Dunstan v Wellington District Court
[2023] NZHC 3280
•20 November 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-390
[2023] NZHC 3280
UNDER the Judicial Review Procedure Act 2016, New Zealand Bill of Rights Act 1990, Criminal Procedure Act 2011 and
High Court Rules 2016BETWEEN
TANYA FELICITY DUNSTAN
Applicant
AND
WELLINGTON DISTRICT COURT
First Respondent
AND
MAX CLARKE-PARKER
Second Respondent
Hearing: 14 November 2023, further material received on 17 November 2023 Counsel:
Applicant in Person
Appearance by First Respondent excused
M McKillop (via VMR) for Second RespondentJudgment:
20 November 2023
JUDGMENT OF ELLIS J (LEAVE TO CONTINUE PROCEEDINGS)
[1] On 9 June 2023 Judge Tompkins directed the Registry of the Wellington District Court to refuse to accept for filing charging documents by which Ms Dunstan sought to commence a private prosecution against the second respondent, Mr Clarke-Parker.
[2] Ms Dunstan then filed these proceedings, seeking judicial review of Judge Tompkins’ direction. She says he was wrong to consider the proposed
DUNSTAN v WELLINGTON DISTRICT COURT & ANOR [2023] NZHC 3280 [20 November 2023]
prosecution an abuse of process, and that the decision sets an unreasonably high bar for commencing a private prosecution in a case where “a clear offense [sic] has been committed”.
[3] Ms Dunstan’s application for judicial review was set down for a hearing on Tuesday, 14 November 2023. There was a timetable for filing submissions in advance, with which Ms Dunstan complied. Ms Dunstan (who lives in Auckland) was to come to Wellington for the hearing.
The restraint order
[4] But on the afternoon of Friday 10 November 2023, Brewer J made a general order under s 166 of the Senior Courts Act 2016 restraining Ms Dunstan from commencing or continuing civil proceedings in the Supreme Court, the Court of Appeal, the High Court and in the District Court (including the Family Court) without first obtaining leave from a Judge of this Court.1 In the course of his reasons for judgment he noted that, as at 11 October 2023, he had identified the following number of proceedings filed by Ms Dunstan:
(a)in the Auckland High Court Registry, 58 proceedings;
(b)in the Tauranga High Court Registry, one proceeding;
(c)in the Rotorua High Court Registry, one proceeding;
(d)in the Hamilton High Court Registry, two proceedings;
(e)in the Wellington High Court Registry, four proceedings;2
(f)in the New Plymouth High Court Registry, two proceedings;
(g)in the Christchurch High Court Registry, four proceedings;
(h)in the Court of Appeal Registry, 29 proceedings; and
(i)in the Supreme Court Registry, 27 proceedings.
[5] After considering a selection of these proceedings against the s 166 “totally without merit” threshold Brewer J concluded grounds for a general order under s 166 were made out. He said:
1 Re Dunstan [2023] NZHC 3176.
2 These four proceedings included the present application for review.
[12] I will not speculate on what has caused Ms Dunstan to file proceedings so prolifically and so often without merit. I accept she has grievances in which she believes passionately. I am aware that she has ongoing litigation in the Family Court on matters which are of extreme importance to her, as they would be for anyone. But, as I said, the right to bring proceedings to the Courts is not an unlimited one and Ms Dunstan has gone beyond the limits. I have therefore decided to include the Family Court in my order while recognising that Ms Dunstan might well obtain leave to continue or commence proceedings in that Court in relation to new matters.
[13] So, I emphasise that the order I am about to make does not preclude Ms Dunstan from bringing a claim which discloses merit. Or from continuing any existing proceeding which discloses merit. But, from the date of this Judgment in order to commence or continue any proceeding Ms Dunstan must first obtain the leave of a Judge of this Court.
[14] I have decided to make a general order because of the prolixity of Ms Dunstan’s filings and their widening ambit. They no longer relate just to her Family Court matters.
[6] The restraint order took effect from the date of the judgment and will continue in effect for three years. The effect of the order is that these proceedings may not now be continued without leave of a High Court Judge. Other than in exceptional circumstances, applications for leave are required to be determined on the papers.3
Impact on these proceedings
[7] Although Ms Dunstan immediately filed an appeal against Brewer J’s decision, his order remains in force pending the hearing and determination of that appeal. So on the morning of Monday 13 November, I issued a minute in which I noted the making of the s 166 order, but saying:
For obvious reasons, no application for leave has been made in the present case. As I understand it, Ms Dunstan intends to appear tomorrow in person and so I assume that she may have already made the necessary travel arrangements.
If Ms Dunstan wishes to pursue this matter, she will need to file an application for leave as soon as possible, today. If she does so, I would be prepared—in the exceptional circumstances of this case—to hear the application for leave together with the substantive application for review tomorrow, as scheduled.
If no application for leave is filed by 3 pm today, the hearing will be vacated.
This is not to be taken as an indication that any other applications for leave will be the subject of an oral hearing; as I have said, the statute is clear that they will not be.
