Kiwiblog

I’ve covered on Kiwiblog the antics of Roger Payne and his electoral petition against Amy Adams in Selwyn. He recently got ordered to pay costs to National, but I doubt they’ll ever get money out of him.

He also spends time trying to the name of Muff Lane changed!

Anyway for those interested the Timaru Herald did a profile of him. People can form their own opinions of him.

I’m quoted briefly in the article. Also a minor correction – I did not veto his application for membership in Wellington Central. I wish I had the power of veto as I’d happily use it but I merely suggested to certain officers that they should veto him, and the electorate committee did.

I previously reported on the attempt by Roger Payne to overturn the result of the Selwyn election via electoral petition. He lost on every issue.

Payne has cost the party, and various individuals, a huge amount of money. In his earlier case regarding the Selwyn selection he was ordered to pay costs of around $10,000.

The High Court has now determined costs for the electoral petition. I quote their decision:

The major issue in the case was the proper interpretation of s 71 of the Electoral Act 1993. This issue had already been determined against Mr Payne by Panckhurst J. Mr Payne failed to persuade us to any different course. In addition, Mr Payne failed to establish that he had standing to bring the petition; we found that his challenge to the National Party’s selection process fell outside the ambit of the Electoral Act; we found that there was no breach of any duty of natural justice in relation to the disapproval of Mr Payne’s application to be the National Party candidate in the Selwyn Electorate; and that there were no other grounds for invalidating the election of the first respondent.

This Court has power to award costs under s 250(1) Electoral Act 1993 and under the High Court Rules. In Re Taupö Election Petition [1982] 2 NZLR 244 at 266, the Court held that costs should, in the usual way, follow the event. We see no reason not to follow that course in the present case. There were elements of public interest in this case but, in the main, Mr Payne was pursuing an agenda of his own and for his own benefit.

We therefore order the applicant to pay to the respondents the sum of $23,520 plus disbursements as fixed by the Registrar.

And after National gets the cheque, hopefully that will be the last of Mr Payne.

Legal friends have forwarded to me the judgement of the Electoral Court – civ3089_08-payne-v-adams. To save people reading the full 42 pages (except Geddis and Knight), here are some key extracts:

This is the primary reason why National did not want a bar of Payne. Breaking a written undertaking is no small thing. In fact it normally leads to expulsion from the party, let alone precluding future candidacy.

Oh dear. Here the Justices fund Mr Payne misled the court.

No you did not misread this. Mr Payne has had 70 court hearings on other issues, and personally sued three Judges. I almost feel sorry for the three High Court Justices who made up the Electoral Court – he will probably now go after them.

The Court finds that Payne does not even have standing to bring an electoral petition. It is all over at this point, but for the sake of completeness the Justices helpfully make findings on several other issues.

This confirms that electoral petitions are about elections – not about internal party issues around candidate selections.

And here they concur with a previous court case that the National Party rules comply with the Electoral Act.

A private group such as the National Party is not required to have “natural justice”, as per public bodies. But here the Court rules that even if there was a natural justice test, the verto of Payne’s nomination did not breach the Act.

And here the Court finds that Payne lied on his nomination form, or as they put it “made untruthful and inaccurate statements”.

Usefully the Court also finds no evidence of wrongdoing by President Judy Kirk, Regional Chair Roger Bridge, and Electorate Chair John Skinner. The former two men especially have had their names dragged through the mud by Mr Payne.

And here we have the dismissal of the petition, the confirmation of Amy Adams as MP for Selwyn and a reservation over costs.

This has cost the National Party an immense amount of money – over an issue that was always doomed to failure. Sadly I suspect that no matter what damages the Court orders paid, the party will never actually see the money.

Arguably there was some minor good from the case – the rulings on electoral petitions and candidate selections under the Electoral Act are useful confirmations of the law.

I understand that the Speaker has been delivered the judgement in the Selwyn Electoral Petition by Roger Payne, and he will announce the outcome and table it at 2 pm.

It will be a relief to Amy Adams to have it all out of the way.

