ALISOHN JOAN FIELDING AND NEW ZEALAND POLICE
[2024] NZHC 2845
•1 October 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-416
[2024] NZHC 2845
BETWEEN ALISOHN JOAN FIELDING
Applicant
AND
NEW ZEALAND POLICE
Respondent
On the papers: Counsel
Applicant in person
S B McCusker for Respondent
Judgment:
1 October 2024
JUDGMENT OF GRAU J
[Leave to appeal out of time]
Introduction
[1] On 27 November 2023, Judge Kelly dismissed Ms Fielding’s claim against the Police for false imprisonment/arbitrary detention and trespass/unreasonable search of a private dwelling house in relation to two separate events in 2018 and 2019.1
[2] Ms Fielding had 20 working days to file a notice of appeal against Judge Kelly’s decision, but she did not do so until 14 March 2024. After Ms Fielding had been advised that she required leave of this Court to extend the time for filing her notice of appeal,2 she subsequently filed a “Special notice of interlocutory application on notice” on 12 August 2024 seeking such an extension. The Police oppose.
1 Fielding v Police [2023] NZDC 24795.
2 Fielding v Police HC Wellington CIV-2024-485-416, 31 July 2024 (Minute of Grau J).
FIELDING v NEW ZEALAND POLICE [2024] NZHC 2845 [1 October 2024]
[3] Following a teleconference with the parties, I directed Ms Fielding to file the evidence that she wished to adduce on her proposed appeal (or a summary of it). I also directed Police to provide the Court with the material Ms Fielding had filed in the District Court as a “right of reply” in January 2024, any correspondence with the District Court at the time, and submissions opposing leave to appeal. Ms Fielding was then directed to provide the Court with her submissions in support of her application for leave to appeal. All of the above has now been provided to the Court, and I proceed to determine the application for special leave to appeal on the papers.3
Procedural history
[4]This matter has had a lengthy history.
[5] A statement of claim was originally filed in this Court on 18 May 2020. It was stayed subject to an “unless” order, requiring a compliant statement of claim to be filed by 19 March 2021. A Court-appointed counsel to assist prepared a compliant claim on Ms Fielding’s behalf.
[6] The proceeding was then transferred by consent to the District Court on 11 October 2021. A hearing took place on 30 and 31 October 2023. Judge Kelly’s decision dismissing Ms Fielding’s claims against police followed on 27 November 2023.
[7] As noted, Ms Fielding had 20 working days to appeal Judge Kelly’s decision.4 Her time for filing a notice of appeal therefore expired on 17 January 2024.5 On 18 January 2024, Police and the District Court received a 50-page document containing a “Right of Reply to the Reserved Decision of Judge Kelly”, which appeared to be a paragraph-by-paragraph response by Ms Fielding to his Honour’s decision. The reply document also included an affidavit of a gym instructor and a “testimony” of Ms Fielding. In addition, there were a number of documents
3 See Fielding v Police HC Wellington CIV-2024-485-416, 3 September 2024 (Minute of Grau J).
4 High Court Rules 2016 (HCR), r 20.4.
5 The decision was not served on the parties until 28 November 2023, and “working days” for the purposes of the HCR do not include any day between 25 December and 15 January (see r 1.3 definition of “working day”).
demanding the payment of various sums to Ms Fielding by counsel for the Police and a number of Police officers.
[8] On 24 January 2024, the District Court Registry responded to Ms Fielding, explaining that Judge Kelly and the District Court was now “functus officio on this matter” and was only determining the issue as to costs. Ms Fielding was advised that if she had any further evidence she wished to file, and if she wished to appeal the decision, she should contact the Wellington High Court Registry as all documents would need to be filed there. She was also encouraged to seek legal advice. The District Court asked her to indicate whether she wished to file any submissions in relation to costs, as they were to have been filed by 18 January.
[9] On 2 February 2024, Ms Fielding filed a “Right of Response for Costs Claimed by the Crown” which again contained a lengthy challenge to the Judge’s substantive decision. The District Court issued its judgment awarding costs to the Police on 21 February 2024. The costs decision included an observation that Ms Fielding had previously been advised of her entitlement to appeal the substantive decision to the High Court, but that the District Court was not aware of any appeal.6
[10] A notice of appeal was not filed in this Court until 14 March 2024. The appeal was not accepted for filing at that time as necessary documents (proof of payment of the filing fee or a fee waiver application) were missing, but it was ultimately accepted for filing on 30 July 2024 and referred to me by the Registrar, pursuant to r 5.35A of the High Court Rules 2016 (the HCR).
