Fluoride Action Network (NZ) Incorporated v Hastings District Council
[2025] NZCA 315
•14 July 2025 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA487/2024 |
| BETWEEN | FLUORIDE ACTION NETWORK (NZ) INCORPORATED |
| AND | HASTINGS DISTRICT COUNCIL |
| Hearing: | 12 May 2025 |
Court: | Thomas, Fitzgerald and Eaton JJ |
Counsel: | S J Grey for First and Second Appellants |
Judgment: | 14 July 2025 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants are to pay the second and third respondents one set of costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Thomas J)
Fluoride Action Network (NZ) Inc (FAN) and NZDSOS Inc unsuccessfully sought judicial review of Hastings District Council’s decision to fluoridate its water supply in compliance with the direction of the Director-General of Health to do so (the Substantive Decision).[1] Costs on a 2B basis with certification for second counsel were awarded against them.[2] Having reached an arrangement with the Council on costs, FAN and NZDSOS now appeal the decision ordering them to pay the costs of the Director-General and the Attorney-General.[3]
[1]Fluoride Action Network (NZ) Inc v Hastings District Council [2024] NZHC 1313, [2024] 2 NZLR 779 [substantive decision]. NZDSOS stands for New Zealand Doctors Speaking Out with Science.
[2]Fluoride Action Network (NZ) Inc v Hastings District Council [2024] NZHC 1781 [judgment under appeal].
[3]The appellants initially sought to appeal costs in relation to all three respondents. The first respondent filed a notice of appearance on 1 August 2024. However, the appellants filed a notice saying that they would not be pursuing their grounds of appeal in relation to the first respondent on 2 April 2025.
The issues on appeal are:
(a)whether the High Court erred in deciding not to exercise its discretion under r 14.7(e) of the High Court Rules 2016 to refuse to make a costs award to the second and third respondents, including whether the High Court erred in finding that the proceeding did not meet the public interest test; and
(b)whether the High Court erred in awarding costs to the second and third respondents.
Background
In December 2021, the Health (Fluoridation of Drinking Water) Amendment Act 2021 came into effect. It amended the Health Act 1956 to provide that the Director-General has the power to direct local authorities to add fluoride to drinking water.[4] A local authority so directed must comply with the direction.[5] It is an offence to contravene the direction and significant monetary penalties can be imposed for non‑compliance.[6]
[4]Health Act 1956, s 116E(1). See s 5 of the Health (Fluoridation of Drinking Water) Amendment Act 2021.
[5]Health Act, s 116I(1).
[6]Section 116J(1).
In 2022, the Director-General directed the Council, together with 13 other local authorities, to add fluoride to its water supply (the Direction).
New Health New Zealand Inc (New Health) sought judicial review of the Direction. In those proceedings, Radich J considered a preliminary legal issue in relation to the New Zealand Bill of Rights Act 1990 (NZBORA).[7] Radich J concluded that:[8]
… yes, the Director-General was required to turn his mind to whether the directions given to the 14 local authorities under s 116E of the Health Act [1956] were in each case a reasonable limit on the right to refuse medical treatment, he needed to be satisfied that they were and, if satisfied, he needed to say why that was so.
[7]New Health New Zealand Inc v Director-General of Health [2023] NZHC 3183, [2024] 2 NZLR 1.
[8]At [116].
The Director-General and the Attorney-General appealed the decision. The appeal was heard by this Court sitting as a full court in June 2025.
Following the preliminary judgment, Radich J issued a relief judgment on 16 February 2024 (the Relief Judgment).[9] Radich J was “not satisfied that the appropriate remedy [was] to quash the [Direction]”.[10] Therefore, the Direction “continues to have effect unless and until it is revoked or amended by the Director‑General”.[11]
[9]New Health New Zealand Inc v Director-General of Health [2024] NZHC 196, [2024] NZAR 36.
[10]At [29].
[11]At [33], in accordance with s 17(6)(a) of the Judicial Review Procedure Act 2016.
The Council recommenced fluoridation on 8 April 2024 in accordance with the Direction.
Substantive proceeding brought by FAN and NZDSOS
On 9 April 2024, FAN and NZDSOS (together the appellants) applied for an urgent injunction to halt the introduction of fluoride into the urban water supply of Hastings. The Director-General and the Attorney-General were added as parties, and the parties agreed to move to an expedited substantive hearing for judicial review.
La Hood J dismissed the application for judicial review, summarising his reasons for doing so as follows:[12]
(a)It was not unlawful for the Council to comply with a valid Direction simply because it is being reconsidered due to an error of law. The legal effect of Radich J’s decision is that acting upon the Direction is not presumptively unlawful.
