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.

4      McGechan at [HR 20.13.03], above n 3 citing RIG v Chief Executive of the Ministry of Social Development (2010) 20 PRNZ 703; [2010] NZCA 370.

5      McGechan at [HR 20.13.03], above n 3 citing Chatha v Whanganui Gas Ltd (2004) 17 PRNZ 736.

Merits of the appeal

[6]                 The appeal is limited to the striking out  of  the  pleadings  which  the  Human Rights Review Tribunal determined were outside its justification. The Tribunal’s decision of the 18 July 2024 struck out “parts of the claim” in the proceedings on the basis it did not have jurisdiction for various causes of action pleaded by the appellant in an amended statement of claim.

[7]                 Section 115A of the Human Rights Act 1993 establishes the Tribunal’s general strike out powers as follows:

115A   Tribunal may strike out, determine, or adjourn proceedings

(1)The Tribunal may strike out, in whole or in part, a proceeding if satisfied that it—

(a)discloses no reasonable cause of action; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of process.

…

[8]                 The allegations which were struck out are described by the Tribunal are as follows:6

[8]        Ms Davis’ amended statement of claim dated 12 February 2024 also raises a plethora of other allegations against the defendants and other individuals, including defamation, “incitement” of blackmail and “malfeasance”, all of which the defendants categorically deny.

[9]       The Tribunal pointed to s 98 of the Privacy Act 2020 (PA) which provides the circumstances in which an aggrieved individual can bring an alleged breach of privacy to the Tribunal.7 The complaint made to the Commissioner must relate to an allegation of interference with privacy.8 The Tribunal noted that it did not have jurisdiction to

6      Decision appealed against, above n 1.

7 At [11].

8 At [13].

determine any allegations referred to by Ms Davis in her claim. It said (footnotes omitted):9

[13]      The complaint made to the Commissioner must relate to an allegation of an interference with privacy. The Tribunal does not have jurisdiction to determine any allegations referred to by Ms Davis in her claim that are based on grounds other than those prescribed under the PA and that relate other than to allegations of breaches of IPPs 6 and 11 (which have been investigated by the Privacy Commissioner).

[14]      We are satisfied that allegations of breaches of IPPs 6 and 11 are within the jurisdiction of the Tribunal. The allegations referred to at [8] or which go beyond alleged breaches of IPPs 6 and 11 are, however, struck out for want of jurisdiction.

[10]     As the claim against the respondents for breaches of Information Privacy Principles (IPPs) 6 and 11 remain extant, the respondents’ cross-application to have all the appellant’s claims struck out it its entirety, was unsuccessful.

Conclusion

[11]     Based on a preliminary review, the merits of the appeal do not appear strong. While the issues are important to the appellant, they are fact specific and are not of general importance. In addition, the material provided for me in relation to the appellant’s financial circumstances does not sufficiently disclose the appellant’s financial position to satisfy me that any reduction in the amount of security is appropriate.

[12]In those circumstances, I dismiss the application for waiver of security of costs.

Application for interim payment

[13]     The appellant also seeks an interim payment from the respondents of $50,000 under the r 7.70 of the HCRs in addition to the application for waiver for security of costs. That rule provides:

7.70 Order for interim payment in respect of damages

(1)A Judge may make an order under subclause (2) if, on hearing the application, the Judge is satisfied that—

9      At [13]-[14].

(a)the defendant against whom the order is sought has admitted liability for the plaintiff’s damages; or

(b)the plaintiff has a judgment against the defendant for damages to be assessed; or

(c)on a trial of the proceeding, the plaintiff would obtain judgment for substantial damages against the defendant or, if there are several defendants, against 1 or more of them.

(2)A Judge may, within the limits in subclause (3), order the defendant to make an interim payment of an amount that the Judge thinks just.

(3)The amount must not exceed a reasonable proportion of the damages the plaintiff is, in the opinion of the Judge, likely to recover after taking into account—

(a)any relevant contributory negligence; and

(b)any set-off, cross-claim, or counterclaim on which the defendant may be entitled to rely.

[14]     While the claim for damages may apply to any type of damages, there is no possible claim for damages in the appeal which  could fall within the provisions of    r 7.70.

[15]Therefore, I decline to make any order for an interim payment.

Directions

[16]     I direct the appellant to pay the security for costs on or before five working days from the date of this judgment pursuant to r 20.13(4) of the HCRs.

Grice J

Solicitors:

Parker Cowan Lawyers, Queenstown for Respondents