Sax v McMillan
[2023] NZHC 1702
•4 July 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 1702
BETWEEN JANINE DAVINA SAX
Appellant
AND
JOANNE HEATHER McMILLAN
Respondent
Hearing: 29 June 2023 Appearances:
Appellant in person
M Chester for Respondent
Judgment:
4 July 2023
JUDGMENT OF HINTON J
This judgment was delivered by me on 4 July 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 1702 [4 July 2023]
[1] The appellant applied for a restraining order against the respondent under the Harassment Act 1997 (the Act). The respondent in turn applied to dismiss the proceeding as an abuse of procedure under s 32(1) of the Act. On 28 March 2022, Judge Ingram granted the application to dismiss and the appellant has appealed that decision.
[2] It is standard on an appeal that the appellant pay security for costs. The subject of this judgment is the appellant’s application to waive security for costs.
[3]In dismissing the harassment application, Judge Ingram said:1
[42] The genesis of the present application lies a number of years in the past. Both the applicant and respondent were involved in rabbit breeding, and the respondent was at one stage an office holder in The Rabbit Council of New Zealand. For reasons which are not material, the parties fell into disagreement, which lead to the respondent resigning her office. The respondent is no longer involved in rabbit breeding, but the applicant remains active.
[43] The rancour between the parties led to an exchange of electronic communications of an unsavoury nature over the years 2017 to 2019. The respondent became involved in a Facebook community under the title of “Bunnyton Buyer Beware”. The respondent is not alleged to be the current administrator of the page. The title page of the current version is set out below.
…
[45] In 2019 an agreement was reached that the respondent and others would “take down” communications posted on the “Bunnyton Buyer Beware” site, under the provisions of the Harmful Digital Communications Act 2015. The site itself was taken down. Some of that material has subsequently re- appeared on another site named “Bunnyton Buyer Beware”, which is relevant to this application. There is no evidence that the respondent has ever had any status as administrator of the second “Bunnyton Buyer Beware” site.
…
[134] Having regard to the background of this dispute, the respondent’s actions in taking down the “Bunnyton Buyers Beware’ site, resigning her Presidency and apologising, the absence of any direct contact between the parties, the obvious nature of the material as expressions of opinion, the absence of any direct allegation of criminal conduct, and particularly the absence of any direct or implied threat to the applicant in any of the material complained of, I have come to the conclusion that the respondent’s proven behaviour would not cause, or threaten to cause, distress to a reasonable person in the applicant's particular circumstances. In my view, a reasonable person would have disengaged from this dispute long ago, and thereafter
1 Sax v McMillan [2022] NZDC 4128 at [149].
declined to view any material which might be drawn to their attention, putting the dispute behind them.
…
[136] The world we live in requires those who participate in the exchange of ideas to be robust. As Potter J observed over two decades ago in Allen v Beadle, the law “expects the ordinary person to bear adverse comment with fortitude and “customary phlegm." Hammond J made like observations in A v P where he said “the Act is not a vehicle for infantile endeavours, or mindless tit for tat in the course of human affairs”.
[137] In balancing the competing interests of the applicant and respondent, I consider that the constitutionally protected right to free speech completely overwhelms the applicant’s claim, which is in essence that the respondent should never make any communication with anyone that is in anyway critical of the applicant. The law cannot accommodate such an extreme view.
[138] This case is a classic example of the elevation of personal antipathy into a dispute which lies well beyond the influence of reason. But the conduct complained of is stale, non-threatening, and confined within the general boundaries of expression of personal opinion. The allegations are now elderly, and have been known to the applicant for several years. Whether these posts and communications are taken individually or collectively, whilst they may be unpleasant, they simply do not justify the intervention of the Harassment Act 1997, with the necessary implication that the enforcement procedures contained in the Harassment Act might be appropriately used, on the available evidence. On this aspect of matters, even accepting that significant distress has been caused, I am nevertheless completely satisfied that an order is not, and could never be justified, taking the evidence at its highest for the applicant.
…
[141] There is simply no evidentiary basis for a claim that there will be further harassment in the future. The conclusion that it is more likely than not, that without a restraining order being made against her, the respondent will in future commit further acts of harassment, is completely unjustified. Put in the statutory language, the current existence of a continued pattern of behaviour that is directed against the applicant is not discernible on the evidence advanced.
[142] I am not satisfied that a restraining order is necessary to prevent future breaches of the Harassment Act. I have reached the conclusion that the supporting material relied upon by the applicant, taken at its highest, could never justify the making of an order under the Act. It follows that the application cannot succeed.
…
[146] These orders are impossibly broad, and in most respects well outside any jurisdiction this Court might possess. Orders to remove all harmful digital communications would best be made under the Harmful Digital Communications Act, not the Harassment Act. This would require precise specification of each and every post and its location on the internet, and clear
evidence that the respondent made the post and not someone else. The respondent obviously cannot be ordered to take down something she has not posted. The harmful nature of the post would need to be established on precise evidence.
[147] An order that the respondent remove herself from all private groups conspiring to cause the applicant harm is not amenable to the jurisdiction under the Harassment Act without precise specification of the group or groups identity, their membership, and purposes or objectives. The respondent’s constitutionally protected freedom of association cannot lightly be obviated. There was no skerrick of evidence supporting this aspect of the application. In any event, would an animal rights group, perhaps even including the RSPCA, be included in such an order if the respondent is a member? Obviously not, because while reporting of perceived animal abuse might cause harm to the applicant, its purpose would be lawful.
[148] The Harassment Act contains no powers for the Court to order a respondent to undergo anger management courses.
