Sax v Campbell
[2021] NZHC 357
•5 March 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 357
BETWEEN JANINE DAVINA SAX
Appellant/Respondent
AND
MELODY ANNE CAMPBELL
First Respondent/Applicant
AND
DISTRICT COURT AT TAURANGA
Second Respondent
Hearing: (On the papers) Counsel:
Appellant/Respondent in Person
David O’Neill for the First Respondent/Applicant Second Respondent abides the decision of the Court
Judgment:
5 March 2021
JUDGMENT OF MOORE J
This judgment was delivered me on 5 March 2021 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar / Deputy Registrar Date:
SAX v CAMPBELL & ANOR [2021] NZHC 357 [5 March 2021]
Introduction
[1] This is a case with many moving parts. I have already determined interlocutory matters stemming from Ms Sax’s judicial review1 of the District Court’s refusal to strike out an application made by Ms Campbell under the Harassment Act 1977 (“the Harassment Act”).2 I have refused Sax’s application for suppression orders relative to that judgment, but there are further matters to be determined on a series of miscellaneous, but related, applications.
[2] There have been some delays in the resolution of these other matters caused by various factors including COVID-19, the Courts’ Christmas break, and the way in which Ms Sax’s proceedings and her various applications have been advanced and presented. This has also been compounded by the fact that Ms Sax has chosen to represent herself throughout. Her memoranda and affidavits are voluminous. They are repetitive and, in most cases, unfocused relative to the issues engaged. In parts they are highly critical and abusive of others. Documents have been filed which are procedurally irregular, incorrectly formatted, or simply irrelevant. Regardless, every effort has been made in this consolidated judgment to identify and deal with all of Ms Sax’s outstanding applications. This has not been a straightforward exercise. Despite that, having carefully reviewed the very extensive Court file this matter now occupies, it seems Ms Sax has three remaining applications for determination. These are:
(a)19 June 2020 application for recall (“the Recall application”) of the Security for Costs and Joinder decision of 11 June 2020 (“the Security and Joinder decision”);
(b)9 July 2020 application for Leave to Appeal the Security and Joinder decision (“the Security Leave application”); and
1 Sax v Campbell [2020] NZHC 1297.
2 Campbell v Sax [2020] NZDC 1543.
(c)application for Leave to Appeal the 23 November 2020 Minute declining an application for suppression (“the Suppression Minute”) (“the Suppression Leave application”).
[3] The respondent’s application for costs on the Security and Joinder decision (“the Costs application”) is also outstanding.
[4]All four applications are determined in this judgment.
Background
Introduction
[5] Ms Sax and Ms Campbell were neighbours on the same road in a semi-rural area near Tauranga. Although their relationship was initially cordial, this changed, according to Ms Campbell after Ms Sax began breeding rabbits at her address some time after September 2016. Sinister accusations revolving around the rabbits were levelled at Ms Campbell by Ms Sax, leading to a souring of the relationship. Regrettably, it has remained intensely acrimonious ever since.
[6] In June 2019 Ms Campbell applied for orders against Ms Sax pursuant to the Harassment Act. Ms Sax responded by filing an interlocutory application to strike it out. In a reserved decision given by Judge I D R Cameron in the Tauranga District Court,3 Ms Sax’s application was dismissed. Ms Sax then applied to this Court for a judicial review of Judge Cameron’s decision.
[7] In response, Ms Campbell brought an application for Security of Costs (“the Security application”). Shortly after, Ms Sax filed an Application to Join further Respondents to her judicial review (“the Joinder application”).
The 11 June 2020 judgment (the Security and Joinder decision)
[8] On 11 June 2020 I delivered my Security and Joinder decision which determined these two interlocutory applications. On both I found for Ms Campbell.
3 Campbell v Sax, above n 2.
On the Security application I ordered Ms Sax to deposit $10,000 by 2 July 2020. I directed that failure to do so would result in the proceeding being stayed. Ms Sax’s Joinder application to add multiple further parties was declined. Ms Campbell seeks costs on this decision.
[9] Ms Sax then filed the Recall and Security Leave applications. To date she has not paid any of the security ordered.
The 23 November Minute (Suppression Minute)
[10] On 16 July 2020 Ms Sax sought interim suppression orders for the Security and Joinder decision. She asked that the decision be suppressed until the matters before the Court were finally determined. She claimed adverse commercial consequences if no such orders were made. On 22 July 2020 Ms Sax informed the Court she was no longer pursuing the interim suppression orders after communications with Stuff Ltd (“Stuff”). On 11 August 2020 Ms Sax renewed her request for interim suppression orders. She later filed a further memorandum in support.4
[11] In my Suppression Minute I declined to make any interim suppression orders. Essentially this was because I was satisfied “the horse had bolted” and no useful purpose would be served by making the orders. On 10 December 2020 Ms Sax filed the Suppression Leave application.
