Mathiesen v District Court at Timaru

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-33 [2014] NZHC 1397

BETWEEN
GABRIELLE PAULETTE MATHIESEN

and GORDON WALLACE CAMERON McNAB

Applicants

AND

DISTRICT COURT AT TIMARU First Respondent

OFFICIAL ASSIGNEE Second Respondent

Hearing: (on the papers)

Counsel:

G P Mathiesen and G W C McNab, in person, Applicants
No appearance by or on behalf of Respondents

Judgment:

20 June 2014

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 20 June 2014 at 3.00pm pursuant to Rule 11.5 of the High
Court Rules
Registrar/Deputy Registrar

Copies to:
Applicants in person Crown Solicitor, Timaru Official Assignee, Christchurch

MATHIESEN and McNAB v DISTRICT COURT AT TIMARU [2014] NZHC 1397 [20 June 2014]

[1] Ms Mathiesen and Mr McNab apply to set aside a judgment that I gave on 18

June 2014,1 in this proceeding. They also seek an order that their application be

“properly” reheard “elsewhere, before another High Court Judge”.

[2] Although other persons have been named as respondents in the application to set aside, the correct parties are those shown in my earlier judgment; the District Court at Timaru and the Official Assignee.

[3] I am the only High Court Judge available in Timaru at present. It is also normal practice for a Judge who made the original decision to consider an application to set aside, or to recall it.

[4] Ms Mathiesen and Mr McNab brought an application for the issue of a writ of habeas corpus, in relation to their detention pursuant to an order made by Judge Farish, in the District Court at Timaru, earlier on 18 June 2014. Their detention followed a refusal to engage in an examination process to be conducted before Her Honour under s 165 of the Insolvency Act 2006.

[5] In my view, Ms Mathiesen’s and Mr McNab’s application must be dismissed.

In summary, my reasons are:

(a) First, the applicants complain that I did not deal specifically with their submission that the wrong sort of certificate of judgment was used for the purpose of the bankruptcy proceedings brought against Ms Mathiesen. That is correct. But, it was unnecessary to do so because of the more fundamental problem that the applicants faced: namely, that the order of adjudication in bankruptcy must be regarded as valid and enforceable until such time as it is set aside by a Court of
competent jurisdiction.2 It remains in force and I have no power to

revisit it. This is a point I also made clear in an earlier application by

Mr McNab for habeas corpus, in relation to Ms Mathiesen’s

1 Mathiesen and McNab v District Court at Timaru [2014] NZHC 1377.
2 Isaacs v Robertson [1985] AC 97 (PC).

situation.3 Accordingly, there was no basis on which I could embark upon consideration of that point.

(b)The original application is now spent, or in legal terms, moot. A Court will generally not revisit an application, for which there remains no purpose. I am aware that subsequent to my refusal to issue the writ of habeas corpus, both Ms Mathiesen and Mr McNab appeared before Judge Farish, provided information, and were allowed to go. At this stage, there is no detention in respect of which the application may bite.

(c) The fact that I heard from Mr McRae, for the District Court at Timaru, and Mr Slevin, for the Official Assignee, does not invalidate the process. While the habeas corpus application was brought on a without notice basis, it is necessary for the Court to have before it the party responsible for the detention, so that submissions can be made as to its lawfulness. For that purpose, I directed the Registrar to arrange for Mr McRae to appear on behalf of the District Court, and for counsel for the Official Assignee who was involved in the examination process also to attend.

[6] For those reasons, the application to set aside my earlier decision is dismissed.

[7] Any challenge, either to my judgment of 18 June 2014 or to this judgment, must be made on appeal to the Court of Appeal. Save for any appeal document, the Registrar is directed not to receive any further documents that the applicants seek to
file in this Court in relation to this proceeding.

P R Heath J

Delivered at 3.00pm on 20 June 2014

3 McNab v Matthews [2014] NZHC 580.

In the High Court of New Zealand, Timaru Registry, the applicants, Gabrielle Paulette Mathiesen and Gordon Wallace Cameron McNab, sought to set aside a judgment that was delivered on June 18, 2014, by Justice Heath. The judgment in question pertained to an application for the issue of a writ of habeas corpus, which was brought in relation to the applicants' detention pursuant to an order made by Judge Farish, in the District Court at Timaru. The detention followed a refusal to engage in an examination process under section 165 of the Insolvency Act 2006. The applicants argued that the wrong type of certificate of judgment was used in the bankruptcy proceedings against Ms Mathiesen and requested that their application be "properly" reheard elsewhere, before another High Court Judge.

The legal issues before the court were whether the applicants' application to set aside the earlier judgment should be granted, and if not, whether there were any circumstances under which the court could revisit the original decision. Specifically, the court needed to determine whether the applicants' complaint regarding the type of certificate of judgment used was valid and, if so, whether the court could consider this point given that the order of adjudication in bankruptcy was still in force and enforceable. Additionally, the court had to examine whether the original habeas corpus application was now moot, as the applicants had since appeared before Judge Farish, provided information, and were allowed to go.

The court dismissed the applicants' application to set aside the earlier judgment, finding that the order of adjudication in bankruptcy remained valid and enforceable until set aside by a court of competent jurisdiction. The court also noted that the original application for habeas corpus was now moot, as there was no detention in respect of which the application could bite. Furthermore, the court held that the fact that it had heard from the District Court at Timaru and the Official Assignee did not invalidate the process. The court concluded that any challenge to the earlier judgment must be made on appeal to the Court of Appeal.

The final orders of the court were that the application to set aside the earlier decision was dismissed, and the Registrar was directed not to receive any further documents that the applicants sought to file in relation to this proceeding, save for any appeal document. This judgment highlights the importance of the proper functioning of the legal system and the need to respect the authority and decisions of courts, even when those decisions may be unpopular or inconvenient for the parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	(on the papers)
Counsel:	G P Mathiesen and G W C McNab, in person, Applicants No appearance by or on behalf of Respondents
Judgment:	20 June 2014