Taylor v Key
[2014] NZHC 3409
•23 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2014-404-2657 [2014] NZHC 3409
BETWEEN ARTHUR WILLIAM TAYLOR
Petitioner
AND
JOHN PHILLIP KEY 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
Hearing: 22 December 2014 Court:
Winkelmann and Heath JJ
Counsel:
A W Taylor, in person, Petitioner
P T Kiely and M S King for First Respondent
D Perkins for Second and Fourth Respondents
A S Butler, amicus curiae (written submissions only)Judgment:
23 December 2014
JUDGMENT (NO. 2) OF THE COURT
This judgment was delivered by me on 23 December 2014 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
TAYLOR v KEY [2014] NZHC 3409 [23 December 2014]
Introduction
[1] On 22 December 2014, we heard three applications arising out of an election petition lodged by Mr Arthur Taylor, an inmate at Auckland Prison, in respect of the Helensville electoral district. Mr Taylor seeks orders amending his petition, requiring discovery of specified documents from, and the right to interrogate, the successful candidate, The Rt Hon John Key, the Prime Minister of New Zealand.
The petition is set down to be heard on 27, 28 and 29 January 2015.1
[2] During the course of the hearing, we dismissed all but one aspect of the application to amend, but allowed certain allegations to be added as particulars to existing claims in the petition. We reserved our decision on the applications for discovery and the issue of interrogatories.
[3] Mr Butler has been appointed as amicus curiae by the Court. He was not able to attend yesterday’s hearing. We acknowledge the written submissions that he filed, which have been taken into account in the decisions we have made.
[4] We now provide our reasons for making our decisions on the application to amend, and our decisions on the remaining two applications. Given the need for a prompt judgment on all applications, we do not address each argument presented to us, whether by Mr Taylor or counsel for other parties. After summarising the nature of the applications, the grounds on which they are based, and the reasons why they are opposed, we set out our own independent analysis of the competing contentions.
The petition
[5] The petition is brought under s 229(3) of the Electoral Act 1993 (the Act). Mr Taylor challenges Mr Key’s election as Member of Parliament for the Helensville district. Auckland Prison is situated at Paremoremo, a place that is within the
boundaries of that district. While Mr Key challenges Mr Taylor’s standing to
1 Section 235 of the Electoral Act 1993 requires an election petition to be heard by three Judges of the High Court nominated by the Chief Justice. The Court nominated to hear the petition is Winkelmann, Heath and Venning JJ. As Venning J was unavailable on 22 December 2014, all parties agreed that Mr Taylor’s applications could be heard and determined by Winkelmann and Heath JJ.
petition the Court,2 that point has been deferred for argument at the substantive hearing.
[6] The petition arises out of the General Election held on 20 September 2014. Mr Taylor asserts that the election in the Helensville electoral district was “unlawful and/or void and of no effect”. There are three broad grounds on which that allegation is made:
(a) Prisoners were wrongly excluded from voting at the General Election.
It is contended that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 (the Disqualification Act) is invalid because, while purporting to disqualify prisoners from voting in a General Election, it was passed by a simple majority in the House of Representatives, rather than the 75% majority required to amend the voting eligibility provisions of s 74 of the Act. Section 74 is one of those provisions entrenched by s 268(1)(d) and (2)(a) of the Act; it requires any repeal or amendment to be passed by a majority of 75% of all Members of the House of Representatives. Other reasons are also advanced to support an argument that the Disqualification Act is ineffective, as a matter of law.
(b)Even if it were otherwise valid, the Disqualification Act does not apply to remand prisoners. No steps were taken to enable that class of inmate to register for or to vote in the election.
(c) The successful candidate knew and “benefited from endorsements and statements of support” made by “prominent personalities” on polling day (the unlawful endorsement claims), such endorsements amounting to an offence under s 197(1)(g)(i) of the Act.
[7] Mr Taylor seeks a variety of remedies. They include declarations that the election in the Helensville electoral district was unlawful and/or void and an order
that the election for that district be re-run.
