TANYA FELICITY DUNSTAN [2023] NZSC 96

TANYA FELICITY DUNSTAN [2023] NZSC 96 [31 July 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 73/2023[2023] NZSC 96IN THE MATTER OF TANYA FELICITY DUNSTANApplicantCourt: Ellen France, Williams and Kós JJCounsel: Applicant in personD L Harris and R E R Gavey for Auckland High CourtJudgment: 31 July 2023JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The Auckland High Court is removed as a respondent.____________________________________________________________________REASONSIntroduction[1] Ms Dunstan has filed an application for leave to appeal directly to this Courtfrom a decision of the High Court. The decision is set out in the minute of Powell Jof 14 June 2023. Ms Dunstan has also filed what is described as an application forthis Court to make a declaration and an order for mandamus.Background[2] The minute of 14 June 2023 is one of a number issued by Powell J in thecontext of various proceedings brought by Ms Dunstan in the High Court. The minuterecords that the Judge was not prepared to deal with documents Ms Dunstan sought tofile relating to various interlocutory minutes. That was against the background of theJudge having told Ms Dunstan that if she wished to have various matters considered,a formal application with supporting memorandum was to be filed so that the relevantdocumentation was served on the parties to the particular proceedings. The materialfiled by Ms Dunstan did not comply with the earlier direction and the Judge saw thisas a further abuse of process. The documents were to be returned to Ms Dunstan.The proposed appeal[3] Ms Dunstan seeks leave to appeal from the minute of 14 June 2023 on thebasis, amongst other matters, that it is a breach of natural justice and prevents her fromexercising her "right" of appeal.[4] The declaration and order for mandamus are sought on an ex parte basis onvarious grounds, including the submission that Ms Dunstan's interlocutoryapplications in the High Court are being obstructed from any "right" of appeal due torefusals to grant her leave to appeal.[5] The relevant criteria for an appeal directly to this Court are twofold: first, theCourt must be satisfied it is necessary in the interests of justice for the Court to hearthe appeal and, second, that there are exceptional circumstances justifying a directappeal.1 For a number of reasons, we are satisfied the leave criteria are not met.[6] First, it is apparent on the face of the record that Powell J has not declinedleave. The Judge has, rather, made it clear what Ms Dunstan needs to do if she wishesto pursue her applications for leave to appeal. Second, if there had been a decision todecline leave to appeal, s 69(b) of the Senior Courts Act 2016 would apply. Thatsection provides this Court has no jurisdiction to hear Ms Dunstan's proposed appealfrom a refusal by the High Court to give leave to appeal to the Court of Appeal. Theproper avenue where the High Court refuses leave in these circumstances is to seekleave to appeal from the Court of Appeal. Third, Ms Dunstan refers to a number ofother "interlocutory" minutes. Section 69(c) of the Senior Courts Act says that thisCourt may not hear an appeal by a party to a civil proceeding in the High Court againsta decision made on an interlocutory application. Finally, even assuming there is1 Senior Courts Act 2016, ss 75(2)(a) and 75(2)(b).jurisdiction, there is no appearance of a miscarriage of justice.2 The underlyingconcern of the Judge was an orthodox one, namely, to ensure the parties were served.[7] The matters advanced by Ms Dunstan in support of the ex parte orders soughtare diffuse and unclear. They do not provide any basis for intervention by this Court,even assuming there would be any jurisdiction to do so.[8] The application for leave refers to the Auckland High Court as a respondent.As counsel for the Court submits, the appropriate respondents are the underlyingparties to the proceeding dealt with by Powell J in the minute. TheAuckland High Court is removed as a respondent on the basis that it has beenimproperly joined. In view of our decision on the application for leave, there is nopoint in requiring service on the underlying parties.Result[9] The application for leave to appeal is dismissed. The Auckland High Court isremoved as a respondent.Solicitors:Crown Law Office, Wellington for Auckland High Court2 Section 74(2)(b).