Borrowdale v Director-General of Health

From the High Court:


ANDREW BORROWDALE V DIRECTOR-GENERAL OF HEALTH AND ATTORNEY-GENERAL

Summary

A Full Bench (three Judges) of the High Court has made a declaration that, for the 9 day period between 26 March and 3 April 2020, the Government’s requirement that New Zealanders stay at home and in their bubbles was justified, but unlawful. All other challenges to the Lockdown and the Government’s early COVID-19 response have failed.

Mr Borrowdale’s challenge

Mr Borrowdale’s challenge to the legality of the early lockdown took the form of judicial review proceedings brought against the Director-General of Health and the Attorney-General. He sought declarations of illegality in relation to three matters relating to the Government’s initial COVID-19 response. The first focused on the public announcements made by the Prime Minister and other officials during the first 9 days of the lockdown. The second challenge related to three orders made under the Health Act 1956 by the Director-General on 26 March (Order 1), 3 April (Order 2), and 27 April (Order 3). And the third challenge related to the definition of “essential services” contained in Order 1.

Because the issues raised by the challenges were of general public importance and concerned the operation of the rule of law and the administration of justice, the New Zealand Law Society was granted leave to intervene in the proceedings.

The public announcements

Order 1 was made at the beginning of the Level 4 Lockdown. It forbade congregating (except when social distancing was observed) and required the closure of non-essential businesses. But it did not require people to stay home and in their “bubble”. Those obligations were, instead, conveyed to the public through various public announcements made by the Prime Minister and other officials from 23 March onwards. Mr Borrowdale contended that these further restrictions were not “prescribed by law” and so unlawfully limited certain of New Zealanders’ rights and freedoms under the New Zealand Bill of Rights Act (NZBORA), including the rights to freedom of movement, assembly and association. He also contended that the announcements unlawfully suspended the law in breach of the Bill of Rights 1688 (BOR 1688).

The Court concluded that, reasonably interpreted, the statements conveyed that New Zealanders were required—backed by the threat of enforcement—to stay at home and in their “bubbles”when that was not, in fact, the legal position. So until Order 2 came into effect (on 3April) those restrictions were not prescribed by law and, accordingly, an unlawful limit on the relevant NZBORA rights and freedoms. But the Court rejected the contention that the requirements involved a “suspension” of laws contrary to s1 BOR 1688or that the statements were of the kind found to be unlawful in Fitzgerald v Muldoon. Although rights were limited by the requirements, the statements did not purport to “suspend” or stop the operation of any law. And by contrast with Fitzgerald, the Executive did in fact have the power to impose the restrictions, it merely omitted to exercise that power, until 3 April. After Order 2 came into effect on that day, the omission was corrected.

In deciding to make a formal declaration of illegality, the Court took into account the wider public health emergency context and the fact that the power to impose the restrictions existed. It concluded that although the state of emergency went some way to explain what had happened, it also made the Court’s oversight role particularly important. The precise terms of the declaration made are set out at the end of this Media Release. As well as declaring that the requirement to stay at home was not, for those first nine days, prescribed by law and so in breach of the NZBORA it also declares that the requirement was, otherwise, a necessary, reasonable, and proportionate response to the COVID-19 crisis at the time.

There was no specific evidence before the Court as to the potential impact of a finding of illegality on charges laid against individuals in the first nine days of Lockdown. The general evidence suggested, however, that there would be few, if any, prosecutions affected.

The legality of Orders 1—3

Orders 1—3 were made by the Director-General of Health under s 70(1) of the Health Act 1956. As noted, Order 1, made under s 70(1)(m), forbade congregations (except those with social distancing) and required the closure of non-essential businesses. Order 2, made under s70(1)(f), required all persons to be isolated or quarantined by remaining at home, with limited exceptions.

And Order 3, made under both s70(1)(f) and (m), replaced Orders 1and 2, and imposed largely the same restrictions but with further clarifications and exceptions.

Mr Borrowdale challenged the legality of Orders 1–3 on the grounds that they went beyond the “special” authorising powers in s70 and that they, too,unlawfully limited NZBORA rights.

Central to his challenge was the proper interpretation of s 70 itself. The Court began by considering context: the timeline of COVID-19’s spread, New Zealand’s international obligations to protect public health, and the nature and history of the s70 emergency powers. The Court concluded that all those matters reinforced the need for a purposive and liberal interpretative approach and the principle that the section is to be read as applying to circumstances as they arise. The Court also confirmed that the s 70 powers clearly contemplate the restriction of fundamental rights in a public health emergency and rejected Mr Borrowdale’s contention that their scope should be limited by reference to the NZBORA. Rather, the NZBORA is relevant to the exercise of the powers in the particular case and here, Mr Borrowdale had properly conceded that the limits on rights imposed by the three orders were justified in the circumstances.

The Court rejected Mr Borrowdale’s specific challenges to the Orders. It held that the Director-General was able to exercise the s70 powers, including the power to require isolation and quarantine, on a nationwide basis. He was also able to negatively define the premises to be closed, and to add a permissible exception to the ban on “congregation” in the form of social distancing. Orders 1–3 were therefore lawful, and authorised by either s70(1)(f) or (m).

Essential Services

Finally, Mr Borrowdale challenged the Director-General’s definition of “essential services” in Order1 as being an unlawful delegation of his s70 powers. That delegation was alleged to have occurred because—Mr Borrowdale said—Order 1 left the definition of “essential services” to the Ministry of Business, Innovation and Employment (MBIE), to be updated from time to time on the COVID-19 government website.