(b)Neither s 6 of the New Zealand Bill of Rights Act 1990 (Bill of Rights), [nor] the principle of legality, require the legislation to be interpreted in a way that gives the Council a discretion whether to comply with the Direction.
(c)There is ample evidence to provide a rational basis for both the Council’s decision not to seek an extension of the deadline to comply with the Direction, and for the Director-General to not offer one.
Costs judgment
[12]Substantive decision, above n 1, at [4].
In his subsequent decision on costs, the judgment under appeal, the Judge declined to depart from his preliminary view that costs should follow the event.[13] The appellants had relied on r 14.7(e) of the High Court Rules, whereby the Court has a discretion to refuse to make a costs order in proceedings concerning matters of public interest where the party opposing costs acted reasonably. The appellants had submitted r 14.7(e) applied because:[14]
(a)there is considerable public importance in access to drinking water free from contamination through fluoridation;
(b)the right to decline medical treatment is a fundamental right provided for in the New Zealand Bill of Rights Act 1990 (the Bill of Rights);
(c)the applicants have no private interest in the outcome as they are incorporated societies with a public interest purpose;
(d)access by the public to the court to determine the legality of the actions of central and local government is a constitutional right; and
(e)the issue of whether the Crown pressured a local authority to comply with an unlawful directive before the required Bill of Rights assessment was completed [was] novel.
[13]At [53]; and judgment under appeal, above n 2, at [10].
[14]Judgment under appeal, above n 2, at [3].
While agreeing that the appellants clearly considered they were acting in the public interest, the Judge considered the reality to be that they were acting in their own special interests.[15] He noted the issue of the Direction and its consistency with NZBORA was already subject to ongoing legal challenge, including to this Court, and that issues relating to the justification of water fluoridation had been raised and dismissed by courts at all levels. He referred to Parliament’s explicit endorsement of fluoridation as a public health measure and the long history of, and democratic mandate for, water fluoridation in the Hastings District.[16] He considered the appellants’ failure to succeed in any of their claims reinforced the absence of a wider public interest.[17] He viewed the framing of the appellants’ case in its pleadings, evidence and submissions as unsatisfactory, reinforcing that their claim was concerned with advancing their special interests rather than the wider public interest.[18]
[15]At [5].
[16]At [6].
[17]At [7].
[18]At [8].
The Judge considered it appropriate that the appellants should meet not only the Council’s costs but also those of the Director-General and the Attorney-General together.[19] He considered the respondents’ conduct reasonable and responsible, justifying costs on a 2B basis.[20] He also considered that the unsatisfactory framing and wide-ranging nature of the appellants’ claim and the urgency with which it was brought justified allowance for second counsel.[21] The result was an award of costs to the Director-General and the Attorney-General of $20,566.05.[22]
Relevant legal principles
[19]At [11] and [13].
[20]At [14].
[21]At [15].
[22]At [16(b)].
While costs are a matter of discretion, the High Court Rules provide that a party who fails in a proceeding should pay costs to the successful party.[23] The Court has a discretion to refuse to make an order for costs or otherwise reduce the costs payable where “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.[24]
[23]High Court Rules 2016, rr 14.1 and 14.2(a).
[24]Rule 14.7(e).
The Supreme Court has confirmed that merely claiming the proceeding was brought in the public interest does not insulate the unsuccessful party from paying costs. Rather, the outcome will be determined by the particular circumstances of the case.[25] In order to satisfy the “public interest” exception, the unsuccessful party needs to establish that the proceeding:[26]
(a)concerned a matter of genuine public interest;
(b)was of general importance beyond the interests of the particular unsuccessful litigant; and
(c)had merit.
[25]Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [45] per McGrath, Glazebrook and Arnold JJ. See also Prebble v Awatere Huata (No 2) [2005] NZSC 18, [2005] 2 NZLR 467 at [5].
[26]Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9], affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmospheric Research Ltd [2013] NZCA 555 at [11].
To obtain the benefit of the exception in r 14.7(e), the unsuccessful party must also have acted reasonably in the conduct of the proceeding.
Because costs are ultimately a matter of discretion, appeals against costs awards rarely succeed. Appellate courts will not interfere unless satisfied the judge “acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant or was plainly wrong”.[27]
Did the proceeding meet the public interest test?
[27]Kinney v Pardington [2021] NZCA 174 at [1], citing Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15].
Ms Grey, for the appellants, began her submissions by emphasising the 2018 finding of the Supreme Court by majority that fluoridation of drinking water engages s 11 of NZBORA and the right to refuse medical treatment.[28]
[28]New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 [New Health (SC)] at [97]–[100] per O’Regan and Ellen France JJ, [172] per Glazebrook J and [212]–[213] per Elias CJ.
