Proceeding was pursuing cause of person subject to civil restraint order, court says
In habeas corpus proceedings concerning the children of a woman subject to an order under s 166 of the Senior Courts Act 2016, the New Zealand Supreme Court dismissed an application to recall its decision denying a request for review.
Under s 166, a civil restraint order required Ms Dunstan to obtain leave before filing any application before the High Court. Another order prohibited the removal of her two children from New Zealand.
Before the High Court, Ms Rolls applied for habeas corpus in connection with the alleged detention of the children of Ms Dunstan, who filed a supporting affidavit.
The High Court considered leave necessary to file the habeas corpus application because Ms Dunstan was the actual applicant.
On the merits, the High Court denied the habeas corpus application because it could not succeed. The High Court pointed out that prior litigation of the matter had previously reached the Supreme Court.
In Mr Donellan’s name, a proposed application sought leave to appeal directly before the Supreme Court from the High Court.
A deputy registrar of the Supreme Court rejected the leave application for filing because Ms Dunstan, not Mr Donellan, was the real applicant. The deputy registrar noted that Ms Dunstan had not obtained leave from the High Court to commence the proceeding.
On 16 February 2026, in Re Dunstan [2026] NZSC 4, Justice Kós of the Supreme Court upheld the deputy registrar’s decision on review and saw a breach of the s 166 order against “Ms Dunstan/Rolls.”
On 3 June 2026, in Re Dunstan [2026] NZSC 71, a panel of the Supreme Court dismissed the application to review Justice Kós’ decision. The panel found:
Mr Donellan applied to recall the judgment. He argued that Ms Dunstan’s two children were in fact the parties and that the Supreme Court had proceeded on an irrational and prejudicial basis.
Mr Donellan also requested the recusal of the judges who had dealt with both review applications.
In a supporting affidavit, Mr Donellan claimed that he was in a relationship with Ms Dunstan and was “happy to be a joint legal guardian” of the two children, who had agreed to him as their litigation guardian.
On 7 September 2026, in Donellan [2026] NZSC 123, the Supreme Court saw no very special reason for recall.
The Supreme Court rejected the complaint that it had wrongly treated the leave application as one within the scope of the s 166 order when it was not a strategy to evade that order. The Supreme Court described this position as an attempt to relitigate the review ruling’s merits.
Regardless of Mr Donellan’s status, the Supreme Court held that these proceedings were pursuing Ms Dunstan’s cause, which fell within the coverage of the s 166 order.
The Supreme Court found no reason to recuse the judges and no real grounds to doubt their ability to decide the matter objectively.
Here are some other recent decisions by the Supreme Court of New Zealand involving habeas corpus matters.
On 17 August 2026, upon finding an abuse of process, the Supreme Court struck out a fourth habeas corpus proceeding, which it characterised as a collateral challenge against a 2020 final judgment.
In a proceeding in which a man in prison sought a writ of habeas corpus, the Supreme Court issued a 10 June 2026 decision extending the time for him to apply for leave to appeal but ultimately refusing to grant such leave.
On 20 March 2026, the Supreme Court denied an application for leave to appeal against the Court of Appeal of New Zealand’s decision upholding the High Court of New Zealand’s denial of an application for a habeas corpus writ under the Habeas Corpus Act 2001.
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