Taylor v Attorney-General of New Zealand

[2014] NZHC 1795

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004141 [2014] NZHC 1795

UNDER

The Judicature Amendment Act 1972, the

New Zealand Bill of Rights Act 1990, Part
30 of the High Court Rules

IN THE MATTER

of a declaration of inconsistency

BETWEEN

ARTHUR WILLIAM TAYLOR First Applicant

HINEMANU NGARONOA, SANDRA WILDE, KIRSTY OLIVIA FENSOM AND CLAIRE THRUPP

Second, Third, Fourth and Fifth Applicants

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Second Respondent

Hearing:	(on the papers)
Judgment:	31 July 2014

JUDGMENT OF VENNING J APPLICATION FOR A PRIORITY FIXTURE

This judgment was delivered by me on 31 July 2014 at 4.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           W Simpson, Auckland

Crown Law, Wellington

Copy to:            R Francois, Auckland

TAYLOR v THE ATTORNEY-GENERAL OF NEW ZEALAND [2014] NZHC 1795 [31 July 2014]

[1]      The applicants seek orders directing that the Court allocate a priority fixture of no more than two days for the substantive hearing of this proceeding.

[2]      In the first amended statement of claim the applicants seek the following declarations:

(a)      a   declaration   that   the   Electoral   (Disqualification   of   Sentenced Prisoners) Amendment Act 2010 is inconsistent with the right to vote under  s  12(a)  of  the  New  Zealand  Bill  of  Rights  Act  1990 (NZBORA);

(b)a declaration that the Act is inconsistent with the right to be free from discrimination  under  s  19  of  the  NZBORA  and  ss  21(1)(f)  and

21(1)(g) of the Human Rights Act 1993;  and

(c)      a declaration that the Act is inconsistent with the applicants’ right to be treat with humanity and with respect for their inherent dignity under s 23(5) of the NZBORA;  and

(d)a declaration that the Act is inconsistent with the applicants’ right not to be subjected to degrading and disproportionately severe treatment under s 9 of the NZBORA.

[3]      Section 80(1)(d) of the Act, which came into effect on 15 December 2010 provides:

(1)      The following persons are disqualified for registration as electors:

…

(d)       a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010:

[4]      The applicants are or were, at all relevant times, serving prisoners.

[5]      The applicants seek a priority fixture in order to have the case heard as soon as  possible  so  that  a  judgment  may  be  delivered  before  the  general  election scheduled for 20 September 2014.

[6]      In  the  memorandum  supporting  the  application  for  a  priority fixture  Mr Francois raises a number of points.   A number of them are more relevant to the substantive merits of the proceeding, rather than the application for priority fixture.

[7]      However, Mr Francois  has noted that in separate proceedings  before the Waitangi Tribunal Maori applicants have been granted an urgent hearing by the Tribunal so it can consider claims that the ban on prisoner voting breaches the principles of the Treaty of Waitangi.  The applicants believe a recommendation by the Tribunal to change, reform or repeal the relevant law to allow Maori the equal right to vote may lead to action from Parliament and submit that a declaration of inconsistency by this Court would reinforce the need for such change which emphasises the importance of a priority fixture for the applicants.

[8]      Mr Francois also submits that the applicants will experience hardship over the blanket ban on their voting rights.  Unless there is a change to the legislation they will not be able to vote at the election scheduled for 20 September 2014.

[9]      In response counsel for the defendant has filed a memorandum in which he notes that Parliament will shortly rise so that no legislative amendment could be accommodated between now and the election.1

[10]     As to the political impact and constitutional aspects of any declaration of inconsistency the respondent considers the only justiciable issue is whether the High Court may in any circumstances, or should, in this case make such a declaration having regard to the role of Parliamentary privilege.   It is likely that given the importance of any such ruling the defendant would appeal any such adverse ruling to

the Court of Appeal.

1      Parliament’s last sitting day before the election is 31 July 2014.  Parliament will be dissolved on

14 August 2014.

[11]     The  respondent’s  counsel  also  notes  that  the  Attorney-General’s  s  7

NZBORA report on the Amendment Act to the House addresses the substance of the

applicants’ concerns.

[12]     In response to that reply Mr Francois submits that when it suits Parliament it can  act  urgently.    Mr  Francois  also  reasserts  the  submission  the  applicants  are entitled to seek appropriate relief to preserve their right to vote.  He also submits that there is a public interest in people knowing that prisoners (or any group of people for that matter) have been subjected to an unlawful amendment to the Electoral Act 1993 that prohibits them from voting at elections.

