Dunstan v Auckland High Court

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

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].

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 The charge was subsequently withdrawn and Ms Dunstan filed a proceeding in the District Court alleging malicious prosecution in respect of her arrest.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).
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).
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].

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).

The application for leave to appeal is dismissed.
The applicant must pay the respondents costs of $2,500.

Solicitors:
Meredith Connell, Auckland for Respondents

CaseChat Overview and Summary

Ms Tanya Felicity Dunstan has applied for leave to appeal against the decision of the Court of Appeal in relation to her claim of malicious prosecution against the New Zealand Police and the Attorney-General. The Court of Appeal had dismissed her appeal against the High Court's decision to strike out her proceeding as an abuse of process. Dunstan had initiated proceedings in both the District Court and the High Court arising from the same set of facts, namely her arrest for an alleged breach of a temporary protection order, which was subsequently withdrawn. The Supreme Court was required to determine whether the criteria for leave to appeal were satisfied and whether the application should be dismissed as an abuse of process.

The Court found that the criteria for leave to appeal were not met. The Court of Appeal had correctly determined that pursuing concurrent malicious prosecution proceedings in both the District Court and the High Court was an abuse of process. The Supreme Court held that it was plainly an abuse of process for Dunstan to seek to concurrently pursue such proceedings arising out of the same facts in both courts. This was in line with the Court of Appeal's assessment that the concurrent proceedings were an abuse of process and a waste of judicial resources.

Accordingly, the Supreme Court dismissed Dunstan's application for leave to appeal. The Court further ordered that Dunstan must pay the respondents' costs of $2,500. The Court's reasoning was based on the principle that pursuing concurrent proceedings in different courts based on the same set of facts constitutes an abuse of process, and that the application did not meet the criteria for leave to appeal.

The final orders of the Court were that the application for leave to appeal is dismissed and that the applicant must pay the respondents' costs of $2,500. The Court upheld the decision of the Court of Appeal, finding that pursuing concurrent malicious prosecution proceedings in both the District Court and the High Court was an abuse of process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established