Wolfe v Department of Corrections

[2024] NZHC 3163

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2638

[2024] NZHC 3163

BETWEEN

SAMANTHA-JOYCE WOLFE

Applicant

AND

DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	On the papers
Representative:	C-M Royal for Applicant
Judgment:	30 October 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 30 October 2024 at 11 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

…………………………………

WOLFE v DEPARTMENT OF CORRECTIONS [2024] NZHC 3163 [30 October 2024]

Introduction

[1]    This is an application to review a decision of the Registrar to refuse to accept documents for filing, namely a document called “Application for Writ of Habeas Corpus” (Habeas Corpus Writ) submitted on 21 October 2024.

[2]    The present application for review was accepted for filing as an application under r 2.11 of the High Court Rules 2016. It was referred to me as Duty Judge.

Background

[3]    Samantha-Joyce Wolfe was named as the applicant in the Habeas Corpus Writ, with the Chief Executive, Department of Corrections named as respondent.

[4]    The grounds relied on indicated that Ms Wolfe was facing deportation, and alleged that she has been unlawfully detained since 15 October 2024 (i.e. as part of a deportation process).

[5] The application refers to “rights of appeal under s 61 of the Immigration Act 2009”. That provision is as follows:

61    Grant of visa in special case

(1)   The Minister may at any time, of the Minister’s own volition, grant a visa of any type to a person who—

(a)is unlawfully in New Zealand; and

(b)is not a person in respect of whom a deportation order is in force; and

(c)is not a person in respect of whom a removal order is in force.

(2)   A decision to grant a visa under subsection (1) is in the Minister’s absolute discretion.

[6] Prior to the present proceeding, there were attempts to appeal the s 61 decision, but those were not accepted for filing and/or declined because s 61 is not subject to appeal rights (the Minister has absolute discretion).

[7]    This review application does not concern the substantive merits of the  Habeas Corpus Writ, but rather whether it could be filed by another person who is not qualified as a lawyer to act for Ms Wolfe.

[8]    The Habeas Corpus Writ was submitted for filing by Clifford-Morgan Royal. The document states on the cover page that it is filed by:

Ko te wakaminenga o nga Hapu o Nu Tireni Waynne Underhill-Ripia.

[9]    On 21 October 2024, the Deputy Registrar replied to the filing email, advising that the Habeas Corpus Writ had not been accepted for filing. The reason given was that “Ko te wakaminenga o nga Hapu o Nu Tireni Waynne Underhill-Ripia” has no jurisdiction to represent and bring an application on behalf of the applicant.

[10]   The cover page of the review application states that it is filed by Clifford-Morgan ROYAL on behalf of Ms Joyce.

Legal principles

Habeas corpus

[11]   In   New   Zealand,   the   law   of habeas   corpus has   been   codified   by the Habeas Corpus Act 2001. Under that Act, any person who is illegally detained may apply for a writ of habeas corpus.1

[12]   Subject to certain exceptions, an application for writ of habeas corpus must be made to the High Court by originating application as set out in the High Court Rules.2 There are exceptions to this procedure:

1 Habeas Corpus Act 2001, s 6.

2      Section 7(1); High Court Rules 2016, r 19.2 (h).

(a)the High Court retains its inherent jurisdiction to hear and make an order on an oral application in circumstances of unusual emergency;3 and

(b)the provisions of a High Court Rule providing for directions by the Court before the hearing, or affecting the hearing of an originating application, or empowering the Court to convene a conference of the parties to an originating application, do not apply to an application for writ of habeas corpus.4

[13]No applicant may be disqualified for lack of capacity or standing.5

Authority to act

[14]   Ordinarily, an application needs to be filed by the applicant themselves or through a lawyer.

[15] Section 24 of the Lawyers and Conveyancers Act 2006 makes it an offence for a person who is not a lawyer to carry out work that is reserved for lawyers. Reserved areas of work include:6

(a)giving legal advice to any other person in relation to the direction or management of any proceedings that the other person is considering bringing, or has decided to bring, before the High Court;

(b)appearing as an advocate for any other person before the High Court; and

(c)representing any other person involved in any proceedings before the High Court.

