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

Another habeas corpus writ over lockdown dismissed

Alongside the dismissal of a habeas corpus writ over claimed illegal detention under the Covid-19 lockdown – see Failures with habeas corpus writ against Ardern et al over lockdown ‘detention’ – an associate of failed Applicant ‘A’ has similarly failed for much the same reasons, except that ‘B’ was not currently serving a home detention sentence.

The respondents have established that any detention to which B is subject to under the order is lawful.

B is not subject to detention within the meaning of the Habeas Corpus Act 2001. If I am wrong, and B is detained, the detention is lawful.

‘B’ he also applied for permanent name suppression on similar grounds.

B seeks an order for permanent suppression of the publication of his name and other identifying details. The gist of B’s submissions (oral and written) were that, although he brings this application for himself, the implications for the wider community mean it will attract publicity and attention. Some people in the community will favour the application and underlying thrust of the argument, being that the order was unlawful because it was unnecessary, and some will not. In all of this, B’s identity does not much matter, and he prefers not to be named.

B also advised me that he has been the subject of death and other threats since becoming associated with A and, although he has advised the police of these, he is concerned there may be a repeat.

I decline to grant B name suppression on the basis of the death threats of which he informed me. B was not on oath when he told me of these matters and nor is there any evidence of a link between the mere fact of publication of his name, in connection with any legal proceeding, and the making of any such threat. Even if such were established, it is for the police to investigate any threat to B, rather than for the Court to prohibit disclosure.

B’s other submissions, which were consistent with Mr Powell’s point that B’s application might be considered “public interest” litigation, are more persuasive. I accept B’s identity does not particularly matter to any media report of his application. What is important is that an application for habeas corpus has been made in respect of
an order affecting the entire population, and the grounds on which the application has been made.

However, neither Mr Powell nor B referred me to any authority or made any submissions addressing how suppression for these reasons could be reconciled with the authorities cited above. I may have been able to take this point further had they done so. Absent that, however, I decline to make the order for permanent name suppression sought.

Claims with no evidence and no supporting arguments.

B advised me he would wish to appeal any refusal of name suppression. At the end of the hearing, I made an order for interim suppression pending further order of the Court. I continue that order, again subject to further order of the Court, for 20 working days from the date of this judgment to enable B to pursue an appeal if he wishes.

That’s standard and the same as for ‘A’.

So why would two associates make two near identical applications to the court? Both seem to have been poorly argued.

And both applied for permanent name suppression without citing authorities or evidence.

While the legalities of lockdown requirements warrant being tested this dual attempt seems to have been a waste of court time, with more time to be spent on the two appeals on name suppression.

I think there is public interest in knowing who these lame litigants are.

Judgment: B v Ardern [2020] NZHC 814 (24 April 2020)

The associated judgment: A v Ardern [2020] NZHC 796 (23 April 2020)

Lundy appeal dismissed – “we are sure of Mr Lundy’s guilt”

Human Rights Tribunal diss and dismiss McCready’s ponytail case

The Human Rights Tribunal have given Graham McCready a bollocking and dismissed his case against John Key over ponytail pulling.

[1] These proceedings filed on 14 May 2015 arise out of events which occurred at a cafe in Parnell, Auckland involving the Prime Minister of New Zealand, the Rt Hon John Key (Mr Key) and a waitress, Ms Amanda Bailey then employed at the cafe. The allegation is that while at the cafe as a customer, Mr Key on several different occasions pulled Ms Bailey’s hair which was tied in a ponytail.

[2] The Chief District Court Judge on 13 May 2015 rejected papers filed by New Zealand Private Prosecution Service Limited (NZPPSL) in support of an intended private prosecution against Mr Key alleging male assaults female. The rejection of the charging document was based on a failure by NZPPSL to comply with an earlier direction given on 1 May 2015 that it file formal statements in support of the allegations.

[3] These present proceedings before the Human Rights Review Tribunal followed. It is alleged Mr Key breached s 62(2) of the Human Rights Act 1993. The statement of claim describes the plaintiff as the New Zealand Private Prosecution Service Limited but the document is signed by Mr McCready who has at all times been the spokesperson for NZPPSL. Neither Mr McCready nor NZPPSL claims to be the victim of the alleged sexual harassment nor do they claim to have brought the proceedings with the knowledge and consent of Ms Bailey. Indeed the statement of claim specifically acknowledges Ms Bailey has refused to cooperate in the bringing of the claim. The allegations in the statement of claim appear to have been gleaned from media reports.

[59] NZPPSL does not have the stature or credibility of an IDEA Services or of a CPAG. As with the attempted criminal prosecution, it has brought the proceedings for its own purposes, not to vindicate the rights of an otherwise voiceless or disempowered individual or group of individuals. Ms Bailey has given neither her consent nor her cooperation.

[62] The Tribunal’s processes cannot be allowed to be brought into disrepute. In the present case there is, for the reasons given, a distinct element of impropriety, sufficient for the proceedings to be stigmatised as vexatious, not brought in good faith and an abuse of process.

[63] In the result, quite apart from the fact there is no arguable case, these proceedings must be dismissed on the grounds they are vexatious, not brought in good faith and are an abuse of process.

CONCLUSION

[104] NZPPSL, assisted by Mr McCready as its representative, has brought proceedings before the Tribunal which are entirely misconceived and have no prospect of success. While asserting altruistic motives, they have filed these proceedings without the knowledge, consent or cooperation of the alleged victim. Given the publicity they have assiduously sought at every stage they have undoubtedly added to the hurt and embarrassment she has already suffered. Their apparent indifference to the risk of her being re-victimised by their actions cannot be lightly put to one side.

[105] Having regard to the documents filed by NZPPSL we have little doubt these proceedings, ostensibly wrapped in the language of human rights, have in truth been brought to embarrass the Prime Minister and to promote the interests of NZPPSL and Mr McCready. Along the way they have made baseless allegations against both the Chairperson and the lawyer representing the Prime Minister.

[106] It should therefore come as no surprise the proceedings must be struck out not only because no arguable case under the Human Rights Act can be established, but also because the proceedings are vexatious, not brought in good faith and are an abuse of process.

So that’s another major failure by McCready in trying to deal to Key, with Bailey not wanting anything to do with it. She has already made settlement with her employer.

The Tribunal Headnote: New Zealand Private Prosecution Service Ltd v Key [2015] NZHRRT 48

Download PDF document icon[2015] NZHRRT 48 – NZ Private Prosecution Service Ltd v Key.pdf — PDF document, 157 kB