Dunstan v Police - [2024] NZHC 2165

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 2165

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:

5 August 2024

JUDGMENT OF GRAU J

[1] On 8 July 2024, Ms Dunstan filed an application for leave to commence judicial review proceedings against the New Zealand Police (Police) and the Chief Executive of the Department of Corrections (Corrections). The application is supported by an affidavit also dated 8 July 2024. Because Ms Dunstan is restricted from commencing civil proceedings under s 166 of the Senior Courts Act 2016 (SCA), leave of this Court is required.1

[2] In the proceedings Ms Dunstan seeks leave to commence the proposed statement of claim has two causes of action alleging breaches of the New Zealand Bill of Rights Act 1990 (NZBORA) and what appears a potential third cause of action alleging negligence. I note at this point that NZBORA (or so-called Baigent’s) damages cannot be sought in a private law action in tort committed by the state,2 so to

1 See Re Dunstan [2023] NZHC 3176.
2 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case] at 677–678 per Cooke P.

DUNSTAN v NEW ZEALAND POLICE and ANOR [2024] NZHC 2165 [5 August 2024]

the extent that Ms Dunstan seeks to advance such an argument, this is not possible. However, it is conceivable that Ms Dunstan has included the information on the tort of negligence in her proposed statement of claim to support her argument that there has been a breach of the NZBORA, rather than for the purpose of pleading a separate cause of action. I will give Ms Dunstan the benefit of the doubt and approach her statement of claim on this basis.

[3] Both of the pleaded causes of action relate to alleged breaches of s 22 of the NZBORA, that is, the right not to be arbitrarily arrested or detained. The first cause of action relates to an incident on 28 December 2018, when she was arrested in Hawera at about 11:30 pm by a Police officer, and she says was prevented from calling a solicitor. She was in Police custody until 10 am the following day. Ms Dunstan seeks a declaration that the detention was arbitrary and in breach of s 22 of the NZBORA. She seeks $60,000 in NZBORA damages.

[4] The second cause of action relates to an incident on 29 December 2018, when Ms Dunstan says her arbitrary detention by Police was transferred to the “unlawful custody” of Corrections at the New Plymouth Remand Centre. She says she was held there for six days in solitary confinement, with no calls to legal advisors or the Australian consulate (she is an Australian citizen). Ms Dunstan similarly seeks a declaration that the detention at the Remand Centre was arbitrary and a breach of s…

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 2165
Case: [2024] NZHC 2165
Decision Date: 5 August 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Ms. Tanya Dunstan sought leave to initiate judicial review proceedings against the New Zealand Police and the Chief Executive of the Department of Corrections. The application was filed on 8 July 2024 and was supported by an affidavit dated the same day. Ms. Dunstan sought leave as she is restricted from initiating civil proceedings under section 166 of the Senior Courts Act 2016. The application was heard on the papers, with Ms. Dunstan appearing in person. In her application, Ms. Dunstan alleged two breaches of the New Zealand Bill of Rights Act 1990 and potentially a third cause of action based on negligence. The first cause of action pertained to an alleged arbitrary arrest and detention by the Police on 28 December 2018, while the second cause of action related to her alleged arbitrary detention by Corrections at the New Plymouth Remand Centre from 29 December 2018 to 3 January 2019.

The legal issues before the Court included whether Ms. Dunstan had satisfied the criteria for leave under section 169 of the Senior Courts Act 2016, given the s 166 order, and whether her claims had merit or were an abuse of process. The Court noted that Ms. Dunstan's claims mirrored those previously dismissed by Justice Downs in November 2023. Additionally, her claims lacked evidentiary support and appeared to misrepresent facts and communications. The Court concluded that Ms. Dunstan had not demonstrated that her claims had sufficient merit to warrant leave, especially considering the previous rejection of similar claims by the Court.

The Court ultimately declined Ms. Dunstan's application for leave to commence proceedings, highlighting that the decision was final. The Court emphasized the importance of bringing forward all claims in one action to ensure fairness and finality of proceedings. It also noted the apparent misrepresentations in Ms. Dunstan's application and the lack of evidence to substantiate her claims. The Court's decision underscored the need for proper representation of facts and evidence in future claims.

Orders