[1] On 17 March 2014, Mr McNab purported to make an application to the Chief Justice and Chief High Court Judge for a direction that the High Court immediately complete the process of hearing two applications for habeas corpus, filed on 26 and
28 February 2014 respectively. Mr McNab contended that the two applications had been determined without a “hearing”.

[2] The application of 26 February 2014 was made on behalf of Ms Mathiesen, a Norwegian citizen. She alleges that she has been “detained” as a result of her adjudication in bankruptcy. Ms Mathiesen was (wrongly, she submits) adjudged bankrupt by this Court on 11 June 2013. The order was made by Associate Judge Matthews, on the application of Ms Mathiesen’s former husband. It is submitted that the order ought not to have been made because Ms Mathiesen does not have a New Zealand domicile and, in any event, a person cannot be adjudged bankrupt on the application of a spouse. Ms Mathiesen claims that she has been “detained” as a result of the order of adjudication because she is unable to travel overseas without the consent of the Official Assignee. That being so, she contends that she is “detained” within the borders of New Zealand.

[3] The application of 28 February 2014 was brought by Mr Spurr. Save for his citizenship, he is in a similar position to Ms Mathiesen. Mr Spurr was adjudged bankrupt on 30 April 2013, also by Associate Judge Matthews. It is submitted that the order was wrongly made because of irregularities in the documents filed in support of the bankruptcy application. While Mr Spurr is a New Zealand citizen, the same complaint about “detention” is made; namely that he cannot travel overseas to attend to personal business as a result of the order of adjudication.

[4] On 28 February 2014, Mander J dismissed each application on the papers, in identical terms:1

(a) On the application relating to Ms Mathiesen, Mander J said:

1 McNab and Mathiesen v Matthews HC Timaru CIV-2014-476-0011, 28 February 2014 and
Spurr v Matthews HC Timaru CIV-2014-476-0012, 28 February 2014.

[2] The application represents a challenge to the decision of this Court adjudicating Ms Mathiesen bankrupt on 11 June 2013, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McNab v Matthews

Details

AGLC: McNab v Matthews [2014] NZHC 580
Case: [2014] NZHC 580
Decision Date: 26 March 2014

CaseChat Overview and Summary

The applicants, Gordon Wallace Cameron McNab, Gabriele Paulette Mathiesen, and Stuart Graeme Spurr, sought an order for a writ of habeas corpus against the Associate Judge Matthews and others, arguing that they had been wrongly adjudged bankrupt and were being unlawfully detained as a result. McNab, representing the applicants pro se, contended that the previous applications for habeas corpus were dismissed without a proper hearing and sought a rehearing. The central legal issues were whether the previous applications required a hearing, whether the applicants were "detained" for the purposes of the Habeas Corpus Act 2001, and whether the applicants' adjudications in bankruptcy were wrongful.

The court found that a hearing was indeed required for habeas corpus applications, even if the application seemed hopeless. However, upon reconsidering the merits of the two initial applications, the court concluded that Mathiesen and Spurr were not "detained" because their orders of adjudication remained valid until set aside and they could seek permission to travel overseas if needed. The court also found that the applications were an abuse of the Act as it was never intended to apply to such cases.

The court dismissed the applications and granted McNab's application for a rehearing. The court emphasised that further applications regarding the same detentions would not be accepted and ordered that the applications be served only on the Crown. The applicants have the right to appeal the decision as the court has finally dealt with the issues raised in the applications.

Orders