ALISOHN JOAN FIELDING AND WELLINGTON HIGH COURT
[2025] NZCA 151
•9 May 2025 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA646/2024 |
| BETWEEN | ALISOHN JOAN FIELDING |
| AND | WELLINGTON HIGH COURT |
| Court: | Cooke and Whata JJ |
Counsel: | Applicant in person |
Judgment | 9 May 2025 at 11 am |
JUDGMENT OF THE COURT
The application for extension of time to appeal is declined.
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REASONS OF THE COURT
(Given by Whata J)
Background
On 5 June 2024, La Hood J dismissed Ms Fielding’s appeal to the High Court against her convictions and sentence.[1] After delivery of the judgment, Ms Fielding requested that the Judge recuse himself because he dealt with a case involving Ms Fielding while he was a partner at Luke Cunningham Clere, the office of the Wellington Crown Solicitor, and received confidential information pertaining to Ms Fielding during this time.[2] The Judge declined the request via a minute dated 12 June 2024. He said, in short, he had no recollection of the matter, and it was now too late to recuse himself as he had already heard and determined her appeal. The Judge also noted that it was unfortunate that this issue was only brought to his attention after the delivery of his judgment. He noted that any challenge to his decision will need to be made by way of an application for leave to appeal.
[1]Fielding v Police [2024] NZHC 1455 at [34] and [40]. Ms Fielding was convicted on a number of charges under the Land Transport Act 1998 and one charge of resisting police. She was sentenced to pay $500 towards the cost of prosecution on the charge of resisting police, and convicted and discharged on the other charges.
[2]An email dated 28 July 2023 was produced to us showing that Ms Fielding was notified by a solicitor at the Wellington Crown Solicitor to direct any future correspondence to the Judge in his former capacity as a Crown solicitor.
Ms Fielding then filed a judicial review application dated 29 July 2024 in the High Court, seeking that La Hood J’s decision be recalled. The Registrar referred the proceeding to Grau J under r 5.35A(3)(a) of the High Court Rules 2016 for consideration given the Registrar’s belief that, on their face, the proceedings were “plainly an abuse of process of the court”. Ms Fielding’s judicial review application was struck out on the papers by Grau J on 31 July 2024.[3] The Judge found (among other things) there was no jurisdiction to judicially review a High Court decision.[4] She also advised Ms Fielding of her right to appeal against the strike-out decision.[5]
[3]Fielding v High Court Wellington [2024] NZHC 2119 at [4].
[4]At [4].
[5]At [5].
Ms Fielding did not file an appeal against the strike-out decision within time and now seeks an extension of time to appeal this decision 23 working days out of time.[6] She claims that Grau J was wrong and raises natural justice concerns, including that she was not afforded an opportunity to be heard and Grau J was also a former solicitor of the Wellington Crown Solicitor.
Extension of time to appeal — legal principles
[6]Court of Appeal (Civil) Rules 2005, r 29(1)(a).
In considering whether to extend time the following matters are important: the length and reasons for the delay; the conduct of the parties; prejudice to the respondent and others with legitimate interests; and the significance of the issues raised.[7] The merits of the appeal will not be determinative, unless the appeal is clearly hopeless.[8] The ultimate question is what the interests of justice require, in the particular circumstances of the case.[9]
Discussion
[7]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
[8]At [39(c)].
[9]At [38].
We turn now to those matters. The length of the delay in filing is not inconsiderable, but the reasons for that delay provide sufficient justification for it. The strike‑out judgment was delivered on 31 July 2024. On her account, Ms Fielding only received notice of this decision on 7 August 2024 due to an administrative error. She says she sent inquiries to the High Court Registrar on 16 August and 17 September 2024 regarding a possible appeal of the decision. On 17 September 2024, she contacted the Court of Appeal Registrar about the appeal procedure. Following a response to her inquiry on 24 September 2024, her application for an extension of time was filed on 30 September 2024, only four working days thereafter.
There is no obvious prejudice to the proposed respondent in granting an extension and, without trespassing into the merits, a legitimate concern about apparent lack of judicial impartiality is an important matter. These factors favour the grant of an extension.
However, the appeal against Grau J’s strike‑out decision is clearly hopeless. The High Court has no jurisdiction to judicially review a High Court decision. The only proper avenue for challenging La Hood J’s appeal judgment was by way of leave to commence a second appeal to this Court.[10] As Thomas J said in Auckland District Court v Attorney‑General:[11]
The supervisory jurisdiction of the High Court has been secured since the 17th century. It is based on the fundamental premise that statutory (and some prerogative powers) can be validly exercised only within their true limits. It is the task of the High Court to determine those limits and it does so by the process of judicial review. But the High Court cannot review its own decisions; it must determine its own jurisdiction and, if it is responsible for any irregularity, the defect must be corrected by the Court itself or on appeal. It is in this sense that the High Court is described as a superior Court of general jurisdiction and other Courts and tribunals are described as “inferior” or as Courts or tribunals of limited jurisdiction.
[10]Criminal Procedure Act 2011, ss 237–238.
[11]Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133 (footnotes omitted).
Therefore, the grant of an extension of time is pointless. The application for extension of time to appeal must be declined.
If Ms Fielding still wishes to pursue this issue further, she must seek leave to commence a second appeal against conviction and sentence, together with an application for extension of time to commence such an appeal. Consideration of the significance, if any, of La Hood J’s prior connection to the Wellington Crown Solicitor could more sensibly be undertaken then.
Result
The application for extension of time to appeal is declined.
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