Fehling v Appleby

IN THE COURT OF APPEAL OF NEW ZEALAND

CA165/2015
[2015] NZCA 428

BETWEEN	FRIEDRICH JOACHIM FEHLING Applicant
AND	DOUGLAS JOHN APPLEBY Respondent

Hearing:	7 September 2015
Court:	Harrison, French and Cooper JJ
Counsel:	Applicant in person No appearance for Respondent
Judgment:	9 September 2015 at 4.30 pm

JUDGMENT OF THE COURT

The application for special leave to appeal is dismissed.

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REASONS OF THE COURT

(Given by French J)

Mr Fehling unsuccessfully appealed a decision of the Human Rights Review Tribunal[1] (the Tribunal) in the High Court.[2] The High Court declined to grant him leave to appeal to this Court.[3] He now applies for special leave to appeal to this Court under s 124(3) of the Humans Rights Act 1993. Section 124(3) provides that leave should be given if in the opinion of this Court, the question of law involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the Court for decision.
[1] Fehling v Appleby [2014] NZHRRT 24.
[2]Fehling v Appleby [2015] NZHC 75 [2015] NZAR 547.
[3] Fehling v Appleby [2015] NZHC 388.
Mr Appleby did not appear and abides the decision of the Court.
The proceeding concerns a trespass notice issued against Mr Fehling by the respondent Mr Appleby requiring him to stay off school grounds. Mr Appleby and the school refused to disclose the names of the individuals who had made allegations leading to the issuing of the notice. In separate proceedings brought by Mr Fehling under the Privacy Act 1993, the Tribunal found the school did not have grounds to withhold the information and the result was an interference with Mr Fehling’s privacy.[4]
[4]Fehling v South Westland Area School [2012] NZHRRT 15.
Mr Fehling then issued the current proceedings under the Human Rights Act, contending that in issuing the trespass notice and in making subsequent comments to a local newspaper, Mr Appleby breached the Human Rights Act. This contention was not accepted by the Tribunal. It found that the trespass notice had been issued as a result of Mr Appleby’s irrational fears of Mr Fehling and that there was otherwise insufficient evidence to establish the notice was issued or the newspaper comments made by reason of a prohibited ground of discrimination such as would engage ss 42 or 65 of the Human Rights Act. The Tribunal also found the newspaper comments did not constitute victimisation for the purposes of s 66 of the Human Rights Act.
Those findings were upheld on appeal to the High Court.
In support of his application for leave to bring a second appeal, Mr Fehling has submitted several proposed grounds of appeal. The proposed grounds essentially fall into three categories.
The first category comprises variations on the theme that a breach of the Privacy Act is by definition a breach of the Human Rights Act. In our view, it is a proposition that is not legally tenable. The provisions of the Human Rights Act prescribing the prerequisites of the various types of claims simply do not lend themselves to that interpretation.
The second category involves challenges to the findings that the notice was not issued by reason of a prohibited ground of discrimination. Those were factual findings. As already mentioned, under s 124(3) leave can only be given in respect of a question of law.
The third category involves what are said to be paramount and priority constitutional questions but which on proper analysis are either irrelevant to the proceeding or aberrant.
We are satisfied that none of the proposed grounds of appeal satisfies the requirements for granting leave. The application is accordingly dismissed.
Finally, we note that the papers filed by Mr Fehling contain offensive language and baseless allegations of corruption and bias constituting contempt of court. He is put on notice that any further documents with contents of that nature will not be accepted for filing.

In the Court of Appeal of New Zealand, Friedrich Joachim Fehling sought special leave to appeal a decision made by the Human Rights Review Tribunal in relation to a trespass notice issued against him by Douglas John Appleby. The trespass notice required Mr Fehling to stay off school grounds. The appeal originated from a decision by the High Court declining to grant Mr Fehling leave to appeal to the Court of Appeal. Mr Appleby did not appear and abides the decision of the Court. The primary legal issue the Court of Appeal had to decide was whether the application for special leave to appeal should be granted under section 124(3) of the Human Rights Act 1993. This provision allows for leave to be given if the Court believes the question of law involved in the appeal is of general or public importance or for any other reason ought to be submitted to the Court for decision. Mr Fehling proposed several grounds for appeal, which fell into three categories. The first category argued that a breach of the Privacy Act is inherently a breach of the Human Rights Act, but the Court found this proposition not legally tenable. The second category challenged the findings that the trespass notice was not issued based on a prohibited ground of discrimination, but these were factual findings, not questions of law. The third category involved what were described as paramount and priority constitutional questions, but upon analysis, these were either irrelevant or aberrant. The Court concluded that none of the proposed grounds satisfied the requirements for granting leave, and thus dismissed the application for special leave to appeal. The Court also noted the offensive language and baseless allegations in Mr Fehling's filings, warning him that any further documents with such content would not be accepted.

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