Dunstan v Harrop

[2024] NZHC 760

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-181

[2024] NZHC 760

UNDER

the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Criminal Procedure Act 2011, and High Court Rules 2016

BETWEEN

TANYA FELICITY DUNSTAN

Applicant

AND

AND

WELLINGTON DISTRICT COURT JUDGE HARROP

First Respondent

SHEENA SPIERS

Second Respondent

Hearing:	On the papers
Judgment:	10 April 2024

JUDGMENT OF McHERRON J

(1)  Review of Registrar’s decision to decline fee waiver application

(2)Application for leave to bring proceedings

Introduction

[1]    On 28 March 2024, Judge Harrop directed the Registrar of the Wellington District Court not to accept a charging document filed by Tanya Dunstan against a Registrar of this Court, alleging an offence against s 116 of the Crimes Act 1961.1

[2]    The Judge found the evidence provided by Ms Dunstan was insufficient to justify a trial in terms of s 26(3)(a) of the Criminal Procedure Act 2011. Judge Harrop

1      Dunstan v Spiers [2024] NZDC 6884.

DUNSTAN v WELLINGTON DISTRICT COURT JUDGE HARROP [2024] NZHC 760 [10 April 2024]

also noted that the proposed private prosecution was an abuse of the Court’s process. It was, according to the Judge, an attempt to circumvent the High Court’s recent decision under s 166 of the Senior Courts Act 2016 restraining Ms Dunstan from commencing or continuing civil proceedings without first obtaining leave of a Judge of this Court.2

Ms Dunstan’s application for fee waiver

[3]    The day after Judge Harrop gave his judgment, Ms Dunstan applied to the High Court for leave to commence a civil proceeding. The application is described in its intitulement as an “… urgent recusal application for Justice [sic] Harrop to recall his decision of 28 March 2024…”.

[4]    Ms Dunstan applied for waiver of the $200 fee for her leave application. However, the Registrar did not consider the way in which Ms Dunstan applied for waiver complied with the applicable rules. As the Registrar explained in an email to Ms Dunstan on 4 April 2024:

Ms Dunstan,

No, I will not accept the fee waiver originally filed. It is not a fresh fee waiver. It is a fee waiver you have used in a Court of Appeal matter, or if you refer to the first one, filed on 29 March 2024, this was not fresh either, it is from July last year. Hence me asking for a new one for this current proceeding. I asked for a new fee waiver, and you provided another old fee waiver.

This issue is very similar to the decision of McQueen J I refer to below. I haven’t declined your fee waiver yet, as I wanted to give you the opportunity to file a correct waiver. However, if you take that as me declining your application, please let me know and I will decline it on the grounds I have raised below and refer your request for review to a Judge for consideration.

[5]    The grounds “raised below” were set out by the Registrar in an email sent earlier the same day, as follows:

You need to file a fresh fee waiver for each proceeding, just because another deputy registrar granted a fee waiver in another matter doesn’t mean it will be granted elsewhere, although it is likely if your situation hasn’t changed.

2      Re Dunstan [2023] NZHC 3176.

[6]Ms Dunstan sought a review of the Registrar’s decision.3

[7]    In the decision to which the Registrar referred, McQueen J determined that the Deputy Registrar had correctly rejected a fee waiver application because Ms Dunstan had recycled a previous application form, rather than file a new one.4 McQueen J encouraged Ms Dunstan to take greater care with any application for fee waiver in the future. In particular, she should use a new form for each application and the grounds on which it is submitted that a waiver should be given should be clearly indicated.

[8]    However, McQueen J considered that Ms Dunstan had established financial hardship, having recently been granted a waiver on those grounds in the same proceeding. Considering it was very likely that her second application for fee waiver would also be granted if properly made, McQueen J granted the fee waiver.

[9]    I am not persuaded that the same approach is warranted in the present matter. Ms Dunstan did not follow McQueen J’s recommendation to take greater care to ensure that future fee waiver applications are specific to the application being made with current information relating to her financial circumstances.5 Her Honour’s benevolent approach in that case should not have been interpreted as an invitation to ignore the requirement to file a fresh application with fresh supporting financial information in future cases.

[10]   I confirm the Registrar’s decision to decline Ms Dunstan’s application for fee waiver and dismiss Ms Dunstan’s review of that decision.

[11]   Accordingly, Ms Dunstan’s application for review of the Registrar’s decision to decline her fee waiver application in respect of her application for leave under s 169 of the Senior Courts Act 2016 is dismissed.

[12]   My decision to dismiss Ms Dunstan’s fee waiver review, disposes of her application. However, in case I am wrong to dismiss the application to review the

3      Senior Courts Act, s 160.

4      Dunstan v Wellington District Court HC Wellington CIV-2023-485-390, 9 November 2023 (Minute of McQueen J) at [15].

