Fielding v McIntyre [2021] NZCA 582 (5 November 2021)

Last Updated: 9 November 2021

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.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] 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.
• [2] 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

• [3] 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.
• [4] 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 behaving as he chose in the privacy of his own home.

[30] It is also a stretch to say that the necessary intention to cause Ms Fielding physical harm or severe mental or emotional distress was present when Mr McIntyre had the very reasonable expectation of privacy in the confines of his own home. Ms Fielding does not say that he expected her to return. Indeed, her own explanation is that she only returned and entered his home because he seemed odd.

• [5] Ms Fielding did not have counsel in the High Court and her notice of appeal appears to have been prepared without legal assistance. In addition to criticisms of Mr McIntyre’s counsel, a significant focus of the notice is on evidential issues. Ms Fielding does not seem to have heeded the Judge’s advice that in the context of a strike-out application the Court is not able to resolve disputed facts.^[2] The Judge recorded that she resisted invitations by both sides to take her through the extensive affidavit evidence which they filed.

Steps in this Court

• [6] On 19 October 2020 Ms Fielding filed an application to dispense with the obligation to pay security for costs on her appeal. Then on 23 October 2020 she made an informal application under r 43(1B)(a) for an extension of time to comply with the r 43(1) requirements on the grounds that she had applied for legal aid and her application had yet to be determined. She advised that an initial grant of five hours had been approved for counsel to review the appeal.
• [7] Her application for an extension of time was premature because the three‑month period prescribed by r 43(1) would not expire until 21 December 2020. In a letter dated 20 November 2020 the Deputy Registrar advised that, although she was minded to grant the application, she would wait until closer to the 21 December 2020 deadline as a suspension could only be made on the basis of circumstances applying at that date. The Deputy Registrar further advised that she would put the security for costs application to one side until after the legal aid application had been determined and communicated to the Court and Mr McIntyre.
• [8] Ms Fielding engaged a Queen’s Counsel who provided a report on her claim. On 23 November 2020 the Legal Services Commissioner advised that Ms Fielding’s application for legal aid had been refused as her prospects of success on the appeal were not sufficient to justify a grant of aid. Ms Fielding advised the Deputy Registrar that legal aid had been declined but that she was considering filing an application for reconsideration.
• [9] On 16 December 2020 the Deputy Registrar wrote to the parties recording that she was not aware whether Ms Fielding was applying for a reconsideration of her legal aid application and hence whether r 43(1B)(a) applied. However the Deputy Registrar suspended the application of r 43 for one month pursuant to r 43(1B)(b) on the basis that Ms Fielding’s application to dispense with security for costs was yet to be determined.
• [10] Subsequently five further informal applications for suspension of time made by Ms Fielding on 22 January, 19 February, 16 March, 20 April and 24 May 2021 were granted.
• [11] On 30 March 2021 the Deputy Registrar declined Ms Fielding’s application for dispensation from security for costs but made an order reducing the security from $7,060 to $4,000 and directed that it be paid by 20 April 2021. She explained:

[24] I am satisfied Ms Fielding is impecunious. However, her legal aid application was declined on the basis that her appeal has insufficient prospects of success. Consequently, I do not consider dispensation can be justified. My own assessment is that the appeal is not hopeless, though its merits seem slight. I put it no higher than that a reasonable and solvent litigant might proceed with the appeal.

• [12] Ms Fielding sought a review of that decision by a Judge. On 31 May 2021 Clifford J declined the application for review concluding:^[3]

[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.

• [13] On 8 June 2021 Ms Fielding requested an extension of time within which to pay security for costs. In declining that application the Deputy Registrar stated:

[3] I do not consider an extension of time ought to be granted under r 35(10) to allow Ms Fielding to apply again for a deferral of the date by which security for costs must be paid. Ms Fielding already applied for a deferral, including on the same ground she raises today. As noted, that previous application has been determined, and upheld on review. Ms Fielding has already been given over six months’ extra time in which to pay security for costs. There are no new circumstances justifying either a fresh application for deferral or an extension of time to allow such a fresh application to be made.

(footnote omitted)

• [14] On 24 June 2021, the last day of the Deputy Registrar’s sixth suspension, Ms Fielding sent an email to the Court requesting an extension of one month pursuant to r 43(1B)(a) for the reason that she wished to apply for legal aid. The Deputy Registrar responded advising there was no basis for a further suspension under r 43(1B). She advised that Ms Fielding could either seek a review of the decision to decline the requested suspension or apply to the Court for an extension of time under r 43(2). Ms Fielding then filed the current application on 6 July 2021.

Analysis

• [15] Our review of the history of this matter demonstrates that there are several factors which weigh against granting the indulgence of a still further extension of time.
• [16] The first anniversary of the filing of Ms Fielding’s appeal has now passed, during which there has been ample opportunity for the preparation of the case on appeal for this matter. The appeal is from a decision striking out a statement of claim disclosing no reasonably arguable cause of action. The documents comprising the case on appeal would necessarily be confined. Contrary to the tenor of the notice of appeal, the case would not include evidence. The Judge correctly ruled that in the context of a strike-out application the Court is not able to resolve disputed facts. The Judge appropriately resisted invitations to traverse evidence. The same approach would be adopted by this Court on appeal.
• [17] Secondly, notwithstanding her unsuccessful review of the Deputy Registrar’s security for costs determination, Ms Fielding has not paid the reduced amount of $4,000. Consequently she is not entitled to apply for the allocation of a hearing date.^[4] Thus she is precluded at this time from complying with r 43(1).
• [18] Thirdly, this is a case where the prospects of success on appeal are remote. The issue is whether the statement of claim discloses a reasonably arguable cause of action. The High Court Judge rejected the proposition. Clifford J agreed that the strike-out decision was correct. We share that view. As the High Court Judge concluded:^[5]

[31] ... Even if Ms Fielding was able to prove that, at the outset, Mr McIntyre committed to not having sex with other women, disregarded her feelings about that, put her at risk medically and psychiatrically from doing so, and was aware that she was emotionally or psychiatrically “fragile”, the threshold of actual intention to cause illness or severe distress resulting in a recognisable illness is not made out. Recklessness is insufficient.

• [19] Ms Fielding has failed to demonstrate an intention to progress the preparation of the case on appeal and she is in default in complying with the direction that she pay security for costs. In these circumstances we do not consider that a still further extension of time should be granted, the effect of which would be to prolong the period in which Mr McIntyre is potentially exposed to this implausible claim.

Result

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

Solicitors:
Morrison Kent, Wellington for Respondent

---

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

^[2] At [12].

^[3] Fielding v McIntyre [2021] NZCA 217.

^[4] Court of Appeal (Civil) Rules 2005, r 37(2).

^[5] High Court judgment, above n 1.