Fehling v Appleby [2015] NZHC 388 (6 March 2015)

Last Updated: 9 March 2015

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CIV 2014-418-000021 [2015] NZHC 388

BETWEEN	FRIEDRICH JOACHIM FEHLING Appellant
AND	DOUGLAS JOHN APPLEBY Respondent

Hearing:	6 March 2015 (On the papers)
Appearances:	Appellant in person D M Lester as Amicus Curiae
Judgment:	6 March 2015

_{JUDGMENT OF NATION J}

Introduction

[1] Mr Fehling claimed before the Human Rights Review Tribunal (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.

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

proceedings.¹

[3] Mr Fehling appealed to the High Court. In a judgment on 5 February 2015, Whata J dismissed the appeal.² Pursuant to s 124(1) HRA, Mr Fehling has 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”.

Representation and Jurisdiction

[4] Throughout this chain of appeals, Mr Fehling has been a self-represented litigant. He acted for himself on the High Court appeal and has personally filed the application for leave to appeal with the supporting documents.

[5] Mr Appleby was represented by his son on the hearing of the substantive appeal to the High Court. He has filed no documents in opposition to the application for leave to appeal. Despite this lack of opposition from Mr Appleby, Mr Fehling can appeal only with the leave of the High Court. If such leave is refused then an appeal can be brought only with the special leave of the Court of Appeal.

Test for second appeal to Court of Appeal

[6] Pursuant to s 124 HRA:

(1) Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings ...

[7] Pursuant to s 124(2):

... the High Court may grant leave accordingly if in the opinion of that court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[8] In the interests of protecting the finality of litigation and preventing delay and further expense, the threshold for granting leave to a second appeal is high. The purpose of a second appeal is not the general correction of error but the clarification and development of the law.³ The two-pronged test requires the following:⁴

i

under s 67 of the Judicature Act 1908, the phrasing of s 124(2) of the HRA has been held to echo the general test for applications for leave to appeal.⁵ The Court of Appeal’s bipartite test therefore applies to applications under s 124(1) HRA.

The High Court decision

[10] On his appeal to the High Court, Mr Fehling posed some 13 questions of law.

These are recorded at paragraph [31] of Whata J’s judgment.

[11] In his judgment Whata J decided there were five key issues for him to resolve. These are referred to at paragraph [6] of his judgment:

[6] Nevertheless, with the benefit of Mr Fehling’s helpful oral submissions and with the assistance of Mr Lester (amicus), I consider that there are five key issues for me to resolve, namely:

(a) Whether (alleged) Privacy Act victimisation is actionable per se under s 66 of the HRA;

(b) Whether there must be evidence of a specific intention to discriminate on a prohibited ground in order to establish an actionable claim under s 42 and/or s 65 the HRA; and if so

(c) Whether the Tribunal required evidence of specific intent to discriminate on a prohibited ground;

(d) Whether the Tribunal erred by requiring evidence of a link

_{between a prohibited ground and Mr Appleby’s conduct; and}

3. Waller v Hider [1997] NZCA 221; [1998] 1 NZLR 412 (CA) at 413, endorsed in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd [2007] NZCA 355, [2008] 2 NZLR 591 (CA) at [33].
4. Waller v Hider, above n 3, at 413; Snee v Snee [1999] NZCA 252; [2000] NZFLR 120, (1999) 13 PRNZ 609 (CA) at 612; Cuff v Broadlands Finance Ltd [1987] NZCA 93; [1987] 2 NZLR 343 (CA) at 346-347, approving the formulation in Rutherfurd v Waite [1923] GLR 34.

⁵ Director of Human Rights Proceedings v Catholic Church for New Zealand HC Auckland

CIV-2006-404-6162, 14 April 2008 at [9].

(e) Whether the Tribunal’s conclusions were reasonable given the findings of fact.

