Fehling v Appleby - [2015] NZHC 388

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV2014-418-000021 [2015] NZHC 388

BETWEEN FRIEDRICH JOACHIM FEHLING Appellant

AND

DOUGLAS JOHN APPLEBY Respondent

Hearing: 6 March 2015 (On the papers)

Appearances:

Appellant in person
D M Lester as Amicus Curiae

Judgment:

6 March 2015

JUDGMENT OF NATION J

Introduction

[1] Mr Fehling claimed before the Human Rights Review Tribunal (the Tribunal) that Mr Appleby was in breach of the Human Rights Act 1993 (the HRA) in earlier issuing a trespass notice prohibiting Mr Fehling from entering the grounds and facilities of the South Westland Area School, and in making certain comments to the Hokitika Guardian. Those comments related to earlier proceedings before the Tribunal between Mr Fehling and Mr Appleby.

[2] The Tribunal did not uphold Mr Fehling’s claim and dismissed his

proceedings.1

[3] Mr Fehling appealed to the High Court. In a judgment on 5 February 2015, Whata J dismissed the appeal.2 Pursuant to s 124(1) HRA, Mr Fehling has applied to the High Court for leave to appeal questions of law to the Court of Appeal.

Mr Fehling raised as questions of law some 14 issues which he wished to argue before the Court of Appeal. Appended to the questions was what he categorised as “the preliminary Appeal–Court argumentation” for consideration. He indicated “an on-the-papers determination appears appropriate and expedient”.

Representation and Jurisdiction

[4] Throughout this chain of appeals, Mr Fehling has been a self-represented litigant. He acted for himself on the High Court appeal and has personally filed the application for leave to appeal with the supporting documents.

[5] Mr Appleby was represented by his son on the hearing of the substantive appeal to the High Court. He has filed no documents in opposition to the application for leave to appeal. Despite this lack of opposition from Mr Appleby, Mr Fehling can appeal only with the leave of the High Court. If such leave is refused then an appeal can be brought only with the special leave of the Court of Appeal.

Test for second appeal to Court of Appeal

[6] Pursuant to s 124 HRA:

(1) Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings …

[7] Pursuant to s 124(2):

… the High Court may grant leave accordingly if in the opinion of that 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 of Appeal for decision.

[8] In the interests of protecting the finality of litigation and preventing delay and further expense, the threshold for granting leave to a second appeal is high. The purpose of a second appeal is not the general correction of error but the clarification and development of the law.3 The two-pronged test…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fehling v Appleby

Details

AGLC: Fehling v Appleby [2015] NZHC 388
Case: [2015] NZHC 388
Decision Date: 6 March 2015

CaseChat Overview and Summary

Friedrich Joachim Fehling sought leave to appeal to the Court of Appeal from the decision of Whata J in the High Court of New Zealand, which dismissed an appeal he had brought from a decision of the Human Rights Review Tribunal. The Tribunal had dismissed Mr Fehling's claim that Mr Appleby's actions in issuing a trespass notice and in making comments to a newspaper constituted discrimination under the Human Rights Act 1993. The High Court dismissed the appeal on the basis that Mr Fehling had not established that the Tribunal had erred in its reasoning. Mr Fehling sought leave to appeal to the Court of Appeal on 14 questions of law. The court considered the proposed questions of law and concluded that none of them arose from the judgment, were capable of serious argument or involved an interest of sufficient importance to warrant consideration by the Court of Appeal. The court also noted that the proposed questions which were not dealt with by the High Court did not involve issues of general or public importance. The court concluded that none of the proposed questions of law warranted the leave of the Court of Appeal. The court therefore dismissed Mr Fehling's application for leave to appeal.

Orders