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Dunstan v Police [2024] NZHC 2165 (5 August 2024)

Last Updated: 24 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] NZCA 287; [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 22, and $100,000 in NZBORA damages.

• [5] Ms Dunstan also seeks “interim” damages of $144,000.

• [6] In addition, she invites the Court to consider proceeding with an interim direction of res ipsa loquitur. Res ipsa loquitur, meaning “the facts speak for themselves”, is a rule of evidence. It is generally relied upon in the context of negligence and essentially allows the Court to infer negligence from the fact of the accident itself. A defendant must adduce evidence to rebut this prima facie position that provides an explanation for the events not involving their alleged negligence.³ As noted above, because NZBORA damages cannot be awarded for a private law claim in negligence, this doctrine does not apply here.

³ See the discussion in Peters v Bennett [2020] NZHC 761, [2020] 2 NZLR 699 at [143]–[146].

The leave decision

• [7] The SCA does not itself provide a test for the grant of leave following an s 166 order. The flexible approach suggested by Campbell J in Dokad Trustees Ltd v Auckland Council can be applied:⁴

Section 169 of the [SCA] 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 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.

• [8] The burden is on the applicant to satisfy the Court that leave should be granted.⁵ The leave discretion should be exercised with “restraint”, given the s 166 order establishes 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”.⁶ The Judge’s determination is final.⁷

Discussion

• [9] Ms Dunstan’s application for NZBORA damages largely mirrors claims that have already been dismissed on their facts by Downs J in November 2023.⁸ Justice Downs presided over a multi-day hearing about the remand period spent in Corrections’ custody from 29 December 2018–3 January 2019 that Ms Dunstan focuses on in her current proposed proceeding. There, Ms Dunstan alleged that her rights under s 9 of the NZBORA had been breached. She raised before his Honour similar allegations to those currently before the Court; that she was denied legal representation, denied phone calls, and that she was in solitary confinement. Her claim was dismissed in its entirety on the facts. In other words, Downs J found that she was not prevented from making any telephone calls nor was she held in solitary confinement while in the custody of Corrections.

⁴ Dokad Trustees Ltd v Auckland Council [2021] NZHC 2603 at [55].

⁵ Dunstan v Wellington District Court [2023] NZHC 3280 at [10].

⁶ Dokad Trustees Ltd v Auckland Council, above n 4, at [58].

⁷ Senior Courts Act 2016, ss 169(5) and 169(6).

⁸ Dunstan v Chief Executive, Department of Corrections [2023] NZHC 3221.

• [10] While Ms Dunstan now seeks to advance her claim against Corrections based on a different section of the NZBORA, it is in the interests of fairness to litigants and of the finality of proceedings that a claimant brings forward their whole claim in one action. As the Court of Appeal has held in relation to a previous matter concerning Ms Dunstan, it is an abuse of process to commence a proceeding where the claimant relies on issues or facts which “have been (or could and ought to have been) raised in a previous proceeding”.⁹ The proper course would have been for Ms Dunstan to raise the current issues she raises about s 22 of the NZBORA in those proceedings, not to do so now, in reliance on an essentially identical factual narrative that has already been rejected by this Court. Ms Dunstan considers she has been “obstructed” by Judges of this Court in attempting to address what she says is her mistreatment by Corrections. The reality is she appears to be attempting to continue to litigate the same matters.

• [11] Even disregarding the apparent abuse of process inherent in Ms Dunstan’s application regarding Corrections, her statement of claim would be amenable to strike out in its entirety (before or after service) on the basis that it would be “manifestly unfair” to require both of the respondents to respond to the application, and “right thinking people would regard the Court as exercising very poor control of its processes if it was to permit the application to proceed further”.¹⁰ This is, firstly, for the reason expressed above that Ms Dunstan has already unsuccessfully attempted to litigate the same facts in respect of Corrections.

• [12] Secondly, Ms Dunstan’s proposed proceedings against both Corrections and the Police show little apparent merit. Ms Dunstan levels claims that are unsubstantiated by any evidence other than her own assertions and she does not provide seemingly relevant documents that could contradict her position. For example, Ms Dunstan makes allegations that the Police have falsified NIA records and withheld information from her. Ms Dunstan files a number of Police responses to information requests to support this, but it seems that Ms Dunstan has been selective as to what she does and does not provide. The responses that are provided by the Police attached to Ms Dunstan’s affidavit repeatedly refer to earlier responses answering requests to receive call logs and information about her time spent in Police

⁹ Dunstan v Auckland High Court [2022] NZCA 478 at [14]–[15].

¹⁰ O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [27] and [30].

custody in Hawera, detailing the reference numbers of those responses and the date information was given to her. But Ms Dunstan’s affidavit does not provide the earlier responses in which it might reasonably be inferred the Police have disclosed the information she has asked for. This means that Ms Dunstan’s claims, including those levelled against the Police, are not supported by the evidence she has provided.

• [13] As noted by Campbell J above, it is possible for this Court to take into account the manner in which proceedings would be conducted if leave were granted. I observe that there is a common theme in Ms Dunstan’s claim where she appears to misrepresent situations she has been in and communications she has received.

• [14] For example, Ms Dunstan’s application for leave refers to a minute of 27 February 2023 where Judge Sinclair “admit[ed] a perceived conflict of interest with any Auckland based judge” addressing Ms Dunstan’s matters featuring a particular witness. In emails to the Registry, Ms Dunstan has asserted that Judge Sinclair recused “all Auckland Judges” from presiding over matters that include that witness.

• [15] The minute to which Ms Dunstan refers is one where Judge Sinclair recuses herself personally due to a potential conflict that could arise out of the witness being married to another Judge of the Auckland District Court.¹¹ Judge Sinclair is based in the Auckland District Court and happened to be sitting in the Manukau District Court the day Ms Dunstan’s matter came before her; the Manukau District Court having different Judges based there. Judge Sinclair does not purport to recuse all of the Judges sitting in any registry across the Auckland region and, in any event, she does not have the power to do so.

• [16] Further, Judge Sinclair’s decision does not appear to have any relevance to current proceedings. Ms Dunstan should be careful to ensure that, in any future claims she seeks to commence, she is properly representing the circumstances of those claims and the evidence on which she relies, and that only relevant evidence is provided.

11. Dunstan v Police DC Manukau CIV-2021-092-001563, 27 February 2023 (Minute of Judge A A Sinclair).

• [17] For these reasons, I decline Ms Dunstan’s application for leave to commence proceedings. I note again that this decision is final.

Grau J