Gordon v Attorney-General
[2022] NZHC 2143
•26 August 2022
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 2143
BETWEEN SARAH GORDON
First Applicant
GILES NEWTON-HOWES
Second ApplicantAND
ATTORNEY-GENERAL
First Respondent
DIRECTOR-GENERAL OF HEALTH
Second Respondent
Hearing: On the papers Appearances:
I H V Reuvecamp for the Applicants V McCall for the Respondents
Judgment:
26 August 2022
JUDGMENT OF PALMER J
Solicitors
Vida Law, Wellington
Crown Law Office, Wellington
GORDON v ATTORNEY-GENERAL [2022] NZHC 2143 [26 August 2022]
The proceedings
[1] In these proceedings, the applicants Ms Sarah Gordon and Mr Giles Newton-Howes challenge and seek declarations about the interpretation of provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act). The provisions relate to compulsory treatment, the consent to medical treatment required of children under the age of 16 years, advance directives and compulsory community treatment orders. If the declarations are not made as sought, the applicant seek a declaration of inconsistency with the New Zealand Bill of Rights Act 1990.
[2] The proceedings are scheduled to be heard for three days commencing 7 November 2022. The applicants apply for a protective costs order that no award of costs will be made against them if they are unsuccessful.
Law of protective costs
[3] Rule 14.2(1)(a) of the High Court Rules 2016 provides that “the party who fails with respect to a proceeding … should pay costs to the party who succeeds”. The Supreme Court, in Manukau Gold Club Inc v Shoye Venture Ltd, characterised this as a “fundamental principle”.1
[4] Under r 14.1(1) “[a]ll matters are at the discretion of the court if they relate to costs”. Under r 14.1(2), the other rules relating to costs are subject to that provision. The provisions of any Act override those two rules, under r 14.1(3). Rule 14.7(e) recognises explicitly that the court may refuse to make an order for costs if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”.
[5] In Environmental Defence Society Inc v New Zealand King Salmon, in the Supreme Court, Elias CJ and William Young J examined whether there should be equivalence in treatment of successful and unsuccessful public interest parties.2 In
1 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
2 Environmental Defence Society Inc v New Zealand King Salmon [2014] NZSC 167, (2014) 25 PRNZ 637 at [18]–[20].
doing so, it effectively recognised the potential availability of protective costs orders in New Zealand:
[18] The policy behind protective and pre-hearing costs orders is not dissimilar to that behind the reluctance to make an order of costs against a public interest litigant – a view that the risk of costs will otherwise impede access to justice and the representation of the public interest.3 Such orders permit public interest litigants security from the fear of an adverse costs order, provide them with the security of a cap, or advance the costs they need to carry on the litigation.
[19] The principles on which the courts will make protective costs orders were discussed by the Court of Appeal of England and Wales in R (on the application of Corner House Research) v Secretary of State for Trade and Industry.4 Relevant considerations include the fact that the claimant has no private interest in the outcome of the case5 and the likelihood that without such an order the claimant will have to discontinue the proceedings. To be suitable for a protective costs order, the case must raise issues of general public importance, the resolution of which is itself in the public interest. It must be fair and just to make the order having regard to the financial resources of all parties. It is a relevant circumstance likely to enhance the merits of the application if those acting for the claimant are doing so on a pro bono basis.6
[21] … It is true that protective costs orders arise only 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. But they are prompted by the same underlying concern to ensure access to justice for public interest matters that arises when costs are sought against an unsuccessful public interest litigant. So it is of interest in the present circumstances to note that courts in other jurisdictions considering protective costs orders have thought it necessary to consider the converse case where a public interest litigant is successful and have thought fairness may require in some cases that a protective cost order be conditional on such a litigant not being awarded costs if successful.
[6] The majority of the Supreme Court did not engage with issues regarding protective costs. But it cited r 14.7(e) of the High Court Rules and stated:7
3 Thus in Canada, the Supreme Court has confirmed that in the enforcement of constitutional rights the discretion on costs should be exercised to ensure that “ordinary citizens have access to the justice system when they seek to resolve matters of consequence to the community as a whole”: British Columbia (Minister of Forests) v Okanagan Indian Band [2003] 3 SCR 371 at [27] per LeBel J, delivering the reasons of the majority of the Court.
4 R (on the application of Corner House Research) v Secretary of State for Trade and Industry
[2005] EWCA Civ 192; [2005] 1 WLR 2600.
5 Subsequent cases have stressed the need for flexibility in applying the Corner House guidelines, especially the guideline that the applicant should have “no private interest”: see the discussion in R (on the application of the Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin) at [17]–[28].
6 R (on the application of Corner House Research) v Secretary of State for Trade and Industry,
above n 4, at [74].
