The application for an extension of time to file the case on appeal is dismissed.
The application that the processes of this Court be “replaced” by a complaint to the Judicial Conduct Commissioner is beyond the jurisdiction of this Court and is dismissed.

For the avoidance of any doubt, the substantive appeal itself is dismissed.

The respondents (jointly and severally) shall have costs against the appellant/applicant, Mr Payne, as on an application for leave to appeal, Band A, and usual disbursements.

E Reasons to follow.

In case there should be any matters attendant on the electoral process which we have overlooked, we reserve leave to the respondents to apply for any further necessary directions or orders.

___________________________________________________________________

REASONS OF THE COURT

(Given by Hammond J)

[1] On 20 April 2010, we orally dismissed both Mr Payne’s application for leave to appeal to this Court and the appeal, and made other orders. We said we would give our reasons for so doing in writing. This we now do.
[2] The matters presently before the Court have their roots in Payne v Adams.[1] Mr Payne applied to be the National Party candidate for the Selwyn Electorate in the 2008 general election. The National Party board formally declined his candidacy, and he unsuccessfully challenged that decision prior to the election.[2] National Party candidate Amy Adams was returned as the Member for Selwyn, and Mr Payne petitioned the High Court challenging her election. The Chief Justice of New Zealand appointed the Chief High Court Judge, Randerson J, and Allan and French JJ to hear the election petition. The result was that, pursuant to s 243 of the Electoral Act 1993, the panel determined and certified to the Speaker of the House of Representatives that Amy Adams was duly elected as the Member of Parliament for the Selwyn Electorate at that general election.
[3] The panel reserved costs. They were dealt with in a further judgment of that panel dated 1 July 2009.[3] It then determined that Mr Payne was to pay to the respondents a sum of $23,520 plus disbursements as fixed by the Registrar, who was to credit him back the sum of $1,000 paid as security for costs.
[4] Thereafter Mr Payne filed a document, dated 22 January 2010, which on its face claims to be an application for an extension of time for an appeal against that costs judgment. There was an earlier document dated 22 July 2009, in somewhat irregular form, making an “application for an appeal”. If that document is fairly to be so regarded – and we treat it as such – then there is a notice of appeal, together with an application for an extension of time to appeal. In fairness to Mr Payne, although the form was not correct, he appreciated his time dilemma after phone conversations with Registry staff in January 2010.
[5] Leaving the procedural niceties aside, Mr Payne’s argument is that he should not have to pay the costs mentioned in [3] above because, he claims, his proceeding was in the nature of a “public interest” matter.
[6] Mr Kiely responsibly indicated by a letter notice of opposition in the first instance that Mr Payne’s application for an extension of time would be opposed. And, mindful of unnecessary expense, he drew the attention of this Court and Mr Payne to s 242 of the Electoral Act 1993 which provides:

All decisions of the High Court [under Part 8] shall be final and conclusive and without appeal and shall not be questioned in any way.

[7] It should be noted in this connection that the High Court’s power to award costs in respect of election petitions derives from s 250 of the Electoral Act 1993 and not from the High Court Rules. Section 250 falls within Part 8 of the Act. Mr Payne was therefore made aware, at least by March 2010, that the respondents maintained that by statute he had no possibility of advancing his concerns by way of “appeal” to this Court.
[8] In the circumstances arising, a conference was held by Hammond J with Mr Payne on 29 March 2010. At that time Mr Payne advanced the proposition that the application for an extension of time which is presently before us should simply be allowed to lie fallow – possibly for a considerable period – while he made a complaint to the Judicial Conduct Commissioner about the way his earlier litigation has been handled. That application – really for an indefinite adjournment – was declined.
[9] Mr Payne thereafter purported to withdraw his application for an extension of time and to “replace” it with an inquiry by the Judicial Conduct Commissioner. This left the respondents in the position that they did not quite know what course Mr Payne was following and on what legal basis he was putting it. Therefore, prior to the hearing before us, Mr Kiely filed a memorandum indicating that unless the appeal itself was formally and unequivocally withdrawn prior to the hearing, his interests would seek to have it dismissed.
[10] Mr Payne chose not to appear. Before us Mr Kiely emphasised that a critical policy that lies behind the rules relating to election petitions is the need for finality in relation to general elections. He said, citing authority which we need not traverse here, that there is no right of appeal from a High Court decision in respect of an election petition. Mr Kiely is plainly right.
[11] That being the state of the law, there is no possibility whatsoever of Mr Payne being able to advance his costs’ argument to this Court. There is no jurisdiction for this Court to entertain his hoped for appeal.
[12] We therefore made the orders listed above, which are designed to clear away the various applications that Mr Payne has made to this Court, and the appeal itself.
[13] We comment on D. Mr Kiely sought costs. Mr Payne could have, but did not withdraw his appeal and his associated application once the legislative provisions were drawn to his attention. He sought to substitute something else. It is, therefore, appropriate that we should make an order for costs, and we did so as above noted.

Solicitors:
Kiely Thompson Caisley, Auckland, for Respondents

[1] Payne v Adams [2009] 3 NZLR 837 (HC).
[2] Payne v New Zealand National Party [2008] 3 NZLR 233 (HC).
[3] Payne v Adams HC Christchurch CIV-2008-409-3089, 1 July 2009.

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