Dunstan v Manukau District Court

[2023] NZHC 3062

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001376

[2023] NZHC 3062

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

MANUKAU DISTRICT COURT

First Defendant

CHRISTINA RIDDELL
Second Defendant

ANITA ELLIS
Third Defendant

ALLAN NIXON

Fourth Defendant

Cont’d

Hearing:

14 August 2023

Appearances:

T F Dunstan in Person

Y Mortimer-Wang as Counsel assisting the Court

Judgment:

31 October 2023

JUDGMENT OF ANDERSON J

(Costs and disbursements)

This judgment was delivered by me on 31 October 2023 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules 2016.

……………………………… Registrar/Deputy Registrar

Solicitors: Crown Law, Wellington

DUNSTAN v MANUKAU DISTRICT COURT [2023] NZHC 3062 [31 October 2023]

JOHN DUDLEY NEILL

First Defendant

CAROL MARGARET MONTAGUE NEILL

Sixth Defendant

KAREN ALLEN
Seventh Defendant

[1]                 In my judgment of 29 September 2023, in judicial review proceedings brought by Ms Dunstan, I set aside the decision of Judge D McNaughton dated 11 May 2022 declining to accept the plaintiff’s charging documents for filing and remitted the matter back to the District Court at Manukau.1

[2]                 As is customary, the first respondent (District Court) abided the decision of the Court. The other respondents took no substantive steps in the proceeding. Nor did they have any involvement in the underlying decision of the District Court.

[3]                 In her memorandum of 2 October 2023, Ms Dunstan raised a number of matters including the question of costs and disbursements. In my minute of 6 October 2023,

I recorded that:2

[8]  Ms  Dunstan is entitled to disbursements incurred in the appeal  in  which she is successful being the appeal against Judge McNaughton’s decision in CIV-2022-404-1376. The disbursements need to be limited to those recoverable under r 14.12 of the High Court Rules. I invite Ms Dunstan to provide a memorandum identifying in a schedule the disbursements she seeks and the basis for these. For example, filing fees in respect to the application would be recoverable.

[4]                 In Ms Dunstan’s memorandum I was not directed to several decisions of plain relevance in respect to recovery of costs or disbursements against a judicial body in judicial review proceedings. The leading case is Coroner’s Court v Newton.3 There are a number of associated High Court authorities such as Xu v Manukau District Court;4 Prescott v District Court at North Shore;5 and Greendrake v District Court at Invercargill.6

[5]                 In Newton the Court of Appeal held that only rarely will costs be awarded against a judicial officer or judicial institution. Errors of law will not, of themselves, support an award of costs. It must be shown that there was judicial conduct that was

1      Dunstan v Manukau District Court [2023] NZHC 2938.

2      Dunstan v Manukau District Court HC Auckland CIV-2022-404-1376, 6 October 2023.

3      Coroner’s Court v Newton [2006] NZAR 312 (CA).

4      Xu v Manukau District Court [2013] NZHC 2312, [2013] NZAR 1405.

5      Prescott v District Court at North Shore [2018] NZHC 485.

6      Greendrake v District Court at Invercargill [2021] NZHC 26.

“particularly egregious” such as the officer acting “perversely, oppressively or in bad faith.”7 In Newton the Court of Appeal went on to say:8

The question is not whether the applicant is in some sense “deserving” of costs

— in a large sense, such a person often will be. The critical point is that the order for costs is an expression of disapproval of the conduct of the judicial officer in character. There must be a clear basis for such an order.

[6]                 While Newton related to the issue of costs, the default position of non-recovery extends to disbursements.9

[7]                 My decision to set aside Judge McNaughton’s decision was on the grounds of error of law. This was because his Honour did not direct formal statements and the exhibits to be filed before considering whether to accept charges for filing. That does not warrant the making an award of costs or disbursements against the District Court at Manukau. Accordingly, there is no basis for an order for payment.10

[8]                 By my minute I did not direct payment of disbursements or direct by whom they would be payable. I have not yet fixed costs or disbursements or referred disbursements to be fixed by the Registrar. In those circumstances, it remains open for me to conclude that no costs or disbursements are payable.11

[9]                 If, contrary to that view, paragraph [8] of my 6 October minute has status as a judgment for payment of disbursements, it is appropriate that I exercise my discretion to recall it. A judge may recall a decision in only very limited circumstances. One such circumstance is where the Court has not been referred to an authoritative decision of plain relevance.12 Another is where some very special reason exists.13

[10]              My 6 October minute was issued without the Court being referred to the Newton decision and the others referred to above. As well, because the circumstances in which such an order can be made against a judicial body are exceptional and imply

7      Coroner’s Court v Newton, above n 3, at [44] and [46].

8      Coroner’s Court v Newton, above n 3, at [46].

9      Greendrake v District Court at Invercargill, above n 6, at [19]–[22].

10     As the other respondents had no role in either the High Court or underlying decision there is no basis for costs against them as per Hong v Deliu [2016] NZCA 75, [2016] NZAR 667 at [24].

11     Cf Parris v Television New Zealand Ltd (1999) 14 PRNZ 172

12     Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [11.9.01(5)].

13     At [11.9.01(6)].

egregious conduct or bad faith, recalling the decision is necessary to avoid the taint of that implication, when the circumstances do not warrant such an order, and the parties have not been heard.

[11]              For completeness, in her 6 October memorandum, Ms Dunstan sought (among other things) petrol costs of $120 and time for preparation for the hearing of $5,258. The latter are not recoverable by a self-represented litigant.14 The former are travel costs within Auckland and are not recoverable.

Order

[12]Ms Dunstan’s application for costs and disbursements is declined.

[13]              If and to the extent recall is necessary, I recall paragraph [8] of my minute dated 6 October 2023.

Anderson J

14     McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].