THE WORST DECISION OF THE SUPREME COURT OF NEW ZEALAND ISSUED [2023] SC100: Glazebrook, O’Regan and Kós JJ

?On 16 June 2023 the appellant filed a 10 page submission substantiating the legal merits of her appeal and the reasoning why the SC MUST grant the appeal and direct leave be given for the appeal of the original decision of Justice Fitzgerald in accordance with Katz, Wylie and Palmer JJ, decision of The Court of appeal on 12 October 2022 NZCA477 ?and Langs’ decision of Auckland High Court on 13 Dec 2022.

?On 9 August 2023 the Supreme court, Glazebrook, O’Regan and Kós JJ issued a decision [2023] NZSC 100 dismissing the appeal.

?The appellant, Ms Dunstan sent an email to the registry stating:

“it appears the supreme court has ignored a mandatory consideration of previous findings of the COA regarding the same appellant and the same errors of the district court- which brought about this appeal- find attached:

I attach an authority from a previous appeal [again, myself as the appellant] on 12 Oct 2022 which states in para?[19] Of note, the Judge did not rely on the abuse of process ground for dismissing the charging document. It also appears that before making his decision the Judge may not have directed Ms Dunstan to file formal statements, and the exhibits referred to in those statements, that form the evidence she proposes to call at trial (or such part of that evidence that she considers is sufficient to justify a trial).29 If this did not occur, it was a fundamental procedural error."

It is still unknown as to whether Kirsty rope [manukau registrar] ever gave the complete documents to judge Johns to elicit a dismissal of the charging documents, without awarding my right to file additional information deemed to be a breach of my rights.

The courts inconsistency regarding decisions [especially with the same parties] is deeply concerning and continues to undermine the public confidence in the judiciary.

Both decisions can not be correct/ lawful.”

?The decision is arguably one of the most brief the appellant has received and is summed up in simply two paragraphs:

Application for leave to appeal

[3] Ms Dunstan advances 14 grounds. As Mr Jones submits for the respondent, they are difficult to understand and summarise. Several take issue with factual and procedural findings. Others traverse “delays due to distress and exhaustive measures to protect my children in all family court proceedings”. Others assert intimidation and harassment, and misconduct, by various courts.

Our assessment

[4] None of the criteria for appeal provided in s 74(2) of the Senior Courts Act 2016 are made out here. The proposed appeal turns on its particular facts. No question of general or public importance arises.4 Nor does anything raised by Ms Dunstan give rise to the appearance of a miscarriage of justice.

?As the Supreme court has failed to recall their decision on their own initiative, Ms Dunstan now files a formal recall on the following grounds:

GROUNDS FOR RECALL:

The decision issued is in error of law mischievously disregarding 14 grounds submitted for the appeal as “As Mr Jones submits for the respondent, they are difficult to understand and summarise.”

?The grounds of appeal were clearly put before the court and again state most obviously as seen in 1.2 of the appellants submissions dated 16 June 2023:

Judge Johns decision is noted in para 30 of Justice Fitzgeralds decision dated 26 February 2021:

[30] On 16 January 2020, Judge Johns returned the papers to the Registry together with her decision. Her decision recorded: Insufficient grounds made out in affidavit in support of charging document – charge dismissed (also complete lack of medical evidence).

[74] “Whether other documents were rightly or wrongly refused to be accepted for filing is not relevant to Judge Johns’ decision. Further, s 25 of the Act simply sets out the time periods within which charging documents must be filed. This statutory requirement does not provide Ms Dunstan with a “right” to file charging documents in a private prosecution.”

?It is unreasonable to expect the public to have confidence in the judicial system disregarding breaches of natural justice in 2023 when, in the decision issued from the same court 12 Oct 2022 the Court Of Appeal could clearly state: para [40] NZCA25: “it appears that the Judge may have omitted to direct Ms Dunstan to file formal statements and exhibits before dismissing her charging documents on the basis of evidential insufficiency. If so, Ms Dunstan has arguably been deprived of the opportunity to put her best evidence forward. This is a potential breach of natural justice, as well as the specific requirements of the Criminal Procedure Act.”