The Court reviewed the wording of Order 1 and the evidence about how MBIE determined what was and was not an essential service. The Court held that in Order 1 the Director-General broadly, but lawfully, defined essential services as: “businesses that are essential to the provision of the necessities of life and those businesses that support them”. That definition was at all times clear and fixed. The Court concluded that the function of MBIE and the website list was interpretive and advisory only. Only the Director-General could change the definition; MBIE’s job was to apply it. There was therefore no delegation and no breach of the rule of law.

Result

The Court made a declaration in the following terms:

By various public and widely publicised announcements made between 26 March and 3 April 2020 in response to the COVID-19 public health crisis, members of the executive branch of the New Zealand Government stated or implied that, for that nine-day period, subject to limited exceptions, all New Zealanders were required by law to stay at home and in their “bubbles” when there was no such requirement. Those announcements had the effect of limiting certain rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990 including, in particular, the rights to freedom of movement, peaceful assembly and association. While there is no question that the requirement was a necessary, reasonable and proportionate response to the COVID-19 crisis at that time, the requirement was not prescribed by law and was therefore contrary to s 5 of the New Zealand Bill of Rights Act.

After Order 2 came into effect on 3 April 2020, the problem was corrected; the declaration has no bearing on subsequent or current restrictions.

The remainder of the challenges failed and the relevant claims were dismissed.

Full decision:

Borrowdale judicial review of level 4 lockdown legality beginning

During the Covid level 4 lockdown Andrew Borrowdale initiated a judicial review, challenging the legality of the lockdown. This review will begin in the High Court in Wellington today.

Preliminary rulings:

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZCA 156 [8 May 2020]

The question this application begs is whether this Court should now limit
the available judicial steps to two (Court of Appeal, and perhaps Supreme Court) rather than three (High Court, Court of Appeal and perhaps Supreme Court). And behind that lies another question, which is whether we should thereby deny parties’ ordinary constitutional entitlement to a first appeal as of right (any appeal to the Supreme Court being by leave only). While leave might be anticipated, that is still a step this Court should be reluctant to take, especially where the issues are ones of such fundamental importance as these.

The application for transfer of the proceeding to the Court of Appeal, under s 59 of the Senior Courts Act 2016, is declined.

BORROWDALE v DIRECTOR-GENERAL OF HEALTH [2020] NZHC 1379 [18 June 2020]

The Auckland District Law Society Inc (ADLS), Criminal Bar Association of New Zealand Inc (CBA) and the New Zealand Law Society/Te Kāhui Ture o Aotearoa (NZLS) have applied for leave to intervene in Mr Borrowdale’s application for judicial review.

While the Court appreciates the steps taken by the ADLS, particularly its role in initiating a consideration of whether there should be intervention by a law society in this case, there is no need for intervention from both the NZLS and the ADLS. The NZLS has over three times the membership of the ADLS and, given its membership comprises 98 per cent of those with practising certificates, its membership clearly incorporates a large number of members of the ADLS. There would inevitably be overlap were both the NZLS and the ADLS given leave to intervene, thus lengthening the hearing and increasing the costs. Given the wide expertise on which the NZLS can draw, the Court can be satisfied that it will comprehensively address the issues.

The NZLS is granted leave to intervene on the conditions set out above.

The applications by the ADLS/CBA for leave to intervene are declined

The High Court has published a case synopsis:


Background

Mr Borrowdale has brought judicial review proceedings challenging the legality of restrictions imposed by the New Zealand Government on the public in response to the COVID-19 pandemic. Thefirstrespondent is the Director-General of Health and the second respondent is the Attorney-General. The Court has granted leave for the New Zealand Law Society to be represented as intervener, a disinterested party whose role is to assist the court.

The nature of the hearing

The role of the Court in judicial review proceedings is of a supervisory nature. It is concerned with ensuring powers are exercised in accordance with the law. In undertaking this important constitutional function, the Court does not engage in nor provide answers to political, social or economic questions. It is concerned only with assessing whether powers were exercised lawfully.

One judge usually presides over High Court proceedings. However, there is provision for the High Court to sit as a full Court (2 or 3 judges) in cases of particular significance, such as this one. Three judges will preside over this case, including the Chief High Court Judge Justice Thomas.

Grounds of review

There are three grounds of review.

The first is in the context of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Bill of Rights 1688, an Act which establishes the principle that no law can be suspended without the consent of Parliament.

This ground of review concerns the announcements made by the Prime Minister and others in Government from Monday 23 March 2020. Mr Borrowdale claims these announcements gave directions requiring, as from 11:59 pm on 25March, people to confine themselves to their homes for all non-essential purposes, all non-essential businesses to close and public congregations, indoor and outdoor events to cease. Mr Borrowdale’s case is that these directions were unlawful because they were not imposed by law and they limited the public’s rights affirmed in the NZBORA.

Additionally, Mr Borrowdale claims the restrictions appeared to suspend the law, and were accordingly illegal under the Bill of Rights 1688.

The second ground of review concerns the powers of the Director-General of Health to make orders pursuant to s 70(1)(m) and (f) of the Health Act 1956. Mr Borrowdale claims that the Director-General of Health did not have the power to close all businesses generally and confine the entire population of New Zealand to their places of residence.

The third ground of review relates to the legality of the claimed delegation to the Ministry of Business, Innovation and Employment in administering a scheme for determining what was an essential service during the period New Zealand was placed under Alert Levels 3 and Mr Borrowdale claims the delegation was unlawful for lack of compliance with section 41 of the State Sector Act 1988.

Hearing details

The case is set down for three days in the Wellington High Court, commencing Monday 27 July 2020.


