Davis v Hussey - [2025] NZHC 783

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-790

[2025] NZHC 783

IN THE MATTER of an appeal of a decision of the Human Rights Review Tribunal

BETWEEN

ARTEMIS INDIGO DELILAH DAVIS

Appellant

AND

SARAH LEE HUSSEY

First Respondent

BATH STREET TAP ROOM LIMITED

Second Respondent

Hearing: On the papers

Appearances:

Appellant in person

J Eckford for Respondents

Judgment:

4 April 2025

JUDGMENT OF GRICE J

(Re Security of costs and interim payment)

Security for costs

[1] The appellant appealing a decision of the Human Rights Review Tribunal,1 has sought a waiver for payment of security for costs. The respondents seek the sum of
$1,195 pursuant to r 20.13 of the High Court Rules 2016 (HCRs). The appellant also seeks an order for an interim payment of damages.

1 Davis v Hussey & Ors. (Strike Out) [2024] NZHRRT 35 [decision being appealed].

DAVIS v HUSSEY [2025] NZHC 783 [4 April 2025]

[2] The appellant has now filed an affidavit settling out their assets and liabilities pursuant to the direction in my minute of 4 March 2025.2 That affidavit also refers to the merits of the appeal and the effect of the underlying incident (in relation to employment) on the appellant.

Principles

[3] As the respondents points out, when considering an application for wavier of security for costs, the Courts have indicated that the broad general test is whether “the interests of justice” that no security be provided are satisfied. The usual position is that security is the norm, and exceptional circumstances are required to justify a waiver.3 Those circumstances include the importance of issues raised and the public interest in determining them. The commentary in McGechan refers to RIG v Chief Executive of the Ministry of Social Development where the High Court noted the impecuniosity by itself does not justify waiver, although it may be a reason to reduce the quantum of security.4 The commentary also refers to the High Court decision of Chatha v Whanganui Gas Ltd that held that it would have to be shown that the case was “deserving of a consideration on appeal”. Further, the Court was prepared to grant waiver to an impecunious litigant on the basis there was an arguable case on appeal.5

Financial position

[4] In relation to the impecuniosity of the appellant, as the respondents point out, the information in the affidavit as to assets and liabilities is not accompanied by any supporting evidence nor does it contain relevant details.

[5] The appellant attributes their state of poverty to the respondents’ perpetual interference with their livelihood “having deprived” the appellant of “all professional opportunities which had previously been available”.

2 Davis v Hussey & Anor HC Wellington CIV-2024-485-790, 4 March 2025 [Minute of case management conference].
3 J K Gorman and S M Grieve KC (ed) McGechan on Procedure (looseleaf ed, Thomson Reuters) [McGechan] at [HR 20.13.03], citing G v Chief Executive of the Ministry of SocialDevelopment [2010] NZSC 141.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Davis v Hussey

Details

AGLC: Davis v Hussey [2025] NZHC 783
Case: [2025] NZHC 783
Decision Date: 4 April 2025

CaseChat Overview and Summary

In the High Court of New Zealand, Grice J addressed an appeal by Artemis Indigo Delilah Davis against a decision of the Human Rights Review Tribunal. The primary dispute involved whether the Tribunal correctly exercised its jurisdiction to strike out parts of the appellant's claim. Sarah Lee Hussey and Bath Street Tap Room Limited were the respondents in the case, and the appellant appeared in person while the respondents were represented by J Eckford. The court was tasked with determining whether the appellant should be granted a waiver for the payment of security for costs and whether an interim payment of damages should be ordered.

The legal issues before the court included whether the appellant's application for a waiver of security for costs should be granted, considering her impecuniosity and the importance of the issues raised on appeal. The court also had to decide whether the appellant was entitled to an interim payment of damages. The court applied the principle that a waiver for security of costs is typically not granted unless exceptional circumstances are present, which include the importance of the issues and the public interest in their determination. Additionally, the court considered whether the appellant had an arguable case on appeal.

Grice J concluded that the merits of the appeal did not appear strong, as the issues were fact-specific and not of general importance. The court found that the material provided regarding the appellant's financial circumstances did not sufficiently support a reduction in the amount of security. Therefore, the application for waiver of security of costs was dismissed. Furthermore, the court found no basis for an interim payment of damages, as there was no possible claim for damages in the appeal that could fall within the provisions of the relevant rule. The court directed the appellant to pay the security for costs within five working days from the date of judgment.

Orders