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Fielding v McIntyre [2021] NZCA 217 (31 May 2021)

Last Updated: 8 June 2021

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

[1] 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.
[2] This is an application by Ms Fielding to review that decision.
[3] 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)

[4] 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]
[5] 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 psychologically vulnerable, due to the recent loss of her mother.^[5] Moreover, Ms Fielding says, she made it clear to Mr McIntyre that she would not tolerate him engaging in sexual conduct with other women whilst he was in a relationship with her. When she found out that was what he was doing, the shock caused to her constituted a wilful infringement of her right to personal safety.^[6]
[6] Ms Fielding relies on the tort recognised in the old case of Wilkinson v Downton,^[7] now recently reconsidered by the United Kingdom Supreme Court in Rhodes v OPO.^[8] The tort involves three elements: a conduct element, a mental element and a consequence element.^[9] The conduct element requires words or conduct directed towards the plaintiff for which there is no reasonable excuse.^[10] The mental element involves an intention to cause severe distress which in fact results in physical harm or recognised psychiatric illness.^[11]
[7] In the High Court, Clark J was satisfied that, taking the pleaded facts to be true,^[12] Ms Fielding’s statement of claim disclosed no reasonably arguable cause of action.^[13] In particular, those pleaded facts did not provide the basis for a finding that Mr McIntyre’s actions or conduct were directed towards Ms Fielding, nor were they actions for which there was no justification or reasonable excuse.^[14] Nor, finally, could they found a finding of an intent to cause distress to Ms Fielding.^[15] As the Judge explained, Ms Fielding had found out about Mr McIntyre’s actions by entering his house and discovering him having sex.^[16]
[8] The Deputy Registrar accepted that Ms Fielding was impecunious, and Mr McIntyre does not now challenge this.
[9] The Deputy Registrar reduced security on the basis that, whilst she was unable to conclude a solvent appellant would reasonably wish to prosecute these matters, she thought the conclusion that such a person “might” do so was available and that, accepting Ms Fielding’s distress as genuine, the benefit to her of a successful appeal against the strike-out could outweigh the costs.
[10] In my view, the conclusion Clark J reached on the strike out application, namely that the pleadings disclosed no reasonably arguable cause of action, was correct. On that basis it is in my view difficult to avoid the conclusion that this is not an appeal which a reasonable and solvent litigant would pursue. Mr McIntyre accepts the Deputy Registrar’s decision reducing security. In my view, that decision is one favourable to Ms Fielding and not one which, on her application, discloses any reviewable error.