Sax v Campbell
[2021] NZHC 1114
•19 May 2021
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 CourtJudgment:
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 a material issue. She submits the Court has failed to consider properly the effects of the internet trolling and abuse on her life and her ability to make her case. She takes issue with a variety of factual findings I was entitled to make and alleges the judgment has incited abuse against her. Although I have some sympathy for Ms Sax in her attempts to relitigate an obviously important issue to her, the material she has filed does not provide grounds supporting a very special reason warranting recall.
[8]The application for recall of the 5 March 2021 judgment is dismissed.
Application for leave to appeal
[9] Ms Sax makes an application for leave to appeal my 5 March 2021 decision. That decision refused Ms Sax’s application for leave to appeal my 11 June 2020 judgment. If Ms Sax is dissatisfied with that outcome, the appropriate procedural step is to apply directly to the Court of Appeal for leave, as per s 56(5) of the Senior Courts
3 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).
4 Munro v Gladvale Farms Ltd [2017] NZHC 2692 at [14].
Act 2016. Such an application needed to have been made within 20 working days of the 5 March 2021 decision. That 20 working day timeframe expired on 18 March 2021. Ms Sax would now be required to file an interlocutory application for an extension of time.5
[10] Procedurally my hands are tied. This is not an application I am able to determine.
Application for interim suppression
[11] Ms Sax applies for interim suppression of the 5 March 2021 judgment. In her 7 April 2021 affidavit, she contends that as a result of the judgment being published, she has experienced online abuse and internet trolling.
[12] Her first affidavit referred to an annexure which was not filed with the affidavit. Following a request from the Court Ms Sax has since provided a copy. It is a letter from Netsafe, advising Ms Sax she was able to make an application to the District Court for an order under the Harmful Digital Communications Act 2015 in relation to the content she reported to Netsafe. The content referred to is a Stuff article relating to the 11 June 2020 judgment.
[13]Annexed to the 8 April 2021 affidavit is a selection of documents:
(a)the first page of a letter to Ms Sax from the Ombudsman. Ms Sax appears to have made a complaint to the Ombudsman’s Office regarding a failure by Netsafe to investigate her complaints;
(b)several screenshots of Facebook Messenger conversations between Ms Sax and potential customers, who are said to have “ghosted” Ms Sax, and were later found to be members of a hate page where an associate of Ms McMillan, Vania Lucas, had posted about these proceedings;
(c)a partial list of members of the hate page; and
5 Court of Appeal (Civil) Rules 2005, r 16A.
(d)texts allegedly between Ms Campbell and Ms McMillian which read:6
“Person one: LOL [smiling emoji] she’s scared! Yay!
Person two:She and her personalities will be stressing about this. If someone can get as close as almost at her front door without her noticing what will happen next time? She will be freaking
Person one: LOL [smiling emoji]”
Further texts read:
“Ms Campbell: We will keep pushing her, as the authorities said that she hasn’t reached the involuntary removal stage yet but it’s ramping up and getting close…
Vania Lucas: Play with her head”
[14] Annexed to the 9 April 2021 affidavit is a screen shot of the “Bunnyton Buyers Beware” public Facebook group, where Ms McMillan shared a link to a Stuff article which refers to the 11 June 2020 judgment.
[15] The principles underpinning suppression of a civil judgment were set out in my 23 November 2020 Minute where I said:
“[5] Unlike the criminal jurisdiction there are no specific statutory rules for suppression in civil proceedings. Publication is the norm. The power to order suppression of names and identifying facts in civil proceedings is drawn from the Court’s inherent jurisdiction. The question for the Court is whether the circumstances of the case displace the presumption of publication created by the principles of open justice and freedom of expression.”
(footnotes omitted)
[16] The Courts must adhere to the fundamental principle of open justice so that the public can have confidence in the administration justice. Given the presumption of publication, a Court will need to have sound reasons before finding that the presumption favouring publication is displaced.7 There is no onus on the applicant to
6 The texts are undated, and unnamed. It is impossible to tell from the screenshot who the sender and recipients are of the texts.
7 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [29].
show suppression is warranted, rather it is “simply whether the circumstances justify an exception to the fundamental principle”.8
[17] The correct approach requires the Court to “strike a balance between open justice considerations and the interests of the party who seeks suppression”.9 There may be cases where there will be little or no legitimate public interest in knowing the name or identifying particulars of a party or case. In such situations, especially where intensely private or personal information features, or where there is information that is confidential or commercially sensitive, the balancing exercise may tip in favour of suppression.10
[18]On this issue, the Court of Appeal has said:11
“…the more central is the information sought to be suppressed to an understanding of the nature of the proceeding and to what it is that the court must decide, the stronger is the presumption favouring disclosure. A court is unlikely to deliver a judgment so shorn of detail that the public cannot readily understand what the court has decided, and why. Relevant also, in striking the balance, is the timing, nature, extent and duration of the suppression sought
— whether it is of the identity of a party or parties, or of the identity of a witness or witnesses, or the suppression of information in the case. Suppression is not all or nothing. Different considerations may apply depending on what is sought to be suppressed. Interim, rather than permanent, suppression is more likely to be granted at an interlocutory stage of a proceeding — at trial, the court will be better placed to assess any need for permanent suppression.”
