Sax v Campbell - [2021] NZCA 346

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA179/2021
CA180/2021
CA369/2021
[2021] NZCA 346

BETWEEN	JANINE DAVINA SAX Applicant
AND	MELODY ANNE CAMPBELL First Respondent TAURANGA DISTRICT COURT Second Respondent

Court:	French and Clifford JJ
Counsel:	Applicant in person D M O’Neill for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	28 July 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for leave to appeal the decision of the High Court ordering the applicant to pay security for costs (CA179/2021) is declined.
BThe application for leave to appeal the decision of the High Court refusing to grant suppression (CA180/2021) is declined.
CThe application for leave to appeal the decision of the High Court refusing to recall its decision on security for costs (CA369/2021) is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Ms Sax seeks leave to appeal three decisions of Moore J in the High Court. In the first decision, the Judge ordered Ms Sax to pay security for costs,[1] in the second he declined her application for interim suppression of his decision,[2] and in the third he declined her application to recall his decision.[3]
[1]Sax v Campbell [2020] NZHC 1297.
[2]Sax v Campbell HC Tauranga CIV-2020-470-24, 23 November 2020.
[3]Sax v Campbell [2021] NZHC 357.
Leave to appeal is required from this Court because all three decisions are interlocutory in nature and the High Court has declined to grant leave.[4]
[4]Senior Courts Act 2016, ss 56(3) and (5); Sax v Campbell, above n 3; and Sax v Campbell [2021] NZHC 1114.
Ms Campbell the respondent submits that the application is out of time and has no merit. However, she does not wish to spend any more resources on actively opposing the applications and so abides the Court’s decision.

Background

The proceeding arises from an application filed by Ms Campbell in the District Court seeking a restraining order against Ms Sax under the Harassment Act 1997. Ms Sax contends the allegations of harassment are false. She applied for the proceeding to be struck out on the grounds Ms Campbell’s claim was not reasonably arguable and constituted an abuse of process being frivolous and vexatious.
The District Court did not accept those submissions and accordingly declined to strike out Ms Campbell’s application. The Court held that the allegation of harassment depended on disputed facts that could only be resolved at trial.
Dissatisfied with that outcome, Ms Sax then sought judicial review in the High Court against the refusal to grant her strike-out application. The grounds of review were that the District Court judgment contained errors of law, was irrational, biased and had involved an unfair process.
This prompted Ms Campbell to apply for security for costs in relation to the judicial review proceeding.
The application for security for costs was granted by Moore J.[5] He ordered Ms Sax to pay $10,000 in security.[6] In making that order, Moore…

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 Sax v Campbell

Details

AGLC: Sax v Campbell [2021] NZCA 346
Case: [2021] NZCA 346
Decision Date: 28 July 2021 at 9 am

CaseChat Overview and Summary

In Sax v Campbell, Janine Sax sought leave to appeal three decisions made by Moore J in the High Court, which arose from proceedings brought by Melody Anne Campbell under the Harassment Act 1997. The Court of Appeal, consisting of French and Clifford JJ, considered whether leave to appeal should be granted. The primary issues for the Court were whether the applications for leave were made within the required timeframe and whether the applications had merit. The Court found that the first two applications were made within the required 20 working days after the High Court's decision, while the third application was two working days out of time but was granted an extension by the Registrar. The Court of Appeal concluded that the applications did not meet the threshold for leave to appeal, as Sax had not demonstrated any arguable error of law or fact on the part of the High Court in any of the decisions. Consequently, the Court declined the applications for leave to appeal.

The Court of Appeal's decision was based on the high threshold for leave to appeal, which is designed to prevent unnecessary delay and expense caused by unmeritorious or insignificant appeals. The Court found that Sax had not demonstrated any arguable error of law or fact on the part of the High Court in any of the decisions, let alone an error that is of sufficient importance to outweigh the further delay that would be caused by an appeal. The Court also noted that a significant portion of Sax's submissions were directed to the underlying dispute between her and Campbell, which is not relevant for the purposes of these applications. The interests of justice would not be served by granting the applications, and they were accordingly declined. The respondent, Campbell, abided by the decision of the Court, and no award of costs was made.

The Court of Appeal declined the application for leave to appeal the decision of the High Court ordering Sax to pay security for costs (CA179/2021), the application for leave to appeal the decision of the High Court refusing to grant suppression (CA180/2021), and the application for leave to appeal the decision of the High Court refusing to recall its decision on security for costs (CA369/2021).

Orders