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 heard on her written submissions.

[6]    Ms Dunstan further relies on my decision earlier this year granting her leave to commence (different and unrelated) judicial review proceedings,4 which she considers as “progressive” and as identifying “OBVIOUS errors of law and judicial misconduct”.5

4      Dunstan v New Plymouth District [Court] HC New Plymouth CIV-2024-443-013, 7 March 2024 (Minute of Grau J).

5      Emphasis in original.

[7]    The general rule is that a judgment, once delivered, must stand for better or worse, subject to an appeal.6 A decision to recall a judgment will only be made in exceptional circumstances.7 A recall application cannot be used to relitigate the reasons provided in the leave judgment, nor can it be a means of collateral attack on a decision. Recall will be appropriate where some procedural or substantive error has occurred which would result in a miscarriage of justice.8

[8]The categories for recall are:9

(a)where, since the hearing, there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(c)where, for some other very special reason, justice requires that the judgment be recalled.

[9]    I do not consider that Ms Dunstan has advanced anything that would justify recall. Rather, the application for recall reinforces the conclusion that Ms Dunstan seeks to relitigate the subject matter that was before Downs J, which she has now disclosed in her application for recall is  the subject  of an appeal.  I acknowledge  Ms Dunstan’s perspective is that Downs J prevented her from questioning witnesses and making submissions about the basis of her detention—and that is what motivated her to bring these proceedings—but that is nevertheless an issue concerning Downs J’s regulation of the hearing which she can raise in her appeal. She is now also raising issues about a decision of an associate Judge concerning discovery in that same

6      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; affirmed in Craig v Williams [2019] NZSC 60 at [10]. In the present case, however, Ms Dunstan has no right of appeal pursuant to 169(6) of the Senior Courts Act 2016.

7      Nottingham v Real Estate Agents Authority [2023] NZCA 233 at [8].

8      As set out by the Supreme Court in Dunstan v Attorney-General [2023] NZSC 39 at [5].

9      Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2]; citing Horowhenua County v Nash (No 2), above n 7, at 633 at [5].

proceeding,10 as well as a complaint about Brewer J’s decision to restrict her from commencing proceedings without leave which, likewise, is the subject of an appeal.

[10]   Finally, as I noted in the decision of 5 August 2024 declining Ms Dunstan leave to commence her intended proceeding, Ms Dunstan should be careful to ensure she properly  represents  the   circumstances  of  claims  she  makes.11   Despite  that,    Ms Dunstan has nevertheless claimed in her recall application that I have previously identified judicial misconduct, when that is not the case. While my 7 March 2024 minute to which Ms Dunstan refers outlines a procedural error made by a District Court Judge, I did not find that there had been any misconduct by that Judge, nor by any other member of the judiciary.

Result

[11]   I dismiss Ms Dunstan’s application for recall of the 5 August 2024 decision declining leave to commence proceedings.

Grau J

10     Dunstan v Chief Executive of Department of Corrections [2023] NZHC 2602.

11     Dunstan v Police, above n 1, at [16].