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 that no order should be made because:

·    the petition raised issues of public importance;

·awarding costs in this instance would amount to an unreasonable limit on the right to equal access to justice and the right to bring proceedings against the Crown;

·an award of costs would act as a disincentive to pursue supplementary claims in the Court of Appeal and Supreme Court;

·an  award  of  costs  would  have  a  chilling  effect  on  the  wider  prison population;

·an award of costs would punish the petitioners and violate their right to be free from cruel and disproportionately severe treatment under s 9 of the New Zealand Bill of Rights Act;

·to award costs would prejudice the rights of those prisoners who seek to petition the United Nations Human Rights Committee in relation to their right  to  vote  in  general  elections  and  interfere  with  New  Zealand’s obligations under the ICCPR.

[6]      Section 250 of the Act provides for costs in relation to the presentation of

election petitions “in such manner and in such proportions as the High Court may

determine”.   The High Court Rules and the Court’s general practice also apply to costs of a petition in the same manner as any other civil proceeding.3

[7]      The  wording  of  s 232  of  the  Act  answers  the  petitioners’ jurisdictional

argument:

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.

[8]      By its terms s 232(1) acknowledges the existence of a petition prior to the payment of security.   Section 232(3) confirms that if no security is given then no further proceedings shall be taken on the petition.  The petition however exists.  The proceedings are not a nullity.

[9]      Even if the petition were to be regarded as a nullity, that does not assist the petitioners as the Court still has jurisdiction to dismiss a proceeding as a nullity and award costs in the exercise of its general discretion. That is simply a recognition that a proceeding has been before the Court which has required another party to incur costs in response to it.  In Payne v Adams the Court of Appeal accepted it did not have jurisdiction to hear an appeal because of s 242 of the Act but nevertheless made

an order for costs against Mr Payne who had attempted to appeal.4

[10]     Nor is the costs order limited to the quantum of the security ($1,000) as suggested.  A similar argument was rejected by the Court in both Re Taupo Election

3      Constituency Election Petition Rules 2008, r 5(2).

4      Payne v Adams [2010] NZCA 134.

Petition and Payne v Adams (costs).5   We adopt the reasoning of the Court in the Re Taupo Election Petition case.   The relevant sections of the Act are, for present purposes, identical.  As the Court observed there is no limitation expressed in the section.  Section 250 in the present case refers to the jurisdiction to deal with “[a]ll costs of and incidental  to the presentation of an election petition …”.   We are satisfied jurisdiction exists to make a costs order.

[11]     An award of costs is not an unreasonable limit on the right to equal access to justice.  In this case costs are expressly provided for by the Act and the High Court Rules.  In the absence of evidence we do not accept that an award of costs would act as  a  disincentive  to  pursue  “supplementary  claims”  in  the  Court  of Appeal  or Supreme Court.

[12]     Similarly an award of costs cannot prejudice the rights of prisoners who seek to petition the United Nations Human Rights Committee.   Their right to do so remains.

[13]     Any costs award would be against the named petitioners.   It cannot as a matter of logic, have a “chilling effect” on the wider prison population.  Nor is it a violation of the prisoners’ rights to be free from cruel and disproportionately severe treatment. That right is not engaged by an award of costs on this petition.

[14]     However, while jurisdiction exists to make a costs award in the exercise of the Court’s discretion we are satisfied that any costs order in the present case should be modest for the following reasons:

(a)       The petition was not dismissed on its merits, rather it was not able to be pursued because of the failure to pay security.

(b)      We accept the petitioners acted in good faith in bringing the petition.

(c)       The underlying issue the petitioners sought to raise was an important one.

5      Re  Taupo  Election  Petition  [1982] 2 NZLR 244 (HC) at 266; and Payne  v  Adams  HC Christchurch CIV-2008-409-3089, 1 July 2009 at [6].

(d)The respondent Mr Davis took no steps and did not seek costs on the petition.

(e)      This petition raised identical issues to the Helensville petition pursued by Mr Taylor.   Both petitions were case managed together from the outset.  The additional costs incurred in relation to this petition would have been modest.

[15]     Against that, the fourth respondent was required to respond to the petition and incurred costs in doing so.

[16]     Weighing those factors, we fix the costs in the present case at one-fifth of the costs sought by the Attorney-General.  The petitioners are jointly and severally liable to pay the fourth respondent the sum of $1,800.95 together with disbursements of

$135.30, in total $1,936.25.