Dunstan v Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 65/2023
[2023] NZSC 109

BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	ATTORNEY-GENERAL First Respondent DISTRICT COURT AT MANUKAU Second Respondent JDN Third Respondent

Court:	Glazebrook, O’Regan and Kós JJ
Counsel:	Applicant in person D Jones for First Respondent No appearance for Second and Third Respondents
Judgment:	22 August 2023

JUDGMENT OF THE COURT

A.The application for recall of this Court’s judgment of 9 August 2023 (Dunstan v Attorney-General [2023] NZSC 100) is dismissed.
B.There is no order as to costs.

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REASONS

On 9 August 2023 we dismissed the applicant’s application for leave to appeal a decision of the Court of Appeal refusing extension of time to appeal against a judgment of the High Court dismissing judicial review of a decision of the District Court declining to authorise the commencement of five private prosecutions.[1]
[1]Dunstan v Attorney-General [2023] NZSC 100; DFT v Attorney-General [2023] NZCA 225; and Dunstan v The District Court at Manukau [2021] NZHC 311.
We held that none of the criteria for appeal provided in s 74(2) of the Senior Courts Act 2016 were made out because the proposed appeal turned on its particular facts, no question of general or public importance arose and nothing raised by Ms Dunstan gave rise to the appearance of a miscarriage of justice.
The applicant now applies for recall of this Court’s decision.
The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal.[2] It will only be recalled in exceptional circumstances.[3] A recall application cannot be used to relitigate the reasons for refusing leave.[4] Recall will be appropriate where some procedural or substantive error has occurred that would result in a miscarriage of justice.[5]
[2]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, as cited in Craig v Williams [2019] NZSC 60 at [10]. Exceptions are discussed in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; and Green Growth No 2 Ltd v Queen Elizabeth the Second National Trust [2018] NZSC 115 at [20].
[3]Wong v R [2011] NZCA 563 at [13]; and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [29].
[4]Nuku v District Court at Auckland [2018] NZSC 39 at [2].
[5]Uhrle, above n 3, at [27].
The applicant’s arguments on recall complain about the brevity of the Court’s reasoning. We record that s 77 of the Senior Courts Act 2016 provides that though reasons must be given for refusing leave, such reasons may be stated briefly and in general terms only.
The recall application seeks to relitigate points already raised on the original application. They were considered and rejected by this Court in refusing leave to appeal. Nothing now presented makes any cogent case that this is an appropriate case for leave.
Furthermore, nothing raised by the applicant meets the threshold for a recall application to be granted as set out at [4] above.

Result

The application for recall is dismissed.
There being no need to hear from the respondents, there is no order as to costs.

Solicitors:
Crown Law Office, Wellington for First Respondent

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Tanya Felicity Dunstan, the applicant, sought recall of the Court’s decision dismissing her application for leave to appeal a Court of Appeal decision, which in turn had dismissed her request to extend the time limit for appealing a High Court judgment. The Attorney-General was the first respondent, the District Court at Manukau was the second respondent, and JDN was the third respondent. The Court had to determine whether the recall application should be granted, given that it would only be appropriate if there were exceptional circumstances, such as a procedural or substantive error leading to a miscarriage of justice.

The Court examined the application for recall, noting that recall applications are not meant to relitigate reasons for refusal of leave, but rather to address specific procedural or substantive errors that would result in a miscarriage of justice. The applicant argued that the brevity of the Court’s reasoning was problematic. However, the Court clarified that section 77 of the Senior Courts Act 2016 allows for reasons to be given briefly and in general terms when refusing leave to appeal. The applicant’s arguments on recall were essentially a reiteration of points already considered and rejected by the Court in the original application. Thus, the applicant did not present a cogent case for recall, nor did she meet the threshold for such an application.

The Court dismissed the application for recall, finding that there were no exceptional circumstances warranting a recall of the judgment. Consequently, there was no order as to costs, as the respondents did not need to be heard. The decision underscored the principle that a judgment, once delivered, generally stands, and recall is an exceptional remedy reserved for cases where there is a clear procedural or substantive error leading to a miscarriage of justice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established