UPDATE: And the Speaker has announced that the determination of the High Court is that Amy Adams is confirmed as the MP for Selwyn. Goodbye and good riddance Mr Payne. What a waste of time and money.

I blogged yesterday about the Selwyn Electoral Petition by serial litigant Roger Payne. A witness at court has relayed to me a couple of amusing tidbits.

The first is that it was revealed that Payne has lodged 70 lawsuits in recent years. The three Justices were probably alarmed to find out that three of his 70 lawsuits have been trying to sue individual Judges personally.

The most funny part was about his “malicious bankruptcy”, which he claims was annulled. The court asked who the petitioner was, and it seems Payne could not remember or would not say. So the court ordered the Registrar to find out. And the Registrar reported back that the petitioner was the Crown Law Office

Most people will be unaware there is an electoral petition being heard today. It is next door to the Bain trial at the Christchurch High Court and being heard by Justices Randerson, Allan and French.

Normally an electoral petition has a huge amount of media coverage. This has had none to date (but will be some today), because to be blunt there is no chance of sucess. It has been brought by serial litigant Roger Payne.

He was vetoed by the National Party Board as a candidate. There were excellent reasons for this. He broke his solemn sworn word in 2002 when he went for the Rakaia nomination, and having failed to win, stood for Christian Heritage – despite signing a pledge he would not stand for any other party in that election.

Readers can read previous material about Mr Payne here.

If the petition is sucessful, then Amy Adams would lose her seat and there would be a by-election. As I said at the beginning, I do not believe there is any chance of this occuring. Payne is a serial litigant and a very costly nuisance.

The lesson for National is they should never ever have let him rejoin the party after he was automatically expelled in 2002 when he stood for Christian Heritage. I helped get him refused from joining Wellington Central (knowing his history) but he eventually conned some sucker in the South Island into taking his $5. That $5 has probably cost the Party 1000 times that.

Legal beagles can read the entire 27 page judgement here. I’ve extracted some quotes below, interspersed with my comments:

The statement of claim filed by Mr Payne on 10 April alleged that the decision of the Board of the National Party to disapprove his nomination was in breach of natural justice and of s71 of the Electoral Act. He also challenged the validity of the Constitution and Rules of the National Party on the basis that the most recent version was not supplied to the Electoral Commission within the time limits prescribed in s71B of the Act. He further asserted that “the National Party’s undemocratic behaviour” constituted a corrupt practice, being an example of undue influence contrary to s218 of the Electoral Act.

A further issue of possible breach of contract was also considered by the court, which I will touch on later.

The allegation based on s218 of the Electoral Act is misconceived. Assuming, without deciding, that a member of the Board of the National Party could be a complainant of undue influence, the gravemen of the section is conduct directed to a person to induce or compel them by violence or threat of violence to vote, or refrain from voting, for a particular candidate. There is no evidence of any conduct capable of falling within s218.

This is the problem of representing yourself in court.  Even the most inexperienced lawyer would probably know that s218 is referring to the general election, not internal selection contests.

There is another problem with the statement of claim. It is not drawn in a manner which adequately identifies the underlying basis of the claim. In particular, it is unclear whether the claim is intended to be viewed as an application for judicial review, or not.

Again, the problem of do it yourself lawyers.

As Mr Kiely pointed out s71B(1)(c) does not require all changes to the rules to be supplied to the Electoral Commission, rather only changes which relate to membership of the party or the selection of persons to represent the party as candidates for election as Members of Parliament. And, the submission continued, the changes between the 20th and 21st editions did not fall into either of these categories. Hence, technically, there was no requirement upon the party to supply the latest rules to the Commission. That it did so recently, and no doubt in response
to this proceeding, was neither here nor there.

That basically takes care of the issues of which rules were in force.

The above extracts demonstrate the genesis of, and thinking behind, s71. The nomenclature “democratic procedures” attained currency in the Royal Commission’s Report. Although at first blush there may be a tendency to equate the reference to democratic procedures in s71 with the principles of natural justice, the origins of the phrase suggest otherwise. The word “democratic” was, I think, deliberately chosen to capture the notion identified in “Towards a Better Democracy” and subsequently endorsed by the Electoral Law Committee and by speakers in the House. What the Royal Commission, and subsequent adherents, had in mind was a requirement that the selection of candidates by political parties would be participatory; that members of the party may participate in the selection process, whether directly or through representatives (delegates) themselves elected by the membership at large.

