O'Connell v Electoral Commission - [2021] NZHC 563

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000604

[2021] NZHC 563

UNDER THE Referendums Framework Act 2019

IN THE MATTER OF

a petition for an inquiry into the conduct of the 2020 Cannabis Legalisation and Control Referendum

BETWEEN

K P O’CONNELL AND OTHERS

Applicants

AND

ELECTORAL COMMISSION

Respondent

Hearing: On the papers

Court:

Thomas, Mander and Dunningham JJ

Counsel:

K P O’Connell and B J Anderson - Applicants in person M J McKillop for Respondent

Judgment:

19 March 2021

JUDGMENT OF THE COURT

This judgment was delivered by me on 19 March 2021 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

K P O’CONNELL AND ORS v ELECTORAL COMMISSION [2021] NZHC 563 [19 March 2021]

[1] The applicants have filed a petition calling for an inquiry into the conduct of the 2020 Cannabis Legalisation and Control Referendum.

[2] The Referendums Framework Act 2019 (the Referendums Act) governs the conduct of referendums, including the process for questioning a referendum by petition to the High Court.1 Section 30 of the Referendums Act sets out the procedural provisions of the Electoral Act 1993 which apply to a referendum petition as if it were an election petition. These include s 232 of the Electoral Act which requires a petitioner to provide security for costs:

232 Security for costs

(1)At the time of presenting an election petition or within 3 days after the expiration of the time limited for the presentation of the petition, the petitioner shall give security to the satisfaction of the Registrar of the court for all costs that may become payable by the petitioner to any witness summoned on the petitioner’s behalf or to any respondent.

(2)The security shall be an amount of $1,000, and shall be given by recognisance to the Crown entered into by any number of sureties not exceeding 5 or by a deposit of money, or partly in one way and partly in the other.

(3)If no security is given as required by this section, no further proceedings shall be taken on the petition.

[3] Under the s 232 regime, security for costs in the sum of $1,000 must be provided in cash or by sureties (or a combination of these) to the satisfaction of the Registrar within three days of filing the petition.

[4] While the applicants filed their petition for an enquiry within the 28 day statutory timeframe following publication of the declaration of official results in the New Zealand Gazette,2 they did not provide security for costs in the timeframe specified in s 232(1). Consequently, counsel for the Electoral Commission (the Commission), Mr McKillop, submits the petition for an inquiry cannot proceed because of the prohibition in s 232(3). In support, he cites the decision in Taylor v Davis, where a full bench of the High Court held that s 232(3) acts as a comprehensive bar on any further action being taken on an election…

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 O'Connell v Electoral Commission

Details

AGLC: O'Connell v Electoral Commission [2021] NZHC 563
Case: [2021] NZHC 563
Decision Date: 19 March 2021

CaseChat Overview and Summary

The applicants sought a judicial inquiry into the conduct of the 2020 Cannabis Legalisation and Control Referendum. They alleged that the information provided to the public on the topic of cannabis legalisation was "poor and inaccurate", and materially affected the result of the referendum. The Electoral Commission opposed the application on the basis that the applicants failed to provide security for costs within the three-day timeframe specified in s 232 of the Electoral Act 1993, as incorporated into the Referendums Framework Act 2019. The applicants argued that the Court should either extend the time for compliance with the requirement to provide security for costs or waive that requirement. The Court held that the strict approach to interpretation of s 232 taken in Taylor v Davis should apply with equal force to a referendum petition under the Referendums Act. The Court also rejected the suggestion that the advice there was no fee to pay means the applicants can be said to have given security "to the satisfaction of the Registrar of the court", under s 232(1) Electoral Act. As security for costs was not provided within the time stipulated in s 232 Electoral Act, the proceeding was at an end.

Final orders[35] The proceeding is dismissed with costs to the Electoral Commission.

Orders