Mathiesen v Mathiesen

[2014] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV 2014-476-69 [2014] NZHC 2449

BETWEEN

GABRIELLE PAULETTE MATHIESEN

First Applicant

GORDON WALLACE CAMERON MCNAB and GABRIELLE PAULETTE MATHIESEN, being the Trustees of the Sweet Pea Family Trust

Second Applicants

AND

JAN HENRIK MATHIESEN Respondent

Hearing:	On the papers
Judgment:	6 October 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.15 pm on the 6th day of October 2014.

Copies to:           G P Mathiesen, First Applicant

G W C McNab, Second Applicant

J H Mathiesen, Respondent

MATHIESEN v MATHIESEN [2014] NZHC 2449 [6 October 2014]

[1]      At the hearing of the purported contempt proceedings on 15 September 2014, Mr McNab made reference to an application for habeas corpus.   The relevance of that was unclear to me, and the topic was not pursued.  Subsequent to the hearing, the plaintiffs filed, on 25 September, a document headed “Application for habeas corpus”. The essence of the application is said to be:

… to determine, whether or not being adjudicated bankrupt under the provisions of Insolvency Act 2006 and its companion-piece the Insolvency (Cross-border) Act 2006 has become a “detention” for the purposes of the law in respect of Habeas Corpus, in the context of the Imperial Laws Application Act 1988 following on the Constitution Act 1986.

[2]      This application was referred to me.  On 3 October 2014, Mr McNab sent an email to the Registrar, which has also been referred to me.  In it he says:

… we have no objection for our application being initially considered on the papers, but, it cannot be disposed of without hearing, by reason of its complexity from both a technical and an evidential perspective  …

[3]      Section  9(3) of the  Habeas  Corpus Act  2001  (the Act)  requires  that  the Registrar must allocate a date for hearing of applications under that Act within three working days.

[4]      I  direct  that  the  Registrar  is  not  to  allocate  a  hearing  date.    While  the application is entitled a habeas corpus application, it does not fall within the scope of the Act.  Section 6 of the Act provides the statutory basis for such an application.  It must be “an application to challenge the legality of a person’s detention”.

[5]      Mrs Mathiesen, to whom the application relates, is not under any form of 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.

[6]      A purported application for habeas corpus, based on similar grounds, was dealt with on the papers by Whata J on 22 November 2013.1   In that minute he said:

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

310, 22 November 2013.

[5]       I have endeavoured the best I can to understand the basis for the application for writs of habeas corpus.  The allegations are framed in such a way as to be largely difficult to comprehend but in short seem to be claiming that the bankruptcies were not valid and that the consequences of those bankruptcies for them are restraints on their liberty from which they should be freed.

[6]       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.

[7]       On that basis, while I have considered the documents, they are not to be accepted by the Registry.

[7]      A  further  application  for  habeas  corpus  was  made,  again  based   on Mrs Mathiesen’s status as an undischarged bankrupt.  It was also dealt with, also on the papers by Mander J  in a minute dated 28  February 2014.2     He refused the

application.  He said:3

An application for the issue of a writ of habeas corpus is not the appropriate procedure to consider the legitimacy of the bankruptcy adjudication.

[8]      The  proposition  asserted  by  this  application  and  the  earlier  applications, namely that the making of an order for adjudication amounts to a detention, is not arguable.  The applicants have been clearly told that on two occasions, and I say it again.  This application is not an application to which the Act applies, and the Act has no application to it.

[9]      The application is dismissed.

[10]     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 as an undischarged bankrupt as a detention, in whatever form that assertion may be made, are to be accepted for filing.

“A D MacKenzie J”

2      McNab v Matthews HC Timaru CIV-2014-476-11, 28 February 2014.

3 At [2].