GRANT v MINISTER OF JUSTICE [2021] NZHC 1270

GRANT v MINISTER OF JUSTICE [2021] NZHC 1270 [1 June 2021]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE PROTECTEDPERSON. SEE [15] BELOW.IN THE HIGH COURT OF NEW ZEALANDNELSON REGISTRYI TE KŌTI MATUA O AOTEAROAWHAKATŪ ROHECIV-2021-442-27[2021] NZHC 1270IN THE MATTER of an application for writ of habeas corpusBETWEEN SAMANTHA JANE GRANTAppellantAND MINISTER OF JUSTICERespondentHearing: On the papersAppearances: Applicant in personP J Gunn and C N Tocher for RespondentJudgment: 1 June 2021JUDGMENT OF COOKE J[1] Ms Grant's application for habeas corpus dated 28 May 2021 has been referredto me as duty Judge.[2] Ms Grant has made a number of similar applications in recent times. Theunderlying issue concerns a protection order. It is alleged that Ms Grant iscontinuously breaching that order. On 6 November 2020, following a hearing bytelephone, I dismissed Ms Grant's application for habeas corpus on the basis that herdetention at that time was as a consequence of bail decisions made by the DistrictCourt.1 On 11 March 2021 Judge Barkle in the District Court struck out civil1 Grant v Chief Executive of Department of Corrections [2020] NZHC 2944.proceedings against the person protected by the protection order.2 On 26 March 2021Ms Grant filed another writ for habeas corpus, and Grice J issued a minute observingthat Ms Grant was not presently detained and that the application she had filed was inreality in the nature of an appeal from my earlier judgment of 6 November 2020. Shedirected Ms Grant to file a memorandum explaining the position. On 1 April 2021Churchman J then considered the memorandum Ms Grant filed. He described it as"incomprehensible" and that no writ of habeas corpus could be considered unless anapplicant was in fact detained at the time, and that Ms Grant was not then detained.3[3] In her current application dated 28 May 2021 Ms Grant said that she was incustody "yesterday" (the 27th) and that she was applying for habeas corpus becauseshe was being intimidated by the police. The respondent has filed material from theDistrict Court file which shows that there was a bail hearing on 27 May 2021 and thatMs Grant was released on police bail at that time.Habeas corpus and abuse of process[4] The Habeas Corpus Act 2001 provides that applications under the Act "mustbe given precedence over all other matters before the High Court unless a Judge ofthat Court considers that the circumstances require otherwise".4 Section 9(3) provides:The Registrar must allocate a date for the inter partes hearing of an applicationthat is no later than 3 working days after the date on which the application isfiled.[5] Section 14 also provides:14 Determination of applications(1) If the defendant fails to establish that the detention of the detainedperson is lawful, the High Court must grant as a matter of right a writof habeas corpus ordering the release of the detained person fromdetention.(1A) Despite subsection (1), the High Court may refuse an application forthe issue of the writ, without requiring the defendant to establish thatthe detention of the detained person is lawful, if the court is satisfiedthat—2 Grant v A [2021] NZDC 4457.3 Grant v Minister of Justice [2021] NZHC 740.4 Habeas Corpus Act 2001, s 9(1).(a) section 15(1) applies; or(b) an application for the issue of a writ of habeas corpus is not theappropriate procedure for considering the allegations made bythe applicant.(2) A Judge dealing with an application must enquire into the matters offact and law claimed to justify the detention and is not confined in thatenquiry to the correction of jurisdictional errors; but this subsectiondoes not entitle a Judge to call into question—(a) a conviction of an offence by a court of competent jurisdiction,the Court Martial of New Zealand established under section 8 ofthe Court Martial Act 2007, or a disciplinary officer acting underPart 5 of the Armed Forces Discipline Act 1971; or(b) a ruling as to bail by a court of competent jurisdiction.(3) Subject to section 13(2), a Judge must determine an application by—(a) refusing the application for the issue of the writ; or(b) issuing the writ ordering the release from detention of thedetained person.(4) All matters relating to the costs of and incidental to an application arein the discretion of the court and the court may refuse costs to asuccessful party or order a successful party to pay costs to anunsuccessful party.(5) A writ of habeas corpus may be in the form set out in the Schedule.[6] Section 15(1) provides:15 Finality of determinations(1) Subject to the rights of appeal conferred by section 16 of this Act andto sections 68 to 71 of the Senior Courts Act 2016, the determination ofan application is final and no further application can be made by anyperson either to the same or to a different Judge on grounds requiring are-examination by the court of substantially the same questions as thoseconsidered by the court when the earlier application was refused.[7] A question arises as to whether the High Court can strike out an application forhabeas corpus without affording a hearing if the proceedings appear to be an abuse ofprocess. That question was carefully considered by Mander J in Greer v Smith.5 Heheld:5 Greer v Smith [2015] NZHC 326, [2017] NZAR 141.[13] The question arises as to whether there are any circumstances in whichno hearing is necessary. In my view, there are two situations where that mayarise. The first is where the narrow exceptions provided by s 14(1A) apply.Thus, where the application is an attempt to relitigate the same, orsubstantially the same questions as were raised in a previous application, thematter will not be heard by combination of ss 14(1A)(a) and 15(1). The others 14(1A) ground is where an application for a writ is not the appropriateprocedure for considering the allegations made by the applicant.