LENA NEDELCHEVA DUNCAN AND THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED THE DISTRICT COURT

[2024] NZHC 2471

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-0017

[2024] NZHC 2471

UNDER

The Judicial Review Procedure Act 2016

BETWEEN

LENA NEDELCHEVA DUNCAN

Applicant

AND

THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED

First Respondent

THE DISTRICT COURT

Second Respondent

Hearing:

27 August 2024

Appearances:

The applicant in person

N H Brown for the first respondent (by VMR)

Judgment:

30 August 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 30 August 2024 at 1.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

DUNCAN v THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS INCORPORATED [2024] NZHC 2471 [30 August 2024]

Introduction

[1]    The applicant, Ms Duncan, brought this proceeding to seek  judicial review  of decisions of the first respondent, the Royal New Zealand Society for the Prevention of Cruelty to Animals Inc (the SPCA), and the second respondent, the District Court. The impugned decisions relate to a criminal proceeding prosecuted by the SPCA against Ms Duncan in the District Court.

[2]    In an earlier judgment, I struck out those parts of Ms Duncan’s claim that were brought against the SPCA.1 In this judgment I determine whether I should strike out the balance of Ms Duncan’s claim, being those parts brought against the District Court.

Background and Ms Duncan’s claim for judicial review

[3]    I adopt the background and description of Ms Duncan’s claim for judicial review set out in my earlier judgment:

Background

[3]      In August 2022, Phillipa Lamb and Cody Taylor, both animal welfare inspectors then employed by the SPCA, became concerned at the condition of some animals that were believed to be on two properties. One property was at 2046 Pohokura Road, Te Haroto, Napier. The other was at 163 Tracey Road, Kaitaia.

[4]      On 24 August 2022, Ms Lamb obtained from the Napier District Court a search warrant for the Napier property. On the same day, Mr Taylor obtained from the Kaitaia District Court a search warrant for the Kaitaia property. Both search warrants were executed the next day, 25 August 2022.

[5]      Ms Lamb executed the search warrant at the Napier property with some colleagues and a veterinarian. She uplifted 17 horses and one dog from that property, owing to concerns for their welfare.

[6]      Those horses and the dog belong (or belonged) to Ms Duncan, either personally or in her capacity as trustee of a charitable trust.

[7]      On 16 September 2022, Ms Duncan filed a civil claim against the SPCA in the Whangarei District Court. Among other things, she sought the return of the horses.

1      Duncan v The Royal New Zealand Society for the Prevention of Cruelty of Animals Incorporated

[2024] NZHC 1818 [5 July 2024].

[8] On 13 June 2023, the SPCA filed charges against Ms Duncan in the Whangarei District Court alleging multiple breaches of the Animal Welfare Act 1999.

[9]      Meanwhile, the SPCA had filed a statement of defence to Ms Duncan’s District Court civil claim and had applied for summary judgment on the ground that none of the causes of action in Ms Duncan’s claim could succeed. On 15 November 2023, Judge P R Rzepecky granted summary judgment to the SPCA.2 In the course of his judgment, the Judge found that:3

(a)   The SPCA lawfully obtained the search warrant to search the Napier property.

(b)   The SPCA properly executed that search warrant.

(c)   All 17 horses on the Napier property were properly seized pursuant to the powers conferred by the search warrant.

(d)   The horses remain in the management and welfare of the SPCA pending the outcome of the charges which the SPCA subsequently laid against Ms Duncan.

[10]   Following the grant of summary judgment, Ms Duncan wrote to the SPCA on 26 November 2023 demanding the return of the horses. The SPCA responded on 27 November 2023, declining to return the horses and referring to Judge Rzepecky’s judgment.

[11]   On 13 December 2023, Ms Duncan commenced this judicial review proceeding.

Ms Duncan’s claim for judicial review

[12]   Ms Duncan’s initial statement of claim was dated 13 December 2023. She alleged that:

(a)   Both search warrants were illegal, owing to various errors she alleged were made in the way they were applied for and issued.

(b)   As a consequence of the search warrants the SPCA searched the two properties and seized the horses and dog. The search and seizure were in breach of her human right not to be subject to unreasonable search and seizure and/or without colour of authority under the law.

(c)   The charges filed by the SPCA were contrary to law as they were a private prosecution and the District Court Registrar had failed to give reasons for accepting the charges.

(d)   Even assuming “arguendo” that the SPCA had otherwise lawfully seized the animals, its 27 November 2023 decision refusing to return them to Ms Duncan was unreasonable “in administrative law terms”.

2      Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2023] NZDC 24723.

