SAX v McMILLAN [2023] NZHC 1702

SAX v McMILLAN [2023] NZHC 1702 [4 July 2023]IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECIV-2022-470-000031[2023] NZHC 1702BETWEEN JANINE DAVINA SAXAppellantAND JOANNE HEATHER McMILLANRespondentHearing: 29 June 2023Appearances: Appellant in personM Chester for RespondentJudgment: 4 July 2023JUDGMENT OF HINTON JThis judgment was delivered by me on 4 July 2023 at 3.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Holland Beckett Law, Tauranga[1] The appellant applied for a restraining order against the respondent under theHarassment Act 1997 (the Act). The respondent in turn applied to dismiss theproceeding as an abuse of procedure under s 32(1) of the Act. On 28 March 2022,Judge Ingram granted the application to dismiss and the appellant has appealed thatdecision.[2] It is standard on an appeal that the appellant pay security for costs. The subjectof this judgment is the appellant's application to waive security for costs.[3] In dismissing the harassment application, Judge Ingram said:1[42] The genesis of the present application lies a number of years in thepast. Both the applicant and respondent were involved in rabbit breeding, andthe respondent was at one stage an office holder in The Rabbit Council of NewZealand. For reasons which are not material, the parties fell intodisagreement, which lead to the respondent resigning her office. Therespondent is no longer involved in rabbit breeding, but the applicant remainsactive.[43] The rancour between the parties led to an exchange of electroniccommunications of an unsavoury nature over the years 2017 to 2019. Therespondent became involved in a Facebook community under the title of"Bunnyton Buyer Beware". The respondent is not alleged to be the currentadministrator of the page. The title page of the current version is set out below.[45] In 2019 an agreement was reached that the respondent and otherswould "take down" communications posted on the "Bunnyton Buyer Beware"site, under the provisions of the Harmful Digital Communications Act 2015.The site itself was taken down. Some of that material has subsequently re-appeared on another site named "Bunnyton Buyer Beware", which is relevantto this application. There is no evidence that the respondent has ever had anystatus as administrator of the second "Bunnyton Buyer Beware" site.[134] Having regard to the background of this dispute, the respondent'sactions in taking down the "Bunnyton Buyers Beware' site, resigning herPresidency and apologising, the absence of any direct contact between theparties, the obvious nature of the material as expressions of opinion, theabsence of any direct allegation of criminal conduct, and particularly theabsence of any direct or implied threat to the applicant in any of the materialcomplained of, I have come to the conclusion that the respondent's provenbehaviour would not cause, or threaten to cause, distress to a reasonableperson in the applicant's particular circumstances. In my view, a reasonableperson would have disengaged from this dispute long ago, and thereafter1 Sax v McMillan [2022] NZDC 4128 at [149].declined to view any material which might be drawn to their attention, puttingthe dispute behind them.[136] The world we live in requires those who participate in the exchangeof ideas to be robust. As Potter J observed over two decades ago in Allen vBeadle, the law "expects the ordinary person to bear adverse comment withfortitude and "customary phlegm." Hammond J made like observations in Av P where he said "the Act is not a vehicle for infantile endeavours, or mindlesstit for tat in the course of human affairs".[137] In balancing the competing interests of the applicant and respondent,I consider that the constitutionally protected right to free speech completelyoverwhelms the applicant's claim, which is in essence that the respondentshould never make any communication with anyone that is in anyway criticalof the applicant. The law cannot accommodate such an extreme view.[138] This case is a classic example of the elevation of personal antipathyinto a dispute which lies well beyond the influence of reason. But the conductcomplained of is stale, non-threatening, and confined within the generalboundaries of expression of personal opinion. The allegations are now elderly,and have been known to the applicant for several years. Whether these postsand communications are taken individually or collectively, whilst they may beunpleasant, they simply do not justify the intervention of the Harassment Act1997, with the necessary implication that the enforcement procedurescontained in the Harassment Act might be appropriately used, on the availableevidence. On this aspect of matters, even accepting that significant distresshas been caused, I am nevertheless completely satisfied that an order is not,and could never be justified, taking the evidence at its highest for theapplicant.[141] There is simply no evidentiary basis for a claim that there will befurther harassment in the future. The conclusion that it is more likely than not,that without a restraining order being made against her, the respondent will infuture commit further acts of harassment, is completely unjustified. Put in thestatutory language, the current existence of a continued pattern of behaviourthat is directed against the applicant is not discernible on the evidenceadvanced.[142] I am not satisfied that a restraining order is necessary to prevent futurebreaches of the Harassment Act. I have reached the conclusion that thesupporting material relied upon by the applicant, taken at its highest, couldnever justify the making of an order under the Act. It follows that theapplication cannot succeed.[146] These orders are impossibly broad, and in most respects well outsideany jurisdiction this Court might possess. Orders to remove all harmful digitalcommunications would best be made under the Harmful DigitalCommunications Act, not the Harassment Act. This would require precisespecification of each and every post and its location on the internet, and clearevidence that the respondent made the post and not someone else. Therespondent obviously cannot be ordered to take down something she has notposted. The harmful nature of the post would need to be established on preciseevidence.[147] An order that the respondent remove herself from all private groupsconspiring to cause the applicant harm is not amenable to the jurisdictionunder the Harassment Act without precise specification of the group or groupsidentity, their membership, and purposes or objectives. The respondent'sconstitutionally protected freedom of association cannot lightly be obviated.There was no skerrick of evidence supporting this aspect of the application. Inany event, would an animal rights group, perhaps even including the RSPCA,be included in such an order if the respondent is a member? Obviously not,because while reporting of perceived animal abuse might cause harm to theapplicant, its purpose would be lawful.