There was a separate challenge to the lockdown legality. Two serial litigants with a long list of failures, Dermot Nottingham and Robert McKinney, tried via a writ of habeas corpus to but failed in both the Hight Court and the Court of Appeal – see Nottingham, McKinney named as habeas corpus lockdown litigants

Nottingham also failed in an agttempt to recall the High Court judgment – see Another double failure in Nottingham v Ardern

In contrast Andrew Borrowdale has extensive credible legal experience, including writing legal text books, and he worked formore than ten years in the Parliamentary Counsel office which drafts the government’s bills and legislation. And he has law qualifications.

Another double failure in Nottingham v Ardern

Dermot Nottingham has again had a double failure in court after another attempt in his legal actions against Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black. This time he tried to recall the original judgment against him in the High Court, despite it also being dealt with by a higher court.

This isn’t the first time Nottingham has used different ways of trying to overturn judgments, and of trying to have a proceeding dealt with in a lower court than where the last decision was made.

In April (judgment 23 April 2020) Dermot Nottingham and Robert McKinney took legal action against Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black, alleging the Government had subjected them to unlawful detention under the Covid-19 lockdown.

The High Court declined to issue writs of habeas corpus in favour of Nottingham and McKinney, finding that the two men and their families and associates were not detained under the Health Act, and that “habeas corpus is not the appropriate procedure for considering their allegations”.

Both Nottingham and McKinney appealed, but the Court of Appeal agreed with the High Court and dismissed the appeals, and said that the actions should not have been personally against the prime Minister or Director-General of Health and were told to make that correction if taking the matter further.

At the time of the application Nottingham was legally detained  as he was serving a term of home detention after being convicted in 2018 of criminal harassment and breaching name suppression orders, but during the process he was granted bail pending a Supreme Court appeal of the length of his sentence (that is due too be heard in the Supreme Court today).

Both men sought name suppression in this case but that was refused and it expired:

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.

See Court of Appeal NOTTINGHAM v ARDERN [2020] NZCA 144 [4 May 2020]

The latest decision is in the High Court – NOTTINGHAM v ARDERN [2020] NZHC 1013 [15 May 2020]

Mr Nottingham has applied for recall of my judgment of 23 April 2020, in which I declined his application for a writ of habeas corpus…

The gist of Mr Nottingham’s application is that Crown counsel misled me at the hearing of his application on 17 April 2020. In particular, Mr Nottingham contends Crown counsel misled me in the course of their submissions as to the legality or otherwise of the (now revoked) order of the Director-General of Health issued on 3 April 2020 (“order”). Crown counsel deny misleading me in any way whatsoever.

Mr Nottingham and Crown counsel made detailed submissions for and against the application for recall. However, the critical point is that my judgment has been subject to a concluded appeal, that is the Court of Appeal has both heard and determined Mr Nottingham’s appeal against my judgment. The effect of this is to preclude recall of my judgment.

A fundamental of our legal system is that a lower court cannot deal with something that is before or has been dealt with a higher court.

Quite aside from that, and even if Mr Nottingham could persuade me I was misled as he contends, I would have declined to exercise my discretion to recall the judgement because it would be pointless to do. The matters on which Mr Nottingham seeks to rely do not bear on the determinative issue of whether the effect of the order
was to “detain” him within the meaning of the Act. Thus the outcome post any recall would remain the same.

Nottingham is a lay litigant representing himself, but has extensive experience in the courts. The NZLII database lists 49 decisions involving Nottingham since 2015, and this is just the tip of a legal iceberg as many lower court decisions are not published. He was adjudicated bankrupt in 2018 due to hundreds of thousands of dollars of unpaid legal costs awarded against him for failed legal proceedings.

 

A better looking challenge of Covid lockdown legality

Andrew Borrowdale has filed for a judicial review of the Director-General of Health’s powers behind the Covid-19 lockdown restrictions on Tuesday.

He is reported as someone “who has worked on drafting laws for the Government at the Parliamentary Counsel Office” but is also the author of books on commercial law and The Spinoff refers to him as “top lawyer and former parliamentary counsel”.

If successful it may make little difference for most of us, especially if we move to a Level 2 lockdown next week, but it should ensure decent scrutiny of the laws used to lock us down. And there is a possibility damages from those arrested under the lockdown law and businesses forced to close down could become an issue.,

Two associates challenged what they claimed was detention under the lockdown in the High Court but the judge dismissed that, saying the men weren’t held in detention and agreeing with counsel for the respondents (Jacinda Ardern, Ashley Bloomfield and Sarah Stuart-Black) that a habeas corpus writ was the wrong approach:

I accept the respondents have established any detention effected by the order is lawful (for reasons given). I am also satisfied the arguments A relies on are not suitable for determination on an application for a writ of habeas corpus. In fact, s 14(1A) of the Act permits the Court to refuse an application for the issue of the writ if satisfied the application is not the appropriate procedure for considering an applicant’s allegations. This is such a case.

The appropriate procedure is an application for judicial review.

See A v Ardern [2020] NZHC 796 (23 April 2020)and B v Ardern [2020] NZHC 814 (24 April 2020).

Despite this guidance A and B appealed, but the Court of Appeal confirmed that ruling – Court of Appeal rejects habeas corpus lockdown arguments but “questions needed answers”:

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.

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

The judgment also noted:

As has been noted by the Regulations Review Committee  regarding notices issued under s 70 of the Health Act 1956 (20 April 2020) – and two of New Zealand’s leading public law academics, there are unresolved questions about the lawfulness of the notices issued under s 70 of the Health Act.

References:

There has been one successful challenge via judicial review, but this was on very narrow grounds challenging the Ministry of health refusing an exemption from quarantine – see Court rules man under Covid quarantine can visit dying fatherJudgment here.

