TAYLOR v THE ATTORNEY-GENERAL OF NEW ZEALAND [2014] NZHC 1795

TAYLOR v THE ATTORNEY-GENERAL OF NEW ZEALAND [2014] NZHC 1795 [31 July 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2013-404-004141[2014] NZHC 1795UNDER The Judicature Amendment Act 1972, theNew Zealand Bill of Rights Act 1990, Part30 of the High Court RulesIN THE MATTER of a declaration of inconsistencyBETWEEN ARTHUR WILLIAM TAYLORFirst ApplicantHINEMANU NGARONOA, SANDRAWILDE, KIRSTY OLIVIA FENSOMAND CLAIRE THRUPPSecond, Third, Fourth and Fifth ApplicantsAND THE ATTORNEY-GENERAL OF NEWZEALANDSecond RespondentHearing: (on the papers)Judgment: 31 July 2014JUDGMENT OF VENNING JAPPLICATION FOR A PRIORITY FIXTUREThis judgment was delivered by me on 31 July 2014 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: W Simpson, AucklandCrown Law, WellingtonCopy to: R Francois, Auckland[1] The applicants seek orders directing that the Court allocate a priority fixture of no more than two days for the substantive hearing of this proceeding.[2] In the first amended statement of claim the applicants seek the following declarations:(a) a declaration that the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010 is inconsistent with the right to vote under s 12(a) of the New Zealand Bill of Rights Act 1990 (NZBORA);(b) a declaration that the Act is inconsistent with the right to be free from discrimination under s 19 of the NZBORA and ss 21(1)(f) and 21(1)(g) of the Human Rights Act 1993; and(c) a declaration that the Act is inconsistent with the applicants' right tobe treat with humanity and with respect for their inherent dignity under s 23(5) of the NZBORA; and(d) a declaration that the Act is inconsistent with the applicants' right notto be subjected to degrading and disproportionately severe treatment under s 9 of the NZBORA.[3] Section 80(1)(d) of the Act, which came into effect on 15 December 2010 provides:(1) The following persons are disqualified for registration as electors:(d) a person who is detained in a prison pursuant to a sentence of imprisonment imposed after the commencement of theElectoral (Disqualification of Sentenced Prisoners) Amendment Act 2010:[4] The applicants are or were, at all relevant times, serving prisoners.[5] The applicants seek a priority fixture in order to have the case heard as soon as possible so that a judgment may be delivered before the general election scheduled for 20 September 2014.[6] In the memorandum supporting the application for a priority fixture Mr Francois raises a number of points. A number of them are more relevant to the substantive merits of the proceeding, rather than the application for priority fixture.[7] However, Mr Francois has noted that in separate proceedings before the Waitangi Tribunal Maori applicants have been granted an urgent hearing by the Tribunal so it can consider claims that the ban on prisoner voting breaches the principles of the Treaty of Waitangi. The applicants believe a recommendation by the Tribunal to change, reform or repeal the relevant law to allow Maori the equal right to vote may lead to action from Parliament and submit that a declaration of inconsistency by this Court would reinforce the need for such change which emphasises the importance of a priority fixture for the applicants.[8] Mr Francois also submits that the applicants will experience hardship over the blanket ban on their voting rights. Unless there is a change to the legislation they will not be able to vote at the election scheduled for 20 September 2014.[9] In response counsel for the defendant has filed a memorandum in which he notes that Parliament will shortly rise so that no legislative amendment could be accommodated between now and the election.1[10] As to the political impact and constitutional aspects of any declaration of inconsistency the respondent considers the only justiciable issue is whether the High Court may in any circumstances, or should, in this case make such a declaration having regard to the role of Parliamentary privilege. It is likely that given the importance of any such ruling the defendant would appeal any such adverse ruling to the Court of Appeal.1 Parliament's last sitting day before the election is 31 July 2014. Parliament will be dissolved on14 August 2014.[11] The respondent's counsel also notes that the Attorney-General's s 7NZBORA report on the Amendment Act to the House addresses the substance of theapplicants' concerns.[12] In response to that reply Mr Francois submits that when it suits Parliament it can act urgently. Mr Francois also reasserts the submission the applicants are entitled to seek appropriate relief to preserve their right to vote. He also submits that there is a public interest in people knowing that prisoners (or any group of people for that matter) have been subjected to an unlawful amendment to the Electoral Act 1993 that prohibits them from voting at elections.