Gordon v Attorney-General - [2022] NZHC 2143

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 Applicant

AND

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…

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 2143
Case: [2022] NZHC 2143
Decision Date: 26 August 2022

CaseChat Overview and Summary

In Gordon v Attorney-General, the applicants, Ms Sarah Gordon and Mr Giles Newton-Howes, sought declarations about the interpretation of provisions of the Mental Health (Compulsory Assessment and Treatment) Act 1992. They also sought a protective costs order to ensure they would not be liable for costs if they were unsuccessful in their application. The proceedings were scheduled to be heard for three days commencing 7 November 2022.

The central legal issue before the court was whether a protective costs order should be granted to the applicants, which would protect them from having to pay the respondents' costs if they were unsuccessful in the proceedings. The applicants argued that they were bringing the proceedings in the public interest, without any private interest, and that they could not afford to proceed without a protective costs order. The Crown, on the other hand, submitted that the applicants' arguments may not be consistent with expert opinions and that the proceedings may not have the public interest benefits claimed by the applicants.

The court held that the jurisdiction to make protective costs orders exists under the High Court Rules and the court's inherent jurisdiction. However, the court found that the circumstances of this case did not warrant a protective costs order. The court found that the applicants did not have a private interest in the outcome of the case, but it was not clear that they would have to discontinue the proceedings without such an order. The court also found that the issues were of general public importance and in the public interest, but their importance was somewhat diminished by the current public policy process regarding these issues. The court declined to grant the protective costs order, stating that it would be in a better position to consider the costs issue after the hearing.

No final orders were made in this judgment, as the matter was to be heard on 7 November 2022. However, the court declined the application for a protective costs order in advance of the hearing.

Orders