D v H
[2025] NZHC 988
•30 April 2025
ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES. IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2024-412-031
[2025] NZHC 988
UNDER the Defamation Act 1992 BETWEEN
D
Applicant
AND
H
Respondent
Hearing: 9 April 2025 Counsel:
Applicant in person
J W Cowan for Respondent
Judgment:
30 April 2025
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 30 April 2025 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:
D v H [2025] NZHC 988 [30 April 2025]
[1] Ms D sued Ms H in the District Court alleging she had been defamed. Judge Tuohy entered summary judgment in favour of Ms H.1 Ms D appealed Judge Tuohy’s judgment. The appeal has not advanced due to procedural skirmishes. One of these relates to a 159-page interlocutory application filed by Ms D (the interlocutory application).
[2] A dispute arose whether Ms H had served her opposition to the interlocutory application within time. In a judgment of 19 September 2024 Associate Judge Lester held that Ms H had done so.2 Associate Judge Lester awarded Ms H costs on a 2B basis and ordered that if Ms D did not pay the costs within 15 working days her appeal would be stayed.3 The costs have not been paid. Accordingly, Ms D’s appeal is presently stayed.
[3]In the application before me, Ms D seeks orders:
(a)striking out Ms H’s notice of opposition to the interlocutory application;
(b)granting leave to appeal Associate Judge Lester’s judgment of 19 September 2024;
(c)granting a stay of the orders made by Associate Judge Lester pending her appeal;
(d)granting a stay of the District Court judgment; and
(e)that Ms H disclose arrangements she has used to maintain her participation in these proceedings.
[4]All the applications are opposed by Ms H.
1 D v H [2023] NZDC 26980. Pursuant to a non-publication order made in the District Court, the names adopted are those used for the purposes of an earlier judgment regarding this proceeding: D v H [2024] NZHC 2718.
2 D v H [2024] NZHC 2718.
3 At [29]–[30].
Background
[5] Ms D’s defamation claim arose from an incident at Te Pūkenga in Otago between her and Ms H on 4 August 2023. Ms D was then a student at Te Pūkenga. Ms H is a staff member. Ms H prepared a file note of the events that occurred, the contents of which formed the basis of Ms D’s defamation claim. In his judgment of 19 December 2023 Judge Tuohy entered summary judgment for Ms H on the basis that Ms D’s claim could not succeed.4
[6] Ms D’s notice of appeal from Judge Tuohy’s judgment did not provide a physical address for service as required by the High Court Rules 2016 (the Rules).5 It stated, “Documents for service related to this appeal may be emailed to the following email address ...”.
[7] A telephone conference was held before Preston J on 6 May 2024. Preston J made a direction pursuant to rr 1.3 and 6.20 as follows:
Ms D is required to file notice of a physical address for service, by 5 pm, Monday 20 May 2024.
[8] On 21 May 2024 Ms D attempted to file the interlocutory application. The Registrar referred it to Eaton J who issued a minute on 27 May 2024 directing the Registrar to accept the interlocutory application for filing but recognising that it was ill-conceived. Eaton J said:
[7] It is not difficult to understand why the Registrar considered the application related to the District Court proceedings and not the appeal. Not only does the application seek orders in relation to the evidence and pleadings filed in the District Court, it seeks to amend those pleadings and to transfer the proceeding to High Court. But that claim has been determined in Ms H’s favour. The District Court is now functus officio. Ms D is seeking orders that overlook that judgment has been entered against her. Applications to strike out evidence, defences or defence interlocutory applications, were matters for her to pursue in the District Court, prior to the determination of the summary judgment application.
[8] On appeal, this Court will consider the grounds of appeal to be raised and said to establish error in the District Court judgment. Particularised grounds of appeal are yet to be filed. The grounds might include a challenge as to the admissibility of evidence, or error in finding in favour of a pleaded
4 D v H, above n 1, at [34].
5 High Court Rules 2016, r 5.44(1).
defence. But such matters are not properly raised by way of interlocutory application on the appeal.
[9] The extensive work undertaken by Ms D in preparing the interlocutory application would be more appropriately repackaged, first by way of a summary of particularised grounds of appeal (as directed by Preston J) and otherwise as her submissions in support of the appeal. The current application seems to raise matters likely to form the substance of the appeal and should be considered at the substantive appeal hearing not as an interlocutory application.
