Dunstan

[2024] NZHC 2399

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-1896

[2024] NZHC 2399

IN THE MATTER

of an application by TANYA FELICITY

DUNSTAN for leave to commence proceedings

Hearing:	On the papers
Counsel:	Self-represented applicant
Judgment:	26 August 2024

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 26 August 2024 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Copy to:            Applicant

RE DUNSTAN [2024] NZHC 2399 [26 August 2024]

Introduction

[1]    Ms Dunstan seeks leave under s 166 of the Senior Courts Act 2016 to commence  proceedings.  Her  application  was  referred  to  me  as  Duty  Judge.  Ms Dunstan requires leave because she is subject to an order restraining her from commencing or continuing civil proceedings without leave.1

[2]    In her proceeding, Ms Dunstan seeks to pursue causes of action against fifteen defendants,  being  Police  officers,  Corrections  officers,  and   several   lawyers. Ms Dunstan’s draft statement of claim identifies causes of action in tort concerning events  between 14 December 2018 and 3 May  2019.   On each  cause  of action   Ms Dunstan sets out what she alleges occurred, the basis on which she contends the defendants concerned acted unlawfully, and the forms of relief sought. Ms Dunstan has also filed an affidavit in support of her application.

First cause of action

[3]    In the first cause of action, Ms Dunstan alleges breaches  by  two  lawyers, Ms Emma Gibbs and Ms Christina Riddell, of rules of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (“rules”) and of s 27 of the  New Zealand Bill of Rights Act 1990 (“NZBORA”). Section 27 affirms the right to justice. Ms Dunstan alleges that on 14 December 2018 she filed urgent applications for a temporary protection order and under the Care of Children Act 2004 but the two lawyers concealed these from Judges by Ms Gibbs making an urgent application on 19 December 2018. Ms Dunstan contends the application filed by Ms Gibbs prevented her application(s) from being heard.

Second to fourth causes of action

[4]    By way of background to the second, third and fourth causes of action, in late-December 2018 Ms Dunstan was arrested on charges of contravening a protection order and one of abduction. Ms Dunstan appeared before a Justice of the Peace in the New Plymouth District Court on 29 December 2018. She was remanded in custody until 3 January 2019, when she was granted bail.

1      Re Dunstan [2023] NZHC 3176.

[5]    In her second cause of action, Ms Dunstan alleges a conspiracy to bring a false accusation against her, such being a crime pursuant to s 115 of the Crimes Act 1961.

[6]    Ms Dunstan’s third cause of action concerns the circumstances in which she was remanded in custody on 29 December 2018. Ms Dunstan alleges that a lawyer, Mr Paul Keegan, informed the Court that Ms Dunstan consented to a remand in custody for six days, when Ms Dunstan did not.

[7]    In her affidavit, Ms Dunstan states that Mr Keegan has advised her he has no recollection or record of the events alleged. The Court’s record of the appearance is annexed to Ms Dunstan’s affidavit. On that, the Justice of the Peace dealing with the matter has recorded that Mr Keegan was acting as the duty lawyer, that the police opposed bail, and that there was to be a remand in custody “by consent” to 3 January 2019.

[8]    Ms Dunstan alleges that what occurred was in breach of s 113 of the Crimes Act, and that Mr Keegan breached rr 13.2 and 13.13 of the rules. The effect of s 113 of the Crimes Act is to render fabrication of evidence by means other than perjury a criminal offence. Rule 13.2 requires a lawyer to respect the processes of the Court, and r 13.13 to protect their client from being convicted but to refrain from misleading the Court.

[9]    In her fourth cause of action, Ms Dunstan alleges that her right to justice under s 27 NZBORA was breached during the six day period between 29 December 2019 and 3 January 2019, when Ms Dunstan was remanded in custody. Ms Dunstan alleges that she was detained without a warrant for six days of solitary confinement and that this amounted to an act of torture.

Fifth cause of action

[10]   The fifth cause of action concerns the circumstances in which Ms Dunstan pleaded guilty to two charges, one of breaching a protection order and the other of breaching a parenting order. Ms Dunstan, represented by Ms Echo Hoanga, then sought a discharge without conviction on the two charges, which Judge Johns granted

on 3 May 2019. Ms Dunstan contends that she was not guilty and should not have been coerced into pleading guilty.

Leave

[11]   In a recent decision on another proceeding Ms Dunstan sought leave to commence, Grau J said as follows, and I adopt the same approach:2

[7]        The SCA does not itself provide a test for the grant of leave following an s 166 order. The flexible approach suggested by Campbell J in Dokad Trustees Ltd v Auckland Council can be applied:

Section 169 of the [SCA] does not stipulate any criteria for granting leave to commence a proposed proceeding. There is a broad discretion. A relevant consideration will be the apparent merit of the proposed proceeding. But that is not the sole consideration. The manner in which the proceeding is likely to be conducted will be relevant. Also relevant may be any connection between the proposed proceeding and the earlier proceedings that led to the s 166 order. There may be other relevant considerations. Section 169 is not prescriptive.

[8]        The burden is on the applicant to satisfy the Court that leave should be granted. The leave discretion should be exercised with “restraint”, given the s 166 order establishes that the applicant has repeatedly “engaged in litigation that was totally without merit and has conducted the litigation in a way justifying a restraining order”. The Judge’s determination is final.

Discussion

[12]I decline leave to commence this proceeding for the following reasons.

[13]   The first two causes of action have no prospect of success. Any alleged breach of the rules is a matter for the Law Society. Any alleged breach of NZBORA is not a matter to be levelled against solicitors.

[14]   Likewise the third cause of action. It raises several issues incapable of determination, such as whether the Justice of the Peace correctly recorded that the remand in custody was by consent; if so whether Ms Dunstan did consent; and if not whether there was any prospect of bail given the police opposition. There is no

2      Dunstan v Police [2024] NZHC 2165 (footnotes omitted).

prospect of running these matters to ground now, if indeed they have not already been run to ground.

[15]   The events Ms Dunstan seeks to litigate in her fourth cause of action are the subject of a judgment Downs J delivered in November 2023, following a two day hearing.3 This was a proceeding Ms Dunstan brought against the Chief Executive of the Department of Corrections.

[16]   Downs J found on the facts that Ms Dunstan was not in solitary confinement and that she had not established the other allegations she had made. Downs J said that as a result, no question of torture, or breach of statutory duty of any claim in tort or of consequential damage arose. I note also that the proposed proceeding with which Grau J was concerned appears to have been addressing similar matters.

[17]   Given Downs J’s findings of fact, there is no merit in the fourth cause of action. It seeks to relitigate issues already addressed. It is not saved because it is against individual Corrections officers rather than the Department of Corrections.

[18]   As to the fifth cause of action, Ms Dunstan swore or affirmed an affidavit in support of her successful application for discharge in which she acknowledged her offending. Aside from anything else, it is too late now to seek to resile from that admission.

Result

[19]I dismiss Ms Dunstan’s application for leave of 8 July 2024.

Peters J

3      Dunstan v Chief Executive of the Department of Corrections [2023] NZHC 3221.