H v Haden

[2022] NZHC 429

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-347

[2022] NZHC 429

BETWEEN

[H]

Proposed Appellant

AND

GRACE HADEN

Proposed Respondent

Hearing:

On the papers

Appearances:

[H] Proposed Appellant in person

G Haden Proposed Respondent in person

Judgment:

11 March 2022

JUDGMENT OF COOKE J

(Leave to appeal)

[1]        By application dated 14 December 2021 the proposed appellant seeks leave to appeal two decisions made by the High Court, the first made by me in a minute dated

25 November 2021,  and  the  second  made  by  Justice  Cull  in  a  minute  dated  14 December 2021. The application is made in reliance of rule 20.22 of the High Court Rules 2016.

[2]        The application was referred to me by the Registrar as I heard and determined the substantive appeal between the parties.1 By minute dated 8 March I directed the proposed appellant to file written submissions within 10 working days, to be responded to by the proposed respondent within 10 working days, with a remote hearing scheduled if either of the parties sought one, and if not I would deal with the application on the papers. I also asked that the submissions address the jurisdiction for the appeal as it did not appear to me that r 20.22 applied for reasons I explained.

1      Haden v [H] [2021] NZHC 3169.

[H] v HADEN [2022] NZHC 429 [11 March 2022]

[3]        The proposed appellant responded by an email to the Registrar in which she indicated that she would not be making formal submissions, that she did not think a hearing was necessary, and requesting the balance of her email be treated as a memorandum. The proposed respondent filed a memorandum contending that the proposed appellant’s applications were unorthodox and should be treated as a nullity. There was no request for a hearing.

[4]In the circumstances I will address the application on the papers.

Jurisdiction

[5]        For the reasons I have already outlined in my minute of 8 March 2022 there is no jurisdiction to appeal to the Court of Appeal with leave or otherwise under r 20.22. There were no suppression orders made by the District Court under s 39 of the Harassment Act 1997 in this case, and no appeal against any such decision to this Court. It follows that there is no jurisdiction to grant leave to appeal to the Court of Appeal in relation to any such decision.

[6]        As I indicated in my minute the only potential jurisdiction to appeal to the Court of Appeal would arise under s 56(3) of the Senior Courts Act 2016.

[7]        The proposed appellant has chosen not to address these points in her follow up email/memorandum.

[8]        Section 56(3) creates jurisdiction to appeal to the Court of Appeal against any order or decision of the High Court made on an interlocutory application when leave is granted. But the decisions in my minute of 25 November and Cull J’s minute of  14 December may not fall within that provision. I released the substantive judgment on the appeal on 24 November 2021. The proposed appellant then responded in the following terms by email to the Registrar:

Having read this decision I would like it to be anonymised please. In my view it creates a very unfair impression that I pursued an unwarranted application. In particular:

-   It does not explain why I made the application. There is no mention at all of the acts I set out in my affirmations.

-   Paragraph 5 refers to a comment made by Judge Hastings that an order was no longer needed, and then says I pursued the application 'nevertheless'. There is no mention of the fact that Judge Hastings made the comment involved before I had filed all my evidence. There is no mention that Judge Tuohy saw different and further evidence. As such the narration set out in the judgment is incomplete and misleading.

I do note that I will be sending the decision and the rest of the file to Minister Faafoi and to the Select Committee. It is untenable to have a decision that prevents the District Court from making interim retraining orders, so they will need to consider a change to clarify the Act.

[9]        The Registrar forwarded this request to me. By minute dated 25 November I indicated that it was in effect a request for suppression orders. I recorded that as far as I was aware there had been no suppression orders in the District Court, and for such an order to be made now would need compelling reasons. I did not accept that an unfair impression arose from the judgment as the appeal had been allowed on jurisdictional grounds only. I decided that no suppression order would be made.

[10]      The proposed appellant now says that this decision was inappropriate as all she was seeking was a temporary order until she had had the opportunity to make an application under s 39 of the Harassment Act to the District Court. She argues that it was inappropriate for the Court to reach a decision on the merits of her application. Indeed she goes as far as contending that the Court has dealt with her in a high-handed and inconsiderate way.

[11]      Her request on the day following release of the judgment quoted above did not seem to me to involve an application for interim orders pending an application being made under s 39 to the District Court. It was more simply a request for anonymisation on the basis that the terms of the judgment created an unfair impression. In any event the proposed appellant’s request was necessarily dealt with under the Court’s inherent suppression powers, particularly in circumstances when no previous suppression orders had been made, or sought.

[12]      Even if my minute is seen as a decision on an interlocutory application I see very little strength in the proposed appeal. No suppression orders had been made in the District Court under s 39. As far as I know no application has ever been made for such an order. The judgment of the High Court did not address the merits of the alleged

harassment. These are matters for the District Court to consider afresh. Moreover this long-running dispute between Ms [H] and Ms Haden is subject to other public judgments, including the decision of the District Court in Ms [H]’s successful defamation proceedings. The request to suppress the identities of the litigants in this very much more limited High Court appeal is not strong in those circumstances.

[13]      In terms of the minute of 14 December, Cull J referred to the proposed appellant repeatedly asking that her anonymisation request be dealt with again by a different Judge, with Her Honour observing that it was not for the proposed appellant to pick and choose the Judge before whom a matter proceeds, and that it was not for her to interfere with my earlier decision. I do not believe that this minute involves a decision falling within s 56(3).

[14]      In any event these are not the type of matters that warrant the attention of the Court of Appeal, particularly given the high threshold that exists and the need for the leave mechanism to operate as a filtering mechanism.2

[15]      The application for leave to appeal is dismissed. There will be no order for costs.

Cooke J

2      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].