SAX v McMILLAN [2023] NZHC 2866

SAX v McMILLAN [2023] NZHC 2866 [13 October 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2022-470-000031[2023] NZHC 2866BETWEEN JANINE DAVINA SAXApplicantAND JOANNE HEATHER McMILLANRespondentHearing: On the papersCounsel: Applicant in personM Chester for RespondentJudgment: 13 October 2023JUDGMENT OF HINTON J[Re: Application for leave to appeal]This judgment was delivered by me 13 October 2023 at 3,00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Holland Beckett Law, TaurangaIntroduction[1] On 4 July 2023, I gave judgment declining to waive security for costs andordered Ms Janine Sax to pay $4,000 to the Registrar of the High Court.1 Ms Saxseeks leave to appeal to the Court of Appeal. The respondent opposes the application.[2] On request by the respondent, and in the absence of any contrary indication onthe part of Ms Sax, the application proceeds on the papers in the standard way and onthe basis of the material before the Court.Background[3] Ms Sax applied for a restraining order against the respondent under theHarassment Act 1997. The respondent in turn applied to dismiss the proceeding as anabuse of procedure under s 32(1) of that Act. On 28 March 2022, Judge TR Ingramgranted the application to dismiss.2 Harvey J granted Ms Sax leave to appeal thedecision of Judge Ingram out of time.3[4] On 16 June 2023, Judge W Lawson heard an ex-parte application by Ms Saxfor an order to dispose of security for costs on the appeal.4 That application wasdeclined and Ms Sax appealed.[5] Ms Sax made a subsequent application to this Court for an order waivingsecurity for costs on appeal. At the hearing of that application which took place beforeme on 29 June 2023, both parties sensibly agreed that my judgment should be treatedas addressing both Ms Sax's appeal of Judge Lawson's decision and her applicationfor waiver of security for costs filed in this Court.5[6] On 4 July 2023, I declined waiver and Ms Sax was ordered to pay security forcosts in the amount of $4,000. Ms Sax seeks leave to appeal my decision to the Courtof Appeal.1 Sax v McMillan [2023] NZHC 1702.2 Sax v McMillan [2022] NZDC 4128.3 Sax v McMillan [2022] NZHC 3099.4 Sax v McMillan DC Tauranga CIV-2021-070-668, 16 June 2023.5 Sax v McMillan, above n 1, at [5].[7] In support of her application for leave, Ms Sax has provided two affidavits.The first, sworn by her on 19 July 2023, breaches r 9.76(2)(a)(i) of the High CourtRules 2016 in that it "unnecessarily sets forth any argumentative matter". However,as Ms Sax did not file written submissions, I have read and considered her affidavit tothe extent that it applies to the current application. The second affidavit, sworn byMs Elizabeth Martin and dated 19 July 2023, provides no evidence relevant to theapplication before the Court. It is thus excluded under r 9.76(1)(d)(i).Legal principles[8] Ms Sax seeks leave to appeal a judgment that determined both an interlocutoryapplication to this Court and an appeal from the District Court. The applicationtherefore engages ss 56 and 60 of the Senior Courts Act 2016 (the Act) relating toappeals, and second appeals, from a decision of this Court.[9] Section 56 of the Act relevantly provides that:56 Jurisdiction(1) The Court of Appeal may hear and determine appeals—(a) from a judgment, decree, or order of the High Court:(3) No appeal, except an appeal under subsection (4), lies from any orderor decision of the High Court made on an interlocutory application inrespect of any civil proceeding unless leave to appeal to the Court ofAppeal is given by the High Court on application made within 20working days after the date of that order or decision or within anyfurther time that the High Court may allow.[10] An application for leave to appeal is subject to the following considerations:6(a) a high threshold exists;(b) the applicant must identify an arguable error of law or fact;6 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].(c) the alleged error should be of general or public importance warrantingdetermination or otherwise of sufficient importance to the applicant tooutweigh the lack of general or precedential value;(d) the circumstances must warrant incurring further delay; and(e) the ultimate question is whether the interests of justice are served bygranting leave.[11] Section 60 of the Act provides:60 Appeals against decisions of High Court on appeal from DistrictCourt, Family Court, or Youth Court(1) The decision of the High Court on appeal from the District Court,the Family Court, or the Youth Court is final unless a party, onapplication, obtains leave to appeal against the decision to theCourt of Appeal.