Gordon Wallace Cameron McNAB and Others v Associate Judge Matthews and Others

• Jurisdiction: New Zealand
• Judge: HEATH J
• Judgment Date: 26 March 2014
• Neutral Citation: [2014] NZHC 580
• Docket Number: CIV 2014-476-0011 CIV 2014-476-0012
• Court: High Court
• Date: 26 March 2014

Between

Gordon Wallace Cameron MCNAB & ORS

Applicants

and

Associate Judge Matthews & ORS

Respondents

Between

Gabrielle Paulette Mathiesen & Anor

Plaintiffs

and

Associate Judge Matthews

Appellant

Between

Stuart Graeme Spurr

Plaintiff

and

Associate Judge Matthews & Ors

Defendant

[2014] NZHC 580

CIV 2014-476-0011

CIV 2014-476-0011

CIV 2014-476-0012

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

Application that the High Court (HC) immediately complete the process of hearing two applications for habeas corpus — the HC had previously dismissed the applications on the papers — applications had been made on behalf of two plaintiffs who had been adjudged bankrupt and who claimed that they had been wrongly adjudged and that they were “detained” within the borders of New Zealand because they could not travel overseas without the permission of the Official Assignee — whether the HC was entitled to dismiss the applications on the papers instead of conducting a hearing — whether the plaintiffs had been “detained” because they were unable to travel outside New Zealand without permission — whether applying under the Habeas Corpus Act 2001 for a writ in a situation such as this was an abuse of process.

Counsel:

G W C McNab, in person, on behalf of all applicants

A R McRae for Respondents, in opposition

This judgment was delivered by me on 26 March 2014 at 2.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

JUDGMENT OF HEATH J

The applications

1 On 17 March 2014, Mr McNab purported to make an application to the Chief Justice and Chief High Court Judge for a direction that the High Court immediately complete the process of hearing two applications for habeas corpus, filed on 26 and 28 February 2014 respectively. Mr McNab contended that the two applications had been determined without a “hearing”.

2 The application of 26 February 2014 was made on behalf of Ms Mathiesen, a Norwegian citizen. She alleges that she has been “detained” as a result of her adjudication in bankruptcy. Ms Mathiesen was (wrongly, she submits) adjudged bankrupt by this Court on 11 June 2013. The order was made by Associate Judge Matthews, on the application of Ms Mathiesen's former husband. It is submitted that the order ought not to have been made because Ms Mathiesen does not have a New Zealand domicile and, in any event, a person cannot be adjudged bankrupt on the application of a spouse. Ms Mathiesen claims that she has been “detained” as a result of the order of adjudication because she is unable to travel overseas without the consent of the Official Assignee. That being so, she contends that she is “detained” within the borders of New Zealand.

3 The application of 28 February 2014 was brought by Mr Spurr. Save for his citizenship, he is in a similar position to Ms Mathiesen. Mr Spurr was adjudged bankrupt on 30 April 2013, also by Associate Judge Matthews. It is submitted that the order was wrongly made because of irregularities in the documents filed in support of the bankruptcy application. While Mr Spurr is a New Zealand citizen, the same complaint about “detention” is made; namely that he cannot travel overseas to attend to personal business as a result of the order of adjudication.

4 On 28 February 2014, Mander J dismissed each application on the papers, in identical terms: 1

• (a) On the application relating to Ms Mathiesen, Mander J said:

  [2] The application represents a challenge to the decision of this Court adjudicating Ms Mathiesen bankrupt on 11 June 2013, as such it represents an illegitimate collateral attack on that adjudication. An application for the issue of a writ of habeas corpus is not the appropriate procedure to consider the legitimacy of a bankruptcy adjudication. There are processes provided for in the Insolvency Act, including application for discharge or annulment, which are available to Ms Mathiesen if it is considered that the bankruptcy adjudication was determined on an erroneous basis.

• (b) On Mr Spurr's application, the Judge said:

  [2] The application represents a challenge to the decision of this Court adjudicating Mr Spurr bankrupt on 30 April 2013, as such it represents an illegitimate collateral attack on that adjudication. An application for the issue of a writ of habeas corpus is not the appropriate procedure to consider the legitimacy of a bankruptcy adjudication. There are processes provided for in the Insolvency Act, including application for discharge or annulment, which are available to Mr Spurr if it is considered that the bankruptcy adjudication was determined on an erroneous basis.