[10] The High Court Rules permit the filing of the interlocutory application. I hereby grant the application to review the Registrar’s decision. However, Ms D should be aware an interlocutory application is not the appropriate procedure for advancing the matter she wishes to advance and will inevitably be opposed. If the application is dismissed, Ms D may be liable for a costs award to meet the costs incurred by Ms H in responding to the application.
[11] If the application is to be pursued, it will need to be served and, if opposed, set down for call before an Associate Judge.
[9] On 30 May 2024 Ms D filed a document headed “Notice of physical address” (the Notice) which she did not serve on Ms H and in which she stated:
[1]Pursuant to the direction of the Honourable Justice Preston made this past 8th Day of May, 2024, [Ms D] hereby gives notice of the following physical address:
...
[2]Pursuant to the High Court Rules 2006, r 5.40(5), [Ms D] hereby specifies that any service of documents for the purpose of this proceeding is to be by way of email communication to the following email address:
...
[10]Associate Judge Lester issued a minute on 4 June 2024, stating:
For the avoidance of doubt, Ms D is to file and serve a physical address for service within five working days of the date of this Minute. Until a physical address for service that complies with the High Court Rules is filed and served by Ms D, her appeal cannot progress.
[11] Also on 4 June 2024 Ms H filed a notice of opposition to Ms D’s interlocutory application. That was not immediately served on Ms D because Ms H’s counsel took
the view that as Ms D had not served a physical address for service she was not entitled to be served with copies of any documents in the proceeding.6
[12] A further telephone conference was held on 26 June 2024. Associate Judge Lester, among other things:
(a)clarified that it was Ms D’s intention that the physical address provided in the Notice was her address for service in the proceeding, but it was her preference that documents be sent to her by email;
(b)noted that the Notice had not been sent to Ms H’s lawyer because Ms D considered Ms H was not entitled to receive documents in the proceeding;
(c)directed that any documents filed on behalf of Ms H were to be sent by email to Ms D;
(d)arranged a further telephone conference for 3 July 2024; and
(e)recorded that the purpose of that conference was:
.... for Ms D to advise if she prefers to, in practical terms, abandon the interlocutory application and have her appeal set down for hearing or whether she wishes her interlocutory application to be set down for hearing. If it is the latter, then timetable directions in respect of the hearing of that application will be made. If it is the former, then directions for the appeal will be made.
[13] At the next telephone conference on 3 July 2024 Ms D advised that she had not received Ms H’s notice of opposition, despite Mr Cowan confirming it had been sent by email on 26 June 2024 as directed. During the conference Associate Judge Lester directed Mr Cowan to resend his email.
[14] Ms D advised Associate Judge Lester during the 3 July 2024 telephone conference that she wished to maintain her position that Ms H’s notice of opposition had been filed out of time. Associate Judge Lester directed that Mr Cowan was to file
6 High Court Rules, r 6.20.
an application to enlarge time to serve the notice of opposition (if leave be required). He recorded:
[8] I explained to Ms D that if her opposition to Mr Cowan’s application is unsuccessful that there will be costs consequences.
[9] Mr Cowan, did not see the need for him to make an application, when as far as he was concerned, the [notice of opposition]7 was within time. That is why his application will be styled as an application to enlarge time for service if leave is required. If leave is not required, then the hearing will confirm that and Ms D will be liable for costs. If leave is required then the merits of that application will be addressed.
[15] Ms H’s application to enlarge time to serve the notice of opposition was heard on 18 September 2024. On 19 September 2024, Associate Judge Lester issued his judgment which, as noted above, held that Ms H’s notice of opposition was filed within time,8 and awarded costs against Ms D and stayed her appeal from the District Court in the event the costs were not paid.9
[16] Ms D filed her application seeking leave to appeal Associate Judge Lester’s decision and the other orders listed in [3] above on 25 September 2024.10 I will deal with each order sought under the headings below.
Application to strike out Ms H’s notice of opposition dated 4 June 2024
[17] Ms D argues that the notice of opposition should now be struck out as it is frivolous, does not disclose any reasonably arguable basis for opposing her interlocutory application and will cause delay in the proceeding.
[18] Ms D’s interlocutory application faces insurmountable hurdles. First, for the reasons Eaton J identified, the interlocutory application has no prospect of success. To the extent that Ms D challenges the evidence and Ms H’s pleadings in the District Court, she raises issues that will only be determined should her appeal progress to a hearing and not on an interlocutory application. I agree with Ms H’s opposition to the
7 Associate Judge Lester wrote “application” but must clearly have intended to refer to the notice of opposition to Ms D’s interlocutory application. I consider the reference to the “application” was an error.
