Dunstan v Manukau District Court

[2023] NZHC 1442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000361

[2023] NZHC 1442

BETWEEN

TANYA FELICITY DUNSTAN

Appellant

AND

NEW ZEALAND POLICE

Respondent

CIV-2023-404-000561

BETWEEN

TANYA FELICITY DUNSTAN
Appellant

AND

MANUKAU DISTRICT COURT

First Respondent

NEW ZEALAND POLICE

Second Respondent

Hearing:	On the papers at Auckland
Date of Minute:	9 June 2023

JUDGMENT OF POWELL J

[Costs]

This judgment was delivered by registrar/deputy registrar on 9 June 2023 at 4.00 pm pursuant to R 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

TANYA FELICITY DUNSTAN v NEW ZEALAND POLICE [2023] NZHC 1442 [9 June 2023]

[1]    On 23 May 2023 I observed in my Minute (No.3) that Ms Dunstan’s appeals (CIV-2023-404-361 and CIV-2023-404-561) had been abandoned following her failure to pay her security for costs as directed. In the event Police sought costs, I set out a timetable to enable costs to be determined.

[2]    Both parties have now filed submissions on costs. The Police seek costs in the sum of $5,258 on a 2B basis, for the steps taken to respond to both appeals before they were abandoned.

[3]    Ms Dunstan opposes any award of costs on the basis that the decision imposing security for costs was in error “and failed to award the appellant a right to be heard or file any supporting evidence for the case to waive any imposed security costs”. In addition Ms Dunstan opposes the amount of costs sought on behalf of the Police and takes particular issue with the Police claim for “commencement of response to appeal” in respect of both appeals. Ms Dunstan also raised various matters with regard to counsel for the Police and his duty to the Court, and concluded her submissions by stating:

I continue to seek Justice Powell rescind his decision and grant leave [of which he alleged on 30 May 2023 was not required] in order for the Court of Appeal to remedy this miscarriage of justice.

Costs exceeding the costs initially sought by counsel are clearly an abuse of court processes as a function to further impose financial hardship on victims of abuse, in breach of natural justice and New Zealand Bill of Rights Act 1990, s18 and discrimination Human Rights Act 1993, s 21.

Discussion

[4]    Security for costs was imposed in my first Minute issued in respect of those appeals and dated 18 April 2023. It cannot be challenged in the context of determining the costs payable on the abandoned appeals. Given this position there is no basis for concluding other than that costs should follow the event,1 namely the abandonment of the appeal as a result of a failure to pay security for costs as directed.

[5]    Having considered Ms Dunstan’s submissions I likewise conclude that the amounts sought according to scale are appropriate and observe that the

1      High Court Rules 2016, r 14.2(1)(a).

commencement of the Police’s response to the appeals2 did not require consideration of Ms Dunstan’s substantive submissions, which as she notes had not been filed at the time the appeal was abandoned. There is otherwise no basis for reducing the amount sought, and I therefore conclude judgment should be given for the sum sought by the Police.

[6]    Finally, for completeness while Ms Dunstan has referred to seeking leave to appeal the decision imposing security for costs I have been unable to locate any such application on the court file.

Decision

[7]    On the abandonment of appeals CIV-2023-404-361 and CIV-2023-404-561 Ms Dunstan is to pay the New Zealand Police costs in the sum of $5,258.

Powell J

2      High Court Rules 2016, sch 3.