Dimwitted habeas corpus duo

Written By: - Date published: 12:50 pm, May 11th, 2020 - 28 comments
Categories: covid-19, health, law - Tags: , , , , ,

The well-known duo of Dermot Nottingham and Robert McKinney were the appellants in habeas corpus High Court case against Arden, Bloomfield, and Stuart-Black over the covid-19 lockdown. As was usual for this pair, the grounds that they made their case on were completely flawed, failed to be presented correctly, and make a damn good case against self-representation. It is everything that I have come to expect from this pair of incompetent dimwits.

The Court of Appeal denied their appeals based on :-

[25] The restrictions on movement imposed by the COVD-19 Alert Level 3 order do not involve restrictions upon the liberty of Mr Nottingham and Mr McKinney as Parliament intended liberty to be understood in the Act. Mr Nottingham and Mr McKinney have not therefore been detained for the purposes of the Act.

The court also noted that there appeared to be no reason to allow a longer name suppression

[34] There is no factual basis upon which we can conclude that Mr Nottingham, his family, or Mr McKinney will suffer physical harm if the public knows they are the individuals who have initiated these proceedings. It is possible they may receive some unwelcome comments and that they may be upset by what others have to say. Those are, however, not proper grounds for granting them name suppression, even on an interim basis.

The Court of Appeal also pointed out

[36] Mr Nottingham and Mr McKinney have referred to the respondents in person. In doing so, Mr Nottingham has engaged in political comments of a personalised nature, particularly against the Prime Minister. Respondents in applications for habeas corpus should be referred to by the office they hold or by naming the Attorney-General as the respondent. If the matter proceeds further, that correction should be made by Mr Nottingham and Mr McKinney.

None of this isn’t a surprise to any who know of them. The duo at their failed business Advantage Advocacy have been incompetent at investigation, court documents, disclosures to court, as business people, and generally in my opinion even as members of humanity.

About the only things that they seem to have been successful at it is, in my opinion :-

Personally I took a great deal of pleasure in 2018 helping to bankrupt Dermot Nottingham as a judgment creditor.

In my case this was over a private prosecution the Nottingham made against APN, Alliance Press, Pete George and myself for a purported contempt of court. It is an apt demonstration of their lack of any kind of expertise, legal or otherwise.

When heard in the Auckland District Court against APN and myself, after a number of days of prosecution by Nottingham assisted by ‘expert’ and McKensie friend assistance of McKinney, it was thrown out within minutes of the defense starting. This was because simple legal incompetence described in these few selected sections of the appeal judgement.

[14] Judge Collins dismissed the case against APN because Mr Nottingham did not have the right defendant. At the appeal hearing, Mr Nottingham conceded that APN was not the publisher of the relevant publication. In effect, he thereby conceded that APN should not have been prosecuted in the first place. If that was the case, any application to appeal could not possibly have succeeded.

[16] Judge Collins also held that Mr Nottingham’s evidence at trial fell well short of proving that Mr Prentice was the author or guiding hand behind the website alleged to have made the offending publication. He ruled that Mr Prentice had no case to answer.

[17] Before me, Mr Nottingham did not attempt to explain how, on any appeal, he could remedy this evidential lacuna. Rather, he sought to argue:
(a) that he, as prosecutor, should not have been required to bring the best available evidence to the Court;
(b) he should not have been required to prove every element of the charges; and
(c) that counsel for the defendants had an obligation to advise him if there was an error in his charging documents.

[18] These assertions demonstrate Mr Nottingham’s fundamental misunderstanding of the criminal justice system. They are untenable propositions, and it was frivolous and vexatious to attempt to advance them.

Essentially in the district court the lawyer for APN stood up and said that they had no financial interest in NZ Herald at the time of the purported breach of court orders. They’d sold their interest to NZME the year before.

My lawyer stood up and said that Nottingham had failed to establish that I had anything to do with this website or with the purported offending article.