8 D v H, above n 2, at [27].
9 At [29]–[30]. On 19 September 2024 Ms D filed a memorandum asking that Associate Judge Lester rescind his judgment. Associate Judge Lester refused to do so.
10 Ms D amended the application on 3 October 2024.
interlocutory application that it is not reasonably arguable and is an abuse of process. Second, Ms D’s appeal has been stayed, and even if the interlocutory application had merit the Court will not consider it unless the stay is lifted.
[19]This application is dismissed.
Leave to appeal
[20] An application for leave to appeal is governed by s 56(3) of the Senior Courts Act 2016, which provides:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals —
(a)from a judgment, decree, or order of the High Court:
…
(2)Subsection (1) is subject to subsections (3) and (5) and to rules made under section 148.
(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.
…
(6)If leave to appeal under subsection (3) or (5) is refused in respect of an order or a decision of the High Court made on an interlocutory application, nothing in this section prevents any point raised in the application for leave to appeal from being raised in an appeal against the substantive High Court decision.
[21] Section s 56(3) was intended to reduce the number of appeals from interlocutory decisions in the High Court where the delay of an appeal is not justified.11 The High Court in Finewood Upholstery Ltd v Vaughan said:12
[13] The requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties
11 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [15].
12 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.
or more generally, do not unnecessarily delay the proceedings in which the orders were made.
[14] Ultimately … the court hearing an application for leave to appeal from an interlocutory order will need to stand back and assess, in a pragmatic and realistic way, whether the interests of justice are served by granting leave to appeal.
(emphasis added)
[22] The approach for determining an application for leave to appeal an interlocutory decision was summarised recently in Bank of New Zealand v Christian Church Community Trust:13
[9] There is a high threshold for leave to appeal an interlocutory order for a variety of reasons. Leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, for the particular case or the applicant or as a matter of precedent, warrant the further delay which the appeal would involve. The overarching test is the interests of justice.
(footnote omitted)
[23] Consistent with this, the relevant considerations in determining an application for leave to appeal have been held to be:14
(a)the applicant must identify an arguable error of fact or law;
(b)the alleged error should be of general importance warranting determination, or otherwise be of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(c)the circumstances must warrant incurring further delay; and
(d)the ultimate question is whether the interests of justice are served by granting leave.
13 Bank of New Zealand v Christian Church Community Trust [2024] NZCA 246. See also
Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]–[7].
14 Finewood Upholstery Ltd v Vaughan, above n 12, at [9], referring to A v Minister of Internal Affairs [2017] NZHC 887 at [10]–[12]. Affirmed in Greendrake v District Court of New Zealand, above n 13, at [6]; and more recently in Ding v James [2021] NZCA 578 at [18].
Is there an arguable error of law?
[24] In his judgment of 19 September 2024, Associate Judge Lester held that the Notice did not comply with the direction of Preston J of 8 May 2024 because it did not provide a physical address for service but specified that service was to be by way of email.15 He said it was only at the teleconference of 26 June 2024 that Ms D confirmed that the physical address stated in that notice could be used as her address for service. Prior to that date, under r 6.20 Ms D was not entitled to be served with any documents and the time within which Ms H was required to file her notice of opposition to the interlocutory application did not begin to run.16 He considered that under r 7.24(1) Ms H had 10 working days from 26 June 2024 to file her notice of opposition to the interlocutory application, and as the notice of opposition was filed and served by 3 July 2024 it was in time.17
The Rules
[25] Rule 5.44 provides that at the end of the first document filed by a party there must be a memorandum stating, among other things, an address for service.18
[26]The term “address for service” is relevantly defined in r 1.3 as:
… means the address of a place in New Zealand at which a document may be left for that party, or to which it may be sent by post to that party …
[27] When read in conjunction with r 6.5, it is plain that r 1.3 contemplates a physical address for service. Rule 6.5 states:
6.5 Service at address for service
A document may be served at an address for service by leaving the document at that address at any time between 9 am and 5 pm.
[28] Rule 6.20 provides for the circumstance where a party fails to give an address for service as follows:
15 D v H, above n 2, at [13].
16 At [25]–[26].
17 I am satisfied the notice of opposition was served on Ms D by email on 26 June 2024.
18 High Court Rules, r 5.44(1).
6.20 Failure to give address for service
A party to a contentious proceeding who has not given an address for service is not entitled to be served with notice of any step in the proceeding or with copies of any further documents filed in the proceeding or to address the court.
