Dunstan v Chief Executive of Department of Corrections
[2023] NZHC 1670
•3 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-002159
[2023] NZHC 1670
BETWEEN TANYA FELICITY DUNSTAN
Plaintiff
AND
CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS
Defendant
Hearing: On the papers Appearances:
T Dunstan in Person
M L Clarke-Parker for the Defendant
Judgment:
3 July 2023
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 3 July 2023 at 10.30 a.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Crown Law, Wellington Copy to: T F Dunstan
DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 1670 [3 July 2023]
Introduction
[1] This judgment concerns two interlocutory applications filed by Tanya Dunstan. In the first interlocutory application dated 1 May 2023, Ms Dunstan requests:
(a)leave to appeal my dismissal of her interlocutory application dated 16 March 2023;1 and
(b)that I recuse myself from the proceeding on the grounds of bias.
[2] In the second interlocutory application dated 12 May 2023, Ms Dunstan applies for:
(a)waiver of any security for costs order imposed on her; and
(b)a direction setting down the proceeding for hearing, and decisions on her outstanding interlocutory applications.
[3]The defendant opposes the orders sought in these applications.
[4] During a telephone case management conference held on 16 May 2023, I asked Ms Dunstan and Mr Clarke-Parker whether they required allocation of a separate hearing to hear submissions on these interlocutory applications, or whether the applications could be dealt with based on the papers they had filed and any oral submissions they wanted to make at the conference. Ms Dunstan confirmed that she relied exclusively on the written documentation she had already filed, and did not require a separate hearing. Mr Clarke-Parker was also content to rely on the documents he had filed.
Interlocutory application dated 1 May 2023
Recusal for bias
[5]Ms Dunstan claims that I have apparent bias because I:
1 Dunstan v Chief Executive of Department of Corrections HC Auckland CIV-2022-404-002159, 6 April 2023.
(a)dismissed her interlocutory application for allocation of a hearing and for an order for “interim damages”;
(b)directed a second case management conference;
(c)directed her to amend her statement of claim; and
(d)directed that she file a formal application seeking leave to appeal the dismissal of her interlocutory application.
[6] The fact that a Judge decides against a litigant is not an indication of bias, or an indication of an appearance of bias.2
[7] The directions that have been made are orthodox and do not indicate actual or apparent bias.
[8]The application for recusal is therefore dismissed.
Leave to appeal
[9] In Greendrake v District Court of New Zealand,3 the Court of Appeal approved the discussion of the considerations relevant to an application for leave as identified in Finewood Upholstery Ltd v Vaughan.4 In particular, the leave requirement is a filtering mechanism, and the following considerations are relevant on an application for leave to appeal:
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
2 Dunstan v New Zealand Police [2023] NZSC 58 at [6], citing Creser v Creser [2015] NZSC 116 at [6]; N v M [2015] NZSC 185 at [4]-[5]; and Prasad v Indian Publications (NZ) Ltd [2018] NZSC 48 at [4].
3 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.
(c)the alleged error should be of general or public importance warranting determination, or otherwise of sufficient importance to the applicant to outweigh the lack of general of precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice were served by granting leave.
[10] Ms Dunstan’s ground for appeal is that an Associate Judge does not have jurisdiction to dismiss an interlocutory application.
[11] Ms Dunstan is wrong. An Associate Judge has the jurisdiction and powers of a Judge in chambers conferred by the Senior Courts Act 2016, or the High Court Rules or another enactment.5 An interlocutory application is heard in chambers unless the Court otherwise directs.6
[12] A Judge may, on the Judge’s own initiative, make an order or give directions to ensure that an interlocutory application that is plainly an abuse of process of the Court is disposed of, or proceeds in a way that complies with the rules, including (without limitation) an order under r 15.1 that the application is struck out, stayed, or stayed on conditions.7 Associate Judges can make orders or give directions (in chambers) under this rule, in contrast to rr 5.35A – 5.35C, which concern plainly abusive proceedings.
[13] Ms Dunstan has not identified an arguable error. The application for leave to appeal my decision of 16 March 2023 is dismissed.
5 High Court Rules 2016, r 2.1(1). See also s 22 of the Senior Courts Act 2016.
6 Rule 7.34.
7 Rule 7.42A.
Interlocutory application dated 12 May 2023
Waiver of security for costs
[14] Ms Dunstan applies for an order waiving any security for costs that may be imposed on her, due to extreme financial hardship.
[15] There is no existing order for security for costs. Ms Dunstan’s financial position will be considered in the context of an application by the defendants for security for costs, should the defendants file such an application. The order Ms Dunstan seeks is premature: there is nothing to waive.
[16] Ms Dunstan asks that her substantive proceeding be set down to be heard on the next available hearing date. On 16 May 2023 I directed that a five day trial be set down on the first available date.8
[17] The remaining aspect of her interlocutory application, that all outstanding interlocutory applications be addressed, is now resolved.
Result
[18] Ms Dunstan’s interlocutory applications dated 1 and 12 May 2023 are dismissed.
Associate Judge Gardiner
8 Dunstan v Chief Executive of Department of Corrections HC Auckland CIV-2022-404-002159, 16 May 2023 at [9].
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