Dunstan v Attorney-General

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 114/2022
[2023] NZSC 3

BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	AUCKLAND HIGH COURT First Respondent
AND	ATTORNEY-GENERAL Second Respondent
AND	NEW ZEALAND POLICE Third Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person M L Clarke-Parker for Respondents
Judgment:	17 February 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.
B The applicant must pay the respondents costs of $2,500.

____________________________________________________________________

REASONS

Introduction

Ms Dunstan applies for leave to appeal against the decision of the Court of Appeal in Dunstan v Auckland High Court.[1]

Background

[1]Dunstan v Auckland High Court [2022] NZCA 478 (Katz, Wylie and Palmer JJ) [CA judgment].

Ms Dunstan was arrested on 25 June 2019 for an alleged breach of a temporary protection order. The charge was subsequently withdrawn and Ms Dunstan filed a proceeding in the District Court alleging malicious prosecution in respect of her arrest. She unsuccessfully sought summary judgment and the matter proceeded to a full hearing.[2]
[2]Dunstan v Police [2021] NZDC 23770 (Judge Clark).
While the District Court proceedings were ongoing, Ms Dunstan filed a mirror proceeding in the High Court, also seeking summary judgment, against the New Zealand Police and the Attorney-General. This mirror proceeding was struck out by the High Court under r 5.35B of the High Court Rules 2016 on the basis that it was an abuse of process.[3]
[3]Dunstan v Attorney-General [2022] NZHC 674 (Gault J).
The Court of Appeal dismissed Ms Dunstan’s appeal against that decision, saying:[4]
… it is plainly an abuse of process for Ms Dunstan to seek to concurrently pursue malicious prosecution proceedings against the New Zealand Police and/or the Attorney-General, arising out of the same facts, in both the District Court and the High Court.

Our assessment

[4]CA judgment, above n 1, at [16].

The criteria for leave are not met.[5] The application must be dismissed on the basis that it is an abuse of process.

Result

[5]Senior Courts Act 2016, s 74(2).

The application for leave to appeal is dismissed.
The applicant must pay the respondents costs of $2,500.

Solicitors:
Meredith Connell, Auckland for Respondents

CaseChat Overview and Summary

In the case of Tanya Felicity Dunstan v Attorney-General, the applicant sought leave to appeal against the Court of Appeal’s decision, which dismissed her appeal against the High Court’s ruling that her concurrent proceedings in both the District Court and High Court were an abuse of process. The Court of Appeal's ruling was upheld by the Supreme Court, which dismissed the application for leave to appeal, finding it to be an abuse of process. The Court ordered the applicant to pay the respondents’ costs of $2,500.

The primary legal issue before the Court was whether the criteria for leave to appeal were met. The Court needed to determine if the applicant had satisfied the criteria for leave to appeal as outlined in the Senior Courts Act 2016. This involved assessing whether there was a significant question of law of general public importance, whether the decision of the Court of Appeal was wrong, or whether the Court of Appeal failed to appreciate the significance of some evidence or argument.

The Court found that the application did not meet the criteria for leave to appeal. The Court held that pursuing concurrent proceedings in both the District Court and High Court was an abuse of process, as it led to unnecessary duplication and potential prejudice to the respondents. The Court further found that the Court of Appeal’s decision was correct and that there was no significant question of law of general public importance. Consequently, the Court dismissed the application for leave to appeal and ordered the applicant to pay the respondents’ costs of $2,500.

In conclusion, the Supreme Court dismissed Tanya Felicity Dunstan's application for leave to appeal, finding it to be an abuse of process. The Court held that pursuing concurrent proceedings in both the District Court and High Court was not permissible and that the Court of Appeal’s decision was correct. The Court ordered the applicant to pay the respondents’ costs of $2,500.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established