Dunstan v Chief Executive, Department of Corrections

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

CaseChat Overview and Summary

The High Court of New Zealand Auckland Registry heard a case between Tanya Felicity Dunstan, the plaintiff, and the Chief Executive of the Department of Corrections, the defendant. The matter involved a dismissed claim by Ms Dunstan against the Department, seeking a substantial amount in damages. The Department subsequently sought costs and disbursements amounting to $33,878.25, which it had reduced considering Ms Dunstan's self-represented status. Ms Dunstan did not respond to the application for costs but filed an application to hold the Department’s lawyers in contempt of court. Despite Ms Dunstan’s lack of submission, the Court considered whether the Department could be declined costs, noting that her claim failed due to her unreliable testimony and doubt over whether her evidence could sustain the pleaded claims under applicable law.

The legal issues before the Court included whether the Department should be granted costs and disbursements despite being the successful party and whether Ms Dunstan acted reasonably in the conduct of the proceeding. The Court applied Rule 14.7(e) of the High Court Rules 2016, which allows the Court to decline or reduce costs if the proceeding concerned a matter of public interest and the opposing party acted reasonably. The Court concluded that the case did not involve a matter of public interest and that Ms Dunstan could not be considered to have acted reasonably, as the Department was put to unnecessary expense and the claim included meritless allegations. Consequently, the Court determined that the Department should be awarded the sought costs and disbursements.

The Court ordered that Ms Dunstan must pay the Department $33,878.25 in costs and disbursements. Additionally, Ms Dunstan was granted permission to appeal the judgment to the Court of Appeal but was subject to a litigation ban imposed by Brewer J. The Court declined Ms Dunstan permission to prosecute or otherwise pursue her application to hold the Department’s lawyers in contempt of court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established