5      High Court Fees Regulations 2013, regs 18 and 19.

Registrar’s decision, I will proceed to consider Ms Dunstan’s application for leave to commence a civil proceeding.

Criteria for considering s 169 applications for leave

[13]   As Ellis J recently pointed out, s 169 of the Senior Courts Act itself contains no criteria or guidance as to the grant of leave once an s 166 order is made.6 Ellis J adopted the flexible approach suggested by Campbell J in Dokad Trustees Ltd v Auckland Council.7 In that case, Campbell J noted that s 169 is “not prescriptive”. He described a “broad discretion” for considering leave applications. Relevant factors can include:

(a)the apparent merit of the proposed proceeding;

(b)the manner in which the proposed proceeding is likely to be conducted; and

(c)any connection between the proposed proceeding and earlier proceedings leading to the s 166 order.

[14]   Campbell J also observed that the leave discretion should be exercised with “restraint”, given the existence of the s 166 order establishes already that the applicant has repeatedly “engaged in litigation which was totally without merit and has conducted the litigation in a way justifying a restraining order”.8 The burden is on the applicant to satisfy the Court that leave should be granted.

Should leave be granted?

[15]In her application, Ms Dunstan seeks the following remedy:

… for Judge Harrop to immediately recall his decision and recuse himself for an impartial Judge to make a just and fair ruling that is legally founded.

[16]Ms Dunstan says:

6      Dunstan v Wellington District Court [2023] NZHC 3280 at [9].

7      Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603 at [55].

8 At [58].

(a)Judge Harrop erred in determining this matter because he had a previous recusal application filed against him which he “unlawfully ignored”;9

(b)there was an appeal of a previous decision of Judge Harrop in one of her matters; and therefore

(c)his consideration of further matters involving her was in breach of what she describes as a “BINDING recusal decision of Judge Kelly”.

[17]   Ms Dunstan also considers that Judge Harrop’s decision contains some obvious errors, and some errors of law.

[18]   I have concluded that Ms Dunstan’s application for recusal of Judge Harrop has no merit and therefore should not proceed. My reasons can be briefly stated.

[19]   A recusal decision is a decision to be made by the individual Judge who is being asked to recuse themselves.10 A decision by Judge Kelly to recuse himself would not have been binding on Judge Harrop. If asked to recuse himself from hearing a specific matter, Judge Harrop would need to make his own mind up according to the established recusal criteria. The same can be said for the decision to recall a judgment.11

[20]   An application for recusal of a Judge or for that Judge to recall their decision should be made to the particular Judge, or to the particular Court where that Judge sits.12 If that Judge has retired or is unavailable, then another Judge of the same Court can consider a recall application. A first instance recusal or recall application cannot be considered by a different Court.

9      Ms Dunstan provided as a supporting document to her application for leave an application for recusal of both Judge Davidson and Judge Harrop. However, that recusal application related to a different proceeding: Dunstan v Independent Police Conduct Authority (CIV 2023-085-232). On 24 August 2023, Judge Harrop issued a minute declining to deal with the recusal application because it was “premature and hypothetical. Recusal applications are fact-specific and must be made in respect of a particular hearing.”

10     District Court Act 2016, s 217.

11     District Court Rules 2014, r 11.9.

12     See District Court Recusal Guidelines, available on the District Court’s website.

[21]   Judge Harrop is a District Court Judge.  Therefore,  any  application  for Judge Harrop to recuse himself from a particular matter, or to recall a decision that he has made, needed to be made to the District Court.

[22]   The High Court has no jurisdiction at first instance to direct that a District Court Judge stand aside from hearing or determining a particular matter or recall a decision the Judge has made.

[23]   It follows that Ms Dunstan’s application is misconceived and should not proceed, primarily because it lacks any merit. In addition, Ms Dunstan’s unwillingness to follow the perfectly reasonable recommendations of the Registrar and McQueen J in relation to the filing fee waiver application gives me cause for concern about the manner in which the proposed proceeding is likely to be conducted. Further, the proposed proceeding is one of a number of unmeritorious proceedings relating to the review of Registrars’ decisions and the recusal of various Judges, as catalogued in the s 166 decision.13

[24]I dismiss the leave application under s 169.

Result

[25]   Ms Dunstan’s application for review of the Registrar’s decision to decline her application for a fee waiver to bring an application for leave under s 169 of the Senior Courts Act 2016 is dismissed.

[26]   Ms Dunstan’s application for leave to commence a proceeding seeking that Judge Harrop recuse himself and recall his decision of 28 March 2024 is dismissed.

McHerron J

13     Re Dunstan, above n 2, Appendix One.