The new action: Legal challenge over coronavirus lockdown

Borrowdale told Stuff that the “bringing the application is not in any way intended to impugn Dr Bloomfield personally or to decry his admirable work”.

He’s asked for a court to declare that some of the powers triggering the lockdown were outside the law, and for the court to order those actions be quashed.

The main issue at stake is whether Bloomfield used powers that were in excess of the ones given to him by the Health Act.

Bloomfield used section 70 of the Health Act to issue notices, which set out some of the rules that we know as the level 4 lockdown.

Borrowdale alleges that the notices overstep the powers that are given to Bloomfield by the Health Act.

A Ministry of Health spokesperson said “The Ministry is satisfied that the section 70 powers have been exercised lawfully.

“It would be inappropriate for the Ministry to comment further where the matter is before the courts”.

Otago law professor Andrew Geddis said the case was asking the High Court to make a “determinative ruling on whether the Health Act gave the director-general the power to issue the notices that it did”.

Geddis said police had then arrested and charged people with breaching the order.

“If the health act didn’t give the director-general that power, then all of those people who have been charged with those offences shouldn’t have been,” he said.

Those people could potentially claim damages under the Bill of Rights.

So a successful review could have significant repercussions.

Bloomfield’s notices also forced all business to close, with rare exceptions. But Borrowdale claimed the powers in the Health Act don’t allow Bloomfield to carte blanche close businesses and public spaces.

He argued that while the Act allows the director-general to close all premises of “any stated kind or description,” Bloomfield exceeded this, closing everything down without specifying the specific kinds of premises like the Act requires.

Working out which businesses could be deemed “essential” was delegated to MBIE officials, which Borrowdale argued was also an overstep, as the Health Act doesn’t give those officials the right to decide which business may open or stay shut.

The choosing of which businesses had to close has been very contentious, and if there is a successful challenge too this there could potentially be some large claims of damages.

He made the same point about the order that forbids people from congregating in outdoor places. The order says all such gatherings are banned, but the Health Act, Borrowdale claims, would require Bloomfield to actually state the kinds of gatherings that are banned.

I don’t see that damages would be possible to claim here but unless the law is rectified this could make ongoing lockdown restrictions outside the law.

The other issue at play is whether the Health Act actually gives the director-general the power to confine all New Zealanders to their homes.

Borrowdale argued that it actually should be read as meaning that only certain people can be quarantined and placed in isolation.

He says that the Act doesn’t allow Bloomfield to act for the entire country at once, but rather it forces him to look at the needs of each health district separately.

If Borrowdale is correct it would involve a lot more work for the Director general of Health in defining what can be restricted and locked down, unless the Government gets a quick law change through to make wide or blanket restrictions legal.

As with the other legal challenges I expect this one will be heard urgently, but here is no indication yet when that will be.

This action looks far better considered and targeted than the writ by A and B, which included an attempt at a political attack, and should add to clarification of the laws around lockdowns.

Nottingham on bail pending Supreme Court appeal of length of home detention

Dermot Nottingham has had a couple of rare successes in court – The Supreme Court recently granted him leave to appeal the length of his home detention sentence, and he has been granted bail pending that appeal.

But there us some risk with his appeal as there is a possibility that the sentence of home detention would have to be replaced with a sentence of imprisonment. And he failed to get leave to appeal a failed application for habeas corpus.

In 2015 Nottingham was charged on two counts of breach of suppression and five counts of criminal harassment.

After a number of delays he was found guilty by a jury in 2018 and a 24 month prison sentence was calculated. This is the maximum that can be converted to a home detention sentence, so this was changed to 12 months home detention, largely on illness grounds despite the sentence being served in the home from which a lot of the offending had occurred via the Lauda Finem website. This was the maximum length home detention sentence allowed under law.

Nottingham appealed both the conviction and sentence and failed with both appeals.

The Solicitor General also appealed the sentence as inadequate and won, so the original sentence was quashed. A new sentence of 31 months home detention was calculated, but as Nottingham had already served three and a half months home detention before getting bail 7 months was deducted, leaving a 24 month prison sentence. This again was the maximum possible that could be converted to home detention, so a new sentence of 12 months home detention was imposed.

NOTTINGHAM v R [2019] NZCA 344 [30 July 2019]

Nottingham appealed this new sentence at the Supreme Court, claiming that the maximum home detention sentence available was 12 moths and he would effectively serve 15 and a half months home detention.

DERMOT GREGORY NOTTINGHAM v R [2019] NZSC 144 [12 December 2019]

He then went back to the Supreme Court and was granted a recall and leave to appeal.

 DERMOT GREGORY NOTTINGHAM v R [2020] NZSC 23 [20 March 2020]

He went back to the Supreme Court seeking bail. This was heard on 24 April.

Bail is opposed by the Crown on a number of bases. The key submissions can be summarised as follows. First, it is said that the appeal has no merit. This submission relies primarily on the proposition that the previous sentence was of no effect once quashed by the Court of Appeal and also on the fact that the time served was taken into account by that Court. On this basis, the sentence imposed was lawful.

We accept the submission for the Crown that the application for bail should be treated as an application for bail pending determination of the sentence appeal. It is therefore necessary to decide whether a grant of bail is in the interests of justice.

We consider that test is met primarily because there is a risk that Mr Nottingham’s sentence appeal would otherwise be rendered nugatory. The point of Mr Nottingham’s appeal is to establish he could not lawfully be required to serve more than 12 months’ home detention. It is not disputed that Mr Nottingham has now served 12 months’ home detention.

But “rendered nugatory” is just one possibility.

Second, the submission is that there is no risk that the appeal will be rendered nugatory if bail is not granted. This is essentially because, the Crown says, that if Mr Nottingham succeeds on his appeal then the sentence of home detention would have to be replaced with a sentence of imprisonment.

