REASONS
Introduction
[1]
In a judgment delivered on 9 November 2018 we dismissed an appeal by the
Attorney-General and allowed Mr Taylor’s cross-appeal.1 At issue on the appeal was
whether the High Court had the power to make a declaration that the Electoral
(Disqualification of Sentenced Prisoners) Amendment Act 2010 which extended the
prohibition on voting to all prisoners was inconsistent with the New Zealand Bill of
Rights Act 1990 (the Bill of Rights). The issue on the cross-appeal was whether the
first respondent, Mr Taylor, had standing. The latter question arose because Mr Taylor
had been prevented from voting under earlier legislation.
[2]
The Court found the High Court had power to make the declaration sought and
that Mr Taylor had standing. Costs were reserved and submissions sought in the event
the parties were not able to agree on costs. Agreement has not been reached. We can
address the submissions that have now accordingly been filed on costs under two
headings.
A costs award for Mr Taylor?
[3]
Mr Taylor was unrepresented. The general understanding is that a person in
Mr Taylor’s situation (a lay litigant who is not a lawyer) is entitled to recover
disbursements but not costs.2 The Court in McGuire v Secretary for Justice did not
depart from that position. Mr Taylor’s submission is that the Court should either find
that McGuire is distinguishable because that case dealt with costs in the High Court or
depart from McGuire and award costs to him as a lay litigant on the same basis as if
he was a lawyer.
[4]
Mr Taylor’s principal argument relies on s 27(3) of the Bill of Rights.
Section 27(3) provides that:
1
2
Attorney-General v Taylor [2018] NZSC 104.
McGuire v Secretary for Justice [2018] NZSC 116 at [55] and [88]. See also Re Collier
(A Bankrupt) [1996] 2 NZLR 438 (CA) at 441–442; A C Beck and others McGechan on Procedure
(looseleaf ed, Thomson Reuters) at [HRPt14.10(1)(a)]; and Commissioner of Inland
Revenue v Chesterfields Preschools Ltd [2010] NZCA 400, (2010) 24 NZTC 24,500 at [162].