[29] Ms D relies upon r 5.40 which is concerned with the circumstance where a party changes their representation, address for service or the method by which they will accept service. It relevantly provides:
5.40 Change of representation or address for service
...
(5)A party may change that party’s address for service by –
(a)filing a notice of the change showing the new address for service or specifying an address for a method of service set out in rule 6.1(1)(d); and
(b)serving a copy of the notice on every other party.
[30] Rule 7.24 provides that a respondent who intends to oppose an interlocutory application must file and serve a notice of opposition to the application before the end of the tenth working day after being served with the application, and not less than three working days before the hearing date.
Ms D’s submissions
[31] I understand Ms D accepts her notice of appeal did not contain a memorandum providing a valid address for service because it did not contain “the address of a place in New Zealand at which a document may be left for that party”.19 However, she contends the Notice was compliant with the direction of Preston J of 8 May 2024 that she “file notice of a physical address for service”.20 She says her document was filed pursuant to the direction of Preston J and r 5.40(5) and did not have to be served on Ms H.
19 High Court Rules, rr 1.3 and 5.44(1(d).
20 I note the notice was filed 10 days late and was not therefore in compliance with Preston J’s direction.
[32] Ms D submits that, in any event, the word “or” in r 5.40(5) is “a disjunctive preposition that indicates provision of an alternative” so that it was satisfactory that the Notice provided a means of service as an alternative to a physical address.
[33] Ms D then contends that Ms H was validly served with her interlocutory application on 20 May 2024,21 and was obliged to file a notice of opposition in compliance with r 7.24(1) by 5 pm on 3 June 2024 and accordingly was out of time.
My analysis
[34] There are several problems with Ms D’s approach. First, Ms D’s interlocutory application was accepted for filing at the direction of Eaton J who said, “it will need to be served and, if opposed, set down for call before an Associate Judge”. There is no evidence that Ms D served the interlocutory application in compliance with that direction.
[35] Second, Preston J did not direct Ms D to file a “change of address for service”, nor did she refer to r 5.40. She directed Ms D to file notice of a physical address for service and footnoted rr 1.3 and 6.20. An address for service cannot be “given” for the purposes of r 6.20 unless it is both filed and served on the other parties to the proceeding. Ms D did not serve her notice on Ms H.
[36] I do not accept Ms D’s submission that she was not required to serve the Notice upon Ms H because Preston J had not directed her to do so. Preston J referred to r 6.20, which requires an address for service to be “given”. She did not relieve Ms D of the requirement to serve notice of her address for service on Ms H. If that was the case, the act of filing the address for service would serve no purpose.
[37] Ms D’s reliance upon r 5.40 is, in my view, misguided. The rule applies to a change of a party’s representation, address for service and/or address for an alternative method of service allowed under r 6.1(1)(d). Ms D was not changing her address for service. Further, Ms D’s argument about the meaning of the word “or” in r 5.40
21 There is no proof of service of the interlocutory application on the file, but Ms D has a timeline in her submissions which states that on 20 May 2024 Ms H was served with the interlocutory application.
misunderstands the purpose of the rule. As Associate Judge Lester succinctly explained, r 5.40(5) distinguishes between an address for service and the method of service. The word “or” relates to a change in the method by which a party may accept service but “[a] physical address for service as defined in r 1.3 of the Rules must be provided”.22
[38] If contrary to my view r 5.40 was engaged, it requires a notice of change of representation or address for service to be served on “every other party”. Ms D did not serve the Notice on Ms H. Any doubt as to the requirement for service was removed by Associate Judge Lester’s minute of 4 June 2024 when he directed Ms D to “file and serve a physical address for service”. She had not complied with that direction by the telephone conference of 26 June 2024.
[39] The decision of Associate Judge Lester that Ms H’s notice of opposition was filed in time was undoubtedly correct. Ms D did not give a valid address for service on 30 May 2024 as she contends, nor has she provided evidence that the interlocutory application was validly served. Ms D was not entitled to be served with any documents in the proceeding and time did not run against Ms H for the filing of her notice of opposition until 26 June 2024. As that was the same day as Ms H’s notice of opposition was in fact served upon Ms D, it was in time.
Is the alleged error of importance?
[40] Ms D argues the appeal raises an issue of general importance concerning access to justice. She says New Zealand has a housing crisis and Associate Judge Lester’s approach discriminates against litigants who are homeless and cannot specify a physical address for service and therefore cannot engage with the Court’s processes in a manner conducive to the objectives in the Rules. She argues parties should be entitled to conduct litigation electronically.
