Taylor v Key [2016] NZHC 2391 (10 October 2016)

Last Updated: 31 October 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002657 [2016] NZHC 2391

UNDER THE	Electoral Act 1993
IN THE MATTER OF	an electoral petition relating to the Helensville Electoral District
BETWEEN	ARTHUR WILLIAM TAYLOR Petitioner
AND	JOHN PHILLIP KEY First Respondent ELECTORAL COMMISSION Second Respondent CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Respondent ATTORNEY-GENERAL OF NEW ZEALAND Fourth Respondent

Hearing:	(On the papers)
Court:	Winkelmann, Venning and Heath JJ
Judgment:	10 October 2016

_{COSTS JUDGMENT OF THE COURT}

This judgment was delivered by me on 10 October 2016 at 1.00 pm, pursuant to Rule 11.5 of the High

_{Court Rules.}

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Law, Wellington

Kiely Thompson Caisley, Auckland

Russell McVeagh, Wellington

Copy to: A W Taylor

TAYLOR v KEY & ORS [2016] NZHC 2391 [10 October 2016]

[1] Mr Taylor challenged the 2014 electoral result in the Helensville electoral district. He did so on the same basis as a related petition brought by him and a number of others challenging the result of the election in the Te Tai Tokerau electorate (CIV-2014-404-2648).

[2] In a judgment delivered on 16 April 2015 the Court confirmed that Mr Taylor lacked standing to bring an election petition concerning the Helensville electorate.¹

Costs were reserved.

[3] The first respondent, while considering he has strong grounds for seeking costs from the petitioner and the proposed intervenors, does not seek costs.

[4] The Attorney-General seeks costs and disbursements against Mr Taylor in the sum of $55,859.79. The costs are calculated on the basis of category 3 with time band B in relation to some steps and time band C in relation to other steps. Where the steps related to attendances also affecting the Te Tai Tokerau petition a reduced amount of time is sought.

[5] The Attorney-General also seeks costs against two proposed intervenors in the sum of $1,876.71. By notice of application dated 1 December 2014 Mr Ngaronoa and Mr Rollo sought to intervene in the Helensville petition. On 4

December a notice of opposition was filed to the application. On 18 December 2014 the Court declined the application. The only step required was the filing of a notice of opposition. Further, Mr Perkins, counsel for the Attorney-General, has properly drawn the Court’s attention to the fact that there is evidence filed in the Te Tai Tokerau petition as to Mr Rollo’s impecuniosity and there is also an unsworn affidavit referring to Mr Ngaronoa’s impecuniosity served in that petition on 18

November 2014. In the circumstances and given the very limited nature of the steps involving the proposed intervenors we make no order for costs against them.

[6] Mr Taylor opposes the application for costs on the grounds:

_{(a) The Court has no jurisdiction to award such costs and disbursements.}

¹ Taylor v Key [2015] NZHC 722, [2015] 3 NZLR 770.

(b) The Crown is not seeking such costs and disbursements for the purpose of cost recovery but for the improper purpose of deterring the bringing of electoral petitions by prospective petitioners.

(c) Even if jurisdiction existed, this is not a proper case to award costs as the Court did not determine the merits of the case other than the issue of standing.

(d) The case raised matters of proper public interest.

(e) Mr Taylor was subsequently successful in obtaining a declaration that a denial of a vote to all prisoners was inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990 and could not be justified under s 5 of that Act.²

[7] In addition Mr Taylor makes the point that if there is jurisdiction the first respondent and the amicus had main carriage of the argument rather than counsel for the Attorney-General.

[8] Mr Taylor’s submissions are supported by those of Mr Francois. Mr

Francois’ submissions do not add anything to the submissions made by Mr Taylor.

Jurisdiction

[9] Mr Taylor submits that the general jurisdiction to award costs is displaced by s 250 of the Electoral Act 1993 (the Act). By determining that Mr Taylor lacks standing the Court essentially determined the petition was a nullity because it did not comply with s 229(3) of the Act and as such there was no basis to award costs under s 250(1).

