Fielding v McIntyre - [2021] NZCA 582

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA539/2020
[2021] NZCA 582

BETWEEN	ALISOHN JOAN FIELDING Appellant
AND	ANDREW JAMES ALAN MCINTYRE Respondent

Court:	French and Brown JJ
Counsel:	Appellant in Person D M Abricossow and H J Dempsey for Respondent
Judgment: (On the papers)	5 November 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

A claim for damages by the appellant, Ms Fielding, against the respondent, Mr McIntyre, for intentionally causing her physical and psychological harm was struck out on the ground that the statement of claim disclosed no reasonably arguable cause of action.[1] On 21 September 2020 Ms Fielding filed a notice of appeal against the High Court judgment. An amended notice of appeal was filed on 9 April 2021 adding a challenge to the costs award in the High Court judgment.
On 1 July 2021 the Registrar issued a notice of result certifying that Ms Fielding’s appeal was deemed abandoned as at 24 June 2021 because of her failure to satisfy the requirements of r 43(1) of the Court of Appeal (Civil) Rules 2005 by filing a case on appeal and applying for the allocation of a hearing date. On 6 July 2021 Ms Fielding filed an application for an extension of time under r 43(2) which is the subject of this judgment.

The appeal

[1]Fielding v McIntyre [2020] NZHC 2232 [High Court judgment].

Ms Fielding and Mr McIntyre were in a relationship for nine months. Ms Fielding ended the relationship when she discovered Mr McIntyre was having sex with other women. Her claim for damages was advanced on the footing that Mr McIntyre had a duty not to cause her foreseeable harm and that the psychological harm she suffered as a result of his actions was foreseeable.
In striking out the claim as disclosing no reasonably arguable cause of action Clark J explained:
[28] Even accepting the pleadings at face value, as is generally required in a strike-out context, the legal position is clear. On Ms Fielding’s own account, her first shock was the result of finding Mr McIntyre in his own home having sex with another woman. Ms Fielding said she had been with Mr McIntyre at his home and left. But because he seemed “odd” she returned to his home. She entered his home and that is where she said she discovered him having sex.
[29] The conduct Ms Fielding describes is not conduct directed towards her for which there is no justification or reasonable excuse. Ms Fielding obviously regarded it as a complete breach of trust between them and inexcusable for the range of reasons she has given. But in terms of the legal requirement for the conduct element it cannot be said from Mr McIntyre’s perspective, that there was no justification or reasonable excuse for…

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 Fielding v McIntyre

Details

AGLC: Fielding v McIntyre [2021] NZCA 582
Case: [2021] NZCA 582
Decision Date: 5 November 2021 at 10.30 am

CaseChat Overview and Summary

The case of Fielding v McIntyre involves an appeal by Alisohn Joan Fielding against Andrew James Alan McIntyre. Ms Fielding sought damages for intentional harm she suffered during a relationship with Mr McIntyre, which was ended when she discovered he was having an affair. The High Court struck out her claim, finding it did not disclose a reasonably arguable cause of action. Ms Fielding appealed the decision, and later sought an extension of time to file a case on appeal and apply for a hearing date. This extension was refused by the Deputy Registrar, leading to the current application for further extension under rule 43(2) of the Court of Appeal (Civil) Rules 2005.

The legal issues before the Court of Appeal included whether the strike-out decision was correct, and if the prospects of success on appeal were sufficient to warrant a further extension of time. The Court noted that the appeal was from a decision striking out a statement of claim that did not disclose a reasonably arguable cause of action. The High Court had ruled that the claim was implausible because the conduct in question was not directed at Ms Fielding and Mr McIntyre had a reasonable expectation of privacy in his own home. The Court of Appeal agreed with this assessment, finding the prospects of success on appeal to be remote. Additionally, Ms Fielding had failed to pay the reduced security for costs, which was a prerequisite for proceeding with the appeal.

The Court of Appeal concluded that the application for an extension of time should be declined. Several factors weighed against granting the extension, including the significant passage of time since the appeal was filed, the limited scope of the case on appeal, and the remote prospects of success. Ms Fielding had also failed to demonstrate an intention to progress the preparation of the case on appeal and had not complied with the direction to pay security for costs. The Court found that granting a further extension would only prolong the period in which Mr McIntyre was potentially exposed to an implausible claim.

The final orders of the Court of Appeal were that the application for an extension of time under rule 43(2) of the Court of Appeal (Civil) Rules 2005 was declined.

Orders