(emphasis added)
[19] Ms Sax is requesting the interim suppression of the 5 March 2021 judgment in its entirety. Although I acknowledge it is possible for interim suppression to be ordered at an interlocutory stage, the balancing exercise must still be undertaken. In this case, Ms Sax has made assertions as to the negative effects of the 5 March 2021 judgment on her wellbeing, submitting this warrants suppression.
[20] The Court is aware of Ms Sax’s prior experiences with internet trolling and abuse. She has provided some evidence of this in her many affidavits and memoranda
8 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [29].
9 At [31], drawing from the approach in Hart v Standards Committee (No 1) of he New Zealand Law Society [2011] NZCA 676 at [3].
10 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [33].
11 At [34].
accompanying earlier applications as well as those affidavits filed on 8 and 9 April 2021 respectively, although the text messages12 are undated.
[21] This evidence is not sufficient to warrant suppression of the judgment. My reasons follow. First, such behaviour existed prior to the issuing of the 5 March 2021 judgment. It has not come about as a direct result of it. Secondly, the evidence provided in support of this application is from 2020. It does not relate to the 5 March 2021 judgment. The Netsafe report deals only with a Stuff article relating to my 11 June 2020 judgment. Even then, it makes no finding as to the harmfulness of the content of the article and judgment. The annexure to the 9 April 2021 affidavit shows a screen shot of a public group called “Bunnyton Buyer Beware”. Ms McMillan shared to the group, on 13 July 2020, a link to a Stuff article discussing the 11 June 2020 judgment. The article is dated 9 July 2020. I note from my own search that there has not been any more activity on the Facebook group after this post. Thirdly, the lists of names Ms Sax submits belong to a hate group cannot be verified. The hate group has not been identified. The names cannot be linked to such a group. Finally the screenshots are undated. However, I consider it to be a safe assumption they refer to past events, since Ms Sax refers at [6] of her 9 April 2021 affidavit to one of the text messages in relation to past events and evidence before the District Court.
[22] For the balance to tip in the favour of suppression, cogent evidence is required demonstrating the adverse effects of the 5 March 2021 judgment. The Court would need to be satisfied that any harm caused was as a consequence of the publication of the judgment rather than an artefact of the longstanding and bitter feud that Ms Sax has been embroiled in with others.
[23] On the evidence before me, the balance lies squarely in favour of open justice. The application for suppression is dismissed.
12 Annexures E and H to Ms Sax’s 8 April 2021 affidavit.
Application for stay of judgment
[24] Ms Sax’s final application is for a stay of the proceedings. She requests the proceeding be stayed until the other proceedings commenced following the 11 June 2020 judgment are finally determined.
[25]Section 12(3) of the Court of Appeal (Civil) Rules 2005 states:
“12 Stay of proceedings and execution
None of the matters referred to in subclause (2) operate as—
(a)a stay of a proceeding in which a decision was given; or
(b) a stay of execution of that decision.
(2)The matters are—
(a) an application for leave to appeal; or
(b) the giving of that leave; or
(c) an appeal.
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
(4)An order or a grant under subclause (3) may—
(a)relate to execution of the whole or part of the decision or to a particular form of execution:
(b)be subject to any conditions that the court appealed from or the Court thinks fit, including conditions relating to security for costs.
(5)If the court appealed from refuses to make an order under subclause (3), the Court may, on an interlocutory application, make an order under that subclause.
(6)If the court appealed from makes an order under subclause (3), the Court may, on an interlocutory application, vary or rescind that order.
(7)The Court may, at any time, vary or rescind an order made by it under this rule.”
[26]The applications made by Ms Sax following the 11 June 2020 judgment were:
(a)an application for recall of the 11 June 2020 judgment;
(b)an application for leave to appeal the 11 June 2020 judgment; and
(c)an application for leave to appeal the 23 November 2020 Minute.
[27] I note Ms Campbell also made an application for costs following the 11 June 2020 judgment.
[28] The 5 March 2021 judgment dismissed all three of Ms Sax’s applications. Costs were awarded in Ms Campbell’s favour. Ms Sax has not appealed the costs decision. She has not currently filed an application for leave to appeal to the Court of Appeal in response to her leave to appeal application being dismissed (such a step being required as set out at [9] and [10] of this judgment). At this point, there is no active application for leave to appeal, or an appeal. I am thus unable to order the stay Ms Sax requests under s 12(3).