3 Senior Courts Act 2016, s 169(5).
[8] Ms Dunstan filed an application for leave in accordance with that direction and appeared on 14 November. The main bases upon which leave was sought were that the s 166 order was unjust and unlawful and the judicial review proceedings have merit. Although she acknowledged that Brewer J’s order is presently binding on me, as it is on her much of what she had to say in opposition was based on what she says is the error in his decision.4
Applications for leave: relevant law
[9] Section 169 itself contains no criteria or guidance as to the grant of leave. There are, however, a number of decisions in which different Judges of this Court have been required to consider the basis of which leave applications should be determined. Some have simply adopted the criteria that were explicit in s 88B of the Judicature Act 1908.5 Others have said that the test is the same as that which governs the making of a restraint order in the first place, namely whether the proceeding proposed to be commenced or continued is “totally without merit.6 But I prefer the more flexible approach suggested by Campbell J in Dokad Trustees Ltd v Auckland Council.7 He said:
[55] … Section 169 of the [Senior Court’s Act 2016] does not stipulate any criteria for granting leave to commence a proposed proceeding. There is a broad discretion. A relevant consideration will be the apparent merit of the proposed proceeding. But that is not the sole consideration. The manner in which the proceeding is likely to be conducted will also be relevant. Also relevant may be any connection between the proposed proceeding and the earlier proceedings that led to the s 166 order. There may be other relevant considerations. Section 169 is not prescriptive.
[56] … If Parliament had intended leave to be granted whenever a proposed proceeding was not totally without merit, they could easily have said so: the “totally without merit” test was already employed in s 167. Instead Parliament stipulated no criteria.
4 Including in an affidavit filed by Ms Dunstan after the hearing.
5 See for example Siemer v Ministry of Justice [2018] NZHC 646; Rafiq v Secretary of the Department of Internal Affairs [2017] NZHC 584 and Rafiq v Commissioner of New Zealand Police [2017] NZHC 2739. Section 88B(2) provided:
Leave may be granted subject to such conditions (if any) as the court or Judge thinks fit and shall not be granted unless the court or Judge is satisfied that the proceeding is not an abuse of the process of the court and that there is prima facie ground for the proceeding.
6 See for example Mao v Industrial and Commercial Bank of China (New Zealand) Ltd [2023] NZHC 673.
7 Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603. As it happens, the difference in approach is not material in this case.
[10] Campbell J noted that, even where the s 88B criteria were met, the Court still had a discretion whether to grant leave. He thought it inconceivable that s 169— having been enacted on a broader basis—could have been intended to afford the Court a more limited discretion than under s 88B.8 He also observed that the leave discretion should be exercised with “restraint”, given the existence of the s 166 order establishes already that the applicant has repeatedly “engaged in litigation that was totally without merit and has conducted the litigation in a way justifying a restraining order”.9 The burden is on the applicant to satisfy the Court that leave should be granted.
Should leave be granted?
The genesis of the proposed private prosecution
[11] Mr Clarke-Parker was representing New Zealand Police in proceedings in which Ms Dunstan was alleging malicious prosecution on the part of Police (the Police proceedings).
[12] On 9 March 2022, Judge Clark ordered that the filing of evidence and preparation for a simplified trial was to occur in accordance with rr 10.5, 10.6 and 10.7 of the District Court Rules 2014 (the DCR). Rule 10.5(2) of the DCR requires that a defendant file and serve their affidavits and any documents intended to be relied on at least 30 working days before trial.
[13]The trial was set down for 7 March 2023.
[14] On 24 February 2023, a teleconference was convened by Judge AA Sinclair. Mr Clarke-Parker appeared for Police. Judge Sinclair’s subsequent Minute relevantly stated:
[5] The claim is proceeding as a simplified trail [sic]. As directed by Judge Clark, counsel for the NZ Police have collated the bundle of Ms Dunstan’s documents (including the supplementary bundle provided to the Court on 13 February 2023) and this bundle has been filed and provided to Ms Dunstan.
8 At [57].
9 At [58].
[6] Counsel are now to file and serve a bundle of key documents and the affidavits filed in this proceeding. This is to be filed and served on or before 2 March 2023.
[7] While not required to file its submissions at this stage; Mr Clarke-Parker has helpfully agreed to file and serve a synopsis of the Police’s submissions on or before 28 February 2023.
[15] Ms Dunstan says that the direction at [6] contradicts the order previously made by Judge Clark and was the result of Mr Clarke-Parker deliberately misleading Judge Sinclair by advising her that “there are no timetabling directions for the service of documents”. The effect of the new direction was that the timetable for filing key documents and affidavits was unfairly truncated.10
[16] There was a two-day hearing on 7 and 8 March, following which Ms Dunstan’s claim against Police was dismissed.11 Judge Kelly found there was no properly pleaded claim, and Ms Dunstan had not established any elements of the tort of malicious prosecution. Ms Dunstan was later ordered to pay Police $21,000 in costs.12
[17] Ms Dunstan sought to appeal Judge Kelly’s judgment, but this was dismissed by Powell J when Ms Dunstan failed to pay security for costs.13
The rejection of the private prosecution by the District Court
[18] On 18 April 2023, Ms Dunstan tried to commence a private prosecution in the Wellington District Court charging Mr Clarke-Parker with making a false statement or declaration in breach of s 111 of the Crimes Act 1961.14 Section 111 is entitled “False statements or declarations” and provides:
Every one is liable to imprisonment for a term not exceeding 3 years who, on any occasion on which he is required or permitted by law to make any statement or declaration before any officer or person authorised by law to take or receive it, or before any notary public to be certified by him as such notary, makes a statement or declaration that would amount to perjury if made on oath in a judicial proceeding.