[12] In relation to the issues as he articulated them, the Judge recorded his conclusions as follows:

[89] I find that:

(a) Privacy Act victimisation per se is not actionable pursuant to s 66 of the HRA;

(b) There is no requirement for evidence of a specific intention to discriminate on a prohibited ground in order to establish an actionable claim under s 42 and/or s 65 the HRA;

(c) The Tribunal did not require evidence of specific intent to discriminate on a prohibited ground;

(d) The Tribunal did not err by requiring evidence of a link between a prohibited ground and Mr Appleby’s conduct; and

(e) The Tribunal’s conclusions were reasonable notwithstanding the finding of prohibited community hostility and or the absence of a good reason for the trespass notice and the comments.

[13] On that basis he dismissed the appeal.

The applicant’s submissions

Issue 1 – natural justice

[14] Mr Fehling’s proposed questions of law begin with:

Paramount Constitutional Question of Law (Natural-Justice definition)

[1] Should the High Court have started precedence case law under the HRA by defining/interpreting principles of “Natural Justice” per SS.6,27(1) Bill of Rights Act 1990 BORA and S.105(1,2(a)) Human Rights Act 1993

HRA according to article 2.1 of the Universal Democracy Constitution, in

order to reduce the monarch’s courts’ totalitarian at-will discriminatory

discretion ...

[15] He refers to the same question again as 3.13 of his proposed questions of law.

[16] This was the way Mr Fehling framed a claimed error of law by the Tribunal in question 13 of his main questions of law on appeal to the High Court. Whata J refused to answer this question, stating:⁶

... Mr Fehling’s self proclaimed universal democracy constitution, while thought provoking, has no legal or constitutional status and cannot provide a formal reference point for interpretation of the HRA.

[17] Section 6 New Zealand Bill of Rights Act 1990 (NZBORA) states:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

[18] Read in conjunction with s 27(1) NZBORA, s 105(2) of the HRA requires the Tribunal to act in accordance with the principles of natural justice when exercising its powers and functions. Section 105(1) requires the Tribunal to act according to the substantial merits of the case, without regard to technicalities.

[19] In considering the issues raised by Mr Fehling’s appeal, Whata J did not have to be concerned with any conflict between the provisions of the NZBORA and the relevant provisions of the HRA under which Mr Fehling had brought his original claim against Mr Appleby. In his judgment, Whata J had to determine what had to be proved in order to have an actionable claim pursuant to s 66 of the HRA and whether the Tribunal’s conclusions in that regard were reasonable. Whata J was right to proceed on the basis that Mr Fehling’s Universal Democracy Constitution was a private document not affecting the rights or obligations of any other party.

[20] Accordingly, Mr Fehling’s proposed “paramount constitutional question of law” does not arise out of the judgment which he wishes to appeal. It is also not a question that ought to be submitted to the Court of Appeal by reason of its general or public importance or for any other reason.

Issue 2 – NZBORA interpretation

[21] Mr Fehling then seeks to appeal in relation to what he styles as:

Priority Constitutional Question of Law (BORA interpretation direction).

[2] Have the interpretations of S.27(1) constitutional Bill of Rights Act

1990 BORA (Natural Justice) and SS.65,66 Human Rights Act 1993 HRA (indirect discrimination, victimization) to be in line with S.6 BORA?

_{Related Subquestion of law}

Is the constitutional BORA case law [1992] 3NZLR 260 CA Court of Appeal a valid case law or mere window-dressing for royal-fascistic might-is-right?

[22] Section 27(1) NZBORA declares that every person has the right to the observance of the principles of natural justice by any Tribunal which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

[23] Sections 65 and 66 set out specific circumstances of discrimination where conduct will be unlawful and in contravention of part 2 of the HRA. These include indirect discrimination and victimisation, where someone treats another person unfavourably because they have exercised their rights under the HRA or because of a disclosure under the Protected Disclosures Act 2000.

[24] The Tribunal decided that for Mr Fehling to establish there had been unlawful conduct on the part of Mr Appleby, Mr Fehling had to show there was a connection between Mr Appleby’s conduct and a breach of the HRA rather than a breach of the Privacy Act 1993. The High Court upheld that decision.⁷ Whata J found that Privacy Act victimisation was not actionable pursuant to s 66 of the HRA.