This court ordered costs from both the district court and the high court appeal were just part of the large amount of actual court ordered costs that had unpaid and led to Dermot Nottingham’s bankruptcy. The site Autofile discussed the bankruptcy

Dermot Gregory Nottingham – a character well-known to many people in the automotive industry – has been declared bankrupt.

That was the outcome of a hearing in Auckland High Court on September 11 at which he said creditors had paid him about $2 million yet he was still penniless. The amount includes around $250,000 in costs owed to ex-defendants in failed prosecutions.

As far as I am aware, none of the ‘creditors’ apart from those with court costs ever bothered to substantiate with documentation that they’d paid or given services to Nottingham. Nottingham also did not provide any substantive evidence of most of the debts himself apart from an assertion that they existed. In short, outside of the court ordered costs, the debts were in my opinion just figments of imagination. The intent of the farcical proposal appeared to be to avoid the legal force of a bankruptcy and to possibly in the future to pay cents on the dollar of court costs.

This is a common scam for bankrupts. I’m pleased to say that it failed.

The court heard that, on June 26, Nottingham initiated a proposal pursuant to part 5(2) of the Insolvency Act. This contemplates an insolvent person putting a plan to creditors as an alternative to bankruptcy. A meeting of creditors is convened and can vote on the proposal. If a simple majority in number and a three-quarters majority in value vote in favour, the insolvent may apply to the court for approval. If the proposal is approved, all creditors are bound.

Nottingham’s judgement creditors in this matter were the Honeys, Taka and four others. They voted against the proposal that other creditors voted for. The number and value of votes in favour “dwarfed” those of the judgement creditors and a resolution to accept the proposal was passed. On that basis, on July 5, Nottingham started his action seeking the court’s approval to the proposal.

The Honeys and Taka appealed the decision to recognise creditors who voted for the proposal. It was common ground that if that appeal was successful, Nottingham’s application for court approval must fail because the outcome would be that 100 per cent of his creditors in number and value voted against it. The basis on which they appealed against the decision to accept certain creditors’ claims and allow the creditors to vote on the proposal was “straightforward”.

The judge ruled the Honeys and Taka established Whitley, the Auckland-based accountant and trustee nominated by Nottingham, was wrong to have accepted claims of general creditors and allowed them to vote, so he overturned his decision.

The court ordered costs with the Honeys and Taka, while mired deeply in appeals and multiple tribunals (see this short overview), was also largely based on another failed private prosecution. Overall this saga of cases with appears to have started in 2011/12 and is still running as far as I can tell.

I can see a place for private prosecutions in our legal framework. They provide way to bypass the often quite arbitrary decisions of the police about if they wish to charge and bring cases to court. But frankly if this is what private prosecutions are actually used for, then I think that removing the ability to take private prosecutions is preferable to having them. The current system just seems to encourage incompetent vexatious litigation in criminal law.

At the very least people taking private prosecutions should be required to have put up security for potential costs and/or be required to take legal advice and representation to make their case. Neither the private prosecution taken against myself and others, nor the one against the Honeys and Taka appear to have had any obvious merit in the eyes of the court when they have actually been heard.

An alternative would be to follow the principle of the civil law. In civil court, since 2006, there has been an ability to declare someone to be a vexatious litigant. A recent decision also specified that such orders are time limited.

In the meantime, there is also a completely valid judicial review of the use of s70 of the Health Act 1956 underway. See Andrew Geddis review of the legal basis for both sides in Pundit. Hopefully this will be competently argued rather than having munters like Nottingham and McKinney screw it up. From a historical perspective, I suspect that this is a more of a legal accident than anything else – the epidemic portions of the Act are still effectively those on the Health Act of 1920, and the court will no doubt look at the intent of the Act based what the world looked like in 1920 and 1956 and apply the same logic.

Hopefully I’ll get time to write on that.