In her submission, the risks from fluoride and its costs and benefits are far from settled. She classified New Zealand as an international outlier in permitting and directing fluoridation of public drinking water, which she terms “mass medication”. Ms Grey referred to a decision of the United States District Court dated 24 September 2024 deciding that the risks of neurotoxicity of fluoride at 0.7 parts per million (ppm) were unjustified, pointing out that that level is lower than the level recommended and required by the Director-General.[29] She contended that many United States cities and states are now reconsidering their fluoridation policies.
[29]Food & Water Watch Inc v United States Environmental Protection Agency No. 17‑cv‑02162‑EMC, 2024 US Dist LEXIS 172635 (ND Cal 24 September 2024) at [121]. In New Zealand, the Ministry of Health | Manatū Hauora recommends a target fluoride level of between 0.7 ppm and 1.0 ppm. The letters directing local authorities to add fluoride to their water supplies specified that target fluoride level.
Against that backdrop, Ms Grey noted the High Court’s finding that the Direction was unlawful due to the Director-General’s failure to consider NZBORA and the fact the Relief Judgment required an NZBORA assessment. The Relief Judgment did not, in her submission, authorise further breaches of NZBORA, claiming the decision was “unfortunately not explicit” as to whether the Court expected the Director-General to complete the NZBORA analysis before the local authorities were expected to commence fluoridation. In Ms Grey’s submission, however, a rights‑based approach to interpretation means this could be inferred.
It was therefore right, in her submission, that by seeking to uphold the constitutional status of NZBORA and its protection of rights in the public health context, the appellants were acting in the public interest. In her submission, the Judge erred in finding the appellants were acting in their private interests, noting that FAN has educated and advocated against fluoridation for over twenty years and NZDSOS promotes informed consent for medical treatments. As to whether they represent a minority interest, Ms Grey pointed out that NZBORA is intended to protect minorities and there was considerable public interest in protecting drinking water from mass medication.
We accept that the appellants have actively sought to raise issues which they consider to be in the public interest. There is no doubt they are genuine in their concerns. We also accept that simply because they represent a minority view, that does not preclude their acting in the public interest.
But the question under r 14.7(e) is somewhat more refined than that. It is the proceeding which must concern a matter of public interest. In Lawyers for Climate Action NZ Inc v Climate Change Commission, costs were not ordered against the unsuccessful appellant because this Court was satisfied the proceeding was in the public interest as the provisions at issue had not been previously considered.[30] The present case stands in stark contrast. Issues over justification of community water fluoridation have been ventilated in the courts at all levels.[31] And Parliament has explicitly allowed the Director-General to direct fluoridation of drinking water provided through local authority supplies as a public health measure.[32]
[30]Lawyers for Climate Action NZ Inc v Climate Change Commission [2025] NZCA 80 at [179]–[182].
[31]See New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2 NZLR 834; New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2 NZLR 13; and New Health (SC), above n 28.
[32]Health Act, s 116E(1).
We accept the respondents’ submission that the substantive proceeding was a collateral challenge to the legality and validity of the Direction despite the Relief Judgment making it clear the Direction remained valid. Furthermore, the Direction and consistency with NZBORA remain the subject of ongoing legal challenge, including by way of an appeal to this Court.
There was no public interest in challenging the Council’s compliance with the Direction given the Council was under a mandatory duty to comply.
Simply because a claim involves NZBORA considerations does not automatically mean the proceeding is in the public interest. We agree with the Judge’s observation that raising an NZBORA argument that is unsuccessful does not mean the ordinary rule that costs follow the event will be displaced. Notably, recent appellate authorities have awarded costs on ordinary principles in favour of the Crown in unsuccessful NZBORA proceedings.[33]
[33]See, for example, Free to be Church Trust v Minister for COVID-19 Response [2024] NZCA 81, [2024] 2 NZLR 746 at [142]; and Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34, [2025] 1 NZLR 21 at [157].
These observations also apply to the lack of merit in the substantive proceeding, which we now address.
Lack of merit
In the substantive proceeding, the appellants sought declarations and orders as follows:
a. A declaration that the decision by the respondent Council to add fluoride for the purpose of mass medication of its community water, without a proper determination that this is a demonstrably justified limitation of the protection of the NZ Bill of Rights Act, [s 11] protection of the right to refuse medical treatment, is unlawful[.]
b. A declaration that the decision by the respondent council to act in reliance on a direction that the High Court found to be unlawful, to mass medicate public drinking water, is unlawful.
c. An order that the Council must not fluoridate the Hastings drinking water until further order of the court.
d.Costs[.]