[25] Mr Fehling wishes to challenge that conclusion through two proposed questions:

[3.1] Does S.66(1(v)) Human Rights Act HRA (victimisation threat under reference to HRA) allow the courts (incl. the Tribunal/High Court) to invalidate it for Privacy-Act-S.89-proceedings-related (and thus with HRA part-4 reference) prima-facie-proven victimisation ?

[3.5] Do proceedings under the Privacy Act’s information provisions preclude or disable proceedings under the HRA’s anti-discrimination provisions that are brought as a consequence of the resulting emerging information ?

[26] Mr Fehling’s proposed questions of law as set out in [3.1] and [3.5] do arise out of the High Court judgment but in my view they are not capable of bona fide and serious argument, nor do they involve some interest, public or private, of sufficient importance to justify further pursuit of litigation or the time and resources the Court of Appeal would have to commit to disposing of the appeal. The conclusion reached by Whata J was based on the plain and ordinary meaning of the relevant provisions of the HRA as well as the scheme and purpose of part 2 of the HRA. It was also consistent with the provisions of the Privacy Act.

Issue 3 – further questions

[27] There are a number of proposed further questions which do not arise out of the High Court judgment because Whata J expressly refused to deal with them. These proposed questions as framed by Mr Fehling include:

[3.3] Does S.4(1,2) Trespass Act 1980 invalidate discriminatory offences

& unlawful acts (refusal to public-places access) per SS.42,134 HRA?

...

[3.7] Should SS.76,232 Insolvency Act limit or otherwise influence the jurisdiction of the Tibunal (sic) per SS.92I (remedies), 95 (interim order),

121 (enforcement), 134/ 42 (offence, unlawful act) HRA, [added: SS.89,92B(4),92T (enforcement of decision-substituting settlement)] ?

[3.8] Does Schedule 6, S.4(a) Education Act (defendant not liable if he acted in “good faith” in school-board function) overrule the “good-reason” and offence/ unlawful-act provisions per SS.65,42,134 HRA?

[28] Whata J held:⁸

Questions [3], [7], [8] do not give rise to an appealable error because the subject matter of the questions was resolved by the Tribunal in favour of Mr Fehling. In short, they concern prehearing challenges to the jurisdiction of the Tribunal to hear or grant relief which were rejected by the Tribunal.

[29] Because the issues involved in these questions were resolved by the Tribunal in favour of Mr Fehling and because Whata J did not deal with them any further in his judgment there is no public or private interest in having the issues raised by those questions considered by the Court of Appeal.

[30] The same can be said of Mr Fehling’s proposed question 3.6.

[3.6] Should proceedings of offences per SS.42,134 HRA aim to maximise the Bill of Rights’ Natural-Justice provision S.27(1) and minimise punishment of innocent persons associated with an organisation, by preferably naming specific executive(s)/ official(s) of such organisations as direct defendant(s) to alleged personal wrongdoings, instead of using Companies-Act practice as screen?

[31] This same question was raised by Mr Fehling on his application to the High Court. Whata J did not have to deal with it because in the proceedings before the Tribunal and on the appeal, Mr Appleby had been named as the other party. The question ought not to be considered by the Court of Appeal because Whata J said nothing relating to the question and it was irrelevant to the issues which both the Tribunal and the High Court had to consider in resolving the proceedings before them.

[32] Mr Fehling’s proposed questions of law include the following further questions which Whata J refused to consider because his response to the questions posed would not assist him in deciding whether the Tribunal’s decision on the claims made by Mr Fehling should be overturned.

[3.10] Has the Tribunal concurrently with S.42 (unlawful act) jurisdiction about the non-convictable offence per S.134 HRA, instead of invalidating this statutory section by requiring a double-jeopardy repetition of the hearing in the District Court ?

[3.11] Should the Tribunal via its decision have notified Parlament [sic] that the requirement of the Attorney-General’s agreement before any judicial hearing per S.135 HRA for an offence prosecution per S.134 contravenes the general law practice and undermines this democracy-protecting HRA per S.20L {by enabling protection of fascistic mates against lawful prosecutions for criminal discrimination offences; This political interference in judicial matters per S.135 contravenes SS.4,5,19 Bill of Rights by not being demonstrably justifiable in a free & democratic society, and should have led the grossly incompetent Attorney-General to inform Parlament [sic] per S.7

Bill of Rights} ?