28 comments on “Dimwitted habeas corpus duo ”

  • Comments are now closed

  1. Dennis Frank 1
    11 May 2020 at 1:33 pm

    Serial litigants sufficiently vexing as to be vexatious, huh? Jeez, what a saga (or three). Some folks may get born sociopathic, but if this crowd got warped by culture it would be interesting to know how that happened.

    So the Court of Appeal finding hinged on how "Parliament intended liberty to be understood in the Act". I wonder how they know the intent of parliament. Do they discern it by reading between the lines of the relevant Act? Better than tea leaves, I guess.

  2. Pete George 2
    11 May 2020 at 1:35 pm

    What lprent says here shows how bad McKinney and Nottingham have been to an extent – but searching for judgments at NZLII only shows the tip of the iceberg as many lower court judgements don't go online. For example in their hopeless case against me and Allied press (charges withdrawn just after the APN and lprent charges were dismissed) there is just one judgment online out of five, and there were about 12 court appearances required.

    I was charged with two offences, both named a post at The Standard (that could have been a copy/paste error – my website was named in the Allied Press charges).

    The initial court submission that led to the charges claimed a conspiracy between police, court officials and media. And it alleged I had colluded with lprent (two weeks after he had banned me from here for 12 months, I thought that was hilarious).

    One thing that was annoying was how courts allowed Nottingham and McKinney to ignore and abuse court processes repeatedly.

    I think the prosecutions themselves were partly just vindictive grudges (Cameron Slater and Marc Spring were involved), but Nottingham was using them to try to make some sort of defence in for the charges he was facing – suppression breaches and criminal harassment, for which he was eventually convicted. But while he was facing those charges he and McKinney (and the others) ran a campaign of harassment against me, including demanding a judge put me in prison.

    And our case was minor compared to others – one that started over a business dispute from 2009 was still being dealt with in court late last year (and could have be appealed).

    I think the courts are being more strict in preventing the lame litigants from wasting court time, but they as their Covid habeas corpus failure shows they are still trying. Actually last month Nottingham failed in another habeas corpus attempt to get off his home detention sentence. In yet another attempt he is going to the Supreme Court later this month – but that could backfire, as if the home detention is ruled invalid the alternative was prison (on Crown appeal his starting sentence was 31 months prison).

    Like Lynn I hope the High Court refuses to take on their judicial review and leaves it to someone legally competent, as the Borrowdale application appears to be. That may end up being judged moot, but clarification of the legality of the lockdowns is important.

    • greywarshark 2.1
      11 May 2020 at 9:22 pm

      This is an interesting point.

      One thing that was annoying was how courts allowed Nottingham and McKinney to ignore and abuse court processes repeatedly.

      I feel that the legal system is flabby and ineffective when it comes to people who are litigious and those who are wily and dishonest. Surely it can be improved so why not?

      And the Small Claims Tribunal is just given the run-around by some people and a lot of time and money by claimants, and time by those concerned with serving papers also, when people are adept at not fixing their wrong-doings and paying off money owed.

      [Put quoted text in proper block-quote – Incognito]

  3. te reo putake 3
    11 May 2020 at 1:44 pm

    We can only imagine the eye-rolling in the court right at the start when they saw who was filing the paperwork. I'd say Nottingham's best bet with his proven ability to get the law wrong might be to market himself as a sounding board. Tell him your problem, listen to his advice, do the opposite.

    In a more serious vein, vexatious litigation is an issue in most countries, as is self representation. However, the ability for the little guy to have a crack in court is an important pillar of the law. That shouldn't be limited by having to put up significant funds in advance of the case.

    I'd say more, but I need to move the Camira to get the Torana out so I can get to the Commodore.

    • lprent 3.1
      11 May 2020 at 2:04 pm

      I agree – as I tried to make clear. But it damn well needs to have better safeguards against stupidity.

      The private prosecution cost me about $30k to defend because there was no initial argument about if the charges even had a case, followed by so many status hearings because dimwit and co failed to meet deadlines. Then this dimwit survived about 10 minutes of defense and apparently couldn't pay my costs.

