Down With Clowns Who Disregard Breaches Of Human Rights in jest. SC42 [2023] CA5/2023

"Transparency over privilege"- Mallon J 24 March 2023- NZHC620

S14 NZBORA 1990 - you have a RIGHTS to seek, share and receive information.

Or perhaps this is creative writing, not dissimilar the "the law"? SC 115/2022 [2023] NZSC 4 "[5] The points raised by Ms D are entirely factual and therefore no matter of general or public importance arises. Nor does anything raised by Ms D indicate there is any risk of a miscarriage of justice" - Glazebrook, Williams and Kós JJ

The current appeal is against the Court Of Appeal decision to dismiss an appeal out of time made by Justice Brown and Justice Collins in chambers on 2 May 2023 ignoring Justice Harlands horrendous judicial failing ignoring a miscarriage of justice stating "while a breach of natural justice has occurred [exclusively against one party] that does not support any allegation of bias."

BACKGROUND

The appellant in the proceeding gave notice to the Court Of Appeal that the appellant is appealing to the Court against Justice Harland, who has deliberately obstructed rights to natural justice in breach of s9, s19 and s27 of BORA 1990. I am appealing the decision initially handed down on 7 September 2021 and the subsequent refusal to correct this judicial failing on 16 December 2022.

The appeal was filed on the 1st of February 2023 with the ?specific grounds of the appeal:

a)????Justice Harland erred in ignoring bias in family court proceedings in the Manukau Family Court.

b)????In her judgement she acknowledged judge Mahon had “breached natural justice” in preventing any communication or filing between me and the registry but stated “this did not support my allegations Judge Mahon was biased”

c)????Justice Harland errs in falsifying facts- such as alleging an s139 application was granted in March- despite it still showing as “pending” in April on the documents she received.

d)????Justice Harland ignores Judge Mahons breaches of legislation unlawfully varying final orders at least 3 times within a 2 year period without any s139 order granted.

e)????Justice Harland ignores errs of mandatory considerations of s4 and s5 of COCA 2004 with the Manukau court deliberately leaving the children in an environment known to be abusive and harmful to them.

f)?????Justice Harland errs in stating Judge Mahon did not grant a bond against me [he did- in April 2021 for $1500]

g)????I notified justice Harland of her failings and the gravity of harm this has cased, inviting her to correct this as a “mistake”- this was declined on 16 December 2022- imposing further delays and burden of more litigation by way of a formal application- thus indicating Justice Harlands conduct was not in error but a deliberate act to prevent justice at the expense of childrens safety.

h)??IN THE INTERESTS OF PUBLIC SAFETY AND CONFIDENCE IN THE JUDICIARY THIS APPEAL MUST BE GRANTED AS THE MATTERS ARE OF SIGNIFICANT IMPORTANCE ON A POINT OF LAW AND PARAMOUNT TO PUBLIC INTEREST IN THEIR FAITH IN THE JUDICIAL SYSTEM.

i)??It is unreasonable to prevent a person a right to justice because they can be bullied or tricked into not believing in their rights, especially when that comes at the cost of a childs safety.

The appellant sought the following judgment from the Court of Appeal:

a)???I seek the court of appeal grant this appeal out of time on the basis that having finally received a decision acknowledging there has been a miscarriage of justice and judges have made errors dismissing my appeals and judicial reviews in breach of my rights- CA114/2022 12 Oct 2022 D V AG regarding criminal matters, I am now in a position to advocate for my rights to justice in other matters that have been unfairly dismissed in spite of the facts of evidence presented to the court.

On 13 April 20223 the appellant filed an urgent memorandum to the Court Of Appeal raising their attention to the significant failings and miscarriages of justice on foot regarding the decision and failure for any court to remedy Judge Mahons misbehaviour:

Due to the outrageous lag in decision making, myself and my children continue to suffer gross miscarriages of justice and treatment that amounts to not only:

a)?????A breach of our human rights under HRA 1993 and BORA 1990

b)????But also Crimes Against Torture Act 1989 3. I received a decision of Mahon J yesterday 12 April 2023 declining to recuse himself from proceedings, leveraging Justice Harlands’ findings of the decision under appeal in these proceedings.

c)?????I am concerned he has failed to follow the process of an open court.

d)????I am now filing this memorandum urgently seeking the court of appeal – make an urgent direction for Mahon to be disqualified from further involvement in family court proceedings as there is reasonable basis to state he is prejudiced and may repeat decisions which “breach natural justice”- as found in Harland Js decision under appeal.

e)????I draw attention to the court of appeal of Judge Mahons inclination of an unfavourable , potentially lawless decision to “bring the matters to finality” inclusive of comments such as in his decision dated 12 April 2023:

[14] Ms D refers to applications she has made to the High Court, Court of Appeal and Supreme Court in support of her claim that I recuse myself from the case. Ms Dunstan has been singularly unsuccessful in these applications and a number of the higher court decisions have concluded that Ms D’s unrelenting pursuit of a number of her applications generally amount to be an “abuse of process”.