This is a pretty core aspect – that the reference to democratic procedures for candidate selection in s71, does not mean that parties are bound by  principles of natural justice (as public bodies are).

With the benefit of reference to the above extrinsic materials the impression I held previously that the candidate selection processes adopted by the National Party probably met the requirements of s71 is strengthened. The text of the section, read in light of the Royal Commission’s Report, was clearly intended to provide a defined level of participatory democracy. Candidates to represent the party at general elections are to be selected by current financial members of the party from the particular electorate or by delegates of that class of persons. But, the participatory requirement was, I think, deliberately framed so as to leave scope for the overarching influence of senior officials of the party, provided that they too were democratically elected by the party membership.

Again, very interesting. Basically it affirms board vetoes etc are not contrary to the Electoral Act.

I am satisfied that the rules of the National Party include a comprehensive code for the democratic selection of constituency candidates. The requirement contained in s71 for participation in the selection process by current financial members of the party from the electorate, or by delegates elected/selected by current financial members of the party, is met. Delegates on the Board consider the nominations and may reject one or more, while the pre-selection committee must reduce the number to a maximum of five. Thereafter, the universal suffrage option provides for current financial members from the electorate to make the final choice by a closely defined democratic process.

Accordingly, the rules of the National Party do satisfy the requirement of democratic procedure contained in s71. Extensive provision is made for members of the party to participate in the selection of constituency candidates. The preceding review of the rules demonstrates as much.

I suspect all political parties will find some comfort in the interpretation of the court.

Section 71 aside, is it seriously arguable that r94(b) is challengable on other grounds? Mr Payne’s case seemed to me to be predicated on s71, but nonetheless I shall also consider this further question.

Mr Kiely anticipated this further aspect. He posed the question whether, assuming compliance with s71, there may still be a breach of the rules actionable as a breach of contract.

Always smart to anticipate an angle the court may take, even if the plaintiff has not asked for it.

Although in terms of r94(b) there is no obligation to supply reasons for a nominee’s rejection, Mrs Kirk’s affidavit identifies three matters which influenced the decision. The first was Mr Payne’s conduct in 2002 when he failed to win the Rakaia nomination and publicly criticised the remaining candidates, Mr Connell in particular, both when he became the constituency candidate and following his election to Parliament. Second, as a candidate for the Rakaia electorate Mr Payne was required to sign an undertaking that if unsuccessful he would not act in competition to the successful National Party candidate. Mr Payne was considered to be in breach of his undertaking because he stood for the Christian Heritage Party in Rakaia and thereby acted contrary to the interests of National. Third, Mr Payne was involved in protracted Family Court litigation with his former wife which resulted in numerous court hearings and, eventually, newspaper comment in 2005 concerning action taken to evict Mr Payne from his Wellington home. In the course of this dispute Mr Payne was also declared bankrupt for non-payment of court costs, but the bankruptcy was subsequently annulled.

Clearly suitable to go direct into Cabinet, as Mr Payne claimed he was.

More specifically the rule itself does not suggest a requirement of notice, followed by an opportunity to be heard. All the indications are the other way, and indicate to me the exclusion of even this rudimentary level of natural justice. The Board is clothed with an unfettered discretion, and is absolved of the need to interview a candidate, or even to assign reasons for rejection. This indicates a power of veto in the widest of terms.

I conclude, therefore, that there is no serious question to be tried based on a contractual breach of r94(b).