[29] However, even if I was in a position to grant a stay, I would not have. An application under s 12(3) requires the Court to balance the competing rights and interests of the party who obtained the judgment being appealed from, and the need to preserve the appellant’s position against the event of a successful appeal. In Keung v GBR Investment Ltd, the Court of Appeal discussed the factors to be taken into account in this balancing exercise:13
“(a) Whether the appeal may be rendered nugatory by the lack of a stay;
(b) The bona fides of the applicant as to the prosecution of the appeal;
(c) Whether the successful party will be injuriously affected by the stay;
(d) The effect on third parties;
(e) The novelty and importance of questions involved;
(f) The public interest in the proceeding; and
13 Keung v GBR Investment Ltd [2010] NZCA 396, [2010] NZAR 17 at [11].
(g) The overall balance of convenience.
That list does not include the apparent strength of the appeal but that has been treated as an additional factor.”
[30] Ms Sax has consistently refused to accept the Court’s rulings throughout these proceedings. Many of her applications have lacked merit. There are no questions of law or principle to be determined. The strength of any appeal would be minimal at best. The issues are not novel or of significant importance or public interest. Further, not granting a stay will not render any appeal nugatory. Any balancing exercise would fall in favour of Ms Campbell’s interests in obtaining judgment.
[31]The application for stay of judgment is dismissed.
Further considerations
[32] I should also address a further, worrying aspect of Ms Sax’s most recent applications. As referred to previously, in support of her various applications, she has filed an affidavit sworn and filed on 7 April 2021. It is lengthy. It runs to 44 paragraphs. The relevant passages which are of particular concern are set out below:
“21. For para [34]14 the trolling based on Moore J’s judgment does disclose exactly how to get at me with a photo. I sleep with a loaded gun because the last time Ms McMillan published a photographic step-by-step guide on how to get at me by using Ms Campbell’s property to do this, she advised her associates on Facebook that she was also recruiting a Huntley (sic) Gang to cause me harm. There is no good reason for any judgment to perpetuate these privacy violations that cause me to fear for my safety. This is all in the District Court evidence.
22. For para [35] I reiterate, the Bundle of Documents consisted of all material before the District Court that I was required to under the District Court Rules, and Ms Campbell misrepresented the real situation on this point to both courts. By affidavit in opposition to security refers to the timetabling directions and other material, such as the torrent of trolling over material published by the judgments, which are all relevant to Security and by Judicial Review applications.
…
37. For para [59], a suppression of the judgment would stop the trolls from contacting all my contacts with the Stuff article for the rest of my life, necessitating in potentially thousands of HDCA to be commenced by me. This is a relevant consideration, so too is the fact that if the horse really had bolted
14 Sax v Campbell & Anor [2021] NZHC 357.
then this begs the question why the trolls [are] continuing to actively distribute the judgment. Additionally, Stuff did not publish the judgment through all of its media outlets either – it was just via one. Supressing the judgment now would enable me to have a better quality of life, to not fear for my safety (possibly not have to sleep with a loaded gun), to have time available otherwise taken up with trolling, and it would not prejudice everything else that I might do if I am given the opportunity to move on with my life from this nightmare where I have been marginalised, avoided, and harassed following the 11 June Judgment's falsehoods that undermine the HDCA orders.”
[33] These paragraphs raise two issues which, in my view, cannot be ignored. First, Ms Sax claims that her health and safety is at risk and that Ms Campbell’s associate, Ms McMillan has advised and exhorted others to “get at” Ms Sax, including recruiting a gang to cause her harm. Other than this bald assertion, no documentary evidence has been produced to support this claim on the material before me. I am unable to assess the seriousness or legitimacy of Ms Sax’s claim. However, I am not prepared to ignore the assertions that her personal safety is at risk.
[34] The second matter is Ms Sax’s disclosure that due to her fears she now sleeps with a loaded gun. That claim also raises grave and serious issues of health and safety not only in relation to Ms Sax but any member of the public who may attend her property.
[35] This Court has no jurisdiction to investigate these claims and/or to make orders to mitigate any risk. The only appropriate agency which possesses such powers is the New Zealand Police.
[36] Accordingly, I direct that a copy of this judgment and copies of my previous judgments15 and a copy of 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.
Result
[37]Application for recall is dismissed.
15 Sax v Campbell & Anor [2020] NZHC 1297; Sax v Campbell & Anor [2021] NZHC 357.
[38]Application for leave to appeal is dismissed.
[39]Application for interim suppression is dismissed.
[40]Application for a stay of the judgment is dismissed.
[41] A copy of this judgment and my judgments of 11 June 2020 and 5 March 2021 are to be forwarded to the District Commander of the relevant Police district.
Moore J
Solicitors:
Mr O’Neill, Hamilton
Crown Law, Wellington
Copy to:
The Appellant/Respondent
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