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…

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 [2020] NZHC 1297
Case: [2020] NZHC 1297
Decision Date: 11 June 2020

CaseChat Overview and Summary

In the case of Sax v Campbell, the High Court of New Zealand was tasked with deciding two significant interlocutory applications brought by Melody Anne Campbell against Janine Davina Sax. The first application sought an order for security for costs, arguing that Sax would be unable to pay costs if her judicial review application failed. The second application sought to join additional defendants to the judicial review proceedings, including the New Zealand Police, Netsafe, and the Western Bay of Plenty District Council.

The court considered whether Campbell had established that Sax would be unable to pay costs if she lost the judicial review proceedings. Despite Sax's voluminous opposition, she failed to provide any evidence that contradicted Campbell's assertions about her financial situation. The court found that the claims Sax made against Campbell, although detailed and extensive, did not address her ability to pay costs. Consequently, the court concluded that Sax would likely be unable to pay costs if Campbell succeeded in her judicial review application.

Regarding the amount of security for costs, the court opted for a modest order of $10,000, balancing Sax's ability to continue with her claim against Campbell's need for protection against an adverse costs order. The court also decided to stay the judicial review proceedings until Sax paid the security, to prevent Campbell from incurring unnecessary costs while her Harassment Act application remained suspended.

As for the application to join additional defendants, the court found that none of the proposed parties had any relevance to the judicial review proceedings, which focused solely on the District Court's decision to dismiss Sax's strike-out application. The court dismissed the application to join the additional defendants.

Ultimately, the court granted Campbell's application for security for costs and dismissed Sax's application to join additional defendants. Campbell, as the successful party on the security for costs application, was entitled to costs, which the court directed the parties to attempt to agree upon. If they could not agree, they were to file memoranda within 20 working days for the court to determine the issue on the papers.

Orders