[12]I turn now to discuss each application in turn.
Application for Recall of Security and Joinder decision
[13] Ms Sax’s Recall application is supported by an affidavit filed on 25 June 2020. The Recall application is unopposed.
[14]Ms Sax submits recall is necessary because:
4 On 18 November 2020.
(a)redactions are required in relation to the description of her living situation. She says the references are too detailed, and “by” should be replaced with “from,” at [36] of the decision;
(b)the judgment includes factual errors in that it relies on the District Court file, which includes “falsities” advanced by Ms Campbell;
(c)the decision contains factually incorrect statements similar to material that has been ordered to be removed under the Harmful Digital Communications Act 2015 (“the Harmful Digital Communications Act”);
(d)the decision does not give reasons on certain matters, thus limiting Ms Sax’s ability to challenge it; and
(e)based on all the above, the balance of justice lies in recalling the decision.
[15] Ms Sax’s affidavit contains extensive material covering her complaints about the Security and Joinder decision. She submits that it did not take into account the evidence on the District Court file and did not consider the majority of issues identified in her Notice of Opposition.5 Further, she submits that the Court did not properly assess the merits of her judicial review or her strike out applications.
[16] She also says that there are sound policy considerations which operate in favour of having her case heard and a public interest in the Court regulating a case where a litigant, that is Ms Campbell, has abused the Court’s processes.
[17] I turn now to discuss Ms Sax’s various points. The starting point in any discussion on recall is to recognise the well settled principle that there should be finality to litigation. Orders and judgments of the Court should stand unless overturned by appeal or some other corrective pathway.6
5 Dated 9 July 2020.
6 Fitzgerald v IAG New Zealand Ltd [2019] NZHC 632 at [8].
[18] Subject to this, r 11.9 of the High Court Rules 2016 (“the Rules”) provides for the recall of a judgment at any time before it is sealed. The accepted leading authority on recall in New Zealand is the well-known case of Horowhenua County v Nash (No 2) where Wild CJ suggested there were three general categories where recall might be appropriate:7
“Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority: secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.”
[19] The first two categories are plainly not applicable here. No statute, regulation or decision of high authority and/or relevance has been amended or issued. Furthermore, there has been no omission to refer to relevant legislative provisions or authoritative decisions. This means that the only available ground left for Ms Sax to advance her application is under the third and broadest category, that is for some “very special reason”.
[20] As to this category, Asher J provided a helpful explanation in Faloon v Commissioner of Inland Revenue:8
“While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.”
[21] The authorities demonstrate that the threshold for recalling a judgment is a high one. The circumstances justifying that remedy are not extensive. This reflects the principle that the remedy is to be exercised sparingly.
7 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
8 Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19, 832 (HC) at [13].
[22] Ms Sax submits that my judgment contains numerous factual errors, and it thus follows that the decision to order security for costs was incorrect. As such Ms Sax challenges substantive matters of fact and law. Such challenges do not fit within the third “very special reason” category justifying recall. The proper forum for the correction of the matters Ms Sax identifies, if indeed they require correction, is by way of appeal.
[23] It necessarily follows that I am satisfied Ms Sax’s recall application should be dismissed.
Application for Leave to Appeal the Security and Joinder decision (of 11 June 2020)
[24] On 9 July 2020 Ms Sax filed application for leave to appeal the Security and Joinder decision. An affidavit in support was filed on 10 July 2020.
[25] I note Ms Sax’s application was filed one day out of time. As such she should have filed an application for leave to extend the time for filing. Notwithstanding, I am prepared to extend time and so order.
