Dunstan v Churchman

[2023] NZHC 2821

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-522

[2023] NZHC 2821

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

PAMELA CHURCHMAN

First Defendant

AND

PETER CHURCHMAN

Second Defendant

AND

DAVID PARKER

Third Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	9 October 2023

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 9 October 2023 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DUNSTAN v CHURCHMAN [2023] NZHC 2821 [9 October 2023]

Introduction

[1]                 Tanya Dunstan is seeking to file proceedings against a High Court Judge and his wife and against the Attorney-General in the High Court, Christchurch Registry.

[2]                 On 25 September 2023, the Christchurch Registry advised Ms Dunstan that Wellington was the correct registry for filing. Accordingly, the proceeding would not be accepted for filing in the Christchurch Registry. Ms Dunstan was referred to High Court Rules 2016, r 5.1 which sets out the proper registry for filing.

[3]Ms Dunstan applies under r 2.11 for review of that decision by a Judge.

[4]                 Under r 2.11(1) an affected party to an intended proceeding may apply to a Judge, by interlocutory application, for a review of, among other things, a Registrar’s refusal to file a document tendered for filing. On review, a Judge may “… make any orders he or she thinks just”.1

[5]                 I accept, therefore, there is jurisdiction to review the decision not to accept the documents for filing and I proceed to do so.

What is the proper registry?

[6]                 Rule 5.1 sets out the proper registry of the Court in which to file proceedings. The starting point is r 5.1(1)(a) which provides that “when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand”. Here, all the proposed defendants reside in and/or work in Wellington, and it is clearly the proper registry of the Court. An alternative basis on which to identify the proper registry arises – under r 5.1(2) — where the cause of action or a particular part of it arose nearer where the plaintiff resides than to the place where the defendant resides. As Ms Dunstan gives her residence as an address in Auckland, r 5.1(2) does not apply.

1      High Court Rules 2016, r 2.11(2).

May a different registry accept the documents on the ground it is more “convenient”?

[7]                 Ms Dunstan refers to both r 5.1(4) and (5) in support of her application to have the proceedings filed in Christchurch.

[8]                 I am satisfied r 5.1(4) does not apply. That sets out a Judge’s power to deal with the situation where proceedings have in fact been filed in one registry (albeit incorrectly), but a party applies to have the proceedings transferred to the correct registry.

[9]                 Ms Dunstan’s primary submission appears to relate to r 5.1(5), as she asserts that the Christchurch Registry is the “most convenient” registry. In that regard, she indicates that, because of issues of potential bias or conflict of interest, it would be more appropriate for it to be heard in a registry other than the Wellington Registry (where the second defendant usually sits). That is not a relevant factor in deciding the proper registry of the Court. Where there is a potential conflict of interest, the Court will always be careful to have the matter heard by an independent Judge, even if that means scheduling a Judge based elsewhere to hear a matter. Such arrangements do not alter the identity of the appropriate registry.

[10]              Furthermore, whether another Registry is more convenient under r 5.1(5) cannot be determined having regard to the interests of one party alone. Once a proceeding is filed and an application is made to have it transferred to another registry on the grounds it would be more convenient, that decision needs to be made having regard to the interests of all the parties, not just the plaintiff. The appropriate time to consider such an on notice application is once a proceeding has been correctly filed in the proper registry in the first place.

Result

[11]              For these reasons, I uphold the Registrar’s decision to decline to accept these documents for filing in the Christchurch Registry.

Copy to: Plaintiff