Dunstan v Police - [2024] NZHC 2226

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-399

[2024] NZHC 2226

BETWEEN
TANYA DUNSTAN

Applicant

AND

NEW ZEALAND POLICE and

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondents

On the papers:

Appearances:

Applicant in person

Judgment:

9 August 2024

JUDGMENT OF GRAU J

[Application to recall judgment]

[1] On 5 August 2024, I declined Ms Dunstan’s application for leave to commence judicial review proceedings against the New Zealand Police and the Chief Executive of the Department of Corrections. Ms Dunstan required leave because she is restricted from commencing civil proceedings.1 Ms Dunstan’s proposed statement of claim alleged breaches of her right not to be arbitrarily detained, in relation her arrest in December 2018 when she was placed in police, then Corrections, custody before she appeared in Court.2 I declined Ms Dunstan’s application for leave to commence proceedings, principally on the basis that she was raising the same claims that had already been determined by Downs J in an earlier proceeding.3

1      Under s 166 of the Senior Courts Act 2016 (SCA). See Re Dunstan [2023] NZHC 3176.
2      Dunstan v Police [2024] NZHC 2165.
3      Dunstan v Chief Executive, Department of Corrections [2023] NZHC 3221.

DUNSTAN v NEW ZEALAND POLICE and ANOR [2024] NZHC 2226 [9 August 2024]

[2] On 7 August 2024, Ms Dunstan filed an urgent application for recall of my decision. Ms Dunstan says she is concerned that Downs J’s:

… restriction of the proceedings pertaining to acts of torture and 6 causes of action before him from 30 October 2023–1 November 2023 are not fully and frankly before the court for Justice Grau to make a just decision inadvertently cutting [across] natural justice.

[3] Ms Dunstan says it was not until a partial disclosure on 7 June 2023 that she ever saw the warrant for her arrest, and the Court refused to allow her to expand the scope of her claim, with Downs J stating that if she wanted to raise arbitrary detention grounds she would have to file new proceedings. As I understand it, Ms Dunstan considers that, although it might have appeared in her application for leave that her proposed proceeding was ongoing litigation, it was not.

[4] Ms Dunstan has attached the Notes of Evidence from the hearing, and reminded this Court that Downs J’s decision is under appeal. I observe at this point that is not apparent from the Notes of Evidence that Downs J made the statement Ms Dunstan attributes to his Honour. Nor have I seen anything to suggest Ms Dunstan took any steps in that proceeding to amend her claim.

[5] Ms Dunstan then goes on to criticise Downs J further, before reminding the Court that Brewer J’s order to restrict her from commencing proceedings under s 166 of the Senior Courts Act 2016 is also under appeal, and it “must be overturned” as a breach of natural justice obstructing her right to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dunstan v Police

Details

AGLC: Dunstan v Police [2024] NZHC 2226
Case: [2024] NZHC 2226
Decision Date: 9 August 2024

CaseChat Overview and Summary

Tanya Dunstan sought leave to commence judicial review proceedings against the New Zealand Police and the Chief Executive of the Department of Corrections, which she was unable to do without leave. She sought leave to commence proceedings based on allegations that she had been arbitrarily detained. Her application for leave was declined by Grau J on 5 August 2024, on the basis that she was raising claims that had already been determined by Downs J in an earlier proceeding. Ms Dunstan sought to recall this decision, arguing that her claims were not fully and frankly before Downs J and that she was unable to raise her arbitrary detention claims in the earlier proceeding. The Court found that there was no basis for recall. The decision to recall a judgment is only appropriate in exceptional circumstances. In this case, Ms Dunstan was raising arguments that were already before Downs J and that she was able to raise in her appeal of that decision. The Court also found that Ms Dunstan had mischaracterised the Court’s earlier decision. The Court dismissed the application for recall.

The Court of Appeal, in declining leave to commence judicial review proceedings, found that Ms Dunstan was raising claims that had already been determined by Downs J in an earlier proceeding. Ms Dunstan sought to recall this decision, arguing that her claims were not fully and frankly before Downs J and that she was unable to raise her arbitrary detention claims in the earlier proceeding. The Court found that there was no basis for recall. The decision to recall a judgment is only appropriate in exceptional circumstances. In this case, Ms Dunstan was raising arguments that were already before Downs J and that she was able to raise in her appeal of that decision. The Court also found that Ms Dunstan had mischaracterised the Court’s earlier decision. The Court dismissed the application for recall.

Orders