Ponsonby Chambers v Police [2024] NZCA 524 (16 October 2024)

Last Updated: 21 October 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA605/2024 [2024] NZCA 524

	BETWEEN	PONSONBY CHAMBERS Appellant
	AND	NEW ZEALAND POLICE First Respondent MINISTER FOR POLICE Second Respondent POLICE COMMISSIONER Third Respondent ATTORNEY-GENERAL Fourth Respondent

Court:	Goddard and Cooke JJ
Counsel:	M Rolls for Appellant (by leave) No appearance for Respondent
Judgment: (On the papers)	16 October 2024 at 11.00 am

JUDGMENT OF THE COURT

1. The appeal is struck out under r 44A of the Court of Appeal (Civil) Rules 2005.
2. We direct the Registrar to send a copy of this judgment to the President of the New Zealand Law Society | Te Kāhui Ture o Aotearoa, to consider whether any steps should be taken in relation to the purported representation of Mr Clark before the High Court and this Court by Ms Rolls and Ponsonby Chambers Ltd.

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REASONS OF THE COURT

(Given by Goddard J)

The appeal

The appellant

• [1] The appellant in this appeal is identified as “Ponsonby Chambers”, and is described in the notice of appeal as “Representative for Appellant (Jessie Dylan Clark)”. Other documents refer to the appellant as Ponsonby Chambers “(on behalf of Jessie Clark)”.
• [2] The reference to Ponsonby Chambers appears to be a reference to Ponsonby Chambers Ltd, a company of which the sole shareholder and director is Ms Tanya Dunstan, also known as Ms Melanie Rolls (referred to below as Ms Rolls).

The High Court decision

• [3] The appeal is brought from a decision of Dunningham J delivered on 17 September 2024 in an application for habeas corpus filed by “Ponsonby Chambers” as applicant on behalf of Jessie Clark.^[1]
• [4] The application was struck out by the High Court under r 15.1 of the High Court Rules 2016 on the basis that neither Ponsonby Chambers Ltd nor Ms Rolls had established that they had standing or authority to bring the application. The Judge also held that the application disclosed no reasonably arguable case for the grant of a writ of habeas corpus.^[2] A warrant had been issued by the District Court on 12 September 2024 providing for the detention of Mr Clark in custody until Tuesday 1 October 2024, when he was next scheduled to appeal before that Court.

Previous attempt to appeal on behalf of Mr Clark

• [5] This is the second time that Ponsonby Chambers Ltd has sought to pursue an appeal before this Court on behalf of Mr Clark.
• [6] On 18 September 2024 Cooke J issued a minute confirming that the Registrar of this Court was right to reject for filing a notice of appeal that purported to be filed by “Ponsonby Chambers” as a representative for Mr Clark. That intended appeal related to a decision delivered by the High Court on 12 September 2024 dismissing an application for habeas corpus made by Mr Clark.^[3]
• [7] As Cooke J explained, this Court has no jurisdiction to consider an appeal from a High Court judgment that is brought by someone who was not a party to the High Court proceeding. Neither Ponsonby Chambers Ltd nor Ms Rolls had been appointed to represent Mr Clark, and any such appointment would not be appropriate, including because of the existing order against Ms Rolls under s 166 of the Senior Courts Act 2016. The notice of appeal was not, as required by the Court of Appeal (Civil) Rules 2005 (Rules), signed by the appellant personally or by that party’s lawyer. Cooke J noted that the intended proceeding was plainly an abuse of process given the order against Ms Rolls under s 166 of the Senior Courts Act.
• [8] On 25 September 2024 Cooke J dismissed an application to recall the minute of 18 September on the basis that Ponsonby Chambers was not a person entitled to file an application under the Rules, that no basis for recall arose, and that the application was a continuation of the abuse earlier identified.

Notice of intention to consider strike out

• [9] On 19 September 2024 Goddard J issued a minute giving notice to the appellant that this Court intended to consider making an order under r 44A of the Rules striking out the appeal as an abuse of process of the Court (the Minute). The Minute set a timetable for the appellant to file written submissions on that issue. Leave was granted to Ms Rolls to file those submissions on behalf of Ponsonby Chambers Ltd.
• [10] On 20 September 2024 an application was filed by Ms Rolls on behalf of “Ponsonby Chambers” seeking recall of the directions given in the Minute. The application for recall was declined by Goddard J on 20 September 2024.
• [11] Ms Rolls subsequently advised the Registrar that her memorandum dated 20 September 2024 seeking recall of the Minute should be accepted as her submissions on the r 44A issue.

Is the appeal an abuse of process that should be struck out?

