Sax v Campbell - [2021] NZHC 1114

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-000024

[2021] NZHC 1114

BETWEEN
JANINE DAVINA SAX

Appellant

AND

MELODY ANNE CAMPBELL

First Respondent

AND

DISTRICT COURT AT TAURANGA

Second Respondent

Hearing: (On the papers)

Counsel:

Appellant in Person

David O’Neill for the First Respondent
Second Respondent abides the decision of the Court

Judgment:

19 May 2021

JUDGMENT OF MOORE J

This judgment was delivered me on 19 May 2021 at 5:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

SAX v CAMPBELL [2021] NZHC 1114 [19 May 2021]

Introduction

On 7 April 2021 Ms Sax made four applications;

(a)for recall of the 5 March 2021 judgment;1

(b)leave to appeal the 5 March 2021 judgment to the Court of Appeal;

(c)interim suppression of the 5 March 2021 judgment; and

(d)a stay of the 5 March 2021 judgment.

[2] Accompanying Ms Sax’s application was an affidavit dated 7 April 2021. Two days later, on 8 April 2021, Ms Sax filed a supplementary affidavit and a day after that, on 9 April 2021, a further supplementary affidavit. Rule 7.20 of the High Court Rules 2016 requires that any affidavit in support of an application must be filed at the same time as the application. No leave was given for the filing of the supplementary affidavit or the further supplementary affidavit. Despite this, I recognise there can be no prejudice to the other party given they are abiding the Court’s decision. I grant leave and have considered both additional affidavits.

[3] In a reply memorandum to Ms Sax’s 16 July application for interim suppression orders for my 11 June 2020 judgment,2 Mr O’Neill, for Ms Campbell, advised Ms Campbell “had no desire to engage in any more hearings regarding this matter” and that Ms Campbell would abide the decision of the Court. It would appear such a position has been maintained; no submissions or memorandum have been received from Ms Campbell.

Application for recall

[4]Ms Sax has made an application for recall of my 5 March 2021 judgment.

1 Sax v Campbell & Anor [2021] NZHC 357.
2 Sax v Campbell & Anor [2020] NZHC 1297.

[5] Horowhenua County v Nash (No 2)3 sets out three categories where a judgment may be recalled:

(a)where, since the hearing, there has been an amendment to a relevant statute, regulation or new judicial decision of importance, relevance and high authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(c)for some other very special reason required by justice.

[6] Ms Sax’s submissions fit only under the third of these categories. Munro v Gladvale Farms Ltd4 considered a “very special reason” to be a case where a material issue has been raised, and where it would be unjust to put the parties to the cost and trouble of appeal.

[7] Ms Sax’s memorandum does not raise…

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] NZHC 1114
Case: [2021] NZHC 1114
Decision Date: 19 May 2021

CaseChat Overview and Summary

The case of Sax v Campbell [2021] NZHC 1114 involved an appeal by Ms Sax against the decision of Moore J dismissing her applications for recall, leave to appeal, interim suppression, and a stay of judgment. Ms Sax sought to appeal the 5 March 2021 judgment of Moore J, which dismissed her applications for recall, leave to appeal, interim suppression, and a stay of judgment. The legal issues the court was required to decide included whether there were grounds for recalling the judgment, whether leave to appeal should be granted, whether interim suppression of the judgment was warranted, and whether the judgment should be stayed.

The court dismissed Ms Sax’s application for recall of the judgment, finding that her submissions did not fit within the three categories set out in Horowhenua County v Nash (No 2). The court found that Ms Sax’s application for leave to appeal was procedurally flawed as she had not applied directly to the Court of Appeal for leave as required by s 56(5) of the Senior Courts Act 2016. The court dismissed the application for interim suppression, finding that the evidence provided by Ms Sax was insufficient to warrant suppression of the judgment. The court found that the balance lay squarely in favour of open justice, and that the evidence provided did not demonstrate the adverse effects of the judgment on Ms Sax. Finally, the court dismissed the application for a stay of judgment, finding that there was no active application for leave to appeal or an appeal, and that any balancing exercise would fall in favour of Ms Campbell’s interests in obtaining judgment.

The court directed that a copy of the judgment and Ms Sax’s affidavit of 4 April 2021 be forwarded to the District Commander of the relevant Police district for the purposes of undertaking a risk assessment and such other steps as the Police may consider necessary in all the circumstances to ensure not only Ms Sax’s safety, but also the safety of others.

Orders