Dunstan v X

[2023] NZHC 2958

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF DEFENDANTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-616

[2023] NZHC 2958

IN THE MATTER OF

The New Zealand Bill of Rights Act 1990,

Law of Tort, High Court Rules 2016, Human Rights Act 1993 and Senior Courts Act 2016

BETWEEN

TANYA FELICITY DUNSTAN

Plaintiff

AND

MS X

First Defendant

AND

JUDGE X

Second Defendant

AND

ATTORNEY GENERAL DAVID PARKER

Third defendant

Hearing:	On the papers
Appearances:	Plaintiff in person
Judgment:	20 October 2023

JUDGMENT OF GRICE J

(Rule 5.35B of the High Court Rules 2016 – professional negligence claim)

Introduction

[1]                 The Registrar has referred to me for consideration under r  5.35B  of the  High Court Rules 2016 (the Rules) a statement of claim dated 25 September 2023 filed by Ms Dunstan as plaintiff.

DUNSTAN v MS X & ANOR [2023] NZHC [2958] [20 October 2023]

[2]                 The proceedings were initially filed in the Christchurch High Court Registry. On 9 October 2023 Osborne J upheld the Registrar’s refusal to accept the documents for filing as they were filed in the incorrect registry.1 The documents were then filed in the Wellington Registry on 11 October 2023.

[3]                 Ms X is named as first defendant, Judge X is named as second defendant, and the Attorney-General (David Parker) is named as the third defendant.

[4]All the defendants are described as public servants.

[5]                 The second defendant is a High Court Judge who has dealt with matters relating to Ms Dunstan. The first defendant is the Judge’s wife.

[6]                 The statement of claim is difficult to follow. It is a mixture of submissions and pasted excerpts from judgments and publications, such as  a Te Aka  Matua o te  Ture Law Commission report on judicial immunity. It includes under the heading “Relevant History” material which appears to be taken from claims by Ms Dunstan in relation to her children and court orders made in relation to them.

[7]                 Under the heading “First Cause of action” is a copy  of  s  117  of  the  Crimes Act 1961, which relates to the crime of corrupting juries and witnesses. The document then goes on to state:2

Issue: 30/08/2023 Judge X breached Ms Dunstans’ right to justice exceeding his jurisdiction and acting unlawfully to obstruct and breach just handling of two separate matters- anonymising the parties, breaching privacy combining them, committing defamation to discredit Ms Dunstans’ legal argument with unrelated [and since overturned] opinions of Kit Toogood and providing legal advice to counsel inviting strike outs under “abuse of process” which is highly unethical and places the reputation of justice into disrepute.

Relief sought: This is a serious breach of trust and judicial function and requires the immediate escalation to the Attorney General and an advisory Panel for the chief justice of the High Court and others to determine appropriate action- most likely the removal of at least two judges from office [Judge X and Associate Judge Y.]

I seek the Court refer this conduct to the Attorney General for an inquest into this conduct and take appropriate action, most suitably to remove Judge X

1      Dunstan v Judge X [2023] NZHC 2821.

2      Sic.

from office, conduct an inquest into this systemic abuse and if supporting evidence exists, have him referred to police for prosecution. I seek all decisions of Justice X involving Ms Dunstan be quashed with a formal declaration disqualifying Judge X from any involvement in Ms Dunstans proceedings on grounds of OBVIOUS CONFLICT OF INTEREST and ACTUAL PREJUDICIAL BIAS.

I seek punitive damages of $100,000 paid by second defendant- Judge X.

I seek punitive damages of $200,000 paid by third defendant – David Parker for his ultimate responsibility to regulate the conduct of Judges in New Zealand for the publics safety and confidence.

[8]                 The second cause of action sets out s 116 of the Crimes Act, which relates to conspiring to defeat justice. There is reference to Associate Judge Y’s dismissal of a recall application of a judgment of Judge X. There are also allegations  the  Associate Judge colluded with Judge X, which was “unlawful, exceeding the jurisdiction of judge (sic) Judge Y”, and other allegations. The relief sought is the same as under the first cause of action set out in [7].

[9]                 The third cause of action also refers to s 116 of the Crimes Act. The “issue” under this action is that Judge X breached Ms Dunstan’s right to justice and “contemptuously exceeded” his jurisdiction to override Ellis J’s direction to accept and list a summary judgment in New Plymouth. The relief sought is that  the Attorney General  remove  Judge  X  from   office   and   quash   the   decision   of 19 September 2023. It also seeks a formal written apology and damages in the sums sought earlier in the document.

[10]             The fourth cause of action sets out s 27 of the New Zealand Bill of Rights  Act 1990, which relates to the right to the observance of natural justice in a court or tribunal. The issue is then said to be related to Judge X striking out an appeal against the Legal Complaints Review Officer in failing to hold a lawyer to account, resulting in Ms Dunstan being subject to “six days of solitary confinement”. The relief sought is similar to the earlier causes of action.