The writ of habeas corpus

5 Sections 7 and 9 of the Habeas Corpus Act 2001 (the Act) state: 2

• 7 Manner of application for writ

  • (1) An application for a writ of habeas corpus must be made to the High Court by originating application in the manner provided by the High Court Rules.

  • (2) Despite subsection (1), nothing in that subsection excludes the inherent jurisdiction of the High Court to hear and to make an order on an oral application at any time in circumstances of unusual urgency.

  • (3) Despite subsection (1), the provisions of any High Court Rule providing for directions by the Court before the hearing, or affecting the hearing, of an originating application or empowering the Court to convene a conference of the parties to an originating application do not apply to an application.

  • (4) No applicant may be disqualified for lack of capacity or standing.

  • (5) In a proceeding for a writ of habeas corpus—

    • (a) No party to the proceeding is entitled to general or special discovery of the documents of any other party to the proceeding or to an order for security for costs; and

    • (b) the High Court Rules concerning discovery and inspection of documents and security for costs do not apply.

  • (6) No fee is payable to the High Court for filing any document in respect of an application.

  • (7) Section 51E of the Judicature Act 1908 does not apply in respect of the form and manner of any application made under this Act.

• …

• 9 Urgency

  • (1) An application for a writ of habeas corpus must be given precedence over all other matters before the High Court unless a Judge of that Court considers that the circumstances require otherwise.

  • (2) Judges and employees of the Ministry for Courts must ensure that every application, including any interlocutory application, is disposed of as a matter of priority and urgency.

  • (3) The Registrar must allocate a date for the inter partes hearing of an application that is no later than 3 working days after the date on which the application is filed.

  • (Emphasis added)

6 The High Court must “hear” an application for the issue of a writ of habeas corpus. 3 A “hearing” is required to enable the Court to inquire into the legitimacy of an alleged detention. Further, no “applicant may be disqualified for lack of capacity or standing”. 4 A liberal approach to standing is required because a detained person not be able to file documents. In addition, urgency is to be accorded to such applications. 5 The need for a prompt inquiry into an alleged loss of liberty is self evident.

7 The need for a liberal approach to standing and the requirement of urgency illustrate the constitutional importance of the remedy. The writ has ancient origins and has evolved to ensure that the legality of a person's detention can be resolved promptly. The original name of the writ, habeas corpus ad subjiciendum, broadly translates as a requirement that the person who is detaining another bring him or her before the Court, so that it may inquire into the justification for the claimed

detention. As early as the thirteenth century, the name “habeas corpus” was coined for the application. 6

8 Contrary to a submission made by Mr McNab before me, one of the purposes of the Act was to abolish writs of habeas corpus other than the writ of habeas corpus ad subjiciendum”. 7 The sole basis for jurisdiction is that form of the writ. Nevertheless, it is clear that Parliament's decision to confirm the remedy in a statute was not intended to dilute its efficacy. 8

9 In an endeavour to ensure that every form of detention can be subjected to Court review through issue of the writ, the term “detention” is broadly defined, by s 3 of the Act:

Detention includes every form of restraint of liberty of the person.

10 An example of the breadth of the remedy can be found in the child abduction case of Jones v Skelton, in which the writ issued to require a person believed to have abducted the child to bring him before the Court. 9

Was a “hearing” required on the 26 and 28 February 2014 applications?

11 The importance of the writ has been seriously undermined in recent years by applications for orders in circumstances where the writ was never meant to run. Such applications have tended to waste valuable Court time (and, on occasion, to interfere with the rights of other litigants to have their cases heard promptly) because they are not of a type that require priority over other business of the Courts. Plainly, the remedy is unavailable if a person is free to go about his or her daily business in New Zealand and there is no person who can “release” that person from a form of incarceration.

12 The difficulty for a Judge is that once a purported application is made, s 9(1) and (3) of the Act 10 applies. A “hearing” must be held and it must be given

precedence over other Court business, unless a Judge considers that the circumstances require otherwise. While it is often relatively straightforward to see whether there is any merit in an application, if a Judge were to form the view that there was not, a “hearing” must still be held. 11

13 On occasion, because of the plainly inappropriate nature of the remedy sought (as disclosed in an applicant's own papers) Judges have dismissed applications on the papers. The...