[13]     As  to  the  s  7  report  under  the  NZBORA  Mr  Francois  notes  that  the declaration only relates to the right to vote.  Other aspects of the declarations sought are not covered by the Attorney-General’s report.

Preliminary matter

[14]     I indicated that I would deal with the matter on the papers.  Mr Taylor is the first  applicant.    Mr  Francois  says  Mr  Taylor  would  like  to  be  heard  on  the application.  I am satisfied it is appropriate to deal with the matter on the papers. As an application for priority, it should be dealt with promptly.  There is little that Mr Taylor could add to the full submissions made by Mr Francois.  I also note that in its terms the initial application filed by Mr Francois was on behalf of all applicants.

Principles

[15]     Counsel referred to a number of authorities where the issue of a priority fixture has been considered:  Birnie Capital Property Partnership Limited v Birnie in which case Allan J referred to a practice note issued by the Executive Judge at Auckland on 18 December 1987:2

Generally speaking, some particular hardship to a litigant other than the usual hardship must be shown to justify priority;  health problems, financial hardship or public interest are grounds frequently relied upon by successful applicants.

2      Birnie Capital Property Partnership Limited v Birnie [2010] NZHC 1228 at [60].

[16]     Having reviewed the file I am satisfied that this case does not warrant the granting of a priority fixture.

[17]     As noted, the purpose of the application for priority is to obtain either a change to the law or at the very least the publicity arising from what the applicants perceive will be a favourable finding in their favour, all before 20 September 2014.

[18]     Although the amendment was passed in December 2010 these proceedings were not issued until 5 September 2013.  The delay in issuing the proceedings does not support the application for urgency.

[19]     This case is still at a very preliminary stage.  No defence has yet been filed. It was the subject of a strike out application.  In a fully reasoned decision delivered on 11 July 2014 Brown J declined the application to strike out but in the course of doing so Brown J concluded as follows:

[82]      It follows that I consider that the respondents have not demonstrated that the claim should be struck out on the ground that it can be said that the Court undoubtedly lacks jurisdiction (in the strict sense) to issue declarations of inconsistency of the nature sought in the statement of claim.

[83]     Mindful however that Mr Taylor is self-represented, it is only right that I should note that, as my reasons above reflect, a decision dismissing the current application could be a Pyrrhic victory for the applicants. To adopt the terminology of the Privileges Committee, my view of the Court’s current jurisdiction to grant declarations of inconsistency is: in theory “yes” but in practice “no”. As McGrath J observed in Hansen, normally the Court’s view that the measure being considered is inconsistent with protected rights will be sufficiently apparent from the Court’s statement of its reasoning.

(footnotes omitted)

[20]     The Judge also noted that in Mr Taylor’s case he may face a standing issue. The Judge also noted the impact of the s 7 report.  Notwithstanding that the Judge dismissed the application for strike out.

[21]     The time for appealing from that decision has not yet expired.

[22]     The  applicants’ purpose  or  suggestion  that  a  favourable  decision  on  the substantive proceedings may lead to a law change before the election is unrealistic. From a practical point of view Parliament will not be sitting past 31 July 2014.

[23]     Following Brown J’s decision, and as a result of discussions with counsel during the course of the hearing the applicants filed a first amended statement of claim on 16 July 2014.  The time for filing a defence to the first amended statement of claim has not yet expired.

[24]     While I accept that the material required for the hearing will be limited and I would expect with co-operation any relevant background documents could be put forward before the Court either by an agreed statement of facts or pro forma affidavit evidence, at the very least the pleadings should be completed.

[25]     To the extent the applicants consider there is public interest in the applicants’ position being vindicated, they have the decision of Brown J which declined the respondent’s application to strike out.  That decision features on the list of decisions of public interest.

[26]     In any event, given the nature of the matters raised and the issues discussed in Brown  J’s  comprehensive  judgment,  the  prospect  of  a  two  day  fixture  being allocated in mid to late August leaving sufficient time for a Judge to deliver a fully reasoned decision on a difficult matter such as this (noting that Brown J’s decision was delivered some six weeks after the hearing) is simply unrealistic.

Summary

[27]     There is no basis to elevate this case above other cases before the Court or to require criminal or other civil work currently allocated fixtures to be vacated to enable this case to be heard and a decision delivered before 20 September 2014.

Result

[28]     The application is declined.

Venning J