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Gordon v Attorney-General

Gordon v Attorney-General

Case [2022] NZHC 2801 27 October 2022

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-202

[2022] NZHC 2801

BETWEEN
SARAH GORDON

First Applicant

GILES NEWTON-HOWES
Second Applicant

AND

ATTORNEY-GENERAL

First Respondent

DIRECTOR-GENERAL OF HEALTH

Second Respondent

Hearing (Teams): 10 October 2022

Appearances:

I H V Reuvecamp for the Applicants D R La Hood for the Respondents

Judgment:

27 October 2022

JUDGMENT NO 2 OF PALMER J

Solicitors
Vida Law, Wellington
Crown Law Office, Wellington

GORDON v ATTORNEY-GENERAL [2022] NZHC 2801 [27 October 2022]

What happened?

[1] In these proceedings the plaintiffs, Associate Professor Sarah Gordon and Associate Professor Giles Newton-Howes, seek declarations about the interpretation of provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). The proceedings are now set down to be heard for up to two days in the Wellington High Court commencing 13 February 2023.

[2] The plaintiffs sought a protective costs order that no award of costs would be made against them if they are unsuccessful. I am not aware of the High Court making a protective costs order previously in New Zealand. In a judgment decided on the papers and issued on 26 August 2022, I accepted that the Court has jurisdiction to make protective costs orders.1 As the Supreme Court stated in Environmental Defence Society v New Zealand King Salmon, protective costs orders are only made:2
… in the extreme case that a public interest point which ought to be heard is likely not to be ventilated if a party without any personal stake is at risk of an undetermined exposure to costs.

[3] I observed that the outcome is determined by the particular circumstances of the case and that relevant factors are:3

(a)While not fatal to an application, does the claimant have a private interest in the outcome of the case?

(b)Will the claimant have to discontinue the proceedings without such an order?

(c)Are the issues of general public importance and resolution of them in the public interest?

(d)Is it fair and just to make the order, having regard to the financial resources of all parties?

(e)Are those acting for the claimant doing so on a pro bono basis?

[4]I said:

[12] I am not persuaded that the circumstances of this case are of such an extreme nature as to qualify for a protective costs order. I accept the claimant

1      Gordon v Attorney-General [2022] NZHC 2143 [Gordon v Attorney-General (No 1)].
2      Environmental Defence Society Inc v New Zealand King Salmon [2014] NZSC 167, (2014) 25 PRNZ 637 at [21].
3      Gordon v Attorney-General (No 1) at [11] (footnote omitted).

does not have a direct private interest at stake in the litigation and that counsel are acting pro bono. The issues are currently of general public importance. But that importance, and the public interest in resolving them, is somewhat diminished by the current public policy process regarding these issues, which is intended to yield reform of the relevant law.

[13]…

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 [2022] NZHC 2801
Case: [2022] NZHC 2801
Decision Date: 27 October 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Gordon v Attorney-General involves Associate Professors Sarah Gordon and Giles Newton-Howes who seek declarations on the interpretation of the Mental Health (Compulsory Assessment and Treatment) Act 1992. The legal issues revolve around the appropriateness of granting a protective costs order to the plaintiffs to prevent them from being liable for costs if they lose the case. The applicants argue that such an order is necessary to ensure they can proceed with the litigation, which is in the public interest and concerns significant human rights issues. The Attorney-General and the Director-General of Health oppose the order, arguing that the issues should be resolved through the ongoing legislative reform process rather than through the courts.

The court, in its initial ruling, declined the application for a protective costs order, noting that the plaintiffs did not have a personal stake in the litigation and that the issues were already being addressed through public policy reforms. However, in a subsequent hearing, the plaintiffs provided further affidavits and the Human Rights Commission sought to intervene, highlighting the importance of human rights principles in the case. The court reconsidered the application in light of this new information and determined that the original decision was incorrect. The court found that the plaintiffs had no personal interest in the outcome, were acting in the public interest, and the issues raised were of significant public importance and human rights implications. Consequently, the court rescinded its earlier decision and granted a protective costs order, ensuring that the plaintiffs would not be liable for costs if they were unsuccessful.

The final order of the court is that no award of costs will be made against the plaintiffs if they are unsuccessful, provided they do not seek costs if they are successful. If they do seek costs, the court will consider capping the amount.

Orders