      To put that into perspective, the cost of that court case was approximately roughly 20 years of costs for running this site.

      The same applied with the Honey case where he took a 3 day trial and expanded it into 17 days and 115k in defense costs. I think that the defense was short for that as well

      So if the choice is between continuing aproductive enterprise and satisfying some simpleton who can't even do a minimally effective job, then yeah I would like some security of costs. or some determination of if there was a case by someone legally trained

      • Dukeofurl 3.1.1
        11 May 2020 at 4:14 pm

        The Attorney General has to make an application for a Judge to declare a person vexatious litigant

        A bit different in Environment Court

        https://www.thelawyermag.com/nz/news/general/environment-courts-first-use-of-new-vexatious-litigant-powers/205160

        • lprent 3.1.1.1
          11 May 2020 at 5:55 pm

          Yes. But only in civil cases.

          Technically, the AG could ask (again as I understand it) for Nottingham to be declared a vexatious litigant for civil cases. Technically this one could be viewed as a civil case. But I suspect it would be looked as being more of a constitutional nature.

          Private prosecutions are criminal law. It is quite different there as well. There is nothing substantive to stop a vexatious litigant bringing a private prosecution. All they have to do is to present a vaguely viable looking case and have a judge accept it.

          In Nottingham’s initial presentation to the court he got the author wrong (I didn’t write the article), the site owner wrong (The Standard Trust owns the site), most of the technical details wrong – basically the idiots are technical illiterates, and pulled in totally legally irrelevant garbage from facebook and twitter and comments in other posts.

          Essentially just deliberate lies just about the whole way through great wad of paper – it was a good few inches thick. Hell – they were so incompetent that they even got the name incorrect. There is no KELVIN LYNN PRENTICE in New Zealand (or anywhere else that I can see). There is a Lynn Kelvin Prentice.

          I think that the Nottingham and McKinney started with an orgy of mutual masturbation (as as they would probably phrase it ‘fingering below the fat’) because apparently they wasted considerable time trying to get the court to issue warrants to grab my computers and search them for evidence. They didn’t seem to understand that this wasn’t a Napoleonic legal code system.

          They seemed to get very upset about not being able to understand that you have a problem of legal privilege when you try to issue summons to a defendant’s solicitor – Greg Presland. Nor that the people who they had summoned had rights about possibile of self-incrimination and who would respond to the actual questions asked – not to rhetorical flourishes.

          Nor that they couldn’t change who they had charged when APN pointed out in the first minutes of the defense that they had no ownership of editorial association with the NZ Herald in 2015. Before court

          I remember vaguely running through a lot of this stuff when my ex-partner was doing her professionals before being admitted as a lawyer. None of it is rocket science.

    • woodart 3.2
      11 May 2020 at 4:33 pm

      "tell him he's dreaming"

    • georgecom 3.3
      12 May 2020 at 8:54 pm

      do you suspect the odometer on the camira or commodore might have been wound back?

      you are in luck, this book might be of great assistance https://www.trademe.co.nz/books/nonfiction/new-zealand/listing-2617427256.htm

  4. Incognito 4
    11 May 2020 at 1:54 pm

    @ Pete George:

    Apologies, Pete, you were still in the Blacklist. Unfortunately, I cannot shift your comment out from Trash.

    My suggestion is that you post an empty/dummy comment now and I’ll paste in your ‘lost’ comment.

    • lprent 4.1
      11 May 2020 at 2:08 pm

      Fixed it.

      How did it go to trash? I thought I’d removed that as an option for editors and below for things that they don’t write themselves. Generally I toss them to spam rather than trash, and then go through them at a later date so they get a double pass.

      • Incognito 4.1.1
        11 May 2020 at 2:18 pm

        All comments from a Blacklisted commenter end up automatically in Trash. I have never seen anything different and it does not involve manual intervention on my behalf. There is an option to label comments in Trash as Spam or OpenMike but this has never worked for me, giving an error message.

