Attorney-General v Taylor - [2019] NZSC 18

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 65/2017
[2019] NZSC 18

BETWEEN	ATTORNEY-GENERAL Appellant
AND	ARTHUR WILLIAM TAYLOR First Respondent HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM AND CLAIRE THRUPP Second to Fifth Respondents

Hearing:	6 and 7 March 2018
Court:	Elias CJ, William Young, Glazebrook, O’Regan and Ellen France JJ
Counsel:	U R Jagose QC, D J Perkins and G M Taylor for the Appellant First Respondent in person R K Francois for the Second to Fifth Respondents A S Butler, C J Curran and J S Hancock for the Human Rights Commission as Intervener
Judgment:	27 February 2019

JUDGMENT OF THE COURT

A The appellant must pay to the first respondent usual disbursements.
B The appellant must pay the second to fifth respondents costs of $15,000 or such lesser figure as evidenced by invoices produced to the Registrar.
CAny issues arising as to costs in the Court of Appeal in respect of Mr Taylor are to be dealt with in that Court.

___________________________________________________________________

REASONS

Introduction

In a judgment delivered on 9 November 2018 we dismissed an appeal by the Attorney-and allowed Mr Taylor’s cross-appeal.[1] At issue on the appeal was whether the High Court had the power to make a declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 which extended the prohibition on voting to all prisoners was inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights). The issue on the cross-appeal was whether the first respondent, Mr Taylor, had standing. The latter question arose because Mr Taylor had been prevented from voting under earlier legislation.
[1]Attorney-General v Taylor [2018] NZSC 104.
The Court found the High Court had power to make the declaration sought and that Mr Taylor had standing. Costs were reserved and submissions sought in the event the parties were not able to agree on costs. Agreement has not been reached. We can address the submissions that have now accordingly been filed on costs under two headings.

A costs award for Mr Taylor?

Mr Taylor was unrepresented. The general understanding is that a person in Mr Taylor’s situation (a lay litigant who is not a lawyer) is entitled to recover disbursements but not costs.[2] The Court in McGuire v Secretary for Justice did not depart from that position. Mr Taylor’s submission is that the Court should either find that McGuire is distinguishable because that case dealt with costs in the High Court or depart from McGuire and award costs to him as a lay litigant on the same basis as if he was a lawyer.
[2]McGuire v Secretary for Justice [2018] NZSC 116 at [55] and [88]. See also Re Collier (A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442; A C Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HRPt14.10(1)(a)]; and Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [162].
Mr Taylor’s principal argument relies…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Taylor

Details

AGLC: Attorney-General v Taylor [2019] NZSC 18
Case: [2019] NZSC 18
Decision Date: 27 February 2019

CaseChat Overview and Summary

In Attorney-General v Taylor, the Attorney-General appealed against a decision of the High Court that had found the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 inconsistent with the New Zealand Bill of Rights Act 1990. Mr Taylor, a prisoner who had been disqualified from voting, cross-appealed against the High Court's decision that he lacked standing. The Supreme Court dismissed the Attorney-General's appeal and allowed Mr Taylor's cross-appeal. The Court was required to determine whether the High Court had the power to declare the 2010 Act inconsistent with the Bill of Rights and whether Mr Taylor had standing to bring the proceedings. The Court held that the High Court did have the power to make such a declaration and that Mr Taylor had standing to bring the proceedings. The Court was further required to decide the appropriate costs for the proceedings. The Court held that Mr Taylor, as an unrepresented lay litigant, was entitled to usual disbursements but not costs. The Court declined to depart from the approach taken in McGuire v Secretary for Justice, which held that a lay litigant is not entitled to an award of costs. The Court held that Mr Taylor's arguments could be considered in the context of any law reform exercise. The Court also held that the second to fifth respondents were entitled to an award of costs, but a discount was appropriate to reflect that other participants largely carried the argument before the Court. The Court ordered that the appellant pay the first respondent usual disbursements and the second to fifth respondents costs of $15,000 or such lesser figure as evidenced by invoices produced to the Registrar. Any issues arising as to costs in the Court of Appeal in respect of Mr Taylor are to be dealt with in that Court.

Orders