[12] Similar considerations arise under s 60 as under s 56. Section 60 substantivelyre-enacts s 67 of the Judicature Act 1908. In Downer Construction (New Zealand) Ltdv Silverfield Developments Ltd, the Court of Appeal stated that:7[33] Under either test [s 67 or s 144] the primary focus is on whetherthe question of law is worthy of consideration. We cannot do better thanRanderson J's summary of the position in Cooper at para [12]:(a) The appeal must raise some question of law capable ofbona fide and serious argument in a case involving someinterest, public or private, of sufficient importance tooutweigh the cost and delay of the further appeal.(b) Upon a second appeal, the Court of Appeal is not engaged inthe general correction of error. Its primary function is then toclarify the law and to determine whether it has been properlyconstrued and applied by the Court below.(c) Not every alleged error of law is of such importance eithergenerally or to the parties as to justify further pursuit oflitigation that has been twice considered and ruled upon by aCourt.7 Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355,[2008] 2 NZLR 591 citing Cooper v Symes (2001) 15 PRNZ 166 (HC).Applicant's submissions on appeal[13] As I understand her application for leave, Ms Sax relies on the followingalleged errors in the 4 July 2023 judgment:(a) Her claim was misrepresented. The appeal was not hopeless andinadequate weight was given to the merits of her claim under theHarassment Act, which included alleged property damage, verbal andonline harassment, and attempts to harm her business reputation.(b) An incorrect finding that Ms Sax's status as a lay litigant was likely toincrease the complexity and workload of the appeal.(c) Failure to adequately consider factors weighing against security,particularly that there is public interest in the appeal as regards "theneed to preserve the integrity of court processes", that the appealengages Ms Sax's rights under ss 14 and 27 of the New Zealand Bill ofRights Act 1990 (NZBORA), r 5.45 of the High Court Rules, and thedecision in Reekie v Attorney-General.8Discussion[14] There is no merit in the application for leave to appeal and it is declined. Theinterests of justice clearly do not support leave in this case.[15] My reasons for refusing leave are essentially the same as the reasons set out inmy 4 July 2023 judgment. Ms Sax raises no new points in substance.[16] None of the grounds of appeal constitutes an error of law.[17] None of the grounds raises an arguable error of fact.8 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.[18] A number of the grounds relate to the substance of the substantive appeal ratherthan the appeal regarding waiver of security. This applies particularly regardingground (a).[19] As to (b), there is no doubt that Ms Sax's status as a lay litigant will and alreadyhas increased the workload and complexity of the proceeding. Her failure to filesubmissions that comply with the High Court Rules alone illustrates the additionalcomplexity or difficulty brought by lay litigants, the cost of which naturally falls onthe represented party. Since filing a notice of opposition, the respondent haswithdrawn from taking further steps in the proceedings. She submits through hercounsel that she considers the leave application to be "further harassment" and "anabuse of process". I agree. The small amount of security ordered would already beexceeded by the respondent's costs in respect of the appeal.[20] As to (c), my judgment considered all relevant factors, those for and againstwaiver. In particular, it considered the personal and financial circumstances of bothparties in assessing waiver of and increase of security. It also considered the meritsand subject matter of Ms Sax's appeal. The short point is that, as stated in thejudgment, an order for security for costs is highly routine. Exceptional circumstancesmust be present for security to be waived. There are no exceptional circumstanceshere. There is no public interest in the proposed appeal. There is no arguable breachof Ms Sax's rights under NZBORA. Rule 5.45 is not applicable to security for costson an appeal. My decision (and similarly that of Judge Lawson) explicitly referencedReekie and applied the appropriate statutory test. The appeal is not one that would beprosecuted by a solvent litigant.[21] In terms of the matters set out in Ms Sax's affidavit and the "tested facts"referred to, these matters again relate to the substance of her appeal, not waiver ofsecurity.[22] The grounds advanced by Ms Sax do not identify any material errors either oflaw or fact rising to the high threshold of either s 56 or s 60.Result[23] The application for leave to appeal to the Court of Appeal is declined.[24] Ms Sax has not paid the security ordered by my judgment of 4 July 2023. Asset out in that judgment, Ms Sax's appeal of Judge Ingram's decision is thereforedeemed to be abandoned pursuant to s 126(3) of the District Court Act 2016._________________________Hinton J