TANYA FELICITY DUNSTAN AND NORTH SHORE DISTRICT COURT
[2024] NZCA 701
•20 December 2024 at 12.00 noon
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA430/2024 [2024] NZCA 701 |
| BETWEEN | TANYA FELICITY DUNSTAN |
| AND | NORTH SHORE DISTRICT COURT |
| Court: | Goddard and Cooke JJ |
Counsel: | Applicant in person |
Judgment: | 20 December 2024 at 12.00 noon |
JUDGMENT OF THE COURT
(Costs and Application for Recusal)
A The application for recusal of Goddard and Cooke JJ is declined.
B The application for costs is declined.
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REASONS OF THE COURT
(Given by Goddard J)
This judgment determines an application for costs by Ms Dunstan following the deemed abandonment of her appeal under r 43 of the Court of Appeal (Civil) Rules 2005 (Rules) and the abandonment by the respondent of its cross-appeal.
Background
Ms Dunstan successfully applied for judicial review of a decision by the District Court declining to accept for filing charging documents in relation to a proposed private prosecution.[1] Brewer J held that Ms Dunstan was entitled to be paid her reasonable disbursements.[2]
[1]Dunstan v North Shore District Court [2024] NZHC 1208.
[2]At [8].
Ms Dunstan sought an award of costs and disbursements. The respondent opposed that application, submitting that legal costs could not be awarded to a self‑represented lay litigant, and that this was not an appropriate case in which to make an award of disbursements against a judicial institution. The Judge declined to make an award of costs, but made an order that the respondent pay Ms Dunstan disbursements of $343 for photocopying, paper purchases and postage (Costs judgment).[3]
[3]Dunstan v North Shore District Court [2024] NZHC 1706 at [20].
On 27 June 2024 Ms Dunstan appealed against the Costs judgment, seeking an award of legal costs. On 15 July 2024 the respondent filed a notice of appearance and a cross-appeal against the part of the Costs judgment that awarded disbursements to Ms Dunstan.
At the time Ms Dunstan filed her appeal, she sought a waiver of the filing fee of $1,100. The Registrar declined that application. Ms Dunstan applied for a review of that decision. Goddard J declined the application for review on the basis that the requirements for eligibility for a fee waiver were not met. Ms Dunstan had not established that she was in receipt of a qualifying benefit of the kind that would mean she was deemed to be unable to pay the fee.[4] She had not provided evidence that she would suffer undue financial hardship if she paid the fee. Ms Dunstan sought a waiver on the basis that the appeal concerned a matter of genuine public interest.[5] Goddard J did not accept that submission, saying:[6]
[11] I agree with the Deputy Registrar’s conclusion that the appeal against the costs judgment does not concern a matter of genuine public interest, for the reasons that the Deputy Registrar gave in her letter dated 3 July 2024. Ms Dunstan wishes to argue that she should be awarded costs. The Supreme Court has recently and authoritatively determined that a self-represented lay litigant is not entitled to recover legal costs. It is not in the public interest to revisit that issue in this Court. Nor is it seriously arguable that this approach is inconsistent with s 19 of the New Zealand Bill of Rights Act 1990: it does not involve discrimination on any of the prohibited grounds.
[4]Under reg 5(2)(a) and (3)(b) of the Court of Appeal Fees Regulations 2001.
[5]Dunstan v North Shore District Court [2024] NZCA 319.
[6]Footnote omitted.
Ms Dunstan applied to recall that judgment. That application was declined.[7]
[7]Dunstan v North Shore District Court [2024] NZCA 381.
On 3 September 2024 Ms Dunstan filed a memorandum seeking recall of the judgments delivered by Goddard J, and seeking recusal of Goddard J. By minute dated 30 September 2024 Goddard J declined to recuse himself from dealing with the matter. No basis for recusal had been identified in Ms Dunstan’s memorandum. Nor had Ms Dunstan identified any recognised basis for recall of either of this Court’s judgments. That application was declined.
Ms Dunstan then applied for a waiver of security for costs. The respondent filed a memorandum opposing this application. However the application was not determined, as before it could be considered Ms Dunstan’s appeal was deemed to be abandoned. Ms Dunstan had failed to file a case on appeal or an application for fixture within the time prescribed by the Rules. The result was that her appeal was treated as having been abandoned, pursuant to r 43. However, as Goddard J noted in his minute dated 30 September 2024, the cross-appeal remained on foot.
On the basis that Ms Dunstan’s appeal was abandoned, the respondent gave notice on 17 October 2024 abandoning its cross-appeal. The notice of abandonment recorded that costs in respect of that abandonment were not agreed.
