TOP's application for a judicial review has been declined. The party will not be at TVNZ's multi-party debate tomorrow evening. Laura Tupou is at court.

Gareth Morgan's Opportunities Party (TOP) has lost a last ditch effort to be included in TVNZ's multi-party political leader's debate.

TVNZ had shut TOP out of its debate due to its current rules: that a party must either be in Parliament or be polling at 3 per cent or higher in one of the last two One News/Colmar Brunton polls.

TOP meets neither goals – although internal polling has had it close to 3 per cent at points during the campaign.

CHRISTEL YARDLEY/STUFF Gareth Morgan said TVNZ's rules were manifestly unfair.

The party filed an urgent judicial review to seek a ruling on whether or not it could be involved.

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The hearing was held in front of Justice Geoffrey Venning at the High Court in Auckland on Thursday afternoon, with counsel for TVNZ and Morgan presenting their arguments.

Justice Venning handed down his decision just before 5pm.

"While TOP will be affected, and would miss an opportunity, the evidence disclosed is there have been a number of other debates including Mr Morgan," he said.

After the judgment was announced, Morgan said he was "naturally disappointed".

GETTY Mike Hosking will host the debate which will air on Friday.

"The TVNZ minor leaders' debate now becomes a farce with the third, fourth, and sixth ranking parties appearing alongside a man no one knows, from a party that doesn't even register," he said.

Earlier, Morgan's lawyer Francis Cooke QC told the court there would be "'irretrievable prejudice" if TOP was excluded from the debate.

"His position, and that of his party, as a viable candidate for the general election will be compromised and irretrievably harmed," he said.

DAVID UNWIN/STUFF David Seymour will be at the debate despite polling lower than TOP.

"He won't be treated as a viable contender."

Not having the the party on the high-rating channel would cause "irretrievable prejudice", Cooke said.

"TVNZ are promoting that leader's debate which brings together the potential coalition partners … The problem being with the role being assumed, of that being a debate of the potential coalition partners, is that Mr Morgan has been excluded from that process."

The current support for the party meant TVNZ had the responsibility to host TOP at the debate, he said.

"They are polling higher than the Maori Party, the Act Party and the United Future Party and yet he is being excluded from the debate. That is problematic."

Cook pointed to two other cases where Peter Dunne and Colin Craig successfully got themselves included in TV3 debates.

The sudden surge in support for Labour and the drop in support for New Zealand First showed the polls were volatile and the 3 per cent rule was "problematic", Cooke said.

"Polls are clearly moveable, and they are clearly moving here."

'THE POLLS ARE SENDING A MESSAGE'

TVNZ's counsel Stacey Shortall said the company did not set out to exclude TOP from the debate, but rather the party had simply fallen short of their debate criteria.

"It is TVNZ's desire to be fair, reasonable and objective," she said.

Shortall said TVNZ rounded up percentage points for the debates, so if a party sat at 2.5 per cent, it would be included.

The argument that TVNZ excluding TOP would send a message it was not a serious contender in the election was false.

"That is denied, rather it is the poll results which are sending that message. There is no real dispute the applicant's party has been in the 1 to 2 per cent polling range."

She told the court TOP had failed to make traction in the polls, and that would again be reflected in Thursday night's Colmar Bruton poll.

"I am aware the result which will be released this evening will be 1.9 per cent."

Shortall closed her submissions by saying TVNZ's criteria was not unreasonable or arbitrary and was uncontroversially used in the past two elections.

Earlier in the hearing, the Internet Party addressed Justice Venning saying it too would like to be heard on the matter about not being included in the debate.

Justice Venning said he wanted to focus only on Morgan's argument, before hearing the representatives out.

'IT'S BASICALLY A GAME OF SURVIVOR'



Morgan told Stuff prior to the hearing that the rules were manifestly unfair - as parties polling below him like ACT still got a seat at the table.

"In the last poll we were three times ACT. And they are only there because National gift them a seat. You could argue that National have actually got two people in the debate," Morgan said, referring to the process by which the National Party tell their voters in Epsom to vote for the ACT candidate there.

"This is a taxpayer funded station, so they are using taxpayer money to defend something that is indefensible."

"They are applying rules that don't further democracy but protect the incumbents."

It's understood his lawyer will call on expert commentary from academic Bryce Edwards.

TVNZ did not comment ahead of the hearing, but head of news John Gillespie told One News on Tuesday the station stood by its selection criteria.

Morgan noted that he wasn't really a fan of the multi-party debate format anyway.

"It's all about infotainment, they are not really searching for deep policy, they are searching for headlines," Morgan said.

"It's basically a game of Survivor."