Sax v McMillan [2024] NZCA 620 (27 November 2024)

Last Updated: 2 December 2024

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

CA675/2023 [2024] NZCA 620

	BETWEEN	JANINE SAX Applicant
	AND	JOANNE HEATHER McMILLAN Respondent

Court:	Courtney and Mallon JJ
Counsel:	Applicant in person J W McDougall and M A Chester for Respondent
Judgment: (On the papers)	27 November 2024 at 1 pm

JUDGMENT OF THE COURT

1. The application for leave to appeal is declined.
2. The applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Mallon J)

Introduction

• [1] The applicant applied for a restraining order against the respondent in the District Court. The application was dismissed on the basis that it was frivolous and vexatious and because, taking the applicant’s evidence at its highest, the grounds for an order were not made out.^[1]
• [2] The applicant wished to appeal to the High Court.^[2] She sought a waiver of security for costs for that proposed appeal in the District Court.^[3] Judge Lawson in the District Court declined to grant that waiver.^[4] The applicant then sought a waiver of security for costs from the High Court. Hinton J in the High Court declined to grant the waiver.^[5]
• [3] The applicant now seeks leave to appeal Hinton J’s decision.^[6] The application is opposed.

Jurisdiction

• [4] In the High Court, the waiver of security for costs was treated both as an appeal from Judge Lawson’s decision and a fresh application for waiver of security for costs in that Court.^[7]
• [5] In effect, therefore, the application for leave to appeal to this Court could be treated as either an application for leave to bring a second appeal on an interlocutory application (in so far as it seeks leave to appeal Judge’s Lawson’s decision) or leave to appeal an interlocutory decision (in so far as it seeks to appeal Hinton’s J decision on a fresh application in that Court).^[8]
• [6] Leave to appeal a decision on an interlocutory application may be granted if there is an arguable error of law or fact of general or public importance, or otherwise of sufficient importance to the applicant to outweigh the lack of precedential value, in circumstances that warrant further delay.^[9] The overarching test is the interests of justice.^[10] We will consider the leave application under this test because, if it does not meet this test, it will also not meet the test for leave to bring a second appeal.^[11]

Assessment

• [7] We have reviewed the reasons of the District Court and High Court Judges in declining to waive security for costs for the appellant’s High Court appeal. In short, they each emphasised that that the starting point was that all appellants, other than those who are legally aided, are required to give security and there were no circumstances that warranted a departure from this starting point.^[12] In reaching these decisions, the Judges applied the well-settled test for granting a waiver of security.^[13]
• [8] If granted leave to appeal the refusal to waive security, the applicant seeks to raise issues mainly relating to the procedure adopted by Hinton J leading to a hearing of the waiver application, and as to the merits (as she sees it) of her proposed appeal from the District Court dismissal of her restraining order application.
• [9] In so far as the applicant challenges the procedure, there is nothing to suggest from the reasons of Hinton J, or any other evidence, that the applicant did not have a fair hearing. The Judge noted that the applicant had “helpfully summarised her written submissions” and had “four key points”.^[14] These four points were that the applicant was suffering financial hardship, her appeal was not hopeless, her appeal was necessary to protect her health and her business, and the respondent had used the proceeding as a method of harassment and her behaviour has brought about the applicant’s financial issues.^[15]
• [10] In so far as the applicant seeks to raise errors in the District Court’s dismissal of her proceeding, that is relevant for the purposes of the application to this Court only if such alleged errors demonstrate that a solvent litigant would reasonably wish to prosecute this appeal or in seeking to demonstrate that it involves a matter of public importance.^[16] The District Court Judge had dismissed the restraining order saying that “even accepting that significant distress has been caused, I am nevertheless completely satisfied that an order is not, and could never be justified, taking the evidence at is highest for the applicant”.^[17] As Hinton J said, the applicant’s wish to pursue an appeal is likely to be “destructive for all involved”.^[18]
• [11] We are satisfied that the proposed appeal from the refusal to waive security raises no arguable question of fact or law. We consider the respondent is entitled to the measure of protection that security for costs provide if the applicant intends to pursue an appeal of the District Court decision dismissing her restraining order application. We are also satisfied that the respondent should not be put to further delay in the resolution of this matter if leave is granted to appeal the interlocutory decisions of Judge Lawson and Hinton J. It is therefore not in the interests of justice to grant the applicant leave to appeal.

Result

• [12] The application for leave to appeal is declined.
• [13] The applicant must pay the respondent costs for a standard application on a band A basis together with usual disbursements.

Solicitors:
Holland Beckett, Tauranga for Respondent

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^[1] Sax v McMillan [2022] NZDC 4128 [District Court dismissal decision].

^[2] The applicant was granted an extension of time to appeal to the High Court: see Sax v McMillan [2023] NZHC 1702 [High Court extension decision].

^[3] Section 34(3) of the Harassment Act 1997 provides that the District Court may waive security on appeal in the High Court.

^[4] Sax v McMillan DC Tauranga CIV-2021-070-000668, 16 June 2023 [District Court security for costs decision].

^[5] Sax v McMillan [2023] NZHC 1702 [High Court security for costs decision].

^[6] The applicant was first declined leave to appeal to this Court by the High Court: see Sax v McMillan [2023] NZHC 2866 [High Court leave decision].

^[7] At [5]. See r 20.13 of the High Court Rules 2016.

^[8] Senior Courts Act 2016, ss 56 and 60.

^[9] Greendrake v The District Court of New Zealand [2020] NZCA 122 at [6].

^[10] At [6].

^[11] A question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the costs and delay of a further appeal is required: Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 at [33], quoting Cooper v Symes (2001) 15 PRNZ 166 (HC) at [12].

^[12] District Court security for costs decision, above n 4, at [5] and [11]; and High Court security for costs decision, above n 5, at [10]–[15].

^[13] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[14] High Court security for costs decision, above n 5, at [6].

^[15] At [6].

^[16] Reekie v Attorney-General, above n 13, at [35].

^[17] District Court dismissal decision, above n 1, at [138].

^[18] High Court security for costs decision, above n 5, at [13].