[26] The contents of Ms Sax’s affidavit are more submission than evidence. The affidavit on the Court file appears to be in draft form. It runs to 21 pages. It is disorganised and discursive. This has presented real difficulties in understanding the underlying and relevant points. What follows is my best attempt to extract the key elements of the application although I do not profess confidence that it is a complete summary:
(a)the Court erred by considering “falsities” asserted by the respondent, some of which were the subject of a removal order under the Harmful Digital Communications Act, and some of which Ms Sax contests;
(b)the Court erred in law by disclosing details of Ms Sax’s residence contrary to the Domestic Violence Act 1995;
(c)the Court erred by assessing the situation in a “vacuum”, limiting its ability to assess the ‘real’ situation and do justice;
(d)the Court failed to consider all but one of Ms Sax’s submissions in her Notice of Opposition to the Security application;
(e)the Court failed to consider the merits of Ms Sax’s proceedings when making the Security and Joinder decision;
(f)the Court was unfair to Ms Sax in declining her request to amend her statement of claim, setting too restrictive a timetable, limiting the time available for the hearing to 60 minutes and not permitting Ms Sax to reply to the respondent’s opening submissions;
(g)the judgment was unfairly critical of Ms Sax and such criticism would lead to internet trolling;
(h)the Court erroneously failed to consider legal principles such as:
(i)where a factual allegation is so demonstrably contrary to an indisputable fact, the strike-out application may be allowed;
(ii)in a strike-out application, pleaded facts are assumed to be true, but pleaded allegations are without foundation;
(iii)a vexatious proceeding is one which contains an element of impropriety;
(iv)where not all the evidence is before the Court, a fair trial is impossible;9
9 The citation Ms Sax provides for this proposition, Bank of New Zealand v Savril Contractors Ltd [2005] 2 NZLR 475, deals with situations where a fair trial is impossible by reason of delay in the proceedings.
(v)Courts will not treat a lack of funds as determinative and will balance the interests between the parties, subject to any overriding public considerations;10 and
(vi)the Court must consider whether the applicant for security for costs has contributed to the respondent’s impecuniosity.11
[27] While these points related to the security portion of the judgment, they were interspersed with large tracts of material which seemed to relate to Ms Sax’s judicial review. I also note Ms Sax does not make any submissions in relation to the joinder part of my decision. It thus appears that that part of the judgment is not subject to appeal and for that reason I have not included it in the discussion below. I turn now to discuss the application for leave to appeal my Security and Joinder decision.
[28] Leave is required to appeal decisions on interlocutory applications. The procedure is prescribed by s 56(3) of the Senior Courts Act 2016.
“(3)No appeal, except an appeal under subsection (4), lies from any order or decision of the High Court made on an interlocutory application in respect of any civil proceeding unless leave to appeal to the Court of Appeal is given by the High Court on application made within 20 working days after the date of that order or decision or within any further time that the High Court may allow.”
[29] The Court of Appeal discussed the rationale behind the rule in Ngai Te Hapu Inc v Bay of Plenty Regional Council. There the Court observed that s 56(3) was intended to reduce the volume of interlocutory appeals to the Court of Appeal.12 The Court went on to observe the limits:13
“…leave to appeal should only be granted where the significance or implications of an arguable error of fact or law, either for the particular case or for the applicant or as a matter of precedent, warrants the further delay which the appeal process would involve.”
10 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22(c)] and [24(c)].
11 Bell-Booth Group Ltd v Attorney-General & BCNZ (1986) 1 PRNZ 457 at 463.
12 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [15].
13 At [17].
[30] The Court of Appeal in Fairway Holdings Ltd v McCullagh14 adopted the approach in Finewood Upholstery Ltd v Vaughan, where Fitzgerald J noted:15
“…the requirement for leave to appeal should serve as a “filtering mechanism”, to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to either the parties or more generally, do not unnecessarily delay the proceedings in which the orders were made.”
[31] The Court of Appeal in Greendrake v District Court of New Zealand also approved Fitzgerald J’s approach, summarising the key, relevant considerations as follows:16
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
[32] Adopting these principles, I turn to consider the present case and Ms Sax’s submissions. First, Ms Sax submits I erred by taking into account facts recorded in the District Court judgment. Ms Sax argues that such facts are “falsities” perpetuated by the respondent and are contested. Some of the “falsities” were subject to a removal order under the Harmful Digital Communications Act.
[33] It is a well known principle that in considering a strike out application, the Judge, as did Judge Cameron here, is entitled to rely on the facts pleaded in the
14 Fairway Holdings Ltd v McCullagh [2018] NZCA 605 at [11].
15 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
16 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6], referring to Finewood Upholstery Ltd v Vaughan, above n 15 at [9].
statement of claim as true.17 Judge Cameron was also entitled to assume that what Ms Campbell asserted in her affidavit was true. It was not his role, nor is it for this Court, to attempt to resolve disputes of fact. As is the convention, the evidence on the strike out was not tested in cross-examination. Cross-examination will no doubt occur when Ms Campbell’s Harassment Act application is eventually heard. The same principles apply to the hearing before me. Absent a plainly and demonstrably false or incorrect assertion of fact, I am also able to assume the truth of those facts for the purposes of the hearing. It follows there is no arguable error in the use of challenged facts or facts which are not accepted in determining the strike out.
