KING-KNAZOVICKA v LUCAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and MEAGHER JJA 16 November 1988, 21 December 1989 [1989] NSWCA 126 NUISANCE — besetting — harassment of female person and her family — slanderous allegation that she is living in a bigamous relationship with the plaintiff's husband allegations denied and attributed to delusions of plaintiff trial judge (Bryson J) grants injunctions — plaintiff, unrepresented at trial allows evidence to be admitted without cross-examination — whether further evidence should be allowed on appeal — whether trial had miscarried — whether injunction too wide — whether defendants guilty of perjury held: (1) Fresh evidence should not be allowed on the appeal. Radnedge vy Government Insurance Office of New South Wales (1987) 9 NSWLR 235 applied; (2) The trial had not miscarried and the orders made were sustained by the evidence of the defendants; (3) Even if the appellant's allegations were true and not delusional, her conduct would sustain the orders made; (4) The injunction was properly granted and was not too wide. Vincent and Anor v Peacock [1973] 1 NSWLR 466 referred to; (5) The Court had no power to charge the defendants with perjury and there was no basis for it to refer the papers to prosecuting authorities to consider such a charge; (6) Appeal and motion accordingly dismissed. Kirby P I agree with the orders proposed by Meagher JA and generally with his reasons. Harrassment of the respondents I attended closely to the submissions of the appellant. She was not legally represented either in this Court or before Bryson J. English is not her first language; nor is ours her first culture. For these reasons, I considered it important to examine whether the trial below miscarried because she did not really understand the consequences of adopting the procedures which she followed at first instance. However, even allowing for the lack of cross-examination of any witnesses, the evidence of the respondents (at least untested) was very powerful. It explained the conclusion which Bryson J reached. As Meagher JA points out, even if the appellant's beliefs were in fact true, they would have afforded her no justification in law for her campaign of harassment of the respondents. In the course of the hearing of the appeal, the appellant sought leave to adduce fresh evidence before this Court. Again, I considered whether this should be allowed, having regard to the disadvantages which the appellant undoubtedly suffered at the trial, most especially because she was unrepresented. However, the circumstances in which fresh evidence will be admitted on an appeal are extremely limited. This is made most clear in the recently stated authority of the Court. See Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235. The appellant did not make out the stringent requirements for the admission of the fresh evidence which she proffered. A glance at that evidence indicates, in any case, that no injustice is done to the appellant by excluding it. It would simply seek to transfer into this Court the trial of the issues which were resolved at first instance by Bryson J. 2 UNREPORTED JUDGMENTS Although the appellant complained about the want of cross-examination of the respondents at first instance, the transcript makes it perfectly plain that she was given the chance to cross-examine them as to their evidence and to call further evidence of her own. Yet she failed to do so. Making every allowance once again for the fact that the appellant was unrepresented, I do not consider that this Court is authorised to bend the principle in Radnedge effectively to permit the appellant to have, before us, the trial of the action which she conducted on a different footing before Bryson J. To some extent Bryson J drew from the appellant the evidence which was necessary for his determination. He asked her a number of questions. He had before him the evidence of the respondents. He also had an ample opportunity to assess the appellant's evidence. He reached a firm conclusion. That conclusion sustains the orders which he made. On the evidence given before Bryson J I would be inclined, with his Honour, to conclude that the appellant's beliefs are delusional. But it is not necessary for me to decide this. Refusal of an adjournment The appellant also complained about a miscarriage of the trial because Bryson J refused her an adjournment. Although it is true that his Honour refused the appellant an adjournment which she sought, he did so for reasons which were clearly open to him. These included that the appellant had been told in very certain terms by a letter addressed to her, which she received, that the hearing was to proceed on 14 December 1987. Although she contended that she had understood that the proceedings were listed on 14 December for the purpose only of a call-over, Bryson J was unconvinced. Having regard to her participation in the earlier procedural hearings, and the letter which she received, she was clearly on notice of the date for trial. From the point of view of the respondents, there was some urgency in securing the hearing of their claim for relief. It was therefore clearly open to Bryson J to conclude that the appellant had been given every opportunity to prepare the matter for hearing, to produce the affidavits