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 as exercising very poor control of its processes for it to allow the applicant’s documents to be treated as proper documents.2

[8]        Ms Dunstan’s cause of action in tort was unclear from the documents filed. The claim appeared to be for malicious prosecution/abuse of legal procedure or misfeasance in public office, but the details and status of the District Court proceeding were unclear and the dates were confused.

[9]        As indicated, I convened a telephone conference with Ms Dunstan to give her an opportunity to be heard.3 During the telephone conference, Ms Dunstan clarified that her claim is as follows:4

(a)On 26 June 2019 Ms Dunstan was falsely arrested and charged with breach of a Temporary Protection Order (obtained by her former partner, Mr [X]).5

(b)A Police report dated 3 July 2019 confirmed that no statement was taken (from the complainant) between 31 May 2019 and 26 June 2019.

1      At [12] following earlier reference at [6] to the requirements of r 12.4(5) of the High Court Rules 2016.

2      Mathiesen (Trustees of Sweet Pea Family Trust) v Fildes [2017] NZHC 2258; Mathiesen v Slevin

[2018] NZHC 1032; and Siemer v Registrar of the Supreme Court [2019] NZHC 2345.

3      See High Court Rules 2016, r 5.35B(3).

4      I subsequently received her list of documents relied on and an affidavit of Sharon Murdock in support of notice of opposition dated 16 July 2021 that Ms Dunstan provided.

5      Temporary Protection Order dated 11 May 2018 in [X] v Dunstan FC Manukau FAM-2018-092- 00471. [Name anonymised under s 11D of the Family Court Act 1980.]

(c)On 14 January 2020 the charge against Ms Dunstan was dismissed.

(d)Ms Dunstan brought a civil proceeding against Police in the District Court for the tort of malicious prosecution and applied for summary judgment.6

(e)The Police opposed Ms Dunstan’s application, relying on a Police statement of Mr [X] dated 18 June 2019 (signed by Mr [X] and witnessed by a police constable) to the effect that she had messaged him in breach of the  Temporary  Protection  Order  in  May  2019.  Ms Dunstan says Mr [X]’s Police statement is a fabricated backdated document, which could not have been in existence before 3 July 2019 given the Police report of that date. Mr [X]’s Police statement was exhibited to the affidavit of Sharon Murdock in support of notice of opposition dated 16 July 2021 and was relied on by the Police at the hearing of the summary judgment application in November 2021.

(f)The District Court dismissed Ms Dunstan’s application for summary judgment. Ms Dunstan did not appeal. Her claim is proceeding to a substantive hearing.

[10]      It is now clear that, although Ms Dunstan’s application for summary judgment was declined, her District Court claim is ongoing. Ms Dunstan suggested her motivation for this proceeding was to avoid the scale of a District Court trial with multiple witnesses, but this proceeding would no doubt be similar given the same difficulty with summary judgment.

[11]      In any event, Ms Dunstan’s challenge to the authenticity of the Police statement dated 18  June  2019  is  a  live  issue  in  her  ongoing  District  Court  proceeding.  A malicious prosecution claim in this proceeding replicates her District Court proceeding and is an abuse of process. Even if, instead, Ms Dunstan’s claim in this proceeding is that the Police statement was fabricated after the prosecution to defend her civil claim in the District Court, her challenge to the authenticity of the document

6      Dunstan v New Zealand Police DC Manukau CIV-2021-0982-001563.

is still a live issue in that proceeding. The appropriate course is for that issue to be addressed in her District Court proceeding, rather than in this collateral proceeding.

[12]      Further, the appropriate relief in a tort claim of this nature would likely be declaratory relief and damages, rather than orders directing investigation or disciplinary action. Those would be matters for the appropriate agencies to consider in light of the Court’s decision if the tort is  established.   In relation to damages,   Ms Dunstan explained the quantum claimed by referring to the judgment of Clifford J in Hager v Attorney-General.7 That case concerned Mr Hager’s judicial review of a search warrant, but Mr Hager’s claim for damages for breach of the New Zealand Bill of Rights Act 1990 (NZBORA) was deferred.8 In any event, Ms Dunstan’s claim does not refer to NZBORA.

[13]      For these reasons, I am satisfied that this proceeding is plainly an abuse of the process of the Court. It should be struck out.

Result

[14]The proceeding is struck out.

Gault J

7      Hager v Attorney-General [2015] NZHC 3268, [2016] 2 NZLR 523.

8 At [22].