Taylor v Davis [2014] NZHC 2986 (24 November 2014)

Last Updated: 12 December 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-2648 [2014] NZHC 2986

IN THE MATTER	of an electoral petition under Part 8 of the Electoral Act 1993
BETWEEN	ARTHUR WILLIAM TAYLOR, LLOYD NATHAN CURRIE, THOMAS EDMONDS First, Second and Third Petitioners
	JANIE HENI HENARE Fourth Petitioner EDWARD ROLLO Fifth Petitioner MIRIAMA ELISABETH WILLIAMS Sixth Petitioner
AND	KELVIN DAVIS 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: Appearances:	Winkelmann, Heath and Venning JJ A W Taylor, in person, First Petitioner R Francois for Second, Third, Fourth, Fifth & Sixth Petitioners S Mitchell and K K Kommu for First Respondent D Perkins for Second, Third and Fourth Respondents A S Butler, amicus curiae
Judgment:	24 November 2014

TAYLOR & ORS v DAVIS & ORS [2014] NZHC 2986 [24 November 2014]

Reasons: 27 November 2014

_{REASONS FOR JUDGMENT OF THE COURT}

This judgment was delivered by me on 27 November 2014 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Introduction

[1] Messrs Taylor, Currie and Rollo and Ms Williams have filed an election petition in respect of the Te Tai Tokerau electoral district. The petition was filed in time.

[2] Section 232 of the Electoral Act 1993 (the Act)¹ requires a petitioner to give security for costs. In summary:

(a) Either at the time of presenting an election petition or within three days after the expiration of the time limited for its presentation, the petitioner must give security to the satisfaction of the Registrar of the Court “for all costs that may become payable by the petitioner to any

witness summoned on the petitioner’s behalf or to any respondent”.²

(b) The amount of the security to be given is $1000. Security is provided by recognisance to the Crown entered into by any number of sureties, not exceeding five; or by way of a deposit of money; or a mix of each.³

(c) If no security was given as required by s 232, “no further proceedings

shall be taken on the petition”.⁴

[3] Security was not provided in time. On 24 November 2014, the Court ruled that there was no jurisdiction to extend the time for security to be given and, as a result, the proceeding was at an end.⁵ These are our reasons for that decision.

Background

[4] A General Election was held on 20 September 2014. The results of the official count were published in the New Zealand Gazette on 4 October 2014. On

¹ _{Section 232 is set out in full at [10] below.}

² _{Electoral Act 1993, s 232(1).}

3. Section 232(2). The machinery by which security is given and how it is treated by the Registrar is set out at rr 10–12 of the Constituency Election Petition Rules 2008.

⁴ _{Section 232(3).}

⁵ Taylor v Davis [2014] NZHC 2939.

7 October 2014, Mr Hone Harawira (Mana Movement), a candidate for Te Tai Tokerau electoral district, sought a judicial recount⁶ for that electorate. The recount was conducted by Judge Broadmore on 9 October 2014. For reasons given on

_{16 October 2014,}⁷ _{the result was amended. The amended count was published in the}

New Zealand Gazette on 10 October 2014. The outcome remained the same but the majority of Mr Davis (Labour) over Mr Harawira (the next highest polling candidate) increased from 739 votes to 743.

[5] Two election petitions were filed in this Court:⁸ one for Te Tai Tokerau, and the other for the Helensville electorate. On 29 October 2014, following a telephone conference involving both petitions, Winkelmann J made the following directions in relation to security for costs:⁹

5. Security for costs

[10] It is a mandatory requirement of the Electoral Act 1993 that security for costs be paid to the satisfaction of the Registrar (by payment of $1000 or the provision of security in the amount of $1000 recognisance to the Crown). Security is to be provided in respect of each petition. Section 232 provides a relevant time frame for this. Although Mr Francois protested the provision of security, he made no submission to suggest that there was any discretion to dispense with it.

[11] The petitioners must provide security for costs in accordance with s

232 and with the provisions of rules 10, 11 and 12 of the Constituency

Election Petition Rules 2008. That security must be provided to the

Registrar’s satisfaction by 4 November 2014 in respect of the Helensville electorate. In respect of the Te Tai Tokerau electorate, that security must be provided to the registrar’s satisfaction by 10 November 2014.

