Payne v New Zealand National Party Board [2008] NZCA 360 (10 September 2008)

Last Updated: 17 September 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/2008

[2008] NZCA 360

BETWEEN ROGER JOHN PAYNE
Applicant

AND NEW ZEALAND NATIONAL PARTY BOARD
Respondent

Counsel: Applicant in Person
P T Kiely for Respondent

Judgment: 10 September 2008 at 11.30 am

JUDGMENT OF ARNOLD J

The application to review the Registrar’s refusal to dispense with security for costs is declined.

REASONS

[1] Mr Payne seeks a review of the Registrar’s refusal to waive security for costs.
[2] Mr Payne wishes to stand for election as a Member of Parliament as the National Party’s candidate for Selwyn in the upcoming General Election. He was nominated for selection as a candidate, but the Board of the National Party, exercising its power under the Party’s Constitution, refused to approve his nomination.
[3] Mr Payne applied as a matter of urgency for an interim injunction preventing the process for the final selection of the National Party candidate for Selwyn from continuing. Panckhurst J initially refused an injunction, on the ground that the material before him disclosed no serious question to be tried: HC TIM CIV 2008-476-000125 20 March 2008. Mr Payne then applied to recall the judgment, pursuant to r 542(3) of the High Court Rules, on the ground that the Judge’s attention was not drawn to s 71 of the Electoral Act 1993. Following further argument, the Judge granted Mr Payne’s application and issued an interim injunction on 3 April 2008. The Judge considered that s 71 did raise an arguable issue. As Mr Payne had not then issued the substantive proceedings, the Judge ordered that a directions conference be held to fix a timetable.
[4] The National Party then applied to have the injunction rescinded, pursuant to r 259 of the High Court Rules. After full argument Panckhurst J granted that application, essentially on the basis that there was no serious question to be tried: 1 May 2008. Mr Payne filed an appeal from that judgment on 27 May 2008, and in that context applied to the Registrar for dispensation from providing security for costs. The Registrar declined Mr Payne’s application. Mr Payne now seeks a review of that decision by a Judge.
[5] In support of his application for review, Mr Payne said that the case was one of great constitutional importance, which he was pursuing in the public interest rather than for personal gain. Mr Kiely for the National Party opposed the application. He submitted that there was no serious question to be tried and in any event, given the passage of time the balance of convenience did not support the granting of an interim injunction.
[6] The Registrar concluded that Mr Payne had not made out a sufficient case for dispensation. I agree. Mr Payne is seeking to appeal the Judge’s decision to rescind the interim injunction. The effect of the Judge’s decision was that the National Party completed its candidate selection process for Selwyn. Given the passage of time it is improbable that this Court would reintstate the interim injunction given balance of convenience considerations. And before that became a live issue, Mr Payne would have to overcome the difficulty of establishing, contrary to Panckhurst J’s view, that there was a serious question to be tried.
[7] In a telephone conference on 9 May 2008 Mr Payne advised Panckhurst J that he intended to proceed with the substantive claim despite the rescinding of the interim injunction. Accordingly, rather than appealing against the order rescinding the interim injunction, Mr Payne should, in my view, have advanced the proceedings to a substantive hearing. If he did not succeed at trial, he could have appealed. This Court could then have addressed the real basis of Mr Payne’s concern fully, on the merits. There seems to be no reason that this course could not have been completed prior to the election. Mr Payne has chosen to adopt a less appropriate course, which will address his concern only in a preliminary way (i.e., is there a serious question to be tried?), and seeks an indulgence to enable him to do so. He did not need to pursue this course if he simply wished to obtain a determination of the important constitutional issues which he says are his concern.
[8] If this appeal does not proceed, Mr Payne still has the option of going to trial. If the judgment goes against him, he will be able to appeal to this Court, which can then address the important constitutional questions which Mr Payne says that this case raises on a final rather than an interim basis.
[9] Accordingly, I decline Mr Payne’s application to review the Registrar’s decision.

Solicitors:
Kiely Thompson Caisley, Auckland for Respondent