[34] Secondly, the reference to the location of Ms Sax’s place of residence is not a question of fact or law which grounds an appeal. But even if it was, the deliberately generalised description of where Ms Sax and Ms Campbell then lived as a “semi-rural area near Tauranga”, is hardly capable of disclosing where she lives or lived. Nor can it compromise Ms Sax’s privacy interests.
[35] Thirdly, I do not consider the decision was made in a “vacuum” such that I was limited in my ability to assess the “real” situation and do justice. Ms Sax argues that without the material which was before the District Court, a just decision could not be made. I accept the complete District Court file was not before me, however, I am satisfied this was no impediment to the delivery of a just and informed decision. The information on the District Court file was described by Judge Cameron as “three voluminous paginated bundles of documents” which included emails, affidavits from Ms Sax and her supporters, screenshots of Facebook messages, photographs and the like. While I cannot dismiss the possibility that some of this material might assume relevance at any future judicial review hearing, it was not necessary for the purpose of deciding the Security and Joinder decision. The relevant material was confined to Ms Sax’s ability (or otherwise) to meet an adverse order for costs and the merits of her judicial review.
[36] Fourthly, in her Notice of Opposition to the Security application Ms Sax advanced eight broad submissions. She now claims that all but one ((b) below), were
17 Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at [267].
not addressed by me in the judgment. In order to follow this argument, the eight grounds are set out below:
(a)the judicial review proceedings are meritorious, with public interest elements in privacy and natural justice;
(b)Ms Campbell does not come to the Court with clean hands in that she;
(i)directly or indirectly compromised the commercial viability of Ms Sax’s rabbit breeding business, Bunnyton;
(ii)knew or was on notice that her proceedings were frivolous, vexatious and otherwise an abuse of Court process; and
(iii)lied in her evidence by citing “findings” by third parties that never occurred.
(c)Ms Campbell would likely pass commercially sensitive information gained via the Security application to her associates to use for inflicting harm on Bunnyton;
(d)that judicial review proceedings are more appropriate than separate proceedings in different Courts;
(e)that security should not be calculated on a two-day hearing as requested by Ms Campbell;
(f)that Ms Campbell is impecunious;
(g)that Ms Campbell’s affidavit raises new and argumentative material and should be struck out; and
(h)that the balance of justice lies in favour of declining the Security application.
[37] It is not necessary for a Court to specifically address every submission advanced by a party in argument.18 The submissions which I considered warranted addressing were considered in the decision. In relation to (a), at [26], I found the merits of Ms Sax’s judicial review proceedings to be limited; Judge Cameron applied orthodox strike out principles in finding that he was not satisfied Ms Campbell’s claims were baseless or clearly untenable.
[38] In relation to (e), security was not calculated on such a basis. My reasons are found at [31] of the decision where I concluded that only $10,000 in security would be ordered.
[39] For (h), at [24] to [28], I considered the parties’ competing interests. The fact that if Ms Campbell was successful she would be unlikely to recover any costs due to Ms Sax’s impecuniosity, and Ms Sax’s inability to pursue her claim, were matters which I weighed up. Ultimately, I considered the balance of justice weighed in favour of granting security.
[40] No direct evidence was provided relative to the accusation in (c), and as I alluded to in [10] of the judgment, multiple allegations against Ms Campbell were detailed in Ms Sax’s Notice of Opposition. Even if I did err in not addressing this particular allegation fully, on any fresh consideration I would find it to be an allegation, unsupported by the evidence, which would not tip the balance in Ms Sax’s favour, given the limited merits of her judicial review claim, and her impecuniosity.
[41] In relation to (d), the fact that judicial proceedings may or may not be more appropriate than other kinds of proceedings Ms Sax contends she could have instigated, is not a consideration relevant to security for costs within a judicial review context. Ms Sax elected to initiate a judicial review, and in doing so, is governed by the judicial review process and tests. They are what this Court is concerned with.
18 See Re Evidence Act 1908 HC Auckland CIV-2006-404-001018, 31 May 2006 at [6] and Hampton v Minter Ellison Rudd Watts [2020] NZCA 291 at [33] and [40] where the Court of Appeal considered it unnecessary to address every submission where for example, one was simply irrelevant.
[42] There was no need to address (f) in the judgment, considering the Security application concerned Ms Sax’s ability to pay costs, not Ms Campbell’s.
[43] Ms Sax did not detail which parts of Ms Campbell’s affidavit in support of the Security application applied to (g), but it is normal and acceptable for new evidence to be provided in relation to a security for costs application.