[15] Ms D refers to her complaints to the Judicial Conduct Commissioner in respect of my decisions and the court process. She has unsuccessfully filed at least 16 complaints against me personally among about 45 judicial complaints against Judges, including Judges of the Family and Criminal Courts, High Court and Court of Appeal.

[16] In one of the complaints made against me last year, Ms D suggested that I may have been under the influence of drugs or alcohol when presiding in her case, when she posed the following question to the Judicial Complaint Commissioner: When will Judges be drug and alcohol tested prior to presiding over hearings especially when children are involved.

[30] I will deal with the issue of finality in this case which has been before the court for too long, in my substantive decision following the December 2022 hearing. That decision is currently being finalised and will be released later next week. I will identify the conduct of Ms D which has made formulation and implementation of a successful parenting arrangement for the children so difficult to achieve. ____________

Judge AG Mahon Family Court Judge

| Kaiwhakawā o te Kōti Whānau Date of authentication | Rā motuhēhēnga:

11/04/2023 2 Ms D refers to an error in the interim order released on 25 January 2023 which needed correction because the interim order for contact confused the regularity of term time contact with the additional contact directed over the Christmas holidays. This error was corrected after Mr N brought the court’s attention to it. The only other correction needed to any judgment or direction made was in respect of a reference to criminal proceedings Ms Dwas seeking to commence in the Papakura Criminal Court. In a Minute I made on an application by Ms D arising from those criminal proceedings, I incorrectly criticised her wrongly describing a direction of His Honour Judge McDonald. I have already issued a Minute to explain why that error was made. It was because the Papakura Criminal Registry failed to provide me with other directions made by Judge McDonald in those proceedings of which I was not aware. and I issued the Minute believing Judge McDonald had only issued directions in the Minute provided to me. I understand that he may in fact have issued three Minutes although only two were relevant to the Family Court.

f) I seek the court make directions justice requires and cease failing this responsibility falsely stating they have no jurisdiction. I rely on the following rule 48, Court Of Appeal rules 2005: 48 Powers of Court in hearing appeals

(6) Nothing in this rule limits any other powers of the Court

DECISION.

The majority of the decision suggests a narrative of exhaustive measures the appellant has taken to attempt to remedy miscarriages of justice.

The courts recognition of the exhaustive measures taken is noted In paragraph [18] “we recognise that DFTS resources to undertake litigation have been severely stretched to undertake the litigation in several processes which she has pursued.”

Paragraph [21] is in err falsely alleging that the appellant had placed her complaints of Judge Mahons bias “on the back burner”- ignoring the exhaustive measures taken to attempt to regulate this concern having been failed by the Higher court.

The COA Judges were privy to the urgent memorandum filed by the appellant stating in Judge Mahon sons response dated 11 April 2023: [15] Ms D refers to her complaints to the Judicial Conduct Commissioner in respect of my decisions and the court process. She has unsuccessfully filed at least 16 complaints against me personally among about 45 judicial complaints against Judges, including Judges of the Family and Criminal Courts, High Court and Court of Appeal.

While the court of appeal judges may have an opinion as to “more or less” effective measures of redress to regulate Judicial bias- Ms Ds attempts to have Mahon Js conduct remedied can in no way be stated to have “been on the back burner” with 16 complaints to the Judicial conduct commissioner addressing this problem of Judge Mahon.

By the judges disregarding exhausted measures and the disillusion of any self-litigant to have any faith in a judiciary that acknowledges “a breach of natural justice” against one party and in the same breath states “that does not amount to bias” is unjust, unethical and deeply disturbing as a member of the general public to be made aware of.

This “judgement” of two court of appeal judges to dismiss a traumatized mother exhausting all legal avenues as best she could as a lay litigant to prioritise her childrens’ immediate safety- is leveraged in para [22] and [23] of their decision alleging “cumulatively, these considerations weight heavily against granting leave out of time to appeal the decision of Justice Harland.”

LEGAL PRINCIPLES

As referenced in Almond v Read, Factors that may be relevant include:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, in particular, the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

As cited in the successful appeal out of time ?in favour of the same appellant under NZCA15 D V New Zealand : para [97] “The merits of the proposed appeal may, in principle, be relevant to the exercise of the discretion to extend time. But a decision to refuse an extension of time based substantially on that ground should be made only where the appeal is clearly hopeless.”

The only reason just outcomes should or could be deemed hopeless is if the judiciary is unwilling and incapable of making just and fair decisions that are required- as has proven to be the case without consistency nor regard for mandatory principals or binding precedents of law.

PRECEDENT DECISIONS:

a)??CA431/2022 [2022] NZCA 15 “[35] No party opposed an extension of time to appeal against the 2021 leave requirement. That order raises issues of importance to DFT and more generally. The interests of justice require these issues to be addressed in order to deal with the appeals from the leave refusals, all of which were filed within the prescribed time. We grant leave accordingly”

b)????Case law: D V N CA114/2022 -12 Oct 2022 Justice Katz, Wyliue and Palmer.

c)?????D V N?CIV-2022-404-223 12 Dec 2022 Justice Lang. “obvious errors” from the district court in refusing the criminal prosecution. [8]

d)????53 Almond v Read, above n 12, at [38].

