Dunstan v Legal Complaints Review Officer
[2023] NZHC 2791
•5 October 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-316
[2023] NZHC 2791
BETWEEN TANYA FELICITY DUNSTAN
Applicant
AND
THE LEGAL COMPLAINTS REVIEW OFFICER
First Respondent
AND
RMC
Second Respondent
Hearing: 25 September 2023 Appearances:
Applicant in person
M W McMenamin for First Respondent No appearance for Second Respondent
Judgment:
5 October 2023
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 5 October 2023 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
DUNSTAN v THE LEGAL COMPLAINTS REVIEW OFFICER [2023] NZHC 2791 [5 October 2023]
Introduction
[1] The applicant, Tanya Dunstan, has made this application for judicial review under the Judicial Review Procedure Act 2016.
[2] The proceedings arise as a result of Ms Dunstan’s dissatisfaction with the outcome of a legal complaints review process in respect of her complaint about the second respondent, who was appointed as lawyer for the child in Family Court proceedings Ms Dunstan was involved in.
[3] When these proceedings were called in the duty Judge list on 14 August 2023, Churchman J issued a lengthy minute identifying difficulties with this, and another judicial review proceeding filed by Ms Dunstan. In particular, he noted that while these proceedings were said to be commenced by way of judicial review, Ms Dunstan then pleaded nine causes of action against the respondents, none of which disclosed a cause of action capable of proceeding by way of judicial review. Rather than strike it out at that point, he granted Ms Dunstan the opportunity to replead her claim to rectify the defects he had identified. He then adjourned the proceedings, affording Mr Dunstan 14 days to file and serve any repleaded proceedings and directed the proceedings to be called again in approximately three weeks’ time.
[4] Ms Dunstan did not take up this opportunity. Instead, she applied to have Churchman J recall the minute and recuse himself. The Judge declined to do so in a further judgment dated 1 September 2023.1 She then filed yet a further recall and recusal application on 6 September 2023 which was struck out as an abuse of process under r 7.42A of the High Court Rules 2016, with Associate Judge Lester noting Churchman J had already ruled on these issues in his 1 September 2023 judgment.2
Should the proceedings be struck out?
[5] Like Churchman J, I have read Ms Dunstan’s pleadings and I do not consider any of the causes of action pleaded are capable of proceeding by way of judicial
1 DFT v MR [2023] NZHC 2437.
2 DFT v MR [2023] NZHC 2548.
review. I therefore must decide whether to strike the proceedings out under r 15.1(1) High Court Rules. That rule 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.
[6] I consider, first, whether the pleaded causes of action are appropriate to the nature of the pleading under r 15.1(1)(a). That is, is it reasonably arguable that the pleaded claims, and the relief sought, can be addressed on an application for judicial review?
[7] Ms Dunstan pleads nine causes of action against the respondents. In summary these are:
(a)A claim an offence has been committed by the New Zealand Law Society (NZLS) under s 3(1) of the Crimes of Torture Act 1989, (although the NZLS is not named as a respondent in the proceeding).
(b)A claim that an offence has been committed under s 116 and s 195 of the Crimes Act 1961 in that a “knowingly false TPO [Temporary Protection Order] application” was filed in bad faith discrediting Ms Dunstan and concealing disclosures of abuse. This appears to be alleged against the second respondent who is the former lawyer for child in Family Court proceedings Ms Dunstan was involved in and two other persons who are not named as respondents in the proceedings.
(c)A claim of offending under ss 116 and 195 of the Crimes Act alleging that lawyer for the child and another concealed “6 months of unlawful breaches of contact in parenting orders” so “misleading justice to secure restrictive orders in bad faith”.
(d)A claim under s 3 of the Harassment Act 1997 and s 116 of the Crimes Act alleging “unlawful abduction of children” against the terms of the final parenting orders which was “orchestrated” by lawyer for the child.
(e)A claim alleging an offence under s 115 of the Crimes Act, of conspiring to bring false accusation in that the second respondent and another person arranged for “arrests” when there was no lawful basis to charge Ms Dunstan.
(f)A claim of offences under s 3 Crimes of Torture Act, ss 115 and 116 of the Crimes Act, and the Harassment Act against persons who are not respondents in the proceedings alleging that Ms Dunstan was unlawfully detained in solitary confinement for six days.
(g)A claim alleging a breach of the Lawyers and Conveyancers Act 2008 because of a failure by the first respondent to report lawyer for the child’s “offending”, contrary to his mandatory obligation under that Act.
