Dunstan v Attorney-General - [2022] NZHC 674

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-261

[2022] NZHC 674

UNDER the law of tort

IN THE MATTER

of Tanya Dunstan v the Attorney-General and New Zealand Police for vexatious and malicious prosecution and fabrication of documents to deny and defeat justice

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

THE ATTORNEY-GENERAL

First Defendant

THE NEW ZEALAND POLICE

Second Defendant

Telephone conference: 17 March 2022

Appearances:

Plaintiff in person

Judgment

4 April 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 4 April 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

Parties:
The Plaintiff

DUNSTAN v THE ATTORNEY-GENERAL [2022] NZHC 674 [4 April 2022]

[1] Following my minute of 14 March 2022, I convened a telephone conference with Ms Dunstan on 17 March 2022 to give her an opportunity to be heard.

[2] As indicated in my earlier minute, this proceeding has been referred to me by the Registrar under r 5.35A of the High Court Rules 2016 for consideration under r 5.35B, which provides for the Court to make orders or give directions if a Judge is satisfied that the proceeding is plainly an abuse of the process of the Court.

[3] Ms Dunstan’s statement of claim names the Attorney-General and the New Zealand Police as defendants. The heading summarises the claim as one in tort for unlawful, malicious conduct and fabrication of documents to mislead justice. The claim alleges a document that Police produced to the District Court to substantiate their false arrest of Ms Dunstan was false and backdated to conceal their unlawful conduct. There is also brief reference to professional negligence, though no basis for that claim is pleaded.

[4]Ms Dunstan’s claim seeks the following relief:

(a)an order formally admonishing the police for their malicious conduct and miscarriage of justice which has caused significant harm to her and her two children;

(b)an order for an investigation into the police’s handling of this matter, and appropriate disciplinary action taken against the police involved in this crime; and

(c)damages in the vicinity of $1.8 million for emotional, psychological and physical harm caused to her and her family.

[5] Her documents also include an interlocutory application for summary judgment and an affidavit. My earlier minute noted that summary judgment is

generally inappropriate in a tort claim of this nature given the onus on the plaintiff to prove that the defendant has no defence to the claim.1

[6] My earlier minute referred to other procedural difficulties with the documents. They need not be repeated here as there is a distinction between procedural defects and proceedings that are plainly an abuse.

[7] The power to strike out a proposed proceeding as an abuse under r 5.35B is to be exercised sparingly. But it is appropriate when it would be manifestly unfair to the defendants that they be required to respond, and when right thinking people would regard this Court…

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] NZHC 674
Case: [2022] NZHC 674
Decision Date: 4 April 2022

CaseChat Overview and Summary

In the case of Dunstan v Attorney-General, the plaintiff, Tanya Felicity Dunstan, brought a claim in tort against the Attorney-General and the New Zealand Police. The claim was brought in the High Court of New Zealand, Auckland Registry. Dunstan alleged that she was subjected to a vexatious and malicious prosecution and that documents were fabricated to deny and defeat justice. She sought relief in the form of an order admonishing the police, an investigation into the police's conduct, and damages in the vicinity of $1.8 million for the harm caused to her and her family.

The legal issues before the court included whether the proceeding was an abuse of the court process and whether it was appropriate to strike out the proceeding. The court also had to consider the nature of the claim, which appeared to be for malicious prosecution or misfeasance in public office, and the relevance of the District Court proceeding that was already ongoing. Additionally, the court needed to assess the relief sought by the plaintiff and whether it was appropriate for the High Court to grant such relief.

The court, Gault J, found that the proceeding was plainly an abuse of the process of the court. The court noted that the plaintiff's claim was unclear, with confusing dates and unclear details about the District Court proceeding. The court also found that the plaintiff's challenge to the authenticity of a police statement was a live issue in the ongoing District Court proceeding. The court considered it manifestly unfair to the defendants to require them to respond to the proceeding, and it would be very poor control of the court's processes to allow the plaintiff's documents to be treated as proper documents. The court therefore decided to strike out the proceeding.

The final orders of the court were that the proceeding was struck out, and no further action would be taken in the High Court regarding the plaintiff's claims against the Attorney-General and the New Zealand Police.

Orders