Watkins v Highmark Homes Ltd
[2025] NZCA 173
•16 May 2025
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA685/2024 |
| BETWEEN | NICOLA WATKINS |
| AND | HIGHMARK HOMES LIMITED |
| CA855/2024 | ||
| BETWEEN | NICOLA WATKINS | |
| AND | HIGHMARK HOMES LIMITED | |
| Court: | French P and Whata J |
Counsel: | Applicant in CA685/2024, Appellant in CA855/2024 |
Judgment | 16 May 2025 at 11.00 am |
JUDGMENT OF THE COURT
AThe application in CA685/2024 for extensions of time in which to seek leave to appeal the decisions of the Employment Court is declined.
BThe appeal in CA855/2024 is struck out.
CWe make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Ms Watkins wants to appeal:
(a)an interlocutory order by the Employment Court for security as to costs in the sum of $10,000 (the EC security decision);[1]
(b)a costs order by the Employment Court of $10,396.50 in respect of the security for costs matter (the EC costs decision);[2] and
(c)an order of the High Court staying a defamation proceeding brought by her and two related entities.[3]
[1]Watkins v Highmark Homes Ltd [2024] NZEmpC 105 [EC security decision].
[2]Watkins v Highmark Homes Ltd [2024] NZEmpC 167 [EC costs decision].
[3]Watkins v Highmark Homes Ltd [2024] NZHC 3075 [HC stay decision].
The appeals from the Employment Court require leave pursuant to s 214 of the Employment Relations Act 2000. In addition, Ms Watkins filed her leave application against the security decision 97 days late, and 16 days late for the costs decision.[4] As a consequence of this, Ms Watkins must obtain extensions of time under r 16A of the Court of Appeal (Civil) Rules 2005 (the Rules) in which to seek leave. We consider this matter in this judgment.
[4]An application for leave to appeal from a decision of the Employment Court must, in the absence of an extension of time, be filed in this Court within 28 days of the Employment Court’s decision being issued: Employment Relations Act 2000, s 214(2).
We also examine whether the appeal against the stay decision should be struck out pursuant to r 44A(1)(c) of the Rules.
Background
Ms Watkins was dismissed from Highmark Homes Ltd (HHL) in November 2017. On 30 November 2022, the Employment Relations Authority (ERA) dismissed Ms Watkins’ personal grievance claim, and allowed HHL’s counterclaim. HHL was awarded damages of $3,500.25.[5] On 1 December 2022, the ERA also declined to reopen a previous determination where it was found Ms Watkins had not raised a personal grievance for unjustified dismissal in time.[6] On 4 August 2023, the ERA declined an application by Ms Watkins to reopen these two decisions.[7]
[5]Watkins v Highmark Homes Ltd [2022] NZERA 632 at [53]–[54].
[6]As recorded in Highmark Homes Ltd v Watkins [2025] NZHC 128 [bankruptcy decision] at [3], citing Watkins v Highmark Homes Ltd [2022] NZERA 638; and Watkins v Highmark Homes Ltd [2020] NZERA 467.
[7]Watkins v Highmark Homes Ltd [2023] NZERA 418.
HHL was then awarded costs of $2,000 in respect of the determination dated 4 August 2023, and $11,000 in respect of the determinations dated 30 November 2022, and 1 December 2022.[8]
[8]Watkins v Highmark Homes Ltd [2023] NZERA 506 at [12]; and Watkins v Highmark Homes Ltd [2023] NZERA 611 at [17].
Ms Watkins also filed a challenge in the Employment Court against the determination dated 4 August 2023.[9] HHL sought security for costs and the Employment Court ordered Ms Watkins to pay security for costs within six weeks, or else the proceeding would be stayed.[10] This is the EC security decision. Ms Watkins failed to pay security for costs and the appeal was stayed as a result. She discontinued her substantive claim on 21 August 2024.[11] HHL then sought and was awarded costs of $10,396.50.[12] This is the EC costs decision.
[9]She was granted an extension of time to file her challenge: Watkins v Highmark Homes Ltd [2023] NZEmpC 194 at [23].
[10]EC security decision, above n 1, at [60].
[11]EC costs decision, above n 2, at [1].
[12]At [9]–[10].
The EC security decision and EC costs decision form the basis for Ms Watkins’ proposed appeals in CA685/2024.
Ms Watkins also owed HHL $23,996 after she did not repay a loan advanced to her. Eventually (after hearings in the Disputes Tribunal and District Court), on 1 March 2023, in the High Court, Associate Judge Gardiner held that Ms Watkins should be adjudicated bankrupt, but gave her until 23 March 2023 to repay the loan.[13] Ms Watkins repaid the sum owed on 8 March 2023. HHL was then granted costs by the Judge.[14] The costs amount was $14,426.50.[15] Ms Watkins did not pay the costs order and was served with a second bankruptcy notice.[16] On 12 February 2025, Ms Watkins was adjudicated bankrupt.[17]
[13]Highmark Homes Ltd v Watkins [2023] NZHC 353.
