Taylor v Key [2014] NZHC 3306 (18 December 2014)

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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}

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

[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.²Mr 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}

may prevent them from arguing these issues in the other proceedings, or at least create a precedent that will prejudice their ability to argue for another outcome. They cite Auckland Area Health Board v Attorney-General³as authority for the proposition that where a proceeding could create an adverse precedent for the intervener in other proceedings, that may be grounds for granting the right to be heard.

[5] The applicants say they wish to advance arguments not relied upon by the petitioner in respect of the two identified issues, and are in any case more competent than Mr Taylor to make all of the arguments, and indeed all arguments in connection with these issues. He is not Maori, and is unrepresented. Mr Taylor does not have the skills and resources to formulate the arguments the applicants seek to make. He is not familiar with Treaty principles. The applicants are represented by counsel. Both applicants are Maori, and Mr Rollo is of Ngapuhi descent. The Helensville electorate is, they argue, part of the sovereign territory of Ngapuhi and within the Te Tai Tokerau electorate. The applicants also wish to advance evidence and arguments which use mathematical calculations to demonstrate the impact of the disenfranchisement of Maori prisoners upon the outcome of the general election. Mr Taylor is not competent to advance that argument.

[6] The applicants say that the amicus appointed to assist in this case cannot make up for the evidential and advocacy deficit they argue will exist in this proceeding unless they are given leave to be heard. The amicus’ role is not to advocate for one side or the other, but ensure that all relevant arguments and evidence are before the Court.

[7] The petitioner, Mr Taylor, has filed an affidavit recording his reasons for supporting the application. He agrees with the applicants’ assessment that he will not be able to advance adequate argument, or evidence, to support the challenge to the election, to the extent that the challenge is based upon the two issues described above. When he brought this petition he did not expect to have to carry the burden of these arguments, anticipating that counsel for the Te Tai Tokerau petitioners would

_{be responsible for this aspect of the case. Mr Taylor invokes s 240 of
the Electoral}

Act, and in particular the obligation placed upon the Court to be guided by the substantial merits and justice of a case without regard to legal form or technicalities. He says that the present position has been brought about by the dismissal of the Te Tai Tokerau petition and it is simply too late for him now to pick up the pieces. He points out that he has only limited resources available to him in prison to prepare for the hearing, and in particular that no word processing facilities are made available to him. He emphasises the importance of the issues at play in this proceeding. He says that if he is unsuccessful in advancing his argument on the two issues he will be adversely affected. He will be precluded from pursuing the same cause of action in the two other proceedings before this Court because the parties are the same in those proceedings, with the exception of the first respondent, Mr Key.

[8] Mr Key and the fourth respondent, the Attorney-General oppose the application. The Attorney-General says that the applicants’ presence before the Court is not necessary to adjudicate on and settle all questions involved in the proceeding. Neither applicant is eligible to bring the petition in their own right. The inability of the petitioner properly to advance arguments he himself raises cannot be a proper basis for intervention. Intervention would increase the cost of litigation. It is unlikely that it would add anything that the amicus’ participation will not already bring to the proceedings in terms of ensuring that all relevant arguments are properly placed before the Court.

[9] The High Court has jurisdiction to grant leave to an interested party to intervene in proceedings before the Court, arising either under the Court’s inherent jurisdiction or the High Court Rules.⁴The jurisdiction may be exercised when the Court is satisfied that intervention is likely to improve the quality of information before the Court on issues wider than those that the parties may wish to address.⁵

Intervention has also been allowed where the party seeking leave has an interest in

_{the outcome of the case that will be directly or indirectly affected, or
even where that}

⁴X v X HC Auckland CIV-2006-404-903, 4 July 2006 at [18]; High Court Rules, rr 1.7, 4.56 and

⁵Diagnostic Medlab Ltd v Auckland District Health Board HC Auckland CIV-2006-404-4724, 18

party has a distinctly arguable case that they will be affected.⁶In such cases, this Court has held it would be unjust to decide the issues in the absence of the party so affected, or potentially affected.⁷