[44] Fifthly, the application to amend Ms Sax’s statement of claim19 was filed after the Security and Joinder decision was issued. Thus, any refusal to grant leave to file an amended statement of claim could not have prejudiced Ms Sax in the hearing of the Security and Joinder applications. Ms Sax’s submissions with regard to a restrictive timetable and limited time allotment for the hearing (of 60 minutes) are demonstrative of her misconceived belief she was able to litigate her judicial review claim during the hearing of the Security and Joinder applications. A hearing of 60 minutes is an appropriate allocation for the hearing of interlocutory applications such as the present. It was never intended to accommodate Ms Sax’s extensive submissions on her judicial review. Ms Sax was aware of the amount of time available. How she chose to use it was a matter for her. Ms Sax also takes issue with being prevented from replying to Mr O’Neill’s opening submissions during the hearing. I am uncertain what is meant by this. Assuming it is a claim she was not permitted to reply to Mr O’Neill’s response, the allegation is incorrect. The Registry’s log notes from the hearing reveal that after being addressed by me, Mr O’Neill spoke for a total of 12 minutes before I addressed Ms Sax. Ms Sax then spoke for 48 minutes. Mr O’Neill then concluded in less than a minute, and Ms Sax did the same in just over two minutes. Ms Sax had ample opportunity to address or reply to Mr O’Neill’s submissions.
[45] Sixthly, I do not consider the judgment was unfairly critical of Ms Sax. The facts of this case involve bitter and pointed allegations and counter-allegations which inherently contain levels of criticism, some of which might be described as pointed and unfair. The Court is bound to consider both sides. That is inherent in the nature of judging. I was obliged to set out the factual matrix and the issues to be determined including a description of the competing claims. Courts operate in public and there is
19 Ms Sax attempted to file an application for leave to file an amended statement of claim on 26 June 2020. This was not accepted.
no justification for taking what could be perceived as a more vanilla, but less accurate, summary of the parties’ respective positions. To do so would be to portray the contested issues inaccurately. Furthermore, Ms Sax has adduced no evidence that she has been the subject of internet trolling as a result of the decision.
[46] Finally, the decision was made with regard to all the relevant orthodox principles required by a security for costs determination.
[47] The threshold for leave to appeal is a high one. I am not satisfied that any of Ms Sax’s submissions or grounds for appeal include an arguable error of fact or law justifying further delay to these already protracted proceedings, in the event leave was granted. It follows I do not find that in the circumstances, justice would be served by granting leave and incurring further cost and delay.
[48] The application for leave to appeal the Security and Joinder decision is dismissed.
Application for Leave to Appeal the Suppression Minute (of 23 November 2020)
[49] On 10 December 2020 Ms Sax filed her Suppression Leave application. The application was accompanied by a memorandum and an affidavit. These were the latest in a series of submissions and memoranda addressing the issue of suppression as detailed in [10] above.
[50] According to Ms Sax, the application seeking suppression orders was made on the basis that the Security and Joinder decision was being distributed to prospective customers of her online business. Publication would result in loss of custom she claimed. Ms Sax requested that orders be made “until the matter is finally determined.” No affidavit in support of her original 16 July 2020 application was filed, although what was plainly intended to be supporting material was annexed to the memorandum, including a Stuff news article dated 9 July 2020 which reported on the judgment.
[51] By memorandum in reply Mr O’Neill, for Ms Campbell, submitted that there was no evidentiary basis for Ms Sax’s claims, and that the application was meritless.
Nonetheless, not wishing to “engage in any more hearings regarding this matter”, Mr O’Neill indicated he was prepared to abide the decision of the Court. Later, the District Court, as is conventional, also indicated that it would abide the decision of the Court. However, on 21 July 2020, a Stuff journalist filed an informal objection to the application by email. Stuff’s position is that the publicity afforded to the Security and Joinder decision represented a fair and balanced account of the contents of the decision.
[52] The following day, 22 July 2020, Ms Sax filed a memorandum in which she advised that Stuff had indicated it intended to further report on this proceeding and that she expected any further report to cure the perceived negative effects of the publication of the Security and Joinder decision. She indicated she was no longer pursuing her appeal against my refusal to make suppression orders. On 10 August 2020, however, without any reference to her earlier memorandum of 22 July 2020, Ms Sax filed a further memorandum requesting the urgent disposition of her application for suppression. In both memoranda Ms Sax stated she would file evidence but was unable to do so immediately.
[53] On 18 November 2020 Ms Sax filed a further memorandum. She repeated her request for the Court to deal with her application on an urgent basis, apparently because she understood Television New Zealand was intending to give the judgment of 11 June 2020 some publicity.
[54] As noted, I dismissed the application for interim suppression in my Suppression Minute on 23 November 2020. Having set out the relevant background, 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.20
[6] Ms Sax’s application for interim suppression is meritless. Further, the ‘horse has bolted’; Stuff Limited has reported on the security for costs judgment on 9 July 2020.”