        • lprent 4.1.1.1
          11 May 2020 at 3:06 pm

          Ummm I’ll have a look at that. I’m sure that it has changed since I last looked at it.

          I’m pretty sure that they used to wind up in spam. What I was after at at the time I put the restriction in was that they could go to spam, but only admins and the comment author could send them to trash.

  5. Dukeofurl 5
    11 May 2020 at 3:15 pm

    "the epidemic portions of the Act are still effectively those of the Health Act of 1920,"

    S70 of health Act 1956 was amended by the Health Amendment Act of 2006

    S5 Special powers of Medical Officer of Health

    The music may be from the 50s but its been re-recorded for the new millenium

    Too much is made of legal professors who usually published output is pondering court decisions regarding a contract for the wholesale supply of Gas ( Geddes) or Inconsistency and the BORA ( Geiringer) suddenly have the case of the century fall into their laps. Im sure they are hoping the whole court system will get to review everything about the 'law of the Lockdown' as it will fill academic papers for years to come.

    Meanwhile the general public thinks the academic term illegal refers to Headhunters type illegal,

  6. adam 6
    11 May 2020 at 3:21 pm

    This post depressing on so many levels. But the utter waste of time and effort that will happen to satisfying the ego of these muppets is the probably the most depressing.

    The complainants remind me of Sgt. Major Dickerson, not crazy just mean.



    • Grafton Gully 6.1
      11 May 2020 at 5:56 pm

      The State backed by a State of National Emergency stopped me and millions of others going about our business as usual. A threat to liberty so I want to know how it was permitted by legislation.

      • lprent 6.1.1
        11 May 2020 at 6:05 pm

        It was. In exactly the same fashion and same type of legislation that the ‘state’ restricts nat supporters from going about their business in the fashion that they’d like.. you-all know…

        Just like the state stops you driving trucks without a license on public roads. Makes sure that you can be detained if you murder someone. Generally prevents self-righteous and self-entitled wankers like you from whipping the slaves, raping the peasants, and throwing the beneficiaries into lard making concentration camps.

        /sarc

        FFS: dimwit – why don’t you just read the legislation yourself? Don’t be a lazy sod all of your life.

        You don’t need to have someone to tell you what to think – try doing it yourself some time… I realise that this is hard for many on the right – especially National supporters. Many of them seem to get indoctrinated so early that the ability to think for themselves has atrophied.

        BTW: If you unable to read source materials, the Andrew Geddis has a pre-chewed analysis that looks at it legally over at pundit from just about all sides apart from the australopithecus grunt analysis.
        https://www.pundit.co.nz/content/the-lockdown-and-the-law-where-are-we-now

      • adam 6.1.2
        12 May 2020 at 3:25 pm

        What threat to liberty? FFS the locking up of non-violent criminals with violent criminals is more of a threat to your liberty that being asked and aquesseing to a quarantine to protect you and yours.

        No democracy has the power to shut down society without the consent of its citizen. And guess what, we consented. The law, if that your fetish will follow the will of the people on this one.

        My guess is your workers got a taste of what it was like not being a wage slave, and they may just like that liberty, and that frightens the hell out of you.

  7. Adrian 7
    11 May 2020 at 3:51 pm

    Still lying. Nottingham denied he was under home detention in a radio ? story last week.

    There is a way around vexatious cases and not paying your bills as a mate found out when he went to work in Texas. He said he was gobsmacked that people paid their bills on time and didn't try to use the courts to get out of them, when it was explained to him that for about $3k instead of tens of thousands to prove amounts owing or the like, there were plenty of independent gunmen who could make the problem go away. And that wasn't in the 1880s.

  8. Peter 8
    11 May 2020 at 7:24 pm

    Congratulations on the restraint in using the word 'dimwit.'