Gordon v Attorney-General - [2024] NZCA 327

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA506/2023
[2024] NZCA 327

BETWEEN	SARAH GORDON First Appellant GILES NEWTON-HOWES Second Appellant
AND	ATTORNEY-GENERAL First Respondent DIRECTOR-GENERAL OF HEALTH Second Respondent

Court:	French and Ellis JJ
Counsel:	I H V Reuvecamp for Appellants K Laurenson and I M C A McGlone for Respondents
Judgment: (On the papers)	18 July 2024 at 11.00 am

JUDGMENT OF THE COURT

AThe application for a protective costs order is declined.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

The appellants seek a protective costs order (PCO) in relation to their appeal from a decision of Cull J dated 25 August 2023.[1] They say without such an order they will be unable to, and will not, pursue their appeal which, they say, is brought in the public interest. The effect of such an order would be to insulate them from an adverse costs award in the event their appeal is unsuccessful. It is common ground that such orders are made only in exceptional circumstances.[2]

Background

[1]Gordon v Attorney-General [2023] NZHC 2332, [2023] 3 NZLR 625 [Substantive judgment].

[2]Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [21].

In the High Court, the appellants sought to challenge the compliance of key provisions in the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHA) with certain rights confirmed by the New Zealand Bill of Rights Act 1990 (the NZBORA).[3] As the High Court Judge noted:[4]
[10] There are no facts pertaining to any patient or applicant at issue in these proceedings. The proceedings relate solely to the civil commitment provisions of the MHA and whether they can be given a human rights consistent interpretation. …
[3]The first appellant, Ms Gordon, is a mental health services consumer with an illness of a nature which, she says, places her at threat of compulsory assessment and treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 [the MHA]. The second appellant, Mr Newton-Howes, is a psychiatrist and a clinician in charge of patient treatment under the MHA.
[4]Substantive judgment, above n 1.
Five causes of action were pleaded but, because of the more circumscribed ambit of the appeal, it suffices to focus for present purposes on the first and fifth.
The first cause of action sought declarations under the Declaratory Judgments Act 1908 that:
a.A person cannot be mentally disordered if they have the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health;
b.Under sections 10(1)(b)(ii) and 12(1)(b)(ii), it can never be desirable that the proposed patient be required to undergo further (compulsory) assessment and treatment if the proposed patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health;
c.Under section 27(3), it can never be necessary for the Court to make a compulsory treatment order if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon v Attorney-General

Details

AGLC: Gordon v Attorney-General [2024] NZCA 327
Case: [2024] NZCA 327
Decision Date: 18 July 2024 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal considered an application for a protective costs order (PCO) from Sarah Gordon and Giles Newton-Howes, who sought to appeal the High Court's decision that rejected their challenge to the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHA). The appeal concerned whether certain provisions in the MHA were consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The appellants argued that without a PCO, they would be unable to pursue their appeal, which they claimed was in the public interest. The Court noted that PCOs are granted only in exceptional circumstances and outlined the principles guiding such orders, emphasizing the importance of public interest and access to justice. The Court found that while the appeal might have some merit, the High Court's reasons for rejecting the claims, particularly regarding the interpretation of "mental capacity," were unlikely to be easily addressed on appeal. Additionally, the Court highlighted the ongoing legislative reform process concerning the MHA and its alignment with the Convention on the Rights of Persons with Disabilities. Consequently, the Court declined the application for a PCO, determining that there was insufficient public interest in the appeal to warrant such an order. The Court also noted that costs should lie where they fall.

Solicitors: Vida Law, Wellington for Appellants
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondents

Orders