Legal Research
Cases
Nottingham v Attorney-General

Nottingham v Attorney-General

Case [2022] NZHC 405 9 March 2022

Jurisdiction

Standing

Statutory Construction

Natural Justice & Procedural Fairness

Separation of Powers

Constitutional Law

Administrative Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001793 CIV-2021-404-001980

CIV-2021-404-001981 [2022] NZHC 405

UNDER Judicial Review Procedure Act 2016, Habeas Corpus Act 2001 and Declaratory Judgments Act 1908

BETWEEN

DERMOT GREGORY NOTTINGHAM and ROBERT EARLE MCKINNEY

Applicants

AND

ATTORNEY-GENERAL

Respondent

Hearing: 3 March 2022

Appearances:

D Nottingham and R E McKinney in person

M L Clarke-Parker and C Sinclair for Respondent

Judgment:

9 March 2022

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 9 March 2022 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Wellington Copy to: D G Nottingham
R E McKinney

NOTTINGHAM v ATTORNEY-GENERAL [2022] NZHC 405 [9 March 2022]

[1] The plaintiffs, Dermot Gregory Nottingham and Robert Earlie McKinney, have filed three proceedings in the High Court at Auckland. The first is a statement of claim dated 16 September 2021 under the Judicial Review Procedure Act 2016.1 The second is a statement of claim dated 22 September 2021 under the Declaratory Judgments Act 1908.2 The third is an application dated 24 September 2021 for a writ of habeas corpus.3

[2] Each proceeding is a challenge to the Government’s actions taken in response to the COVID-19 pandemic. They have been case managed together.

[3] In a minute dated 3 November 2021, I expressed the view that the three proceedings were unable to be sensibly adjudicated in their present form such that a hearing for them could not reasonably be allocated at that stage. I said that considerable refinement of the pleadings was required together with the filing of evidence (including expert evidence) to support the allegations made in the pleadings. The plaintiffs have not amended the pleadings, nor have they filed any evidence. They maintain that the Government’s actions are self-evidently unlawful.

[4] The respondent Attorney-General accordingly filed an application, dated 12 November 2021, to strike out the three proceedings, and to the extent that any part of the proceedings is permitted to proceed, seeking an order requiring the plaintiffs to give security for costs.

[5] The plaintiffs filed a notice of opposition to the respondent’s strike-out application on 17 February 2022. Then, on 28 February 2022, the plaintiffs filed an urgent interlocutory application for an injunction and immediate declaratory orders in all three proceedings.

1      CIV-2021-404-1793.
2      CIV-2021-404-1981.
3      CIV-2021-404-1980.

Notice of opposition

[6] The notice of opposition to the Attorney-General’s application filed by the plaintiffs is said to contain “inbuilt submissions”. The plaintiffs annex four documents to their notice:

(a)Medsafe Safety Report #39 – Adverse events following immunisation with COVID-19 vaccines;

(b)Video of a young man who allegedly had a severe adverse reaction to vaccination;

(c)Report on role of Centre for Adverse Reactions Monitoring (CARM); and

(d)NZ Herald article dated 16 February 2022 entitled “Big Outbreak predicted as NZ modellers take swipe at earlier ‘50,000 by Waitangi Day’” and article entitled “Applying Siracusa: A Call for a General Comment on Public Health…

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 Nottingham v Attorney-General

Details

AGLC: Nottingham v Attorney-General [2022] NZHC 405
Case: [2022] NZHC 405
Decision Date: 9 March 2022

CaseChat Overview and Summary

The applicants, Dermot Gregory Nottingham and Robert Earl McKinney, brought three proceedings in the High Court against the Attorney-General challenging the Government's actions taken in response to the COVID-19 pandemic. The first proceeding was a judicial review of the Government's actions. The second was a declaratory judgment proceeding seeking a declaration that the Government cannot threaten to use mandatory medical experimentation such as vaccination for COVID-19 as a form of coercion. The third was an application for a writ of habeas corpus. The proceedings were struck out. The applicants had not filed any evidence in support of their claims and instead sought to rely on publicly available documents and their interpretation of the Siracusa Principles. The applicants sought to challenge the Government's actions on a representative basis, however they had not filed any evidence that the New Zealanders they purported to represent had consented to be part of the suit. The applicants did not specify which mandates they were challenging and no specific mandates have been identified in the proceedings. The applicants also sought to challenge the administrative actions of the Court. The Court found that the proceedings were unable to be sensibly adjudicated in their present form and accordingly, were struck out. The Court found that the applicants' arguments were essentially political arguments about the efficacy and appropriateness of the Government's actions taken in response to the COVID-19 pandemic and did not disclose a tenable cause of action. The proceedings were a polemic, not pleadings.

Orders