[10] Election petitions typically raise issues of broad public interest. A distinguishing characteristic of petitions is that there is no right of appeal against the substantive decision of the Court. For these reasons we consider that the principles applicable to the grant of leave to interveners in the appellate courts are also of assistance. The Court of Appeal recently restated those principles as follows:⁸

(a) the power is broad in nature, but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation;

(b) in an appeal involving issues of general and wide importance, the Court may grant leave when satisfied that it would be assisted by submissions from the intervener;

(c) the power may be exercised more liberally in appeals involving the court’s special jurisdiction under legislation such as the Employment Relations Act 2000 and the Rating Powers Act 1988; but

(d) leave will not be granted when the appeal is essentially one of statutory interpretation and is unlikely to involve broad questions of policy.

[11] The public importance of issues raised in an election petition is self-evident. We accept the submission that the issues identified in this petition engage important issues concerning the right to democratic participation, as well as the constitutional propriety of actions taken which had the effect of disenfranchising prisoners. These are issues which, although raised in respect of the Helensville electorate, could equally well have been raised in respect of other electorates.

[12] Against that consideration however we weigh the fact that the Electoral Act sets out a closely prescribed regime for the challenging of elections. As well as

_{certain strict procedural requirements, it limits those who can
challenge an election}

⁶Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries HC Wellington CP115/02, 3

⁸Hawke v Accident Compensation Vorp [2014] NZCA 552 at [9] (footnotes omitted).

to persons falling within s 230(1). None of the applicants fall within the s 230(1) categories. It is very relevant to the exercise of the discretion that the use of the intervener procedure would in this case subvert the clear statutory intent that those who have standing to challenge an election be limited as is provided in s 230.

[13] We attach little weight to the argument that the applicants will be prejudiced if they are not granted leave to be joined to these proceedings. If they are not parties to the proceeding, and not heard in the proceedings, then no issue of estoppel can arise against them. They will not be prevented from arguing in different proceedings for a different outcome. As to the significance of the potential precedential effect, on this point we accept the Attorney’s argument that the case the applicants rely upon, Auckland Area Health Board v Attorney-General is distinguishable. That case related to the intervention by the Attorney-General in public law proceedings where there was no other respondent, and in which the Crown’s prosecutorial discretion and prerogative powers may have been impinged upon. There is long standing authority to the effect that “the Attorney-General has a right of intervention in a private suit

[14] Mr Taylor’s inability to properly present the arguments is also relied upon by the applicants. It is for Mr Taylor as to whether he wishes to persist with those arguments. If he does not feel able to advance them in these proceedings, he can keep his powder dry and advance them in the other proceedings in which he also raises these issues. But in any event, should he elect to continue with the issues in these proceedings, we are satisfied that the role of the amicus will be sufficient to ensure that the arguments are advanced to the extent they properly can be. Mr Butler was appointed “to assist the Court ... on the basis that he would take care to ensure that the Court has before it all material evidence and argument needed to resolve the issues. In respect of the evidence, the expectation will be that Mr Butler will identify

[15] As to the applicants’ argument that they wish to run alternative arguments to those that Mr Taylor proposes to advance, Mr Butler already has a brief to ensure that all relevant arguments are before us.

[16] To summarise, we are satisfied that the relevant arguments that can be made for the petitioner will be adequately made, without the need for the applicants’ presence before the Court. We do not consider that the Court will be assisted by hearing argument from the applicants. We also do not consider that the applicants will be prejudiced or even potentially prejudiced as they claim should they not be granted leave. Conversely, we are concerned that granting leave will increase the duration of the hearing, and no doubt, inevitably the cost. It will also subvert the clear statutory intent that those who can challenge an election should be limited to those classes of person set out in s 230(1) of the Act.

[17] For these reasons Ms Ngaronoa and Mr Rollo’s application for leave to be heard in these proceedings is declined.

High Court of New Zealand Decisions

Taylor v Key [2014] NZHC 3306 (18 December 2014)