Appeal out of time

e)??For an appeal out of time W V W – 301/2021 -31 OCT 2022 Justice Courtney with family court trauma “adequately explaining” the delay in appeal.

f)???Until I received any just decision, it would have been ridiculous [“irrational and time wasting” in Kit Toogoods words 18 August 2021] for me to appeal these decisions. Now, it is unreasonable not to remedy the obvious errors of the courts, as their failings have been acknowledged by the higher courts on two occasions in my matters. [12 Oct 2022 and 12 December 2022 & 14 Feb 2023: CA431/2022 [2022] NZCA 15]

ERRORS OF LAW

Justice Brown and Judge Collins err in disregarding the legal principals of Reed v Almond which they cite.

Interpretation of a decision addressing such factors of consideration is referenced in the appellants case: CA431/2022 [2022] NZCA 15

[81] in this case, had that question been asked it would have been clear that the proposed civil restraint order was of a kind that could and should be considered pursuant to the statutory civil restraint regime. It should not have been made without reference to that regime. The statutory criteria should have been applied. If those criteria were satisfied, any resulting order should have been time-limited as required by the legislation.

[82] It follows that the 2021 leave requirement should be set aside.

[85] Our conclusion that the 2021 leave requirement should not have been imposed in the exercise of the High Court’s inherent jurisdiction, without reference to the statutory civil restraint regime, leaves open the possibility of an application under the statutory regime by a party to proceedings or by the Attorney-General. It also leaves open the possibility of the High Court considering whether such an order should be made under the statutory civil restraint regime on its own initiative. We expressly refrain from expressing any view on the appropriateness of such an order being made. That was not the issue before us on these appeals.

[95] The principles that apply to an application for an extension of time to appeal under r 29A are well-established. The ultimate question when considering the exercise of the discretion is what the interests of justice require.

[112] Our conclusion differs from the conclusion we reached in relation to an extension of time to appeal from the 2021 leave requirement for two reasons.

First, the appeal from that order had clear merit.

Second, that appeal raised issues of wider public importance.

The Court Of Appeal has to acknowledge without ill will or favour: “The ultimate question when considering the exercise of the discretion is what the interests of justice require. “the conclusion we reached in relation to an extension of time to appeal from the 2021 leave requirement for two reasons.

First, the appeal from that order had clear merit.

Second, that appeal raised issues of wider public importance.”

Concerns of a decision in err [Justice Harland] acknowledging and ignoring a breach of natural justice and the compounding damage this abuse and apparent bias has cause is: “ a case with clear merit raising issues of wider public importance.”

Furthermore- when evidence of a conflict of interest, such as Antony Mohan being in business with the au pair agency “dream au pairs” that the other party in proceedings employs to care for the children, who he has custody of due to Judge Mahons decision THIS IS AN INEXCUSABLE OVERSIGHT.

The Court Of Appeal has been provided with sufficient evidence to warrant a miscarriage of justice and conflict of interest in line with Saxmere and Wool distablishment co and has deliberately chosen to dismiss this appeal to conceal the facts of the matter.

?CONCLUSION AND DAMAGES

The supreme court must be seen to uphold a consistent approach to justice for the publics confidence in the judiciary.

The supreme MUST not indulge in dismissing fundamental flaws and misbehaviour of judges as “matters of fact of not public importance”. Which is wholly delusional and deceptive.

The appellant seeks the supreme court overturn the Court of appeals dismissal as an error of judgement, inconsistent with the factors presented to the court and quash Justice Harland’s decision.

A breach of justice against one party and not another is the very definition of bias and should be identified as such.

?The appellant seeks the Judicial Review against Judge Mahon be heard in open court along with a recusal hearing based on the evidence and appropriate redress for his misbehaviour- not dissimilar to justice Palmer addressing Ida Malossi for an unlawful warrant in the Hager V AG and NZ police case.

CIV-2014-485-11344

[2015] NZHC 3268

Reasonable damages / disbursements for the prejudicial bias and the harm that has caused me, my children and our family are reasonable and justified- not open to the judiciaries opinion of what is or is not “appropriate”

Casey J did not regard "the absence of a remedies provision in the [NZBORA] as an impediment to the Court's ability to 'develop the possibilities of judicial remedy' as envisaged in art [2]3(b)".20 Accordingly, the Court of Appeal held that effective remedies must be available for a breach of the rights contained in the NZBORA. The NZBORA is binding on the courts21 "and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed" .In many instances: 23 [t]here would … be problems in adapting traditional common law remedies such as negligence, trespass etc, to encompass all the rights and freedoms in the [NZBORA] in order to give appropriate redress for their infringement. Clearly legislation of this kind, with its emphasis on human rights in relation to state activity, is something new in our legal pantheon.”- Ibid, 691 Casey J.

?In the New Zealand High Court in Manga v Attorney-General Hammond J engaged in a significant discussion of the differences between public and private law remedies. He observed that: “Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not "just" private: they have overarching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner-takes-all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction …” - Manga v Attorney-General [2000] 2 NZLR 65, 81-82 (HC) Hammond J.

Note: This appeal is unopposed with no involvement from the second respondent and the first respondent abiding by the decision of the court filed 24 May 2023.