Hunia v Parole Board at Wellington CA145/01 [2001] NZCA 457; [2001] 3 NZLR 353; [2001] NZAR 827; (2001) 15 PRNZ 655 (21 June 2001)

Last Updated: 11 June 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 145/01

BETWEEN RICHARD CLARENCE HUNIA

Applicant

AND THE PAROLE BOARD AT WELLINGTON

First Respondent

AND THE DEPARTMENT FOR CORRECTIONS

Second Respondent

AND THE SUPERINTENDENT, AUCKLAND PRISON

Third Respondent

Hearing: 21 June 2001

Coram: Richardson P Gault J Hammond J

Appearances: T Ellis and D La Hood for Applicant

A S Butler and M-J Thomas for Respondents

Judgment: 21 June 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] We are satisfied that the court does not have jurisdiction to hear the proposed appeal.

[2] Mr Hunia filed an application for a writ of habeas corpus in the High Court in the form of a statement of claim seeking habeas corpus and in the alternative, and additionally, judicial review and other relief. Some 22 matters or grounds were raised in support. Robertson J ruled that the habeas corpus application under the new Habeas Corpus Act 2001 was restricted to the issues raised by two of those grounds

and that the others were susceptible to judicial review. The habeas corpus application was by consent adjourned to 2 July for a substantive hearing and the judicial review grounds are also to be heard at that time, along with the habeas corpus application.

[3] Mr Hunia seeks to appeal against the ruling that the matters raised in that latter category could only be heard by way of judicial review. In essence, Mr Ellis's argument is that 90% of the application has been put aside for habeas corpus purposes and, accordingly, that must be characterised as a determination refusing an application for issue of a writ of habeas corpus in that regard.

[4] As to appeals, s16(1) provides:

The provisions of the Judicature Act 1908 relating to appeals to the Court of Appeal against decisions of the High Court in civil cases—

(a) apply with respect to a determination refusing an application for the issue of a writ of habeas corpus; but

(b) do not apply to a final determination that orders the release from detention of a detained person unless the substantive issue is the welfare of a person under the age of 16 years.

[5] Thus, jurisdiction to appeal is confined to a determination refusing an application for the issue of a writ of habeas corpus. The Act clearly contemplates and provides for single applications for habeas corpus. In terms of s7(1) an application for a writ of habeas corpus must be made by originating application. Section 9(1) providing for urgency states: "An application for a writ of habeas corpus must be given precedence over all other matters before the High Court." Section 11(1) provides for interim orders for the release from detention of the detained person "pending final determination of the application". Importantly, s14(3) reads:

A Judge must determine an application by—

(a) refusing the application for the issue of the writ; or

(b) issuing the writ ordering the release from detention of the detained person.

[6] And s15(1) continues:

Subject to the right of appeal conferred by section 16, the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re-examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused.

[7] In the present case, Mr Hunia filed an application for a writ of habeas corpus. It remains alive. Two grounds remain extant. The application is to be heard on 2 July. It has not been determined.

[8] The right to appeal under s16 has not arisen. The proposed appeal is accordingly premature.

[9] The proposed appeal is accordingly dismissed for want of jurisdiction.

Solicitors

N Dunning, Wellington, for applicant

Crown Law Office, Wellington, for respondents