[11] Ms Fielding’s notice of appeal had stated she did not appeal Judge Kelly’s decision immediately because she gave the Judge “the opportunity to provide remedy” with the introduction of fresh evidence on 18 January 2024. I issued a minute advising Ms Fielding that her appropriate course would have been to file her notice of appeal within 20 working days, and she now required leave to extend the time to file her notice of appeal.7 Ms Fielding was also advised to rectify issues with her notice of appeal, which was difficult to follow and referred to extraneous matters such as canon
6 Fielding v Attorney-General [2024] NZDC 3232 at [11].
7 Minute of Grau J, above n 2.
or papal law. Ms Fielding then filed her “Special notice of interlocutory application on notice” on 12 August 2024.
Applications for special leave to appeal out of time
[12] Under r 20.4(3) of the HCR, the High Court may grant special leave permitting an extension of time for lodging an appeal as long as the enactment conferring the right of appeal does not limit the time prescribed. The District Court Act 2016 does not limit the time for bringing a general appeal to the High Court, nor does the New Zealand Bill of Rights Act 1990 (NZBORA), which is said to be engaged by Ms Fielding’s substantive claim.
[13] The ultimate question in assessing whether leave to appeal out of time should be granted is what the interests of justice require.8 This necessitates an assessment of the particular circumstances of the case.9 Factors which are relevant to this assessment include:10
(a)the length of the delay;
(b)the reasons for the delay;
(c)the conduct of the parties, particularly of the applicant;
(d)any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and
(e)the significance of the issues raised by the proposed appeal, both to the parties and more generally.
[14] The merits of a proposed appeal may be relevant to the discretion to extend time. However, there are qualifications.11 First, there will be some instances where the merits of a proposed appeal will be overwhelmed by other factors (such as the
8 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
9 At [38].
10 At [38].
11 At [39].
length of the delay or the prejudice) such that the merits will not require consideration. Merits may also not be relevant in cases where there has been an insignificant delay or a delay as a result of legal counsel’s error. Finally, considerations of the merits must necessarily be relatively superficial; the court should reach a view about merits only where they are obviously very strong or weak, and the assessment must take place against the general appellate principles in Austin, Nichols.12 Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should only be made where the appeal is plainly hopeless.13
Positions of the parties
Ms Fielding
[15] Ms Fielding has provided varying explanations for the delay in filing her notice of appeal. Ms Fielding says that the process of reviewing Judge Kelly’s decision and preparing a response has been difficult, especially as a lay litigant. She has also said there was a lot to read, and she was still getting fresh evidence. Ms Fielding has said she did not file a notice of appeal at the time so as to enable Judge Kelly to respond to the “fresh evidence” she had filed in the District Court on 18 January 2024. She has also said she has been grieving the loss of a friend and relative and has a seriously ill sibling. Ms Fielding maintains that she filed the notice of appeal within 20 working days of the District Court’s related costs decision being issued on 21 February 2024.
[16]Ms Fielding proposes to adduce the following fresh evidence on appeal:
(a)a testimony from a gym instructor who has provided a copy of text messages said to contradict evidence given at the hearing before Judge Kelly;
(b)documentation obtained as part of an Official Information Act 1982 request said to provide conflicting information to that provided in evidence at the hearing as to the number of people who attended the events on 17 January 2019;
12 Austin, Nichols & Co Inc v Stichting Lodestar [2008] NZSC 103, [2008] 2 NZLR 141.
13 Almond v Read, above n 8, at [39].
(c)notes of a “Crown Agent” that does not correlate to evidence given at the hearing regarding the events of 17 January 2019; and
(d)evidence regarding the claims made to the Independent Police Conduct Authority about Police conduct.
[17] In her submissions, Ms Fielding reasserts various claims she has made since Judge Kelly’s decision. These include a claim that Judge Kelly, having previously been Chief Legal Advisor within the Police, had the tendency to be unfairly prejudiced against Ms Fielding, that Judge Kelly failed to understand her proceedings, and that he included double jeopardy in his judgment. Ms Fielding submits that the Police’s scepticism towards her reasoning as to the delay is “impractical and speculative without facts” given that she has the first-hand knowledge of what has caused the delay.
