Edwards v Elmar Toime

[2005] NZCA 81

IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/04

BETWEENJOHN ANTHONY EDWARDS

Appellant

ANDELMAR TOIME

First Respondent

ANDMURRAY E WICKS

Second Respondent

ANDRAEWYNNE UREN

Third Respondent

Hearing:18 April 2005

Court:Anderson  P, McGrath and O'Regan JJ

Counsel:Mr Edwards appears in person

T J Warburton for Respondents

Judgment:18 April 2005 

JUDGMENT OF THE COURT

A        The application is dismissed.

B        Costs reserved on this application for consideration upon disposal of the substantive appeal.

REASONS

(Given by Anderson P)

[1]       On 25 November 2004 the High Court at Wellington delivered a decision in respect of an application by Mr Edwards for judicial review.  Mr Edwards sought review of an inquiry into the enrolment in January 1999 of Ms Phillida Bunkle as an elector in the Parliamentary seat of Wellington Central.  The High Court decision, delivered by Wild J, dismissed the application for review and Mr Edwards has filed a notice of appeal to this Court.  Wild J’s decision reserved the question of costs and that matter is still to be resolved. 

[2]       Since filing the substantive notice of appeal Mr Edwards has filed an interlocutory application in this Court which seeks relief in four particular respects.  First, he seeks pursuant to r 9 Court of Appeal (Civil) Rules a stay of the respondents’ motion for costs in the Court below.  Second, he seeks directions from this Court in relation to his perception of vagueness in the judgment substantively appealed against.  Next, he seeks the appointment of an amicus to represent what Mr Edwards says is the public interest apart from the private interest of the parties to the litigation.  Finally, Mr Edwards seeks an order directing the joining of or entry of an appearance by New Zealand Post Ltd which happens to be the usual employer of the respondents who have statutory responsibilities as Chief Registrars or Deputy Chief Registrars in relation to the electoral process.

[3]       Mr Edwards has provided considerable written material for the assistance of this Court and we have given it due consideration, but we are bound to express the view that the application for stay of the motion for costs is premature and that the other relief sought is inappropriate. 

[4]       We apprehend that Mr Edwards is concerned that an order for costs might be made against him in the High Court and that execution of any such order might be sought before the merits of the substantive appeal are determined.  That is a matter which often affects litigants who appeal against decisions which include adverse decisions on costs.  The usual course is for the party who has been ordered to pay costs to seek a stay from the High Court, in the first instance, pending the determination of the substantive appeal.  We think it quite inappropriate to indicate, even by seeming inference, a view on any appeal on the issue of costs in the High Court, in the course of our dealing with a premature application for stay in that respect. 

[5]       As to directions concerning the vagueness in the judgment appealed against, we understand Mr Edwards’ difficulty to be in understanding the scope of the judgment in light of the scope of the concerns and arguments advanced by him at trial.  If it should prove the case that cogent arguments advanced by him have not been properly considered, that is a matter to be advanced and considered at the substantive appeal of this Court.  It would not be appropriate for this Court to express some preliminary view about the meaning or scope of the judgment under appeal when it is not considering the appeal substantively. 

[6]       We turn now to the question of appointment of an amicus.  It is the case that sometimes the Court perceives an interest which is not properly represented by the actual parties to the litigation and therefore considers it appropriate to hear from a third voice on matters of third party concern.  The third party envisaged here, of course, is the public at large with its general interest in the integrity of the administrative process.  Notwithstanding that, the issues do not seem to us to exclude due consideration for public interest at the time the private arguments between the parties are determined.  We bear in mind that Mr Edwards’ proceeding is one by way of judicial review which is essentially a judicial examination of administrative conduct of the executive and other persons carrying out public functions.  It is inherent in a case which involves the citation of public officers as respondents, that the Court would have due regard to the public concerns, both in determining the scope of the obligation of those officers and the scope of any relief that might seem appropriate.  This leads us to conclude that it is unnecessary to appoint an amicus for the proceeding. 

[7]       We turn now to the question of joinder of New Zealand Post Ltd as the employer of the three respondents.  The fact of employment has no bearing whatever on the responsibilities of those officers in their public capacity.  Mr Edwards expressed concern that the employers ought be aware of what the respondents as employees may or may not have been doing in furtherance of or in dereliction of their duty.  But New Zealand Post has no greater standing in relation  to the constitutional functions of these persons than anyone else.  It is exactly the same as anyone in the public who might be affected by a functioning of the respondents.  No one should be joined in proceedings, with inevitable inconvenience and potential costs to all parties, without proper justification, and we see none in this case.  We are not prepared to entertain that form of relief either.

[8]       In the result, the application in all its respects is dismissed. 

[9]       On the question of costs Ms Warburton has no specific instructions but if  in the event there is a substantive appeal, brought very much in the public interest by a citizen, should prove successful, that may well colour the approach to costs on this interim application.  It is therefore appropriate that all questions of costs on this application be reserved for consideration upon disposal of the substantive appeal.

Solicitors:
Crown Law Office, Wellington