[13] As to the s 7 report under the NZBORA Mr Francois notes that the declaration only relates to the right to vote. Other aspects of the declarations sought are not covered by the Attorney-General's report.Preliminary matter[14] I indicated that I would deal with the matter on the papers. Mr Taylor is the first applicant. Mr Francois says Mr Taylor would like to be heard on the application. I am satisfied it is appropriate to deal with the matter on the papers. As an application for priority, it should be dealt with promptly. There is little that Mr Taylor could add to the full submissions made by Mr Francois. I also note that in its terms the initial application filed by Mr Francois was on behalf of all applicants.Principles[15] Counsel referred to a number of authorities where the issue of a priority fixture has been considered: Birnie Capital Property Partnership Limited v Birnie in which case Allan J referred to a practice note issued by the Executive Judge at Auckland on 18 December 1987:2Generally speaking, some particular hardship to a litigant other than the usual hardship must be shown to justify priority; health problems, financial hardship or public interest are grounds frequently relied upon by successful applicants.2 Birnie Capital Property Partnership Limited v Birnie [2010] NZHC 1228 at [60].[16] Having reviewed the file I am satisfied that this case does not warrant the granting of a priority fixture.[17] As noted, the purpose of the application for priority is to obtain either a change to the law or at the very least the publicity arising from what the applicants perceive will be a favourable finding in their favour, all before 20 September 2014.[18] Although the amendment was passed in December 2010 these proceedings were not issued until 5 September 2013. The delay in issuing the proceedings does not support the application for urgency.[19] This case is still at a very preliminary stage. No defence has yet been filed. It was the subject of a strike out application. In a fully reasoned decision delivered on 11 July 2014 Brown J declined the application to strike out but in the course of doing so Brown J concluded as follows:[82] It follows that I consider that the respondents have not demonstrated that the claim should be struck out on the ground that it can be said that the Court undoubtedly lacks jurisdiction (in the strict sense) to issue declarations of inconsistency of the nature sought in the statement of claim.[83] Mindful however that Mr Taylor is self-represented, it is only right that I should note that, as my reasons above reflect, a decision dismissing the current application could be a Pyrrhic victory for the applicants. To adopt the terminology of the Privileges Committee, my view of the Court's current jurisdiction to grant declarations of inconsistency is: in theory "yes" but in practice "no". As McGrath J observed in Hansen, normally the Court's viewthat the measure being considered is inconsistent with protected rights willbe sufficiently apparent from the Court's statement of its reasoning.(footnotes omitted)[20] The Judge also noted that in Mr Taylor's case he may face a standing issue.The Judge also noted the impact of the s 7 report. Notwithstanding that the Judge dismissed the application for strike out.[21] The time for appealing from that decision has not yet expired.[22] The applicants' purpose or suggestion that a favourable decision on thesubstantive proceedings may lead to a law change before the election is unrealistic. From a practical point of view Parliament will not be sitting past 31 July 2014.[23] Following Brown J's decision, and as a result of discussions with counsel during the course of the hearing the applicants filed a first amended statement of claim on 16 July 2014. The time for filing a defence to the first amended statement of claim has not yet expired.[24] While I accept that the material required for the hearing will be limited and I would expect with co-operation any relevant background documents could be put forward before the Court either by an agreed statement of facts or pro forma affidavit evidence, at the very least the pleadings should be completed.[25] To the extent the applicants consider there is public interest in the applicants'position being vindicated, they have the decision of Brown J which declined therespondent's application to strike out. That decision features on the list of decisions of public interest.[26] In any event, given the nature of the matters raised and the issues discussed inBrown J's comprehensive judgment, the prospect of a two day fixture beingallocated in mid to late August leaving sufficient time for a Judge to deliver a fullyreasoned decision on a difficult matter such as this (noting that Brown J's decisionwas delivered some six weeks after the hearing) is simply unrealistic.Summary[27] There is no basis to elevate this case above other cases before the Court or to require criminal or other civil work currently allocated fixtures to be vacated to enable this case to be heard and a decision delivered before 20 September 2014.Result[28] The application is declined.__________________________ Venning J