Sax v Simpson - [2015] NZCA 362

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/2015
[2015] NZCA 362

BETWEEN	JANINE DAVINA SAX Applicant
AND	LUKE ANDREW SIMPSON Respondent

Court:

Randerson, White and Winkelmann JJ

Counsel:

Applicant in person

Judgment:

(On the papers)

10 August 2015 at 11:30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal is declined.
BNo order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Ms Sax seeks an extension of time to file the case on appeal under r 43 of the Court of Appeal (Civil) Rules 2005 (the Rules).

Background

Ms Sax’s appeal arises from defamation proceedings filed against her former husband, the respondent in relation to proceedings in the Family Court. An order was made in the District Court that she pay security for costs in the sum of $10,000, with proceedings stayed until the security was paid.[1] Ms Sax appealed that decision successfully to the High Court and Heath J reduced the security to $1,000.[2]
[1]Sax v Simpson DC Tauranga CIV-2013-070-775, 19 August 2014.
[2]Sax v Simpson [2014] NZHC 3235.
Ms Sax then filed a memorandum in the High Court seeking orders anonymising the security for costs judgment and seeking either suppression of the reasons for the judgment or various publication and access restrictions. Heath J issued a minute on 23 December 2014. He expressed the provisional view that no suppression order should be made in defamation proceedings of this sort, where the whole purpose of the proceeding was to publicly air the issues in dispute with the consequence of public vindication. Nevertheless he ordered interim suppression until another Judge could more fully consider the issue. Faire J agreed with Heath J’s reasons and discharged the interim order of name suppression and the application for permanent suppression.[3]
[3]Sax v Simpson [2015] NZHC 422.
It is the judgment of Faire J that Ms Sax intends to appeal to this Court. In filing her notice of appeal on 13 March 2015, Ms Sax also filed a memorandum seeking interim suppression of the proceedings in the District Court, the High Court and this Court. On 19 March 2015, Cooper J issued a minute declining the application.[4] Ms Sax then applied to review the minute, seeking that the decision of Cooper J be set aside in whole or in part. This Court dismissed that application in a judgment of 9 June 2015 on the basis that there are no publication restrictions that apply to defamation proceedings generally and that the presumption in favour of disclosure had not been overcome in the circumstances of the case.[5]
[4]Sax v Simpson CA112/2015, 19 March 2015.
[5]Sax v Simpson [2015] NZCA 222.
In the meantime, r 43 of the Rules came into effect. The appeal is to be treated as abandoned if the appellant had not applied for the allocation of a hearing date and filed the case on appeal within 3 months after the appeal…

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 Simpson

Details

AGLC: Sax v Simpson [2015] NZCA 362
Case: [2015] NZCA 362
Decision Date: 10 August 2015 at 11:30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently heard an application by Janine Sax against Luke Simpson. Ms Sax sought an extension of time to file her case on appeal, which stemmed from a defamation case she brought against her former husband in the Family Court. The District Court had ordered Ms Sax to pay security for costs, and after a successful appeal to the High Court, the security was reduced to $1,000. Ms Sax then sought name suppression orders for the security for costs judgment and other restrictions on publication, which were denied by the High Court. The Court of Appeal had previously dismissed Ms Sax's application for review of a minute declining her request for interim suppression of the proceedings. Rule 43 of the Court of Appeal (Civil) Rules 2005 required Ms Sax to file her case on appeal within three months of the appeal being brought, which deadline she missed. Despite receiving notice that her materials did not constitute a case on appeal, Ms Sax filed an extension application and what she described as a case on appeal, both of which fell short of the Rules' requirements.

The legal issues the court had to decide included whether Ms Sax's failure to comply with Rule 43 should be excused and whether the balance of justice favoured granting an extension. The Court of Appeal noted that if Ms Sax had filed her case on appeal on time, she would have had an appeal as of right. However, since she failed to comply with Rule 43, she needed leave from the court. The court generally grants leave only if the appeal seems meritorious. In this case, the court found that the appeal was unlikely to succeed, as three judges had already found no merit in Ms Sax's applications for suppression. The court also noted that the delay, although not significant, was still present, and Ms Sax had not filed her case on appeal in the proper form.

The Court of Appeal declined Ms Sax's application for an extension of time to file her case on appeal. The court found that the appeal was unlikely to succeed and that the balance of justice did not favour granting an extension. There was no order for costs, as the respondent had taken no steps in opposing the application.

Orders