Payne v Adams - [2010] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND
CA106/2010
[2010] NZCA 134
BETWEENROGER PAYNE

Appellant

ANDAMY ADAMS

First Respondent
ANDJUDITH KIRK

Second Respondent
ANDROGER BRIDGE

Third Respondent
ANDJOHN SKINNER

Fourth Respondent

Hearing:20 April 2010

Court:Hammond, O'Regan and Arnold JJ
Counsel:No appearance for Mr Payne

P T Kiely for Respondents

Judgment:20 April 2010
Reasons:28 April 2010 at 2 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to file the case on appeal is dismissed.
BThe application that the processes of this Court be “replaced” by a complaint to the Judicial Conduct Commissioner is beyond the jurisdiction of this Court and is dismissed.
CFor the avoidance of any doubt, the substantive appeal itself is dismissed.
DThe respondents (jointly and severally) shall have costs against the appellant/applicant, Mr Payne, as on an application for leave to appeal, Band A, and usual disbursements.

E Reasons to follow.
FIn case there should be any matters attendant on the electoral process which we have overlooked, we reserve leave to the respondents to apply for any further necessary directions or orders.

___________________________________________________________________
REASONS OF THE COURT
(Given by Hammond J)
[1]        On 20 April 2010, we orally dismissed both Mr Payne’s application for leave to appeal to this Court and the appeal, and made other orders. We said we would give our reasons for so doing in writing. This we now do.
[2]        The matters presently before the Court have their roots in Payne v Adams.[1] Mr Payne applied to be the National Party candidate for the Selwyn Electorate in the 2008 general election. The National Party board formally declined his candidacy, and he unsuccessfully challenged that decision prior to the election.[2] National Party candidate Amy Adams was returned as the Member for Selwyn, and Mr Payne petitioned the High Court challenging her election. The Chief Justice of New Zealand appointed the Chief High Court Judge, Randerson J, and Allan and French JJ to hear the election petition. The result was that, pursuant to s 243 of the Electoral Act 1993, the panel determined and certified to the Speaker of the House of Representatives that Amy Adams was duly elected as the Member of Parliament for the Selwyn Electorate at that general election.
[1] Payne v Adams [2009] 3 NZLR 837 (HC).
[2] Payne v New Zealand National Party [2008] 3 NZLR 233 (HC).
[3]        The panel reserved costs. They were dealt with in a further judgment of that panel dated 1 July 2009.[3] It then determined that Mr Payne was to pay to the respondents a sum of $23,520 plus disbursements as fixed by the Registrar, who was to credit him back the sum of $1,000 paid as security for costs.
[3] Payne v Adams HC Christchurch CIV-2008-409-3089, 1 July 2009.
[4]        Thereafter Mr Payne filed a document, dated 22 January 2010, which on its face claims to be an application for an extension of time for an appeal against that costs judgment. There was an earlier document dated 22…

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 Payne v Adams

Details

AGLC: Payne v Adams [2010] NZCA 134
Case: [2010] NZCA 134
Decision Date: 20 April 2010

CaseChat Overview and Summary

In Payne v Adams, the appellant, Roger Payne, sought an extension of time to file his case on appeal and to replace the processes of the Court of Appeal with a complaint to the Judicial Conduct Commissioner. The appeal was related to an earlier election petition brought by Mr Payne challenging the election of Amy Adams as the Member for Selwyn in the 2008 general election. The High Court had dismissed the petition and ordered Mr Payne to pay costs. The Court of Appeal dismissed Mr Payne's application for an extension of time to appeal and his request to replace the Court's processes with a complaint to the Judicial Conduct Commissioner. The Court held that the High Court's decision in respect of election petitions was final and conclusive, and there was no right of appeal to the Court of Appeal. The Court also dismissed the substantive appeal and ordered Mr Payne to pay costs to the respondents. The Court emphasised the importance of finality in relation to general elections, and noted that Mr Payne had failed to withdraw his appeal and associated application once the relevant legislative provisions were drawn to his attention.

The legal issues before the Court of Appeal were whether Mr Payne's application for an extension of time to appeal and his request to replace the Court's processes with a complaint to the Judicial Conduct Commissioner were permissible, and whether the substantive appeal had any merit. The Court held that the statutory provisions regarding election petitions did not allow for an appeal to the Court of Appeal, and that Mr Payne's attempts to circumvent this by seeking an extension of time or lodging a complaint with the Judicial Conduct Commissioner were not permissible. The Court also held that the substantive appeal had no merit, as the High Court's decision in respect of election petitions was final and conclusive, and there was no right of appeal to the Court of Appeal.

The Court of Appeal's reasoning was based on the statutory provisions regarding election petitions, which provided that all decisions of the High Court under Part 8 of the Electoral Act 1993 were final and conclusive and without appeal. The Court noted that Mr Payne had been made aware of these provisions, and had failed to withdraw his appeal and associated application once they were drawn to his attention. The Court also noted that there was a critical policy behind the rules relating to election petitions, which was the need for finality in relation to general elections. The Court held that Mr Payne's attempts to circumvent this policy were not permissible, and that the substantive appeal had no merit. The Court therefore dismissed the application for an extension of time to appeal, the request to replace the Court's processes with a complaint to the Judicial Conduct Commissioner, and the substantive appeal itself. The Court also ordered Mr Payne to pay costs to the respondents.

Orders