2 Section 320(1).
The application to amend the petition
(a) The grounds on which the application is brought
[8] As a result of disclosures by the Electoral Commission, Mr Taylor has discovered that a video was featured on the New Zealand “Young Nats” Facebook page. It was posted on the site late on Friday 19 September, and remained available for viewing on polling day, 20 September 2014. The video is 13 seconds long and features Mr Key saying:
Hi I’m John, you knew that, at the end of the day you also know that this is the day you go out and vote, so get out there and give your party vote to national, let’s bring the blue team home for another three very prosperous year, Party Vote National.
[9] Mr Taylor applies to amend the petition to incorporate allegations linked to that statement and other material that he obtained on disclosure from the Electoral Commission. In particular, he alleges that Mr Key engaged in a “corrupt practice” to these effects:3
(a) Before the close of polling on September 20 2014, Mr Key “published, distributed, exhibited, or caused to be published, distributed or exhibited in or in view of a public place” statements of fact he knew were false in material particulars.
(b)Those material particulars were that the three preceding years for the New Zealand economy had been “very prosperous” and re-electing the National Party to government would ensure continuation of a “very prosperous” economy for a further three years”.
(c) An All Black, Mr Israel Dagg, before the close of polling on polling day 20 September 2014, communicated or caused to be communicated by tweet to his approximately 83,000 followers on
Twitter that he had cast his vote for Mr Key.
3 The term “corrupt practice” means any act declared by the Electoral Act 1993 to be a “corrupt practice”: Electoral Act 1993, s 3(1), definition of “corrupt practice”. The nature of a “corrupt practice” is more fully explained in ss 215–218 of the Act.
[10] Mr Taylor asks the Court to report to the Speaker of the House of Representatives that corrupt practices were proved to have been committed at the election “with the knowledge, consent and/or connivance of [Mr Key] and/or his agents”.4 To do this, he seeks to amend his claim for relief to incorporate a plea for the Court to make a special report to the Speaker. In addition, he asks the Court to make a special report to the House of Representatives “concerning any finding it
may make in relation to the unlawful prohibition of prisoners over 18 who are New Zealand citizens or permanent residents voting and the failure to provide adequate facilities for remand prisoners to enrol and vote”.5
(b) The grounds on which the application is opposed
[11] The Electoral Commission and the Department of Corrections abide the decision of the Court. They advise that they do not oppose an amendment that seeks relief in the form of a special report in connection with the prisoner voting rights issue. They accept that relief is sufficiently connected to claims made by the petitioner prior to the expiry of the time for presenting the petition.
[12] Apart from the special report issue,6 Mr Kiely, for Mr Key, opposes the application for amendment. He says that the application to amend the petition is outside the 28 day timeframe prescribed in s 231 of the Act for presenting an election petition. He contends that the allegation that Mr Key was involved in a corrupt practice is a fresh allegation that cannot be added to the petition outside of that time limit.
[13] Alternatively, Mr Kiely submits that even if the amendment is not time- barred Mr Taylor is seeking an indulgence from the Court to make extensive
changes. He submits that this indulgence should not be granted, contending that the
4 Mr Taylor also seeks leave to make other consequential amendments to support these allegations. These amendments would add in reference to sections of the Electoral Act as follows; s 199A (person guilty of corrupt practice who publishes false statements to influence voters), s 203(2)( c) (prohibition on including information obtained at a polling place as to who an elector voted for), s 218 (2)(b) (person guilty of corrupt practice who influences vote through fraudulent device), and s 224(1) (punishment for corrupt or illegal practice).
5 The ability for the Court to make a “special report” is conferred by s 245 of the Electoral Act
1993.
6 See para [29] below.
new claim has no reasonable prospect of success because Mr Key did not publish the video, and so did not undertake the alleged corrupt practices.
[14] Mr Taylor responds that the Court has a discretion to amend the petition. He relies upon Rule 5 (2) of the Constituency Election Petition Rules 2008, which make applicable the High Court Rules as to amendment. He submits that s 229 of the Act does not operate to limit the grounds on which a petition “complaining of an unlawful election” may be pursued, in accordance with Part 8 of the Act.