?The appellant provided the supreme court with this precedent case of her own in para 3.5 of her submissions dated 16 June 2023, stating:

“Relevant to this decision is the Court of Appeal decision of Justice Katz on 12 October 2022: CA114/2022 [2022] NZCA 477, para [38-40] addressing the very same breach of Ms Dunstan right to justice, and “propensity” of the judges to discriminate against Lay litigants:

[38] As is often the case with self-represented litigants, Ms Dunstan’s statement of claim is poorly pleaded. However, this would not normally justify striking out a proceeding under r 5.35A(3)(a) of the High Court Rules as “plainly an abuse of the process of the court”. Incompetence or lack of legal skill in itself will seldom (if ever) meet the high threshold of being: 44 Moevao v Department of Labour, above n 21, at 482 per Richardson J. ... conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law.

[39] Rather, there are other ways of addressing such issues, including a subsequent application to dismiss or strike out a deficient pleading, once it has been accepted for filing.

[40] Further, although Ms Dunstan’s statement of claim is poorly pleaded and could benefit from being redrafted, it does appear to identify (in broad terms) some grounds of judicial review. First, she alleges a breach of natural justice by Judge Glubb. Although this is not particularised, as we have noted above it appears that the Judge may have omitted to direct Ms Dunstan to file formal statements and exhibits before dismissing her charging documents on the basis of evidential insufficiency. If so, Ms Dunstan has arguably been deprived of the opportunity to put her best evidence forward. This is a potential breach of natural justice, as well as the specific requirements of the Criminal Procedure Act.”

The delays in the appeal were substantiated in para 4.11 of the appellants submissions to the supreme court dated 16 June 2023:

“Ms dunstan has extensively explained her delays due to distress and exhaustive measures to protect her children in all family court proceedings. She further submitted to the court her two x arrests and concurrent criminal matters she was defending. In addition to the emotional and psychological abuse rendering her efforts of justice hopeless until 12 October 2022.”

As per justice Courtneys finding in granting Mrs Ps appeal out of time CA301/2021 acknowledging the trauma and distress of family court proceedings to sufficiently explain the delay- Ms Dunstan has subsequently dealt with two arrests and long standing court proceedings to seek relief, should Justice Collins and Brown disregard this extreme abuse, that sets an unrealistically high [if not unobtainable] threshold for any litigant to meet for justice. As seen in the binding precedent: SN v MN?CA191/2016 [2017] NZCA 289

[28] The inquiry must be into whether Mr N’s conduct amounted to physical abuse, not into whether Mrs N had provoked him. The Judge was wrong to give weight to his finding that Mrs N “must take a degree of responsibility for the incident because of the confrontational nature of her behaviour”. The cause of or motivation for abusive behaviour is irrelevant. The victims of domestic violence are not responsible for it.

[37] The net result of the Family Court decision was to set an unacceptably high threshold for behaviour which might qualify as physical or psychological abuse. The Act was intended to proscribe and condemn conduct of this nature, not to excuse or minimise it. We are satisfied that Mr N’s conduct towards his wife over at least a year from April 2013 constituted prolonged domestic violence.

The appellant reiterates, this decision of the Supreme court is fundamentally flawed as it undermines the finding of the Court Of Appeal against the same appellant on the exact same legal basis that preventing a right to provide additional information for private prosecution “breached natural justice.”

The submissions dated 16 June 2023 before the supreme court judges clearly laid out in para 4.14 “It is in err to allege these proceedings of judges concealing Judicial misconduct ignoring breaches of court orders and medical neglect are of no public importance: “[ 11] DFT’s proposed appeal does not raise any matters of public interest. The proposed appeal relates only to her perceived interests. The appeal is clearly an attempt by DFT to further her grievances against the second and third respondents.””

It is in err to falsely state: “[12] This is an unusual case in which we can confidently say that DFT’s substantive appeal is devoid of merit. The grounds she has advanced do not differ in any material respect from her arguments in the High Court. DFT has provided no basis for us to conclude that there is any ground upon which the High Court judgment might be properly challenged.

?The appellant further substantiates the application for recall under Senior Court Act 2016 s78: ?Appeals to the Supreme Court proceed by way of rehearing.

As no appeal was granted, no rehearing took place and as such, the appellants rights to justice under NZBORA 1990, s27 (3) ?have been breached.

?The supreme court had a judicial obligation to remit the proceedings back to the Manukau District court to award the appellant her right to file supporting documentation for the court to make an informed decision regarding the validity of the private prosecution case filed in 2019, under SCA 2016, s 80 Power to remit proceeding

“The Supreme Court may remit a proceeding that began in any New Zealand court to a New Zealand court that has jurisdiction to deal with it.”

