An v Manukau District Court - [2017] NZHC 2190

ORDER PROHIBITING PUBLICATION OF NAME 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-2017-404-001986 [2017] NZHC 2190

BETWEEN
A N

Applicant

AND

MANUKAU DISTRICT COURT Respondent

Hearing: On the papers

Judgment:

8 September 2017

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 8 September 2017 at 3.30 pm
Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Law Office, Wellington
Copy to: Applicant

A N v MANUKAU DISTRICT COURT [2017] NZHC 2190 [8 September 2017]

[1] Mr N has filed what he calls an application under the Habeas Corpus Act 2001 (Habeas Corpus Act) on behalf of his wife, Mrs N. The document, with supporting affidavit, was faxed to the High Court Registry on 22 August 2017 but was brought to my attention in the late morning of Monday 28 August 2017.

[2] I have investigated the reasons for the week-long delay in the documents being brought to the attention of a judge in accordance with the urgency requirements in s 9 of the Habeas Corpus Act. It appears that because of staff absences over the week of
22 August 2017, the facsimile machine on which the documents were received was not checked and the papers went unnoticed for a week. The Registry staff have apologised for the delay. I have asked that steps are taken to ensure this does not happen again. However, for the reasons given below, I am satisfied that the delay did not cause prejudice to Mrs N on whose behalf the application was filed.

[3] The Registry brought the papers to my attention as Duty Judge seeking guidance on how they should deal with the documents because of their unusual form and because, as I rehearse below, there have been a number of previous habeas corpus applications on behalf of Mrs N, all of which have been either dismissed or withdrawn.

[4] The Registry also brought up the files on the earlier applications. These showed that Mrs N, who has been diagnosed with moderate dementia with significant cognitive impairment, is subject to orders made by the Family Court at Manukau under the Protection of Personal and Property Rights Act 1988 (PPPR Act), directing her to enter and reside in a secure dementia-level care unit at a rest home. She has been in that unit since 24 February 2016 except for the times she has been taken out by her husband, Mr N.

[5] After reviewing the papers, I formed the preliminary view that the application was not within the bounds of the Habeas Corpus Act. First, under s 7(1) of that Act, the application should have been be filed by way of originating application as provided by the High Court Rules 2016 and the document filed by Mr N was well short of what would normally be expected on an originating application. Secondly, and more importantly, there was a question whether…

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.

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Details

Case: [2017] NZHC 2190
Decision Date: 8 September 2017

CaseChat Overview and Summary

The case involves an application for habeas corpus brought on behalf of Mrs. N by her husband, Mr. N, against the Manukau District Court. Mrs. N, who has been diagnosed with moderate dementia with significant cognitive impairment, has been residing in a secure dementia-level care unit at a rest home since February 2016, pursuant to orders made by the Family Court under the Protection of Personal and Property Rights Act 1988 (PPPR Act). The application, which is the fifth habeas corpus application brought on behalf of Mrs. N, contends that her detention is in breach of the New Zealand Bill of Rights Act 1990 (NZBORA), that the orders for her protective care are outside the scope of the PPPR Act, and that there are other procedural defects that make her detention unlawful.

The court considered the application on the papers and found that it was not within the bounds of the Habeas Corpus Act. The application was not filed as an originating application as required by the High Court Rules 2016. Furthermore, the substantive complaints being made were not appropriate for consideration by way of a habeas corpus application. The court held that the contentions should have been pursued by other means such as an appeal against the Family Court decision, judicial review proceedings, or an application for declaratory judgment.

The court also found that the orders made in respect of Mrs. N under the PPPR Act were lawful, made with her interests in mind, and supported by her daughter. The court dismissed the application and recommended that any future applications brought on behalf of Mrs. N be examined carefully, with consideration given to whether there are grounds for an order restricting the commencement or continuation of the proceedings.

Orders