[18] Ms Fielding asserts she will suffer prejudice if the appeal is not allowed, and a rehearing is not ordered. She notes a prior decision of Cull J that Ms Fielding would have grounds for a claim against Police if it were pleaded correctly. She again claims that there has been an interference in natural justice processes by Police counsel before and during the trial. She suggests that counsel for the Police, and the Police themselves, have failed to follow the law and have interfered with evidence. Ms Fielding says it is imperative that justice be seen to be done by upholding the “processing of law”.
The Police
[19] The Police say that the delay of 40 working days between the expiry of the appeal period (17 January) and the filing of the notice of appeal (14 March) is significant and requires appropriate justification which cannot be provided. Ms Fielding’s changing explanations as to why she has filed her notice of appeal out of time are not credible. Delaying the filing of her appeal to provide the District Court with an “opportunity to remedy” its decision was a deliberate decision. Even when Ms Fielding was told by the District Court that she needed to file an appeal on 24 January, she did not do so.
[20] The Police also say that Ms Fielding’s claimed misapprehension about when the 20-working day timeframe began to run (being after the costs decision) cannot stand in light of the advice from the District Court. It is also contrary to her conduct in previous litigation when she has promptly appealed substantive judgments. Similarly, her need for additional time to review documents seems unreasonable given she had previously filed her 50-page “review” document in response to the substantive decision. There was no suggestion when that document was filed that it was anything other than comprehensive and would need to be supplemented by further submissions or evidence. In any event, the preparation of fresh evidence has no bearing on the timely filing of a notice of appeal in this Court.
[21] The Police also consider that Ms Fielding has made serious and baseless allegations against the trial Judge, counsel, and Police witnesses, including that Judge Kelly had a “lack of integrity and honour” and that Police witnesses had “tampered with evidence”. When the Court of Appeal has held that serious allegations in the absence of a good-faith foundation may constitute an abuse of the court’s processes, such conduct is relevant in the exercise of the court’s discretion to grant leave.14
[22] Mr McCusker submits that, if this proceeding is allowed to continue, there is significant prejudice to the Police and the officers who have been involved in this long running litigation of very serious and unsubstantiated allegations. The Police have been successful in defending these claims for almost four years now and are entitled to finality of judgment.
[23] Mr McCusker also submits there is no public interest in these proceedings. Ms Fielding does not claim any errors of law but rather the appeal concerns alleged procedural errors and errors in the assessment of evidence. Such an appeal based on factual circumstances does not have wider significance.
[24] Finally, Mr McCusker submits that any apparent merits of the appeal are overwhelmed by the reasons set out above to decline leave to appeal out of time. But even if the merits are to be considered, the appeal is clearly hopeless. As noted above,
14 O’Neill v New Zealand Law Society [2022] NZCA 500 at [21].
the appeal primarily rests on challenges to the trial Judge’s assessment of the evidence. That assessment turned, in part, on numerous credibility findings the Judge made against Ms Fielding and her witnesses. An appellate court will only interfere with such findings in exceptional circumstances. Based on the claims in the “Special notice of appeal,” this very high threshold is not capable of being reached.
Discussion
[25] I agree with the Police that the length of the delay—being 40 working days— and the reasons for it are inadequate. I am unable to accept the explanation that Ms Fielding believed she could not appeal Judge Kelly’s decision until she had given him the opportunity to respond to further evidence and/or until his costs decision was issued. Ms Fielding has, in other proceedings, promptly filed notices of appeal without having provided Judges with an opportunity to respond or waiting for a costs determination. It is not apparent to me why this proceeding would appear to Ms Fielding as being any different. This is especially the case when the District Court advised Ms Fielding in clear terms in January—two months before the notice of appeal was received by this Court—that she needed to file an appeal rather than provide further evidence and submissions to Judge Kelly.
[26] Further, that explanation also conflicts with the explanation that it took time to review the Judge’s decision, when it appears Ms Fielding had already (and comprehensively) done so, in filing her “right of reply” in January 2024.
[27] Given the complex history of this proceeding, including the involvement of counsel assisting and Ms Fielding’s election to exercise her right to self-representation, her conduct during the proceedings is a neutral factor.