[15] Mr Taylor contends that there is no requirement that the precise reasons why it is alleged an election is unlawful must be presented or identified within the 28 days specified in s 231(1). In his submission, the touchstones must be whether there is any prejudice in granting the amendment and whether fair trial concerns are met. It would be unjust, he submits, were he not permitted to make the amendments.
[16] Mr Taylor points out that the Court has jurisdiction under s 236 (4) of the Act to inquire into and adjudicate on any matter relating to the petition in such manner as it sees fit.7 He says that the objection to amendment is made on a technical basis and reminds us that s 240 of the Act provides that petitions should be decided on “the substantial merits and justice of the case without regard to legal forms and technicalities”.
[17] Mr Taylor says that these are serious allegations and it is in the public interest that they see the light of day. He argues that we should interpret the Act in a “rights consistent” way. Section 27(1) of the New Zealand Bill of Rights Act requires that natural justice be observed. The provisions should therefore be interpreted to allow a full, fair and impartial hearing of these matters.
(c) Is the proposed amendment out of time?
[18] Section 229(1) provides:
7 This provision liberates the Court from the strictures dealing with election petitions: see, for example, Re Northern Maori Election (1915) 34 NZLR 296 and Re Raglan Election Petition [1947] NZLR 363. See also, paras [23] and [24] below.
No election and no return to the House of Representatives shall be questioned except by a petition complaining of an unlawful election or unlawful return (in this Act referred to as an election petition) presented in accordance with this Part of this Act.
[19] Section 231(1) provides:
Subject to the provisions of this section, an election petition shall be presented within 28 days after the day on which the Electoral Commission has publicly notified the result of the poll.
[20] Although it is common ground that the application was filed after the 28 days had elapsed, jurisdiction to amend exists, as a matter of law. Rule 5 of the Constituency Election Petition Rules 2008 provides that the High Court Rules (other than those expressly excluded) apply, unless they are modified by or inconsistent
with the Act or the Constituency Election Petition Rules.8 While r 7.7 of the High
Court Rules is expressly excluded by r 5(1)(j) of the Constituency Election Petition Rules, r 7.77 of the High Court Rules is not. Unless inconsistent with the Act, amendment of the petition is permitted. In Re Wellington Central Election Petition, this Court held that a succession of amendments to New Zealand’s electoral legislation indicated “some limited power of permitting amendments” was
contemplated.9
[21] The question is: does s 231 apply to prohibit the particular amendments sought? In our view, the ability to permit amendment turns on whether what is proposed raises an entirely new point, or merely particularises something that has been more generally alleged previously. The inability to amend in the first of those situations, is consistent with the “fundamental nature” of the time limit imposed for
filing an election petition.10 On the other hand, the proper particularisation of more
general allegations assists all parties, and the Court, to focus on the points to be determined at trial.
[22] We consider that s 231(1) does operate to prevent amendments which raise a new ground of challenge. This interpretation is consistent with the statutory scheme,
8 The extent to which powers conferred by the High Court Rules could be exercised was considered, in the context of an application to extend time to lodge security for costs, in Taylor v Davis [2014] NZHC 2986 at [24](c) and (d).
9 Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 (HC) at 478–479.
10 At 477. See also Taylor v Davis [2014] NZHC 2986 at [23] and [24].
which is directed toward ensuring that election petitions are filed and dealt with promptly. The public policy imperatives for this approach are clear: “it is undesirable to have someone serving in public office with doubts surrounding the legitimacy of his election”.11 That imperative would be undermined were petitioners able to bring what amounts to essentially fresh grounds of challenge outside of the time frame. In any event, it remains open to bring criminal proceedings in relation to
alleged corrupt practices.
[23] Previous courts have taken the same approach to late amendments to election petitions. Although decided under differently worded legislation, in Re Patea Election, both Stout CJ12 and Williams J held that an attempt by a petitioner to add a new ground of challenge to an election petition was beyond the jurisdiction of the Court. Williams J said:13
The Judges, by s 15, have the same power of amendment as a Judge at nisi prius, but that power is to be exercised subject to the provisions of the Act. If the petition must be presented within a definite time, if it must contain specific grounds of complaint, and if no other grounds than those set out in the petition can be investigated at trial, it follows that after the time has expired within which the petition must be presented no amendment setting forth further specific grounds of complaint in addition to the grounds mentioned in the petition can be made.
