Judge finds request for leave to appeal plainly abusive of court process
In striking out an application for leave to appeal in a habeas corpus matter, the New Zealand Supreme Court saw no reason for a firm that was not a party to the previous proceedings to be a party before it.
Tatana v Luke Cunningham Clere [2026] NZSC 139 involved the appellant’s detention in prison on criminal charges under a warrant issued by the Gisborne District Court. Judge Cathcart of the District Court declined an application for admission to bail.
The appellant applied for a writ of habeas corpus. On 10 March 2025, Justice Grice of the High Court denied the application upon confirming that the appellant had been subject to lawful detention under a valid warrant.
On 18 September 2025, the High Court received an email from the appellant and considered it an additional habeas corpus application.
In a minute dated 23 September 2025, Justice McQueen of the High Court rejected the further habeas corpus application because the Crown’s inquiries showed that the appellant was not in detention by then.
On 18 September 2025, the appellant applied before the Court of Appeal for an extension of time to appeal against Justice Grice’s denial of her habeas corpus application. Justice Cooke of the appeal court directed the determination of the application, deemed not urgent, on the papers.
On 15 April 2026, the Court of Appeal ruled that granting an extension would not serve the interests of justice.
The appeal court noted the five-month delay, the lack of an explanation for the delay, and the mootness of the proposed appeal, as the appellant was no longer in detention.
Around two months out of time, the appellant asked the Supreme Court for leave to appeal from the Court of Appeal decision. She named as the respondent Luke Cunningham Clere, a law firm that was not a party to her High Court application or to her appeal before the appeal court.
The appellant alleged corruption on the part of the Court of Appeal of New Zealand and a conflict of interest because Justice Cooke had since become a Supreme Court judge.
The registrar accepted the application for filing. However, the registrar referred the application to a Supreme Court justice as plainly an abuse of the court’s process under s 164A(2)(a) of the Senior Courts Act 2016.
Under s 164B(2)(a) of the Senior Courts Act, the Supreme Court found it appropriate to strike out the notice of application for leave to appeal.
If a subsequent order struck out another proceeding the appellant filed before a senior court within two years under s 164B(2)(a), this judgment would restrain her from commencing or continuing a civil proceeding in a senior court, another court, or a tribunal without first getting leave of the High Court of New Zealand until whichever was earlier between these dates:
Upon reviewing the application without needing additional submissions, the Supreme Court described the application as plainly abusive of its process. The court determined that the appellant made irrelevant, baseless, and abusive allegations in pursuing an extension.
In finding an abuse of process, the Supreme Court saw:
The Supreme Court added that it lacked jurisdiction to issue the appellant’s requested judgment.
The Supreme Court concluded that making the respondent law firm respond to a legally untenable application that did not address the leave criteria and that sought a judgment the court lacked jurisdiction to grant would be unfair.
Here are some of the Supreme Court of New Zealand’s other recent decisions involving habeas corpus matters.
In habeas corpus proceedings concerning the children of a woman subject to an order under s 166 of the Senior Courts Act 2016, the Supreme Court issued a 7 September 2026 decision denying an application to recall its decision denying a request for review.
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.
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