Nottingham v Attorney-General

[2023] NZHC 469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000364

[2023] NZHC 469

IN THE MATTER

of an application under Habeas Corpus Act 2001

BETWEEN

DERMOT GREGORY NOTTINGHAM

Applicant

AND

ATTORNEY-GENERAL and MINISTER OF INTERNAL AFFAIRS

Respondent

Hearing:	(On the papers)
Judgment:	10 March 2023

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 March 2023 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Law, Wellington (V McCall) Copy to:  Applicant

NOTTINGHAM v ATTORNEY-GENERAL [2023] NZHC 469 [10 March 2023]

[1]                  The Registrar has referred this file to me as duty judge. Mr Nottingham purports to make an application for writ of habeas corpus and other related orders.

[2]                  Although the application is styled and headed “Application for a writ of Habeas Corpus and other related orders” the orders actually sought in the application are:

1]          The immediate release of the full unredacted file with a declaration under oath and subject to perjury and contempt of court if untrue – that the full unredacted file concerning the application and investigation of the applicant has been supplied to the applicant from all of the defendants as best as they can be identified.

2]          The immediate identification of all persons and actors involved in hindering the supply of a New Zealand Passport to the applicant, and with a declaration under oath and subject to perjury and contempt of court if untrue, that all persons and actors have been identified.

3]          That the first defendant be made to immediately issue a passport to the applicant and be made to confirm that no “secret” material is on the passport which would hinder the passports normal use as a viable document to allow the applicant to enter any country that he wants to.

4]          That the first defendant be made to supply their reasoning for not informing the applicant of the investigation, and on what grounds the investigation is lawful and applicable to the hindering of the free travel of the applicant without immediately notifying the applicant of the lawful grounds.

5]          An order for damages, or compensation, of $100,000.00 pursuant to equity, all of the common law relating to breaching guaranteed rights under the NZBORA 1990 and the ICCPR, and the anti-corruption guarantees.

[3]                  The relief sought is clearly more in the nature of judicial review (including Baigent damages) rather than habeas corpus.

[4]                  Mr Nottingham’s complaint appears to be that the Department of Internal Affairs is, in his view, deliberately (and perhaps acting under direction) frustrating his attempt to obtain a passport. He suggests the delay and the issue of a passport to him is a result of collusion and corruption.

[5]                  Mr Nottingham argues his liberty is affected and he is detained because under the New Zealand Bill of Rights Act 1990 (NZBORA) discrimination is unlawful and every citizen is guaranteed the right to leave New Zealand: s 18(3).

[6]                  The writ of habeas corpus is available to challenge the legality of a person’s detention. Detention in the Habeas Corpus Act 2001 includes every form of restraint of liberty of the person. Mr Nottingham’s circumstances do not meet that definition. His liberty is not restrained. He is at large within New Zealand and free to travel, both within and outside New Zealand, subject only in the case of travelling outside New Zealand, he first has to have a valid passport.

[7]                  A passport is an internationally recognised travel document which permits the bearer to cross international borders. Governments require persons to have a valid passport to leave or re-enter countries.

[8]                  There is a difference between Mr Nottingham’s rights under NZBORA, including the right to leave New Zealand and the purpose of the ancient writ of habeas corpus which is directed at ordering an appropriate authority to deliver up the applicant. Mr Nottingham is not in custody nor is his liberty otherwise restrained. The difficulties Mr Nottingham may be experiencing in obtaining a passport and the delay in issuing him a passport do not amount to a detention for the purposes of the Habeas Corpus Act. That is obvious from the form of writ in the schedule to the Act.

[9]                  Mr Nottingham’s remedy is to seek judicial review of any decision to decline him a passport or to seek mandamus and require the Department of Internal Affairs to process his application for passport. Subject to the point in the following paragraph, if Mr Nottingham wishes to pursue the matter he should re-issue the proceeding as an application for judicial review. I make no comment as to the merits of any such application.

[10]               There are a number of frivolous, and/or vexatious allegations/statements contained in Mr Nottingham’s papers, including his reference to a category of unknown second respondents as “Corrupt Actors of the legislature, the Judiciary, and the Executive” and similar objectionable material in para 10 of his affidavit. Those are not to be repeated. If they are the Registrar is not to accept the documents for filing.

Result

[11]The application for habeas corpus is dismissed.

Venning J