Dunstan v Attorney-General

[2024] NZHC 1606

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 1606

BETWEEN

TANYA DUNSTAN

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing:	On the papers
Appearances:	Applicant in person
Judgment:	18 June 2024

JUDGMENT OF CHURCHMAN J

[1]        On 17 June 2024 I issued a decision declining applications for various orders and directions made by the applicant, a litigant in person.1

[2]        Ms Dunstan’s response to that was to email the Registrar requesting that the decision be recalled.

[3]        The application was not in the nature of a formal application or even a formal memorandum as is normally required,2 however, I will treat it as if it was a formal application.

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

2      PQW v Mallard (2) [2020] NZHC 3531.

DUNSTAN v ATTORNEY-GENERAL [2024] NZHC 1606 [18 June 2024]

The law

[4]        Recalling a judgment is a serious step to be taken only in reasonably well identified situations. The discretion to recall must be exercised with circumspection and must not in any way be seen as a substitute for an appeal.3

[5]        In considering a recall application the Court is required to engage substantially with any factual errors that have been established.4

[6]        It is desirable that a party seeking a recall should first confer with the opposite party or parties and endeavour to obtain their consent.5 This does not appear to have been done in this case.

Analysis

[7]        Ms Dunstan’s email does not assert that there are any errors in the factual findings or reasoning in the decision of 17 June 2024. Rather, she appears to be asserting that I have some form of conflict of interest. That is not a ground for recall.

[8]        More importantly, the allegations referred to in Ms Dunstan’s email have been made previously and have been comprehensively rejected by the High Court6 with Grice J striking out the proceedings in which they appeared as being plainly an abuse of process, lacking any valid cause of action and being largely incomprehensible.

[9]        Assuming that Ms Dunstan is confused and what she was intending to seek was in fact recusal, there is no basis for recusal either.

[10]      The principles applying to recusal are well settled.7 The High Court recusal guidelines were developed in accordance with s 171(1) of the Senior Court’s Act 2016.8

3      Erwood v Maxted [2010] NZCA 93.

4      Rae v Commissioner of Police [2023] NZSC 156.

5      Y v Foulkes [2014] NZCA 396.

6      Dunstan v Ms X and Ors [2023] NZHC 2958. Ms Dunstan lodged an appeal against the decision of Grice J but did not pursue it and it was deemed abandoned by the Court of Appeal on 16 February 2024.

7      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2022] NZHC 93 at [13].

8      High Court recusal guidelines (12 June 2017) Courts of New Zealand.

[11]Paragraph 5 of the High Court recusal guidelines provides:

5.1   A judge should consider recusing him or herself if the case concerns a matter upon which the judge has made public statements of firm opinion on the issue before the Court.

5.2   An expression of opinion in an earlier case or in an earlier stage of proceeding is not of itself a ground for recusal.

[12]      To the extent that the somewhat confused email from Ms Dunstan is capable of being understood, it appears that she is unhappy that I have decided cases against her in the past.  That is clearly not a ground for recusal.   This was pointed out to   Ms Dunstan by Grice J in the 2023 decision where she said:9

[25]      The Supreme Court in the context of a recall application in Jones v New Zealand Bloodstock Finance and Leasing Ltd recently said:

… whatever one is to make of these claims, and howsoever they ought to be resolved, a litigant may not make unsupported and irrelevant allegations about Judges and then assert they should no longer undertake their judicial responsibilities. The standard for recusal, laid down by this Court in Saxmere is not remotely met.

[26]The same comments apply here.

Outcome

[13]The application for recall is declined.

Churchman J

9      Above n 6 at [25] and [26].