Sax v McMillan - [2023] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2022-470-000031

[2023] NZHC 2866

BETWEEN
JANINE DAVINA SAX

Applicant

AND

JOANNE HEATHER McMILLAN

Respondent

Hearing: On the papers

Counsel:

Applicant in person

M Chester for Respondent

Judgment:

13 October 2023

JUDGMENT OF HINTON J

[Re: Application for leave to appeal]

This judgment was delivered by me 13 October 2023 at 3,00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Holland Beckett Law, Tauranga

SAX v McMILLAN [2023] NZHC 2866 [13 October 2023]

Introduction

[1] On 4 July 2023, I gave judgment declining to waive security for costs and ordered Ms Janine Sax to pay $4,000 to the Registrar of the High Court.1 Ms Sax seeks leave to appeal to the Court of Appeal. The respondent opposes the application.

[2] On request by the respondent, and in the absence of any contrary indication on the part of Ms Sax, the application proceeds on the papers in the standard way and on the basis of the material before the Court.

Background

[3] Ms Sax applied for a restraining order against the respondent under the Harassment Act 1997. The respondent in turn applied to dismiss the proceeding as an abuse of procedure under s 32(1) of that Act. On 28 March 2022, Judge TR Ingram granted the application to dismiss.2 Harvey J granted Ms Sax leave to appeal the decision of Judge Ingram out of time.3

[4] On 16 June 2023, Judge W Lawson heard an ex-parte application by Ms Sax for an order to dispose of security for costs on the appeal.4 That application was declined and Ms Sax appealed.

[5] Ms Sax made a subsequent application to this Court for an order waiving security for costs on appeal. At the hearing of that application which took place before me on 29 June 2023, both parties sensibly agreed that my judgment should be treated as addressing both Ms Sax’s appeal of Judge Lawson’s decision and her application for waiver of security for costs filed in this Court.5

[6] On 4 July 2023, I declined waiver and Ms Sax was ordered to pay security for costs in the amount of $4,000. Ms Sax seeks leave to appeal my decision to the Court of Appeal.

1      Sax v McMillan [2023] NZHC 1702.
2      Sax v McMillan [2022] NZDC 4128.
3      Sax v McMillan [2022] NZHC 3099.
4      Sax v McMillan DC Tauranga CIV-2021-070-668, 16 June 2023.
5      Sax v McMillan, above n 1, at [5].

[7] In support of her application for leave, Ms Sax has provided two affidavits. The first, sworn by her on 19 July 2023, breaches r 9.76(2)(a)(i) of the High Court Rules 2016 in that it “unnecessarily sets forth any argumentative matter”. However, as Ms Sax did not file written submissions, I have read and considered her affidavit to the extent that it applies to the current application. The second affidavit, sworn…

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.

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Details

Case: [2023] NZHC 2866
Decision Date: 13 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Sax v McMillan involved an application by Ms. Janine Sax for leave to appeal the decision of Hinton J, who had declined to waive security for costs and ordered Ms. Sax to pay $4,000. The respondent, Ms. Joanne McMillan, opposed the application. Ms. Sax's application for leave to appeal was based on the premise that there were errors in the judgment concerning the dismissal of her application for a restraining order under the Harassment Act 1997 and her appeal against the decision to dismiss that application. The legal issues before the court involved the grounds for leave to appeal under sections 56 and 60 of the Senior Courts Act 2016.

The court examined Ms. Sax's grounds for appeal, which included the alleged misrepresentation of her claim, the incorrect finding that her status as a lay litigant would increase the complexity and workload of the appeal, and the failure to adequately consider factors against security. The court found that none of these grounds constituted an arguable error of law or fact. Furthermore, the grounds that pertained to the substance of the substantive appeal rather than the appeal regarding the waiver of security were not relevant to the application for leave. The court also noted that Ms. Sax's status as a lay litigant indeed increased the complexity and workload of the proceeding, and the appeal was considered further harassment and abuse of process.

The court concluded that the application for leave to appeal did not meet the high threshold required under sections 56 and 60 of the Senior Courts Act 2016. The interests of justice did not support granting leave to appeal, as there were no material errors of law or fact that warranted further litigation. The application for leave to appeal was therefore declined, and Ms. Sax's appeal of Judge Ingram's decision was deemed abandoned pursuant to section 126(3) of the District Court Act 2016.

Orders