Dunstan v North Shore District Court

[2024] NZHC 1706

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-300

[2024] NZHC 1706

UNDER

the Judicial Review Procedure Act 2016, High Court Rules 2016, Criminal Procedure Act 2011, Declaration Act 1908,
New Zealand Bill of Rights Act 1990 and Human Rights Act 1993

BETWEEN

TANYA DUNSTAN

Applicant

AND

NORTH SHORE DISTRICT COURT

Respondent

Judgment:

(On the papers)

26 June 2024

JUDGMENT OF BREWER J

(Costs)

This judgment was delivered by me on 26 June 2024 at 11.30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law (Wellington) for First to Eighth Respondents

(Applicant in person)

DUNSTAN v NORTH SHORE DISTRICT COURT [2024] NZHC 1706 [26 June 2024]

Introduction

[1]This is a costs judgment.

[2]        Ms Dunstan applies for costs following my judgment in her favour on an application for judicial review.1

[3]        The proceeding for judicial review concerned a decision in the North Shore District Court by Judge Fraser. Ms Dunstan sought to bring a private prosecution against multiple individuals, apparently seven current or former police officers and a solicitor.2 The Judge refused to accept the charging documents for filing.

[4]        In a minute dated 16 February 2024, van Bohemen J said it was apparent that the process under s 26(1) of the Criminal Procedure Act 2011 (CPA) was not followed.3 Accordingly, Ms Dunstan had potentially been deprived of the opportunity to put her best evidence forward.4

[5]        I found that the Judge made an error of law by not complying with s 26 of the CPA and quashed the District Court decision.5

[6]In my judgment, I concluded:6

Ms Dunstan is entitled to be paid her reasonable disbursements, including costs she has reasonably incurred. Any memorandum from Ms Dunstan addressing this matter must be filed and served no later than 21 working days from the date of this judgment. The first respondent may, as necessary, file a response within a further 21 working days.

Submissions

[7]        On 17 May 2024,7 Ms Dunstan filed submissions for costs and disbursements. Ms Dunstan, under the heading “costs incurred”, seeks:

1      Dunstan v North Shore District Court [2024] NZHC 1208.

2 Minute of van Bohemen J dated 16 February 2024 at [4].

3 At [7].

4 At [8].

5      Dunstan, above n 1, at [5]–[6].

6 At [8].

7      Ms Dunstan also filed a memorandum on 6 June 2024, in response to the Crown’s submissions.

(a)Stationery costs in the sum of $493 including for photocopying ($240), paper purchases ($48), physical postage ($55), petrol costs ($120) and filing fees for a criminal proceeding ($30).

[8]Under the heading “reasonable disbursements”, Ms Dunstan seeks:

(a)The monetary amount of all “filing fees/ waivers and hearing fee” in the sum of $1,470.

(b)Reasonable disbursements on a 2B basis in the sum of $11,950 for time preparing for the “proceedings”.

[9]        Ms Dunstan, in her submissions, appears to confuse costs and disbursements. However, the submissions provide a basis for how Ms Dunstan determined the amount sought in relation to the time expended on the judicial review application:

I seek the following reasonable disbursements for the time consumption on a 2B basis: Total “costs” – reasonable disbursements on a conservative scope for extensively delayed proceedings with a significant volume of documents (of a daily rate of $2,390 being 5 days in total) at $11,950.

[10]      The Crown filed submissions on 6 June 2024. The Crown’s primary position is that Ms Dunstan is not entitled to disbursements, and that costs should lie where they fall. Secondly, none of the amounts sought by Ms Dunstan are recoverable as disbursements in any event.

[11]      The Crown referred to various authorities regarding this Court’s jurisdiction to award costs and disbursements against judicial institutions.8 The decisions emphasise that costs will only be awarded against judicial officers in rare circumstances when the officer has done something that calls for strong disapproval. And that this principle applies to judicial institutions, such as a court, as well as judicial officers.

[12]      Accordingly, the Crown submits that an expression of disapproval of the nature signified by an award of disbursements against the District Court is not warranted in

8      Coroner’s Court v Newton [2006] NZAR 312 (CA); Greendrake v District Court at Invercargill [2021] NZHC 26; Siemer v District Court at North Shore [2013] NZHC 120, [2013] NZAR 168; and Xu v District Court at Manukau [2013] NZHC 2312, [2013] NZAR 1405.

this case. The Court did not act perversely, oppressively or in bad faith. Rather the District Court made an error of law.

[13]      The Crown accordingly seeks judgment confirming that no disbursements are payable by it to Ms Dunstan. The Crown submits that it is open to the Court to enter judgment accordingly, or, otherwise, the Crown says it can prepare and file a formal application to recall part of the substantive judgment concerning disbursements.

[14]      In any event, the Crown says that the disbursements and costs claimed are not recoverable:

(a)The applicant’s claim for $11,950 is not recoverable as she is a self- represented litigant.9

(b)The applicant’s claim for $1,470 for court fees is not recoverable as the fees were waived and not incurred.

(c)As regards petrol costs, these are similarly not recoverable as they were incurred within the Auckland region.10

(d)The amount sought for a filing fee in association with a criminal proceeding, $30, is not recoverable as it was not incurred for the purposes of the present proceeding.

(e)The photocopying, paper purchases and postage costs are also not recoverable as they have not been verified by receipts.11

Decision

[15]      I accept the Crown’s submissions on the law. In the passage of my judgment quoted at [6], I gave effect to my view that Ms Dunstan, as a self-represented litigant

9      Dunstan v Manukau District Court [2023] NZHC 3062 at [11]; McGuire v Secretary for Justice

[2018] NZSC 116, [2019] 1 NZLR 335 at [55].

10     Dunstan v Manukau District Court, above, at [11].

11     High Court Rules 2016, r 14.12.

who, for the second time, has had to appeal the same error in the District Court, should be entitled to reclaim the money she reasonably paid out doing so.

[16]      I did not intend my decision to show “strong disapproval” of a judicial officer, let alone of the District Court. I thought it to be a matter of fairness in the circumstances of this case. I still do.

[17]      The circumstances of this case are not dissimilar from Ms Dunstan’s previous experience in which s 26 of the CPA was not followed. She had to go to the Court of Appeal to have her right finally upheld. The Court of Appeal observed it is a “fundamental procedural error” not to make the directions required in s 26(1) before declining to accept documents.12

[18]      I decline to reverse my decision. I find this is an appropriate case to find a judicial institution liable for disbursements.

[19]      Nevertheless, the Crown correctly points out (summarised at [14]) that most of the money sought by Ms Dunstan is not recoverable. I make specific reference to the

$11,950 sought by Ms Dunstan for time spent preparing the application. This sum is not recoverable because Ms Dunstan is a self-represented litigant.

Orders

[20]      Subject to providing evidence to the Registrar, Ms Dunstan is entitled to disbursements for photocopying, paper purchases and postage as claimed in the sum of $343.

Brewer J

12     [Redacted].