3 At [32].

[13]Ms Duncan sought the following relief:

(a)      A declaration that the SPCA contravened Ms Duncan’s right to be free from unreasonable search and seizure under s 21 of the New Zealand Bill of Rights Act 1990.

(b)      A declaration that the District Court contravened Ms Duncan’s right to natural justice.

(c)      An order compelling the SPCA to return the horses to Ms Duncan.

(d)      An order enjoining the SPCA from conducting any investigations, making any court applications and exercising any powers.

(e)      An order against the District Court requiring it to reconsider its decision to accept the SPCA’s charging documents.

[14]   The SPCA filed a statement of defence on 9 February 2024. At the same time, it applied for an order striking out those parts of Ms Duncan’s statement of claim brought against the SPCA.

[15]The District Court filed an appearance abiding and reserving rights.

[16]   Ms Duncan filed an amended statement of claim on 27 February 2024. This did not make any changes of substance to her claims against the SPCA. The amended claim add further claims against the District Court. Those further claims challenged the correctness of decisions that the District Court had made in February 2024 in the course of the SPCA’s criminal proceeding against Ms Duncan.

Concerns with Ms Duncan’s claim against the District Court

[4]    I heard the SPCA’s strike-out application on 13 June 2024.   At the hearing,   I raised with Ms Duncan and counsel for the SPCA my concern that those parts of Ms Duncan’s claim brought against the District Court were untenable or an abuse of process and should be struck out. I said I would issue a minute outlining my concerns and provide Ms Duncan with an opportunity to make submissions in response.

[5]    I delivered my judgment striking out those parts of Ms Duncan’s claim that were brought against the SPCA on 5 July 2024. The same day, I issued a minute addressing the parts of Ms Duncan’s claim brought against the District Court. I said (with footnotes omitted):

[2]      The remaining parts of Ms Duncan’s amended claim are those that are brought against the District Court. Those parts are:

(a)   The claim for a declaration that the District Court has contravened Ms Duncan’s right to natural justice. I apprehend this claim relies on the pleading at [29] that the Registrar had a duty to give reasons for accepting the SPCA’s charging documents and failed to do so.

(b)   The claim for an order that the District Court reconsider its decision to accept the charging documents and directing that if it again accepts them for filing and issues a summons that it gives reasons for doing so.

(c)   The entirety of Part II of the amended claim.

[3]      As indicated at the hearing, I am concerned that these parts of the claim are untenable or an abuse of process and should be struck out. The court’s power to strike out does not depend on an application having been made. Indeed, the court has a duty to intervene where the administration of justice requires it.

[4]      The purpose of this minute is, as signalled at the hearing, to outline my concerns and provide Ms Duncan with an opportunity to make submissions in response.

The claims based on the decision to accept the charging documents

[5]      These claims are based on the proposition that the Registrar who accepted the charging documents had a duty to give reasons. I am concerned that that proposition may not be tenable, for the reasons set out in [49]–[51] of the SPCA’s submissions dated 28 May 2024.

The claims in Part II

[6]      The claims in Part II all relate to pre-trial decisions made by the District Court in the criminal proceeding.

[7]      It appears likely that it is an abuse of process for Ms Duncan to use this judicial review proceeding to challenge decisions made under the ambit of the Criminal Procedure Act 2011. The essential reasons for this are found in the passages from the judgment of Simon France J in DGN v The Auckland, Manukau, Papakura and Waitakere District Courts that were quoted by Clark J at [29] of Angus v District Court. The Angus decision was provided to Ms Duncan by the SPCA shortly before the hearing.

[8]      In addition to what was quoted by Clark J, I refer to what Simon France J said further in DGN:

[40] Separately I would strike the proceeding out as an  inappropriate use of judicial review. The scope for using judicial review to challenge decisions made under the ambit of the Criminal Procedure Act must, in my view, be extremely narrow. …

Directions

[9]      The SPCA has already made brief written submissions on the matters I have raised in this minute.

[10]   I direct that Ms Duncan file and serve submissions on these matters by 26 July 2024. Ms Duncan should indicate in those submissions whether she wishes to have a brief oral hearing on the matter. If she does not, I will determine the matters on the papers.

[6]        Ms Duncan filed submissions in response to that minute on 26 July 2024. She requested a brief oral hearing. That hearing took place on 27 August 2024.

[7]        Mr Brown, counsel for the SPCA, appeared at the hearing. Ms Duncan objected to the SPCA being represented at the hearing, given that her claims against the SPCA had already been struck out. I dismissed that objection. I considered the SPCA should be represented, given that it is the prosecutor in the proceeding in which the District Court made the decisions that Ms Duncan seeks to impugn, and the District Court is abiding the Court’s decision. Further, I allowed Mr Brown only to make submissions in response to any new matters raised by Ms Duncan. Mr Brown made submissions on only one such matter.

