Mathiesen v District Court at Timaru

[2014] NZHC 1397

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.