I wonder if Nottingham considered the possibility that if he succeeded with his appeal against sentence the outcome could be prison. But that’s not certain.

The submission for the Crown that the appeal is not otherwise rendered nugatory relies on the proposition that a sentence of imprisonment would inevitably be imposed on Mr Nottingham should his appeal succeed. But that is not necessarily so. The Court would have the usual powers applicable on a sentence appeal.

Nevertheless there is a risk of an own goal (or own gaol).

But bail was granted pending the hearing of the appeal, with some strict conditions:

  • (c) not to associate or have contact, directly or indirectly, with any of the witnesses who gave evidence for the Crown (or whose evidence was read or admitted by consent) in the District Court trial, other than with written consent from Crown counsel;
  • (d) not to associate or have contact, directly or indirectly, with the victims in the District Court trial (T, C, H, B and M);
  • (e) not to access the Lauda Finem website other than for the purpose of preparing material directly relevant to the appeal;
  • (f) not to post information on, or provide information to be posted on, the Lauda Finem website; and
  • (g) not to post information on, or provide information to be posted on, any website relatable directly or indirectly to the victims in the District Court trial (referred to in (d) above).

Getting bail during Covid lockdown is only a partial reprieve.

Interesting to see the explicit ban on using Lauda Finem. In his trial Nottingham was found to be the primary person responsible for many attack posts on Lauda Finem, but the blog was shut down (via another court action) and a mirror site hasn’t had any new posts for three years.

But the ban also includes ‘any website’ relatable to the offences.

Also:  The proposed habeas corpus appeal

The habeas corpus appeal is essentially brought on the same basis, that is, detention beyond the period of 12 months is unlawful.

The habeas corpus application was dismissed by van Bohemen J on two bases. First, the Judge considered that the respondent in that case had established the lawfulness of the detention because Mr Nottingham was subject to detention under a lawful order of the Court. Second, the Judge found that habeas corpus was not an appropriate remedy where Mr Nottingham was using habeas corpus to pursue his sentence appeal.

We are satisfied that there are no exceptional circumstances to justify a direct appeal to this Court. That is because, as van Bohemen J found, the question Mr Nottingham would have the Court consider is “classically a question for appeal” and Mr Nottingham will have that on 14 May 2020. His position in the interim is preserved by the grant of bail.

So  the application for leave to appeal against the decision declining habeas corpus was dismissed.

Dermot Gregory Nottingham v R

From the High Court judgment:

It is apparent that Mr Nottingham is asking the High Court to hold that the Court of Appeal’s decision to impose a sentence of 12 months’ home imprisonment is wrong in law. That is a matter for appeal. It is well beyond the jurisdiction of this Court.

NOTTINGHAM v DEPARTMENT OF CORRECTIONS [2020] NZHC 332 [28 February 2020]

Nottingham was applying for habeas corpus to the High Court for essentially the same purpose as his concurrent Court of Appeal action (now at the Supreme Court).

The Supreme Court will hear Nottingham’s appeal against the length of his home detention sentence on 14 May 2020.

Blomfield versus www.laudafinem.com

According to the Daily List Matthew Blomfield is back in the Auckland High Court today, this time against ‘Lauda Finem’.

Last week Blomfield was in court in a defamation action against Cameron Slater. This trial was set down for ‘up to four weeks’ but seems to have finished as it has now dropped off the daily list (since yesterday). Presumably this is now waiting for a judgment. That could take a while. Slater is waiting for the judgment of cross claims versus Colin Craig 18 months after the trial, but that is a much more complex proceeding that may be waiting on rulings in Jordan Williams v Craig, which was in the Supreme Court recently on a point of appeal,

The notice for CIV2016-044-121:

MATTHEW JOHN BLOOMFIELD v THE OWNER AND / OR ADMINISTRATORS OF WWW.LAUDAFINEM.COM

It is hard to find any information about this. The only hit on ‘Lauda Finem’ on court Decisions Online is MALTESE CAT LIMITED v DOE [2017] NZHC 1634 [14 July 2017] which shows defendants as:

JOHN DOE AND/OR JANE DOE
Defendants

DERMOT NOTTINGHAM
Second Defendant

[2] The claim contends that all three were victimised by defamatory publications on the website, http://www.laudafinem.com (the offending website).

[7] The plaintiffs want these four webpages to be declared defamatory. They have good reason to believe that if the declaration is made by this Court then GoDaddy and DBP will no longer host the pages. At the present time they have been taken down. A declaration is sought under s 24 of the Defamation Act 1992. By the terms of that Act they have to seek defamation against a person and hence the proceedings were commenced against John and Jane Doe. The plaintiffs, however, believe the offending material was put together by Mr Dermot Nottingham.

[17] I am also concerned that Mr Nottingham has neither denied he is responsible for the subject defamatory publications on the website, nor expressly pleaded that they are true.

In a second judgment – MALTESE CAT LIMITED v JOHN DOE AND/OR JANE DOE [2017] NZHC 1728 [25 July 2017] – Nottingham defended the action  due to what he claimed was time limitation but the judge ruled that it was not time barred and could proceed. There are no other judgments, but there was a Court of Appeal hearing in August for which there is no published judgment yet.

Nottingham was recently convicted of two breaches of non-publication orders, and five charges of criminal harassment, which I would presume would have some bearing on this latest action. From sentencing notes:

[22] Now, I make some findings of fact. Consistent with the verdicts of the jury I have concluded that between 2010 and 2015 Dermot Nottingham published or had published numerous articles on the blog site laudafinem.com. Either Dermot Nottingham is Lauda Finem (in other words, the leading mind of that blog) or he is so intimately related to it that it is proper to conclude that he provided information and draft articles to that blog site knowing and intending that they would be published.

