Dunstan v Attorney-General
[2024] NZHC 1586
•17 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-443-13
[2024] NZHC 1586
BETWEEN TANYA DUNSTAN
Applicant
AND
ATTORNEY-GENERAL
Respondent
Hearing: On the papers Appearances:
Applicant in person
K E E Whiting for Respondent
Judgment:
17 June 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] On 7 February 2024, the applicant filed an interlocutory application seeking leave to file new judicial review proceedings in regard to the decision of Judge Hikaka dated 24 January 2024 declining to accept the applicant’s charges for filing a private prosecution.
[2] Leave was granted by Grau J in a minute dated 7 March 2024, and a hearing has been set down for 19 July 2024.
[3] On 31 May 2024, the applicant filed an urgent memorandum seeking a number of directions regarding the hearing. On 10 June 2024 the applicant filed a lengthy affidavit in support.
DUNSTAN v ATTORNEY-GENERAL [2024] NZHC 1586 [17 June 2024]
Background
[4] On 15 October 2023, the applicant filed at the New Plymouth District Court informations relating to a number of charges against various parties for alleged offences under ss 113, 116, 117, 209 and 210 of the Crimes Act 1961, relating to the offences of abduction, kidnapping, corrupting witnesses, conspiring to defeat justice and fabricating evidence.
[5] On 24 January 2024 Judge Hikaka, after receiving the charging documents and a statement sworn by the applicant on 23 October 2023, declined to accept the documents for filing. He found that this was an abuse of process, given that a previous attempt at filing similar charges against the same parties in 2022 which had initially been rejected for filing had been remitted back to the Manukau District Court for determination.
[6] Grau J gave leave for the applicant to file judicial review proceedings in respect of Judge Hikaka’s decision, as she found the Judge had not followed the procedure set out in s 26(1) of the Criminal Procedure Act 2011.
Submissions
[7] In her memorandum dated 31 May 2024, the applicant requests the following directions which she contends are in accordance with her rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and ss 19 and 21 of the Human Rights Act 1993 (HRA):
(a)that the open court proceedings be livestreamed as per other matters of significant public importance;
(b)if livestreaming is not granted, that an AVL link be made available to anyone who wishes to dial in to witness the court hearing;
(c)that the Court permit Graeme Axford who the applicant wanted to be her McKenzie friend to appear via AVL to support the applicant for the hearing;
(d)if Graeme Axford is not permitted to appear via AVL, confirmation that in the event the applicant is successful that costs for Mr Axford to fly to Wellington from Greymouth (return) and accommodation for 19 July 2024 will be covered;
(e)confirmation that the applicant’s return flights and accommodation to attend the hearing in Wellington be covered in costs should the applicant be successful in the proceedings; and
(f)that the Court approve the appointment of Sonia Smith (a lawyer and lecturer at Deakin University) as an independent amicus curiae and that the costs of her return airfares from Australia and overnight accommodation in Wellington from 18 to 19 July 2024 will be covered.
[8] The applicant additionally makes a request that the Court make a discovery order under r 8.8 of the HCR 2016 for all charging documents filed by the applicant to the district courts in New Zealand since 2019 and the decisions of judges and registrars refusing them, and to have them compiled and provided for the Court to make necessary directions to rectify what she states is a “mass human rights violation”.
Discussion
Livestreaming
[9] Livestreaming of court hearings is common practice in the Supreme Court, with a protocol concerning such livestreaming issued by the Chief Justice on 28 November 2023. However, these hearings are livestreamed due to the inherent significant public interest in such hearings. Unlike in Ortmann v United States of America where there was considerable public interest in the hearing, both in New Zealand and overseas,1 the matters concerning this proceeding, while no doubt of significance to the applicant, could not be said to have the same public interest character. Those who wish to view the hearing can do so in-person. I am not persuaded that the interests of open justice and transparency, which are already
1 Ortmann v United States of America [2016] NZHC 2043 at [8].
provided for by the proceeding being conducted in an open hearing, trump the administrative cost and potential disruption of livestreaming the proceeding. I therefore decline that application.
AVL Link
[10] Under s 7 of the Courts (Remote Participation) Act 2010, audio-visual links (AVL) may be used in a civil proceeding for the appearance of a participant if a judicial officer or Registrar determines to allow its use for the appearance of that participant.
In making such a determination, the judicial officer or Registrar must consider:2
(a)the nature of the proceeding;
(b)the availability and quality of the technology that is to be used;
(c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding; and
(d)any other relevant matters.
