PRESCOTT v NEW ZEALAND GOVERNMENT [2020] NZHC 653

PRESCOTT v NEW ZEALAND GOVERNMENT [2020] NZHC 653 [25 March 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-000519[2020] NZHC 653UNDER The Habeas Corpus Act 2001IN THE MATTER OF An application for a writ of habeas corpusBETWEEN PETER RICHARD PRESCOTTApplicantAND NEW ZEALAND GOVERNMENTRespondentHearing: (On the papers)Counsel: Applicant in PersonA Todd for the RespondentJudgment: 25 March 2020JUDGMENT OF MOORE JThis judgment was delivered by me on 25 March 2020 at 3:45 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Registrar/ Deputy RegistrarDate:Solicitor:Crown Law Office, WellingtonCopy to:The Applicant[1] The applicant, Mr Prescott, has filed this afternoon an application seeking awrit of habeas corpus under s 6 of the Habeas Corpus Act 2001.1[2] Mr Prescott's application is founded on his claim that given the PrimeMinister's recent announcement of a national lock down as from 11:59 pm tonight, hiscircumstances are such that he will be detained. He says that such a detainment isunlawful and, as a consequence, he asks that a writ of habeas corpus issue.[3] According to Mr Prescott's application he lives in a motor home which isimmobile and is neither registered nor warranted. It is situated in a storage yard atHibiscus Marine and Storage Ltd ("HMSL") in Whangaparaoa. Because the storageyard is not an essential service, HMSL has advised that they will be closing the gatesand locking them.[4] This is Mr Prescott's only residence. He says that he must stay in the yardbecause that is where is his home is and that is where he must self-isolate.[5] He says that as a result of the lock down he will become a prisoner of the Statefrom 5:00 pm today, that being the time he has been advised the gates will be lockedfor a minimum of four weeks.[6] He claims that HMSL are effectively acting as agents of the New ZealandGovernment.[7] If locked in the yard he says he will be denied access to necessities such asfood, toiletries and medical items. He will be unable to replenish his LPG tanks whichprovide him with hot water, cooking and refrigeration. He has an existing medicalcondition which requires regular prescriptions. The lock down will also mean that heis unable to check on elderly friends and deliver them food if required.[8] He works for Tourist Holding Limited ("THL") as an emergency driver. Headvises that he is scheduled to do a run to Hastings tomorrow to deliver a motor home1 The application purports to be made under s 9. That section is inapt. It relates to the well-knownprinciple that such applications must be given precedence over all other matters in the High Court.in response to the COVID-19 outbreak. Locking the gates will frustrate his ability towork.[9] He says he requires a key to the storage yard. He seeks an order to that effect.[10] I am not prepared to grant the writ for the following reasons.(a) First, any unlawful detention must be ongoing at the time of theapplication. There is no detention at this point. It is, at best, anticipatedon the material before me.(b) Secondly, any detention will be at Mr Prescott's will. It is up to him toelect whether or not to remain within the yard. It is open to him to leavebefore the facility is locked. I accept that being locked inside the yardmay well cause personal inconvenience, even hardship, but that is aninevitable consequence of the government's declaration of Level 4 andthe declaration of a state of emergency. There are many others in amuch worse position.(c) Thirdly, no argument has been presented to me that the Government'sdeclaration is unlawful.(d) In any event HMSL is a private entity. It is not part of the Crown, letalone an agent. Furthermore, it is not a party to this application and therelief sought is not within the power of the Crown to provide. TheCrown is not controlling or managing any detention.[11] For these reasons I am not prepared to grant the application. It is dismissed.Moore J