See “Either Dermot Nottingham is Lauda Finem…or he is so intimately related to it…”

Some information that seems linked directly to the current action was posted on laudafinem.com – that website was shut down by court order as a result. A post in October 2016:

Godaddy, our web hosting provider, has very kindly agreed to oblige a New Zealand court and hand over the domain laudafinem.com and various other material; we hold unlawfully of course; not a good look for a provider that sells itself as a bastion of free speech.

We at Lauda Finem are now apparently at the coal-face of international law and the struggle for press freedom, for despite Cameron Slater, also a blogger, having been declared a journalist, Kiwi High Court Judge, Peter Woodhouse, seems to have opted to ignore that fact and taken the very dangerous step of unlawfully interfering with a legitimate media outlet, an off-shore whistle-blowing anti-corruption website at that.

“The struggle for press freedom” is a laugh. This is more of a struggle to hold to account rogue website operators who try to be clever to get around New Zealand laws.

Moreover, despite Blomfield failing to even comply with his obligation to file his substantive arguments in the Slater case, and no sign that he is even capable of doing so, he has now decided, after more than 4 years, that he’s going to take on another “defamation tort”.

As is common with these numpties, the reverse of what they claim is closer to the truth. “Failing to even comply with his obligation to file his substantive arguments” applies more to Slater’s attempts to delay and avoid going to trial, and that may have backfired on him. Blomfield succeeded in getting it to trial so must have complied.

A follow up post:

Following on from our last post covering the Blomfield saga and his latest attempt to pervert justice LF have now been advised that the New Zealand Court decision enabling Kiwi lawyers to seize the LF site, in addition to the obvious lack of jurisdiction, may also breach EU laws on privacy, data protection, whistle blower, and journalist protections.

Did Judge Peter Woodhouse realize he lacked jurisdiction? Did Blomfield mislead him? Perhaps Woodhouse would care to explain his failures and the likely breaches of EU law?

With this in mind LF is now intending to email every Kiwi elected politician for their information and opinion, we’ll of course be following that up with a complete file copy, delivered by post, evidence that the legal hi-jinks of Mr Blomfield are merely designed to thwart LF’s reporting of the truth.

Remember LF has been following this story for many years, we’ve been posting, providing damning evidence for years, but not a peep from Blomfield until LF published damning evidence…

This appears to be related to the Slater defamation action. LF somehow managed to obtain the huge amount of data that Slater used in his posts attacking and accusing Blomfield. One the defamation action got under way Slater made an undertaking to the court not to post any more about Blomfield, but LF continued to post on it.

Remember readers, this so-called court judgement is a scam, service was not effected in accordance with New Zealand’s own laws. And as aforesaid it also likely breaches EU laws and treaties protecting residents whistle-blowers and journalists privacy.

Two years later it has now gone to trial.

Disclosure of interest: While I am not involved in the case before the court today and don’t have details of what it is actually trying to do, I have an interest in all of this because I was dragged into this whole Blomfield versus Slater and Lauda Finem messy business. They tried to use Your NZ to attack Blomfield in breach of court orders, and when I stopped that they started attacking me.

This involved an ongoing campaign of disruption here, litigation and attempted litigation (involving Nottingham, Slater plus  Marc Spring and Earle McKinney) and numerous threats of more litigation. I was also the target in a number of Lauda Finem posts and comments that made false accusations and threats, were defamatory, and were similar to harassment others have been subjected to.

Others here were also targeted by LF.  So the outcome of whatever is being attempted in court today will be of interest.

 

High Court rules loans are not income

I’m surprised this issue has had to go to the High Court to find that loans are not income. Alarmingly, it took over eight years to resolve – if it isn’t appealed.

RNZ:  Solo mum’s loans were not income – High Court ruling

A solo mother of two has won her eight-and-a-half-year fight against the Ministry of Social Development (MSD), which unlawfully tried to argue bank loans and credit cards constituted income.

The Ministry was trying to recover $109,852 from the woman, who has name suppression and can only be identified as ‘Ms F’.

MSD claimed it overpaid her to that amount while she was earning a benefit between 2005 and 2010 because she borrowed from her mother, a finance company and the bank to stay afloat.

But in a High Court appeal released today, Justice Paul Davison ruled MSD was wrong to classify those sources of money as income.

“The bank loans did not truly add to Ms F’s resources as she was required to repay the funds she received,” Justice Davison wrote.

“Bank borrowings by use of a credit card have the same essential characteristics as a bank loan, in that credit card expenditure is to be repaid. Credit card spending is therefore a loan, and is not properly treated as income.”

Justice Davison said it was not for him reconsider the financial advice given to the Authority, only whether it “erred in law in its interpretation and application of what constituted income”.

“The Authority plainly preferred the evidence of the Ministry’s financial analyst and its preference for the evidence of a competing expert is not a matter for this Court to review,” Justice Davison said.

Justice Davison ruled that Ms F was entitled to costs.

More from Catrionna Maclennan at The Spinoff:  Winz is meant to help the vulnerable, not hound them through the courts

In what parallel universe would the agency charged with assisting our most vulnerable citizens cut a mother’s benefit because she borrowed money from her family and her bank to stay afloat?

In 21st century Aotearoa, that is how the Ministry of Social Development thinks it should carry out its job.

It established a massive debt against a woman who borrowed – and repaid – money while she was on a benefit. The ministry then spent years pursuing her to repay her benefit, as it said the loan money meant she was not entitled to state support.

