Sax v Campbell

[2020] NZHC 1297

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-000024

[2020] NZHC 1297

BETWEEN

JANINE DAVINA SAX

Appellant/Respondent

AND

MELODY ANNE CAMPBELL

First Respondent/Applicant

DISTRICT COURT AT TAURANGA

Second Respondent

Hearing:

3 June 2020 (Heard in Rotorua)

Appearances

Appellant/Respondent in Person

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

Judgment:

11 June 2020

Reissued:

2 July 2020

JUDGMENT OF MOORE J

This judgment was delivered by me on 11 June 2020 at 11:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SAX v CAMPBELL & ANOR [2020] NZHC 1297 [11 June 2020]

Introduction

[1]    Melody Anne Campbell and Janine Davina Sax were next door neighbours living on the same road in a semi-rural area near Tauranga.

[2]    Initially, Ms Campbell and her late husband enjoyed a cordial relationship with Ms Sax. However, according to Ms Campbell, this changed after Ms Sax began to breed rabbits at her address sometime after September 2016. Ms Sax complained about the Campbell’s dog being on her property which later led to claims that Ms Campbell’s cats had killed her rabbits. Other, more sinister, accusations followed. The relationship between the parties deteriorated into acrimony and it has remained acrimonious.

[3]    In June 2019 Ms Campbell, then acting for herself, applied for orders against Ms Sax pursuant to the Harassment Act 1997 (“the Harassment Act”). Ms Sax responded by filing an application to strike out Ms Campbell’s proceeding on the grounds that it contained no reasonably arguable cause of action and that it was frivolous, vexatious and an abuse of the process of the Court.

[4]    The strike  out  application  was  heard  in  the  Tauranga  District  Court  on  7 November 2019. By this time Ms Campbell was represented by Mr O’Neill. Ms Sax was, and remains, self-represented. In his reserved decision of 5 February 2020 Judge I D R Cameron dismissed Ms Sax’s strike out application and at Ms Campbell’s request reserved the question of costs.

[5]    Ms Sax did not file an appeal against that decision within time. She subsequently issued judicial review proceedings alleging that the decision “… was the result of an unfair procedure and/or the Judge was biased, irrational and/or misunderstood the law”.

[6]    Ms Sax’s claim is scheduled to be heard in the Tauranga High Court for two days commencing 30 July 2020.

[7]Ms Campbell’s application under the Harassment Act is yet to be heard.

[8]    Before this Court there  are  two  interlocutory  applications.  The  first  is  Ms Campbell’s application dated 20 March 2020 seeking orders for security for costs. The second is Ms Sax’s application dated 15 May 2020 to add further defendants. I shall first deal with the application for security for costs.

Security for costs

[9]    Ms Campbell applies for security for costs on the grounds she does not believe Ms Sax can pay costs if her proceedings fail. She claims Ms Sax lives rent free in a converted shed on her father’s property. She believes her only source of income is from the breeding and raising of rabbits through a family business known as “Bunnyton”. She does not believe Ms Sax owns any property. She thus asks for an order that Ms Sax pay sufficient funds into Court by way of security for costs and that until such time as any payment remains outstanding that the judicial review proceeding are stayed.

[10]   Ms Sax opposes the application.  In  her  notice  of  opposition  she  claims Ms Campbell does not come to Court with “clean hands”. She says Ms Campbell has directly and indirectly compromised Bunnyton’s commercial viability by conspiring to kill her breeding stock, distributing “injurious substances” such as laxative and Calici virus, conspiring to import new viruses from Japan to kill the rabbit stock, conspiring to steal breeding stock to supply to competitors, permitting animals  in Ms Campbell’s control to kill, maim and traumatise Bunnyton stock and damaging or “graffitiing” Bunnyton property. She also claims Ms Campbell “attempted to and/or induced breach of contract” by publishing malicious falsehoods about her and Bunnyton to commercial competitors, engaging in a private Facebook group called “Saxophobia” to steal customers and to encourage subscribers to push Ms Sax into taking her own life. She accuses Ms Campbell of redirecting potential Bunnyton customers elsewhere. Ms Sax also complains that Ms Campbell is responsible for a series of other steps designed to cause the Bunnyton business to collapse. There are numerous other allegations against Ms Campbell detailed in the eight-page Notice of Opposition.

