Sax v McMillan
[2023] NZHC 2866
•13 October 2023
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 by Ms Elizabeth Martin and dated 19 July 2023, provides no evidence relevant to the application before the Court. It is thus excluded under r 9.76(1)(d)(i).
Legal principles
[8] Ms Sax seeks leave to appeal a judgment that determined both an interlocutory application to this Court and an appeal from the District Court. The application therefore engages ss 56 and 60 of the Senior Courts Act 2016 (the Act) relating to appeals, and second appeals, from a decision of this Court.
[9]Section 56 of the Act relevantly provides that:
56 Jurisdiction
(1)The Court of Appeal may hear and determine appeals—
(a)from a judgment, decree, or order of the High Court:
…
(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.
…
[10]An application for leave to appeal is subject to the following considerations:6
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
6 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
(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.
[11]Section 60 of the Act provides:
60Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court
(1)The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.
…
[12] Similar considerations arise under s 60 as under s 56. Section 60 substantively re-enacts s 67 of the Judicature Act 1908. In Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd, the Court of Appeal stated that:7
[33] … Under either test [s 67 or s 144] the primary focus is on whether the question of law is worthy of consideration. We cannot do better than Randerson J’s summary of the position in Cooper at para [12]:
(a)The appeal must raise some question of law … capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.
(b)Upon a second appeal, the Court of Appeal is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below.
(c)Not every alleged error of law is of such importance either generally or to the parties as to justify further pursuit of litigation that has been twice considered and ruled upon by a Court.
7 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 citing Cooper v Symes (2001) 15 PRNZ 166 (HC).
Applicant’s submissions on appeal
[13] As I understand her application for leave, Ms Sax relies on the following alleged errors in the 4 July 2023 judgment:
(a)Her claim was misrepresented. The appeal was not hopeless and inadequate weight was given to the merits of her claim under the Harassment Act, which included alleged property damage, verbal and online harassment, and attempts to harm her business reputation.
(b)An incorrect finding that Ms Sax’s status as a lay litigant was likely to increase the complexity and workload of the appeal.
(c)Failure to adequately consider factors weighing against security, particularly that there is public interest in the appeal as regards “the need to preserve the integrity of court processes”, that the appeal engages Ms Sax’s rights under ss 14 and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA), r 5.45 of the High Court Rules, and the decision in Reekie v Attorney-General.8
Discussion
[14] There is no merit in the application for leave to appeal and it is declined. The interests of justice clearly do not support leave in this case.
[15] My reasons for refusing leave are essentially the same as the reasons set out in my 4 July 2023 judgment. Ms Sax raises no new points in substance.
[16]None of the grounds of appeal constitutes an error of law.
[17]None of the grounds raises an arguable error of fact.
8 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[18] A number of the grounds relate to the substance of the substantive appeal rather than the appeal regarding waiver of security. This applies particularly regarding ground (a).
[19] As to (b), there is no doubt that Ms Sax’s status as a lay litigant will and already has increased the workload and complexity of the proceeding. Her failure to file submissions that comply with the High Court Rules alone illustrates the additional complexity or difficulty brought by lay litigants, the cost of which naturally falls on the represented party. Since filing a notice of opposition, the respondent has withdrawn from taking further steps in the proceedings. She submits through her counsel that she considers the leave application to be “further harassment” and “an abuse of process”. I agree. The small amount of security ordered would already be exceeded by the respondent’s costs in respect of the appeal.
[20] As to (c), my judgment considered all relevant factors, those for and against waiver. In particular, it considered the personal and financial circumstances of both parties in assessing waiver of and increase of security. It also considered the merits and subject matter of Ms Sax’s appeal. The short point is that, as stated in the judgment, an order for security for costs is highly routine. Exceptional circumstances must be present for security to be waived. There are no exceptional circumstances here. There is no public interest in the proposed appeal. There is no arguable breach of Ms Sax’s rights under NZBORA. Rule 5.45 is not applicable to security for costs on an appeal. My decision (and similarly that of Judge Lawson) explicitly referenced Reekie and applied the appropriate statutory test. The appeal is not one that would be prosecuted by a solvent litigant.
[21] In terms of the matters set out in Ms Sax’s affidavit and the “tested facts” referred to, these matters again relate to the substance of her appeal, not waiver of security.
[22] The grounds advanced by Ms Sax do not identify any material errors either of law or fact rising to the high threshold of either s 56 or s 60.
Result
[23]The application for leave to appeal to the Court of Appeal is declined.
[24] Ms Sax has not paid the security ordered by my judgment of 4 July 2023. As set out in that judgment, Ms Sax’s appeal of Judge Ingram’s decision is therefore deemed to be abandoned pursuant to s 126(3) of the District Court Act 2016.
Hinton J
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