20 Y v Attorney-General [2016] NZCA 474, [2016] NZAR 1512 at [29].
[55] Ms Sax says I was wrong to describe the application as “meritless”. This appears to be on the basis that the publicity of the incorrect material contained in my Security and Joinder decision would harm her business interests. She also says I was wrong to say that the “horse has bolted” when, as of the date of the application for leave to appeal, only Stuff had reported on the matter. I note that in her supporting memorandum she says that Television New Zealand’s Fair Go programme had reported on the matter in the week of 10 December 2020. No detail as to what the reportage contained has been produced.
[56] As noted, the respondent has taken no position on the Suppression Leave application, a stance consistent with the comments of counsel that his client’s resources are limited and her energies will be applied to those aspects of the litigation which assume significance for her.
[57] As with the other leave application, s 56(3) of the Senior Courts Act 2016 governs the process. I have already set out the relevant principles which govern such applications at paragraphs [28] to [31] above.
[58] As noted, the threshold for a grant of leave is a high one.21 I am satisfied the present application falls well short of meeting that hurdle for several reasons. First, it fails to disclose any arguable error of law. Ms Sax’s claims of embarrassment and distress at aspects of my decision being made public does not displace the principle of open justice and the importance of freedom of expression.22 If the reporting had been inaccurate or unfair, which it does not seem to me to be, Ms Sax’s avenue for redress would be to lay a complaint with the Press Council which has powers to order the publication of a correction and/or apology.
[59] Secondly and relatedly, the fact that only one (or potentially two at most) news outlets have so far reported on the decision does not mean the horse has not already bolted. The judgment was given coverage by Stuff on its widely read online news platform. Suppressing the judgment now would be an exercise in futility.
21 Finewood Upholstery Ltd v Vaughan, above n 15 at [9]-[14], approved in Ngai Te Hapu Incorporated v Bay of Plenty Regional Council [2018] NZCA 291 at [15] and [17]; and Greendrake v The District Court of New Zealand [2020] NZCA 122 at [6].
22 See Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [13] and [21].
[60] For these reasons I am satisfied the Suppression Leave application should be dismissed.
Costs on the Security and Joinder decision
[61] Ms Campbell was the successful party on both the Security and Joinder applications. She now seeks costs. As the successful party she is prima facie entitled to costs. A memorandum by Mr O’Neill was filed on 16 June 2020. On 9 July 2020 Ms Sax filed a memorandum opposing the costs sought by the respondent.
[62] Mr O’Neill submits costs on a 2B basis are appropriate. Additionally, he seeks an increase of 25 per cent. He submits the increase is warranted because Ms Sax provided a “plethora” of information, some of which was amended at the last minute, was late, or was irrelevant. A large amount of time and effort was required to process the documents and determine whether they included anything that was “relevant or germane” to the application.
[63] Tables are included in his submissions setting out the respondent’s scale costs for both applications. Mr O’Neill submits total scale costs on a 2B basis to be
$12,211.00. He further submits the total would be $15,138.75 after a 25 per cent increase is applied. Mr O’Neill calculates 25 per cent of $11,711 ($12,211 minus a
$500 filing fee) to be $2,927.75. He calculates $11,711 plus $2,927.75 to be
$14,638.75. He then adds a $500 fee to reach $15,138.75. For ease of reference I set the tables out below:
Security for Costs Application Description Time Rate Amount Clause 22 Application 0.6 $2,390 $1,434.00 Clause 24 Submissions 1.5 $2,390 $3,585.00 Clause 26 Appearance at hearing 0.25 $2,390 $ 597.50 Clause 29 Sealing order 0.2 $2,390 $ 478.00 $6,094.50 Filing fee application $ 500.00 TOTAL $6,594.50
Opposition to Joinder Application Description Time Rate Amount Clause 23 Opposition 0.6 $2,390 $ 1,434.00 Clause 24 Preparation of Submissions 1.5 $2,390 $ 3,585.00 Clause 26 Hearing 0.25 $2,390 $ 597.50 Total $ 5,616.50 Total Sought $11,711.00 Disbursement and filing fee $ 500.00 TOTAL $12,211.00
[64] In opposing an award of costs Ms Sax submits that any decision as to costs should be adjourned pending the outcome of her outstanding Recall and leave applications. In the event the Court is not attracted to that course, she submits costs should lie where they fall.
[65] It is evident from this judgment that both the Recall and leave applications are now dismissed. There is no justification for an adjournment. Furthermore, given the tortuous procedural history of this matter I do not consider this to be a case where costs should lie where they fall.
