Sax v McMillan - [2023] NZHC 1702

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…

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 1702
Decision Date: 4 July 2023

CaseChat Overview and Summary

In Sax v McMillan, the appellant, Janine Sax, sought a restraining order against the respondent, Joanne McMillan, under the Harassment Act 1997. The case revolves around a long-standing dispute between the parties, who were previously involved in rabbit breeding and had a history of disagreements. The appellant's application for a restraining order was dismissed by Judge Ingram, who concluded that the respondent's actions, while contentious and unpleasant, did not constitute harassment under the Act. The appellant appealed the dismissal and applied to waive security for costs.

The legal issues in the case included whether the respondent's actions constituted harassment under the Act, and if so, whether the appellant's application for a restraining order was justified. Additionally, the court had to decide whether the appellant's application to waive security for costs was warranted.

The court held that the respondent's actions, while disagreeable and critical, did not amount to harassment under the Act as they were expressions of opinion and did not threaten the appellant. The court emphasised the importance of free speech and the need for participants in public discourse to be robust. The court also noted that the allegations were stale and had been known to the appellant for years. Furthermore, the court found that the orders sought by the appellant were misconceived and beyond the jurisdiction of the court under the Act.

Regarding the waiver of security for costs, the court declined the application, finding that there were no exceptional circumstances justifying waiver. The court noted that the appellant's appeal was not hopeless but also lacked merit, and there was no public policy interest in waiving security. The court ordered the appellant to pay security for costs in the sum of $4,000, increased from the standard amount due to the complexity of the case and the lack of merit in the appeal.

The court's final orders required the appellant to pay security for costs of $4,000 within 10 working days of the judgment. If the appellant failed to pay, the appeal would be deemed abandoned, and costs would be determined. Any further directions for the appeal would only be made after the payment of security for costs.

Orders