[14]Highmark Homes Ltd v Watkins HC Auckland CIV-2021-404-2268, 4 September 2023 (Minute of Associate Judge Gardiner).
[15]EC security decision, above n 1, at [10].
[16]Ms Watkins unsuccessfully sought to set aside this second bankruptcy notice: Highmark Homes Ltd v Watkins [2024] NZHC 2227 at [16].
[17]Bankruptcy decision, above n 6, at [27].
Whilst HHL was seeking to bankrupt Ms Watkins, she had, in October 2024, filed proceedings against HHL and HHL’s directors, alleging defamation, as well as perjury.[18] On 21 October 2024, these proceedings were stayed under r 5.35B of the High Court Rules 2016 on the ground they were an abuse of process.[19] Ms Watkins, in CA855/2024, now seeks to appeal this decision.[20]
The application for extensions of time
[18]The defamation proceedings were brought by her, and two companies that are associated with her, namely Red Stag Gates and Fences Ltd and Auckland Steel Fabrications Ltd. The latter is subject to a non-publication order from the ERA: Watkins v Highmark Homes Ltd, above n 8, at [19].
[19]HC stay decision, above n 3, at [20]–[21].
[20]Red Stag Gates and Fences Ltd and Auckland Steel Fabrications Ltd are respondents in the appeal, as they are not represented, and cannot, therefore, participate: Kai Iwi Tavern Ltd v New Zealand Guardian Trust Company Ltd [2013] NZCA 199 at [6]–[8]. For the companies to be represented by Ms Watkins, they needed to seek leave, as well as to explain why they were unable to instruct a lawyer to represent them, and why Ms Watkins would be an appropriate representative. However, this makes no practical difference to how we deal with the appeal because Ms Watkins, in her personal capacity, remains an appellant, and is able to represent herself.
Dealing first with Ms Watkins’ proposed appeals from the Employment Court, in considering whether to extend time the following matters are important: the length and reasons for the delay; the conduct of the parties; prejudice to the respondent and others with legitimate interests; and the significance of the issues raised.[21] The merits of the appeal will not be determinative, unless the appeal is clearly hopeless.[22]
Ms Watkins’ argument
[21]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39]. Although these factors were devised in the context of an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005, they apply equally to applications under r 16A: Henderson v Green [2024] NZCA 615 at [20], n 40; Minister of Education v Cronin-Lampe [2024] NZCA 382 at [7], n 9; and Birchler v Homebuild Homes Ltd [2024] NZCA 414 at [31], n 31.
[22]Almond v Read, above n 21, at [39(c)].
Ms Watkins submits, in summary, that she was bullied, abused and constructively dismissed by the HHL directors. She refers to what she calls their blackmail, ultimatums and defamation. She explains they have caused her great financial harm and emotional distress and that she has endeavoured to obtain redress through the ERA and Employment Court, but that the ERA wrongly refused to hear (or rehear) her claims on jurisdictional grounds,[23] and that the latter then unfairly made an order for security for costs. She claims both the ERA and the Employment Court ignored evidence of abuse and defamation. She also says she has been defamed by virtue of the fact that the ERA failed to remove references to her, and her companies, from their online decisions. All of this, she says, has made it impossible for her to obtain employment. She also claims HHL’s directors have committed perjury.
[23]Ms Watkins refers to Harte v Midwifery Employee Representation and Advisory Service Inc [2025] NZEmpC 5 and FMV v TZB [2021] NZSC 102, [2021] 1 NZLR 466 as authority supporting the proposition of there being an expansive jurisdiction for the Employment Court to hear any employment related claims.
Ms Watkins submits that she should be granted an extension of time because she is self-represented, is running a business in Auckland, and is poor.
Assessment
We are not satisfied that an extension of time should be granted. The 97-day delay in filing the appeal against the security decision is substantial. While the 16-day delay on the costs decision was comparatively short, given the long history of the litigation between the parties, it is a more than minor delay. Furthermore, Ms Watkins discontinued the underlying proceeding, and it would be unfairly prejudicial to HHL for that matter to be reopened now. We also consider both appeals to be hopeless. Given the background, the order for security for costs, and a 2B cost order following discontinuance, were entirely orthodox and unimpeachable. Nothing identified by Ms Watkins supports a finding of error. Finally, Ms Watkins is now bankrupt.[24] She cannot provide security for costs or pay costs in the event her appeal does not succeed. All of these factors demand finality.
[24]HHL submits that Ms Watkins’ bankruptcy means that the approval of the Official Assignee would be required to commence the appeals. We prefer to leave the resolution of that issue to a case in which it is necessary.
We therefore decline to extend the time to apply for leave. For completeness, we would not have granted leave to appeal in any event. Leave to appeal may only be granted if the appeal raises an issue of law that is of general or public importance, or that the Court considers should be heard for some other reason.[25] No issues of these kinds are raised by Ms Watkins’ proposed appeals.
The stay appeal
[25]Employment Relations Act, s 214(3).