• [12] Having read Ms Rolls’ submissions, we are satisfied that the appeal is an abuse of the process of the Court.
• [13] One fundamental problem with the appeal, as with the underlying proceeding, is that Ponsonby Chambers Ltd and Ms Rolls do not have standing to make an application for a writ of habeas corpus on behalf of Mr Clark. Any such application can and should be made by Mr Clark himself.
• [14] There are circumstances in which a person may seek a writ of habeas corpus on behalf of another person who is unable to do so.^[4] But nothing in the evidence before us suggests that that is the position here. Mr Clark recently filed an application on his own behalf in the High Court: that was the application dismissed on 12 September 2024 that “Ponsonby Chambers” then sought to appeal to this Court. He also appears to have filed an application for leave to appeal direct to the Supreme Court from an earlier High Court decision, which was dismissed on 28 August 2024, and an application for recall of that judgment which was dismissed on 2 October 2024.^[5]
• [15] Ms Rolls refers in her submissions to difficulties that Mr Clark has experienced with communications from the prison where he is in custody. However those difficulties did not preclude his earlier application to the High Court. If Mr Clark has been able to communicate with Ms Rolls (directly or indirectly through his partner) about his most recent habeas corpus application, he could equally well communicate (directly or indirectly) with a lawyer to act on his behalf.
• [16] Another fundamental problem with the appeal is that neither Ponsonby Chambers Ltd nor Ms Rolls is a qualified lawyer. Neither can, as a matter of law, represent another person before this Court without the leave of the Court.^[6] Absent such leave, they cannot lawfully file an appeal on behalf of Mr Clark as his representative, as they have purported to do in the present case.
• [17] Ms Rolls’ memorandum dated 20 September 2024 requests that “the Court grant Ponsonby Chambers as ‘lay litigants’ [leave] to represent the detained individual as a matter of desperation with all legal representation obstructed in breach of Jessie Clarks [sic] rights due to ‘systemic abuse’ in corrections as highlighted in other matters”.
• [18] It would not be appropriate for leave to be granted to Ms Rolls or her company to represent Mr Clark in this appeal. Ms Rolls did not identify any authority to support the grant of leave to a non-lawyer to represent an individual in these circumstances. No special circumstances have been identified that might justify such an unusual direction. Even if such a direction were open, it would not be appropriate to appoint Ms Rolls or her company to act as some form of lay advocate for Mr Clark in circumstances where Ms Rolls is the subject of an order made under s 166 of the Senior Courts Act restricting her from commencing or continuing civil proceedings, on the grounds that she has commenced two or more proceedings that were totally without merit. Ms Rolls has appealed from that order. But unless and until that appeal succeeds, the order remains in force and points strongly against authorising Ms Rolls to conduct litigation on behalf of others.
• [19] Another difficulty with the way in which the appeal is framed stems from the inability of the company Ponsonby Chambers Ltd to appear in person before the courts. The need for the company to be represented by a lawyer cannot be circumvented by failing to use the company’s correct legal name in the court documents.^[7] In particular, Ms Rolls cannot represent her company without leave. Leave may be granted to a non-lawyer to represent a company in certain circumstances.^[8] But no special circumstances of a relevant kind have been identified in this case. And for the reasons set out above, it would not be appropriate to grant leave to Ms Rolls to represent the company in these proceedings.
• [20] We add that Ms Rolls cannot bring proceedings in the name of a company she controls, and which appears to be her alter ego, as a device to circumvent the s 166 order. The Supreme Court recently made the same observation in a judgment which rejected for filing an application brought by “Ponsonby Chambers” on behalf of Ms Rolls seeking leave to appeal directly to the Supreme Court from a decision of the High Court.^[9] Bringing an application on that basis was, the Supreme Court said, a “plain abuse of process”.^[10]
• [21] Thus the company cannot represent Mr Clark on whose behalf the appeal purports to be pursued, and Ms Rolls cannot represent the company named as the appellant. The attempt to structure the proceeding and appeal in this convoluted manner, to enable an appeal to be pursued on behalf of Mr Clark by Ms Rolls, is ineffective and inappropriate.
• [22] This appeal also appears to be a device designed to circumvent the difficulty identified by Cooke J that Ponsonby Chambers Ltd cannot appeal from a High Court decision dismissing an application for habeas corpus made by Mr Clark himself. In this respect also the underlying proceeding and this appeal are an abuse of process.
• [23] Nor is there anything in the material filed by Ms Rolls that suggests there is a reasonably arguable basis for the grant of a writ of habeas corpus in the present case. The appeal does not appear to have any proper foundation in law or fact.
• [24] Standing back, this appeal is procedurally and substantively misconceived. Ms Rolls is not qualified to represent others before the courts, and that difficulty cannot be overcome by naming “Ponsonby Chambers” as a party. The named respondents should not be required to engage with the proceedings. It would be contrary to the interests of justice to permit such proceedings to occupy the limited time and resources of the courts. The appeal is plainly an abuse of the process of the Court: the interests of justice require that it be struck out.

Result

• [25] The appeal is struck out under r 44A of the Court of Appeal (Civil) Rules 2005.
• [26] We direct the Registrar to send a copy of this judgment to the President of the New Zealand Law Society | Te Kāhui Ture o Aotearoa, to consider whether any steps should be taken in relation to the purported representation of Mr Clark before the High Court and this Court by Ms Rolls and Ponsonby Chambers Ltd.

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^[1] Ponsonby Chambers v Police [2024] NZHC 2680.

^[2] At [8] and [13].

^[3] Clark v Police [2024] NZHC 2644.

^[4] See Matthew Downs (ed) Adams on Criminal Law — Rights and Powers (online ed, Thomson Reuters) at [HCSch.04]; and Re Winara Parata (1880) 1 OB & F 31 (SC).

^[5] See Clark v Police [2024] NZSC 106; and Clark v Police [2024] NZSC 129.

^[6] Lawyers and Conveyancers Act 2006, ss 24(1)(b) and 27, and the definition of “reserved areas of work” in s 6 (in particular, para (c) of that definition). It is an offence for a person who is not a qualified lawyer, and does not have the leave of the Court, to represent any other person involved in proceedings before any New Zealand court.

^[7] An omission that appears inconsistent with the requirements of s 25 of the Companies Act 1993.

^[8] Re G J Mannix Ltd [1984] 1 NZLR 309 (CA); and Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [34].

^[9] Ponsonby Chambers (on behalf of Tanya Felicity Dunstan) v Attorney-General [2024] NZSC 136 at [3].

^[10] At [3].