[11]             The fifth cause of action sets out s 142 of the Senior Courts Act 2016, which provides that a Judge may not undertake paid employment or hold any other office without the consent of the Chief Justice. The claim then alleges that Ms X appears on “business documents” of “pine time” to conceal Judge X’s “direct involvement” in

breach of his “requirements to accept a judicial position”. The narrative goes on to allege business dealings with a named third party “requiring further investigation and suitable redress”. The claim goes on to seek relief that various claims of Judge X concealing interests in pine tree plantations gave rise to a conflict of interest and that all decisions of Judge X be reinvestigated. The relief sought includes that Judge X be removed from the Bench and amendment to the legislation to provide that “practice warrants MUST NOT be awarded to judges to retired and retirement will not obstruct a just determination of any complaint or investigation.”

[12]             Under the heading “Reviewing the Tort Criteria” and the subheading “Duty of Care” are references to the judicial oath and the Fair Trading Act 1986. There are allegations that Judge X has failed in his legal responsibility by exceeding his jurisdiction and causing harm to “vulnerable adults and children”. The claim goes on to say that Ms X has “a duty of care to act honestly and not commit acts of deception, even if coerced by her husband” and the Attorney-General has a duty to the public to ensure the public are safe from the misconduct of judges, which he has breached by enabling and empowering  Judge X, “among others”,  to “victimize and  defame”  Ms Dunstan in proceedings.

[13]             I have set out the allegations in the statement of claim in some detail to provide the flavour of the claims.

The law

[14]             Under r 5.35A of the Rules, the Registrar may refer to a Judge proceedings that, on their face, are an abuse of process. If the Judge is satisfied that the proceeding is plainly an abuse of the process, the Court may (among other orders) strike out or stay the proceedings.3

[15]             This strike out jurisdiction is exercised sparingly, as it contemplates a litigant being denied the fundamental right of access to the courts. The abuse must be clear and beyond doubt from reading the claim.4

3      High Court Rules 2016, r 5.35B(2)(a) and (b).

4      Siemer v Complete Construction Ltd [2022] NZCA 262, (2022) 26 PRNZ 137 at [40]–[50].

[16]             The Rules allow the broad public interest and the private interests of individual parties who may otherwise be drawn into entirely unmeritorious proceedings to be considered and weighed against the right of a litigant to bring proceedings.5

[17]             A proceeding containing what could be a viable claim that the plaintiff might be able and willing to salvage might be stayed for further pleading rather than being struck out by the Court.

[18]             The Court has adopted the following two-limbed test for strike out purposes under the rule:6

(a)whether it would be manifestly unfair to the respondents that they be required to respond; and

(b)whether “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow the applicant’s document to be regarded as a proper document (or, if the irregularities are not obvious on their face, whether right-thinking people would consider the court was exercising poor control of its processes if it permitted the matter to proceed further).7

Discussion

[19]             Ms Dunstan’s pleadings lack a valid cause of action against any of the named defendants and are largely incomprehensible.

[20]             Ms X is alleged to be shown on business documents to have an interest in something described as “pine time” and so is acting to conceal an interest by Judge X. That does not give rise to a cause of action nor is there any legal duty as described under the “duty of care” pleading.

5      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

6      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6].

7      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [33].

[21]             Similarly, the document discloses no cause of action against the Attorney-General. No comprehensible legal duty is pleaded.

[22]             In relation to the claim against Judge X, the main allegation appears to be that he has made determinations with which Ms Dunstan disagrees. The appropriate manner of contesting those determinations is by way of appeal if there are valid appeal grounds.

[23]             Judge X’s actions were undertaken in his official capacity. Judges of the  High Court have always had immunity from being sued under the civil law for acts done in their official capacity.8 The Attorney-General cannot be vicariously or otherwise liable for the Judge’s actions. Such a claim against a Family Court Judge was struck out when filed by Ms Dunstan.9 There, the Court struck out a proceeding alleging  “professional  negligence  and  misbehaviour”  on  the  part  of   the   Family Court Judge.

[24]             Apart from those fundamental difficulties, the document makes extravagant allegations of corruption and deception that lack specific allegations of any fact that might support them. The fact that Judge X may have made decisions in cases in which Ms Dunstan was involved does not support the allegations she makes. In addition, many of the items of relief sought are not available in this Court, such as the removal of a sitting judge and the setting aside of all decisions made by him.

[25]             The Supreme Court in the context of a recall application in Jones v New Zealand Bloodstock Finance and Leasing Ltd recently said:10

… Whatever one is to make of these claims, and howsoever they ought to be resolved, a litigant may not make unsupported and irrelevant allegations about Judges and then assert they should no longer undertake their judicial responsibilities. The standard for recusal, laid down by this Court in Saxmere, is not remotely met.

[26]The same comments apply here.

8      Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161].

9      Dunstan v Attorney-General [2021] NZHC 1670.

10     Jones v New Zealand Bloodstock Finance and Leasing Ltd [2023] NZSC 133 at [9].

[27]             These defects support the strike out of the statement of claim at the early stage of filing.

Conclusion

[28]             For the above reasons, I strike out the statement of claim against all defendants. The claims are unviable and amount to an abuse of the Court’s processes. It would be manifestly unfair to the respondents to be required to respond. In order for the exercise of proper control of court processes, the statement of claim must be struck out.

[29]             Rule 5.35B(3) requires me to advise the plaintiff of her right to appeal to the Court of Appeal against my decision. I now formally notify her of that right.

[30]             In view of the nature of the allegations I order that the names of the defendants are not to be published.

Grice J