[14] A second situation where, arguably, no hearing would be necessary iswhere the application represents an abuse of process warranting invocation ofinherent jurisdiction to strike the application out. It may, however, be thathaving regard to the solemnity and importance of habeas corpus and thestatutory framework that now governs such applications, the statutesupersedes any such jurisdiction. If that is the case, applications that wouldotherwise have constituted an abuse are now dealt with under ss 14(1A) and15(1).[15] This summary of the position is, I believe, supported by the work ofthe Law Commission and the passage of the Habeas Corpus Bill and itsamendment through the House.[8] Mander J then set out passages from the Law Commission reports, and fromthe Parliamentary debates supporting that view.[9] Notwithstanding this analysis there have been a number of subsequent HighCourt decisions in which habeas corpus applications have been struck out as an abuseof process without a hearing, and without reliance on s 14(1A). There are at least twodecisions that struck out such a proceeding in reliance of r 3.35B of the High CourtRules 2016.6 There are other decisions where applications have been struck out as anabuse of process without express reference to the power being exercised, which couldeither involve an exercise of the power under r 15.1 of the High Court Rules, or theinherent jurisdiction.7[10] I respectfully agree with the analysis undertaken by Mander J in Greer v Smith,and for that reason see the scope for the Court to dismiss a habeas corpus applicationon the papers without holding a hearing to be found primarily in s 14(1A). If s 14(1A)applies, in my view the Court can dismiss the application without holding a hearing.I doubt whether there is jurisdiction to strike out the application under r 5.35B or r 15.16 Sawal v Chief Executive of the Department of Corrections [2021] NZHC 3; Moananui v ChiefExecutive of the Department of Corrections [2021] NZHC 1089.7 See Blackmore v New Zealand Police Kaikohe [2018] NZHC 3295; Billingham v New ZealandPolice [2019] NZHC 133. See also Liddington v Attorney-General [2020] NZHC 3528.of the High Court Rules. I nevertheless accept there may be some circumstanceswhere the Court could strike out an application in the inherent jurisdictionnotwithstanding that it may not fall within s 14(1A). The Habeas Corpus Act does notpurport to exclude Court's inherent powers, and the writ itself originates from theconstitutional role of the Court to protect individual liberty. So the Act should not beread as displacing the inherent jurisdiction of the Court from where the jurisdictioninitiates. There may be some circumstances — for example when the application issimply incomprehensible — where conducting a hearing of the kind contemplated bythe Act would not serve the interests of justice. But it seems to me that before a Courtwould proceed to exercise the residual inherent powers it would first be appropriate togive careful consideration to the provisions of the Act, and especially s 14(1A).Application in the present case[11] In this case Ms Grant's application falls squarely within s 14(1A), and for thisreason I dismiss the application without holding a hearing.[12] First, it is clear that the writ of habeas corpus is not the appropriate procedurefor considering Ms Grant's allegations such that s 14(1A)(b) applies. She is notpresently detained, and the allegations she advances are directed to complaining abouther potential further arrest for breaching the protection order, and any bail decisionsthat are subsequently made. The bail decisions made by the Police and the DistrictCourt are the appropriate place to determine any question of incarceration arising fromcontinuous alleged offending. There are then rights of appeal from bail decisions madeby the District Court. If she is convicted for breach of the protection order, anyimprisonment would be determined by the District Court, with a right of appeal to thisCourt. Those are the appropriate processes for any challenges to those decisions.[13] Secondly ss 14(1A)(a) and 15(1) apply. That is because Ms Grant has alreadychallenged the question of her incarceration for actions associated with a breach of theprotection order in her previous applications for habeas corpus. She has been told inthe judgments in those previous applications that this was not the appropriate avenueto challenge the detentions that take place.[14] I am obviously not in a position to form a view on whether Ms Grant hasengaged in a process of continually breaching the protection order. Any such decisionmay be for the District Court. But on the information available it would appear thatMs Grant is not complying with a protection order, and as a consequence she is beingcontinuously arrested. If she continues to breach that order, she will no doubt bearrested again, and may ultimately be imprisoned. The way for her to avoid theincarceration that follows is for her to obey the protection order. It is not appropriatefor her to file applications for habeas corpus as a means of protesting against theexistence of that order.[15] For these reasons the application for habeas corpus is dismissed. In thecircumstances, and for the avoidance of doubt, I make an order suppressing the identityof the protected person.Cooke JSolicitors:Crown Solicitors for the Respondent