Dunstan v Auckland District Court

[2023] NZHC 398

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1871

CIV-2023-404-000361 [2023] NZHC 398

UNDER

HIGH COURT RULES 2016 AND

NEW ZEALAND BILL OF RIGHTS ACT 1990, s 14 AND s 27

IN THE MATTER OF

DUNSTAN v AUCKLAND DISTRICT COURT AND THE NEW ZEALAND POLICE

BETWEEN

TANYA FELICITY DUNSTAN

Appellant

AND

AUCKLAND DISTRICT COURT

First Respondent

NEW ZEALAND POLICE

Second Respondent

Hearing:	On the papers at Auckland
Judgment:	6 March 2023

JUDGMENT OF POWELL J

[Consideration under r 5.35B of the High Court Rules 2016]

Solicitors: Crown Law,

Copy:

T F Dunstan

TANYA FELICITY DUNSTAN v AUCKLAND DISTRICT COURT [2023] NZHC 398 [6 March 2023]

[1]    The Registrar has referred these proceedings to me for consideration under Rule 5.35B of the High Court Rules 2016 in order to assess whether the proceeding is plainly an abuse of the process of the Court.

[2]    The proceedings have been filed by Tanya Dunstan and purport to be a “Urgent without notice appeal to partially set aside Judge Sinclair’s decision dated 27 February 2023, filed without notice under 7.23 HCR 2016.”

[3]    It appears that Ms Dunstan has commenced civil proceedings against the New Zealand Police in the District Court at Manukau and those are due to be heard on 7 March 2023.1 On 24 February 2023 a telephone conference took place, convened by Judge A A Sinclair. The purpose of the conference was to address a number of matters in advance of the hearing of Ms Dunstan’s claims. Ms Dunstan has taken issue with  a number of the directions made by Judge Sinclair in a subsequent minute issued on 27 February 2023, including matters relating to recusal and Ms Dunstan’s desire for interim damages prior to the hearing in the District Court.

[4]    It would appear that any right of appeal against the matters objected to arises by virtue of s 124 of the District Court Act 2016. Such appeals are required to comply with Part 20 of the High Court Rules. As Ms Dunstan is aware, r 20.6 provides that an appeal is brought when a notice of appeal has been filed in the High Court and served on every other party directly affected by the appeal. The contents of the notice of appeal are specified in r 20.9(1) and require a notice of appeal to:

(a)    have a heading stating the full name and description of each party and referring to the enactment under which the appeal is brought; and

(b)    specify the decision or part of the decision appealed against; and

(c)    specify the grounds of the appeal in sufficient detail to fully inform the court, the other parties to the appeal, and the decision- maker of the issues in the appeal; and

(d)    specify the relief sought.

1 CIV-2021-092-001563.

[5]    Nothing in Part 20 permits an  appeal  to  be  brought  without  notice  and Ms Dunstan’s reliance on Part 7 of the High Court Rules and r 7.23 in particular is therefore misconceived.

[6]    It follows that to allow Ms Dunstan’s proceedings to proceed further in their current form would plainly be an abuse of process in terms of rr 5.35A and 5.35B of the High Court Rules. However, as Ms Dunstan appears to have the right to file an appeal, I conclude that it is not appropriate to order the appeal struck out at the present time. Instead, I stay the proceedings until such time as Ms Dunstan has filed a notice of appeal that complies with r 20.9 and then proceeds to serve that notice on every party directly affected in accordance with r 20.6 of the High Court Rules.

[7]    As Ms Dunstan has not been given the opportunity to be heard on these matters, I confirm that in accordance with r 5.35B(3) Ms Dunstan has the right to appeal against this decision.

Powell J