[6] Security was not given in respect of the Te Tai Tokerau petition within the stipulated time. Rather, the petitioners purported to give security two days late, on

_{12 November 2014.}

⁶ _{Electoral Act 1993, s 180.}

⁷ _{Re Harawira DC Kaitaia, CIV-2014-029-126, 16 October 2014.}

⁸ _{Under s 229 of the Electoral Act 1993.}

9. Taylor v Davis HC Auckland CIV-2014-404-2648, 28 October 2014. Security was provided in time for the Helensville petition. We say no more about that.

[7] On 14 November 2014, Winkelmann J issued a Minute to all parties to the Te Tai Tokerau petition drawing the late provision of security to their attention. She said:¹⁰

[1] The petitioners in respect of the Te Tai Tokerau electorate were required to give security to the satisfaction of the registrar by 5.00 pm, 10

November 2014. Security was not provided until 12 November 2014. (Mr

Francois filed an unsigned copy of the bond provided as security on the 11th, undertaking to provide a signed copy on the 12th, which he did).

[2] Section 232(3) of the Electoral Act 1993 provides that if no security is given as required by this section “no further proceedings shall be taken on the petition”. As the section includes the relevant time frame, it would seem that the petitioners did not give security in accordance with the section, and it follows that no further proceeding may be taken on the petition.

[3] If parties wish to be heard on the point they may file and serve submissions. They must do so by 5.00 pm, Wednesday 19 November 2014. The Court will then determine whether a hearing is required on this point, and what, if any further directions should be given.

[4] Finally I note that the petitioners in both electoral petitions are in breach of existing timetable orders as they have yet file memoranda attaching clippings of the advertisements as they appeared in the newspapers.

[8] Written submissions were received on the issue identified by Winkelmann J. On 21 November 2014, Venning J advised the parties that a Full Court¹¹ would be convened to deal with the security for costs issue, but would address the point on the papers.¹² Directions were made for reply submissions to be filed and served by 1pm on 24 November 2014.¹³ It was necessary to deal with the issue promptly because steps had to be taken to have the petition advertised by 5pm on Monday

24 November 2014.

[9] The members of the Court conferred on 24 November 2014. At 4.30pm it issued a decision in which the informal application to extend the time for provision

¹⁰ _{Taylor v Davis HC Auckland CIV-2014-404-2648, 14 November 2014.}

¹¹ Section 235 of the Electoral Act 1993 requires every election petition to be tried before three

Judges of the High Court nominated by the Chief Justice. However, procedural points can be resolved by a single member of the panel appointed: see Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 (HC) at 476. Because a ruling adverse to the petitioners on the security issue would inevitably end the proceeding the three Judges nominated by the Chief Justice decided to deal with the issue as a Full Court.

¹² _{Taylor v Davis HC Auckland CIV-2014-404-2648, 21 November 2014, Venning J, at [2].}

¹³ At [2].

of security was dismissed for want of jurisdiction. We indicated that our reasons for that decision would follow.¹⁴

The requirement to provide security

[10] Section 232 of the Act states:

232 Security for costs

(1) At the time of presenting an election petition or within 3 days after the expiration of the time limited for the presentation of the petition, the petitioner shall give security to the satisfaction of the Registrar of the Court for all costs that may become payable by the petitioner to any witness summoned on the petitioner's behalf or to any respondent.

(2) The security shall be an amount of $1,000, and shall be given by recognisance to the Crown entered into by any number of sureties not exceeding 5 or by a deposit of money, or partly in one way and partly in the other.

(3) If no security is given as required by this section, no further proceedings shall be taken on the petition.

[11] Rules 10–12 of the Constituency Election Petition Rules 2008 (the Election Petition Rules) provide for the means by which security may be given to the satisfaction of the Registrar of this Court. There is nothing within any of those rules to permit any extension of time to be given, if security is provided late. Nor do the Act or the Election Petition Rules provide any source of jurisdiction to dispense with the giving of security.