Issues

[8]I have to determine three issues:

(a)Are any parts of Ms Duncan’s claim brought against the District Court clearly untenable?

(b)Is it an abuse of process for Ms Duncan to use this judicial review proceeding to challenge the impugned decisions of the District Court?

(c)Should Ms Duncan’s claim against the District Court be struck out?

[9]        Before addressing those issues, I outline the relevant legal principles governing the court’s power to strike out a pleading and relating to judicial review of decisions made in the exercise of the District Court’s criminal jurisdiction.

Relevant legal principles

Relevant strike-out principles

[10]Rule 15.1 of the High Court Rules 2016 provides:

15.1     Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

…

(d)      is otherwise an abuse of the process of the court.

(2)If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.

[11]      The  following  principles  apply  when  considering  whether  to  strike  out  a pleading under r 15.1(a) (that is, on the ground that it discloses no reasonably arguable cause of action):4

(a)The pleaded facts are assumed to be true, unless those pleaded facts are entirely speculative or without foundation.

(b)The cause of action or defence must be clearly untenable.

(c)The jurisdiction is to be exercised sparingly and only in clear cases.

(d)The jurisdiction is not excluded by the need to decide difficult questions of law.

(e)The Court should be slow to strike out a claim in any developing area of the law, particularly where a duty of care is alleged in a new situation.

[12]      Rule 15.1(d) (the abuse of process ground) captures all instances of misuse of the court’s processes. One instance of abuse of process is where a plaintiff makes inappropriate use of judicial review amounting to a collateral attack on the criminal process. I turn to that shortly.

4      Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

[13]      The court’s power to strike out does not depend on an application having been made.5 The court has a duty to intervene where the administration of justice requires it.6

Principles relating to judicial review of decisions made in the exercise of the District Court’s criminal jurisdiction

[14]      In Auckland District Court v Attorney-General,7 the Court of Appeal held that a decision by the District Court to discharge an accused under the (now repealed) s 347 of the Crimes Act 1961 was amenable to review by this Court. The Court stressed, however, that:8

… the power to review a District Court Judge’s decision under s 347 must be sparingly exercised. It is appropriate only in rare cases where, by reason of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative[.]

[15]      The Court of Appeal applied this approach in C v Wellington District Court,9 which was concerned with an attempt to judicially review a decision by a District Court Judge to commit the appellant for trial under the (now repealed) s 168 of the Summary Proceedings Act 1957. The Court said that as a matter of general principle “truly exceptional circumstances” would be required to entertain an application for judicial review of such a decision. This was because the Crimes Act provided a person committed for trial with “an alternative, adequate, and convenient procedure to obtain the same remedy”.10 The Court referred to the principle that where statute provides appeal procedures, “it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision”.11

[16]      Those two Court of Appeal decisions were concerned with two particular types of pre-trial decisions. But the principles set out in those decisions are now regarded as being of general application to decisions made by the District Court in the exercise of its criminal jurisdiction. I need only refer to two decisions.

5      Siemer v Stiassny [2011] NZCA 1 at [14].

6      O’Neill v New Zealand Law Society [2022] NZCA 500 at [21].

7      Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA).

8      At 136.

9      C v Wellington District Court [1996] NZLR 395 (CA).

10     At 400.

11     At 400, quoting the dictum of Lord Scarman in Re Preston [1985] AC 835 at 852.

[17]      First, in Ortmann v District Court at North Shore, Katz J said that “[p]olicy factors militate toward only allowing review (or only granting relief) [of pre-trial decisions of the District Court exercising its criminal jurisdiction] if the error is blatant, or will potentially lead to serious injustice that cannot be corrected on appeal”.12 On an appeal from a related decision in the Ortmann litigation, the Court of Appeal endorsed Katz J’s approach.13

[18]      Secondly, in DGN v Auckland District Court,14 a defendant in a District Court criminal proceeding sought to judicially review decisions made in that proceeding. Simon France J said that the introduction of the Criminal Procedure Act 2011 (the CPA), with its “carefully crafted appeal rights”, reinforced the “existing reluctance of the courts to allow judicial review to interrupt the conduct of criminal prosecutions”.15 After reviewing the CPA’s provisions for pre-trial admissibility challenges, for dismissing charges on the basis of insufficiency of evidence or abuse of process, and for appeals, Simon France J concluded:

[32] The purpose of this review is to emphasise not  only  the  comprehensive nature of the legislation, but also that it represents legislative assessment of an appropriate scheme which affords avenues of challenge and appeal [at] what are considered to be the fair and appropriate points in the process. The use of judicial review as an alternative route carries significant potential to undermine this scheme, and is one of the reasons why, in my view, a compelling reason should now be required before judicial review is allowed.