The woman was forced to waste hundreds of hours providing details of her situation to MSD and explaining her finances, at the same time as caring for her children, studying for a degree and trying to start a business to support her family.

She lived outside Auckland at the time and owned a property, which she was trying to hang on to so that her children would have a home. She borrowed to buy paint for the property and to fix a leak to prevent sewage from running through the floor.

The benefit review form did not ask Ms F to list loans.

Ms F also provided detailed information to MSD showing that the loans had been repaid.

MSD’s argument was that the loans, even though they have been repaid, were “income” and accordingly disqualified her from benefit support.

The case went to the Benefits Review Committee and the Social Security Appeal Authority. The amount she was alleged to owe was adjusted several times, so that the figure ranged between $109,852.91 and $127,275.05.

The Social Security Appeal Authority ruled that two bank loans should not have been treated as income, but held that other loans were income and that Ms F should be required to repay $109,852.91.

But the High Court has now ruled that the loans are not income.

This could have wider implications. RNZ: Call for review into ministry’s penalities for beneficiaries getting loans

Lawyers and beneficiary advocates want an urgent review into the Ministry for Social Development’s (MSD) debt recovery programme.

Child Poverty Action Group spokeswoman Susan St John…

…said there was no way debt should ever have been considered a resource.

It was hard to know how many borrowers were affected by the lending restrictions, but Ms St John said every one of them suffered.

“It’s really like just opening up a can of worms.”

Auckland Action Against Poverty spokesman Ricardo Mernendez…

…said over the past few months he had met with many people who were also penalised by MSD for receiving loans.

“At least half a dozen – that’s just people who come to our office in Onehunga there will be many across the country who are in similar situations,” Mr Mernendez said.

Lawyer Catriona Maclennan…

…said the problems went beyond just loans classed as income, with systemic issues around the ministry’s pursuit of money from beneficiaries.

She said Social Development Minister Carmel Sepuloni should step in and immediately stop debt recovery cases that were before the courts.

But this could take some time.

Ministry of Social Development spokesperson Simon MacPherson said the ministry would be studying the court’s decision carefully and thoroughly and consider its response.

Ms Sepuloni said she would not be commenting until she received a report from ministry officials.

I’m surprised it has taken so long to resolve this.

IRD don’t treat loans as (taxable) income. MSD should never have considered loans as income affecting benefits.

Read the full High Court decision here:

 

The SIS dictated secret trial in Wellington

There was an unusual top secret trial in Wellington last week, where neither a Melbourne woman contesting the cancellation  of her New Zealand passport, nor her lawyer, nor any media, were allowed to attend the hearing.

Andrew Geddis at The Spinoff:  The bizarre case of the NZ court case hidden from public and media scrutiny

Something quite strange is happening at the High Court in Wellington this week. Journalists doing their regular rounds of that place’s pathos, bathos, high drama and human frailty came across a closed courtroom with nothing to say what was going on inside its doors, heightened security outside of them and strange “men in dark suits” lurking in the nearby halls.

Upon asking what was up – journalists are pesky like that – they were told they weren’t allowed to know before quickly being ushered away by court security officers. Which, of course, simply makes everyone that much more curious about what on earth could be going on.

The suspicions of at least some of us were confirmed when Justice Venning, the Chief High Court Judge, released a statement confirming the subject of the case.

The statement:

Geddis:

How do we know this? Because her case already has been before the High Court last year, when she sought to challenge the government’s claim that not only did her appeal have to be held in secret, but that neither she nor her lawyer were allowed to know the reasons why her passport had been cancelled.

Those reasons, said the government, constituted “classified security information”. And under the Passports Act 2002, it’s not just the public and press who can’t be in the courtroom to hear the content of such information. Neither can the person whose passport is cancelled, nor that person’s lawyer.

That does sound bizarrre.

So, here’s what is happening in the High Court in Wellington. A woman is asking to get her passport back after the government took it off her. She is doing so without knowing the evidence the government has for deciding she represents a security risk, without being able to be in the court to watch the case being argued, and without being able to have her own lawyer present to argue for her (although some unnamed “advocates” have been appointed to “assist with issues that have to be dealt with” in her absence).

And none of us can go in and watch the case. Nor can the media go in to watch it on our behalf.

Closed justice, in a country where open justice is supposed to be an important principle.

Matt Nippert at NZH:  Secret Wellington High Court national security hearing lambasted as ‘Kafkaesque’

A Wellington basement courtroom last week became the scene for what a Green MP called “Kafkaesque” and civil liberties advocates described as “security theatre performance”.

MP Golriz Gharaman, the Green Party spokesperson for security and intelligence issues, said the court’s acceptance of classified information in this one-sided fashion was unjust.

“The courts are asked to base their decision on so-called facts, presented by just one side. It’s Kafkaesque – you can’t answer the case against you, because you can’t know the case against you,” she said.

The woman’s passport was cancelled in May 2016, but the protocols to allow secret trials was signed after that, in January 2017.

The Herald can reveal the case concerns a Melbourne-based New Zealander who in May 2016 had her passport cancelled on national security grounds by then-Internal Affairs Minister Peter Dunne.

A copy of the protocol governing passport cases where courts are asked to consider evidence classified as secret… signed last January by then-attorney-general Chris Finlayson and chief justice Sian Elias, prescribes: The extensive use of “tamper-proof envelopes”; requirements for court staff to stand watch over locked cabinets during lunch breaks, and; a ban on the public, media and even those accused by such evidence – or their lawyers – from being present during its presentation.

The eight-page protocol also allows for the New Zealand Security Intelligence Service (SIS) to insist that hearings be relocated from a courtroom to any location or their choosing, or to require judges writing up their decision to only use a computer supplied by the intelligence.

