IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2023-442-42
[2023] NZHC 2818
UNDER the Habeas Corpus Act 2001 IN THE MATTER
of an application for a writ of habeas corpus ad subjiciendum
BETWEEN
SAMANTHA JANE GRANT
Applicant
AND
THE MINISTRY OF JUSTICE
Respondent
Hearing: 9 October 2023 Counsel:
Applicant in Person
P Gunn for Respondent
Judgment:
9 October 2023
JUDGMENT OF ISAC J
[Application for writ of habeas corpus]
[1] In the afternoon of Friday, 6 October 2023, the applicant, Ms Samantha Grant, filed an application for a writ of habeas corpus. The matter was referred to me that day as duty judge and I directed an urgent hearing should be set down at 9 am on Monday, 9 October 2023.
[2]Ms Grant’s application at [1] records:
The Applicant is not detained in custody.
[3] At the hearing this morning Ms Grant confirmed she is not detained by the respondent or any other person or agency. She advised that her concern is that she is subject to orders of the Family Court preventing her from having contact with her
GRANT v THE MINISTRY OF JUSTICE [2023] NZHC 2818 [9 October 2023]
daughter, and that if she breaches those orders she may be arrested and charged. It is the threat of a detention arising from those circumstances that have prompted her to file the current application. She submits that “the law must change” so that she is no longer at risk of such a threat.
[4] Section 6 of the Habeas Corpus Act 2001 provides that an application to challenge the legality of a person’s detention may be made by an application for a writ of habeas corpus. It is a pre-requisite of the writ that the applicant is in detention.1 As Ms Grant confirms, there is no restriction on her liberty and her application must be dismissed accordingly.
[5] The easy solution for Ms Grant to avoid the threat of detention she is worried about is to comply with the orders she is subject to. It is not appropriate to seek to set aside those orders indirectly through the current proceeding.
[6] I record that the current proceeding is totally without merit in terms of ss 166 and 167 of the Senior Courts Act 2016.
Isac J
Solicitors:
Crown Law, Wellington for Respondent
- AGLC
- Grant v The Ministry of Justice [2023] NZHC 2818
- Case
- [2023] NZHC 2818
- Decision Date
CaseChat Overview and Summary
The court had to determine whether it had the jurisdiction to hear the case and grant the writ of habeas corpus. The legal issue was whether the court could entertain an application for a writ of habeas corpus when the applicant was not currently detained and the application was based on the hypothetical risk of future detention. According to the Habeas Corpus Act 2001, an application for a writ of habeas corpus could only be made to challenge the legality of a person's detention if the applicant was in detention. Since Ms Grant was not currently detained, the court did not have jurisdiction to grant the writ of habeas corpus.
The court found that Ms Grant's application was without merit as it did not meet the prerequisites for a writ of habeas corpus. The court also noted that the easiest solution for Ms Grant to avoid the threat of detention was to comply with the Family Court orders. The court did not consider it appropriate to set aside the Family Court orders indirectly through the current proceeding. The court concluded that Ms Grant's application was not justified and dismissed it.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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