Local Court New South Wales Medium Neutral Citation: Murdoch v Hadley [2011] NSWLC 11 Hearing dates: 14-15/02/2011 Decision date: 25 February 2011 Jurisdiction: Civil Before: Magistrate Brown Decision: The application is dismissed. Catchwords: APPREHENDED VIOLENCE ORDERS - application for apprehended personal violence order - defendant had made radio broadcasts concerning plaintiff's past business activities and criminal history - meaning of "harassment" - interaction with law of defamation Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007, ss 4, 7, 8, 10, 19, 41, 48, 99 Cases Cited: Hunt v Watkins [2000] NSWCA 229 Mailman v Ellison (unreported, NSWCA, 25 November 1993) Ryder v Wombwell (1868) LR4Ex 32 Sullivan v Moody [2001] HCA 59 Category: Principal judgment Parties: Matt Murdoch (Plaintiff) Raymond Hadley (Defendant) File Number(s): 2010/265587 JUDGMENT 1This case is an application by Matt Murdoch for an apprehended personal violence order against Raymond Hadley. Whilst the basis for Mr Murdoch's application has never been very clearly enunciated by him, his primary complaint appears to be that Mr Hadley is pursuing a radio broadcast "vendetta" against him because of Mr Murdoch's past failed business dealings and criminal activity, and his repeated desire as to the outcome of these proceedings is that that vendetta should cease. Although the detailed contents of the radio broadcasts in question are not in evidence, there seems to be little doubt that Mr Murdoch's assertion has some foundation. There also seems to be little doubt that many of Mr Hadley's comments about Mr Murdoch are well founded in fact. 2In addition to the broadcasts, Mr Murdoch claims that Mr Hadley made a number of telephone calls to Mr Murdoch himself, his son BM, and father Kevin Mills. It is asserted that those calls were intimidating in nature, with claims that Mr Hadley threatened he would "fix up" Mr Murdoch, or "bring him down" or to "make his life hell". Mr Hadley categorically denied making any of the alleged calls. Other isolated acts of intimidation are also claimed by Mr Murdoch, and denied by Mr Hadley The Crimes (Domestic and Personal Violence) Act 2007 3Section 19 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act) relevantly provides: " 19 Court may make apprehended personal violence order (1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order. ... (3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person." 4Apart from the alleged rather vague telephone calls, that are discussed in greater detail below, there is no other evidence before the court to suggest that Mr Hadley has ever committed, threatened or contemplated the commission of a personal violence offence (as defined in s 4 of the Act) against Mr Murdoch or against any person in a domestic relationship with Mr Murdoch. Whilst Mr Hadley displays antipathy to Mr Murdoch, he not unnaturally prefers to exercise his influence in a public and non-violent manner through his radio broadcasts. Section 19(1)(a) would therefore appear to have no application, as the alleged telephone calls fall more logically under paragraph 19(b). Conveniently then, the first question to be addressed is whether any behaviour on the part of Mr Hadley could at law amount to intimidation or stalking within the meaning of section 19(1)(b) of the Act. Stalking 5Aside from the telephone calls, in his original complaint, Mr Murdoch made a reference to being "stalked" by Mr Hadley. Section 8 of the Act provides: " 8 Meaning of "stalking" (1) In this Act, stalking includes the following of a person about or the watching or frequenting of the vicinity of, or an approach to, a person's place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity." 6This aspect of the complaint may be dealt with easily. It does not appear to be disputed that, in one of his broadcasts, Mr Hadley made reference to Mr Murdoch being escorted from Blacktown Westpoint by security on 27 July 2010 around 10.45 am. At this time Mr Murdoch was in Blacktown, and Mr Hadley was at the radio station studios in Pyrmont. It also appears to be undisputed that Mr Murdoch was not escorted from Westpoint by security on this occasion. 7Obviously some person reported Mr Murdoch's presence in Blacktown to Mr Hadley. That behaviour, of course, cannot constitute stalking on the part of Mr Hadley. It seems quite clear that the definition in s 8 requires the alleged stalker to be the person who was actually following the victim about, and that stalking cannot occur by proxy. It is possible that the person who made the report to Mr Hadley might be found to have stalked Mr Murdoch, but no such finding could be made against Mr Hadley himself. There is no other evidence that might found an allegation of stalking. This aspect of the complaint may be dismissed from further consideration. Intimidation 8Section 7 of the Act provides: " 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property." 