[12] Rule 5 of the Election Petition Rules refers explicitly to circumstances in which the High Court Rules and the practice of this Court apply to an election petition, in particular:

5 Application of High Court Rules and practice of court

(1) The following rules of the High Court Rules do not apply: (a) rule 1.10 (how security to be given):

...

_{(g) rule 5.45 (power to make order for security for costs):}

¹⁴ Taylor v Davis, above n 5, at [4] and [6].

...

(2) The High Court Rules, other than the rules listed in subclause (1), and the general practice of the court apply unless they are modified by or inconsistent with the Act or these rules.

Analysis

[13] On behalf of the petitioners, it was argued that r 1.5 of the High Court Rules gave jurisdiction to extend the time to provide security. Rule 1.5(1)(a) and (b)(i) makes it clear that a “failure to comply with the requirements of” the High Court Rules must be treated as an irregularity and does not nullify the proceeding. It was submitted that r 1.5 was imported into the election petition regime and could operate to provide a source of jurisdiction to extend time for compliance with the provision of security.

[14] Alternatively, the petitioners called in aid the New Zealand Bill of Rights Act

1990 (the Bill of Rights) in order to provide a more expansive means of interpreting the provisions of the Act and the Election Petition Rules to facilitate an ability for the Court to extend time. Particular emphasis was placed on the consequences of denying access to justice by interpreting s 232 of the Act in a narrow manner and infringing the rights of Maori, as indigenous people, when a disproportionate number in this group receive lower incomes and are less able to afford to pay security.¹⁵

[15] The contrary position is that the words of s 232(1) and (3) are clear and must be followed. First, it was submitted that r 1.5 of the High Court Rules has no application to statutory requirements for the giving of security for costs on an election petition. Second, reliance was placed on authorities such as Attorney-

General v Howard¹⁶ and Inglis Enterprises Ltd v Race Relations Conciliator¹⁷ to

support the proposition that failure to comply with an express statutory provision does not constitute a procedural irregularity of the type that can be cured by r 1.5 of

_{the High Court Rules.}

¹⁵ We consider that this argument is more relevant to the question whether there should be a dispensation from the requirement to provide security. That was not sought. However, for the same reasons that have led us to conclude that there is no power to extend time, no power to dispense exists either. See also [26](a) below.

¹⁶ _{Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 (CA).}

¹⁷ Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404 (HC).

[16] Historically, decisions on questions of contested elections were vested in the assembly for which the contested election had been held. However, during the course of the 19^th Century, the United Kingdom and many of its possessions, came to the view that such questions ought to be entrusted to the Courts. In Nair v Teik, the Privy Council explained that was because “deliberations of the assembly itself were apt to be governed rather by political considerations than the justice of the case”. ¹⁸

[17] The need for the result of an election to be known promptly, so proper government of the country can continue, makes it essential for the Court to determine election petitions “as quickly as possible, so that the assembly itself and the electors of the representatives thereto should know their rights at the earliest possible moment”.¹⁹ This point was reinforced in Re Wellington Central Election Petition, Shand v Comber, in the context of an application to join the Returning Officer and Registrar of Electors as parties, and to excuse publication of an “amended petition”.²⁰ An example of Parliament’s intention that the Courts deal promptly with election petitions can be found in s 235 of the Act which requires every election petition relating to the return of a Member of Parliament representing an electoral district²¹ to be tried before three High Court Judges nominated by the

Chief Justice, with no right of appeal.²²

[18] In Wellington Central Election Petition, Cooke J, delivering the judgment of himself, Wild CJ and Roper J, sketched the history of election petitions in New Zealand, to demonstrate “a tendency towards more simplicity and liberality” on jurisdictional questions. In particular, he observed:²³

(a) An election petition is now dealt with by the High Court, although its trial must take place before three Judges. The Electoral Act 1956 had done away with the need for a special Election Court, for which s 206

_{of the Electoral Act 1927 had provided.}

¹⁸ _{Nair v Teik [1967] 2 All ER 34 (PC) at 36.}

¹⁹ _{At 36.}

²⁰ _{Re Wellington Central Election Petition, Shand v Comber [1973] 2 NZLR 470 (SC) at 477–478.}

²¹ _{Electoral Act 1993, s 229(3).}

²² _{As to the absence of a right of appeal, see s 242 of the Act.}

23. Wellington Central Election Petition, above n 20, at 476. We have updated the terminology to refer to what was then known as the Supreme Court as the High Court.