[41] Whether the requirement that a party provide a physical address for service is a barrier to accessing justice is entirely speculative and is not an issue that arises
22 D v H, above n 2, at [13].
because Ms D was able to provide a physical address for service and was not denied access to justice due to an inability to do so.
Are there circumstances warranting delay?
[42] There are no circumstances warranting the delay of an appeal. Granting Ms D leave to appeal will serve no purpose at all. Even if Ms D was successful, Ms H’s application for an extension of time to defend the interlocutory application would have to be considered and would almost certainly be granted. However, whether it was granted or not, Ms D’s interlocutory application has no prospect of success.
Are the interests of justice served by granting leave?
[43] The interests of justice would not be served by granting leave to appeal. An appeal would have limited chance of success, would serve no purpose and would lead the parties to incur unnecessary costs. Furthermore, as Ms D is bankrupt there is little prospect of Ms H recovering any costs in the proceeding should the substantive appeal from the District Court judgment be successful.
[44] If Ms D was genuinely concerned to have her appeal heard she would not have opposed Ms H’s opposition to her interlocutory application but had that application determined on its merits. I consider her decision to do so, in the absence of any prejudice to her and contrary to clear indications that her interlocutory application could not succeed, demonstrates her motivation was tactical. I am fortified in my view by the manner in which Ms D has used the proceeding to make personal attacks on Ms H, Mr Cowan, Associate Judge Lester and Judges of the District Court.
[45] There is also other evidence of Ms D’s intention to prolong this proceeding. This includes, but is not limited to, an email sent to Ms H on 5 October 2024 stating, “It ends when I say so”, which was in response to Ms H’s affidavit served on Ms D the previous day in which Ms H described the effects of Ms D’s claims upon her. The Court must be wary that its processes are not abused in this way.
[46]The application for leave to appeal is dismissed.
Stay applications
[47] There is no basis to stay Associate Judge Lester’s judgment when leave to appeal it will not be granted.
[48] There is no reason to stay the District Court judgment either. Ordinarily a party bringing an appeal who seeks a stay of the judgment under appeal does so because their appeal rights would otherwise be rendered nugatory. There can be no justification for granting a stay on that basis when Ms D’s appeal from the District Court has itself been stayed. Furthermore, as far as Ms D has had an award of costs made against her in the District Court, she has now been adjudicated bankrupt.23 The costs award is a debt provable in her bankruptcy but otherwise no steps can be taken to enforce payment of it. The granting of a stay would serve no purpose.
[49]The applications for stay are dismissed.
Disclosure of arrangements to maintain participation in the proceeding
[50] Ms D seeks disclosure of the arrangements made for payment of Ms H’s fees incurred in defence of her claims. Ms H has already disclosed that her employer has paid her legal fees. No further disclosure is required.
[51]This application is also dismissed.
Non-publication orders
[52] The parties have raised an issued concerning non-publication orders. In the District Court Ms H successfully applied for interim non-publication orders.24 Judge Robinson considered the making of such orders was justified “pending resolution of the interlocutory matters” due to the nature of the allegations made against Ms H and the apparent lack of merit in Ms D’s claims.25 When Ms D filed her appeal, Judge Tuohy ordered “that the interim suppression orders continue until the High Court has determined the proposed applications to it for equivalent orders”. He
23 Te Pūkenga – New Zealand Institute of Skills and Technology v D [2025] NZHC 247.
24 D v H [2023] NZDC 418.
25 At [51].
also reserved leave to either party and any accredited news media to apply to discharge the orders in the event “the application” was not diligently pursued.26
[53] It is not clear to me what Judge Tuohy contemplated by “applications to [the High Court] for equivalent orders”. I infer he was expecting that this Court would decide whether to continue the non-publication orders at the same time as Ms D’s appeal. Ms D’s appeal is now stayed, and I do not see that this Court may now vary or discharge the non-publication orders. In those circumstances, any application either party wishes to make in respect to them should be made to the District Court.
Result
[54]Ms D’s application is dismissed in its entirety.
[55] Ms H is successful and is entitled to costs. The parties may file submissions on the quantum of such costs within 14 days and I will decide the matter on the papers. Submissions are not to exceed five pages.
O G Paulsen Associate Judge
Solicitors:
Anderson Lloyd, Dunedin
Copy to:
The Appellant
26 D v H [2024] NZDC 3025 at [10]–[11].
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