DUNSTAN v AUCKLAND HIGH COURT & ORS [2022] NZCA 478

DUNSTAN v AUCKLAND HIGH COURT & ORS [2022] NZCA 478 [12 October 2022]ANY REPORT OF THE SUBMISSIONS MADE AT THE HEARING MUSTNOT INCLUDE THE NAMES OR IDENTIFYING PARTICULARS OF THEAPPELLANT'S CHILDREN OR REFER TO ANY PRIVATE OR PERSONALINFORMATION REGARDING THEM.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA190/2022[2022] NZCA 478BETWEEN TANYA FELICITY DUNSTANAppellantAND AUCKLAND HIGH COURTFirst RespondentATTORNEY-GENERALSecond RespondentNEW ZEALAND POLICEThird RespondentHearing: 18 August 2022Court: Katz, Wylie and Palmer JJCounsel: Appellant in personNo appearance for RespondentsJudgment: 12 October 2022 at 10:30 amJUDGMENT OF THE COURTA The appeal is dismissed.B Any report of the submissions made at the hearing must not include thenames or identifying particulars of the appellant's children or refer to anyprivate or personal information regarding them.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] On 4 April 2022 Gault J struck out a proceeding Ms Dunstan had filed inthe High Court against the Attorney-General and the New Zealand Police, as anabuse of process.1 Ms Dunstan now appeals that decision.2Background[2] On 24 June 2019, Ms Dunstan was arrested for an alleged breach of atemporary protection order. The charge was subsequently withdrawn.[3] Ms Dunstan then filed a proceeding in the District Court against theNew Zealand Police, alleging malicious prosecution in respect of her arrest.[4] Ms Dunstan sought summary judgment. Her summary judgment applicationwas heard by Judge D J Clark. In a decision dated 10 December 2021, the Judgedismissed the application on the basis that it was inappropriate for the proceeding tobe dealt with on a summary basis. The Judge noted, however, that:3The dismissal of the summary judgment application does not bring theseproceedings to an end. They simply adopt a different [track] in the Courtprocess and on that basis, I direct the first case management conference beconvened at the earliest opportunity by the registry.[5] The District Court proceeding is ongoing.[6] Ms Dunstan then filed a mirror proceeding against the New Zealand Police(and also the Attorney-General) in the High Court, making the same allegations.Again, Ms Dunstan sought summary judgment.1 Dunstan v Attorney-General [2022] NZHC 674 [Judgment under appeal].2 Senior Courts Act 2016, s 56(4)(a).3 Dunstan v Police [2021] NZDC 23770 at [47].The High Court judgment[7] The Registrar referred the proceeding to Gault J for consideration underr 5.35B of the High Court Rules 2016 (the Rules). That rule provides, amongst otherthings, that on such a referral the Judge may strike out a proceeding if satisfied that itis plainly an abuse of the process of the court.4[8] Gault J issued a minute on 14 March 2022 identifying several concerns withthe documents that had been filed by Ms Dunstan and directing that a telephoneconference be convened to give Ms Dunstan an opportunity to be heard.5That telephone conference took place on 17 March 2022.[9] On 4 April 2022, Gault J delivered a decision striking out the proceeding as anabuse of process.6 Amongst other things, he noted that Ms Dunstan had brought aproceeding relating to the same matters in the District Court and had unsuccessfullyapplied for summary judgment in that jurisdiction. Ms Dunstan had not appealedthat decision and her claim was now proceeding to a substantive hearing inthe District Court.7 The Judge also noted that Ms Dunstan had suggested that hermotivation for bringing the High Court proceeding was to avoid the scale of aDistrict Court trial with multiple witnesses. His Honour observed, however, that anyHigh Court proceeding "would no doubt be similar given the same difficulty withsummary judgment".8[10] The Judge found that the High Court proceeding was plainly an abuse ofprocess, as it replicated Ms Dunstan's District Court proceeding. The proceeding wasaccordingly struck out.94 High Court Rules 2016, r 5.35B(1) and 5.35B(2)(a).5 Dunstan v Attorney-General HC Auckland CIV-2022-404-261, 14 March 2022 (Minute ofGault J).6 Judgment under appeal, above n 1.7 At [9].8 At [10].9 At [13].Ms Dunstan's appeal[11] On appeal, Ms Dunstan submitted, amongst other things, that:(a) The Judge was wrong to tell her during the teleconference that it wasnot possible to have the Attorney-General and the New Zealand Policelisted in the same matter.