(b) As a result, it was no longer necessary for a Court having jurisdiction to hear an election petition to be specifically clothed with all powers of the High Court. That distinguished the position from what had pertained under the 1927 Act, when an Election Court was required.

(c) In respect of election petitions, the High Court can exercise ordinary powers, so far as relevant, including those applicable to interlocutory proceedings. Nevertheless, those powers must yield to specific provisions in the Act or the Election Petition Rules to the contrary.

[19] The need to take care in determining the scope of any power for the Court to validate irregularities is emphasised by s 266 of the Act, which confers some jurisdiction on the Governor-General to do so, by Order in Council:

266 Validation of irregularities

Where anything is omitted to be done or cannot be done at the time required by or under this Act, or is done before or after that time, or is otherwise irregularly done in matter of form, or sufficient provision is not made by or under this Act, the Governor-General may, by Order in Council published in the Gazette, at any time before or after the time within which the thing is required to be done, extend that time, or validate anything so done before or after the time required or so irregularly done in matter of form, or make other provision for the case as he or she thinks fit:

Provided that this section shall not apply with respect to the presentation of an election petition or to the giving of security for costs in relation to an election petition.

[20] The proviso to s 266 means that the Governor-General has no power to validate a breach of a requirement in relation to either the presentation of a petition or the giving of security for costs on an election petition. That was the subject of comment in Wellington Central Election Petition. The Full Court hearing that petition did not consider that the forerunner of s 266 (s 187 of the Electoral Act

1956) could operate to validate non-compliance with “the fundamental statutory requirements about presentation and security”.²⁴

[21] Generally, Courts have insisted on strict compliance with time limits imposed for steps to be taken on an election petition. As long ago as 1879, in Williams v The

²⁴ At 477. The extract from which this quotation has been taken is set out at para [23] below.

Mayor of Tenby,²⁵ the failure of a petitioner to serve a notice on a respondent of the presentation of a petition and the nature of the proposed security was held to be in breach of a condition precedent to the trial of a municipal election petition. In 1967, having commented on the fact that Williams had “stood the test of nearly 90 years” the Privy Council, in Nair v Teik,²⁶ held that it had been rightly decided and supported its own decision to strike out a petition for failure to serve in time. In each of those cases, non-compliance was held to render the proceeding a nullity.

[22] In Wellington Central Election Petition a more liberal approach was taken to the circumstances in which failure to comply with election petition time limits could be regarded as curable irregularities, rather than breaches of conditions precedent to the trial of a petition which rendered the proceeding a nullity.²⁷ Such an approach was said to be consistent with an earlier case, Wellington City Election Petition,²⁸ in

which Prendergast CJ and Conolly J had held that non-joinder of a Returning Officer was not fatal to the petition.

[23] Nevertheless, Wellington Central Election Petition confirms that a strict approach should be taken in relation to time limits set for the presentation of a petition or the giving of security for costs. The Court said:²⁹

... Lastly in this context we refer to s 187 of the [Electoral Act 1956, the equivalent of which in the 1993 Act is s 266] Act. That section appears to have extended the validating power of the Governor-General so widely as to cover even procedural defects in connection with election petitions, apart from the fundamental statutory requirements about presentation and security. It was therefore suggested for the respondent in the course of the argument that after presentation and security any irregularity, however trivial, could be rectified only by Order in Council. We do not think that so manifestly inconvenient and unreal an intention should be imputed to Parliament. So far as it touches election petitions s 187 must have been intended to supplement the powers of the Court, not to limit them.

(Emphasis added)

[24] In our view, the scheme of the Act, as supplemented by the Election Petition

_{Rules, demands a strict interpretation of provisions that limit time for the}

²⁵ _{Williams v The Mayor of Tenby (1879) 5 CPD 135, at 137–138.}

²⁶ _{Nair v Teik, above n 18, at 36, 39–40.}

²⁷ _{See also [18] above.}

²⁸ _{Wellington City Election Petition (1897) 15 NZLR 454 (SC) at 458–459.}

²⁹ At 477. References are to the Electoral Act 1956 and the Election Petition Rules 1957.

presentation of petitions and the provision of security for costs. Our reasons for reaching that view are:

(a) Election petitions are the only means by which election of a candidate to the House of Representatives may be questioned.³⁰ The need for timely resolution of election petitions does not require elaboration. The tight times within which an election petition must be presented³¹ and for security for costs to be given³² are testament to that proposition.

