Sax v Simpson - [2015] NZCA 222

IN THE COURT OF APPEAL OF NEW ZEALAND

CA112/2015
[2015] NZCA 222

BETWEEN	JANINE DAVINA SAX Appellant
AND	LUKE ANDREW SIMPSON Respondent

Court:

Stevens, French and Miller JJ

Counsel:

Appellant in person
N S Elsmore for Respondent

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.

____________________________________________________________________

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…

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 222
Case: [2015] NZCA 222
Decision Date: 9 June 2015 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application from Janine Sax, the appellant, against Luke Simpson, the respondent, in the case of Sax v Simpson. Ms. Sax, who has filed defamation proceedings against her former husband, sought review of a decision made by Cooper J that declined her application for an interim suppression order of the proceedings in the High Court, the District Court, and the Court of Appeal. Ms. Sax aimed to suppress identifying features of the parties, references to Family Court matters, and the judgments to be subjected to restricted terms of reporting. The legal issues at hand revolved around whether the statutory prohibitions on reporting Family Court details applied in defamation proceedings and if there was a basis for the Court to exercise its inherent jurisdiction to make suppression orders on an interim basis.

The Court of Appeal found that the statutory prohibitions on reporting Family Court details did not apply to defamation proceedings, even when such proceedings have Family Court proceedings and domestic violence as their backdrop. Furthermore, the Court concluded that there was no relevant statutory prohibition on reporting under the Acts relied upon by Ms. Sax. The Court also held that the inherent jurisdiction to make suppression orders might be exercised on an interim basis where vindication at trial may be a long time coming, but such cases would be exceptional, and the presumption in favour of disclosure would only be overcome in the most exceptional circumstances. In this case, the Court did not find the circumstances to be exceptional enough to justify suppression.

As a result, the application for review was dismissed. There was no order for costs as the respondent took no steps in opposing the application.

Orders