Mathiesen

[2016] NZHC 1968

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1979 [2016] NZHC 1968

IN THE MATTER OF

AND

Habeas Corpus Act 2001

BETWEEN

an application by GABRIELLE PAULETTE MATHIESEN for writ of habeas corpus

Hearing:	19 August 2016
Appearances:	Applicant in person and GWC McNab in support
Judgment:	19 August 2016

ORAL JUDGMENT OF THOMAS J

MATHIESEN HABEAS CORPUS APPLICATION [2016] NZHC 1968 [19 August 2016]

[1]      This  afternoon  I  have  heard  what  the  applicant  claims  to  be  an  urgent application for a writ of habeas corpus.

[2]      The application is by Gabrielle Mathiesen.   I began by asking her why her application was of such unusual urgency that it should be heard by way of an oral application.

[3]      Section  7  of  the  Habeas  Corpus  Act  2001  (the  Act)  provides  that  an application for a writ of habeas corpus must be made by way of an originating application as prescribed by the High Court Rules.

[4]      For some reason, this matter was called before me. As I say, I still struggle to understand why there is unusual urgency.

[5]      I will articulate in a little more detail the issues Ms Mathiesen has raised but they seem, in a nutshell, to relate to Family Court proceedings as a result of which Ms Mathiesen has been adjudicated bankrupt.  In the usual course, if her complaint were in relation to that, then at the least the Official Assignee should have been served with the application and had the ability to be heard.

[6]      I  will,  however,  move  on  to  consider  the  substance  of  Ms Mathiesen’s application.  My first question to her was how she was detained.  She said that the detention is her bankruptcy.  She comes to Court “not as a free person”.

[7]      She says that the judgment, of which I have no real detail, issued by the Family Court was unlawfully issued.  She says that, at the time of the Family Court proceedings, the solicitor acting for her former husband had been suspended from practice as is verified by a notice in the Gazette.  She says that the barrister acting for her former husband filed documents in Court which showed he was instructed by the suspended solicitor.  Furthermore, she says that the suspended solicitor had been the family lawyer for her and her husband for some considerable time but she was told she had to obtain separate legal representation.   She then says she was declared bankrupt in her absence in 2013 but she maintains she was solvent.

[8]      She therefore says there was no due process in relation to the adjudication in the same way as she says she was denied due process apparently, in the Family Court sitting, at both Hamilton and at Timaru.

[9]      Coming back then to the question of how she is detained, Ms Mathiesen says that  she  is  detained  in  accordance  with  the  habeas  corpus  laws  as  advised  by someone  with  significant  knowledge  of  the  area.     I  take  it  she  refers  to Mr Gordon McNab,  who  is  seated  beside  her,  and  in  respect  of  whom  I  will comment in due course.

[10]     Ms Mathiesen also refers to s 23 of the New Zealand Bill of Rights Act.

[11]     She says that at some stage she was held for two days in the Timaru Court and forced to sign a statement of affairs when she had not been adjudicated, in her submission, bankrupt.

[12]     So what I take from all of that, is essentially Ms Mathiesen’s position is that

she is detained and the detention relates to her adjudication as a bankrupt.

[13]     Detention is defined in the Act as every form of restraint of liberty of the person.  Relevant also is the purpose set out in s 5 of the Act.

[14]     This particular issue has come before the Courts before.  I refer to the High Court  decision  of  Mackenzie  J  dated  6 October 2014.1      I have  just  noticed,  on looking at Mackenzie J’s decision, that the first applicant in that case was Gabrielle Paulette  Mathiesen  and  the  second  applicants  were  Gordon Wallace  Cameron McNab and Gabrielle Paulette Mathiesen, as trustees of the Sweet Pea Family Trust. So are you telling me that Mackenzie J’s decision relates to you? Please respond.

