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