A v Ardern - [2020] NZHC 796

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INTERIM ORDER PROHIBITING PUBLICATION OF THE NAME, ADDRESS OR IDENTIFYING PARTICULARS OF THE APPLICANT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-568

[2020] NZHC 796

BETWEEN
A

Applicant

AND

JACINDA ARDERN, ASHLEY BLOOMFIELD AND SARAH STUART- BLACK

Respondents

Hearing: 17 April 2020

Appearances:

A in person

A M Powell and V McCall for Respondents

Judgment:

23 April 2020

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 23 April 2020 at 12.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Crown Law Office, Wellington Copy for: A

A v ARDERN [2020] NZHC 796 [23 April 2020]

Introduction

[1] In response to the COVID-19 pandemic, on 3 April 2020, the Director-General of Health, Dr Ashley Bloomfield, (“Director-General”) made an order requiring everyone in New Zealand to remain at home except as permitted for “essential personal movement” (“order”).1 The order also required people to observe what was referred to as physical distancing.

[2] A, the applicant, submits the terms of order subject him and his family to “detention” within the meaning of the Habeas Corpus Act 2001 (“Act”).2 By application of 14 April 2020, A challenges the legality of the detention he alleges and seeks a writ of habeas corpus, for himself, his partner and two other members of his family.3 The effect of the issue of the writ would be to release A and his family from the restrictions imposed by the order.4 I heard the application as Duty Judge on 17 April 2020, with A appearing by telephone and Crown counsel, Mr Powell and Ms McCall, present through virtual meeting facilities.

[3] The respondents opposed the application. Mr Powell submitted that, to the extent A is detained at present, it is because he is serving a sentence of home detention, and not because of the order. Alternatively, if A and his family are detained by the order, such detention is lawful and, accordingly, the Court must decline A’s application.

[4] Mr Powell also submitted that, in reality, A is seeking to litigate the merits or otherwise of the decision to make the order. Mr Powell submitted these issues are not capable of determination on an application for a writ of habeas corpus and, if A wishes to pursue them, he will need to make an application for judicial review under the Judicial Review Procedure Act 2016.

1      Section 70(1)(f) Health Act 1956 Order by Director-General of Health (3 April 2020) [Section 70(1)(f) Health Act Order]. The order was originally to expire at 11.59 pm, 22 April 2020. On 21 April 2020, the Director-General extended the order to expire at 11.59 pm, 27 April 2020.
2      Habeas Corpus Act 2001, s 3.
3      Section 6.
4      Section 14(1).

Preliminary points

Name suppression

[5] A seeks an order for permanent suppression of the publication of his name and other identifying…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Ardern

Details

AGLC: A v Ardern [2020] NZHC 796
Case: [2020] NZHC 796
Decision Date: 23 April 2020

CaseChat Overview and Summary

The applicant in this case sought a writ of habeas corpus to challenge the legality of an order made by the Director-General of Health in response to the COVID-19 pandemic, which required everyone in New Zealand to remain at home except for essential personal movement. The applicant argued that the order subjected him and his family to "detention" within the meaning of the Habeas Corpus Act 2001 and sought the writ to release them from the restrictions imposed by the order. The respondents opposed the application and submitted that, to the extent the applicant is detained, it is because he is serving a sentence of home detention and not because of the order. Alternatively, if the applicant and his family are detained by the order, such detention is lawful and, accordingly, the Court must decline the applicant's application. The respondents also submitted that, in reality, the applicant is seeking to litigate the merits or otherwise of the decision to make the order, which is not capable of determination on an application for a writ of habeas corpus. The Court found that the effect of the order is to limit the purposes for which the applicant and his family may leave their home, and it also limits some forms of interaction with friends and other family. However, the Court found that the applicant and his family remain free to engage in many of their usual activities and that a greater degree of control of the time and place of movement and/or association would be required for detention. Therefore, the Court found that the applicant and his family are not subject to detention within the meaning of the Habeas Corpus Act 2001. If the Court is wrong in this, the Court found that the respondents have established that any detention to which the applicant and his family are subject to under the order is lawful. The Court dismissed the application for a writ of habeas corpus.

The final orders of the Court were to dismiss the application for a writ of habeas corpus, decline the applicant's request for permanent suppression of his name and identifying details, and continue the interim suppression of the applicant's name and identifying details for 20 working days from the date of this judgment to enable the applicant to pursue an appeal if he wishes. The Court also declined the applicant's request to transfer his application to the Court of Appeal.

Orders