Davis v Hussey

[2025] NZHC 2497

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-37

[2025] NZHC 2497

BETWEEN

ARTEMIS INDIGO DELILAH DAVIS

Plaintiff

AND

SARAH LEE HUSSEY

Defendant

AND

ALLISON LAMBERT

Defendant

AND

ANTHONY BOND

Defendant

AND

STEVEN TRELOAR

Defendant

AND

ATTORNEY-GENERAL ON BEHALF OF NEW ZEALAND POLICE

Second Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	29 August 2025

JUDGMENT OF OSBORNE J

[1]                 The plaintiff applies for leave to appeal a decision of this Court by which her application for review of a Registrar’s decision was dismissed.

[2]A chronology will provide context.

·     May to August 2024—plaintiff intends to issue four defamation proceedings.

DAVIS v HUSSEY [2025] NZHC 2497 [29 August 2025]

·     May to August 2024—plaintiff presents for filing four sets of documents comprising a statement of claim and a notice of proceeding in form G13;

·      Deputy Registrar requests applicant either to file an interlocutory application or amend the notice of proceeding to form G2;

·     30 April 2025—Deputy Registrar advises proceedings not accepted for filing in absence of the correct documentation;

·     28 May 2025—plaintiff applies for review of Deputy Registrar’s decision;

·     3 June 2025—Osborne J upholds Deputy Registrar’s decision;

·     2 July 2025—plaintiff presents for filing an application for leave to appeal and seeks fee waiver;

·     7 July 2025—Registrar McMillan declines the plaintiff’s fee waiver application;

·     8 July 2025—plaintiff applies for review of the Registrar’s decision;

·     18 July 2025—Preston J dismisses the application for review;1 and

·     21 July 2025—the plaintiff applies for leave to appeal Preston J’s judgment.

What the proposed appeal relates to

[3]                 The series of steps taken by the plaintiff in these proceedings emanate from a common cause—the Registry’s insistence that the plaintiff present for filing sets of documents that comply with the requirements of the High Court Rules 2016. As I explained when upholding the Deputy Registrar’s initial rejection of documents:2

1      Davis v Hussey [2025] NZHC 1987.

2      Davis v Hussey HC Christchurch CIV-2025-412-37, 3 June 2025 (Minute).

[12]      The Deputy Registrar has correctly refused to accept the documents for filing in each of the four matters.

[13]      If a litigant chooses to bring their summary judgment application at the same time as commencing the proceeding with the filing of the statement of claim, Form G13 is the appropriate and required form.

[14]      If, on  the  other  hand,  the  litigant  chooses  not  to  file  a  summary judgment application at the same time as commencing their proceeding, with the  result  there  is  no  notice  of  application  for  summary judgment for the defendant to respond to and no date of first call of the application, then Form G2 is the appropriate and required form.

[15]      The fact that a litigant may apply for summary judgment (with the leave of the court) at a point after the statement of claim itself has been served, is irrelevant to which form of notice of proceeding is required. The identification of the correct notice follows from the decision a litigant makes at the time of commencing a proceeding as to whether to file an application for summary judgment at the same time or to defer any decision in that regard to a later date.

[16]      This was a matter very simply able to be addressed by the Plaintiff at the time the Deputy Registrar identified the issue. The remedy lies in the Plaintiff’s hands—to either provide a notice of proceeding in Form G2 or to file a notice of application for summary judgment and the associated documents.

[4]                 In short, a notice of proceeding in form G13 Sch 1, High Court Rules which is the appropriate form of notice of proceeding when a plaintiff seeks summary judgment is not the correct form of notice of proceeding when a plaintiff does not file an application for summary judgment with the statement of claim. The plaintiff’s proposition that she can require the Registry to accept and process a notice of proceeding in form G13 in relation to the other documents she has filed is untenable.

Principles in relation to leave to appeal

[5]                 The principles that apply to applications for leave to appeal under s 56(3) Senior Courts Act 2016 from a decision determining an interlocutory application are settled. They are:3

(a)a high threshold exists;

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6] and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]. See also Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [SC 50.07].

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value; the significance or implications of such error either for the particular case or for the applicant or as a matter of precedent must warrant incurring further delay; and

(d)the ultimate question is whether the interests of justice are served by granting leave.

[6]                 Ms Davis’ application for review of the Registrar’s decision is properly characterised as an interlocutory application.4

The Registrar’s discretion in relation to fee waiver

[7]                 Regulation 18(2) High Court Fees Regulation 2013 provides the Registrar may waive the fee payable by a person in connection with an intended proceeding and sets out alternative threshold requirements. As identified by the Court of Appeal in Duncan v Royal New Zealand Society for Prevention of Cruelty to Animals Inc (Duncan) in relation to the equivalent fee waiver rule in the Court of Appeal, there vests in the Registrar a discretion to decline an application for fee waiver, even where threshold requirements are established. That discretion may be exercised, for instance, if the party is pursuing a meritless application, without contributing to the cost of the administration of justice.5

The intended appeal

[8]                 The Registrar, in refusing the plaintiff fee waiver, applied the law as recognised in Duncan.

4      Memelink v Collins & May Law [2024] NZHC 2200 at [12].

5      Duncan v Royal New Zealand Society for Prevention of Cruelty to Animals Inc [2024] NZCA 628 at [28]–[29].

[9]                 Preston J, in the judgment the plaintiff proposes to appeal, noted the Registrar’s application of the Duncan decision.6 The Judge identified that the proposed application for leave to appeal, as identified by the Registrar, simply seeks to challenge a decision which reflects procedural consequences flowing from the plaintiff’s own failure to comply with filing requirements.7 The Judge accordingly concluded the Registrar’s decision was plainly correct and there were no exceptional circumstances to justify a fee waiver.

Discussion

[10]             Neither the proposed appeal for which leave application is made nor the underlying argument the plaintiff seeks to pursue—that she should be permitted to file a notice of proceeding relating to a summary judgment application which has not been presented for filing—identify an arguable error of fact or law, for the reasons already articulated and re-articulated. Furthermore, the alleged error lacks any quality of general or public importance. The interests of justice would not be served by granting leave to appeal.

Result

[11]             The application for leave to appeal the judgment dated 18 July 2025 is dismissed.

Osborne J

Copy to: A I D Davis

6      Davis v Hussey, above n 1, at [7].

7 At [8].