Judge doesn’t see enough support for finding of plainly abusive judicial review proceeding
In a proceeding arising from two cases concerning the appellant’s alleged mistreatment of animals, the New Zealand Court of Appeal granted her appeal, set aside the decision striking out her judicial review proceeding, and reinstated the proceeding.
In Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2026] NZCA 456, the appellant commenced a civil claim and was involved in another case, both stemming from the alleged animal mistreatment.
In late 2023, the District Court of New Zealand struck out the civil claim and granted summary judgment against the appellant in the other case. In both cases, the court issued decisions ordering her to pay costs.
On 22 December 2025, the appellant brought a judicial review proceeding in connection with all four District Court decisions.
On 5 February 2026, after allocating a mention for March, the registrar released the associated notice of proceeding for service on the respondents.
Regarding the venue, the appellant questioned why the mention would occur in Whangārei, not in Auckland. Thus, the registrar referred the proceeding to the duty judge under r 5.35A of the High Court Rules 2016.
The High Court struck out the appellant’s judicial review proceeding under r 5.35B of the High Court Rules. The court found the proceeding plainly abusive of the process because:
The appellant appealed against the High Court decision. She alleged that the court erroneously struck out her judicial review proceeding under r 5.35B because:
The Court of Appeal rejected the appellant’s first assertion that the judge could not rely on r 5.35B due to its revocation. The appeal court explained that r 5.35B still applied because of the filing of the proceeding before the rule’s revocation.
However, the appeal court agreed with the rest of the appellant’s arguments. First, the appeal court had real doubt about whether the judge could exercise r 5.35B powers, including the strike-out power, relating to this proceeding.
Given the interaction of rr 5.35A and 5.35B(1), the appeal court explained that a judge could exercise r 5.35B powers only upon the registrar’s referral of the proceeding to the judge under r 5.35A.
Considering r 5.35A(3)(b), the appeal court noted that r 5.35A anticipated referral before the registrar’s release of the notice of proceeding for service.
The appeal court added that this interpretation aligned with r 5.35C, which provided for the release of the notice of proceeding after referral if the judge did not consider the proceeding plainly abusive.
Second, the appeal court saw insufficient support in the available information for the judge’s finding that the proceeding met the plainly abusive standard for r 5.35B. The appeal court found no “clear beyond doubt” abuse in connection with the proceeding.
Although over two years had passed, the appeal court pointed out that the appellant had represented herself the entire time.
Third, the appeal court held that the judge’s decision failed to inform the appellant of her appeal right as required by r 5.35B(3).
Lastly, the appeal court saw no basis to order costs.
Here are some other recent decisions by the Court of Appeal of New Zealand.
On 2 September 2026, the appeal court denied an application for leave to appeal based on a lack of jurisdiction upon determining that the applicant should first seek leave from the High Court of New Zealand.
On 27 August 2026, the appeal court denied an employer leave to appeal against an Employment Court decision granting interim reinstatement until the Employment Relations Authority’s substantive investigation of a personal grievance raised by a summarily dismissed employee.
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