[11] What the applicant seeks is a means for non-participants to watch the hearing, which is not what AVL is intended to be used for. The Court’s (Remote Participation) Act is designed to allow participants in a hearing to participate in that hearing by VMR. It is not designed to facilitate an indeterminate number of non-participants to attend by VMR. The public interest in court proceedings being conducted openly is satisfied by members of the public being able to attend in person should they wish to do so. I therefore decline to make the order sought with regard to AVL.
McKenzie Friend
[12] A McKenzie friend is a support person who may be granted permission in appropriate cases to attend court as a friend of litigant in person and provide support, take notes, and make suggestions to an unrepresented party to litigation.3 A McKenzie
2 Courts (Remote Participation) Act 2010, s 5.
3 McKenzie v McKenzie [1970] 3 WLR 472 (CA).
friend may not address the court by way of making submissions or asking questions, as only practitioners and parties representing themselves have a right of audience before the court.4 The appointment of a McKenzie friend is entirely within the discretion of the court pursuant to its inherent jurisdiction to regulate its own processes.5
[13] In Farquhar v Police, the Court found that the appellant was sufficiently skilled as a lay litigant and thus was capable of defending the charge he faced without the assistance of a McKenzie friend.6 Similarly in this case, the applicant is a very experienced lay litigant having brought numerous claims before the courts.7 It is difficult to see what benefit she could gain from having a McKenzie friend, particularly given she has been a McKenzie friend herself.8 Furthermore, Mr Axford would be unable to provide the limited support that a McKenzie friend is limited to, via AVL. There is no rational basis identified by the applicant for the Court covering the travel costs and accommodation of a McKenzie friend who does not reside in the same city as the litigation is taking place in. This application is therefore declined.
Applicant’s travel costs
[14] It is for the judge presiding over the hearing to determine what costs and disbursements are to be awarded to the applicant should she succeed in the proceedings. To make a direction in advance regarding this matter would be to fetter the Court’s discretion.9 It is for the judge who presides over the hearing to determine such an issue. I therefore decline to make the direction sought that the applicant’s travel costs be covered in costs should she be successful.
Amicus Curiae
[15] An amicus curiae or counsel assisting is a non-party that assists the court on matters of law and fact, particularly where there is a risk the parties will not address
4 R v Hill [2004] 2 NZLR 145 at [48].
5 Rerekura v Prison Director, Auckland South Corrections Facility (Serco) [2021] NZHC 1555 at [23].
6 Farquhar v Police HC Dunedin CRI-2011-412-1, 8 April 2011 at [22]–[23].
7 See Re Dunstan [2023] NZHC 3176 at Appendix 1– 3.
8 See Christison v Chief Executive of Oranga Tamariki [2023] NZHC 487.
9 Dunedin Electricity Ltd v Dunedin City PT Decision C69/94, 18 July 1994 at [2].
important matters or opposing argument is needed.10 Counsel assisting have been appointed where important issues arise for determination, but a party has chosen not to participate.11 The appointment of such counsel is only made in exceptional circumstances.12
[16] I do not consider that such exceptional circumstances exist in this case. The proceedings concern a relatively straightforward procedural issue, and there is no indication that the applicant intends not to participate. The primary purpose of counsel assisting is to assist the court rather than the parties, and it does not appear any such assistance is required in this case. Furthermore, an appropriate person to act as counsel assisting is not to be nominated by a party to the proceeding. A lawyer from an entirely different jurisdiction, namely Australia, who would need to make considerable travel arrangements just to attend the hearing, is clearly not a suitable choice. The requested direction is thus refused.
Discovery order
[17] Rule 8.8 of the High Court Rules 2016 provides that tailored discovery must be ordered when the interests of justice require an order involving more or less discovery than standard discovery involved. Rule 8.9 sets out a number of circumstances in which tailored discovery is presumed, which do not apply in this case.
[18] It is patently not in the interests of justice to make an order for tailored discovery regarding charging documents that the applicant has filed in the District Court since 2019. These proceedings relate only to the charging documents that were rejected by Judge Hikaka, the other charging documents have no relevance or bearing on the proceeding. I therefore decline this application.
10 Matthew Casey KC and Ors (eds) Sim’s Court Practice (online ed, LexisNexis) at [SEN178.5].
11 Hartley v Attorney-General [2018] NZHC 2639 citing Erwood v Holmes [2017] NZHC 1278, [2017] NZAR 971 at [39].
12 Hartley, above n 11, at [12](a).
Conclusion
[19]All applications are declined.
Churchman J
Solicitors:
Crown Law, Wellington for Respondent
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