Dunstan v Attorney-General - [2022] NZSC 111

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B-11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 37/2022
[2022] NZSC 111

BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Glazebrook, O’Regan and Ellen France JJ
Counsel:	Applicant in person P J Gunn for Respondent
Judgment:	21 September 2022

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS

Background

Direction of Goddard J

Ms Dunstan has filed an appeal in the Court of Appeal[1] against a decision of Jagose J striking out an application for judicial review relating to a direction of a District Court Judge of 9 July 2021 that an application to commence a private prosecution be rejected.[2]
[1]Dunstan v Auckland High Court CA114/2022.
[2]Dunstan v Auckland District Court [2022] NZHC 417 (Jagose J).
On 12 April 2022, Ms Dunstan applied for security for costs to be dispensed with. On 20 April 2022, Goddard J made the following direction:
The respondents are not required to participate in this appeal. They may choose to do so if they wish, by filing a notice of appearance.
Ms Dunstan seeks leave to appeal to this Court against the direction of Goddard J.
We note that no respondent filed a notice of appearance and the Deputy‑Registrar made an order dispending with security for costs.

Refusal to order transcript

Ms Dunstan filed in the Court of Appeal an application for leave to appeal against a decision of the High Court,[3] which dismissed Ms Dunstan’s appeal against a decision of the Family Court.[4]
[3]Dunstan v Neill [2021] NZHC 691 (Powell J).
[4]Neill v Dunstan [2020] NZFC 7185 (Judge Adams).
As part of Ms Dunstan’s application for leave to appeal, she requested a transcript of the High Court hearing which Goddard J refused.[5] Goddard J said that Ms Dunstan had not identified any sufficient reason to require a transcript to be prepared in advance of the Court considering the leave application. He said that, if leave were granted, the issue of a transcript could be revisited if there was a live issue as to what happened at the hearing.
[5]Dunstan v Neill CA248/2021, 17 June 2021 (Minute No 4) (Goddard J).
The application for leave to appeal was subsequently dismissed by the Court of Appeal.[6]
[6]D (CA248/2021) v N [2021] NZCA 360 (French and Courtney JJ).
We note that Ms Dunstan’s application for the transcript had been dealt with in the High Court in Dunstan v Neill (No 2), where Powell J had dismissed the application.[7] It does not appear as though Ms Dunstan applied for leave to appeal against that decision.

Submissions

[7]Dunstan v Neill (No 2) [2021] NZHC 891 (Powell J) at [7].

Ms Dunstan says…

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 v Attorney-General

Details

AGLC: Dunstan v Attorney-General [2022] NZSC 111
Case: [2022] NZSC 111
Decision Date: 21 September 2022

CaseChat Overview and Summary

In Dunstan v Attorney-General, the applicant, Tanya Felicity Dunstan, sought leave to appeal to the Supreme Court of New Zealand against a decision of Goddard J, and certain other decisions related to proceedings involving her children. The applicant argued that the direction of Goddard J that the respondents were not required to participate in the appeal against Jagose J’s decision was an unjustified interference in the proceedings and suggested predetermination. She also claimed that the refusal of a transcript of the High Court hearing amounted to a breach of a duty of candour. The Attorney-General submitted that Ms Dunstan’s submissions did not comply with the requirements of r 20(2) of the Supreme Court Rules 2004 and did not identify the decision appealed against and the reason leave should be given. It was also submitted that there is no evidential foundation for the allegation that the High Court’s refusal to order a transcript amounted to the intentional concealing of evidence.

The Supreme Court found that the criteria for leave were not met. The proposed appeal related to the particular circumstances of Ms Dunstan’s case and there was no matter of general or public importance. It was also difficult to see how Ms Dunstan had been disadvantaged by Goddard J’s direction and there could thus be no risk of a miscarriage of justice. There was no basis for the allegations of pre-determination. The Court also found that it had no jurisdiction to hear and determine an appeal where the decision was a refusal to give leave to appeal to the Court of Appeal. In any event, the Court found that there was no matter of general or public importance and nothing Ms Dunstan had raised would suggest a miscarriage of justice.

The application for leave to appeal was dismissed. The applicant must pay the respondent costs of $500.

Orders