9Whilst, as observed above, there is no evidence before the court of the precise content of any of Mr Hadley's broadcasts relating to Mr Murdoch, it appears to be common ground that they contained references to Mr Murdoch's history of corporate and criminal dishonesty and violence and, as such, would not appear to have any apparent content that would cause Mr Murdoch "to fear for his safety", however uncomfortable the repeated disclosure of his past history might be for Mr Murdoch. Nor is there any evidence from Mr Murdoch of any conduct on the part of Mr Hadley that might cause a reasonable apprehension of injury to Mr Murdoch or to any person in a domestic relationship with him. Paragraphs (b) and (c) of section 7 (1) can therefore be discounted. Section 7(1)(a) must, however, be considered, including as it does the concepts of "harassment" and "molestation". Neither term is defined for the purposes of the Act. Molestation 10"Molest" is defined in the Macquarie Dictionary as follows: verb ( t ) 1. to assault sexually. 2. to interfere with annoyingly or injuriously. [Middle English moleste ( n ), from Latin molestre ]. "Molesting" and "molestation" both have, in accordance with this definition and in general usage (eg "sexual molestation"), an implicit element of physical in terference with the person of the victim, and there is no evidence of any such interference with any person by the defendant. As such, "molestation" appears to have no direct relevance to the facts in issue. Harassment 11In the same source, "harass" is said to mean: verb ( t ) 1. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid. 2. to disturb persistently; torment. [French harasser , from Old French harer set a dog on] 12As a general proposition, there appears to be no reason why repeated verbal attacks upon a person could not amount to harassment as "repeated attacks" or as "torment", and evidence of such attacks is by no means uncommon in the evidence relating to apprehended violence orders, although rarely of attacks so openly publicized. Such an interpretation is consistent with the dictionary definition given above, and, if accepted, seems to be as applicable to verbal attacks broadcast via electronic media as it would be to verbal attacks made orally in the presence of the victim, or, for example, broadcast via telephone or loudspeaker. 13Also it would seem to follow that repeated unwanted telephone calls to another person could fall within any broad interpretation of "harassment" even if, as here, those calls do not fall within s 7(1)(b) because they do cause any genuine fear regarding physical safety of persons or property. No Case to Answer 14At the close of Mr Murdoch's case, Mr Dawson for the defendant elected to argue that Mr Hadley had no case to answer in accordance with the common law procedure analogous to Pt 29 r 10 of the Uniform Civil Procedure Rules. Because Mr Murdoch was unrepresented and wished to cross-examine Mr Hadley, and because of the importance of ultimately resolving the factual disputes should the matter proceed beyond this point, I indicated that I would not necessarily require Mr Dawson to elect whether to call evidence or not before ruling on his submissions. As it turns out, a ruling on that point is unnecessary given the conclusions reached below. 15The keys to Mr Dawson's argument that, taking the plaintiff's case at its highest, 'the evidence adduced was such that a verdict in his favour by a jury would, if challenged, necessarily be set aside' (Mailman v Ellison (unreported, NSWCA, 25 November 1993) per Mahoney JA, Kirby P and Sheller JA concurring; Hunt v Watkins [2000] NSWCA 229 per Stein JA, Fitzgerald and Heydon JJA concurring), were twofold. First he argued, with respect to the alleged harassment by way of Mr Hadley's radio broadcasts, that these were solely a matter for the law of defamation and that domestic violence legislation was never intended by Parliament to have been applicable, and was not applicable, to that field of law. Secondly it was put, with respect to the alleged telephone calls and evidence generally, that neither Mr Murdoch nor his other witness Mr Mills was a credible or reliable witness, the implication being that, since their evidence was the only evidence for the plaintiff', a jury verdict in Mr Murdoch's favour would necessarily be overturned on appeal. The Proper Scope of Domestic Violence Legislation 16The first issue is one of considerable general significance. Mr Dawson likened the position to that considered in Sullivan