Fehling v Appleby [2015] NZHC 1188 (29 May 2015)

High Court of New Zealand

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Fehling v Appleby [2015] NZHC 1188 (29 May 2015)

Last Updated: 4 June 2015

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV-2014-418-21 [2015] NZHC 1188

BETWEEN	FRIEDRICH JOACHIM FEHLING Appellant
AND	DOUGLAS JOHN APPLEBY Respondent

Hearing:	28 May 2015 (On the papers)
Appearances:	Appellant in person D M Lester as Amicus Curiae
Judgment:	29 May 2015

_{JUDGMENT OF NATION J}

Introduction

[1] This Judgment relates to Mr Fehling’s application for an order to provide a transcript of the hearing of his appeal to the High Court and for transferral of the High Court and Human Rights Review Tribunal (the Tribunal) files to the Court of Appeal.

[2] Mr Fehling claimed before the Tribunal that Mr Appleby was in breach of the Human Rights Act 1993 (the HRA) in earlier issuing a trespass notice prohibiting Mr Fehling from entering the grounds and facilities of the South Westland Area School, and in making certain comments to the Hokitika Guardian. Those comments related to earlier proceedings before the Tribunal between Mr Fehling and Mr Appleby.

[3] The Tribunal did not uphold Mr Fehling’s claim and dismissed his

_proceedings.¹

¹ Fehling v Appleby [2014] NZHRRT 24 at [50] [The Tribunal Decision].

[4] Mr Fehling appealed to the High Court. The appeal was heard in the High Court at Greymouth on 3 November 2014. In a judgment on 5 February 2015, Whata J dismissed the appeal.²

[5] Pursuant to s 124(1) HRA, Mr Fehling applied to the High Court for leave to appeal questions of law to the Court of Appeal. Mr Fehling raised, as questions of law, some 14 issues which he wished to argue before the Court of Appeal. Appended to the questions was what he categorised as “the preliminary Appeal-Court argumentation” for consideration. He indicated “an on-the-papers determination appears appropriate and expedient”.

[6] In a judgment of 6 March 2015, I declined Mr Fehling leave to appeal to the

Court of Appeal.

[7] The Court of Appeal accepted a notice of application for special leave to appeal to the Court of Appeal against the judgment of Whata J on 30 March 2015.

[8] At the same time as Mr Fehling lodged his application to the High Court for leave to appeal the judgment of Whata J, he included his application for an order to provide the transcript of the hearing of the appeal to the High Court and for transferral of the High Court and the Tribunal hearing to the Court of Appeal.

[9] Mr Fehling’s application, in relation to a transcript of the hearing of the appeal, was made pursuant to rule 20.14 of the High Court Rules. That rule empowers the High Court to make an order that a transcript be made of all or part of the evidence given at the hearing which is the subject of an appeal to the High Court. In this instance, that hearing was the hearing before the Tribunal.

[10] Whata J on 8 August 2014 directed that a copy of the record of the proceedings before that Tribunal be produced by the Tribunal. A copy of the notes of evidence taken before the Tribunal were made available to the High Court at Greymouth for consideration to the extent this was necessary when Whata J dealt

_{with Mr Fehling’s appeal.}

² Fehling v Appleby [2014] NZHC 75.

[11] The appeal before Whata J proceeded with the Court having before it Mr Fehling’s notice of appeal, the decision of the Tribunal of 9 June 2014 against which Mr Fehling was appealing and the transcript of evidence that was given before the Tribunal. Whata J, in the High Court, also received submissions from Mr Fehling and submissions from Mr Lester, who had been appointed as Amicus to assist the Court. No new evidence was presented at the hearing of the appeal.

[12] Rule 20.1 does not empower the High Court to order that a transcript be made of what was said by a party or by counsel during the hearing of an appeal by way of submission. Production of such a transcript was not necessary for me to deal with the application for leave to appeal to the Court of Appeal. Given that I declined leave to appeal to the Court of Appeal, no useful purpose would have been served by my requiring the Court to produce a transcript of what was said at the hearing of the appeal nor would there have been any useful purpose in ordering the transfer of the High Court and the Tribunal files to the Court of Appeal.

[13] I acknowledge that Mr Fehling has now filed an application for special leave to appeal the High Court judgment of Whata J and that application is before the Court of Appeal. Pursuant to the Court of Appeal Rules, Mr Fehling will be required to file with the Court of Appeal the original decision of the Tribunal, the judgment of Whata J of 5 February 2015 dismissing his appeal and my judgment of 6 March

2015.³ As Mr Fehling presumably has copies of that decision and those judgments,

there is no need, at this stage, for the High Court to transfer all the material it holds to the Court of Appeal.

[14] I also note that, if and when Mr Fehling does file the required documents with the Court of Appeal, he must comply with Rule 22 of the Court of Appeal (Civil) Rules 2005 which dictates that he “may not include in the case any document that is not relevant to the grounds to be argued on the application for leave”. The purpose of that rule would be defeated if the High Court were now to burden the Court of Appeal with all the documents it has on its file relating to Mr Fehling’s

_{earlier appeal.}

³ Court of Appeal (Civil) Rules 2005, Rule 18.

[15] I now accordingly decline Mr Fehling’s application for an order that the Court provide a transcript of his original appeal to the High Court and for the transfer of the High Court and Tribunal files to the Court of Appeal.