You don’t understand the question? Well perhaps I’ll put it this way, it does seem a

remarkable coincidence that I have before me a decision of Mackenzie J in 2014 sitting in the Timaru Registry of the High Court where the names of the applicants

1      Mathiesen v Mathiesen [2014] NZHC 2449.

appear to be the same as the two people before me today and where the same grounds were relied on.2   Relevantly, in that decision Mackenzie noted as follows:

[5] Mrs Mathiesen, to whom the application relates, is not under any form detention.   The proposition sought to be advanced is that the restrictions which are imposed by an adjudication in bankruptcy constitutes a detention. That is not a tenable or arguable proposition.  There is no basis upon which I could properly direct that a hearing be held to consider that submission.

[15]     Mackenzie J then directed that the Registrar should not allocate a hearing on the issue of whether Ms Mathiesen might be entitled to a writ of habeas corpus in respect of her having been adjudicated bankrupt.  This was because the application did not fall within the scope of the Act, as Ms Mathiesen was not under any form of detention.

[16]     Mackenzie J referred to a purported application for a writ of habeas corpus dealt with on the papers by Whata J on 22 November 2013.3    Whata J said in that minute:4

Whatever the validity of the claims made, a writ of habeas corpus must relate to a “detention”.  I do not consider that the bankruptcy amounts to the type of “detention” contemplated either at common law or for the purposes of the Habeas Corpus Act 2001.  Furthermore, I consider the application to be spurious and fundamentally defective.  It is simply a collateral challenge to the adjudications of bankruptcy and an abuse of process.

[17]     Importantly, Mackenzie J directed, at [10] of his decision:

Under the inherent jurisdiction of the Court, I direct that no further papers purporting to be an application by or on behalf of Mrs Mathiesen for a writ of habeas corpus asserting her status of an undischarged bankrupt as a detention in whatever form that assertion may be made, are to be accepted for filing.

2      In fact, approximately six months earlier, the applicant and Mr McNab had appeared before Heath J with exactly the same application, claiming detention as a result of her adjudication in bankruptcy: see McNab v Matthews [2014] NZHC 580. Heath J analysed in detail whether Ms Mathiesen was “detained” and concluded she was not. He directed that the Registrar was not to accept for filing any further application in respect of the alleged detention by reason of the adjudication.

3      An application for Habeas Corpus by G W C McNab and A S Bird HC Timaru CIV-2013-476-

310, 22 November 2013.

4 At [6].

[18]     This  matter  before  me  is  clearly  in  contravention  of  that  order  by Mackenzie J.  It should not have been brought to this Court.  It is an abuse and likely contempt in respect of an order of the Court.

[19]     I will also simply briefly observe that the Court of Appeal in the case of Slavich v The Official Assignee has confirmed the position that being bankrupt does not constitute detention.5

[20]     Finally  and  as  further  confirmation  of  the  waste  of  Court  time  of  this application  today,  s  14(1)(a)  of  the Act  provides  that  the  Court  may  refuse  an application for the issue of a writ if the Court is satisfied that the issue of a writ of habeas corpus is not the appropriate procedure for considering the allegations made by the applicant.

[21]     Ms Mathiesen has complaints about the Family Court and complaints about having been adjudicated bankrupt.  There are other paths for her to follow to pursue those complaints.  Even if it were not for the other matters to which I have referred, her application would fall at this hurdle.

[22]     I turn briefly to consider Mr Gordon McNab who sought to be heard today in respect of what he described as a second application, although effectively it was in relation to Ms Mathiesen’s position.  Not only would such an application be in direct contravention of the order of Mackenzie J on 6 October 2014, but it would also be in breach of s 15 of the Act which provides that the determination of an application is final and no further applications can be made by any person either to the same or to a different Judge on grounds requiring a re-examination of substantially the same questions as those considered by the Court on the earlier application.

[23]     For the reasons given, the application is dismissed.

5      Slavich v The Official Assignee [2010] NZCA 117.

[24]     The Registrar is directed not to accept for filing any application in respect of

the alleged detention of Ms Mathiesen by reason of her adjudication in bankruptcy.

Thomas J