So that takes care of the substantive issue. Then Justice Panckhurst looks at the injunction:

Much more significant to my mind is the inconvenience to third parties. Four of the remaining candidates for the Selwyn nomination made affidavits for the purpose of this hearing. I shall not refer to the detail of the individual affidavits. It is sufficient to say that the candidates each ordered their work and personal lives upon the assumption that the constituency candidate would be selected on 7 April. After my decision of 3 April the candidates were placed in a position of considerable uncertainty. Arrangements they had made to enable them to campaign through to 7 April were no longer of any utility. Whether similar arrangements for a resumed final selection process will be attainable, is questionable. Certainly, I accept on the basis of the affidavit evidence that the remaining candidates have been, and will continue to be, significantly inconvenienced until such time as a final decision is made concerning the Selwyn constituency candidate.

Indeed, the disruption has been quite massive to the candidates. With 700 delegates involved they had effectively put aside their day jobs to campaign fulltime.

Counsel also contended that the ultimate relief in this case could be nothing more than a requirement for the National Party to reconsider Mr Payne’s nomination. The reality, he suggested, was that such relief would prove futile. Reconsideration would almost inevitably lead to the same result. Either Mr Payne’s nomination would be rejected by the Board of the National Party or at the pre-selection stage.

Absolutely. There never has been any chance at all that Payne would ever be the candidate, even if he won in court. It really has just all been about an ego boost for him, with no chance of eventual selection.

For the reasons given I am satisfied it is appropriate to review and in the event rescind the interim order made on 3 April. Accordingly the interim injunction granted on that day is discharged.

Yay. Payne can appeal to the Court of Appeal of course but with no injunction remaining, National can proceed with its final electorate selection.

Costs in relation to the interlocutory hearings are reserved. If sought by the defendant, it may file a memorandum in support within 10 working days, after which the plaintiff will have 10 working days in which to reply.

Bearing in mind the previous evidence, I have a suspicion that regardless of the order for costs, any payment might be a long time coming!

I’ve just received a copy of the ruling in Payne vs National over the Selwyn selection and Mr Payne has lost the case, plus the Judge has lifted the injunction so the selection can now proceed even if Payne appeals.

The judgement is comprehensive and in brief it finds the rules do comply with the Electoral Act are are democratic.

There is also some interesting material on why Payne was found by the Board to be unsuitable. I will blog the pdf later today. About to chair a meeting from 3 pm to 5 pm so probably this evening.

The five candidates, pluss all the local members, will be very pleased that a selection meeting can now be held. I’m not sure when it will be, but suspect as soon as legally possible taking into account notice requirements.

Oh it is hilarious reading the NZPA report on the challenge to National’s veto of Roger Payne as a candidate. Payne is quoted as saying:

“The people in the electorate of Selwyn deserve someone who is of immediate Cabinet material, I am able to offer that opportunity,” Mr Payne told the court.

Oh yes, Roger Payne is certainly going to go straight into Cabinet – around the time that Iran joins the European Union.

The decision (I expect it next week) will be interesting. If the Court finds that party boards do not have the right to veto unsuitable candidates, then it will affect most of the political parties in Parliament, as that is a very common power.

National has had to postpone its Selwyn selection, due the granting this afternoon of an injunction to Roger Payne.

Payne failed to gain an injunction last week, but filed further reasons, and Justice Panckhurst has reversed his earlier decision, and granted an injunction.

The injunction can be viewed here as a PDF.

I have had a read through it, and some key aspects:

• No decision has been made on the merits of the case
• The criteria for an injunction is firstly merely whether there is a serious question to be tried, and Justice Panckhurst has said he now accepts there is a question due to reference to Section 71 of the Electoral Act.
•  It then comes down to the balance of convenience, and this is really why the injunction was granted. If it was not granted, Payne would have permanently lost his chance to gain selection as a candidate. By comparison, National is inconvenienced (especially the accepted nominees and the delegates) but not permanently disadvantaged.

A substantive hearing will have to be arranged. This should be a matter of just weeks, not months. But until there is a substantive decision, the selection meeting scheduled for next week can not be held.

It is unfortunate for National, that it happened in Selwyn where there had already been issues around process. But this could have happened in any seat at all, where someone rejected decides to take legal action.

