Dunstan v Christchurch

[2023] NZHC 2793

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-320

[2023] NZHC 2793

BETWEEN

TANYA FELICITY DUNSTAN

Applicant

AND

CHRISTCHURCH DISTRICT COURT

First Respondent

RMC
Second Respondent

SG

Third Respondent

Hearing:

25 September 2023

Appearances:

Applicant in person

M W McMenamin for First Respondent No appearance for Second Respondent G P Tyrrell for Third Respondent

Judgment:

5 October 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 5 October 2023 at 3.45 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DUNSTAN v CHRISTCHURCH DISTRICT COURT [2023] NZHC 2793 [5 October 2023]

[1]                 This is an application for judicial review of the District Court’s decision not to accept a charging document for filing. The application is brought by Ms Dunstan who sought to prosecute the second and third respondents. The charge alleged is the offence of conspiring to defeat the course of justice.

[2]                 The first respondent is the Christchurch District Court. The second respondent is RMC, formerly lawyer for the child in Family Court proceedings Ms Dunstan was involved in. The third respondent, SG, is a solicitor who witnessed the swearing of an affidavit by RMC.

[3]                 When these proceedings were called on 14 August 2023, Churchman J issued a detailed minute identifying there were “fundamental problems” with the pleadings. He said notwithstanding they are said to be judicial review proceedings, the applicant’s three causes of action had nothing to do with judicial review.

[4]                 In his view, the proceedings had not been validly commenced. However, rather than simply striking them out, he granted Ms Dunstan the opportunity to replead them in an attempt to rectify the defects he had identified.

[5]                 I presided over the next callover of these proceedings. Ms Dunstan had made no attempts to amend her pleadings in advance of the callover.

The position of the parties

[6]                 As is conventional, the first respondent, represented by Mr McMenamin, is abiding the decision of the Court but appeared reserving rights to be heard on the question of costs.

[7]                 There was no appearance by the second respondent. Mr Tyrrell appeared for the third respondent. His position was that Ms Dunstan was in default of the directions to replead her case and the proceeding should be struck out on this basis alone. He also submitted that the proceedings were an abuse of process and should be struck out to protect not only the parties, but the integrity of the court system.

[8]                 Ms Dunstan was undeterred by the guidance given in Churchman J’s minute and maintained that the proceedings had merit and should not be struck out.

[9]                 Accordingly, I have also considered the proceedings application for judicial review and reached my own decision on whether they should be struck out.

[10]              The jurisdiction for this Court to strike out proceedings arises under HCR     r 15.1(1). That provides:

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

[11]              Here, I approach the question of whether the proceedings should be struck out on the basis they disclose a reasonably arguable cause of action, or case appropriate to the nature of the pleading. While a court will hesitate to strike out a pleading if it is capable of amendment, I note Ms Dunstan has been given this opportunity and refused to take it. For this reason, I consider the claims as currently pleaded.

The claim

[12]              The first cause of action refers to s 116 of the Crimes Act 1961 and alleges that “a knowingly false affidavit prepared by [RMC] and unlawfully sworn by [SG] acknowledging in breach of the oaths declaration as non exhibits [sic]were produced or sighted at the time of swearing the affidavit [RMC] filed to the High Court on    25 April 2023”.

[13]              This simply repeats the allegations of the charge. It does not identify a potentially reviewable error.

[14]              The second cause of action again refers to s 116 of the Crimes Act and also to the duty of honesty to the Court which lawyers have under the Lawyers and

Conveyancers Act (Lawyers: Client and Conduct Care) Rules 2008. Ms Dunstan then alleges that SG was aware of RMC’s “misconduct” and, by failing to report her, was guilty of conspiring to defeat justice. Again, this simply repeats the allegations being made in the proposed changes. It does not identify a potentially reviewable error.

[15]              The third cause of action refers to the judicial oath and effectively asserts that the Judge’s decision was in breach of this obligation. However, judicial review is not a vehicle for bringing claims for criminal offending, breaches of statutory duty or to say the Judge’s decision was wrong and should be reconsidered. It is to review the exercise of a public power and to confirm whether that was done in a lawful, reasonable and procedurally fair way. The pleading against the first defendant clearly needed to be amended to identify what aspects of the exercise of the power by the District Court was said to be unlawful. She did not do this.

[16]              At the call-over Ms Dunstan suggested that the Judge erred in rejecting the charging documents for filing without requiring her to file supporting evidence, as the Court of Appeal saw was required. In that case the charging document was rejected for filing for “want of form and because the evidence filed is insufficient to justify”. However, the District Court Judge did not direct Ms Dunstan to file formal statements and exhibits, under s 26(1)(b) of the Criminal Procedure Act 2011 and the Court of Appeal held, as this did not occur, there was a fundamental procedural error in the District Court’s decision.

[17]In the present case, however, there are two distinctions.

(a)First, Ms Dunstan filed evidence and exhibits in support of the charging documents, being her own witness statement, and advised the Court by email on 9 May 2023 that “the case is clear, the evidence is concise” so the Judge should accept the “compliant documents for filing and direct a callover”. In circumstances where Ms Dunstan alleged she had filed sufficient evidence to support the charge, it is difficult to see that there was any obligation on the Judge to call for further evidence before determining whether the evidence was sufficient to support the charge.

(b)In addition, unlike the Court of Appeal decision she relies on, this proceeding was also rejected on the grounds it was an abuse of process. That did not require evidence to be filed. It was a decision made on the information available on the face of the document.

[18]              For all the above reasons, I am satisfied that the proceedings should be struck out. The stated causes of action do not identify an error amenable to judicial review.

Result

[19]The proceedings are struck out. Costs are reserved.

Solicitors:

Crown Law, Wellington

Copy to: Ms Dunstan