Cate Brett, a spokesperson for the Courts, directed questions about the protocol to the relevant minister.

The processes and procedures adopted this week in Wellington were “required by law” and it was “not appropriate to a judge to comment on how a case is conducted”, she said.

Andrew Little, the minister responsible for the courts and the SIS, issued a statement backing the handling of the case.

“There’s a balance to be struck between the vital principal of open justice and the equally important need for national security to be maintained and I believe the current protocol achieves that balance,” he said.

The protocol was put in place before Little became Minister of Justice, but he believes it strikes the right balance. As leader of the Opposition Little was on the Intelligence and Security Committee sol may have been aware of the protocol when it was signed.

Dunne used powers available to him under the Passport Act to cancel the woman’s travel documents if he believed the passport holder was intending to take part in terrorism or the proliferation of weapons of mass destruction in a country other than New Zealand.

In earlier pre-trail rulings Justice Robert Dobson mulled the possibility of this classified information coming from agencies outside New Zealand.

The self-represented woman, whose identity is suppressed, is seeking a judicial review of Dunne’s decisions, but has faced a legal labyrinth over the protocols which requires her to challenge the Minister’s decision without being able to know why it was made.

In her absence the court has appointed special advocates – allowed to attend the secret closed hearings – to assist the court when considering the classified information.

The case is complex. The first scheduled date for a substantive hearing – in June 2017 – was abandoned and no new date has yet been set. An appeal lodged with the Court of Appeal by the women was then abandoned, and twice during the past year judgements have had to be amended and reissued.

Without a passport the woman must be stuck in Australia, unless they deport her to New Zealand. She presumably won’t be able to travel here without a passport, and wouldn’t be able to return to Australia.

Dotcom loses bid to access GCSB recordings

Kim Dotcom has failed in a bid through the High Court to get access to recordings made by the GCSB.

NZH: Kim Dotcom kept in the dark about GCSB spying

In a just-released ruling, Justice Murray Gilbert has said the recordings won’t be released.

The GCSB has previously admitted illegally intercepting private communications between Kim and Mona Dotcom, and Bram van der Kolk, as part of the extradition case being built between December 2011 and March 2012.

Then-Prime Minister John Key has apologised for the communications being intercepted.

“The Dotcoms complain that non-disclosure impedes their ability to pursue their claim and breaches their rights under the New Zealand Bill of Rights Act 1990,” the decision said.

“In particular, they submit that the measure of damages to which they are entitled will depend on the extent and nature of the unlawful intrusion into their private lives and the raw communications are needed to establish this.”

The Dotcom team said that any national security issues shouldn’t stop the information being released, because information on the sources and methods of intelligence-gathering were already public knowledge.

But lawyers for the GCSB argued that releasing the material could prejudice the security of New Zealand, and the confidence of other countries in entrusting sensitive information to New Zealand.

A main reason for Justice Gilbert’s decision is a 2013 Court of Appeal verdict that ruled the GCSB didn’t have to release the raw communications. Justice Gilbert said that meant he couldn’t relitigate the issue.

Even if it wasn’t for the Court of Appeal verdict, Justice Gilbert said national security issues outweighed public interest in the raw communications.

Dotcom has indicated he will appeal this decision.

Dotcom has been giving some of our laws a good workout. And his lawyers.

Dotcom to appeal after High Court judgment

As expected Dotcom will appeal.


Media Statement From Dotcom Legal Team.

This case is no longer the “largest criminal copyright case”, 1 at least as far as New Zealand is concerned. As we have said all along, there is no such offence under our Copyright Act. We were right. However, this afternoon the High Court judgment 2 was issued and, ultimately, although it concluded we are right, 3 the Court concluded that Kim is still eligible for surrender.

To win the major plank 4 of the case but to get that outcome is extremely disappointing. However, we are far from defeated. It is hard to accept the logic that, if the conduct that all accept at its heart relates to assertions of breach of copyright is not an offence under that Act, how it can nonetheless be massaged into a general fraud offence. In fact, that thinking has been rejected outright in the Supreme Court in the United States.

The High Court has accepted that Parliament made a clear and deliberate decision not to criminalise this type of alleged conduct by internet service providers, 5 making them not responsible for the acts of their users. For the Court to then permit the same conduct to be categorised as a type of fraud in our view disrupts Parliament’s clear intent. The High Court decision means that Parliament’s intended protection for internet service providers is now illusory. That will be a concern for internet service providers and impact on everyone’s access to the internet.

The last hurdle to what we say is the correct outcome – no extradition – will now need to be determined by the Court of Appeal. We remain confident that this last point, which would prevent extradition in this complex and unprecedented legal case, will be resolved in Kim’s favour in a manner consistent with Parliament’s intent, international law and, importantly one might think, the United States’ own law.

Whilst many have struggled to get beyond the United States’ hype in this politically charged and misunderstood case, an objective observer will now realise that there is much more to this case than they were previously informed of from the District Court judgment.

Whether Kim has committed an offence under New Zealand copyright law has finally now been answered in his favour; he has not. Whether our law should still permit him to be extradited to the United States under an Act that has no interest in copyright, is the question that remains now to be answered by our Courts. We say no and we are confident that this must be right.

Whether you are a supporter of Kim’s or not, these are important principles of law for us all and the very issues that we need our justice system to grapple with if we want a credible and safe process for extradition to any requesting country, including those with whom we have a close commercial and political relationship.

Ron Mansfield, Barrister

Dotcom Legal Team

1 https://www.justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copyright-infringement

2 Ortmann & Ors v United States of America [2017] NZHC 189.

3 See paragraphs [169]-[192] (in particular [192]).

4 See paragraph [591].

5 See paragraph [183].