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…

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 [2024] NZHC 2399
Case: [2024] NZHC 2399
Decision Date: 26 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Ms Tanya Felicity Dunstan has applied for leave to commence legal proceedings against fifteen defendants, including police officers, corrections officers, and several lawyers. The application for leave is necessary because Ms Dunstan is subject to an order restraining her from initiating or continuing civil proceedings without explicit permission. This order was issued following a previous decision where Ms Dunstan's litigation was found to be without merit and conducted in a manner justifying a restraining order. The court was required to decide whether Ms Dunstan's proposed actions meet the criteria for granting leave under Section 166 of the Senior Courts Act 2016.

The court evaluated the merits and the potential conduct of the proposed proceeding. The first two causes of action regarding alleged breaches of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 and the New Zealand Bill of Rights Act 1990 were deemed unlikely to succeed. The court noted that any breach of the rules should be addressed by the Law Society and that breaches of the New Zealand Bill of Rights Act 1990 should not be levelled against solicitors. The third cause of action, which involved an alleged misrepresentation in court proceedings, raised several issues that were either incapable of determination or had already been adjudicated. The fourth cause of action, concerning Ms Dunstan's detention, was found to be meritless as it sought to relitigate issues already addressed in a previous judgment. Finally, the fifth cause of action, regarding Ms Dunstan's guilty plea, was dismissed as she had already acknowledged her offending in a sworn affidavit.

Based on the above findings, the court dismissed Ms Dunstan’s application for leave to commence proceedings. The decision underscored the importance of the discretionary nature of leave under Section 166 and the necessity for restraint in granting such leave, given Ms Dunstan's history of litigation deemed to be without merit. The court's judgment highlighted the relevance of previous findings and the futility of re-litigating settled matters.

Orders