Dunstan v Auckland High Court

[2023] NZSC 3

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 114/2022
 [2023] NZSC 3

BETWEEN	TANYA FELICITY DUNSTAN Applicant
AND	AUCKLAND HIGH COURT First Respondent
AND	ATTORNEY-GENERAL Second Respondent
AND	NEW ZEALAND POLICE Third Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person M L Clarke-Parker for Respondents
Judgment:	17 February 2023

JUDGMENT OF THE COURT

A        The application for leave to appeal is dismissed.

B         The applicant must pay the respondents costs of $2,500.

____________________________________________________________________

REASONS

Introduction

1. Ms Dunstan applies for leave to appeal against the decision of the Court of Appeal in Dunstan v Auckland High Court.[1]  

Background

[1]Dunstan v Auckland High Court [2022] NZCA 478 (Katz, Wylie and Palmer JJ) [CA judgment].

1. Ms Dunstan was arrested on 25 June 2019 for an alleged breach of a temporary protection order.  The charge was subsequently withdrawn and Ms Dunstan filed a proceeding in the District Court alleging malicious prosecution in respect of her arrest.  She unsuccessfully sought summary judgment and the matter proceeded to a full hearing.[2] 

   [2]Dunstan v Police [2021] NZDC 23770 (Judge Clark).

2. While the District Court proceedings were ongoing, Ms Dunstan filed a mirror proceeding in the High Court, also seeking summary judgment, against the New Zealand Police and the Attorney-General.  This mirror proceeding was struck out by the High Court under r 5.35B of the High Court Rules 2016 on the basis that it was an abuse of process.[3]

   [3]Dunstan v Attorney-General [2022] NZHC 674 (Gault J).

3. The Court of Appeal dismissed Ms Dunstan’s appeal against that decision, saying:[4]

   … it is plainly an abuse of process for Ms Dunstan to seek to concurrently pursue malicious prosecution proceedings against the New Zealand Police and/or the Attorney-General, arising out of the same facts, in both the District Court and the High Court.

Our assessment

[4]CA judgment, above n 1, at [16].

1. The criteria for leave are not met.[5]  The application must be dismissed on the basis that it is an abuse of process.

Result

[5]Senior Courts Act 2016, s 74(2).

1. The application for leave to appeal is dismissed.

2. The applicant must pay the respondents costs of $2,500.   

Solicitors:
Meredith Connell, Auckland for Respondents