?Prior to recent dishevelled, unsound decisions of the courts of New Zealand, appearing not to be able to discern whether they are Author from Martha [a trending issue for the current social times] Previously it was speculated, in a paper “WHAT WAS THAT THING YOU SAID? THE NZ SUPREME COURT'S VEXING VECTOR GAS DECISION” by JESSICA PALMER AND ANDREW GEDDIS the “worst decisions from the court of all times in New Zealand was Vector V Gas:

?The reasoning for this decision of Vector V Gas amounting to the “worst” was not because the decisions of 5 Supreme court judges differed- all 5 judges unanimously agreed with the decision- the confusion stemmed from the 5 vastly different reasons:

“In the end, the Supreme Court had no difficulty resolving the immediate point of contention. It ruled unanimously that the proper understanding of the parties' intentions when making the interim agreement was that the price was exclusive of transmission costs, meaning that BoPE was required to pay those in addition to $6.50 per gigajoule. However, while the Court was unified as to the parties' respective legal rights and obligations, the reason for its decision was less clear. Five separate judgments were issued, with all five Judges taking different routes”

?The authors of this piece, Palmer and Geddis ?state: “In a nutshell, our criticism of the Court is directed at the unnecessary confusion resulting from its failure to provide a clear majority position on the deeper issues relating to contractual interpretation in a situation where it was not strictly necessary to address those issues in order to render a judgment in the case”… “Rather, our claim is that the five members of the Court ought to have done a better job of looking for common ground as to why the contract ought to be interpreted in NGC's favour, for the benefit of the commercial community and its legal advisors and for the ongoing clarity and coherency of contract law.”

?The piece concludes: “In failing to provide some sort of clear answer, the Supreme Court has left the law in a more unsettled and uncertain state in circumstances in which it did not need to do so. Consequently, we charge that it failed in its role as the highest court for New Zealand. It could have done a better job by its individual members trying harder to establish some measure of common ground as to if and when pre-contractual negotiations will be admissible; or if such common ground really could not be found. The NZ Supreme Court's Vector Gas decision 305 consciously leaving the issue for a future case where that issue is central to the dispute at hand. To instead provide five separate judgments each containing the individual judge's personal view of what the law ought to be may have been intellectually satisfYing for the authors of each judgment, but it represents the worst of all possible outcomes for those trying to detcrmine what the Court as an institution is saying. As Professor Henaghan notes: Concurring judgments work best if all the judges are singing from the same song sheet. Difficulties arise when the result is unanimous, but judges (as was the case in Vector Gas) give quite divergent reasons for that result. This leaves the law in an unclear state, which is unhelpful for lower courts, legal practitioners and the community.88 And given that we expect a nation's highest court to act in a way that is helpful to the society over which it acts as legal guardian, Vector Gas is, with respect, the worst decision that the New Zealand Supreme Court has handed down.”

This matter before the supreme court now is significantly worse than the errors of judgement in Vector V Gas as the judiciary appears starkly divided between the publics rights, natural justice and the application and mandatory requirements to uphold these rights when addressing the Criminal Procedures Act 2011

The Supreme Court Act 2003 (NZ), s 16(1), imposes a duty on the Court to give reasons for any refusal to give leave to appeal to it.

This is taken to be actual, substantiated and sound reasons relevant to the proceedings. Not “reasons at will, without rhyme nor [actual] reason.” Which appear to be issued as “orthodox” by the courts with little effort or relevance to the actual matters at hand before the court.

The appellants submissions on 16 June 2023 including binding precedent decisions the Supreme court judges were bound to follow for the publics confidence in the judiciary issuing consistent, and legally based decisions on identical findings: in para

4.17 and 4.18 of her submissions stating:

?“In addition to the mandatory requirements for child safety as stipulated in COCA 2004, there are binding legal principals including SN v MN: CA191/2016 [2017] NZCA 289

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, Wylie 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]”

?In the words of: JESSICA PALMER AND ANDREW GEDDIS in their paper: “WHAT WAS THAT THING YOU SAID? THE NZ SUPREME COURT'S VEXING VECTOR GAS DECISION”

https://ourarchive.otago.ac.nz/bitstream/handle/10523/8701/What%20Was%20That%20Thing%20You%20Said.pdf?sequence=1&isAllowed=y

“So if the parties to the case happened to have the misfortune of drawing a Justice Tatting to sit on it,19 bis declared inability to provide them with an answer to their dispute would produce a visibly baffled outcry that the court had 'failed to do its f'@%ingjob!'”