v Moody [ 2001] HCA 59 where, in a unanimous judgment, Gleeson CJ, Gaudron, McHugh Hayne and Callinan JJ commented at [54]: "The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not." 17By itself, the analogy is not a strong one: overlapping of different fields of the common law, like negligence and defamation, is readily amenable to demarcation by the higher courts. But if, as with domestic violence legislation, Parliament chooses to create a field of law that potentially overlaps with either the common law or other statutory fields, the courts must apply the parliamentary scheme regardless of any overlap generated, whilst nonetheless seeking, as far as is consistent with Parliament's intention, to harmonize the various elements into a workable scheme. 18Nevertheless, there is much force in Mr Dawson's more general argument on this point. Section 10(1) of the Act provides: " 10 Object of Act in relation to personal violence (1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship." 19The express object of the Act in the present application is to protect people against "personal violence". The immediate scope of those words is demonstrated in the s 4 definition of what are a "personal violence offences", all being offences of actual or threatened physical violence to persons or property. And whilst the concept of "violence" may be modified by the word "harassment", it seems more probable that the scope of "harassment" should be restricted to matters falling within the scope of "personal violence" so that repeated public attacks on a person's reputation (which might otherwise constitute harassment) should fall outside the scope of that term in the domestic violence legislation because they do not involve any threat of violence to person or property. ( The same argument might be made, with the same force, that non-threatening but repeated sexual solicitation, whilst classified as "sexual harassment", should fall outside the scope of harassment in the domestic violence legislation.) 20The obvious difficulty with this construction is that, in s 19(3) of the Act, Parliament has expressly provided that: "(3) For the purposes of this section, conduct may amount to intimidation of a person even though: (a) it does not involve actual or threatened violence to the person, or (b) it consists only of actual or threatened damage to property belonging to, in the possession of or used by the person." 21This subsection, like the word "harassment" must be construed to operate within the scope of the Act in which it is contained. It seems to me that the obvious interpretation that is consistent with that scope is that s 19(3)(a) should be read as meaning that conduct may amount to intimidation of person X ( a person) even though it involves no actual or threatened violence to that same person X ( the person referred to in para (3)(a)). On this construction, the Act envisages that intimidation of X could be constituted by a threat to Y, and that construction sits comfortably within the scope of the Act, effectively extending slightly the scope of ss 7(1)(a)( and (b) and making them consistent with s 7(1)(c) in this regard. 22Whilst this interpretation is restrictive, and not perfectly consistent with all of the other language of the Act, to read s 19(3)(a) as allowing conduct with no actual or implicit threat of personal violence, and no other connection with the concept of a personal violence offence, to constitute intimidation in the form of "harassment", would simply leave the concept of "harassment" at large, unconstrained by the scope and explicit objects of the Act. 23Furthermore, it seems highly likely that, if Parliament had intended the domestic violence legislation to extend from the field of personal violence into the field of defamation, it would have done so much more plainly than by reliance on the construction of a single word "harassment" that still has appropriate work to do within the confines of the Act's statutory objects. 24I find Mr Dawson's argument most persuasive, for the reasons just given. It seems to me that Parliament cannot have intended to allow non-threatening attacks on a person's reputation to fall within the scope of legislation that is to be applied in a summary jurisdiction without all the privileges, defences and other safeguards that are built into the law of defamation. Consequently, I am of the view that, absent any actual or clearly implicit threat to persons or property, repeated broadcasts denigrating a person in some way cannot amount to harassment within the meaning of the Act. 25Putting aside for the moment the assertions of actual threats made in telephone calls, to which I will return later, the real substance of Mr Murdoch's complaint is that Mr Hadley is repeatedly reminding his listeners of Mr Murdoch's past misdeeds (and implications that might be drawn therefrom) causing distress to Mr Murdoch and his family and upsetting Mr Murdoch's business activities. As noted above, it was Mr Murdoch's repeated assertion that he brought these proceedings in order to stop Mr Hadley continuing to make those broadcasts. 