[28] The hardship or prejudice faced by Ms Fielding if leave to appeal was not granted, the importance of the issues that would be raised in the proposed appeal, and the relevance of the appeal’s merits (if any) are difficult to assess in this case. Ms Fielding’s submissions and evidence are very difficult to make sense of and do not elucidate the purported errors of Judge Kelly—whether in fact or law—that she would wish to pursue on appeal. While Ms Fielding is clear that she believes Judge Kelly’s decision is wrong and that the Police have acted unlawfully, both during the events in
2017 and 2018 and in proceedings before the courts, there is little beyond this assertion in her submissions. Rather, an examination of the material she has filed overall suggests it has a strong flavour of the consent-based Sovereign Citizen “dual personality” or “Organised Pseudolegal Commercial Argument” (OPCA) theories that have been consistently rejected by the courts as legally untenable and “without legal foundation”.15
[29] What this Court would have expected to see is an outline of Judge Kelly’s findings that Ms Fielding considers were incorrect, why these are incorrect—being whether they are an incorrect application of the law or contradict the evidence—and reference to evidence before the Judge or case law that would support Ms Fielding’s argument. It is not enough for Ms Fielding to refer to case law generally about the NZBORA, nor is it enough for her to have recourse to evidence that was not before the Court. The Judge’s decision is thorough and well-reasoned, and Ms Fielding has not provided me with any reason to believe otherwise.
[30] Similarly, if Ms Fielding seeks to assert that the evidence of Police witnesses was inconsistent, she needed to be able to point directly to the evidence of the witnesses at trial (that is, in the Notes of Evidence) and other evidence with which she says there is incongruence. It is insufficient, as Ms Fielding has done, to support her assertions simply by making another unsupported assertion (often being along the lines that Police staff or counsel have omitted evidence, distorted the truth, committed perjury, fabricated evidence, or something else of that nature). It is not enough that Police witnesses disagreed with Ms Fielding’s version of events or refused to accept questions put to them in cross-examination. They are entitled to do so, and it does not necessarily follow from such disagreement that they are biased against her or giving false evidence. It is the Judge’s role to make findings of fact in light of contradictory evidence; that the Judge has found against Ms Fielding on matters of fact does not of itself indicate anything untoward either.
[31] Ms Fielding’s appeal appears to be heavily reliant on a text message from a gym instructor that she says would contradict the evidence of Police witnesses that
15 Richard v Beresford [2023] NZHC 500 at [9]–[12].
was accepted at the hearing. It appears this issue possibly relates to an affidavit that was part of Ms Fielding’s “right of reply” she filed in the District Court in January. If that is so, not only does it contradict one of her explanations for the delay in filing her appeal (which was that she was getting new evidence) but as I understood it, the text message from the gym instructor had not yet been provided to the Court or Police. However, there is a text message from someone who appears to be connected with a gym in the January “right of reply” materials—although its relevance is not at all clear to me, and it remains unexplained. It is therefore impossible to assess the strength of this evidence and whether it justifies leave to appeal being granted. Ms Fielding cannot base an appeal on the notion of evidence that is to be provided at some point in the future or on evidence that is unexplained.
[32] Further, the fact that Judge Kelly did not accept Ms Fielding’s evidence and preferred the evidence of the Police witnesses at trial is not of itself a sign of prejudice or bias or unfairness. Again, it is a sign that the Judge, after hearing the evidence, came to a conclusion as to the credibility and reliability of witnesses and made findings of fact on that basis. As above, that is the Judge’s role. As Mr McCusker points out, appellate courts are required to bear in mind the advantages of a trial Judge in hearing the evidence in issue. Where Ms Fielding has not provided any evidence or cogent reasoning to support her position that the Judge’s factual conclusions were incorrect, this further mitigates against granting leave to appeal out of time.
[33] Finally, I note my agreement with the submission by Police that good-faith foundations should be offered for serious allegations against others, including judicial officers. As the Court of Appeal has affirmed in O’Neill v New Zealand Law Society, if such a foundation is lacking, the court may conclude that its processes are being abused.16 This would make a claim amenable to strike out, whether on the court’s own volition or following the application of another party. Evidence is required beyond simple speculation that, because things have not gone one’s way, judicial staff must be corrupt.17 In light of this, I urge Ms Fielding to be cautious in raising allegations of prejudice or bias where all that is proffered in support is Ms Fielding’s own opinion and the fact that the Judge has decided a case against her. I do not doubt that
16 O’Neill v New Zealand Law Society, above n 14, at [21].
17 At [21].
Ms Fielding has a genuine belief in her claim but, as I have explained, an inability to support serious allegations may in future prevent her from pursuing such claims.
[34] For those reasons, I decline to grant Ms Fielding special leave to appeal out of time. It would prejudice the respondent to be required to respond to Ms Fielding’s claim which is unclear and difficult to follow and does not appear to disclose any arguable grounds of appeal.
Grau J
Solicitors:
Crown Solicitor, Wellington
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