Habeas Corpus lockdown appeal by A and B dismissed

A and B failed in the High Court of their claim of habeas corpus illegal detention under Covid-19 lockdowns. The Court of Appeal has dismissed an appeal and has ruled that interim name suppression is not appropriate – but have extended suppression until 4 pm Friday to allow for a possible Supreme Court appeal.

The respondents were named as JACINDA ARDERN, ASHLEY BLOOMFIELD AND SARAH STUARTBLACK but the Court advised:

A and B have referred to the respondents in person. In doing so, A has engaged in political comments of a personalised nature, particularly against the Prime Minister. Respondents in applications for habeas corpus should be referred to by the office they hold or by naming the Attorney-General as the respondent. If the matter proceeds further, that correction should be made by A and B.

So using the Court to engage in political attacks is not appropriate.

A and B also tried to represent others but lay litigants can’t do that.

A and B chose not to be represented by a lawyer. A purported however, to represent himself and unnamed members of his family. B purported to bring his application on behalf of his fellow “bubble” members. A’s family and B’s “bubble” members are not parties to their respective proceedings and A and B cannot represent them. We will therefore treat each appellant’s proceeding as being limited to the appellant alone.

They claimed to be detained but admitted some freedom of movement.

For example, they were free to exercise, go to a supermarket, talk to anyone and access the internet.

Subject to A’s [redacted], he and B can continue to communicate with whomsoever they wish, and they may continue to have unrestricted access to the internet. They have taken advantage of many of these opportunities.

The restrictions on movement imposed by the COVD-19 Alert Level 3 order do not involve restrictions upon the liberty of A and B as Parliament intended liberty to be understood in the Act. A and B have not therefore been detained for the purposes of the Act.

There are legal issues but they haven’t been appropriately raised with this action.

As has been noted by the Regulations Review Committee and two of New Zealand’s leading public law academics,29 there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

Those questions, cannot, however, be appropriately addressed in the context of an application for habeas corpus. Our reasons for this conclusion are:

(a) The questions raise complex legal issues that are not amenable to the truncated procedures prescribed in the Act.

(b) If unsuccessful, the Crown has no right concerning the lawfulness of the notices issued under s 70 of
the Health Act were answered against the Crown.

(c) An expedited application for judicial review seeking declarations in the High Court is the only appropriate procedure in the circumstances of this case.

(d) Applications for habeas corpus should not be entertained in circumstances where they are really being used as a substitute for judicial review.

Even if A and B are detained we would, if it were necessary to do so, decline to issue a writ of habeas corpus without requiring the Crown to justify the legality of their detention because habeas corpus is not the appropriate procedure for considering their allegations.

So it was a misconceived attempt to claim illegal detention.

A and B also failed again on name suppression:

A and B have also appealed the decision of Peters J declining their applications for name suppression. Orders were made in the High Court to continue interim name suppression for 20 working days following the High Court’s judgment, subject to further order of the Court. Before us, A and B sought interim name suppression for six months. This is because they say they are concerned about their safety, and in the case of A, the safety of his family. They claim they are likely to be subject to physical danger from other New Zealanders, who may take issue with their challenge to the lawfulness of the Government’s measures to combat the risks of the COVID-19 virus.

On that basis anyone initiating court proceedings could claim possible future attacks. But that’s obvious nonsense.

The starting point is the application of the principle of open justice, which normally requires parties in civil proceedings to be identified.

There are, however, circumstances in which the principle of open justice should yield to a party’s concerns in order to ensure justice is achieved in individual cases.

The present case, is however, far removed from the types of circumstance which justify departure from the principle of open justice.

There is no factual basis upon which we can conclude that A, his family, or B will suffer physical harm if the public knows they are the individuals who have initiated these proceedings. It is possible they may receive some unwelcome comments and that they may be upset by what others have to say. Those are, however, not proper grounds for granting them name suppression, even on an interim basis.

In effect they seem to want to protect themselves from ridicule for a fairly ridiculous attempt to attack the Prime Minister through the courts, and to not be restricted from doing whatever they like under lockdown.

The appeals are dismissed.

Order continuing interim name suppression until 4.00 pm on 8 May 2020 or such other date as may be ordered by the Supreme Court.

My guess is they will try to take both the habeas corpus claim and name suppression as far as they can. Maybe they will argue at the Supreme Court that more wasting of court time risks even more unwelcome comments.

No order for costs – not sure why as that is one of the few ways of deterring time wasting lay litigants.

Judgment: A v Ardern

Leave a comment


  1. Alan Wilkinson

     /  5th May 2020

    A rational litigator would file an application for urgent judicial review at this point.

    • A rational litigator would have learnt from the High Court judgment and tried an urgent judicial review instead of appealing, but I think their claims are too vague anyway. And their legal abilities look to be far from adequate.

      • Alan Wilkinson

         /  5th May 2020

        I don’t think the appeal was wasted. This decision clarifies the situation and reasoning well.

        • The reasoning that being under lockdown restrictions is not detention? I thought that was already fairly obvious, and made obvious in the High Court.

          Appeals are supposed to be on points of law but I see no argument on law, just an attempt to re-litigate a lame case.

          • Alan Wilkinson

             /  5th May 2020

            No, the reasoning as to why the substantive issue of the validity of the lockdown shouldn’t be decided in a habeas corpus case.

            • I suspect that lawyers would have already known this. There have been no lawyers involved in representing claims of habeas corpus.

            • Alan Wilkinson

               /  5th May 2020

              Ever, or just this case?

            • Habeas corpus in relation to Covid-19 lockdowns.

          • Duker

             /  5th May 2020

            Appeals can vary , sometimes they can be a rehearing of the claim, sometimes its points of law only. Lawyers can probably tell the reasons why

    • Duker

       /  5th May 2020

      That would be just as doomed ….thats why no one is doing so …if they are rational. The judgement from yesterday covered why in passing. The judicial review is only of the following of the rules , not the underlying rules enacted by legislation themselves .
      It might take prodigious amounts of legal research by any competent lawyer to have a decent case based on precedent – of which there is hardly any.
      All though Geddes and Geiringer have been flashing a neon sign ‘Open for Business’ , so far no takers
      In the end a litigant could end up like Peters did recently on his Tort of Privacy case …Win on the law but lose on the facts …and get nothing.
      Some could say that the Media arent an essential business so shouldnt be exempt from quarantine if you wanted a judicial review of the ‘making of the rule’s…that would go down like a cup of cold sick in some places.

      • “All though Geddes and Geiringer have been flashing a neon sign ‘Open for Business’”

        I don’t think either are open for business, they are both academics, not practicing lawyers.

        One problem with starting a new proceeding is that by the time it is heard and ruled on we may be down another level so even less restricted, so any judgment may end up being academic.

        • Duker

           /  5th May 2020

          “She maintains a New Zealand practicing certificate and occasionally appears before the New Zealand courts on human rights matters.”

          This is what looking into a persons background can tell you. I would have thought most academic lawyers ‘keep their hand in real legal work’

  2. Duker

     /  5th May 2020

    The US style of legal action against officials uses their actual names , whether they are Secretary of Defence or Warden of a Jail.


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