26It is fair to observe that assertions made by Mr Hadley about Mr Murdoch are not always well founded in fact, the most obvious being the above-mentioned episode regarding Blacktown Westpoint. And no doubt it is the nature of Mr Hadley's activity that many allegations will be entirely unsubstantiated when broadcast, and remain so. The real irony is that Mr Hadley is asserting in his defence that Mr Murdoch is making false allegations about Mr Hadley, and, in the course of these proceedings, Mr Hadley's counsel has vigorously pressed Mr Murdoch to provide substantiation for his allegations. It is not surprising that both men appear to be quite upset by the allegations being made by the other. That, however, is simply a necessary consequence of the open and public nature, of Mr Hadley's broadcasts on the one hand, and of the court process on the other hand. It should be noted that, at the commencement of the hearing, both parties supported the court being open to the press and the public and I so directed under s 41(2) of the Act. Credibility of the Plaintiff 27Mr Murdoch gave evidence on his own behalf, and was extensively cross-examined over two days by counsel for Mr Hadley. Mr Murdoch was a very poor witness. He was constantly, almost automatically, evasive, with a strong reluctance to answer directly the questions asked of him, constantly revising his answers and adding editorial comment disparaging of Mr Hadley despite repeated admonitions from the bench to refrain. He declined to accept as accurate a significant number of documents regarding his past criminal history and dealings with the corporate regulator ASIC, denying their accuracy, and then revising his version as new facts, such as penalties applied, came to light. He also declined to accept as accurate the documents produced under subpoena from the telephone carriers that were put to him regarding the alleged telephone calls. He refused to accept responsibility for his own errors in the witness statements he relied on, blaming his son BM for deficiencies that were almost certainly created by Mr Murdoch himself, such as incorrect timing of telephone call allegedly made to BM by the defendant. 28For example, Mr Murdoch tried to maintain that telephone calls that appeared in records as coming from numbers #501 or #4065 must have been made by the defendant, notwithstanding evidence from telephone company records that these were markers for incoming international calls from Singapore where the international carriers were not required to supply full calling number identification information. His response to these records was to try to assert that Mr Hadley must have had someone in Singapore make the calls to harass him! Quite why Mr Hadley would go to such extraordinary lengths to irritate Mr Murdoch was never explained. 29Mr Dawson for the defendant carefully placed before Mr Murdoch records not only of calls from the defendant's various phones at each date and time (if any) that Mr Murdoch alleged he had received such a call, but also records of incoming calls to Mr Murdoch's phones covering the same time periods. In no case was Mr Murdoch able to identify any incoming call as coming from Mr Hadley's numbers. Equally remarkably, he denied knowledge of the identities of most of the other people whose telephone number appeared as calling Mr Murdoch around the times the threatening calls were allegedly made, implying, but never stating, that these callers might have been Mr Hadley. 30Ultimately, Mr Murdoch was unable to point to any telephone call coming to his telephones that matched the details he provided in his particulars to the defence, or that could be matched with a call made by Mr Hadley, and no other conclusion was possible but that the allegations that Mr Hadley had telephoned the plaintiff and threatened him were pure fabrication on the part of the plaintiff, and entirely lacking in credible independent documentary support. 31Mr Murdoch's 14 year old son BM, who had been in court on the first day of the hearing, was not present on the second day, and although it was alleged that he too had received a threatening call from Mr Hadley on his personal mobile phone, he was not called to give evidence. It transpired that the statement purportedly from him had not in fact been signed. However, Mr Dawson was able to demonstrate that there were no calls to the son's phone at or about the time alleged that could possibly have come from Mr Hadley. 