Fehling v Appleby
| Jurisdiction | New Zealand |
| Judge | Whata J |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] NZHC 75 |
| Court | High Court |
| Date | 05 February 2015 |
| Docket Number | CIV 2014-418-000021 |
[2015] NZHC 75
IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY
CIV 2014-418-000021
And
Appellant in Person
D M Lester — Amicus
Respondent in Person
JUDGMENT OF Whata J
Mr Appleby is the former chairman of South Westland Area School (SWAS). The School Board issued a trespass notice against Mr Fehling in relation to the school's grounds and facilities. Mr Fehling sought information about the reasons for the trespass notice. Mr Appleby refused to release the details of the persons who had sought the trespass notice. Mr Fehling successfully obtained a ruling from the Human Rights Review Tribunal (the Tribunal) under the Privacy Act 1993 (Privacy Act) that this information was improperly withheld and received an award of
$10,000. 1 The Hokitika Guardian later attributed the following comments among
others to Mr Appleby concerning the Privacy Act award:
“A man was trespassed from the school due to safety concerns. The safety of the staff and the children is paramount and comes first.”
“It's sad. The money has been taken from our kids, it's about $150 per pupil at our school all up.”
Mr Fehling is very unhappy about the trespass notice and Mr Appleby's reported comments, and believes that he was unlawfully subject to prohibited discrimination based on his German ancestry. Mr Fehling also believes that Mr Appleby treated him less favourably than others because he made use of his rights under the Privacy Act.
He filed a second claim with the Tribunal under the Human Rights Act 1993 ( HRA) alleging that the trespass notice and the comments to the Hokitika Guardian breached his right to be free from unlawful discrimination and/or from discriminatory victimisation.
The Tribunal did not uphold Mr Fehling's claims. 2 In short, the Tribunal was not satisfied that there was sufficient evidence to show that the trespass notice or the comments were based on a prohibited ground or that he was subject to actionable victimisation under the HRA.
Mr Fehling appeals to this Court on questions of law only. He adopts various findings of fact made by the Tribunal, but claims that the Tribunal has not applied the correct legal threshold tests or principles for the purpose of assessing whether he was subject to prohibited discrimination or victimised. He identifies two primary and 11 supplementary questions of law. The full list is noted at [31]. He was not represented by Counsel and as I will elaborate, some of the questions are not appropriate to address in this forum at this time.
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:
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(a) Whether (alleged) Privacy Act victimisation is actionable per se under s 66 of the HRA;
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(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
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(c) Whether the Tribunal required evidence of specific intent to discriminate on a prohibited ground;
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(d) Whether the Tribunal erred by requiring evidence of a link between a prohibited ground and Mr Appleby's conduct; and
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(e) Whether the Tribunal's conclusions were reasonable given the findings of fact.
As these issues do not exactly align with the issues stated in Mr Fehling's appeal and supporting submissions, I propose to frame my judgment in the following way:
(a) Set out the background to Mr Fehling's complaint;
(b) Identify the grounds of appeal, and briefly address those grounds which have no prospect of success or do not require resolution; and
(c) Address the five primary issues.
On 5 January 2009 the SWAS issued a trespass notice on Mr Fehling and maintained that trespass notice for a period of two years. Mr Fehling did not consider there were good grounds for the trespass notice and sought the names of the individuals who had complained about him. The school declined to provide that information and, on 6 July 2012, Mr Fehling was successful before the Tribunal in obtaining a ruling that there were no proper grounds for withholding information and that the refusal was an interference with Mr Fehling's privacy (the privacy decision). 3 Damages of $10,000 were awarded to him.
The present proceedings are, as the Tribunal has noted, a sequel to that decision. In his submissions Mr Fehling alleged before that Tribunal that:
[2.1] The trespass notice denied him access to the grounds of SWAS, particularly those parts to which the community have access outside school hours. One or more of the prohibited grounds of discrimination were among the reasons for the issuing of the trespass notice.
[2.2] When Mr Appleby, then Chairperson of the SWAS Board of Trustees, was interviewed by the Hokitika Guardian about the Tribunal's decision under the Privacy Act, he made comments which had the effect of treating Mr Fehling differently on one or more of the prohibited grounds of discrimination or which amounted to victimisation.