[19]      Simon France J struck out the proceeding as an inappropriate use of judicial review. The Court of Appeal dismissed an appeal from his decision, saying that his conclusion “was in accordance with established authority”.16

[20]      In summary, there needs to be a compelling reason to allow judicial review  of a decision made in the exercise of the District Court’s criminal jurisdiction. The alleged error has to be blatant, or one that cannot be corrected on appeal.

12     Ortmann v District Court at North Shore [2015] NZHC 901 at [109].

13     Ortmann v District Court at North Shore [2015] NZCA 443 at [20].

14     DGN v Auckland District Court [2015] NZHC 3338, [2018] NZAR 137.

15     At [28] and [29].

16     DGN v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [11].

[21]      Ms Duncan submitted I should follow a different course. She relied on her right in s 27(2) of the New Zealand Bill of Rights Act 1990:

27       Right to justice

…

(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

[22]      Ms Duncan submitted that I should not follow  DGN and similar decisions   as they “are decisions that patently violate the legislation passed by the legislature   to an unencumbered right of judicial review and cannot be followed, particularly as they ignore [s] 27 of NZBORA”. I reject that submission. Section 27(2) merely confers a right to apply for judicial review. Ms Duncan has applied for judicial review. The decisions to which I have referred are concerned not with the right to apply for judicial review but rather with the circumstances in which judicial review will be granted of particular decisions. In any event, those decisions include decisions of the Court of Appeal by which I am bound.

[23]I now turn to the issues that arise.

Are any parts of Ms Duncan’s claim brought against the District Court clearly untenable?

[24]      Ms Duncan seeks to  judicially  review  the  decision  of  the  District  Court to accept the charging documents filed by the SPCA.   That decision was made by    a District Court Registrar. This part of Ms Duncan’s claim is based on the proposition that the Registrar who accepted the charging documents had to give reasons for that decision.

[25]      In filing the charging documents, I will assume that the SPCA was seeking  to commence a private prosecution and that s 26 of the CPA therefore applied. This provides:

26       Private prosecutions

(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)accept the charging document for filing; or

(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)the proposed prosecution is otherwise an abuse of process.

(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—

(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)retain a copy of the proposed charging document.

(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

[26]      Where the Registrar refers a charging document to a Judge under s 26(1)(b), and the Judge has to determine under s 26(2) whether the charging document should be accepted for filing, there are conflicting High Court authorities as to whether the Judge has to give reasons for their decision.17   There is, by contrast, no  authority    on whether a Registrar who decides under s 26(1)(a) to accept a charging document for filing has to give reasons for their decision.

17 Wang v North Shore District Court (No 2) [2014] NZHC 2756, [2014] NZAR 1428 (holding that reasons must be given) and Goodman Fielder NZ Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR 489 at [36] (holding that reasons need not be given).

[27]      Ms Duncan submitted that given this state of authorities the law was unsettled as to whether a Judge or Registrar had to give reasons for their decisions under s 26. She submitted, in reliance on Couch v Attorney-General,18 that it was inappropriate to strike out her claim when the law was unsettled.

[28]      I accept that the law is unsettled as to whether a Judge has to give reasons for a decision under s 26(2). But the issue here is whether a Registrar has to give reasons for accepting a charging document for filing under s 26(1)(a).

[29]      In S (SC 58/2019) v Vector Ltd, Ellen France J (writing also for O’Regan J) said that a decision under s 26(1)(a) is a “filing or preliminary screening exercise, not a more expansive one under which factual or other issues are resolved”.19 Indeed, it is the type of decision that is made hundreds of times every day in court registries throughout the country. Every day, Registrars have to decide whether to accept all sorts of documents for filing, including documents that initiate proceedings, whether criminal or civil.

[30]      A decision whether to accept a charging document for filing in a private prosecution is no different from any other decision whether to accept an initiating document for filing. Section 26 does not create any difference. Its effect is that, in the case of a private prosecution, one of the options available to a Registrar is to refer the matter to a Judge, who then determines whether the charging document should be accepted for filing.   But  the same option is available to a Registrar in  respect of     a public prosecution, by virtue of r  2.3(7) of the Criminal Procedure Rules 2012.     I have no doubt that a Registrar may do the same in respect of an initiating document in a civil proceeding.