(b) The Judge was wrong to consider her damages claim to be excessive,and there was precedent supporting the figure she claimed.(c) The Judge should have directed her to amend her statement of claim toinclude a claim under the New Zealand Bill of Rights Act 1990.(d) The strike-out was an abuse of power and in breach of her rightto justice.(e) If the appeal is not allowed it will bring the judicial system intodisrepute and undermine public confidence in it.(f) Justice Gault subsequently refused to provide her with a transcript ofthe teleconference on the basis that no recording existed, whereas shebelieves that audio recordings are routinely made of "callovers".(g) There was evidence before the Judge to substantiate her claim ofmalicious prosecution.Discussion[12] Unfortunately, the arguments advanced by Ms Dunstan largely fail to engagewith the sole issue on appeal, which is whether the Judge was wrong to strike outthe High Court proceeding as being "plainly an abuse of the process of the court" onthe basis that it largely (or possibly completely) replicates an existing District Courtproceeding.[13] It is well-established that it is an abuse of process for a plaintiff to bringconcurrent proceedings in different courts relating to the same subject matter andraising the same (or largely the same) factual and/or legal issues. For example, inTranter v R, the High Court struck out a proceeding under r 5.35B of the Rules on thegrounds that the claim sought judicial review of decisions made by the High Court inthe context of a criminal trial, and that it raised matters which were by then the subjectof an appeal to this Court.10 Duplicative or parallel proceedings have also been struckout as an abuse of process under r 15.1 of the Rules, in a number of cases.11[14] A similar principle applies in respect of consecutive (rather than concurrent)proceedings relating to the same subject matter. Specifically, it is an abuse of processfor a party to be "twice vexed in the same matter".12 This is known as the rule inHenderson v Henderson. The English Court of Appeal explained inBarrow v Bankside Agency Ltd that:13The rule in Henderson v. Henderson is very well known. It requires theparties, when a matter becomes the subject of litigation between them in acourt of competent jurisdiction, to bring their whole case before the court sothat all aspects of it may be finally decided (subject, of course, to any appeal)once and for all. In the absence of special circumstances, the parties cannotreturn to the court to advance arguments, claims or defences which they couldhave put forward for decision on the first occasion but failed to raise. The ruleis not based on the doctrine of res judicata in a narrow sense, nor even on anystrict doctrine of issue or cause of action estoppel. It is a rule of public policybased on the desirability, in the general interest as well as that of the partiesthemselves, that litigation should not drag on for ever and that a defendantshould not be oppressed by successive suits when one would do. That is theabuse at which the rule is directed.[15] Accordingly, in the interests of fairness to litigants and the need for finality, aplaintiff is required to bring forward their whole case against the defendant in one10 Tranter v R [2019] NZHC 244 at [7]–[8].11 See Robert Osborne and others McGechan on Procedure (online ed, Thomson Reuters) at[HR15.1.05(2)(c)], citing Otis Elevator Co Ltd v Linnell Builders Ltd (1991) 5 PRNZ 72 (HC) andCowley v Shortland Publications Ltd (1991) 5 PRNZ 76 (HC). See also Laura O'Gorman (ed)Sim's Court Practice (online ed, LexisNexis) at [HCR15.1.10(g)] noting that it is an abuse to begina second proceeding for summary judgment for claims made in another, ongoing proceeding(citing Cowley). See also Commerce Commission v Harmoney Ltd [2017] NZHC 2421; Yeoman vPublic Trust Ltd [2011] NZFLR 753 (HC) and Zhou v Yue [2019] NZHC 2167.12 Henderson v Henderson (1843) 3 Hare 100, 67 ER 313 (Ch), as described in Johnson v Gore Wood& Co (a firm) [2002] 2 AC 1 (HL) at 31 per Lord Bingham. The rule in Henderson v Hendersonhas been adopted in New Zealand: see for example Lai v Chamberlains [2006] NZSC 70, [2007]2 NZLR 7 at [59] and [71]–[72] per Elias CJ, Gault and Keith JJ; and Commissioner of InlandRevenue v Bhanabhai [2007] 2 NZLR 478 (CA) at [58]–[60].13 Barrow v Bankside Agency Ltd [1996] 1 WLR 257 (CA) at 260 (citation omitted).action. It is an abuse of process to commence a proceeding where the plaintiff seeksto rely on issues or facts which have been (or could and ought to have been) raised ina previous proceeding.