[11]   Ms Sax’s affidavit covers both her evidence in opposition to Ms Campbell’s application for security for costs and in support of her application to join further defendants. It is voluminous and, with annexures, runs to over 90 pages. In essence this material repeats, albeit in much greater detail, the claims set out in the Notice of Opposition.

[12]    She is highly critical of the Police in failing to properly investigate her complaints of burglary, criminal harassment and breaches of the Harmful Digital Communications Act 2015. She makes extensive reference to documents which appear to be contained in three volumes of exhibits which, I assume, were filed for the District Court proceedings but which are not part of this Court’s file. From the page references she cites it is evident that these documents run to many hundreds of pages.

[13]   Ms Campbell claims that the annual costs of vaccinating her stock against Calici virus “…is well over $10,000…”. Additionally, she says that she has spent nearly $20,000 in hiring contractors and paying for materials to create new spaces to accommodate her rabbits. She has had to pay vet fees to treat sick stock. She also claims that Ms Campbell has conspired with competitors of Bunnyton, via the Saxophobia  platform,  to  steal  her  most   valuable  breeding  stock.   She  says   Ms Campbell’s cat was also responsible for killing stock worth over $10,000.

Legal principles

[14]   Rule 5.45 of the High Court Rules 2016 (“the Rules”) provides for orders for security of costs relevantly provides:

“5.45   Order for security of costs

(1)        Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)that a plaintiff—

(i)is resident out of New Zealand; or

(ii)        is    a    corporation   incorporated    outside New Zealand; or

(iii)is a subsidiary (within the meaning of section

5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)       that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff’s proceeding.

(2)        A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)An order under subclause (2)—

(a)        requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)by paying that sum into court; or

(ii)       by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b)       may stay the proceeding until the sum is paid or the security given.

…”

[15]The relevant questions for the Court are as follows:1

(a)Has the applicant satisfied the Court of the threshold under r 5.45(1)?

(b)How should the Court exercise its discretion under r 5.45(2)?

(c)What amount should security be fixed at?

(d)Should a stay of the proceeding be ordered pending security being given?

[16]I shall deal with each of these questions in turn.

(a)Has the applicant satisfied the Court of the threshold under r 5.45(1)?

[17]   The issue under this heading is whether it appears Ms Sax will be unable to pay costs if the proceeding fails.

1      Busch v Zion Wildlife Gardens Limited (In Rec and in Liq) [2012] NZHC 17.

[18]   The only evidence directly on point is Ms Campbell’s which I have already discussed. Ms Sax’s evidence, despite its volume, is all but silent on this central issue. Indeed, apart from asserting in her oral submissions that Ms Campbell was wrong in deposing Ms Sax lives in a converted garage, no material aspect of Ms Campbell’s affidavit has been contradicted by Ms Sax.

[19]    Overwhelmingly, the focus of Ms Sax’s evidence challenges the merits of Ms Campbell’s Harassment Act application and attacks those she originally intended to join as defendants. Although Ms Sax alleges that Ms Campbell has, in the various ways summarised above, caused commercial harm to Bunnyton, there is little if any reference as to how this alleged conduct has, in fact, affected the commercial viability of Bunnyton and/or Ms Sax’s means and thus ability to meet an adverse costs order. No attempt has been made to disclose the financial records of Bunnyton or the state of Ms Sax’s finances. She has not attempted to respond to Ms Campbell’s evidence as to her means and ability to meet a costs order. In the course of the hearing, Ms Sax indicated that while she was prepared to expand on this further she was not prepared to share that information in the presence of Ms Campbell’s counsel. I was not prepared to take her evidence in the absence of the other party.

[20]   Furthermore, having lived next door to Ms Sax for over three years, and for some time in cordial circumstances, Ms Campbell is likely to have a reasonable knowledge of Ms Sax’s living arrangements and thus her general financial position.

[21]   It  thus  follows  there  is  insufficient  evidence  before  me  to  contradict  Ms Campbell’s evidence as to Ms Sax’s means.

[22]   I have considered whether Ms Sax’s claim that Ms Campbell has caused Bunnyton irreputable commercial damage should operate against exercising my discretion to make an order. I have decided it should not. First, Ms Sax’s claims have not been tested by cross-examination and are unlikely to be, given the limited nature of judicial review. Secondly, the allegations, even if correct, are not linked to any assertion by Ms Sax that they have contributed or caused her inability to pay costs.2

2      Bell-Booth Group Limited v Attorney-General & BCNZ (1986) 1 PRNZ 457 (HC).

[23]   Essentially, Ms Sax has avoided providing the Court with any cogent evidence to satisfy me she is in a financial position to pay costs. In those circumstances a Court may draw an inference of inability to pay.3 I am satisfied that this factor, combined with the other matters referred to above, are sufficient for me to draw the inference that in the event Ms Campbell is unsuccessful on her judicial review, Ms Sax would not have sufficient means to meet an adverse order for costs.