[31]      It may (or may not) be the case that where a Registrar decides to refuse to accept a document for filing they have to give reasons. But to impose a duty to give reasons in the much more common case of a Registrar deciding to accept a document for filing would impose an extraordinary administrative burden on the work of the courts. I see no basis on which that burden can be justified.

18     Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

19     S (SC 58/2019) v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1 at [49].

[32]      I therefore consider that the proposition that the Registrar has to give reasons for accepting a charging document for filing under s 26(1)(a) is clearly untenable.

Is it an abuse of process for Ms Duncan to use this judicial review proceeding  to challenge the impugned decisions of the District Court?

[33]Ms Duncan seeks to challenge the following decisions of the District Court:

(a)The decision of the Registrar to accept the charging document for filing.

(b)A decision by Judge T Bayley that the SPCA may lead certain propensity evidence at trial.

(c)A decision by Judge T  Bayley  declining  Ms  Duncan’s  application to debar the law firm acting for the SPCA (the Crown Solicitor’s office at Palmerston North) from acting further for the SPCA.

(d)A direction by the District Court that a trial date be set down.

[34]      These are all decisions made by the District Court in the exercise of its criminal jurisdiction. As explained earlier, there needs to be a compelling reason to allow judicial review of such decisions. The alleged errors in the decisions have to be blatant, or be ones that cannot be corrected on appeal.

[35]      Ms Duncan’s proposed challenges to these decisions fall well short of that high threshold. As to the decision to accept the charging document for filing, I have already found that Ms Duncan’s argument that the Registrar had a duty to give reasons for this decision is clearly untenable. At the hearing, Ms Duncan made another argument. She pointed out that the charging document did not include the full name of the SPCA,  as it omitted the “Incorporated” at the end of the SPCA’s full name. I doubt that this was truly an omission, as there could have been no doubt as to the identity of the legal entity commencing the prosecution. Even if it was an omission, under s 379 of the CPA it would not invalidate the charging document unless it gave rise to a miscarriage of justice. There is no prospect of a court finding that a trivial omission of this sort, which plainly did not mislead Ms Duncan, gave rise to a miscarriage of justice.

[36]      As to the propensity decision and the direction  to set down a trial date,     Ms Duncan did not identify any compelling reason for allowing these to be judicially reviewed.

[37]      As to the decision declining Ms Duncan’s debarment application, Ms Duncan submitted that her application “must succeed”. Her argument was that the Crown Solicitor’s office at Palmerston North required a dispensation from the Solicitor- General to act for the SPCA in a private prosecution, yet the office had merely received a dispensation from a Deputy Solicitor-General. However, it is a reasonable inference that the Deputy was acting with the authority of the Solicitor-General. It is certainly a long way from a “blatant” error.

[38]      Ms Duncan alternatively submitted that she had no right of appeal from any of the decisions (other than the propensity decision), and therefore the decisions were amenable to judicial review. I reject that submission. It may be true that Ms Duncan has no right to appeal pre-trial in respect of those decisions, but that is a product of the CPA’s careful crafting of appeal rights. As to the position after trial, Ms Duncan would, if convicted, have a right to appeal her conviction. She could advance, as part of any such appeal, her arguments about the pre-trial decisions, on the basis that they led to a miscarriage of justice in terms of s 232(2)(c) of the CPA. For example, Ms Duncan claims that the errors in the Registrar’s decision to accept the charging documents for filing mean that the proceeding is “a nullity”. Under s 232(4)(b), there will be a miscarriage of justice if errors have resulted in “a trial that was a nullity”.

[39]      Ms Duncan therefore does have appeal rights available to her. This judicial review application is an attempt to circumvent the limits placed on those rights in the CPA. It is plainly an abuse of process.

Should Ms Duncan’s claim against the District Court be struck out?

[40]      I have found that Ms Duncan’s claim against the District Court is clearly untenable to the extent it challenges one decision, and an abuse of process in respect of its challenges to all the decisions. In these circumstances I have no doubt that I should exercise my discretion in r 15.1(1) to strike out Ms Duncan’s claim against the District Court.

[41]      As a consequence of this judgment and my judgment dated 5 July 2024, I have struck out the entirety of Ms Duncan’s amended statement of claim. It is therefore appropriate that I also dismiss, under r 15.1(2), the proceeding.

Costs

[42]      Although I have struck out the balance of Ms Duncan’s claim and dismissed her proceeding, my provisional view is that I should not make any order as to costs. The SPCA never made any application to strike out Ms Duncan’s claim against the District Court. The District Court took no substantive steps. Ms Duncan plainly is not entitled to any costs.

Result

[43]      I strike out all parts of Ms Duncan’s amended statement of claim brought against the District Court. I dismiss Ms Duncan’s proceeding.

Campbell J