It is clear from the Substantive Decision that, at the hearing, the appellants also argued that the Director-General’s failure to offer the Council an extension to the deadline for compliance until the NZBORA analysis had been completed was unlawful.[34]
[34]Substantive decision, above n 1, at [44]–[51].
We agree with the respondents. The claims had no prospect of success, given the Relief Judgment made it clear that the Direction remained valid. This meant the Council was under a mandatory duty to comply.
And it is clear from the Substantive Decision that the Judge did not consider the appellants acted reasonably.
Unreasonableness
In the judgment under appeal, the Judge described the appellants’ pleadings, evidence and submissions as “unsatisfactory”.[35] The evidence addressed the merits of fluoridation generally, the statement of claim did not plead any error of law but rather sought broad declarations and the written submissions did not address grounds for review. It is also evident that the appellants’ claim shifted during the course of oral submissions, for example, by raising the Director-General’s failure proactively to offer the Council an extension.[36]
[35]Judgment under appeal, above n 2, at [8].
[36]Substantive decision, above n 1, at [51].
The Judge was obviously in the best position to make this assessment and we see no basis to criticise or interfere with it.
For these reasons, we are satisfied that the High Court did not err in finding that the proceeding did not meet the public interest test.
Did the High Court err in awarding costs to the Director-General and the Attorney-General?
The Director-General and the Attorney-General had claimed one set of costs only between them, given their interests were common and they were represented by the same counsel. The Judge accepted their submission that r 14.15 of the High Court Rules was not engaged because all the respondents, including the Council, could not have joined their defence.[37] Rule 14.15 states:
14.15 Defendants defending separately
The court must not allow more than 1 set of costs, unless it appears to the court that there is good reason to do so, if—
(a) several defendants defended a proceeding separately; and
(b)it appears to the court that all or some of them could have joined in their defence.
[37]Judgment under appeal, above n 2, at [12].
Ms Grey pointed out that the proceeding originally named the Council only. She suggested the Director-General and the Attorney-General asked to join “presumably to try to collaterally defend their unlawful directive”. Ms Grey said that the Director-General’s fundamental omission in failing to consider NZBORA was the material cause of the proceeding, and it was therefore unfair and irrational to award costs in favour of the Crown. As for the Attorney-General, in Ms Grey’s submission, the Attorney-General’s interest should have been for constitutional rather than advocacy purposes and her role was to protect the rule of law and the rights protected by NZBORA. Her decision to participate in the proceeding was, in Ms Grey’s submission, at odds with the Attorney-General’s constitutional duties to the public.
A High Court minute of 10 April 2024 records that the Director-General and the Attorney-General were added as parties by consent.[38] The respondents say (and this was not contradicted by Ms Grey) that when the appellants first filed the proceeding, they emailed the Director-General and the Solicitor-General on 10 April 2024 asking if they wished to engage on this matter. The Director-General and the Attorney-General were then served after being added as parties. They agreed to an urgent hearing of the substantive proceeding and a truncated schedule for filing statements of defence, evidence and submissions.
[38]Fluoride Action Network (NZ) Inc v Hastings District Council CIV-2024-441-27, 10 April 2024 (Minute of McHerron J) at [3(b)].
We accept that the nature of the proceeding required a separate response from the Director-General and the Attorney-General. The statement of claim contained allegations which required a response from them, for example, in relation to the NZBORA analysis ordered by the High Court. We note there was substantial evidence addressing those allegations. The arguments raised by the appellants clearly involved a direct challenge to the validity and effectiveness of the Direction. Furthermore, albeit at the hearing itself, it appears the appellants challenged the legality of the Director-General not proactively granting a general extension to local authorities.[39]
[39]Substantive decision, above n 1, at [51].
The Judge was correct to order one set of costs to the Director-General and the Attorney-General as well as the separate award of costs to the Council.
Discretion
Finally, the Judge had an overriding discretion in respect of his final decision to award costs and the level of those costs. We discern no error in his approach.
We also consider the Judge was correct to certify for second counsel, given the wide-ranging nature of the appellants’ claim and the urgency involved.[40]
Costs
[40]See Brady v Presbyterian Church of Aotearoa New Zealand [2013] NZHC 2300 at [2]; and Latumbo v Pacific Auto Carrier (NZ) Ltd [2018] NZHC 3158 at [6]–[8].
The Director-General and the Attorney-General seek costs on this appeal. The appellants oppose that course, maintaining they do not have the funds to pay. However, we note that they refused to provide evidence of impecuniosity when it was requested in connection with their application for waiver of security for costs for this appeal.
We see no reason why costs should not follow the event.
Result
The appeal is dismissed.
The appellants are to pay the second and third respondents one set of costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Susan Grey, Nelson for First and Second Appellants
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Second and Third Respondents
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