Dunstan v Independent Police Conduct Authority

[2023] NZHC 2961

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-617

[2023] NZHC 2961

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

INDEPENDENT POLICE CONDUCT AUTHORITY

Defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	20 October 2023

JUDGMENT OF GRICE J

(Referral by Registrar under r 5.35B of the High Court Rules 2016)

Introduction

[1]                The Registrar has referred to me for consideration  under r 5.35B  of the  High Court Rules 2016 (the Rules) a statement of claim dated 3 October 2023 filed by Ms Dunstan as plaintiff.

[2]The defendant is the Independent Police Conduct Authority (the IPCA).

Power of the Registrar to refer proceedings

[3]                Rules 5.35A–5.35C of the Rules provide for the Registrar to refer to a Judge proceedings that on their face are an abuse of process. The Judge, if satisfied that the

DUNSTAN v IPCA [2023] NZHC 2961 [20 October 2023]

proceeding is plainly an abuse of the process of the Court, may (among other orders), strike out or stay the proceedings.1

[4]                This strike out jurisdiction is exercised sparingly as it contemplates a litigant being denied the fundamental right of access to the Courts. The abuse must be clear and beyond doubt from reading the claim.2

[5]                 The Court has adopted the following two-limbed test for strike out purposes under the rule:3

(a)whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)whether “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document or, if the irregularities are not obvious on their face, whether right-thinking people would consider the court was exercising poor control of its processes if it permitted the matter to proceed further.4

The statement of claim

[6]                The statement of claim is described on the front page as “Statement of Claim for Tort of Professional Negligence”. The intituling refers to a number of pieces of legislation and “Law of tort”.5

[7]                The pleading is a mixture of narrative and submissions concerning alleged police actions. At [2] under the heading “Introduction” it states: “Since June 2018 I

1      High Court Rules 2016, rr 5.35B(1) and (2)(a)–(b).

2      Siemer v Complete Construction Ltd [2022] NZCA 262, (2022) 26 PRNZ 137 at [40]–[50].

3      Siemer v Complete Construction Ltd, above n 2; and Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].

4      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [33].

5      The references in the intituling are to the New Zealand Bill of Rights Act 1990; Law of tort; High Court Rules 220106 (sic); Crimes of Torture Act 1989; Human Rights Act 1993; Harassment Act 1997; Declarations Act 1908". The reference to the Declarations Act is likely intended to reference the Declaratory Judgments Act 1908 instead.

have been having difficulties with ongoing harassment of the New Zealand Police.” The statement of claim goes on to say that Ms Dunstan had exhausted “all avenues to regulate the New Zealand police to cease their harassment and disregard” for herself and her children’s rights. She says that is not her responsibility but rather that of the IPCA who “promote to the public a service they alleged to be a regulating body of The New Zeland [sic] Police. [Fair Trading Act 1980 s13] [sic]”. It goes on to say the proceedings are brought to the Court “for the address of the judge responsible for the IPCA … for fair and reasonable directions to cease what can only be described as a blatant disregard for the law buy [sic] law enforcement officers spanning for almost 5 years.”

[8]                The document claims relief including damages of $850,000 for the defendant’s “gross lack of professionalism and negligence which at times has appeared malicious and deliberate.” The statement of claim purports to be based on the “tort of professional negligence” but the pleadings indicate the claim is more in the nature of judicial review concerning the regulation of the police. However, if it is a judicial review, the plaintiff has not referred to any relevant decisions that might be the subject of judicial review.

[9]                The document refers to a series of instances involving the police and sets out excerpts from legislation including the Crimes of Torture Act 1989 (s 3, referring to acts of torture), the Crimes Act 1961 (including s 115, referring to conspiring to bring false accusation, and other provisions), the Harassment Act 1997, the Police Code of Conduct and “S13 Fair Trade Act 1986”. The last reference is likely a reference to the Fair Trading Act 1986. Section 13 of that Act relates to persons in trade making false and misleading representations in connection with the supply of goods or services.

Discussion and conclusion

[10]            The pleading does not disclose any comprehensible cause of action. It amounts to a series of allegations by Ms Dunstan regarding police action and excerpts from legislation. The police are not a party to the claim.

[11]            The proceeding is plainly an abuse of the process of the Court. I am satisfied that right-thinking people would consider the Court was exercising poor control of its processes if it permitted the document to be regarded as a proper document or for the matter to proceed further. It is struck out.

[12]            Rule 5.35B(3) requires me to advise the plaintiff of her right to appeal to the Court of Appeal against my decision. I now formally notify her of that right.

Grice J