3      Section 7(2).

4      Section 7(3).

5      Section 7(6)

6 Lawyers and Conveyancers Act 2006, s 6 definition of “reserved areas of work”.

[16]   There are sound policy reasons why a solicitor rather than a layperson should carry out such reserved work. A solicitor is ethically constrained, is trained and competent to give careful attention to the validity of the proceedings and the interests of the client, a solicitor recognises the duties and responsibilities that are owed to the court and other parties in the conduct of litigation and is less likely to require indulgences in the rules of procedure or to use court processes for vexatious purposes.7

[17]   This Court has the power to make exceptions.8 However, that is a jurisdiction to be exercised with circumspection.9 For example, in situations of urgency where the applicant has no ability to contact a lawyer or bring the application in person, then it may be possible for another person to bring the application by leave of a Judge.

[18]   Reflecting the above framework, authority to file documents in the High Court is governed by rule 5.36 of the High Court Rules. This recognises that the commencing document (and subsequent ones) may be filed by:

(a)individuals acting in person filing documents for themselves; or

(b)a solicitor acting for the party, so long as they satisfy the requirements in r 5.36(1) of holding a current practising certificate and authorisation to file the document.10

[19]   In addition, r 5.36(1) does not prevent a person from filing a document on behalf of a party if the person is authorised by, or on behalf of, the party to file the document, and:11

7      See The Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [34].

8 Lawyers and Conveyancers Act, s 27(1)(b)(ii) and exercising its inherent jurisdiction — see Fairfax v Ireton [2009] 3 NZLR 289 (CA) at [77], citing Black v Taylor [1993] 3 NZLR 403, (1993) 6 PRNZ 690 (CA).

9      Black v Taylor, above n 8, at 406 lines 32–34.

10     Note that r 5.36(3) of the High Court Rules contains another exception permitting Australian solicitors to represent a party by filing documents.

11     High Court Rules, r 5.36(2).

(a)is not the holder of a current practising certificate as a barrister or as a barrister and solicitor issued under section 39(1) of the Lawyers and Conveyancers Act; but

(b)is allowed to appear for, or to represent, the party, in connection with the proceedings, under section 27(1)(b)(i) or (ii) of the Lawyers and Conveyancers Act.

[20]As discussed in Farrier v Saad:12

(a)Section 27 is not an enabling provision. The section provides no power or discretion to make an appointment; it operates where one has been made.

(b)Section 27 is a protective provision for persons already appointed in a representative role in compliance with a legislative provision that allows that role or is permitted by the Court. The title of s 27 (ss 21, 22, 24 and 26) is an exemption to prosecution where offences are committed pursuant to those sections. It does not create an exemption or permission to act contrary to ss 21, 22, 24 and 26.

Analysis

[21]   On the facts, the Registrar did not make any error in refusing to accept the Habeas Corpus Writ for filing.

[22] Ms Wolfe has standing to make such an application, but she did not make the application acting in person, nor was it made by any qualified lawyer instructed to take such a step on her behalf. Rather, the person filing the document (who is not a lawyer) has purported to undertake this “reserved work” in breach of s 24 of the Lawyers and Conveyancers Act, without seeking or obtaining any exemption from this Court to do so.

12     Farrier v Saad [2024] NZFC 2588 at [22].

[23] Even if such an exemption had been sought in advance, I would not have considered it appropriate to grant an exception in this case. This would undermine the policy reasons for lawyers doing that reserved work,13 without any good reason put forward for Ms Wolfe not having instructed legal representation before now, and in circumstances where there is no apparent illegality given the Minister’s absolute discretion to make the decision under s 61 of the Immigration Act.

[24]   In any event, I understand that the habeas corpus issues are now moot because Ms Wolfe has been deported and is no longer in the country. Accordingly, this Court has no jurisdiction to order her detention or otherwise outside of the jurisdiction, and in any event I would assume she is no longer detained.

[25]   The review document filed on 24 October 2024 also named the Minister and Associate Minister of Immigration as respondents and purported to seek injunctive interim relief against them, pending:

(a)determination of the application for review against the Registry’s decision, and leave being granted to file the Habeas Corpus Writ; and

(b)the substantive relief sought in the Habeas Corpus Writ being granted, namely release from detention.

[26]   Given my analysis set out above, there is no proper basis for the Habeas Corpus Writ to be accepted for filing and heard, so I also make orders on my own motion under r 15.1 striking out the proceeding,  to  the extent that the document  filed on  24 October 2024 purported to be any wider application for judicial review or interim relief.

Result

[27]I dismiss the application for review of the Registrar’s decision.

13 See [16] above.

[28]   On my own motion, I strike out the proceeding under r 15.1, to the extent that it purports to be wider and join other respondents.

[29]   In accordance with r 5.35B of the High Court Rules, I record that there is a right to appeal this decision.

O’Gorman J