…
Amendments [have been] allowed in order to meet the case that the parties really came to try, and not for the purpose of enabling a plaintiff to set up an entirely new and different case.
[24] While the Election Petitions Act 1880 (which was in force when Re Patea Election was decided) placed a restriction on the Court from going beyond grounds set out in a petition that had to be presented within 28 days of the election,14 that restriction was removed in later electoral legislation. In Re Wellington Central Election Petition, a case decided under the Electoral Act 1956, the Court observed that this change was “an indication, …., that some limited power of permitting
amendments [was] contemplated”.15 But, notwithstanding that change, it would be
11 Ahmed v Kennedy [2003] 1 WLR 1820.
12 Re Patea Election (1900) 4 GLR 173 (HC) at 174.
13 At 177.
14 Section 4. See also Re Patea Election (1900) 4 GLR 173 (HC) at 176.
15 Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 (HC) at 476.
“contrary to the scheme and purpose of the legislation to allow a new case to be set up out of time”.16
[25] The amendments that Mr Taylor seeks to make allege that Mr Key engaged in various “corrupt practices”. Such an allegation does not appear, even in the most general terms, in the petition. However, the petition does allege that Mr Key benefited from the unlawful endorsements. By relying on s 197(1)(g)(i) of the Act, Mr Taylor was alleging that the unlawful endorsements amount to illegal practices.
The Act draws a sharp distinction between allegations of “corrupt”17 and “illegal”18
practices.19 In general terms, corrupt practices are deliberate attempts to influence an election outcome through wrongful means. Illegal practices encompass predominantly inadvertent or technical breaches of the electoral rules.
[26] We think it is significant that different results can flow from a finding of a corrupt or illegal practice:
(a) where an elected candidate is found to have committed a corrupt practice, his or her election is void20 and the seat of that member is automatically vacated;21
(b)where corrupt or illegal practices in relation to an election “have so extensively prevailed that they may be reasonably supposed to have affected the result”, then the election will also be void;22 and
(c) where a candidate is shown to have committed bribery, treating or undue influence, any votes procured by those methods are struck
off.23
16 At 478.
17 Electoral Act 1993, ss 199A, 215–218.
18 Sections 219–222.
19 For a useful summary of the differences between these types of practices, see A Geddis, Electoral Law in New Zealand: Practice and Policy (2nd ed, 2014, LexisNexis Wellington) at paras 8.2–8.5.2.
20 Section 237.
21 Section 55(1)(d).
22 Section 238.
23 Section 239. Further, any person found to have committed a corrupt practice is automatically entered onto the “corrupt practices list” for his or her electoral district, resulting in automatic disqualification from standing as a candidate for three years.
[27] We are satisfied that the proposed amendments, in so far as they are currently formulated in terms of an allegation of corrupt practice, should not be allowed as they articulate new grounds of challenge to those contained within the existing petition, and are sought to be made outside of the 28 day time limit.
[28] Nevertheless, we consider that the conduct on which Mr Taylor relies to base his allegations of corrupt practices may properly be added as particulars to the allegations of unlawful endorsements,24 except for the allegation that the video contained false statements by Mr Key. That means that tweets made by Mr Israel Dagg, Mr Jonah Lomu and Mr Eric Murray will be considered in this context, as will the question whether the availability of the video on polling day25 amounted to an illegal practice of the type alleged, and that Mr Key knew of that conduct.
[29] Without opposition, we make an order amending the petition to ask the Court to provide a “special report” to the Speaker of the House of Representatives, should any matter arise during the course of the trial that would justify that course. We make this amendment out of an abundance of caution, because it seems to us that the legislation enables the Court to form its own view on whether such a report should be made, in any event.