10 As I understand it, Mr Clarke-Parker’s essential position is that the bundle was composed of documents that had already been filed in the proceeding, in any event.
11 Dunstan v New Zealand Police [2023] NZDC 5173.
12 Dunstan v New Zealand Police [2023] NZDC 17860 [On Costs].
13 Dunstan v New Zealand Police [2023] NZHC 1442.
14 An offence carrying a maximum penalty of three years’ imprisonment.
[19] Ms Dunstan also filed a summary of facts, a witness statement (of her own) dated 22 March 2023, and a bundle of documents comprising various documents produced in the Police Proceedings in the District Court.
[20] On 16 May 2023, a Deputy Registrar informed Judge Black that she had not accepted the charging document for filing and was instead referring the matter to the Judge under s 26(1)(b) of the Criminal Procedure Act 2011. On 17 May, Judge Black made a direction under s 26(1)(b) that Ms Dunstan file the formal statements and exhibits she proposed to call at trial (this being evidence that Ms Dunstan considers sufficient to justify a trial). On 30 May Ms Dunstan then provided another formal witness statement (in the Police FWS format and letterhead) with the relevant exhibits. This largely restated information Ms Dunstan had already included in her previous witness statement and bundle of documents.
[21] On 9 June 2023, Judge Tompkins declined to accept the charging document for filing, finding both that the formal statement was insufficient to justify a trial and that the proposed prosecution was an abuse of process. This was recorded in a formal ‘Refusal of Application’ document that was provided to Ms Dunstan. The document recorded:
Your application for Private Prosecutor to file charging document [sic] filed on 18 April 2023 has been referred to a District Court Judge.
The District Court Judge, having considered your application, has refused it, for the following reasons.
Pursuant to s26(3), and following both the direction of Judge Black on 17/05/2023, and the filing of material by the person proposing to commence the proceedings, I determine that the formal statement as filed, dated 30 May 2023, together with the 4 exhibits, is insufficient to justify a trial, and furthermore that in all the circumstances (including the filing of the bundle) is an abuse of process.
Accordingly, the charging document must not be accepted for filing.
[22] It is this decision that is the subject of Ms Dunstan’s application for judicial review. As noted earlier, she now requires leave to continue it.
So is the judicial review a proceeding without merit?
[23] Many of Ms Dunstan’s arguments in favour of leave focused on the rights and wrongs of the restraint order. I necessarily put those to one side; the correctness of the order is a matter for the Court of Appeal in due course. I am in the meantime bound by it.
[24] The gist of Ms Dunstan’s further submissions was that the application for judicial review was meritorious because her proposed private prosecution was, itself, meritorious and also important, because it was concerned with corruption and dishonesty by a member of the legal profession. I acknowledge that this is her genuinely held view.
[25] I am unable to agree. I consider the proposed prosecution is both an abuse of process and without merit. It follows that the judicial review challenging the direction that it not be accepted for filing cannot succeed. I briefly explain why, below.
[26] Judge Tompkins did not give reasons for his finding that the proposed prosecution was an abuse of process. But in my view, it is an abuse because it is an example of Ms Dunstan’s use of Court processes for an improper purpose: to challenge collaterally the outcome of a matter in which she has been unsuccessful by bringing further proceedings against the individuals involved in the earlier matter (whether it be the Judge, counsel or the parties). Permitting the prosecution to be filed would have the sole effect of subjecting Mr Clarke-Parker to unjustified and grossly disproportionate inconvenience, harassment, and expense.
[27] The proposed prosecution is also without merit. Even assuming Mr Clarke- Parker misspoke, or misremembered, Judge Clark’s earlier direction, that is simply not the kind of conduct to which s 111 responds. Putting to one side the requirement in s 112 of the Crimes Act for corroboration (of which there is none) I consider s 111 is concerned solely with declarations or statements made outside a Court context in circumstances in which a statute requires a declaration or a statement to be made in a certain form and before a specified person or class of persons.15
15 See R v Haynes [1916] NZLR 407; [1916] GLR 297 (CA) per Hosking J.
[28] Counsel’s participation in a telephone conference with a Judge for the purpose of canvassing procedural matters is, accordingly, not an “occasion on which he is required or permitted by law to make any statement or declaration before any officer or person authorised to take or receive it”. And there was, in any event, an obvious remedy available to Ms Dunstan at the time: to draw Judge Clark’s minute to Judge Cunningham’s attention.
Result
[29] For the reasons I have given above the application for judicial review is without merit. The application for leave to continue with it is declined.
Rebecca Ellis J
Solicitors: Meredith Connell
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