(b)How should the Court exercise its discretion under r 5.45(2)?

[24]   Under r 5.45(2) the Court may make an order “… if the Judge thinks it is just in all the circumstances”. This reflects the highly discretionary nature of security for costs.4 The balancing of the interests of the parties is the overriding consideration.5

[25]    I accept that if the effect of making an order for security would have the effect of Ms Sax being prevented from pursuing her claim, that is a matter which operates against making such an order given the principle that access to the Courts for a genuine plaintiff is not likely to be denied.6 Judges will be slow to make an order for security which has the effect of stifling a legitimate claim.7 However, the principle of access to justice is also a relevant consideration when viewed from Ms Campbell’s perspective. The practical effect of Ms Sax’s application for judicial review is that Ms Campbell’s application for orders under the Harassment Act has been suspended pending the outcome of the present judicial review proceedings. She, too, is entitled to access justice.

[26]   I also regard as relevant my impression that the present proceedings are of limited merit. Despite the many hundreds of pages of material filed by Ms Sax, the issue in these proceedings is necessarily narrow. It will  boil  down  to  whether Judge Cameron was correct in dismissing Ms Sax’s strike out application and, if so, what is the appropriate remedy. Having reviewed the decision, it appears that the Judge applied orthodox strike out principles. He concluded that notwithstanding the three volumes of material filed by Ms Sax contradicting Ms Campbell’s claims, the

3      Nikau Holdings Limited v Bank of New Zealand (1992) 5 PRNZ 430.

4      McLachlan v MEL Network Limited [2002] 16 PRNZ 747 (CA).

5      Highgate on Broadway Limited v Devine [2012] NZHC 2288, [2013] NZCAR 1017 at [24](c).

6      McLachlan v MEL Network Limited, above n 4, at [15] and [16].

7      Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

evidence of both sides required testing and nothing before the Judge satisfied him that Ms Campbell’s claims were baseless and so clearly untenable that they “could not possibly succeed”.8

[27]   Having read the material filed by Ms Sax in this Court, and conscious that it represents only part of what was filed in the District Court, it is difficult to avoid the impression that the present proceedings have been initiated not  only to frustrate    Ms Campbell’s application in the District Court but also to elevate the levels of acrimony between these two former neighbours.

[28]   For these reasons I am satisfied that balancing the interests of the parties I should exercise my discretion in favour of the applicant to make the order.

(c)What amount should security of costs be fixed at?

[29]   This too is a discretionary matter. An order for security will commonly be for an amount that is less than the full amount of the likely award of costs as calculated under Schedule 3 of the Rules.9

[30]   At the hearing, Mr O’Neill accepted that the quantum of $31,419 which he proposed in his written submissions, was intended to include some “leeway” for the costs likely to be encountered preparing for and attending the substantive hearing. Instead, he proposed that a likely award on a 2B basis should be based on a time allocation of 7.1 days. As already noted, the issues engaged in the judicial review are narrow. Mr O’Neill properly conceded that his inclusion of attendances for discovery should be removed and his claim for preparation substantially reduced, given that the compass of enquiry in this Court will likely duplicate much of the argument in the District Court.

[31]   In setting the appropriate quantum for security I must strike a balance between an amount which might have the effect of denying Ms Sax the ability to prosecute her claim and the amount necessary to provide Ms Campbell with a reasonable level of security for costs in the event she succeeds. Given I have no evidence before me as to

8 Judgment at [9].

9      McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 5.45.07].

Ms Sax’s actual means I have determined that a relatively modest order, struck at a level which is considerably less than that which Ms Campbell might expect in the event of success, strikes that balance. I set the security at $10,000.

(d)Should a stay be ordered?

