Dunstan v Chief Executive, Department of Corrections

[2024] NZHC 512

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-002159

[2024] NZHC 512

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Defendant

Hearing:	On the papers
Judgment:	12 March 2024

JUDGMENT OF DOWNS J

(Costs)

This judgment was delivered by me on Tuesday, 12 March 2024 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland. Copy to: Plaintiff.

DUNSTAN v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2024] NZHC 512 [12 March 2024]

[1]    On 17 November 2023, I dismissed a claim by Ms Dunstan against  the  Chief Executive of the Department of Corrections.1 The Department seeks 2B scale costs and disbursements totalling $33,878.25. It has discounted its costs in recognition of Ms Dunstan’s self-represented status.

[2]    Ms Dunstan has not responded with a submission directed at costs (notwithstanding my timetable directions). Instead, she has filed an application to hold the Department’s lawyers in contempt of Court.

[3]    Absent a submission from Ms Dunstan, I have nonetheless considered whether the Department might be declined costs (despite being the successful party). I note Ms Dunstan’s claim failed on the facts, in part because she was an unreliable historian. I also note that even if I had accepted Ms Dunstan’s testimony as reliable, doubt attached to whether it could sustain the pleaded claims given applicable law.2

[4]    Rule 14.7(e) of the High Court Rules 2016 provides the Court may decline or reduce costs if the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding. I am not persuaded the case involved a matter of public interest, particularly as Ms Dunstan sought damages of $1,277,000. In any event, Ms Dunstan could not be said to have acted reasonably in the conduct of the proceeding. First, the Department was put to the time and expense of resisting a series of subpoena concerning irrelevant testimony. Second, aspects of the claim were meritless, including an allegation of torture by food deprivation that concerned the absence of a dairy-free breakfast on one or two occasions. Third, and as already observed, doubt attached to whether Ms Dunstan’s evidence could sustain the pleaded claims given applicable law.

[5]It follows the Department should have costs and disbursements as sought.

Result

[6]Ms Dunstan must pay the Department $33,878.25 in costs and disbursements.

1      Dunstan v Chief Executive, Department of Corrections [2023] NZHC 3221 [17 November 2023]

2 At [64].

[7]    Ms Dunstan has permission to appeal this judgment to the Court of Appeal— Ms Dunstan is subject to a litigation ban imposed by Brewer J.

[8]    Ms Dunstan is declined permission to prosecute or otherwise pursue her application to hold the Department’s lawyers in contempt of Court.

……………………………..

Downs J