Dunstan v Attorney-General

[2024] NZHC 1694

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-443-013

[2024] NZHC 1694

BETWEEN

TANYA DUNSTAN

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:	On the papers
Appearances:	Applicant in person
Judgment:	25 June 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1]    On 17 June 2024 I declined an application by Ms Dunstan (the applicant) for various orders and directions relating to a hearing set down for 19 July 2024.1  On   20 June 2024, the applicant filed  three  documents:  one  was  described  as  a  Notice of Appeal, another was described as “Leave to accept the application for an appeal of Justice Churchman’s misconduct and breaches of natural justice in his minutes under CIV 2024-443-13 issued 17 and 18 June 2024 under High Court Rules 2016,  R   15.1   sought   under   R166   SCA   2016   by   Justice   Brewer   dated   10 November 2023” and the third was  described  as  Affidavit  in  support  of  Notice of Appeal.

1      Dunstan v Attorney-General [2024] NZHC 1586.

DUNSTAN v ATTORNEY-GENERAL [2024] NZHC 1694 [25 June 2024]

Grounds of appeal and submissions

[2]    The documents are difficult to follow and in part, incoherent, but to the extent that sense can be made of them, it seems that the applicant is unhappy with my interlocutory decision of 17 June 2024 and seeks leave to appeal it. I will treat the documents as if they constitute a valid application for leave to appeal.

[3]    With  regard  to  leave,  the  applicant  refers  to  the   objectives   of   the High Court Rules to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application.2 She also states the public importance of the proceeding was noted by Grau J in her minute dated 7 March 2024, where she found this was the third time s 26(1) of the CPA had not been complied with regarding charging documents filed by the applicant.

The Law

[4]    Applications for leave to appeal interlocutory decisions to the Court of Appeal are governed by s 56(3) of the Senior Courts Act 2016. The courts have recognised that the following principles apply:3

(a)a high threshold exists;

(b)the applicant must identify an arguable error of law or fact;

(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;

(d)the significance or implications of such error either for the particular case or for the applicant or as a matter of precedent must warrant incurring further delay; and

2      High Court Rules 2016, r 1.2.

3      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]; and Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17].

(e)the ultimate question is whether the interests of justice are served by granting leave.

[5]    The courts will be reluctant to interfere with an interlocutory order relating to a matter of case management that does not effectively resolve the case or have a substantial effect on it.4

Analysis

[6]    The leave requirement for appealing against interlocutory decisions is a filtering mechanism intended to filter unmeritorious appeals that are not reasonably arguable.5 Such a mechanism recognises the need to balance the importance of limited judicial resources as against the fundamental requirement of access to justice. Whether the high threshold is met is determined by an assessment of the merits of the appeal and whether it raises an issue of appropriate significance.

[7]    The applicant has failed to identify an arguable error of law or fact. As discussed in my judgment dated 18 June 2024, the allegations around conflicts of interest have already been determined and rejected by the courts.6 The tailored discovery order sought concerned information that was irrelevant to the substantive proceeding. Costs in respect of the substantive hearing are best determined by the judge who presides over the substantive hearing, rather than at any prior interlocutory stage.

[8]    The other issues raised largely concern how the proceedings will be conducted and as has long been recognised, it is in the Court’s inherent powers to regulate its own procedure.7 The objectives of the High Court Rules referred to by the applicant, namely the just, speedy and inexpensive determination of the proceedings, would not be furthered by the granting of the applications.

4      Houghton v Saunders [2019] NZCA 506 at [48]–[49].

5      Greendrake, above n 3, at [6] citing Finewood Upholstering Ltd v Vaughan [2017] NZHC 1679 at [13].

6      Dunstan v Attorney-General [2024] NZHC 1606 at [8] citing Dunstan v Ms X and Ors [2023] NZHC 2958.

7      Cocker v Tempest [1841] EngR 242, (1841) 7 M & W 502 at 503-504; Mihaka v Police [1981] 1

NZLR 54; and Commissioner of Police v Ombudsman [1988] NZCA 211, [1988] 1 NZLR 385.

[9]    The substantive subject matter of this proceeding is of significance to the applicant. However, the claimed errors with regard to interlocutory matters cannot be said to be of sufficient importance to warrant incurring the further cost and delay inherent in an appeal. As in Houghton, the orders and directions made do not have a substantial effect on the case. I therefore consider the interests of justice are best served by declining leave.

Conclusion

[10]   This application for leave to appeal fails to cross the high threshold required for leave to be granted and is dismissed.

Churchman J