[149] I consider these proceedings to be misconceived, because I consider that the evidence advanced in respect of the allegations made could not conceivably justify the orders sought, nor any orders restricting the respondent’s constitutionally guaranteed rights of free speech and freedom of association. Given that the content of the posts and messages are non- threatening, and consist of no more than expressions of personal opinion, this application is hopelessly deficient.
…
[151] The respondent has invited the Court to dismiss these proceedings as being frivolous or vexatious, or an abuse of the process of the Court. As to what constitutes frivolous and vexatious proceedings, that will vary from case to case. In this particular case, for the reasons set out above, taking the evidence at its highest for the applicant, I am satisfied that the Court could never determine that any of the orders sought by the applicant, or any restraining order, could properly be made against this respondent on the evidence before the Court. That conclusion renders further consideration of the proceedings moot, and indubitably a waste of valuable Court resources.
…
Waiver application
[4] The appellant has already made a similar application for waiver of security for costs in the District Court which she is able to do under the Act. It was declined by Judge Lawson on 16 June 2023.2 Judge Lawson declined the application on the basis that the appellant failed to demonstrate that special circumstances applied such that it would be in the interests of justice to allow for waiver. No evidence as to
2 Sax v McMillan DC Tauranga CIV-2021-070-000668, 16 June 2023.
impecuniosity was submitted, nor did the Judge consider that there was wider public interest sufficient to defeat the purpose of security for costs (to provide security for successful respondents who assume increased risk in defending proceedings against them).3
[5] Both parties sensibly agreed that this judgment should be treated as both an appeal from the decision of Judge Lawson and a decision on the application for waiver made to this Court. To this end, the appellant subsequently provided a copy of her application for waiver filed in the District Court on 2 June 2023, which I have carefully considered alongside her written and oral submissions in this Court.
[6] The appellant helpfully summarised her written submissions as to waiver at the hearing on 29 June 2023. She stated that she had four key points which I in turn summarise, though I have considered them in full:
(a)she is suffering financial hardship and paying security for costs will stifle her appeal;
(b)her appeal is not hopeless;
(c)her appeal is necessary to protect her health and her business; and
(d)the respondent has used the proceeding as a method of harassment and it is the respondent’s behaviour that has brought about the appellant’s financial issues.
[7] Shortly before the hearing, the appellant filed affidavit evidence as to her financial circumstances. I am satisfied she is not in a position to pay costs or at least I am prepared to proceed on that basis.
[8] The appellant says to date she has not found a legal aid lawyer to take on her case but she may still do so.
3 Sax v McMillan, above n 2 at [5] and [7].
[9] Throughout her submissions on this application the appellant stressed the impact of the history of this matter and of the present proceedings on her mental and physical health. I accept her evidence and submissions in that regard also.
Analysis
[10] Rule 20.13(2) of the High Court Rules 2016 requires the Court to fix security for costs on an appeal unless the Judge considers it is in the interests of justice that no security be required. In this case the hearing is to be set down for one day. The standard amount under the formula in r 20.13(3) is $2,390 for two half-days.
[11]It is highly routine for security to be ordered.
[12] The key reasons for waiving security are where the appellant is impecunious or where public policy concerns arise.4 Exceptional circumstances are required to justify a waiver.5
[13] Being impecunious will only justify waiver where the appeal is one that a solvent appellant would reasonably wish to prosecute.6 This is not such an appeal. I have read the very careful and lengthy judgment of Judge Ingram and can see no legitimate criticism of it. Not only does his conclusion seem well-founded, but the continuation of this proceeding can only be destructive for all involved, including the appellant. While the appellant has filed a four-page amended notice of appeal, she says she has not read the judgment because to do so will have a severe impact on her mental health.
[14]There is no public policy interest in this case. It is intensely personal.
[15] The appellant’s points otherwise go to the substance of the proceeding or to wider issues, not to waiver of security. I am satisfied there is no basis for waiver. I consider it important in a case like this that security be paid.
4 Chatha v Wanganui Gas Ltd (2004) 17 PRNZ 736.
5 At [6].
6 Reekie v Attorney-General [2014] 1 NZLR 737, [2014] NZSC 63 at [35].
[16] I therefore decline to waive security for costs.
[17] The respondent seeks that the security be increased beyond the standard sum of $2,390.
[18] The respondent points out that the amended notice of appeal extends to four pages; notes that this is not a simple appeal; and says that the appellant’s status as a lay litigant is prolonging matters and adding to their complexity. Even the question of security for costs has occupied significant time. In addition, the respondent says it almost naturally follows with a lay litigant that the respondent will carry a greater share of costs relating to preparation of the case on appeal and so forth. The respondent seeks three times the standard security.
[19] I consider that the standard sum should be increased for the reasons stated. I am mindful also of the nature of the judgment appealed against and my view of the lack of merit in the appeal. But while I agree there is a strong argument for a greater increase, I am not prepared to increase security three-fold. I fix security for costs in the sum of $4,000.
[20] I agree that security must be paid into Court prior to any steps being taken by the respondent in preparation for the substantive appeal.
[21]I therefore make directions as follows:
(a)The appellant must pay security for costs in the sum of $4,000 to the Registrar of the High Court not later than 10 working days after the issue of this judgment.
(b)If security is not paid by the appellant on or before the deadline for payment, the appeal is deemed to be abandoned pursuant to s 126 of the District Court Act 2016, costs to be determined.
(c)Any directions in respect of hearing of the appeal, filing submissions and otherwise are to be made only following payment of security for costs.
Hinton J
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