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

JurisdictionNew Zealand
CourtHigh Court
JudgeHEATH J
Judgment Date26 March 2014
Neutral Citation[2014] NZHC 580
Date26 March 2014
Docket NumberCIV 2014-476-0011 CIV 2014-476-0012

[2014] NZHC 580

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-0011

CIV 2014-476-0011

CIV 2014-476-0012

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
Counsel:

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

A R McRae for Respondents, in opposition

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.

The issue was: whether the HC was entitled to dismiss the applications on the papers instead of conducting a hearing; whether M and S had been “detained” because they were unable to travel outside New Zealand without permission; and whether applying for a writ of habeas corpus in a situation such as this was an abuse of process.

Held: The High Court had to “hear” an application for the issue of a writ of habeas corpus as shown by the wording in s7(2) (application for writ — High Court to hear and to make an order on an oral application) and s7(3) (directions by the Court before the hearing, or affecting the hearing) Habeas Corpus Act 2001 (HCA). A “hearing” was required to enable the Court to inquire into the legitimacy of an alleged detention.

Urgency was to be accorded to such applications under s9 HCA (Urgency). The need for a liberal approach to standing (s7(4) HCA) and the requirement of urgency illustrated the constitutional importance of the remedy.

In an endeavour to ensure that every form of detention could be subjected to Court review through issue of the writ, the term “detention” was broadly defined, by s3 HCA to include “every form of restraint of liberty of the person”.

Once a purported application was made, s9(1) and (3) HCA applied and a “hearing” had to be held and it had to be given precedence over other Court business, unless a Judge considered that the circumstances required otherwise. However, notwithstanding this view as to precedence, a hearing still had to be held.

There was no specific judicial authority on the ability of the Court to dismiss a habeas corpus application on the papers. The terms of s9(3) HCA, read in conjunction with observations made by the Court of Appeal in Jones v Skelton, suggested that a “hearing” was required. The length of that hearing, and its priority were questions for a Judge to determine. In a case where the application was seemingly hopeless, a short hearing by telephone would suffice.

The dismissal of the habeas corpus applications on the papers was inappropriate and the order were set aside.

M and S challenged the underlying validity of the orders of adjudication and the alleged detention was premised on the inability to travel outside New Zealand without consent. An order made by a Court of unlimited jurisdiction (such as the HC) had to be treated as valid until such time as it is set aside by a Court of competent jurisdiction ( Isaacs v Robertson). Even if M and S had been adjudged bankrupt wrongfully, the orders subsisted until such time as they were set aside, or annulments are granted.

The Insolvency Act restrictions took precedence (as a matter of interpretation) over s18 New Zealand Bill of Rights Act 1990 (Freedom of movement). Fundamentally M and S were not “detained” as demonstrated by their ability of to attend this hearing without permission from anyone. They also had the ability to seek permission to go overseas. If good reasons could be advanced, there would be no reason why permission would not be. Any decision was reviewable by the HC.

The importance of the writ had been seriously undermined in recent years by applications for orders in circumstances where the writ was never meant to run. Such applications wasted valuable Court time because they were not of a type that require priority over other business of the Courts. It was an abuse of the HCA to apply for orders in circumstances such as these. In the future, applicants who brought hopeless proceedings of this type would face the risk that costs would be ordered against them.

Applications dismissed.

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. 2 The italicised words in s 9(1) were added by an amendment to the Act, with effect from 30 March 2013. See also, New Zealand Law Commission Habeas Corpus: Refining the Procedure (NZLC R 100, 2007) at paras 8–10. (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...

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