which she relied upon, to issue subpoenas and to consider the cross-examination of the respondents, if so desired. These conclusions of Bryson J were entirely proper in the circumstances. This Court is not authorised to disturb them. Motion to discharge the injunction as too wide So far as the notice of mot on is concerned, the claim for an order discharging the injunction granted by Bryson J was not made out. I took the motion to be an indirect way of asserting that the injunctive relief afforded to the respondents had been expressed in terms unnecessarily wide for the protection of the respondents' legitimate rights. Specifically, the appellant contended that, by its terms, the injunction unreasonably prevented her going to, or through, Bondi Junction at all. She said that it meant that she could "never leave Bondi Beach where I live currently and for the last twelve years to go to the city". She pointed out that she had to pass Bondi Junction for that purpose. If the terms of the injunction were considered unnecessarily wide, an application could be made to Bryson J to vary it. Alternatively, this Court might have entertained an application for leave to amend the notice of appeal to afford it the power to modify the terms of the injunction. However, when the order actually made by Bryson J is studied, all that it enjoins is that the appellant should not: "Enter upon or be in the vicinity of the premises known as 26 Alt Street, Bondi." URJ KING-KNAZOVICKA v LUCAS (Mahoney JA) 3 To travel from Bondi Beach to the city of Sydney may take the appellant through Bondi Junction, although common experience demonstrates that this would not be her only route. A glance at the street map placed before the Court makes it clear that there is absolutely no need for the appellant to "enter upon or be in the vicinity of the premises known as 26 Alt Street, Bondi". The order of Bryson J would be read according to its terms and to achieve the purposes which his Honour explained. These were not at all to confine the appellant to a form of house arrest near Bondi Beach. To the contrary, the order was simply designed to prevent the appellant from further harassing the respondents in and near the premises at 26 Alt Street. I regret to say that this endeavour to have varied the terms of the injunction suggests once again the delusional sport in which the appellant has become involved. It is a sad game, for it is ultimately grounded in the appellant's beliefs of rejected affection. However unfortunate is the predicament of the appellant, the respondents have also suffered. The law provides protection for them. That protection may be afforded in the terms of the injunction which Bryson J ordered. Cf Vincent and Anor v Peacock [1973] 1 NSWLR 466. See also Motherwell, et al v Motherwell (1976) 73 DLR (3d) 62 (SCA). Motion to "charge" the respondents with perjury Although a court would not "charge" a person with perjury, except in the sense of directing that the allegedly perjured evidence be referred to prosecuting authorities, no basis has been established by the appellant which would even come close to satisfying me that the respondents have been guilty of perjury so as to warrant such a course. Therefore, the two grounds in the notice of motion fail. The motion must, accordingly, similarly be dismissed. Conclusions and orders Necessarily this appeal concludes only the appellant's challenge to the orders made by Bryson J. It does not determine the outcome of any application which the appellant may be entitled, by law, to make at first instance for a variation of the orders of his Honour as may be justified by changed circumstances. Nor does it determine the substance of the appellant's claim (if any) against Mr Jeffrey Flach. Upon that claim, and any other obligation of Mr Waldman to the appellant, I would reserve my opinion for it does not need to be expressed in the limited circumstances of disposing of this appeal and the ancillary motion. In my opinion the appeal and notice of motion must each be dismissed with costs. Mahoney JA There are two main questions in this appeal: whether the defendant did what theplaintiffs claim she did; and whether the injunction granted should go. If considered in the context of a trial where every objection to evidence was taken, there would be doubt as to whether the plaintiffs have proved that all of the things of which they have complained were done by the defendant. But Bryson J was entitled to consider the facts in the light of the way in which the trial proceeded. The plaintiffs' evidence was not questioned by cross-examination nor, in relevant respects, was it objected to. His Honour was, in my opinion, justified in finding the facts substantially as he did. The facts, as his Honour found them, established a nuisance of a kind for which relief has been given in this Court. Relief has traditionally been given against conduct of the nature of watching and besetting: see, eg, J Lyons and Sons v Wilkins (1899) 1 Ch 255; Seton's Judgments and Orders, 7th ed (1912), at 602; and conduct interfering with the reasonable enjoyment of premises: Vincent v 4 UNREPORTED JUDGMENTS Peacock (1973) 1 NSWLR 466. The present conduct related essentially to, and the injunction was granted essentially by reference to, interference with the premises