[32]   Although discretionary under r 5.45(3)(b), the Court will generally stay a proceeding until the security ordered is given.10 The Court may also make a pre- emptive order to stay a proceeding if payment is not made by the date ordered.11

[33]   I am satisfied that the usual practice should be adopted in the present case. The alternative renders Ms Campbell vulnerable to the risk that if this matter proceeds to trial for the full two days and she is ultimately successful, hers will be pyrrhic victory. She will have expended considerable funds defending the judicial review proceeding whilst not being able to advance her own claim in the District Court at all. In my view that would be to cause her an injustice.

[34]For these reasons I direct that Ms Sax is to pay into this Court the sum of

$10,000 by 5:00 pm on Friday, 3 July 2020 (“the due date”). In the event that sum is not paid by the due date the present proceeding will be stayed until further order of this Court.

Application to join other defendants

[35]   Ms Sax originally applied to join nine further defendants. These were the New Zealand Police, Netsafe, the administrators of the BBB Facebook pages, Greenpeace New Zealand, TradeMe, the Western Bay of Plenty Regional Council12 (“the Council”), the Rabbit Council of New Zealand, Victim Support, Tauranga and Spark. In her written submissions she confirmed that these parties should be joined, together with any others “deemed necessary by this Court to ensure justice is done”.

10     Tomanovich Holdings Limited v Gibbston Community Water Company (2014) Limited [2018] NZHC 990 at [68]-[85].

11     Westpac New Zealand Limited v Adams [2013] NZHC 3112 at [92](c).

12     Later orally amended to Western Bay of Plenty District Council.

[36]   In her oral submissions before me, the number of potential defendants was reduced to two; the Police and Netsafe. However, in Ms Sax’s most recent communications with the Court, by way of a post-hearing memorandum dated 5 June 2020, she asks that the Council be joined. She also seeks orders suppressing her address on the ground that the location of her address “… is supposed to be a safe- place by my ex-husband”. I am prepared to grant her request. While it is necessary to refer to the fact she and Ms Campbell were neighbours, I can see no reason for her address to be described in anything other than in the most general of ways.

[37]   As I understood Ms Sax, she seeks the joinder of the Police because of failures to disclose information relating to Ms Campbell’s trespass allegations and other allegations as particularised across 11 pages of her written submissions.

[38]   Ms Sax claims Netsafe should be joined because it was a conduit for the publishing of untrue personal information about her which was used by Ms Campbell in the District Court proceedings and refusing to deal with Ms Sax’s complaints.

[39]   According to Ms Sax, the Council should be joined for refusing to disclose complaints targeting Ms Sax, despite disclosing them to other parties. She also complains that the Council refused to disclose any personal information to her regarding Ms McMillan or to disclose details of the outcome of an investigation into a resource consent violation.13

[40]   The jurisdiction to join parties to an application for judicial review is to be found in r 4.56 of the Rules14 and s 14 of the Judicial Review Procedure Act 2016 (“the JR Act”).15 The co-existence of the two sets of rules enables parties to judicial review to use both the Rules and the JR Act.

[41]   Section 14 of the JR Act is wider than r 4.56 in its application. To the extent that it is possible to articulate useful guidelines, it may be appropriate to join a party to judicial review proceedings where that party’s interests are directly or indirectly

13     This would appear to relate to a complaint Ms Sax made to the Council accusing Ms Campbell of depositing industrial waste.

14     High Court Rules 2016, r 4.56(1)(b)(i) or (ii).

15     Judicial Review Procedure Act 2016, s 14(2)(b)(i).

affected or if it would be unjust to decide the issues in their absence and/or where any remedy ordered would require that party to be joined.

[42]   Nothing contained in the material relating to the three proposed defendants has any bearing on whether Judge Cameron correctly refused Ms Sax’s strike out application. Given the limited scope of the judicial inquiry in this case, I cannot see how or why the complaints made by Ms Sax about the actions (or inaction) of these entities could assist in the determination of the proceeding and/or could lead the Court to make orders affecting their rights.

[43]   For these reasons I am satisfied the application to join the three proposed parties should be dismissed.

Result

[44]   Ms Campbell’s application for security for costs is granted and orders are made in terms of [34] hereof.

[45]Ms Sax’s application for joinder of parties is dismissed.

[46]   Ms Campbell, being the successful party on this application, is entitled to costs. I direct the parties to attempt to agree on the question of costs. In the event there is no agreement I direct the parties to file memoranda not exceeding three pages in length within 20 working days of this judgment and I shall determine the issue on the papers.

Moore J

Solicitors:

Mr O’Neill, Hamilton Crown Law, Wellington

Copy to:
The Appellant