Sax v Campbell [2021] NZCA 346 (28 July 2021)

Last Updated: 3 August 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA179/2021 CA180/2021 CA369/2021 [2021] NZCA 346

	BETWEEN	JANINE DAVINA SAX Applicant
	AND	MELODY ANNE CAMPBELL First Respondent TAURANGA DISTRICT COURT Second Respondent

Court:	French and Clifford JJ
Counsel:	Applicant in person D M O’Neill for First Respondent No appearance for Second Respondent
Judgment: (On the papers)	28 July 2021 at 9 am

JUDGMENT OF THE COURT

1. The application for leave to appeal the decision of the High Court ordering the applicant to pay security for costs (CA179/2021) is declined.
2. The application for leave to appeal the decision of the High Court refusing to grant suppression (CA180/2021) is declined.

100. The application for leave to appeal the decision of the High Court refusing to recall its decision on security for costs (CA369/2021) is declined.

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REASONS OF THE COURT

(Given by French J)

• [1] Ms Sax seeks leave to appeal three decisions of Moore J in the High Court. In the first decision, the Judge ordered Ms Sax to pay security for costs,^[1] in the second he declined her application for interim suppression of his decision,^[2] and in the third he declined her application to recall his decision.^[3]
• [2] Leave to appeal is required from this Court because all three decisions are interlocutory in nature and the High Court has declined to grant leave.^[4]
• [3] Ms Campbell the respondent submits that the application is out of time and has no merit. However, she does not wish to spend any more resources on actively opposing the applications and so abides the Court’s decision.

Background

• [4] The proceeding arises from an application filed by Ms Campbell in the District Court seeking a restraining order against Ms Sax under the Harassment Act 1997. Ms Sax contends the allegations of harassment are false. She applied for the proceeding to be struck out on the grounds Ms Campbell’s claim was not reasonably arguable and constituted an abuse of process being frivolous and vexatious.
• [5] The District Court did not accept those submissions and accordingly declined to strike out Ms Campbell’s application. The Court held that the allegation of harassment depended on disputed facts that could only be resolved at trial.
• [6] Dissatisfied with that outcome, Ms Sax then sought judicial review in the High Court against the refusal to grant her strike-out application. The grounds of review were that the District Court judgment contained errors of law, was irrational, biased and had involved an unfair process.
• [7] This prompted Ms Campbell to apply for security for costs in relation to the judicial review proceeding.
• [8] The application for security for costs was granted by Moore J.^[5] He ordered Ms Sax to pay $10,000 in security.^[6] In making that order, Moore J held that Ms Sax was unlikely to be able to pay costs if (as he considered was very likely) she lost, that the judicial review proceeding lacked merit because the District Court decision was based on orthodox strike-out principles and Ms Sax was delaying the hearing of the Harassment Act application.^[7] The Judge also made an order staying the judicial review proceeding until Ms Sax paid the amount of the security.^[8] It has never been paid.
• [9] Ms Sax then applied for interim suppression of Moore J’s decision on the grounds that publication would harm her business.^[9] Suppression was declined on the grounds that harm to Ms Sax’s business did not trump the principle of open justice and in any event, suppression would be pointless because the media had already reported on the decision.^[10]
• [10] Dissatisfied with these outcomes, Ms Sax then asked the Judge to recall his decision ordering her to pay security for costs, but he declined.^[11]
• [11] In support of the application for leave to appeal Moore J’s decisions, Ms Sax advances the following key arguments. In relation to the decision ordering her to pay security for costs, she argues that the decision has stifled her legitimate claim, that the process followed in the High Court was unfair, and that the High Court failed to take into account Ms Campbell’s abuses of process.
• [12] In relation to the decision declining to grant her suppression, Ms Sax submits the information is harmful, it was only reported in one media outlet and that the High Court did not provide a fair process.

Should leave be granted?

• [13] The first point we make is that contrary to Ms Campbell’s submission, the first two applications for leave were made in time. The time requirement imposed by s 56(5) of the Senior Courts Act 2016 is that the application for leave must be filed in this Court within 20 working days after the date of the refusal of leave by the High Court. The calculation of the 20 working days does not include the day of the High Court leave decision nor the day of filing. In this case, the High Court decision was issued on 5 March 2021 and the application for leave to appeal in this Court was filed on 6 April 2021. In contrast, the third application was made two working days out of time, but the Registrar granted an extension of time under r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005.
• [14] Turning then to the merits of the applications for leave to appeal. As has been said on previous occasions, the leave requirement is a filtering mechanism designed to prevent the unnecessary delay and expense caused by unmeritorious or insignificant appeals.^[12]
• [15] The threshold is a high one and we have come to the clear conclusion that the applications for leave in this case all fall well short of meeting it. In particular, we are satisfied that Ms Sax has not demonstrated any arguable error of law or fact on the part of the High Court in any of the decisions, let alone an error that is of sufficient importance to outweigh the further delay that would be caused by an appeal. We note too that a significant portion of Ms Sax’s submissions were directed to the underlying dispute between her and Ms Campbell which is not relevant for the purposes of these applications. It is very clear that the interests of justice would not be served by granting the applications and they are accordingly declined.
• [16] The respondent abiding the decision of the Court, we make no award of costs.

Outcome

• [17] The application for leave to appeal the decision of the High Court ordering the applicant to pay security for costs (CA179/2021) is declined.
• [18] The application for leave to appeal the decision of the High Court refusing to grant suppression (CA180/2021) is declined.
• [19] The application for leave to appeal the decision of the High Court refusing to recall its decision on security for costs (CA369/2021) is declined.

Solicitors:
Clark & Brown Lawyers, Hamilton for First Respondent

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^[1] Sax v Campbell [2020] NZHC 1297.

^[2] Sax v Campbell HC Tauranga CIV-2020-470-24, 23 November 2020.

^[3] Sax v Campbell [2021] NZHC 357.

^[4] Senior Courts Act 2016, ss 56(3) and (5); Sax v Campbell, above n 3; and Sax v Campbell [2021] NZHC 1114.

^[5] Sax v Campbell, above n 1.

^[6] At [31].

^[7] At [17]–[28].

^[8] At [32]–[33].

^[9] Sax v Campbell, above n 2.

^[10] At [5]–[6].

^[11] Sax v Campbell, above n 3.

^[12] Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].