of which the plaintiffs were in possession. This, in my opinion, is a proper basis for relief: cf Fitzwilliam v Beckman (1978) Qd R 398. There must be some doubt as to whether the injunction will in fact prevent the defendant doing what she is doing. The defendant, in her affidavit evidence, referred to being the subject of "psychic manipulation" and some of the evidence given by her in explanation of her conduct suggests the possibility that she does not fully appreciate the wrong that she is doing to the plaintiffs or that she should not do it. Where a trial judge concludes that, for reasons of this kind, the result of an injunction will in all probability be not that the nuisance will stop but that the court will have to deal for contempt with a person whose mental capacity or functioning is such that it would be wrong to imprison her, it may be doubted that injunction is a proper remedy: cf Vincent v Peacock at 468G. But that is not the present case. The form of the injunction is, in the circumstances, not objectionable. It is, of course, necessary that the form of an order be such as to make as clear as may be what is and is not proscribed by it. But the order must be drawn so as to achieve what is necessary to prevent the wrong, in this case, the nuisance. In the circumstances of this case, I do not differ from the view of Kirby P that the degree of generality on which the order is framed is necessary or at least appropriate in order that it achieve the purpose for which it has been given. I agree with the orders proposed. Meagher JA The appellant, Mrs King-Knazovicka, who appeared before us in person, believes that she is married to a Mr Jeffrey Jay Flack. Indeed, she asserts she has been married to him more than once. She has also formed obsessional delusions that he is hiding in the premises of Miss Sharon Lucas, one of the respondents; that Miss Lucas has sexual relations with him; and that he masquerades as her de facto husband, Mr David Waldman, another of the respondents. She has therefore set about a course of conduct besetting these persons and Miss Lucas's parents, telephoning them for no purpose, writing to them, trying to force herself into Miss Lucas's premises, and threatening them with assault. She has also taken to slandering Miss Lucas on every possible occasion, stigmatizing her in colourful and obscene language as a whore. In so doing she has severely incommoded and damaged the four respondents in the peaceful enjoyment of their respective premises. This, of course, constitutes the tort of nuisance. Bryson J granted injunctive relief against her at the suit of the four respondents after they had proved the facts which I have endeavoured to summarize above, each of them having sworn affidavits. There was ample authority for him to do so: suffice it to mention this Court's decision in Vincent v Peacock (1973) 1 NSWLR 466. She now appeals. Her notice of appeal raised four grounds. First, it was submitted that the allegations against her were "untrue and based on false statements and prefabricated lies": but this is not a ground of appeal. Secondly, it was alleged that she was, at the hearing before Bryson J, deprived of the testimony of witnesses whom she had subpoenaed: this ground was not made out. Thirdly she alleged that the respondents' evidence was "without supporting evidence... or cross examination". But the four witnesses did manifestly support each other, and URJ KING-KNAZOVICKA v LUCAS (Meagher JA) 5 she declined to cross-examine them although invited to do so. Fourthly, she alleged that the "Court gave false statement about Jeffrey Flack to her", a totally incomprehensible complaint. She also sought to lead fresh evidence. Leave to do so was refused, because the conditions of receiving fresh evidence were not fulfilled. She also filed a Notice of Motion seeking orders to discharge the injunction and charge the respondents with perjury. The former order cannot be made except by a court of first instance, and the second order cannot be made because the Court of Appeal is not the Director of Public Prosecutions. Three matters remain for comment. The first arises from the fact that at the trial before Bryson J not only were the respondents not cross-examined but the appellant herself was not cross-examined on the lengthy affidavit filed by her. Bryson J held that no adverse inferences could be drawn against the respondents on this account under the rule in Brown v Dunn (1893) 6 R67. His Honour was correct. The affidavit was partly gibberish (eg. an assertion that the appellant was subject to "psychic manipulation"), mostly irrelevant, and insofar as it was relevant did not seek to rebut the respondent's allegations. The second is that even if the appellant's beliefs were factually true and not delusional, they would have afforded no justification for her campaign to beset the respondents. The third is that this is one of the very few examples where an injunction can properly be granted to restrain a defamatory utterance. The appeal must be dismissed with costs. The Notice of Motion must suffer a similar fate. 1. Appeal dismissed with costs; and 2. Motion dismissed with costs. Counsel for Appellant: In Person Solicitors for Appellant: In Person Counsel for Respondent: B Coles Solicitors for Respondent: Clayton Utz