Dunstan - [2025] NZSC 53

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 1/2025
[2025] NZSC 53

IN THE MATTER OF

TANYA FELICITY DUNSTAN
Applicant

Court:	Ellen France and Williams JJ
Counsel:	Applicant in person D J Perkins and O Kiel for Attorney-General as Intervener
Judgment:	14 May 2025

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B There is no order as to costs.

____________________________________________________________________

REASONS

Introduction

The applicant, Ms Dunstan, has in recent years brought a number of proceedings in a variety of courts. In a judgment delivered on 10 November 2023, the High Court found that six of those proceedings (the candidate proceedings) were totally without merit.[1] That threshold having been met, the High Court made a general order under s 166 of the Senior Courts Act 2016 (the Act), restraining Ms Dunstan from commencing or continuing civil proceedings in any of the senior courts and the District Court (including the Family Court) without leave of a judge of the High Court. The order is in place for a term of three years.
[1]ReDunstan [2023] NZHC 3176 (Brewer J).
Ms Dunstan appealed unsuccessfully to the Court of Appeal against the making of the s 166 order.[2] She has now filed an application for leave to appeal to this Court against the decision of the Court of Appeal. As was the case in the Court of Appeal, the Attorney-General was granted leave to intervene.[3]

Background

[2]ReDunstan [2024] NZCA 683 (Courtney, Mander and Osborne JJ) [CA judgment].

[3]ReDunstan [2025] NZSC 22 (Glazebrook, Ellen France and Williams JJ).

Section 166 of the Act makes provision for three kinds of civil restraint order—‍‍limited, extended and general. A general order, as imposed in this case, restrains a party from commencing or continuing any civil proceeding without leave, rather than just proceedings on particular or related matters. Section 167(3) sets out the grounds for making a general order, namely:
… if, in at least 2 proceedings about any matter in any court or tribunal, the Judge considers that the proceedings are or were totally without merit.
The High Court can make such an order, as it did here, on its own initiative.[4]
[4]Senior Courts Act 2016, s 169(3).
In dismissing Ms Dunstan’s appeal, the Court of Appeal said the approach to the making of a s 166 order entails two-steps, first, whether there are at least two proceedings that are totally without merit and, second, whether to exercise the discretion to make an order. In this case, as we have said, the High Court found the candidate proceedings were totally without merit. The Court of Appeal concluded that the High Court was wrong to treat one of those six proceedings as totally without merit but considered that the threshold of two proceedings was “well-exceeded”.[5] In reaching this view, the Court of Appeal proceeded on the basis a proceeding was “totally without merit” if it was bound to fail.[6]
[5]CA judgment,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunstan

Details

AGLC: Dunstan [2025] NZSC 53
Case: [2025] NZSC 53
Decision Date: 14 May 2025

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Tanya Felicity Dunstan, the applicant, sought leave to appeal against the decision of the Court of Appeal that dismissed her appeal from the High Court's order under section 166 of the Senior Courts Act 2016. The High Court had restrained Ms Dunstan from commencing or continuing civil proceedings in any of the senior courts and the District Court without leave of a judge of the High Court, due to the total lack of merit in six of her previous proceedings. The Court of Appeal upheld the High Court's decision, and Ms Dunstan now appeals to the Supreme Court. The Attorney-General was granted leave to intervene in the proceedings.

The central legal issues in this case were whether the Court of Appeal correctly applied the threshold for making a section 166 order and whether there were any procedural errors or miscarriages of justice that warranted the Supreme Court's intervention. The proposed grounds of appeal included challenges to the substance of the Court of Appeal's judgment, allegations of procedural errors, jurisdictional issues, and claims of failure to recuse.

The Supreme Court dismissed the application for leave to appeal. The Court held that the Court of Appeal's decision was correct in finding that the threshold for making a section 166 order had been met, and there were no reasonable prospects of success on appeal. The Supreme Court found no miscarriage of justice or procedural errors that would warrant intervention. The Court also noted that Ms Dunstan had not requested an oral hearing before the High Court and appeared for herself in the Court of Appeal, mitigating any concerns about procedural fairness.

The Supreme Court dismissed the application for leave to appeal and made no order as to costs.

Orders