DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 1670

DUNSTAN v DEPARTMENT OF CORRECTIONS [2023] NZHC 1670 [3 July 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-002159[2023] NZHC 1670BETWEEN TANYA FELICITY DUNSTANPlaintiffAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSDefendantHearing: On the papersAppearances: T Dunstan in PersonM L Clarke-Parker for the DefendantJudgment: 3 July 2023JUDGMENT OF ASSOCIATE JUDGE GARDINERThis judgment was delivered by me on 3 July 2023 at 10.30 a.m.pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate.......................................Solicitors:Crown Law, WellingtonCopy to: T F DunstanIntroduction[1] This judgment concerns two interlocutory applications filed by Tanya Dunstan.In the first interlocutory application dated 1 May 2023, Ms Dunstan requests:(a) leave to appeal my dismissal of her interlocutory application dated16 March 2023;1 and(b) that I recuse myself from the proceeding on the grounds of bias.[2] In the second interlocutory application dated 12 May 2023, Ms Dunstan appliesfor:(a) waiver of any security for costs order imposed on her; and(b) a direction setting down the proceeding for hearing, and decisions onher outstanding interlocutory applications.[3] The defendant opposes the orders sought in these applications.[4] During a telephone case management conference held on 16 May 2023,I asked Ms Dunstan and Mr Clarke-Parker whether they required allocation of aseparate hearing to hear submissions on these interlocutory applications, or whetherthe applications could be dealt with based on the papers they had filed and any oralsubmissions they wanted to make at the conference. Ms Dunstan confirmed that sherelied exclusively on the written documentation she had already filed, and did notrequire a separate hearing. Mr Clarke-Parker was also content to rely on thedocuments he had filed.Interlocutory application dated 1 May 2023Recusal for bias[5] Ms Dunstan claims that I have apparent bias because I:1 Dunstan v Chief Executive of Department of Corrections HC Auckland CIV-2022-404-002159, 6April 2023.(a) dismissed her interlocutory application for allocation of a hearing andfor an order for "interim damages";(b) directed a second case management conference;(c) directed her to amend her statement of claim; and(d) directed that she file a formal application seeking leave to appeal thedismissal of her interlocutory application.[6] The fact that a Judge decides against a litigant is not an indication of bias, oran indication of an appearance of bias.2[7] The directions that have been made are orthodox and do not indicate actual orapparent bias.[8] The application for recusal is therefore dismissed.Leave to appeal[9] In Greendrake v District Court of New Zealand,3 the Court of Appeal approvedthe discussion of the considerations relevant to an application for leave as identifiedin Finewood Upholstery Ltd v Vaughan.4 In particular, the leave requirement is afiltering mechanism, and the following considerations are relevant on an applicationfor leave to appeal:(a) a high threshold exists;(b) the applicant must identify an arguable error of law or fact;2 Dunstan v New Zealand Police [2023] NZSC 58 at [6], citing Creser v Creser [2015] NZSC 116at [6]; N v M [2015] NZSC 185 at [4]-[5]; and Prasad v Indian Publications (NZ) Ltd [2018]NZSC 48 at [4].3 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679.(c) the alleged error should be of general or public importance warrantingdetermination, or otherwise of sufficient importance to the applicant tooutweigh the lack of general of precedential value;(d) the circumstances must warrant incurring further delay; and(e) the ultimate question is whether the interests of justice were served bygranting leave.[10] Ms Dunstan's ground for appeal is that an Associate Judge does not havejurisdiction to dismiss an interlocutory application.[11] Ms Dunstan is wrong. An Associate Judge has the jurisdiction and powers ofa Judge in chambers conferred by the Senior Courts Act 2016, or the High Court Rulesor another enactment.5 An interlocutory application is heard in chambers unless theCourt otherwise directs.6[12] A Judge may, on the Judge's own initiative, make an order or give directionsto ensure that an interlocutory application that is plainly an abuse of process of theCourt is disposed of, or proceeds in a way that complies with the rules, including(without limitation) an order under r 15.1 that the application is struck out, stayed, orstayed on conditions.7 Associate Judges can make orders or give directions (inchambers) under this rule, in contrast to rr 5.35A – 5.35C, which concern plainlyabusive proceedings.[13] Ms Dunstan has not identified an arguable error. The application for leave toappeal my decision of 16 March 2023 is dismissed.5 High Court Rules 2016, r 2.1(1). See also s 22 of the Senior Courts Act 2016.6 Rule 7.34.7 Rule 7.42A.Interlocutory application dated 12 May 2023Waiver of security for costs[14] Ms Dunstan applies for an order waiving any security for costs that may beimposed on her, due to extreme financial hardship.[15] There is no existing order for security for costs. Ms Dunstan's financialposition will be considered in the context of an application by the defendants forsecurity for costs, should the defendants file such an application. The orderMs Dunstan seeks is premature: there is nothing to waive.[16] Ms Dunstan asks that her substantive proceeding be set down to be heard onthe next available hearing date. On 16 May 2023 I directed that a five day trial be setdown on the first available date.8[17] The remaining aspect of her interlocutory application, that all outstandinginterlocutory applications be addressed, is now resolved.Result[18] Ms Dunstan's interlocutory applications dated 1 and 12 May 2023 aredismissed._______________________________Associate Judge Gardiner8 Dunstan v Chief Executive of Department of Corrections HC Auckland CIV-2022-404-002159,16 May 2023 at [9].