(b) Both s 266³³ and Wellington Central Election Petition,³⁴ confirm the need for time limits for presentation of petitions and the provision of security for costs to be complied with strictly. That is due to their fundamental nature.

(c) There is no express provision for the extension of time to give security in either the Act or the Election Petition Rules. Nor is there any reference to the High Court Rules, in that regard. Indeed, r 5(1)(a) and (g) of the Election Petition Rules both exclude provisions of the High Court Rules that deal with security for costs.³⁵

(d) Rule 1.5 of the High Court Rules does not provide any residual jurisdiction to extend the time for compliance with the provision of security. Rule 5(2) of the Election Petition Rules, while operating to apply those High Court Rules that are not excluded by r 5(1), makes it clear that the High Court Rules (and the general practice of the High Court) do not apply if “inconsistent with the Act” or the Election Petition Rules. An ability to extend time for compliance with the s 232(1) obligation is plainly inconsistent with the consequence set

_{out in s 232(3).}

³⁰ _{Electoral Act 1993, s 229(1).}

³¹ _{Section 231.}

³² _{Section 232, set out at [10] above.}

³³ _{Set out at [19] above.}

³⁴ _{See the extract set out at [23] above.}

³⁵ See [12] above.

(e) Section 232(3) of the Act is expressed in unequivocal terms. If no security were given as required by s 232, “no further proceedings shall be taken on the petition”. Nothing could be plainer.

[25] This approach is consistent with that taken in Attorney-General v Howard,³⁶ in the context of an application to extend time to comply with appeal processes mandated by the Human Rights Act 1993. Separate judgments were delivered by the three members of the Court of Appeal in that case. Glazebrook J took the view that as “the time frames for filing and service are set out in the [Human Rights Act], they are mandatory”.³⁷ They could not be extended by the Court because there was

nothing in the specific legislation to authorise such an extension.³⁸ William Young P

agreed with that approach.³⁹ There is nothing in the judgment of Robertson J to suggest that he took a different view on this topic.

[26] In our view, none of the interpretation aids on which the petitioners rely,⁴⁰ or the “real justice” requirement of s 240 of the Act militate against the strict approach we have taken. In summary:

(a) Compliance with strict time limits is not inconsistent with the “right to justice” provision⁴¹ of the Bill of Rights.⁴² Security is fixed at a relatively modest level and may be provided in different ways.⁴³

(b) There is no provision in either the Act or the Election Petition Rules to enable the Court to dispense with the giving of security.

(c) Section 240 of the Act is directed to the trial of an election petition. It emphasises the need for the Court to approach its resolution on the

_{basis of the “substantial merits and justice of the case”.}⁴⁴ _{It does not}

³⁶ _{Attorney-General v Howard, above n 16.}

³⁷ _{At [100].}

³⁸ _{At [100].}

³⁹ _{At [168].}

⁴⁰ _{See [14] above.}

⁴¹ _{New Zealand Bill of Rights Act 1990, s 27.}

42. For an illustration of this proposition, see Siola’a v Wellington District Court [2008] NZCA 483 [2009] NZAR 23 (CA) at [19].

⁴³ _{See [2](b) above.}

⁴⁴ Electoral Act 1993, s 240(a).

authorise this Court to depart from mandatory time limits in relation to the presentation of a petition or the giving of security for costs.

[27] In short, there is no answer to the specific words of s 232(3): “If no security is given as required by this section, no further proceedings shall be taken on the petition”. Security not having been provided within the time stipulated, the proceeding is at an end.

Solicitors:

Warren Simpson, Papakura

Crown Law, Wellington

Kiely Thompson Caisley, Auckland Grimshaw & Co, Auckland Counsel:

R Francois, Auckland

S R Mitchell, Auckland

Copy to:

Mr A W Taylor, Auckland