MoveMe Health Limited v New Zealand Artificial Limb Service

[2022] NZHC 1629

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-514

[2022] NZHC 1629

UNDER

the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

MOVEME HEALTH LIMITED

Applicant

AND

NEW ZEALAND ARTIFICIAL LIMB SERVICE

Respondent

Hearing:	On the Papers
Counsel:	A H Waalkens QC, and J W Upson for Applicant B A Davies and M J Ferrier for Respondent
Judgment:	11 July 2022

COSTS JUDGMENT OF ISAC J

Introduction

[1]    In my principal judgment, I declined MoveMe Health Ltd’s application for declarations circumscribing the scope of the New Zealand Artificial Limb Service’s statutory functions.1 However, I called for submissions on whether a declaration ought to be made in different terms and, if so, what form those terms should take. In my final judgment, I concluded for a range of reasons that it would be inappropriate to make a declaration.2

1      MoveMe Health Ltd v New Zealand Artificial Limb Service [2022] NZHC 577 [principal judgment].

2      MoveMe Health Ltd v New Zealand Artificial Limb Service (No 2) [2022] NZHC 839 [final judgment].

MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2022] NZHC 1629 [11 July 2022]

[2]    I initially indicated that I was inclined to award the Service costs on a 2B basis, certifying for second counsel, but invited memoranda if agreement could not be reached.3 The parties have been unable to agree on the question of costs and have filed submissions.

Submissions

[3]    The Service argues that it was the successful party and that costs on a 2B basis totalling $27,506.49 should follow the event. It says it was successful because the Court wholly rejected the interpretations and arguments advanced by the applicant and declined to grant the relief sought. The Court accepted the Service’s alternative declaration fairly reflected the expert evidence it had accepted but agreed that a declaration, especially one radically at odds with that originally sought by the applicant, would be inappropriate.

[4]    MoveMe says that costs should lie where they fall. It submits it has enjoyed a measure of success because the Court rejected the respondent’s unconstrained interpretation of the Service’s statutory functions. By implication, this was also a finding that the Service, in implementing its erroneous interpretation of the law, has exceeded the scope of its functions. Therefore, MoveMe has been vindicated in its main purpose when it brought the application for judicial review—ensuring that the Service acts within the bounds of its legal functions.

Discussion

[5]    All matters relating to costs are discretionary,4 although that discretion must be exercised on a principled basis. So far as possible the determination of costs should be predictable and expeditious.5 The usual position is that costs follow the event.6

[6]    All things considered, I have no doubt that the Service was successful and is entitled to costs.

3 Principal judgment at [142].

4      High Court Rules 2016, r 14.1.

5      Rule 14.2(1)(g).

6      Rule 14.2(1)(a).

[7]    The applicant sought declarations narrowly defining the scope of products and services the respondent may provide and the patient groups it may serve. The Court did not accept MoveMe’s interpretation on those key issues, and refused to make the declarations sought, either in the terms originally formulated or as proposed following the principal judgment.

[8]    Further, there was no finding that the Service has acted unlawfully. The applicant’s costs submissions acknowledge “the Court has not expressed in so many words” that the Service’s interpretation of the Act was wrong in law but says that is “the logical consequence of the Court’s construction of the Act”.

[9]    The need to imply a finding of unlawfulness highlights how the applicant’s case focussed on the meaning of statutory provisions in the abstract, rather than seeking to consider those provisions against specific products or services provided by the respondent.

[10]   Finally, while I considered the respondent’s statutory functions do not permit it to provide any form of orthotic device or service,7 the parties have clearly not enjoyed equal success. The applicant sought a narrow interpretation of “similar device” that would exclude most orthotic devices. I did not accept that interpretation. On the contrary, my conclusion was largely consistent with the respondent’s more nuanced and contextual approach: “similar device” includes an orthotic device that supports a limb and promotes mobility (whether the limb is missing, partly missing or impaired).8 The fact that this conclusion was slightly narrower than the respondent may have hoped for does not change the fact that MoveMe was essentially unsuccessful in its challenge.

[11]   For the foregoing reasons, I am satisfied that the Service is entitled to costs. MoveMe has confirmed that it takes no issue with the Service’s calculation of costs (should the Court decide an award of costs is appropriate). Accordingly, I award costs as sought in the schedule to the respondent’s costs memorandum.

7      Principal judgment at [125]–[126].

8 At [138].

[12]Additionally, the respondent seeks costs for preparing its costs submissions of

$956 on the basis that the applicant, by resisting costs without good reason, has put it to further unnecessary cost. While it may be appropriate to make such an award in some cases, I do not consider it necessary here.

Result

[13]   The applicant is to pay to the respondent costs on a 2B basis (including disbursements) in the sum of $27,506.49.

Isac J

Solicitors:

Russell McVeagh, Wellington for Applicant MinterEllisonRuddWatts, Wellington for Respondent