Taylor v Key (No 1) - [2014] NZHC 3306

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2657 [2014] NZHC 3306

IN THE MATTER
of an electoral petition relating to the

Helensville Electoral District

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: On the Papers

Court:

Winkelmann, Heath and Venning JJ

Parties &Counsel

Mr A W Taylor in Person
P T Kiely and M S King for Mr Key
V L Hardy and E J Devine for Second to Fourth Respondents
A S Butler Amicus
R Francois for Applicants

Judgment:

18 December 2014

JUDGMENT OF THE COURT

This judgment was delivered by me on 18 December 2014 at 10 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

TAYLOR v KEY, ELECTORAL COMMISSION & ORS [2014] NZHC 3306 [18 December 2014]

The application to intervene

[1] Mr Arthur Taylor brings this election petition in respect of the Helensville electorate. The petition raises a number of issues as to the legality of the election for that electorate. Ms Hinemanu Ngaronoa and Mr Edward Rollo apply for leave to be heard in relation to two of these issues:

(a) Whether the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 and s 80(1)(d) of the Electoral Act 1993 breach the right to be free from discrimination under s 19 of the New Zealand Bill of Rights Act 1990, and are therefore unlawful.

(b)The application of the Treaty of Waitangi to the Electoral (Disqualification of Sentenced Prisoners) Amendment Act, and whether it renders those legislative provisions unlawful.

[2] The applicants were previously petitioners in respect of the Te Tai Tokerau electorate, a petition that raised nearly identical issues to those raised in the present petition. The Te Tai Tokerau petition was stayed due to the late provision of security for costs by the petitioners.1

[3] The applicants say that they should be given leave to intervene in this proceeding because they are vitally interested in some of the issues raised in the petition. They are issues that have implications beyond the particular electorate. The applicants are presently precluded from being heard on the issues by the staying of the Te Tai Tokerau petition, arising from what they characterise as a mere technicality, namely the late provision of security. That petition was to have been heard at the same time as the petition in these proceedings.

[4] In addition Ms Ngaronoa is a party to other proceedings which raise the same or similar issues in this Court, and before the Waitangi Tribunal.2 Mr Rollo has sought leave to be joined into these other proceedings. The applicants say they
would therefore be prejudiced if not heard in respect of them. An adverse judgment

1 Taylor v Davis [2014] NZHC 2986.
2 CIV-2013-404-4141; CIV-2014-404-2101; WAI 2472.

may prevent them from arguing these issues in the other proceedings, or at least create a precedent that will…

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 (No 1)

Details

AGLC: Taylor v Key (No 1) [2014] NZHC 3306
Case: [2014] NZHC 3306
Decision Date: 18 December 2014

CaseChat Overview and Summary

In Taylor v Key (No 1), the High Court of New Zealand was asked to determine whether two applicants, Ms Hinemanu Ngaronoa and Mr Edward Rollo, should be granted leave to intervene in an election petition regarding the Helensville electorate. The applicants sought to intervene to argue that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 and section 80(1)(d) of the Electoral Act 1993 violated the right to be free from discrimination under the New Zealand Bill of Rights Act 1990, and whether the Treaty of Waitangi rendered those legislative provisions unlawful.

The applicants argued that they should be allowed to intervene as they had a vital interest in the issues raised, which had broader implications beyond the particular electorate. They pointed to the fact that their similar petition in respect of the Te Tai Tokerau electorate was stayed due to a technicality, leaving them unable to be heard on the issues. Additionally, they argued that they were more competent than the petitioner, Mr Taylor, to make the necessary arguments and that they wished to advance alternative arguments and evidence that Mr Taylor could not adequately present.

The Court considered the principles applicable to the grant of leave to interveners, noting that while the issues raised in the petition were of public importance, the Electoral Act set out a closely prescribed regime for challenging elections and limited those who could challenge an election. The Court was concerned that granting leave would expand the issues, elongate the hearings, and increase the cost of litigation. The Court also found that the amicus appointed to assist in the case would ensure that all relevant arguments were before the Court and that the applicants would not be prejudiced if not granted leave to intervene.

Therefore, the Court declined the application for leave to be heard, finding that the relevant arguments could be adequately made without the applicants' presence and that granting leave would subvert the clear statutory intent that those who could challenge an election should be limited to those classes of person set out in section 230(1) of the Electoral Act.

Orders