PONSONBY CHAMBERS AND NEW ZEALAND POLICE

[2024] NZHC 2680

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-483

[2024] NZHC 2680

UNDER

Habeas Corpus Act 2001

IN THE MATTER OF

an application for a writ of habeas corpus

BETWEEN

PONSONBY CHAMBERS

Applicant

AND

NEW ZEALAND POLICE

First Respondent

AND

MINISTER FOR POLICE

Second Respondent

AND

POLICE COMMISSIONER

Third Respondent

AND

ATTORNEY-GENERAL

Fourth Respondent

Hearing:	On the papers
Judgment:	17 September 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 17 September 2024 at 9.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

PONSONBY CHAMBERS v NEW ZEALAND POLICE [2024] NZHC 2680 [17 September 2024]

[1]        On 12 September 2024 the Court received an application for a writ of habeas corpus said to be brought on behalf of Jessie Clark. The intituling to the application states the applicant is “Ponsonby Chambers” and, in the application, Ponsonby Chambers is described as “an entity advocating for Jessie Clark”.

[2]        A check of the Companies Office Register shows that Ponsonby Chambers Ltd is a limited liability company and Ms Tanya Dunstan is it director and shareholder. The supporting affidavit is sworn by Melanie Rolls and Ms Dunstan acknowledges, in an email to the Court, that she has legally changed her name to Melanie Rolls over a year ago.

[3]        By minute I issued on the same day as the application was received, I explained there were difficulties with the application being brought:

(a)by a company without legal representation; or

(b)by Ms Rolls (as she now calls herself) when she is subject to an order under s 166 of the Senior Courts Act restricting her from commencing or continuing a civil proceeding.1

Nothing filed by Ms Dunstan subsequently disputes these understandings.

[4]        In respect of the ability of Ponsonby Chambers Ltd to bring the application, a company has no right to be represented in the conduct of a case in the High Court except by a barrister or solicitor. Here there is no lawyer acting for the company. Instead, Ms Dunstan has purported to take all steps on behalf of Ponsonby Chambers Ltd. The leading case confirming this principle is Re G J Mannix Ltd.2 The Mannix rule has been reaffirmed in subsequent decisions of both this Court and the Court of Appeal.3 While the Court retains a discretion to allow for non-lawyers to appear on behalf of a company, this is for an exceptional circumstance only. I am satisfied that

1      In the matter of an order against Tanya Felicity Dunstan [2023] NZHC 3176.

2      Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 311.

3      See, for example, New Zealand Cards Ltd v Ramsay [2012] NZCA 285, and Dreamtech Designs and Productions Pty Ltd v Clown Fish Entertainment Ltd [2015] NZCA 491 at [6].

this is not such a case. The company has no standing to bring a claim on behalf of  Mr Clark.

[5]        In terms of Ms Dunstan’s role in the proceedings she has no ability to bring this application, without leave, given she is subject to a s 166 order. Her change in name does not affect the prohibition on her bringing civil proceedings without leave.

[6]        Furthermore, I do not have evidence provided by either Ms Dunstan or Ponsonby Chambers Ltd that they have authority to act on behalf of Mr Clark. Ordinarily, the applicant in proceedings under the Habeas Corpus Act 2001 should be the person restrained. If exceptional circumstances arise where the detained person has no ability to contact a lawyer or bring the application in person, I accept that it may be possible for another person to bring the application. However, they must satisfy the Court that they have the authority or consent of the person restrained.4

[7]        In the present case, I can see no reason why Mr Clark could not bring the application in his own name. While he is in detention, he is clearly communicating with Ms Dunstan, as she purports to be in a position to convey to this Court his various complaints about what has happened to him since he was detained in custody.   If   Ms Dunstan can communicate with Mr Clark, then there can be no reason why he cannot instruct a solicitor or have Ms Dunstan organise this. The Court has on numerous occasions considered applications for habeas corpus which are advanced by persons in custody.

[8]        Accordingly,  I  determine  that  neither  Ponsonby   Chambers   Ltd,   nor  Ms Tanya Dunstan/Ms Melanie Rolls have established that they have standing or authority to bring this application.

Application for recusal

[9]        Ponsonby Chambers Ltd has also purported to file what is described as an “Urgent Memorandum for the recall and recusal of Justice Dunningham for a Writ of Habeas Corpus filed for Jessie Clark on 6 September AND 12 September 2024 on the

4      Re Winara Parata (1880) 1 OB a& F (SC) 31.

grounds of prejudicial bias, perceived conflict of interest and breach of Habeas Corpus Act 2011 s 3, s 9, s 14.”

[10]      I am satisfied there are no proper grounds for my recusal. The fact I have declined earlier applications for a writ of habeas corpus by Mr Clark5 does not constitute a ground for recusal. I have, in my decisions, set out my reasons for declining the application. Mr Clark has a right of appeal, which he has exercised, unsuccessfully, in respect of the first of these decisions.6 Nothing raised in the urgent memorandum (even assuming Ponsonby Chambers Ltd or Ms Dunstan have standing to bring the application) identifies a proper ground of recusal.

The application for a writ of habeas corpus

[11]      I now turn to what to do with the application itself given the concerns I have raised in my minute dated 12 September. If the application had disclosed an arguable claim to unlawful detention, I would look to find a practicable and expeditious way forward, so that the substance of the application could be addressed. However, I am not satisfied there is any merit to the application for the following reason. The detention which is the subject of the application is the decision by Judge Q C S Hix on 12 September 2024 to decline Mr Clark bail when he was arrested and brought before the Court for alleged offending while on bail.7 Mr Clark is now facing further charges of possession of cannabis for supply and failure to allow the police to search his cell phone. In light of the totality of charges Mr Clark is facing, and the risk of offending while on bail, the Judge declined his application to be readmitted to bail and, instead, remanded him in custody. There is a signed warrant issued by the District Court on 12 September 2024 detaining Mr Clark in custody until Tuesday     1 October 2024 when he next appears.

[12]      As I have pointed out in my minute dated 12 September 2024, and in my previous two decisions involving applications for a writ of habeas corpus by Mr Clark, a Judge of this Court is not entitled to call into question a ruling as to bail by a Court

5      Clark v Police [2024] NZHC 2078, Clark v Police [2024] NZHC 2644.

6      Clark v Police [2024] NZSC 106.

7      Habeas Corpus Act 2001, s 14(2)(b).

of competent jurisdiction. Mr Clark has the right to appeal this bail decision. That is the appropriate course for him to take.

[13]      Accordingly, because the applicants have not established they have standing to bring the application and, in any event, it discloses no reasonably arguable case for the grant of a writ of habeas corpus, I strike out the application pursuant to High Court Rule 15.1.

[14]      Given that I have done this on my own motion, and without hearing from the parties, I advise there is a right of appeal to this decision.

Copy to:
Ms Tanya Dunstan/Ms Melanie Rolls