[66] In the alternative, Ms Sax submits that the appropriate cost band is A1, and that although the legislation provides the unsuccessful party “should” pay costs, that principle should not apply where the substantive decision is now being challenged, and in circumstances where Ms Sax had offered Ms Campbell a sum for security prior to the hearing, albeit with conditions attached. Ms Sax submits the extent of the discovery she provided was not as extensive as Mr O’Neill suggests.
[67]As to Mr O’Neill’s table of costs, Ms Sax submits:
(a)it is unclear why the $500 claimed for sealing the security order has been claimed;
(b)the hearing took place over an hour, not a half-day;
(c)the three days claimed for preparing submissions is excessive, as Mr O’Neill’s submissions were brief; and
(d)the time apportioned for the Security application and for the opposition to the Joinder application is excessive.
[68] In the remainder of her submissions, Ms Sax canvasses a variety of concerns relating to the merits of her judicial review claim against Judge Cameron’s decision. She has included irrelevant material of a similar sort to that filed in previous submissions and memorandum. This content is irrelevant to the question of costs.
[69] Part 14 of the Rules governs awards of costs. Although the Court has a wide discretion in determining costs,23 that discretion is qualified by rr 14.2 to 14.10. It is trite that costs follow the event and that an unsuccessful party can expect to pay the costs of the successful one.
[70]Increased costs are governed by r 14.6. Such costs may be ordered where:24
“14.6 Increased costs and indemnity costs
…
(3)The court may order a party to pay increased costs if—
(a)the nature of the proceeding or the step in it is such that the time required by the party claiming costs would substantially exceed the time allocated under band C; or
(b)the party opposing costs has contributed unnecessarily to the time or expense of the proceeding or step in it by—
(i)failing to comply with these rules or with a direction of the court; or
(ii)taking or pursuing an unnecessary step or an argument that lacks merit; or
(iii)failing, without reasonable justification, to admit facts, evidence, documents, or accept a legal argument; or
23 High Court Rules 2016, r 14.1.
24 Rule 14.6(3).
(iv)failing, without reasonable justification, to comply with an order for discovery, a notice for further particulars, a notice for interrogatories, or other similar requirement under these rules; or
(v)failing, without reasonable justification, to accept an offer of settlement whether in the form of an offer under rule 14.10 or some other offer to settle or dispose of the proceeding; or
(c)the proceeding is of general importance to persons other than just the parties and it was reasonably necessary for the party claiming costs to bring it or participate in it in the interests of those affected; or
(d)some other reason exists which justifies the court making an order for increased costs despite the principle that the determination of costs should be predictable and expeditious.
…”
[71] The overarching consideration in awarding increased costs is whether the opposing party has in some way contributed unnecessarily to the time and expense of part or all of the proceedings.25 The onus is on the claiming party to satisfy the Court an increase is justified.
[72] It may be appropriate for costs for be increased for an unnecessary step. As the Court of Appeal stated in Corrick v Silich:26
“An ‘unnecessary’ contribution to costs in relation to a step in a proceeding is often better reflected by increased costs in relation to that step rather than the proceeding as a whole.”
[73] As noted, this costs decision relates only to Ms Campbell’s successful Security application and her successful opposition to Ms Sax’s Joinder application. It does not relate to the other applications dealt with in this judgment because Mr O’Neill elected not to participate for reasons of economy.
[74] Rather than delay the costs determination I intend to fix costs in the respondent’s favour at this point. Doing so on a 2B basis is appropriate in my view. With one exception I am not prepared to award increased costs, although such a course
25 Corrick v Silich [2018] NZCA 221, (2018) 24 PRNZ 210 at [60].
26 At [6].
might well have been justified in the present circumstances. The number of submissions and material provided to the Court by Ms Sax on these applications warrants noting. They required Mr O’Neill to read them and make a decision as to whether they required a response and, if so, how. I set them out below to provide context for the later determinations in this judgment.