7 Environmental Defence Society Inc v New Zealand King Salmon, above n 2, (footnote omitted).
[45] We should emphasise that our decision on the SOS appeal does not mean that whenever a group claiming to be acting in the public interest brings an appeal to this Court, it will be insulated from paying costs if unsuccessful. Rather, the outcome will be determined by the particular circumstances of this case. Here, it is the fact that SOS did have some success in the appeals that persuades us that costs should lie where they fall, although it is also relevant that the appeals concerned matters of public interest, that SOS was not pursuing a commercial benefit and that it acted reasonably in its conduct of the appeal.
Submissions
[7] Ms Reuvecamp, for the applicants, says that they seek a more human rights consistent interpretation and application of the Act, consistent with the Government’s international and domestic obligations. She submits that these proceedings are an extreme case of the kind identified by Elias CJ and William Young J.8 The applicants bring the proceedings in a personal capacity, for no direct personal benefit, on a self-funded basis with pro bono representation, in the public interest about issues of considerable public importance. She submits that Court fees alone, and the risks of a costs award, mean the applicant may not be in a position to proceed in the absence of a fee waiver (which has occurred), an assurance that costs will not be sought and/or a protective costs order. She submits the parties agree that the issues largely involve legal argument and do not need further refinement, and timetabling issues have been made by consent.
[8] Ms McCall, for the Crown, submits following should be considered relevant context:
(a)the November 2018 Mental Health and Addiction Inquiry report;9
(b)the Government’s response to the recommendations of that report in May 2019;10
8 At [21].
9 Government Inquiry into Mental Health and Addiction He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction (November 2018).
10 Rt Hon Jacinda Ardern, Prime Minister, and Hon David Clark, Minister of Health “Taking mental health and addiction seriously” (press release, 29 May 2019) < align="left">(c)the Ministry of Health’s report to Cabinet in June 2019 concerning the process for repeal and replacement of the relevant legislation;11
(d)the Ministry of Health’s October 2021 discussion document about reform of mental health law;12 and
(e)pending policy decisions due to be proposed by the end of 2022.
[9] The Crown acknowledges protective costs orders are available. But the Crown doubts the proceeding will have the public interest benefits contended for by the applicants. Ms McCall submits the applicants advance a particular interpretation of the Act, which may not be consistent with experts’ opinions or submitters views. A sophisticated policy process to replace the Act has commenced, there is a fundamental question of whether the Court has the institutional competence to conclude on the hypothetical issues raised in the case, and it is not clear the declarations sought would have the utility asserted by the applicants. Ms McCall submits that a protective costs order removes an important lever the Court may use to exert control over a proceeding. She submits the better course is for the position on costs to be left with the judgment of the Court when it has heard the case, sensitive to access to justice issues.
Should a protective costs order be granted?
[10] I accept, as do the parties, that the jurisdiction of the Court under the Rules, and the Court’s inherent jurisdiction, extends to the ability to make protective costs orders. As stated in Environmental Defence Society v New Zealand King Salmon, that would permit public interest litigants security from fear of an adverse costs order.13 But as also stated, protective costs orders are only made:14
… 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.
11 Manatū Hauora | Ministry of Health Health Report Cabinet paper for lodgement to Social Wellbeing Committee: Mental Health Act Reform (20191130, 20 June 2019).
12 Manatū Hauora | Ministry of Health Transforming our Mental Health Law: a public discussion document (October 2021).
13 Environmental Defence Society Inc v New Zealand King Salmon, above n 2, at [18].
14 At [21].
[11] The outcome is determined by the particular circumstances of the case. The factors identified in Environmental Defence Society from Corner House, supplemented by subsequent English case law, are relevant:15
(a)While not fatal to an application,16 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?
[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 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] Also, it is not clear that the proceedings will not be pursued without a protective costs order. Ms Gordon is not definitive in her affidavit:
The fees and risks associated with an aware of costs are potentially prohibitive in that I may not be able to proceed with the proceedings in the absence of some sort of assurance that the fees and costs will not ultimately be a personal cost to myself and my family.
15 At [19], citing R (on the application of Corner House Research) v Secretary of State for Trade and Industry, above n 4. Subsequent English case law has suggested that the courts should take a flexible approach to all aspects of the Corner House guidelines: See R (on the application of the Plantagenet Alliance Ltd) v Secretary of State for Justice and others, above n 5, at [26], citing Morgan v Hinton Organics [2009] EWCA Civ 107 at [39]–[40].
16 Austin v Miller Argent (South Wales) Limited [2014] EWCA Civ 1012 at [44].
[14] Ms Reuvecamp similarly goes only so far as to say the applicant “may not be in a position to proceed”. The applicants and counsel have been sufficiently motivated to incur the time and expense of getting this far in the proceedings, with a trial scheduled for 7 November 2022. Court fees have been waived.
[15] In these circumstances, the interests of justice and fairness do not require a protective costs order in advance of the hearing. Rather, the Court will be in a better position after the hearing, in reaching its judgment, to consider whether costs should follow the event or whether, if the applicants fail, the public interest nature of the litigation should insulate them from a costs award. The Court will, of course, be sensitive to access to justice issues. I decline the application for a protective costs order in advance.
Palmer J
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