Taylor v Key - [2016] NZHC 2391

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002657 [2016] NZHC 2391

UNDER THE Electoral Act 1993

IN THE MATTER OF

an electoral petition relating to the
Helensville Electoral District

BETWEEN

ARTHUR WILLIAM TAYLOR Petitioner

AND

JOHN PHILLIP KEY First Respondent

ELECTORAL COMMISSION Second Respondent

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Respondent

ATTORNEY-GENERAL OF NEW ZEALAND

Fourth Respondent

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
Kiely Thompson Caisley, Auckland
Russell McVeagh, Wellington

Copy to: A W Taylor

TAYLOR v KEY & ORS [2016] NZHC 2391 [10 October 2016]

[1] Mr Taylor challenged the 2014 electoral result in the Helensville electoral district. He did so on the same basis as a related petition brought by him and a number of others challenging the result of the election in the Te Tai Tokerau electorate (CIV-2014-404-2648).

[2] In a judgment delivered on 16 April 2015 the Court confirmed that Mr Taylor lacked standing to bring an election petition concerning the Helensville electorate.1
Costs were reserved.

[3] The first respondent, while considering he has strong grounds for seeking costs from the petitioner and the proposed intervenors, does not seek costs.

[4] The Attorney-General seeks costs and disbursements against Mr Taylor in the sum of $55,859.79. The costs are calculated on the basis of category 3 with time band B in relation to some steps and time band C in relation to other steps. Where the steps related to attendances also affecting the Te Tai Tokerau petition a reduced amount of time is sought.

[5] The Attorney-General also seeks costs against two proposed intervenors in the sum of $1,876.71. By notice of application dated 1 December 2014 Mr Ngaronoa and Mr Rollo sought to intervene in the Helensville petition. On 4
December a notice of opposition was filed to the application. On 18 December 2014 the Court declined the application. The only step required was the filing of a notice of opposition. Further, Mr Perkins, counsel for the Attorney-General, has properly drawn the Court’s attention to the fact that there is evidence filed in the Te Tai Tokerau petition as to Mr Rollo’s impecuniosity and there is also an unsworn affidavit referring to Mr Ngaronoa’s impecuniosity served in that petition on 18
November 2014. In the circumstances and given the very limited nature of the steps involving the proposed intervenors we make no order for costs against them.

[6] Mr Taylor opposes the application for costs on the grounds:

(a) The Court has no jurisdiction to award such costs and disbursements.

1 Taylor v Key [2015] NZHC 722, [2015] 3 NZLR 770.

(b)The Crown is not seeking such costs and disbursements for the purpose of cost recovery but for the improper purpose of deterring the bringing of electoral…

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 Key

Details

AGLC: Taylor v Key [2016] NZHC 2391
Case: [2016] NZHC 2391
Decision Date: 10 October 2016

CaseChat Overview and Summary

In Taylor v Key, Arthur William Taylor brought an electoral petition challenging the 2014 election result in the Helensville Electoral District on the basis that the disenfranchisement of prisoners was inconsistent with the right to vote affirmed in the New Zealand Bill of Rights Act 1990. The Court dismissed the petition on the grounds that Mr Taylor lacked standing to bring it. The Attorney-General sought costs against Mr Taylor and two proposed intervenors. The Court found that it had jurisdiction to award costs despite the dismissal of the petition for want of standing, and it was not appropriate to award costs on a category 3 basis. The Court determined that a one-fifth reduction of the costs was appropriate, given the public interest element of the challenge and the shared responsibility of the argument by counsel for the first respondent and the amicus. The Court ordered that the Attorney-General was to have costs against Mr Taylor in the sum of $6,756.05 plus disbursements of $1,190.66.

The key legal issues in the case were whether the Court had jurisdiction to award costs despite the dismissal of the petition for want of standing, the appropriate category and time band for the costs, and whether the public interest element of the challenge warranted a reduction in costs. The Court found that it had jurisdiction to award costs, and while it was not appropriate to award costs on a category 3 basis, a one-fifth reduction was appropriate due to the public interest element of the challenge and the shared responsibility of the argument. The Court rejected the argument that the application for costs was brought in bad faith.

The Court's reasoning was based on the principles of cost allocation in cases where a petitioner lacks standing to bring a petition, the public interest element of the challenge, and the shared responsibility of the argument by counsel for the first respondent and the amicus. The Court found that it was not appropriate to award costs on a category 3 basis, given that Mr Taylor, who is not legally qualified, was able to make helpful submissions to the Court directly on the relevant issues. The Court also found that a one-fifth reduction in costs was appropriate due to the public interest element of the challenge and the shared responsibility of the argument.

The final orders of the Court were that the Attorney-General was to have costs against Mr Taylor in the sum of $6,756.05 plus disbursements of $1,190.66, and no order for costs was made against the two proposed intervenors. The Court rejected the argument that the application for costs was brought in bad faith and for the purpose of preventing others from pursuing issues such as this in the future.

Orders