The application before this Court
Ms Dunstan filed a memorandum dated 27 October 2024 in which she sought costs in connection with the abandoned appeal and cross-appeal. That memorandum ranges widely across the merits of her appeal and the background to the proceedings more generally. It does not identify any steps that Ms Dunstan took that were referable to the cross-appeal, as distinct from her own appeal. Nor does it identify any disbursements she incurred in connection with the cross-appeal. She explains the amount of costs that she seeks as follows:
I am formally requesting the total costs crown law have incurred with 2-4 solicitors obstructing justice in the High Court and court of appeal proceedings and request this be paid to me, with a 50% increase for deliberate obstruction of justice imposing and exploiting financial hardship on me. I rely on the base minimum of costs ordered in the decisions of: Dunstan v Corrections in matter [2023] NZHC 3221 Downs J dated 17/11/2023- awarding in excess of $33,000 FOR ME BEING A VICTIM OF TORTURE- THAT APPEAL ALSO REMAINS INDEFINITELY OBSTRUCTED BY Court of appeal judges (such as Cooke J- now further discriminating against another prisoner in matter CA605/2024)
Ms Dunstan also sought a range of other orders, including (despite the deemed abandonment of her appeal) a declaration that the Costs judgment was “in err”:
21. I request the Court of appeal judges:
a)Refer all crown solicitors involved in these obstructions to be referred to the NZLS for sanction and consideration of their disbarment (which they appear to have no issue with in other matters, vexaciously raised CA605/2024)
b)Refer the crown solicitors to NZ police for investigation into the offence of conspiring to defeat justice and mislead the courts, s116 Crimes Act 1961.
c)Refer the solicitors to the Attorney General, as per the direction of Justice Ellis regarding Ben Vanderkolk in 2023.
22. In addition to costs and punitive damages and disbursements I request a declaration the decision was in err and crowns conduct has amounted to a breach of justice, causing further delays.
Application for recusal
Ms Dunstan’s memorandum dated 27 October 2024 suggests that Goddard J “appears to have skin in the game”. In an email to the Registrar accompanying the application Ms Dunstan expressed the view that both Goddard and Cooke JJ “have perceived conflict of interest and actual bias modeled in their most recent decisions of 16/10/24 before the NZLS for investigation into malicious and vexatious complaints”. She asked for her costs application to be placed “before a NEUTRAL Court of appeal judge for fair and just determination”.
The costs application was referred to Goddard J as the Judge who has been case-managing this matter. Goddard J formed the view that this application ought to be determined by two judges, rather than one judge. The President of the Court directed that Cooke J, as a civil list judge, should be the other judge on the panel.
This is the second time that Ms Dunstan has applied for Goddard J to recuse himself in connection with this matter. As on the previous occasion, she has not identified any factual basis for that application. None of the well-established grounds for recusal applies in this case.
Similarly, no basis for recusal of Cooke J has been identified.
The informal application for recusal of Goddard and Cooke JJ is declined.
Costs application
The general rule is that costs follow the event. Consistent with that general rule, where an appeal is abandoned the respondent is generally entitled to an award of costs and disbursements under pt 4A of the Rules. The usual principles set out in pt 4A that govern entitlement to costs and disbursements, and quantification of costs and disbursements, apply in this context.
Following the deemed abandonment of Ms Dunstan’s appeal the respondent could have sought costs in respect of that appeal. But it did not do so.
The same general rule and the same basic principles apply in relation to a cross‑appeal. So the starting point, following abandonment of the respondent’s cross‑appeal, is that Ms Dunstan is entitled to an award of costs and disbursements in respect of that cross-appeal fixed in accordance with pt 4A.
However, applying those principles, it is clear that Ms Dunstan is not able to claim any costs or disbursements in relation to the cross-appeal. The fundamental reason that no award of costs or disbursements can be made in respect of the cross‑appeal is that Ms Dunstan did not take any step that was referable to the cross‑appeal, rather than to her own appeal, between 15 July 2024 when the cross‑appeal was filed and 17 October 2024 when the cross-appeal was abandoned. Even putting to one side the fact that Ms Dunstan was self-represented, so not entitled to an award of legal costs, she did not take any step in respect of which legal costs could be awarded. Thus even if she had been legally represented, no award of costs in her favour could be made in this case. Nor has Ms Dunstan identified any disbursements she incurred in connection with the cross-appeal.
A further barrier to an award of costs is the determination of the Supreme Court that a self-represented lay litigant is not entitled to recover legal costs.[8] The Rules (and the High Court Rules 2016 to which they refer) were amended with effect from 1 September 2024 to provide for costs to be recoverable by a party acting in person, at a reduced rate.[9] However that amendment is not retrospective.[10] And as already noted, no steps were taken in respect of the cross-appeal that could have triggered an entitlement to costs under the Rules as amended.
[8]McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335.
[9]See Court of Appeal (Civil) Rules 2005, r 53A.
[10]See sch 1AA, pt 3.
We add that the basis on which Ms Dunstan seeks costs quantified by reference to the costs incurred by the respondent (with a 50 per cent increase) is unorthodox, and lacks any foundation in the Rules or in precedent.
For the sake of completeness we note that if we had approached the question of costs taking into account both the appeal and the cross-appeal, we would likely have concluded that Ms Dunstan should be required to pay costs to the respondent. It certainly would not have been the case that Ms Dunstan was entitled to costs or disbursements in respect of her abandoned appeal, and as already explained she did not incur any costs or disbursements in respect of the cross-appeal.
The other relief sought by Ms Dunstan is either unavailable as a matter of law in circumstances where the appeal has been abandoned (for example, a declaration that the Costs judgment was wrong) or lacks any factual or legal foundation.
Result
The application for recusal of Goddard and Cooke JJ is declined.
The application for costs is declined.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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