Dunstan v Auckland District Court

[2022] NZHC 417

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-0223

[2022] NZHC 417

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

AUCKLAND DISTRICT COURT

First defendant

CAROL MARGARET NEILL

Second defendant

Judicial review list:	On the papers
Appearances:	Plaintiff in person
Date of judgment:	10 March 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 10 March 2022 at 3.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Copy to:
The plaintiff

DUNSTAN v AUCKLAND DISTRICT COURT [2022] NZHC 417 [10 March 2022]

[1]        Under r 5.35A(3)(a) of the High Court Rules 2016, the Registrar referred this proceeding to me as judicial review list judge, for consideration if “plainly an abuse of the process of the court”.

[2]        Ms Dunstan’s 18 February 2022 “Notice of proceeding for a judicial review” relates to a District Court Judge’s 9 July 2021 direction Ms Dunstan’s June 2021 documents, seeking to commence a private prosecution against Ms Neill, not be accepted for filing. Ms Dunstan seeks “leave of the Auckland High Court to accept for filing new proceedings against [the] Auckland [District] Court and Carol Neill to appeal Judge Glubb’s ruling dated 9 July 2021”.

[3]        The Judge’s direction was made under s 26(3) of the Criminal Procedure Act 2011, which entitles a Judge so to direct if s/he considers “the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial”, or “the proposed prosecution is otherwise an abuse of process”. The Judge expressly relied on the former ground as well as the documents’ “want of form”.

[4]        My minute of 8 March 2022 set out rr 5.35A and 5.35B’s potential consequences for this proceeding, and directed Ms Dunstan advise if she sought either to maintain a proceeding for judicial review or wished to appeal the Judge’s decision, in the latter case for which “special leave” was required.1 Ms Dunstan immediately emailed the registry as follows:

I am at a complete loss to see how I am constantly prevented any natural justice and when I use the only legal avenue available to me, which is by way of an appeal of Judicial review I am criticised by the courts for “abusing the process.”

1.  I filed private prosecutions against Carol Neill for the undeniable abduction of my children against court orders on 5 November 2020

2.  These should have been accepted for filing for a hearing (I did not seek a summary judgement, which I had sufficient evidence and her own admission to confirm)

3.   Judge Glubb refused to accept the matter for filing. THIS was an abuse of process and power.

1      Dunstan v Auckland District Court HC Auckland CIV-2022-404-0223, 8 March 2022.

4.  I have appealed this decision, by way of a judicial review and seek the high court rightfully set the matter down for a hearing in accordance with natural justice.

I confirm my applications are a Judicial Review, I seek the remedy of the overturning of this decision, however, for the interests of public safety I have sought a Judicial Review for the district Judges conduct to be investigated and addressed in accordance with natural justice, which is by no means any abuse, rather the exact use of the process in place.

I look forward to this matter being listed promptly for a Judicial Review.

These lengthy delays are causing significant harm to me as documented by my GP, psychologist and neurologist.

[5]Section 27(2) of the New Zealand Bill of Rights Act 1990 provides:

Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

But it only is a “right to apply” — then, “in accordance with law” — and not an untrammelled right to review in itself. Applications for review are as susceptible to strike out as any other proceeding.2

[6]        Making allowance for Ms Dunstan’s unrepresented status, her response suggests she may not understand the distinction to be drawn between appeal and judicial review, as my minute explained. Ms Dunstan clearly considers the Judge’s decision to be wrong in substance, as her charging documents “should have been accepted for filing for a hearing”. But this Court, on judicial review, cannot achieve that outcome.3 Ms Dunstan’s references to “natural justice” and “the remedy of the overturning of this decision” are to be understood from her substantive objective.

[7]        I am satisfied this proceeding is plainly an abuse of the process of the court. The Judge statutorily was authorised to make the direction.4 Ms Dunstan had a right of appeal against the Judge’s decision.5 It is an abuse of process to use judicial review

2      New Zealand Maori Council v Attorney-General [1996] 3 NZLR 140 (CA) at 167; Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at 63.

3      Judicial Review Procedure Act 2016, s 16.

4      Criminal Procedure Act 2011, s 26(3).

5      District Court Act 2016, s 124.

procedures to seek to overturn decisions made within jurisdiction, or to circumvent appeal pathways.6

[8]        I therefore will strike  out  Ms  Dunstan’s  application  for  review.  Given  Ms Dunstan’s rejection her application may be taken as (belated) notice  of appeal,   I also will dismiss the proceeding.

[9]        If my direction for Ms Dunstan’s advice is not to be understood as giving her an opportunity to be heard, she has the right to appeal my decision.7 As an appeal to the Court of Appeal as of right, for which the High Court Rules specify no time, any appeal must be brought within 20 working days after the date of my decision.8

Result

[10]      Ms Dunstan’s application for review is struck out and the proceeding is dismissed. Under r 5.35B(4), Ms Dunstan is to serve this decision on the defendants. The Registry is not to release the proceeding’s other documents for service.

—Jagose J

6      Prescott v Police [2019] NZCA 380 at [18] (citing Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL); W v W [1999] 2 NZLR 1 (PC); and Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7), affirmed in Prescott v Police [2021] NZSC 18 at [8].

7      High Court Rules, r 5.35B(3).

8      Court of Appeal (Civil) Rules 2005, r 29(1AA) and (1).