[3.12] Should the Tribunal have referred above questions of law to the High Court per S.122 (1,1A) (referral of questions of law to High Court), because the Tribunal’s previous unlawful case examples obviously disabled it to judge lawfully the above questions of law ?

[33] The only conclusion which Whata J reached in respect of those questions was that their resolution would not assist in his deciding whether the Tribunal’s decision

should be overturned as sought by Mr Fehling. This conclusion is not capable of bona fide and serious argument. Because a further consideration of the issues raised in these questions would not have affected the outcome on the appeal, the conclusion Whata J reached in regard to those questions was not of public or private interest of sufficient importance to justify an appeal on those questions to the Court of Appeal.

[34] There are a series of questions through which Mr Fehling wants to challenge Whata J’s decision regarding actionable claims under ss 42, 65 and 66 of the HRA. Whata J concluded that for Mr Appleby’s conduct to be actionable, Mr Fehling had to establish the conduct was discriminatory in the sense that it was prohibited under

the HRA.⁹ Hence, the following proposed questions:

[3.2] Does S.65 (indirect discrimination) mention the unlawfully discriminating effect through a not apparently unlawful conduct lacking “good reason”, instead of any specific intent ?

Further HRA Questions of Law (Questions HA[3-13])

[3.4] Does S.65 HRA (indirect discrimination) require the offender/ discrimination to have stated directly the discriminatory grounds for his act(s) in order to become statutorily valid ?

[3.9] Does the continued issuing of a 2-year trespass notice preventing access to public facilities for 2 years without “good reason” per S.65 fulfill offence/ unlawful-act provisions per SS.65,42,134 ?

[35] As with the other questions, Mr Fehling had raised these as errors of law on his appeal to the High Court.

[36] Mr Fehling’s substantive complaint against Mr Appleby was that Mr Appleby was chairperson of the South Westland Area School Board when it issued and maintained a trespass notice against Mr Fehling which denied him access to the school grounds for two years. Mr Fehling also complained that Mr Appleby had later justified the Board’s issuing of the trespass notice and the withholding of private information from Mr Fehling to the Hokitika Guardian.

[37] Mr Appleby claimed before the Tribunal that he had supported the issuing of the trespass notice and had made the comments complained of to the

⁹ At [83]-[85].

Hokitika Guardian because of the school caretaker’s fear of Mr Fehling. The Tribunal found there was “insufficient evidence to justify a finding that one of the prohibited grounds of discrimination was behind Mr Appleby’s authorisation of the trespass notice.”¹⁰ The Tribunal also found that the views which Mr Appleby had conveyed to the Hokitika Guardian arose out of his resentment at the way Mr Fehling had brought proceedings against the school under the Privacy Act for

breaches under that Act, and not because of resentment at the way Mr Fehling had pursued the upholding of his rights under the HRA.¹¹ Whata J held the conclusions which the Tribunal reached in this regard were reasonable.¹²

[38] The decisions which both the Tribunal and the High Court reached in this regard involved determinations as to questions of fact and not questions of law. On that basis alone this Court ought not to grant leave to pursue those issues before the Court of Appeal. To the extent it might be argued the decisions of the Tribunal and judgment of the High Court involved decisions as to mixed questions of law and fact, the Court’s determination was particular to these parties on the specific facts of this case as established by the evidence adduced before the Tribunal and referred to in the High Court. The High Court’s determination on those issues thus does not raise issues of general or public importance so as to justify submission of the issues to the Court of Appeal. There is no other reason for those issues to be submitted to the Court of Appeal for their decision.

[39] Accordingly, the Court declines the appellant leave to appeal the judgment of the High Court of 5 February 2015 to the Court of Appeal.

¹⁰ _{The Tribunal Decision, above n 1, at [39].}

¹¹ _{At [47].}

¹² Fehling v Appleby, above n 2, at [86]-[87].