32Further adverse to his credibility was the fact that he had added a number of persons, including 2 adults and 3 children, as PINOPs on his application, without their consent or knowledge. One such person (Kristy Mills) was removed from the application at her request in preliminary hearings, but the second adult and the children were not removed until the morning of the hearing following the adult, Mr Murdoch's partner until about 2 weeks before the hearing, lodging a damaging affidavit seeking to be removed from the proceedings. 33There was also significant evidence of past deceptive conduct on the part of Mr Murdoch that showed a readiness to act dishonestly for his own advantage. He signed various emails as a JP, which he was not. He managed companies whilst disqualified as an undischarged bankrupt, and was further disqualified by ASIC for the maximum period of 5 years. Despite convictions and bonds for assault and assault occasioning actual bodily harm, Mr Murdoch told a story of acting in self defence against a gang of assailants, although clearly that version was not accepted by the sentencing court. Conclusions as to Credibility of the Plaintiff's Evidence 34The lack of any records of telephone communications, and the lack of any attempt by Mr Murdoch to obtain any such records, completely undermined his claims of threatening or intimidating calls being made to him by Mr Hadley. By contrast, the defence had gone to great lengths to obtain detailed records of all relevant dates and times from all 3 major carriers, and these demonstrated on the balance of probabilities that none of the calls allegedly made by Mr Hadley had ever occurred from any phone associated with him. 35In the final analysis, it is impossible to accept any part of Mr Murdoch's evidence that is not independently corroborated, and there is very little of that. The evidence of his father Mr Mills was clearly, and admittedly, partisan and whilst his desire to assist his son is admirable, that evidence, like that relating to Mr Murdoch's son BM, completely failed to survive the compelling telephone company evidence that the calls he sought to lay at Mr Hadley's door were simply never made either from any known phone of Mr Hadley, or to any known phone of Mr Murdoch or his son or his father. 36In fairness to Mr Hadley and the detailed and exhaustive evidence marshalled, at considerable expense, to rebut Mr Murdoch's purely oral evidence regarding the telephone calls, I should record that I am satisfied on the evidence before me, not just on the balance of probabilities but even at the much higher standard of proof beyond reasonable doubt, that not one of the alleged telephone calls ever occurred. Conclusions 37Insofar as disparaging broadcast comments are concerned, those are matters for the law of defamation, in respect of which this court has no jurisdiction. As indicated above, they do not in my view amount to intimidation by way of harassment as a matter of law. However, should I be wrong on that point, I record my view that, for the same reasons as advanced above, there is no evidence that whatever comments may have been broadcast contain anything that, within s 19(1)(b), would be sufficient to warrant the making of any order under the Act. 38It follows that I am satisfied that, on the law as found above and rejecting in its entirety the evidence of the plaintiff and his father regarding the alleged threatening telephone calls, there is no evidence reasonably capable of satisfying the court that any of the matters sought to have been proved has been established (Ryder v Wombwell (1868) LR4Ex 32 at 39) , or, in more recent parlance, taking the plaintiff's case at its highest, the evidence adduced is such that a verdict in the plaintiff's favour by a jury would, if challenged, necessarily be set aside. 39The application is dismissed. Costs 40As this is a application for an apprehended personal violence order, subsections 99(3) and (4) of the Act have no application, and it is usual that costs follow the event. Whilst Mr Ken Mills is listed as a person in need of protection in the application, and may, as an adult, be properly so joined under s 48(4), it would appear that Mr Mills was only involved in that capacity, and did not sign the application as an applicant. In those circumstances, the effect of s 99 would appear to be that a costs order can only be made against an applicant or against a defendant, so that only Mr Murdoch can be made the subject of such an order. 41I will hear the parties as to costs. 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. Decision last updated: 11 May 2011