- Date published:
12:50 pm, May 11th, 2020 - 28 comments
Categories: covid-19, health, law - Tags: bankruptcy, Dermot Nottingham, pete george, private prosecutions, robert mckinney, vexatious litigants
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 :-
 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
 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
 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.
 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.
 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.
 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.
 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.