[16] In this case, it is plainly an abuse of process for Ms Dunstan to seek toconcurrently pursue malicious prosecution proceedings against theNew Zealand Police and/or the Attorney-General, arising out of the same facts, in boththe District Court and the High Court. The present situation bears some similarity toboth Yeoman v Public Trust Ltd and Zhou v Yue.14 In both of those cases High Courtproceedings were found to be abusive in circumstances where the same issues wereeither already before the Family Court, or could be raised in the context of ongoingFamily Court proceedings.[17] The abuse of process in Ms Dunstan's case is even more clear-cut, however, asin both Yeoman and Zhu the plaintiffs contended (unsuccessfully) that theFamily Court lacked jurisdiction to determine the relevant issues and their onlyrecourse was to the High Court. Here, Ms Dunstan accepts that the District Court hasjurisdiction to hear and determine her malicious prosecution claim. She has filed aparallel proceeding in the High Court not because of any jurisdictional concerns, but(at least in part) because she wishes to have a further attempt at obtaining summaryjudgment, which she believes would enable her to avoid the scale of a District Courttrial with multiple witnesses.15 However, as the Judge pointed out, there would be thesame difficulties in obtaining summary judgment in the High Court as there were inthe District Court.16 Filing High Court proceedings in order to have a second attemptat obtaining summary judgment, having failed to do so in the District Court (a decisionthat Ms Dunstan did not appeal) is clearly an abuse of process.[18] For completeness, as it appears to have been a matter of particular concern toMs Dunstan, we note that her belief that an audio recording of the teleconferencebefore Gault J must exist is erroneous. Although hearings that take place in court areroutinely recorded, teleconferences that take place from a judge's chambers are not14 Yeoman v Public Trust Ltd, above n 11; and Zhou v Yue, above n 11.15 Judgment under appeal, above n 1 at [10].16 At [10]generally recorded. In any event, even if a recording existed (and a transcript of itwere available) there is no basis on which the contents of that transcript could impacton the outcome of this appeal. The High Court proceeding is an abuse of processbecause it duplicates an existing District Court proceeding. Nothing that may havebeen said during the course of the teleconference can overcome thatfundamental hurdle.Suppression[19] At the hearing of Ms Dunstan's appeal (which was attended remotely byseveral members of the public) we made an interim suppression order forbidding anypublication of any report or account of the submissions made at the hearing.The purpose of that order was to protect the identity and privacy ofMs Dunstan's children, given that they were referred to a number of times in thecourse of Ms Dunstan's submissions. We directed that interim suppression continueuntil release of our judgments (we heard two appeals by Ms Dunstan) on the basis thatany further directions would be made at that time.[20] We have not found it necessary in this judgment to refer toMs Dunstan's children. It is therefore not necessary to make any suppression order inrelation to the content of this judgment. We direct, however, that any report or accountof the submissions made at the appeal hearing must not include the names oridentifying particulars of the children or refer to any private or personal informationregarding them.Result[21] The appeal is dismissed.[22] Any report of the submissions made at the appeal hearing must not include thenames or identifying particulars of the appellant's children or refer to any private orpersonal information regarding them.