[148] The Harassment Act contains no powers for the Court to order arespondent to undergo anger management courses.[149] I consider these proceedings to be misconceived, because I considerthat the evidence advanced in respect of the allegations made could notconceivably justify the orders sought, nor any orders restricting therespondent's constitutionally guaranteed rights of free speech and freedom ofassociation. Given that the content of the posts and messages are non-threatening, and consist of no more than expressions of personal opinion, thisapplication is hopelessly deficient.[151] The respondent has invited the Court to dismiss these proceedings asbeing frivolous or vexatious, or an abuse of the process of the Court. As towhat constitutes frivolous and vexatious proceedings, that will vary from caseto case. In this particular case, for the reasons set out above, taking theevidence at its highest for the applicant, I am satisfied that the Court couldnever determine that any of the orders sought by the applicant, or anyrestraining order, could properly be made against this respondent on theevidence before the Court. That conclusion renders further consideration ofthe proceedings moot, and indubitably a waste of valuable Court resources.Waiver application[4] The appellant has already made a similar application for waiver of security forcosts in the District Court which she is able to do under the Act. It was declined byJudge Lawson on 16 June 2023.2 Judge Lawson declined the application on the basisthat the appellant failed to demonstrate that special circumstances applied such that itwould be in the interests of justice to allow for waiver. No evidence as to2 Sax v McMillan DC Tauranga CIV-2021-070-000668, 16 June 2023.impecuniosity was submitted, nor did the Judge consider that there was wider publicinterest sufficient to defeat the purpose of security for costs (to provide security forsuccessful respondents who assume increased risk in defending proceedings againstthem).3[5] Both parties sensibly agreed that this judgment should be treated as both anappeal from the decision of Judge Lawson and a decision on the application for waivermade to this Court. To this end, the appellant subsequently provided a copy of herapplication for waiver filed in the District Court on 2 June 2023, which I have carefullyconsidered alongside her written and oral submissions in this Court.[6] The appellant helpfully summarised her written submissions as to waiver at thehearing on 29 June 2023. She stated that she had four key points which I in turnsummarise, though I have considered them in full:(a) she is suffering financial hardship and paying security for costs willstifle her appeal;(b) her appeal is not hopeless;(c) her appeal is necessary to protect her health and her business; and(d) the respondent has used the proceeding as a method of harassment andit is the respondent's behaviour that has brought about the appellant'sfinancial issues.[7] Shortly before the hearing, the appellant filed affidavit evidence as to herfinancial circumstances. I am satisfied she is not in a position to pay costs or at leastI am prepared to proceed on that basis.[8] The appellant says to date she has not found a legal aid lawyer to take on hercase but she may still do so.3 Sax v McMillan, above n 2 at [5] and [7].[9] Throughout her submissions on this application the appellant stressed theimpact of the history of this matter and of the present proceedings on her mental andphysical health. I accept her evidence and submissions in that regard also.Analysis[10] Rule 20.13(2) of the High Court Rules 2016 requires the Court to fix securityfor costs on an appeal unless the Judge considers it is in the interests of justice that nosecurity be required. In this case the hearing is to be set down for one day. Thestandard amount under the formula in r 20.13(3) is $2,390 for two half-days.[11] It is highly routine for security to be ordered.[12] The key reasons for waiving security are where the appellant is impecuniousor where public policy concerns arise.4 Exceptional circumstances are required tojustify a waiver.5[13] Being impecunious will only justify waiver where the appeal is one that asolvent appellant would reasonably wish to prosecute.6 This is not such an appeal. Ihave read the very careful and lengthy judgment of Judge Ingram and can see nolegitimate criticism of it. Not only does his conclusion seem well-founded, but thecontinuation of this proceeding can only be destructive for all involved, including theappellant. While the appellant has filed a four-page amended notice of appeal, she saysshe has not read the judgment because to do so will have a severe impact on her mentalhealth.[14] There is no public policy interest in this case. It is intensely personal.[15] The appellant's points otherwise go to the substance of the proceeding or towider issues, not to waiver of security. I am satisfied there is no basis for waiver. Iconsider it important in a case like this that security be paid.4 Chatha v Wanganui Gas Ltd (2004) 17 PRNZ 736.5 At [6].6 Reekie v Attorney-General [2014] 1 NZLR 737, [2014] NZSC 63 at [35].[16] I therefore decline to waive security for costs.[17] The respondent seeks that the security be increased beyond the standard sumof $2,390.[18] The respondent points out that the amended notice of appeal extends to fourpages; notes that this is not a simple appeal; and says that the appellant's status as alay litigant is prolonging matters and adding to their complexity. Even the question ofsecurity for costs has occupied significant time. In addition, the respondent says italmost naturally follows with a lay litigant that the respondent will carry a greatershare of costs relating to preparation of the case on appeal and so forth. Therespondent seeks three times the standard security.[19] I consider that the standard sum should be increased for the reasons stated. Iam mindful also of the nature of the judgment appealed against and my view of thelack of merit in the appeal. But while I agree there is a strong argument for a greaterincrease, I am not prepared to increase security three-fold. I fix security for costs inthe sum of $4,000.[20] I agree that security must be paid into Court prior to any steps being taken bythe respondent in preparation for the substantive appeal.[21] I therefore make directions as follows:(a) The appellant must pay security for costs in the sum of $4,000 to theRegistrar of the High Court not later than 10 working days after theissue of this judgment.(b) If security is not paid by the appellant on or before the deadline forpayment, the appeal is deemed to be abandoned pursuant to s 126 ofthe District Court Act 2016, costs to be determined.(c) Any directions in respect of hearing of the appeal, filing submissionsand otherwise are to be made only following payment of security forcosts.__________________________Hinton J