Applicant sought to reopen a 2020 finding that two children were not unlawfully detained
The Supreme Court has struck out an application for leave to appeal after finding that a fourth habeas corpus proceeding concerning two children was plainly an abuse of the court’s process.
In Donellan v Attorney-General [2026] NZSC 110, he applicant filed the application in February 2026, saying he was the children’s stepfather and was seeking appointment as their litigation guardian. No such appointment had been made. The application challenged parenting orders made in the Family Court, alleging that the orders had resulted in the children’s unlawful detention.
The proceeding followed three earlier habeas corpus applications brought by the children’s mother. Two applications filed in 2020 were unsuccessful in the High Court and on appeal to the Court of Appeal. An application for leave to appeal one of those decisions to the Supreme Court was dismissed in 2021 as an abuse of process.
The mother was subsequently made subject to an order under s. 166 of the Senior Courts Act preventing her from bringing proceedings without first obtaining leave from the High Court. In January 2026, she filed another habeas corpus application under the pseudonym “Melanie Rolls”. That application was dismissed, including on the basis that it sought to reopen a matter already determined.
The applicant then filed the February 2026 proceeding in the High Court. The court struck it out under ss. 14 and 15 of the Habeas Corpus Act 2001, finding the matter was res judicata because the same issues had previously been determined. The court subsequently struck out an attempted appeal under s. 164B of the Senior Courts Act.
The Supreme Court considered the operation of new ss. 164A to 164C of the Senior Courts Act, which came into force on 1 February 2026, to address civil proceedings that are “plainly abusive” of court process.
The Supreme Court said access to the courts was constitutionally important and that findings of abuse should not be reached lightly. However, it concluded that no further submissions were required and that the present application could fairly be determined on the papers.
The court found that a final judgment in 2020 had established that the children were not unlawfully detained. The applicant’s application identified no change in circumstances capable of undermining that judgment. The court concluded that the fourth habeas corpus proceeding was a collateral challenge to the 2020 judgment and was plainly an abuse of process.
The notice of application for leave to appeal was therefore struck out under s. 164B(2)(a). The court confirmed that the order constituted a first strike-out for the purposes of ss. 164B and 164C. A further strike-out order concerning another proceeding filed within two years could trigger a statutory restraint requiring High Court leave before further civil proceedings could be commenced or continued.
