Fielding v McIntyre - [2021] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA539/2020
[2021] NZCA 217

BETWEEN	ALISOHN FIELDING Appellant
AND	ANDREW JAMES ALAN MCINTYRE Respondent

Court:	Clifford J
Counsel:	Appellant in person D M Abricossow for Respondent
Judgment: (On the papers)	31 May 2021 at 11.30 am

JUDGMENT OF CLIFFORD J
(Review of Deputy Registrar’s Decision)

The application for review of the Deputy Registrar’s decision declining to dispense with security for costs is declined.

____________________________________________________________________

REASONS

Ms Fielding is appealing the decision of the High Court striking out her claim against Mr McIntyre for the intentional infliction of emotional harm.[1] Ms Fielding applied to the Deputy Registrar to dispense with security for costs. The Deputy Registrar declined to do so, but reduced the requirement for security from the usual $7,060 to $4,000.
[1]Fielding v McIntyre [2020] NZHC 2232 [High Court judgment].
This is an application by Ms Fielding to review that decision.
The Supreme Court decision in Reekie v Attorney-General has established a clear set of principles as regards dispensation from security.[2] As summarised in the headnote of that decision, and as relevant here:[3]
(4) An appellant is not required to show an exceptionally strong case in order to warrant dispensation with security. The discretion to dispense with security should be exercised so as to preserve access to the Court of Appeal in a case which a solvent appellant would reasonably wish to prosecute and to prevent the use of impecuniosity to secure an advantage by prosecuting an appeal which would not sensibly be pursued by a solvent litigant. (paras 28, 35)
(5) A reasonable and solvent litigant would not proceed with an appeal which is hopeless. Nor would a reasonable and solvent litigant proceed where the benefits (economic or otherwise) to be obtained are outweighed by the costs (economic and otherwise) of the exercise (including the potential liability to contribute to the respondent’s costs if unsuccessful). (para 35)
(6) Cost and benefit are not to be assessed in purely financial terms. An appeal may raise issues of public interest that are not measurable in economic terms. Considerations that are personal to the appellant may also legitimately fall to be considered. Vindication of rights under the New Zealand Bill of Rights Act 1990 may have both personal and public non-financial benefits. In the end an exercise of judgment is called for. (para 41)
[2]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
[3]Reekie v Attorney-General (2014) PRNZ 776, citing [28], [35] and [41].
Ms Fielding claims Mr McIntyre, through various actions, intentionally caused her emotional and psychological damage so as to be liable to her in damages. Ms Fielding claims the sum of $120,000 as compensation.[4]
[4]High Court judgment, above n 1, at [7].
The factual basis pleaded by Ms Fielding, as disclosed by the judgment below, is that she and Mr McIntyre commenced a sexual relationship at a point in time when he knew her to be particularly emotionally and…

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 217
Case: [2021] NZCA 217
Decision Date: 31 May 2021 at 11.30 am

CaseChat Overview and Summary

In the appeal of Fielding v McIntyre, the appellant, Alisohn Fielding, is challenging the decision of the High Court to strike out her claim against the respondent, Andrew James Alan McIntyre, for the intentional infliction of emotional harm. The Court of Appeal of New Zealand, presided over by Clifford J, was tasked with reviewing the decision of the Deputy Registrar, who had declined to dispense with security for costs required from Ms. Fielding. Ms. Fielding's claim against Mr. McIntyre was dismissed by the High Court, which found that her statement of claim did not disclose a reasonably arguable cause of action. This led to the Deputy Registrar's decision to decline her application for dispensation from security for costs, although the requirement was reduced from $7,060 to $4,000.

The primary legal issue before the Court of Appeal was whether the Deputy Registrar erred in declining to dispense with the security for costs requirement, given Ms. Fielding's impecuniosity and the potential public interest in her appeal. The Court of Appeal considered the principles established in Reekie v Attorney-General, which guide the exercise of discretion to dispense with security for costs. These principles include the consideration of whether the appeal has a reasonable prospect of success, the potential public interest, and the financial and non-financial costs and benefits of proceeding with the appeal. Clifford J held that, given the High Court's finding that Ms. Fielding's statement of claim disclosed no reasonably arguable cause of action, it was difficult to conclude that a solvent appellant would reasonably wish to pursue this appeal. Consequently, the Court of Appeal found no reviewable error in the Deputy Registrar's decision.

The Court of Appeal upheld the Deputy Registrar's decision not to dispense with the security for costs requirement, declining Ms. Fielding's application for review. Clifford J noted that while the Deputy Registrar had reduced the security requirement, this decision was favourable to Ms. Fielding and did not disclose any reviewable error. As a result, the appeal against the High Court's decision to strike out Ms. Fielding's claim for intentional infliction of emotional harm was dismissed, and no further orders were made regarding the security for costs.

Orders