(d) Resolution of “illegal practices” allegation at trial
[30] Section 236 of the Act deals with the trial phase of a petition. The Court is given broad powers “to inquire into and adjudicate on any matter relating to the petition”26 and may report to the Speaker on whether it has found any corrupt or
illegal practices proved.27 Section 236(7) deals specifically with the situation in
which an allegation of a corrupt or illegal practice has been made:
236 Trial of petition
…
(7) On the trial of an election petition, unless the Court otherwise directs, any charge of a corrupt or illegal practice may be gone into, and
24 This distinction was recognised in Re Northern Maori Election (1915) 34 NZLR 296.
25 See paras[8] and [9] above.
26 Electoral Act 1993, s 236(4).
27 Section 244.
evidence in relation thereto received before any proof has been given that any candidate was aware of or consenting to the corrupt or illegal practice.
….
[31] During the course of the hearing, we canvassed with Mr Taylor and counsel whether the Court should depart from the default position set out in s 236(7). Mr Taylor was the only party to raise concerns; but they were directed primarily to the question whether the process articulated in s 236(7) might prejudice his ability to present a case based on his allegations of illegal practice.
[32] We do not consider that Mr Taylor would be prejudiced if we follow the default position. As we read s 236(7), in the absence of any order to the contrary, we are required at trial to determine whether, on the evidence before the Court, the conduct of which complaint is made amounts to an illegal practice.28 If we found that it did, the Court would necessarily reconvene to hear evidence about whether the candidate was aware of, or consenting to, the illegal practice.
[33] The two phase approach is consistent with the need for the Court to comply with the principles of natural justice, so that those who are alleged to have been involved in an illegal or corrupt practice may give evidence on that topic before any report of conduct of that type is reported to the Speaker.29
Discovery
[34] Mr Taylor’s application for discovery raises two issues. The first is whether Mr Key should be required to discover all information that he possesses or controls in relation to the “Young Nats” video to which we have referred. The second seeks documents from the Electoral Commission. Discovery from that source is being provided informally, and no order is required.
[35] Given our view that the allegation of an illegal practice should be dealt with in two stages, as contemplated by s 236(7), there is no need for discovery by Mr
Key, at this stage, of documents that are designed to demonstrate the degree of
28 The requisite standard of proof is beyond reasonable doubt: see Peters v Clarkson [2007] NZAR
610 at paras [57]–[58]; and Electoral Law in New Zealand at para 14.2.1.
29 Electoral Act 1993, s 244(2).
knowledge or awareness that he had of the existence and use of the video. Although we expressed a provisional view to the contrary at the hearing, on reflection we do not consider that it is necessary for Mr Key to disclose whether he personally possesses any documents that relate to the video, for the purpose of the first phase of the inquiry.
[36] Mr Taylor’s application for discovery against Mr Key is adjourned for consideration after we have decided whether the existence of an illegal practice has been proved. If we make such a finding, the application will require further consideration; if we do not, the application for discovery will be dismissed.
Application for interrogatories
[37] All of the interrogatories that Mr Taylor seeks to administer to Mr Key deal with the latter’s statement of knowledge about what occurred in the video, and the purpose for which it continued to be available on the Young Nats’ Facebook page on polling day.
[38] Having regard to the determination of the illegal practice issue in two stages, we do not consider it necessary to determine the interrogatories application at this stage. It can be dealt with on the same basis as the outstanding discovery issues.
Result
[39] For those reasons:
(a) The application to amend the petition is dismissed, save for the claim for relief in the form of a special report.30
(b) The allegations as to conduct which formed the basis of Mr Taylor’s
application to amend are added as particulars of the unlawful endorsements that have been pleaded as illegal practices, with the
30 See paras [27] and [29] above.
exception of the allegation that Mr Key made false statements in the video.31
(c) The application for discovery is adjourned for later consideration.32
(d)The application to issue interrogatories is adjourned for later consideration.33
[40] Costs reserved.
P R Heath J For the Court
Delivered at 2.00pm on 23 December 2014
31 See para [28] above.
32 See para [36] above.
33 See para [38] above.