your lawyer’s time. After our main court hearing, the judge said he’d provide this for us, and he urged us to mediate. This means there is a precedent (in will, if not in actuality) where the judge will provide a mediator and rooms. If money is tight, stress this to your lawyer, and he will ask the Judge in the initial hearing for a mediator and rooms. If this is the case, you may feel you do not need your lawyer in mediation. You may want to stipulate this as part of the mediation process. Remember: it’s all a game - play the game.

Lesson 20 - Prepare for the Main Event

Print off all the affidavits. That means yours, supporting witnesses’, your harasser’s, and any reply affidavits. Put them in a folder for you to study.

Read your affidavit over and over and over again. The defence lawyer will try and pick any hole or inconsistency in your case.

Take photographs of places where incidents occurred. They will help the court visualise what happened and how it happened. Couple these up with maps, satellite photos and diagrams if necessary. Put these in another folder for you to study and take to court. Print off three copies; one for the witness, one for the judge, one for the defence lawyer.

Prepare for a computer for court. If you can, secure a laptop (easy to carry), extension speakers, and have all the files you need for court. Take an extension cord and 4-way - just in case!! One tip: computers take time to set up. When you’re court, don’t get flustered with it. I did. Take your time, and set it up in your own time.

You know, I faffed around for ages, trying to set up my laptop in court. 15 minutes later, the Judge takes a 25 minute break!!! I wish I’d asked the Judge to take a break then. But then Judges don’t like to be told, do they …… ?

Lesson 21 - Cross Examination Practice

It is the job of your harasser’s lawyer, at best, to get him off and secure costs from you. So, he will be aggressive, create doubt in the judges mind. He may well try to paint you as unstable, petty or worse. Our harasser’s lawyer tried to do exactly that.

So, role play with your lawyer. It is an additional cost, but it may well be to your advantage. Ask your lawyer to question you as if you were on the stand by the defence lawyer. Also ask to see your lawyer’s questions well in advance, although he will be reluctant to do so. Be firm, but polite. Remember, YOU have paid for his time to write these questions. As you read them, make sure you are comfortable that he has understood all the issues. Being on the stand is stressful and exposing. You have only your wits and the truth with you.

Lesson 22 - Don’t be put off by the Hierarchy - Play the Game in Court.

Remember, this is a selling exercise - you have to convince the Judge that you need this order for your protection. It has nothing to do with justice, nothing about right or wrong, nothing to do with compensation. It has everything to do with who the judge believes. Be calm, be courteous. Court is a formal place, so you need to ensure everyone in your party addresses others by their surnames; “Mr Williams, Ms McEwen, The Applicant, The Respondent.” Calling the defence lawyer by his first name, “dickhead” or even “buffoon” is out.

What you might surprising or distasteful (as I did), was how obsequies and grovelling lawyers are to the Judge. There are lots of “sirs” and “your honour,” and no disagreements with the judge. The reason for this is that the Judge has enormous power and discretion. In fact, the Judges power in court is ultimate. As in our case, lawyers are reluctant to argue with the judge, for this reason. Lawyers that acquire a reputation for doing this tend not to receive a fair hearing over a period of time. So, lawyers remain completely subservient to the judge, sometimes at the expense of the short-term interest of the clients - you. One example in our case was where the judge criticised both sides’ lawyers for “seriously underestimating the time” we needed to hear all the evidence. Yet, no lawyer lifted a finger to correct the judge that we only had what the court registrar gave us!

We observed that this subservience does nothing to tell a judge what he really needs to hear. Sometimes, they just don’t want to hear. We found our judge to be a flippant, arrogant egotist. He treated us with disdain, and with a complete lack of empathy. From his opening words, we were made to feel that, by passing up mediation, we didn’t have the right to be in court: “We don’t get many of these kinds of cases - they’re normally dealt with in mediation.”

What also put me off and affected my performance in the stand, was the unexpected, jovial banter between the opposing lawyers during the break. It is protocol that they refer to each other as “my friend.” In the breaks, they will chat and laugh as if they are best friends. Don’t be put off - your lawyer is simply adhering to protocol. It’s all part of the game.

OTHER LESSON FROM COURT

Court Lesson 1 - Court is a Circus
Be aware that there is much inefficiency, faffing about and a lot of time wasted. This is because, of course, there’s no accountability for such things. But, you need to be aware of it, accept it and don’t become frustrated by it. If you get wound up, you’re playing into the hands of the defence.

Court Lesson 2 - Do sit Beside your Lawyer.
It is good moral support, as well as having the advantage of being able to discuss tactical issues on the case. For example, passing instructions to your lawyer. We made the mistake of thinking it would be better to sit at the back. However, our lawyer made some critical omissions in questioning one of our supporting witnesses. That would never have happened had we sat next to him!

Court Lesson 3 - Notes of Evidence Misses Things
Afterwards, you may hear talk about the “Notes of Evidence,” a document created from the recording of the court session. The “Notes of Evidence” is not a transcription. It does not contain discussions between lawyers and the Judge. It (usually) does not contain comments by the judge, including his summing up at the end. Our Judge commented that we had indeed suffered distress as a result of harassment - but nowhere is that documented! So, don’t be surprised when you read it and feel pieces are missing.

So, take your recording device into court with you. Record the entire proceedings, if you can. It may not be legal, but it’s fair. If you try to secure the Court recording afterwards, there is a whole regime to ensure that your request is blocked. Remember, the judge and the Respondent have to agree to releasing the recording!!! So, bugger ‘em – make your own. BUT DO IT DISCRETELY!

Court Lesson 4 - The Issue of Costs
Ah yes, the treasure at the end of the rainbow. The pot of the poker pit. We found out two days before court that the issue of costs was a large wobbly jelly. The issue of costs is completely at the discretion of the Judge. If he didn’t get it the night before, he can so choose to award costs any way he chooses. That means you could get all your costs, something, nothing, or have to pay the defence!

You need to know this. The issue of costs could go any way. It is a factor in your decision to go to court. If we had known this fact, we would not have gone ot court with the case we had - we would have gathered much more evidence.

Court Lesson 5 - Costs; Complete Uncertainty
As well as the issue of costs, the whole circus is a boiling pot of uncertainty: time, mood of the judge, expense, decision of the judge, interpretations of the law….. The list goes on. SO, you need to be totally sure of your case. That involves taking heed of the mistakes we learned from. Make sure your case is rock-solid. Good luck – you will need it.