Fielding v High Court Wellington

[2024] NZHC 2119

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-415

[2024] NZHC 2119

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER OF

Recusal of Judge/judgment

BETWEEN

ALISOHN JOAN FIELDING

Appellant

AND

HIGH COURT WELLINGTON

Defendant

On the papers:
Appearances:	Appellant in person
Judgment:	31 July 2024

JUDGMENT OF GRAU J

[1]                 Ms Fielding has presented for filing a statement of claim, dated 29 July 2024, seeking to commence judicial review proceedings against La Hood J. The proceeding was referred to me by the Registrar pursuant to r 5.35A of the High Court Rules 2016 (the HCR).

[2]                 It appears that La Hood J dismissed a criminal appeal regarding Ms Fielding on 5 June 2024.1   The statement of claim filed levels multiple challenges against    La Hood J and, by extension, his Honour’s decision. The essence of Ms Fielding’s claim is that La Hood J should have disclosed the conflict of interest he had against her, and any alignment of  interest  with  the  prosecutors  of  her  case,  given  that La Hood J was formerly a partner at the prosecuting firm. Ms Fielding says that

1      Fielding v Police [2024] NZHC 1455.

FIELDING v HIGH COURT WELLINGTON [2024] NZHC 2119 [31 July 2024]

La Hood J was motioned to recuse himself and he should have done so on the basis that this conflict of interest rendered him unqualified to perform his judicial duties.

[3]                 Rule 5.35B allows a Judge to strike out proceedings that have been referred by a Registrar where the Judge is satisfied that the proceeding is plainly an abuse of process. It is well known that the jurisdiction to strike out a proceeding under r 15.1 of the HCR is to be exercised sparingly. However, it may sometimes be necessary to act to protect defendants from frivolous proceedings or to protect public confidence in the administration of justice.2 The Court will consider whether it would be “manifestly unfair” to require the respondent to respond to the application and “whether right thinking people would regard the Court as exercising very poor control of its processes if it was to permit the application to proceed further”.3

[4]                 In the circumstances of this case, I am satisfied that Ms Fielding’s proceeding against La Hood J should be struck out under r 15.1. The claim is manifestly untenable. It is not possible to judicially review a decision of the High Court and the actions of Judges acting in that capacity are immune from suit.4 Further, it appears that these proceedings seek to collaterally challenge the outcome of La Hood J’s decision. Ms Fielding’s motion for recusal came after the appeal was dismissed, at which point it was impossible for La Hood J to recuse himself, given the matter had already been heard. As La Hood J explained in his minute responding to Ms Fielding’s motion for recusal,5 the only way to challenge his decision—including where challenge is sought to be levelled on the basis of bias—would be by seeking leave for a second appeal to the Court of Appeal.6 No such application for leave has been made. And apart from Ms Fielding’s suggestion that La Hood J should have recused himself, I can discern no legal or factual argument that would give rise to a legitimate appeal of his Honour’s decision. It would be unfair to require Crown Law (who would take on acting as the respondent were service permitted) to respond to the application in these circumstances. Nor would it be a prudent use of judicial resource.

2      O’Neill v Commissioner of Police [2022] NZCA 501 at [23].

3      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [27] and [30].

4      Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161]–[166].

5      Fielding v Police HC Wellington CRI-2024-485-033, 12 June 2024 (Minute of La Hood J).

6      Pursuant to s 237 of the Criminal Procedure Act 2011.

[5]                 Given that I am ordering for Ms Fielding’s proceeding to be struck out without first giving her an opportunity to be heard, I advise Ms Fielding that she does have a right to appeal against this strike out decision pursuant to r 5.25B(3) should she wish to do so.

[6]                 As an auxiliary point, I observe that Ms Fielding also seeks that any notes or transcripts of evidence produced at the hearing before La Hood J be disclosed to her. She has previously made a request to access such documents under the Senior Courts (Access to Court Documents) Rules 2017, which was granted by Boldt J on 13 June 2024.7 It appears that Ms Fielding was advised by the Registry that no such notes or transcripts of evidence existed, and so they could not be released to her. To provide Ms Fielding with some clarity on the situation, it is not common for notes of evidence or transcripts to be prepared where no oral evidence (in other words, evidence provided by witnesses in person) was given at the appeal hearing, and the Access to Court Documents Rules do not require the Registry to prepare any document that is not in existence at the time the request for documents is made.8 Given the Registry has advised no notes or transcripts of evidence exist, and these documents cannot now be produced, there are no such documents to be disclosed to Ms Fielding notwithstanding her request and the minute of Boldt J.

Grau J

7      Fielding v Police HC Wellington CRI-2024-485-33, 13 June 2024 (Minute of Boldt J).

8      Senior Courts (Access to Court Documents) Rules 2017, r 3(3).