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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunstan v Harrop

Details

AGLC: Dunstan v Harrop [2024] NZHC 760
Case: [2024] NZHC 760
Decision Date: 10 April 2024

CaseChat Overview and Summary

The High Court reviewed a decision by the Registrar of the Wellington District Court to decline Tanya Felicity Dunstan’s application for a fee waiver in a matter concerning her appeal against a ruling made by Judge Harrop. The primary legal issue was whether the Registrar’s decision to decline the fee waiver was justified, and whether the applicant had leave to bring proceedings seeking the recusal of Judge Harrop and a recall of his decision. The court also considered the merits of the applicant’s proposed civil proceeding.

The court found that the Registrar was correct in declining the fee waiver application as the applicant had failed to follow the requirement to file a fresh application with current financial information for each proceeding. The court rejected the applicant’s argument that the decision of another judge to grant a fee waiver should have been binding on the Registrar. The court further held that the applicant’s proposed proceeding was misconceived and lacked merit as it was based on an incorrect understanding of the law relating to the jurisdiction of the Court and the process for seeking recusal of a Judge. The court concluded that the applicant’s disregard for the Registrar’s reasonable recommendations concerning the fee waiver application also raised concerns about the manner in which the proposed proceeding would be conducted.

The court dismissed the application for review of the Registrar’s decision and also dismissed the application for leave to bring the civil proceeding. The court noted that the applicant had engaged in a series of unmeritorious proceedings in relation to the review of Registrars’ decisions and the recusal of various Judges, which was one of the reasons the s 166 order had been made. The court emphasised the need for the applicant to follow the correct legal processes and to conduct proceedings in a manner that respected the Court’s authority and jurisdiction.

The court made no orders for costs in relation to the review application, but noted that the applicant’s leave application was “obviously without merit” and that the applicant had “not demonstrated any likelihood of success in the proposed proceeding.” The court warned the applicant that further unmeritorious proceedings could result in costs orders against her.

Orders