Taylor v Davies - [2016] NZHC 2390

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002648 [2016] NZHC 2390

UNDER THE the Electoral Act 1993

IN THE MATTER

of an electoral petition relating to the Te
Tai Tokerau Electoral District

BETWEEN

ARTHUR WILLIAM TAYLOR, LLOYD NATHAN CURRIE, THOMAS EDMONDS and EDWARD ROLLO

First, Second, Third and Fourth Petitioners

MIRIAMA ELISABETH WILLIAMS Fifth Petitioner

…/2

Hearing: (On the papers)

Court::

Winkelmann, Venning and Heath JJ

Judgment:

10 October 2016

COSTS JUDGMENT OF THE COURT

This judgment was delivered by me on 10 October 2016 at 1.00 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar
Date……………

Solicitors: Crown Law, Wellington Russell McVeagh, Wellington Grimshaw & Co, Auckland
W Simpson, Papakura

Copy to: R Francois, Auckland S Mitchell, Auckland A W Taylor

TAYLOR & ORS v DAVIS & ORDERS [2016] NZHC 2390 [10 October 2016]

ANDKELVIN DAVIS First Respondent

THE ELECTORAL COMMISSION Second Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Respondent

THE ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Respondent

[1] The petitioners in this proceeding challenged the 2014 electoral result in Te Tai Tokerau electoral district.1 They did so on the same basis as a related petition brought by Mr Taylor challenging the result of the election in the Helensville electorate (CIV-2014-404-2657). Mr Taylor was a petitioner in both. From an early stage the petitions were managed together.

[2] Section 232 of the Electoral Act 1993 (the Act) requires a petitioner to pay security of $1,000. In the event security is not provided as required by s 232 the section provides that “no further proceedings shall be taken on the petition”. The petitioners in this case failed to pay security within the time provided. On 24
November 2014 this Court ruled that there was no jurisdiction to extend time and as a result the proceeding was at an end.2

[3] Mr Davis, the first respondent, does not seek costs. The Attorney-General however seeks costs on a 2B basis together with disbursements. The costs are sought for the preparation of a defence, for all attendances at the preliminary conferences and for submissions on the papers leading to the proceeding being
confirmed to be at an end. The total sought is $9,545.95, including disbursements.

1 The original petitioners were Messrs Taylor, Currie and Edmonds and Ms Henare. At the request of counsel for the petitioners Mr Rollo and Ms Williams were joined to the petition. As counsel could not obtain authority from Ms Henare, she was removed from the petition.
2 Taylor v Davis [2014] NZHC 2986, [2015] NZAR 256, reasons delivered on 27 November 2014.

The costs sought have been apportioned to recognise that a number of the attendances also related to hearings or steps involving the related petition.

[4] The petitioners oppose an order for costs. They submit that as there never was a properly constituted electoral petition the proceeding was a nullity and there can be no order for costs.

[5] If there is jurisdiction for an order they submit…

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 Taylor v Davies

Details

AGLC: Taylor v Davies [2016] NZHC 2390
Case: [2016] NZHC 2390
Decision Date: 10 October 2016

CaseChat Overview and Summary

This case involved a challenge to the 2014 electoral result in the Te Tai Tokerau electoral district, brought by Arthur William Taylor and others. The petitioners sought to challenge the result on similar grounds as a related petition concerning the Helensville electorate. The petitioners failed to pay the required security of $1,000 within the specified time, leading the Court to rule that no further proceedings could be taken on the petition. The Attorney-General, representing the fourth respondent, sought costs for the preparation of a defence, attendances at preliminary conferences, and submissions on the papers. The petitioners opposed an order for costs on various grounds, including the importance of the issues raised and potential chilling effects on the right to petition. The Court found that it had jurisdiction to award costs under section 250 of the Electoral Act 1993 and the High Court Rules. The Court also noted that an award of costs would not unreasonably limit access to justice or violate the right to be free from cruel and disproportionately severe treatment. However, considering the good faith of the petitioners and the modest additional costs incurred, the Court decided to award one-fifth of the costs sought by the Attorney-General, totaling $1,936.25.

The primary legal issue in this case was whether the Court had jurisdiction to award costs against the petitioners when the petition was dismissed due to their failure to pay the required security. The Court held that the failure to pay security did not render the proceedings a nullity, and the Court still had jurisdiction to dismiss the petition as a nullity and award costs in the exercise of its general discretion. The Court further found that an award of costs would not unreasonably limit the right to equal access to justice or violate the prisoners' rights under the New Zealand Bill of Rights Act. The Court weighed the factors, including the good faith of the petitioners and the modest additional costs incurred, and decided to award one-fifth of the costs sought by the Attorney-General. The petitioners were jointly and severally liable to pay the fourth respondent $1,936.25, including disbursements.

In summary, the Court found that it had jurisdiction to award costs under the Electoral Act 1993 and the High Court Rules. Despite the petitioners' arguments, the Court held that an award of costs would not unreasonably limit access to justice or violate the prisoners' rights. Considering the good faith of the petitioners and the modest additional costs incurred, the Court awarded one-fifth of the costs sought by the Attorney-General, totaling $1,936.25. The petitioners were jointly and severally liable to pay the fourth respondent this amount, including disbursements. This decision underscores the importance of adhering to procedural requirements, such as the payment of security, when bringing an electoral petition. It also highlights the Court's discretion in awarding costs and its consideration of various factors in determining the appropriate quantum of costs.

Orders