Sax v Simpson
[2015] NZCA 222
•9 June 2015 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA112/2015 [2015] NZCA 222 |
| BETWEEN | JANINE DAVINA SAX |
| AND | LUKE ANDREW SIMPSON |
| Court: | Stevens, French and Miller JJ |
Counsel: | Appellant in person |
Judgment: (On the papers) | 9 June 2015 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application to review the decision of Cooper J dated 19 March 2015 declining the application for interim suppression of the proceedings is dismissed.
BNo order as to costs.
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REASONS OF THE COURT
(Given by Miller J)
Ms Sax applies for review of a decision of Cooper J in which he declined her application for an interim order of suppression of proceedings in this Court, the High Court and the District Court.[1]
Background
[1]Sax v Simpson CA112/2015, 19 March 2015 (Minute of Cooper J).
Ms Sax has filed defamation proceedings against her former husband, Mr Simpson. Mr Simpson applied for an order in the District Court directing that Ms Sax pay security for costs, which was granted on 19 August 2014.[2] The sum was set at $10,000. Proceedings against Mr Simpson were stayed until such time as that security was paid. Ms Sax successfully appealed to the High Court, where Heath J ordered the sum to be reduced to $1,000.[3] Subsequently, Ms Sax filed a memorandum seeking suppression of the reasons for judgment or of specific information listed in the memorandum. Heath J issued a minute in which he gave the provisional view that no suppression order should be given, but decided that interim suppression should be ordered until Faire J could more fully consider the issue.[4] Having not been provided with any authority to indicate Heath J’s preliminary view was incorrect, Faire J discharged the interim order of suppression and dismissed the application for suppression.[5]
[2]Sax v Simpson CIV-2013-070-775, 19 August 2014 [District Court security for costs judgment].
[3]Sax v Simpson [2014] NZHC 3235 [High Court security for costs judgment].
[4]Sax v Simpson CIV-2014-470-157, 23 December 2014 (Minute (No 2) of Heath J).
[5]Sax v Simpson [2015] NZHC 442 [High Court suppression judgment].
Ms Sax’s substantive appeal in this Court is against that last decision. In addition to her notice of appeal, she filed a memorandum seeking interim suppression of the proceedings in the High Court, the District Court and this Court. On 19 March 2015, Cooper J issued a minute in which he declined to order interim suppression.[6]
[6]Minute of Cooper J, above n 1.
Initially, Ms Sax applied to appeal that decision in the Supreme Court, where she was informed that the proper mechanism to challenge the minute was by way of s 61A(2) of the Judicature Act 1908.[7] She now applies for leave to review the minute, seeking that the decision of Cooper J be set aside in whole or in part. No leave is required, so we have treated the application as one to vary or discharge the minute.
Extension of time
[7]Sax v Simpson [2015] NZSC 51 at [4].
It is unclear whether Ms Sax, who took 31 working days to file this application, is out of time to apply for the minute to be discharged or varied. Jurisdiction for a judge to sit alone in civil matters is found in s 61A of the Judicature Act and r 7 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules). These provisions allow a judge in chambers to make incidental orders and directions, except where they would be determinative of an application for leave to appeal or an appeal. Judges of this Court may discharge or vary such an order or direction under s 61A(2). The subsection makes no mention of the time in which an application for variation or discharge is to be filed. Ms Sax would have been out of time to apply for leave to appeal under r 14 of the Civil Rules or to make an application to review the decision of a Registrar under r 7, which have time limits of 20 and 10 working days respectively.
There is no equivalent time limit attached to s 61A(2). Nonetheless, under r 5(4) of the Civil Rules, the Court must dispose of a procedural matter for which no form is prescribed by the rules as closely as practicable in accordance with the provisions affecting similar matters. By reference to rr 7 and 14, it is arguable that Ms Sax’s application for discharge of Cooper J’s minute should be ruled out of time. However, we are satisfied that it is appropriate to grant leave to apply out of time. As a result, we do not need to determine the appropriate time limit to apply to s 61A(2) applications.
The suppression sought
Ms Sax seeks the following orders, to remain in place until the determination of the substantive appeal in this Court:
(a)suppression of the identifying features of the parties and references to Family Court matters within these proceedings (such as reference to protection orders and costs granted in the Family Court); or
(b)anonymisation of the parties’ names; or
(c)the judgments be subjected to restricted terms of reporting.
In her memorandum, Ms Sax contends that the reference to costs orders and protection orders in the judgments and decisions in the High Court and District Court amounted to the reporting of Family Court details that were subject to the statutory prohibitions on reporting at ss 11A–11D of the Family Courts Act 1980, s 38A of the Property (Relationships) Act 1990 and s 125 of the Domestic Violence Act 1995. She claims that these references reflect the substance of the proceedings in the Family Court. Both Heath and Faire JJ make passing references to Family Court litigation and the costs and protection orders; Judge Ingram refers to the costs orders in slightly more detail.[8] None of the material we have been provided with contains any discussion of the substance of the Family Court proceedings.
The relevant law
[8]District Court security for costs judgment, above n 2, at [4].
The difficulty Ms Sax faces is that these applications are in the context of defamation proceedings, not Family Court proceedings. The restrictions on publication that are applied to Family Court proceedings do not apply when a defamation action is brought, even where Family Court proceedings and domestic violence are the background against which the proceedings occur. We accordingly find that there is no relevant statutory prohibition on reporting under the Acts relied upon by Ms Sax.
The Defamation Act 1992 does not provide for suppression orders. That is unsurprising; the purpose of the defamation cause of action is to publicly air issues in dispute, allowing for the public vindication of a successful plaintiff who has already suffered the damage complained of.[9] This Court has inherent jurisdiction to make orders prohibiting the publication of names or identifying particulars of parties. At the level of principle, we accept that the jurisdiction might be exercised on an interim basis where vindication at trial may be a long time coming, but that would be exceptional; the plaintiff can always answer any further publication by pointing to the existence of the proceeding. Further, there is a presumption in favour of disclosure of such details which will be overcome only in the most exceptional circumstances.[10]
[9]Television New Zealand Ltd v Keith [1994] 2 NZLR 84 (CA) at 86.
[10]Clark v Attorney-General (No 1) [2005] NZAR 481 (CA) at [42].
There is no definition or list of circumstances that the Court will regard as exceptional, but we are not persuaded in the circumstances that this is such a case.
One of the allegedly defamatory publications necessitates disclosure of the fact that the protection order has been made. Ms Sax has stressed the impact that publication will have or has had on her life – she submits that, among other consequences, her salary and other forms of remuneration such as sponsorship agreements have been decreased, that a stress-related disorder has been worsened and that she has suffered emotional harm. We do not accept that these consequences are sufficiently out of the ordinary to justify suppression, or that they are remediable by the orders Ms Sax seeks; on her own evidence the damage has already been done. Ms Sax further submits that none of the relevant decisions or judgments have yet been published and that upholding Cooper J’s minute would allow what Ms Sax sees as substantive details of the Family Court proceedings to become publicly available. While we have no doubt as to the sincerity of Ms Sax’s submissions, it will be difficult, if not impossible, for the substantive defamation allegations and responses to be understood without such references to the litigation in the Family Court and High Court.
For the above reasons we see no proper basis for departing from the decision of Cooper J.
Result
The application for review is dismissed.
There is no order for costs as the respondent took no steps in opposing the application.
Solicitors:
Ronayne Hollister-Jones Lellman for Respondent
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