[10] The Court has jurisdiction to award costs where it finds a petitioner has no standing. In Payne v Adams the Court awarded costs despite the fact that Mr Payne

_{failed to establish he had standing to bring the petition.}³ _{Mr Taylor is correct that the}

² _{Taylor v Attorney-General [2015] NZHC 1706, [2015] 3 NZLR 791.}

³ Payne v Adams HC Christchurch CIV-2008-409-3089, 1 July 2009.

point he takes was not considered in that case, but there is no principled reason why a Court should not impose costs in such circumstances. A person seeking to bring a petition who has no standing will still have put the respondents to costs. Costs are routinely awarded where a proceeding is dismissed for want of standing. In Payne v Adams the Court of Appeal accepted it did not have jurisdiction to hear an appeal because of s 242 of the Act but nevertheless made an order for costs against Mr

Payne who had attempted to appeal.⁴ Further, the Constituency Election Petition

Rules 2008 confirm that the general rules in Part 14 of the High Court Rules apply to costs.⁵ We are satisfied there is jurisdiction to award costs in this case.

[11] We do not accept the Crown submission that this case warrants costs to be fixed on a category 3 basis as a case requiring counsel of special skill and experience in the High Court. Mr Taylor, who is not legally qualified, was able to make helpful submissions to the Court directly on the relevant issues. Further, electoral petitions are matters that come before the Court on a reasonably regular basis. In the recent case of Payne v Adams costs were fixed on a category 2 basis plus disbursements.⁶

[12] Nor do we consider that costs should be awarded on anything other than a band B basis for the time taken for each step. We have recalculated costs on a full

2B basis at $33,780.25 (16.975 days @ $1,990) plus disbursements of $5,953.29.

[13] The most important feature in this case is that, while Mr Taylor failed on the issue of standing, there was a proper public interest element to the challenge that he made. Rule 14.7(e) provides the Court may refuse to make an order for costs or may reduce the costs otherwise payable if the proceeding concerned a matter of public interest and the party acted reasonably in the conduct of the proceeding.

[14] The public interest feature of this case has been recognised in the subsequent

decision of the Court on the effect of the legislative change on prisoners’ rights to

_{vote. While Mr Taylor may or may not have benefited from the outcome, there was}

⁴ _{Payne v Adams [2010] NZCA 134.}

⁵ _{Constituency Election Petition Rules 2008, r 5(2).}

⁶ Payne v Adams, above n 3.

a public interest in having the issue raised. As the Supreme Court recognised in

Environmental Defence Society Inc v New Zealand King Salmon Co Ltd:⁷

Public interest litigants ... may meet a real need in presenting important perspectives that would otherwise be unrepresented in the decision-making processes. Such representation may assist in the legitimacy of the process and its outcome. In complex cases, such participation may be helpful, whether or not the litigant is formally successful. An award of costs against a formally unsuccessful litigant who has conducted litigation responsibly may therefore impede the proper administration of justice.

[15] However, while the issue of prisoners’ voting rights was an important one, the challenge to the electoral outcome in Helensville was not the appropriate way to raise it. There were other options available to Mr Taylor to raise the issue, which he also took. As the Court found in this case, Mr Taylor could not challenge the outcome of this election as he had no standing. Mr Taylor was on notice from 28

November 2014 of the challenge to his standing. He should bear some consequences of his decision to pursue the petition and which led to the respondents incurring substantial costs after that time. The Supreme Court has confirmed that it is seldom just to require a successful party to bear the full costs of his or her case.⁸

[16] We do accept there is force in aspects of Mr Taylor’s submissions which apply to the quantum sought. While Mr Taylor failed on the issue of standing, the argument was heard at the same time as the argument on the substantive merits of the petition. Mr Taylor should not have to bear the full costs of the hearing because that approach was adopted as a matter of convenience.

[17] It is also relevant that substantial parts of the argument were presented both by the amicus appointed by the Court and by counsel representing the first respondent. A notional apportionment of the costs is appropriate.

[18] We note that Mr Taylor has also submitted that the application for costs is brought in bad faith and for the purpose of preventing others such as him pursuing issues such as this in the future. There is no evidence to support that submission and

_{we reject it.}

⁷ Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167 at

_[24].

⁸ Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [5].

[19] Taking the above factors into account we are satisfied that an appropriate award of costs and disbursements in the present case is one-fifth of costs and disbursements calculated on a 2B basis.

[20] The Attorney-General is to have costs against Mr Taylor in the sum of $6,756.05 plus disbursements of $1,190.66.