Party Date Document Ms Campbell 20 March 2020 Interlocutory Application on Notice that Applicant pays Security for Costs Affidavit of Melody Campbell in support of Application for Security for Costs Ms Sax 18 May 2020 Notice to Admit Facts Joinder of Parties Notice of Opposition Ms Campbell 18 May 2020 Notice of Opposition by First Respondent to Application for Leave to Add Further Respondents Memorandum on behalf of the First Respondent in Respect of Notice to Admit Facts Ms Campbell 25 May 2020 Submissions of First Respondent as to Security of Costs Ms Sax 27 May 2020 Submissions on Application for Joinder of Parties Ms Campbell 28 May 2020 Submissions of First Respondent as to Joinder of Respondents Ms Sax 29 May 2020 Submissions in Support of Notice of Opposition to Security Ms Campbell 29 May 2020 Memorandum with regard to Bundle of Authorities
[75] I agree with Mr O’Neill’s submission that the amount of material filed by Ms Sax was voluminous. By my count, Ms Sax filed 49 pages (excluding annexures), in preparation for the hearing. In comparison, the respondent submitted a total of 18 pages. I again note that a large portion of the submissions and other material filed by Ms Sax included content that was simply irrelevant. This appears to be something
which Ms Sax acknowledges. She candidly admits she struggles with presenting a focussed approach; “it is difficult not to relitigate the merits of my Judicial Review proceedings”.27
[76] Ms Sax’s Notice to Admit Facts of 18 May 2020 was unnecessary and irrelevant in the context of the Security and Joinder applications. As noted by Mr O’Neill in his memorandum of 18 May 2020, the factual issues are ones that Ms Campbell can be cross-examined on during the District Court harassment proceedings.
[77] As I observed at [71], the overarching consideration in determining whether increased costs are appropriate here, is whether Ms Sax has in some way contributed unnecessarily to the time and expense of part or all of the proceedings. I consider that she has, specifically in relation to the filing of the notice to admit facts. Although the respondent has not included attendances relative to that aspect of the proceedings in the table, I consider it a step in the proceedings which warrants noting. Item 36 in sch 3 of the Rules provides for “other steps in proceeding not specifically mentioned”. By analogy this is comparable to item 19, “admission of facts”. I note no facts were admitted, and that the respondent’s memorandum was short. I consider the Band A time allotment of 0.4 to be appropriate. Further, I consider a 25 per cent increase on this item appropriate.
[78] Ms Sax claims an offer was made which, if accepted, would have made the Security application redundant. The offer is referred to at [2] of her memorandum seeking adjournment/opposing costs sought,28 and contained in Annexure C of her Submissions in Support of Notice of Opposition to Security.29 Annexure C is an excerpt from an email chain dated 15 April 2020. Ms Sax wrote to Ms Karen Brown of Clark & Brown Lawyers:
“If you agree to pay 5% interest on monies paid as security in the event that you fail (the judicature rate), then that will save you the security application.”
27 Memorandum seeking Adjournment/Opposing Costs Sought, dated 9 July 2020.
28 Dated 9 July 2020.
29 Dated 29 May 2020.
[79] This does not constitute an offer for security of costs. Rather it requests additional assurance from Ms Campbell. It does not provide the respondent with any assurance as to Ms Sax’s ability to pay an adverse costs order.
[80]I turn next to consider specific aspects of the respondent’s table of costs:
(a)the decision has not been sealed. Thus item 29 is inappropriate;
(b)the two applications were heard at the same hearing. Item 26 cannot be claimed twice;
(c)neither disbursements nor filing fees are subject to increased costs orders. They should not have been included in the increased costs calculations. Mr O’Neill removed one fee before making the percentage adjustment, but not the other; and
(d)the table does not include a step for the filing of the respondent’s memorandum in opposition to Ms Sax’s Notice to Admit Facts.
[81] I thus propose to make consequential adjustments in terms of the following table:
Security for Costs Application Description Time Rate Amount Item 22 Filing an interlocutory application 0.6 $2,390 $ 1,434.00 Item 23 Filing an opposition to an interlocutory application 0.6 $2,390 $ 1,434.00 Item 24 Preparation of written submissions for Security application 1.5 $2,390 $ 3,585.00 Item 24 Preparation of written submissions for Joinder application 1.5 $2,390 $ 3,585.00 Item 26 Appearance at hearing 0.25 $2,390 $ 597.50
Security for Costs Application Item 19 Item 36; Other steps in proceeding not specifically mentioned
Item 19 by analogy; Admissions of facts
0.4 $2,390 $ 956.00 25 per cent increase 0.1 $2,390 $ 239.00 Total $11,830.50 Filing fee application x 2 $ 1,000.00 TOTAL $12,830.50
[82]Costs of $12,830.50 are awarded against Ms Sax in favour of Ms Campbell.
Result
[83]The application for recall of the Security and Joinder decision is dismissed.
[84] The application for leave to appeal the Security and Joinder decision is dismissed.
[85]The application for leave to appeal the refusal to suppress is dismissed.
[86]Costs of $12,830.50 are awarded against Ms Sax.
Moore J
Solicitors:
Mr O’Neill, Hamilton
Crown Law, Wellington
Copy to:
The Appellant/Respondent
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