The full background to Mr Fehling's central grievance is aptly summarised in the Tribunal's privacy decision and was also adopted by the Tribunal in the present proceedings. The summary is adopted here, there being no challenge to it:
[13] It is not practicable to recite at length the findings of fact made by the Tribunal in the decision delivered on 6 July 2012 and which in the present proceedings is Exhibit 4 The following is a summary only of the key findings:
[13.1] Mr Fehling, born in Germany, is an electric engineer by training but has chosen to live a simple life in Nature. He has a particular attachment to Hari Hari where he has lived for approximately twenty years. He speaks English fluently, though with a marked accent. He is also at times intensely intellectual. These factors aid an understanding of why he is regarded as an “outsider” by some in Hari Hari. [Decision [18]]
[13.2] Mr Fehling is an environmentalist. He includes in his environment “everything”, that is not just the “green” environment but also the human environment which includes philosophy, rights, the Bill of Rights and the respect of rights by both government and citizens. [Decision [19]]
[13.3] From an early point following his arrival in Hari Hari Mr Fehling has known Mr Jim Costello, a senior teacher at the School. At the relevant time he (Mr Costello) lived on the School grounds with his wife in a house provided by the School. Mr Fehling and Mr Costello have become long term friends, Mr Fehling visiting Mr Costello and his wife often. Over the years Mr Fehling has been given permission by Mr Costello to stay on the grounds of the house. Since about 2005
Mr Fehling has travelled about and lived in a van which while in Mr Costello's ownership, was apparently purchased by Mr Fehling. [Decision [20]][13.4] It is common knowledge in Hari Hari that Mr Fehling is a friend of Mr Costello and that, from time to time, Mr Fehling stays on the Costello property in his van. [Decision [21]]
[13.5] It would seem that not all in Hari Hari have been as appreciative or welcoming of Mr Fehling as Mr Costello. The Tribunal was told of various incidents in which Mr Fehling says he was subjected to harassment by reason only of the fact that he is seen as “different”. These incidents include the nighttime smashing of the windows of his van; minor assaults and an occasion when his campsite was invaded by a motor vehicle doing “doughnuts” and other loss of traction manoeuvres to frighten him. Mr Fehling talked about encountering general hostility in the community which he explained in the following terms:
I come from a different culture and background, have a different sense of freedom and there are a few people who cannot accept this.
[Decision [22]]
[13.6] In the two years immediately prior to January 2009 Mr Fehling had been living in Reefton but in December 2008 he returned to Hari Hari. On his return, and with the permission of Mr Costello, Mr Fehling parked his van on the Costello property adjacent to the two metre high corrugated steel fence. It is not possible from this position to see into the School swimming pool given the two metre high fence and the fact that the pool itself is enclosed. [Decision [25]]
[13.7] On the evening of 4 January 2009, when Mr Fehling was alone in his van, a woman and her two adult sons entered the Costello property. All three persons were known to Mr Fehling from previous incidents. He says that they arrived with the apparent intention of provoking a reaction from him, most likely a violent reaction. However, Mr Fehling did not retaliate. He described himself as against violence and as a person who resolves disputes with brains not brawn. He said that he was a conscientious objector when living in the Federal Republic of Germany and has proved on several occasions that he is not violent. He asked the three persons to leave but they refused to do so. They demanded to know if he had permission to be on the Costello property. When the three uninvited persons eventually realised that they would not be able to provoke Mr Fehling they left, but their parting comment was to the effect that something else would be happening. [Decision [27]]
[13.8] The next day, 5 January 2009, two police officers arrived on the Costello property and served Mr Fehling with a trespass notice in the following terms:
To: Fritz Fehling Of: No fixed abode Dear Mr Fehling
NOTICE UNDER SECTION 4(1)(2) & (4) TRESPASS ACT
In accordance with the above Act and Section you are hereby warned to stay off the place known as: Hari Hari Area School + James Costello's house and occupied by Jenny Adamson + staff + James Costello.
You...
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