I’ll briefly touch on the substance of the case.  I’ll reinforce that again no decision has been made on the substance, so any conclusions about the eventual outcome are premature. The key aspect is Section 71 of the Electoral Act 1993:

Requirement for registered parties to follow democratic procedures in candidate selection

Every political party that is for the time being registered under this Part of this Act shall ensure that provision is made for participation in the selection of candidates representing the party for election as members of Parliament by—
(a) Current financial members of the party who are or would be entitled to vote for those candidates at any election; or
(b) Delegates who have (whether directly or indirectly) in turn been elected or otherwise selected by current financial members of the party; or
(c) A combination of the persons or classes of persons referred to in paragraphs (a) and (b) of this section.

 Now the National Party Rule 94(b) says:

The Board shall consider the material submitted and shall have an unfettered discretion to approve or disapprove a nomination received. The Board may undertake an investigation on its own behalf of any candidate but shall not be bound to interview a candidate it rejects or assign any reason for rejection.

Now this rule has been there in various forms for some decades.  It is very very rarely used, and I indicated in my previous blog post what I thought was suitable reasons for its use – the fact Mr Payne had previously failed to abide by the obligations he entered into, when seeking the candidacy in 1999.

Now in terms of  s71, the requirement is only for local members and delegates to participate in the selection. It does not state they are the only people to be involved. As it happens National has extensive involvement, as the *only* people who select the candidate are local members and delegates *once* they have cleared the hurdle of board approval and pre-selection.

The substantive case will be very interesting, and no doubt observed eagerly by all political parties, as I think every significant party has a similar power for its central board.

But that substantive case is a week or so away.  All that has been decided so far is that there is a serious question to be answered, and that as Payne would be permanently disadvantaged without the injunction, and National only temporarily disadvantaged, the injunction is granted.

Colin Espiner reported in The Press that a Roger Payne tried to get an injunction to stop National’s Selwyn selection, but failed.

Now a friendly lawyer has kindly sent me a copy of the court judgement. I don’t think I have ever seen a case tossed out so thoroughly and succinctly. Some quotes from Justice Panckhurst:

Mr Payne was nominated for selection as the National Party candidate for
Selwyn. Nominees must gain support at electorate level, after which the nomination is forwarded through the divisional office and onto the national office. Recently Mr Payne was advised that his nomination had not been approved by the National Executive. Reasons were not given for that decision. …

Upon considering the papers it was immediately apparent to me that the legal basis of Mr Payne’s challenge was unspoken. In particular he did not refer to the rules of the National Party and did not, therefore, identify the requirements upon the Executive in relation to the approval, or not, of nominations. …

In short, I am satisfied that there is no serious question to be tried, absent a basis in the rules to suggest that the decision of the National Executive was unlawful. …

 However, for these reasons, I do not find that there is a basis for injunctive
relief.

A copy of the Injunction Ruling in pdf form is here.

Now I have no first (or second) hand knowledge of why the Board vetoed Mr Payne, but I do know some of his background.

He contested the National selection for Rakaia in 2002 against four other candidates, with Brian Connell winning the seat.  I can’t recall at which ballot Payne was defeated but almost certain it was not the final one.

Now anyone who puts themselves forward for selection as a National Party candidate signs (I think as a sworn declaration) that if they do not win the nomination they will support the candidate who does win, and more importantly that they swear they will not stand against the National candidate for another party or as an independent, or even support another candidate.

As the election results for 2002 show, My Payne then broke his solemn sworn statement and stood for Christian Heritage in Rakaia. There is no bigger “sin”within a party than losing an internal selection, and then going off to stand for another party.

I don’t know on what grounds the Board refused Mr Payne’s nomination. but I do know that having once broken your written word in a previous selection, and having stood against the National candidate, I would never ever trust that person to be allowed to seek a candidacy again.  In fact I would decline them even being able to rejoin the party.

Note I am not talking about the situation where people swap between parties without having sought and lost a nomination.  I am referring explicitly to the situation where people break their sworn word about not standing  in the election they sought the nomination for, if they lose the selection.

So Mr Payne should not be surprised he was not deemed suitable to be a candidate. If you crap on a party and break your word to it, why on earth would you think they would even consider you being a candidate.  Note I am offering my personal view on the situation here – again I do not know why the Party’s Board made their decision.