Footnote 19: Tatting J was, of course, the member of the bench who could not decide what to decide in Lon Fuller's fictional 'The Case of the Speluncean Explorers', ending his torturous judgment with the statement: 'Since I have been wholly unable to resolve the doubts that beset me about the law of this case, I am with regret announcing a step that is, I believe, unprecedented in the history of this tribunaL I declare my withdrawal from the decision of this case.' See Lon L. Fuller, 'The Case of the Speluncean Explorers' (1949) 62 Harvard Law Review 616.

Had the presiding judges: Glazebrook, O’Regan and Kós JJ,?been unable to actually stipulate their grounds for these decisions [beyond empty and unfounded clichés of “no public importance” or “no miscarriage of justice under s74 SCA 2016” they should have done the honourable thing and recused themselves from the matter- as per Justice Tatting.

The conduct of the supreme court judges is on par with that of Justice Goddard as noted in: Howse v. R (New Zealand) [2005] UKPC 31 (19 July 2005)

https://www.kiwisfirst.com/judge-file-index/high-court-justice-lowell-goddard/

[54] “Particularly in view of some concerns expressed by the majority of the Board, we note that this test, which refers to “a serious departure from the essential requirements of the law” or requires that there should have been a “radical or fundamental error”, embodies a high threshold for holding that a trial is unfair.?There is therefore no risk that, by applying it, an appeal court will stultify the proviso.?The test is indeed entirely consistent with the high threshold which must be crossed before the proviso itself can be invoked: per Tipping J giving the judgment of the Court of Appeal, at para 56.”

[69] It is impossible to imagine a clearer example of a trial that has gone off the rails by the admission of evidence which, the law provides, should not be admitted precisely because it is dangerous for a jury to rely on it.?The rules of evidence were designed, precisely, to prevent a trial being conducted on that basis.?Therefore, even if every other aspect of the trial had been perfection itself, in this core respect it would not have been conducted in the way that the law of New Zealand requires.?In fact, however, as the Court of Appeal showed only too clearly, there were many other aspects of the trial which were far from satisfactory.?We forbear to dwell on them.?Even assuming – as we do for the sake of the argument – that none of these other factors, either singly or in combination, would have been enough to make the trial unfair, they certainly exacerbated the position in what was already, when judged by the standards of the law of New Zealand, an unfair trial.?We could use more robust language to describe it but, with difficulty, restrain ourselves from doing so.

Members of the public, the appellant included are less challenged with the constraints of judicial conduct to be so astounded by the lawlessness of judges in New Zealand to be rendered “speechless”.

As Lord Hewart CJ's said:?"it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done"

"The legal establishment is deeply divided over when it is reasonable for the presumption of impartiality to yield to the suspicion that extra legal influences may have compromised the judge's impartial judgment”- Charles G Geyh "Why Judicial Disqualification Matters. Again" (2011) 30 The Review of Litigation 671 at 676.

?The decision of the Supreme court declining the appeal to correct a significant miscarriage of justice, in fact, a deliberate obstruction of justice and breach of fundamental rights of the appellant amounting to an abortion of justice MUST be remedied urgently for any shred of confidence the public could hold in the judiciary.

The appellant reminds the court of the mandatory legislation they are legally and judicially bound to adhere to, including: Mafgna Carta 1297:

“29: NO freeman shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we not pass upon him, nor condemn him,1?but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right.”

The appellant clarifies, “man” applies to all humans and is not to be “interpreted so narrowly” that the courts continue to discriminate against women and children.

The appellant demands [in accordance with compliance of human rights and natural justice]

a) The supreme court immediately recall the decision issued 9 August 2023, SC65

b) made directions to quash the decisions of COA with a declaration this decision was issued in err and a fundamental error of law in breach of natural justice, as already acknowledged by the Court Of Appeal in other proceedings NZCA477

c) Set aside any cost orders unlawfully imposed against the appellant and award reasonable disbursements for these breaches of human rights and unjust, unlawful delays.

d) The appellant seeks a declaration the Supreme court made a monumental error of judgement and will ensure all judges across the board of New Zealand are aware of human rights and natural justice and will uphold these in the publics genuine best interests.?

https://www.nzherald.co.nz/world/dame-lowell-goddard-did-not-resign-she-was-sacked-legal-sources-reveal/22SZK5Q34PDJUVMS3XFHABVOTY/