Fielding v McIntyre - [2020] NZHC 2232

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-610

[2020] NZHC 2232

BETWEEN
ALISOHN JOAN FIELDING

Plaintiff

AND

ANDREW JAMES ALAN McINTYRE

Defendant

Hearing: 27 July 2020

Appearances:

Appellant in Person

D M Abricossow and H J Dempsey for Defendant

Judgment:

28 August 2020

JUDGMENT OF CLARK J

Introduction

[1] Ms Alisohn Fielding, the plaintiff in this proceeding, claims Mr McIntyre has intentionally caused her physical and psychological harm. She seeks damages from Mr McIntyre.

[2] Mr McIntyre has applied to strike out the statement of claim in whole or in part on the grounds it discloses no reasonably arguable cause of action, is likely to cause significant prejudice and delay and on the basis the proceeding is an abuse of process. An accompanying application seeks security for costs.

FIELDING v McINTYRE [2020] NZHC 2232 [28 August 2020]

Strike-out principles

[3] The principles which apply to a strike-out application are settled and uncontentious.1 They are accurately summarised in the defendant’s submissions:

(a)Pleaded facts, whether admitted or not, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.

(b)The cause of action must be clearly untenable.

(c)The jurisdiction is to be exercised sparingly and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.

(e)The Court should be particularly slow to strike out a claim in any developing area of law.

[4] Accordingly, for the purposes of the strike-out argument, the facts upon which the plaintiff’s claim is based must be accepted. The question is whether those accepted facts disclose a reasonably arguable cause of action.

The statement of claim

[5] Ms Fielding is not represented. She has approached five lawyers. One of the them guided her towards the tort of intentional infliction of harm. I mention that because while it is reasonably clear from Ms Fielding’s concise statement of claim that her action for damages is based on this tort, it is not completely clear that the tort lies at the heart of her three causes of action.

[6] The following matters are pleaded. When Ms Fielding met Mr McIntyre in late January 2016, she was still grieving the loss of her mother who died in

1 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267; Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

October 2015. She had been referred to a mental health professional for assistance and was prescribed antidepressants to help her deal with her grief. Ms Fielding pleads she was referred to a psychologist although during the hearing Ms Fielding clarified that her doctor referred her for psychiatric help for her grief.

[7] Ms Fielding claims Mr McIntyre was aware of her pre-existing vulnerability and that he owed her a duty of care pursuant to which “he had an obligation to take responsible care to avoid causing [Ms Fielding] harm, where…

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 [2020] NZHC 2232
Case: [2020] NZHC 2232
Decision Date: 28 August 2020

CaseChat Overview and Summary

In Fielding v McIntyre, the plaintiff, Alisohn Fielding, sought damages from the defendant, Andrew McIntyre, alleging that he intentionally caused her physical and psychological harm during their relationship. McIntyre applied to strike out the statement of claim on the grounds that it disclosed no reasonably arguable cause of action and was likely to cause significant prejudice and delay. The court had to determine whether the statement of claim disclosed a reasonably arguable cause of action and whether the application for security for costs should be granted.

The court found that the principles for a strike-out application required that pleaded facts be assumed to be true, the cause of action must be clearly untenable, and the jurisdiction should be exercised sparingly. The court accepted the facts as pleaded and examined whether they disclosed a reasonably arguable cause of action based on the tort of intentional infliction of harm. However, the court concluded that the conduct in question did not meet the legal requirements for the tort, as it was not directed towards the plaintiff for which there was no justification or reasonable excuse. Additionally, the necessary intention to cause physical harm or severe mental or emotional distress was not present.

As a result, the statement of claim disclosed no reasonably arguable cause of action and was struck out. The application for security for costs was not addressed as the primary application was successful. The defendant was entitled to costs.

Orders