Ms Watkins claims that she has been defamed by the HHL directors. The High Court examined those claims. It found:[26]
[15] As far as the allegations of defamation relate to [HHL] and its directors, there is no allegation of what was said by whom and to whom and how any such statement might be defamatory of Ms Watkins, her family or her businesses.
[16] As far as the allegations of defamation relate to Court decisions or ERA determinations, the contents of those decisions and anything said in those proceedings are protected by absolute privilege, as s 14(1) of the Defamation Act [1992] makes clear.
[17] It is plain that Ms Watkins is using the proceeding to pursue claims she was not able to pursue in the proceedings relating to her employment dispute. It is also plain that Ms Watkins is using this proceeding to try to avoid being adjudicated bankrupt.
[18] In those respects, the proceeding is an abuse of the process of the Court.
[19] While the Court recognises that Ms Watkins is a litigant in person, that does not mean it should countenance the use of Court processes to pursue claims that have no evidential basis beyond generalised assertion and which are a patent attempt to avoid an adjudication of bankruptcy by a collateral means.
[20] If Ms Watkins wishes to pursue this proceeding, she will need to replead her statement of claim to identify the statements said to be defamatory, who made the statements and the circumstances in which the statements were made. Allegations of defamation based on court proceedings and judgments will not be accepted and will be struck out.
[21] Unless and until that is done, this proceeding is stayed until further order of the Court in accordance with r 5.35B.
[26]HC stay decision, above n 3.
By minute of 21 February 2025, Cooke J gave notice that the Court would consider whether to strike out the proposed appeal against this decision pursuant to r 44A of the Rules.
Rule 44A(1)(c) provides that an appeal will be struck out where it is frivolous, vexatious, or otherwise an abuse of process. This Court’s power under r 44A is similar to that of the High Court under the High Court Rules.[27] In that context, the words “otherwise an abuse of process” have been described as extending beyond the other grounds (for strike out) to capture all other instances of misuse of the Court’s processes, such as a proceeding that has been brought with an improper motive, or where it is an attempt to obtain a collateral advantage, beyond that which is legitimately gained from a court proceeding.[28]
The alleged defamation
[27]Jones v New Zealand Bloodstock Financing [2021] NZCA 213 at [17].
[28]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89]. See also Dai v Professional Conduct Committee of the New Zealand Institute of Chartered Accountants [2024] NZCA 573 at [4], n 3.
As best as we are able to discern, Ms Watkins alleges three key types of defamation. First, defamation caused by her unfair treatment and dismissal by HHL, together with subsequent actions by HHL to enforce the various judgments against her. Second, rumours spread by the HHL directors about her and her son. Finally, various findings that were made in determinations by the Disputes Tribunal, the ERA, the Employment Court, and the High Court. Ms Watkins submits the Disputes Tribunal referee “wrongly accused [her] of fraud”, and she further submits that allegations of fraud have been recycled through the High Court to discredit and defame her. She takes specific issue with the citation of two decisions of the ERA in various other decisions, and a failure by the ERA to remove those decisions from its website.
Assessment
We strike out Ms Watkins’ appeal. First, we agree with the High Court Judge that Ms Watkins has not identified an actionable defamation. As the High Court said, Ms Watkins offers “no allegation of what was said by whom and to whom and how any such statement might be defamatory”.[29] The claims of defamation by the ERA and the Employment Court are untenable.[30]
[29]HC stay decision, above n 3, at [15]. A statement of claim must properly describe the words that are relied on as constituting defamation, the meanings inferred from those words, and the events said to constitute publication, so that a defendant may know exactly what was said to have been published illegitimately, and so that an available defence may be marshalled: Low Volume Vehicle Technical Association Inc v Brett [2019] NZCA 67, [2019] 2 NZLR 808 at [61]–[62]. See also s 37 of the Defamation Act 1992 which prescribes specific requirements as to particulars about statements alleged to be defamatory, and the allegedly defamatory meaning of those statements.
[30]Jindal v Daruwalla [2024] NZCA 685 at [71]–[77].
Second, the stay order may be revisited if Ms Watkins properly repleads an actionable defamation. That is the most she could hope to achieve by this appeal. Third, we share the High Court’s concern that this proceeding is an abuse of process, both as a collateral attack on the decisions of the Employment Court and the bankruptcy proceedings.[31]
[31]Collier v Buttersworths of New Zealand (1997) 11 PRNZ 581 (HC) at 586; and Navaratnam v HG Metal Manufacturing Ltd [2022] NZCA 425 at [8].
Given the foregoing, Ms Watkins’ appeal against the High Court stay decision is struck out.
Outcome
The application in CA685/2024 for extensions of time in which to seek leave to appeal the decisions of the Employment Court is declined.
The appeal in CA855/2024 is struck out.
Costs were not sought. In those circumstances, we make no order as to costs.
Solicitors:
AJO Legal Solicitors, Auckland for Respondent in CA685/2024 and First, Second and Third Respondents in CA855/2024
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