(h)A claim alleging a breach of the obligation under the Lawyers and Conveyancers Act to refrain from engaging in conduct that is misleading or deceptive or likely to mislead or deceive, by the second respondent fabricating an email from the Legal Complaints Review Officer’s (LCRO) office to prove service on Ms Dunstan.
(i)A claim alleging a breach of the duty not to engage in misleading or deceptive conduct by the LCRO who dealt with her proceedings.
[8]Ms Dunstan also seeks a range of relief. This includes, in summary:
(a)a formal declaration that the LCRO had a duty to protect Ms Dunstan and regulate the NZLS which she alleges they have failed to uphold and thus have committed the “tort of professional negligence”;
(b)a formal public apology from the NZLS and the LCRO;
(c)an award of compensation of $25,000 in respect of each offence the LCRO “failed to regulate”;
(d)that this Court direct the LCRO to direct charges be laid (presumably against the second respondent); and
(e)a refund from the LCRO of the two $50 filing fees she paid in respect of the review she sought.
She notes a number of these remedies are remedies that the LCRO has jurisdiction to make when reviewing a decision of a Standards Committee.
Discussion
[9] I concur with Churchman J in saying that Ms Dunstan “appears to fundamentally misunderstand the nature of judicial review” even though this has been set out in earlier decisions.3
[10] Judicial review is not a vehicle for enforcing the criminal law, nor for enforcing duties in the law of tort. It is, as Lord Templeman said in Mercury Energy Ltd v Electricity Corp of New Zealand Ltd:4
… a judicial invention to secure that decisions are made by the executive or by a public body according to law even if the decision does not otherwise involve an actionable wrong.
[11] I am satisfied that none of the causes of action genuinely seek to review the exercise of a statutory power of decision.5 The allegations made by Ms Dunstan include allegations against people who are not named in the proceedings. Ms Dunstan also wrongly equates the power of this Court to make orders on an application for judicial review with the powers given to the LCRO when reviewing a decision of a Standards Committee. However, judicial review is not a vehicle for revising the
3 For example, in DFT v The New Zealand Law Society and RMC [2021] NZHC 2080 at [34].
4 Mercury Energy Ltd v Electricity Corp of New Zealand Ltd [1994] 2 NZLR 385 (PC).
5 Sections 3 and 5 Judicial Review Procedure Act 2016.
substance of an earlier decision and granting relief accordingly. As French J said in
Aorangi School Board of Trustees v Ministry of Education:6
The third observation I would make is that, contrary to popular belief, judicial review is not an appeal. It is not about the Court considering the information afresh and coming to its own views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decisionmaker being required to start afresh, as opposed to quashing the decision for all time.
[12] I am satisfied that the proceedings are so fundamentally flawed, and Ms Dunstan so clearly opposed to revising her proceedings so that they are focused on matters which judicial review can address, that the proceedings should be struck out.
[13] Accordingly, these proceedings are struck out under r 15.1(1)(a) High Court Rules, in that they disclose “no reasonably arguable cause of action … or case appropriate to the nature of the pleading”.
[14] Given I have found striking out is justified under r 15.1(1)(a), I do not need to consider whether the proceedings are frivolous or vexatious or otherwise an abuse of the process of the Court. That does not mean that those grounds are not available. It simply means I need not consider them.
Naming of the parties and suppression
[15] I note, finally, that at the last call-over Ms Dunstan raised an objection to the anonymisation of the proceedings. Churchman J has anonymised the proceedings consistently with other proceedings that have involved some of the same parties, for example, DFT v JDN.7
[16] I assume that is because these proceedings have their genesis in proceedings in the Family Court where statutory suppression orders apply. Given there is no reference to Ms Dunstan’s children in this case, it is not necessary to make any
6 Aorangi School Board of Trustees v Ministry of Education CIV-2009-409-2812 HC Christchurch [21 December 2009], [2010] NZAR 132 at [8].
7 DFT v JDN [2023] NZCA 15.
suppression order in relation to this judgment and Ms Dunstan can, as she wishes, be named.
[17] I will, however, retain the suppression relating to the second respondent who was lawyer for the child. That maintains consistency with other reports of proceedings involving that person and I have not heard from her as to whether, in the present circumstances, a different course of action should be taken.
[18] I also note that Ms Dunstan was incorrect to name the first defendant personally. As Mr McMenamin points out, the LCRO is a quasi-judicial officer, and as such, under or by analogy with s 9(3) of the Judicial Review Procedure Act, the first defendant should be referred to in the intituling as the “Legal Complaints Review Officer”. That is appropriate and I make an order accordingly.
Solicitors:
Crown Law, Wellington
Copy to: Ms Dunstan
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