Moveme Health Limited v New Zealand Artificial Limb Service
[2022] NZHC 577
•28 March 2022
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 577
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: 18 November 2021 Appearances:
A H Waalkens QC, C M Marks and J W Upson for Applicant M G Colson QC, B A Davies for Respondent
Judgment:
28 March 2022
JUDGMENT OF ISAC J
[Application for judicial review]
MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2022] NZHC 577
[28 March 2022]
Table of Contents
Para Nos
Introduction [1]
The Service’s origins and legislative history [6]
Early days [6]
Artificial Limb Service Act 2018 [19]
Crown Entities Act 2004 [26]
Background [32]
Evidence of the clinical context [50]
The applicant’s grounds of review [56]
The issues for determination [61]
FIRST ISSUE: ARE ORTHOSES SIMILAR DEVICES TO
PROSTHESES? [62]
Text of the Act [63]
Purpose of the Act [81]
The Act’s context [88]
Historical context [89]
The Service’s predecessors [90]
The 1993 amendments [93]
The 2018 Act [98]
Clinical context [102]
Overlap between types of device and patient groups [105]
Function and purpose of prosthetic and orthotic devices [119]
So are orthoses similar devices to prostheses? [123]
SECOND ISSUE: SHOULD THE COURT GRANT DECLARATIONS
OF THE KIND SOUGHT? [127]
Relief claimed [127]
Relevant principles [130]
Consideration [135]
Urgency [143]
Conclusion [146]
Introduction
[1] The New Zealand Artificial Limb Service (the Service) wants to supply orthotics and orthotic services. A competitor, MoveMe Health Ltd, says the Service is acting unlawfully because its statutory functions are limited to the supply of artificial limbs, or prostheses, rather than orthotics. This issue — the scope of the Service’s functions — turns on whether an orthosis is a “similar device” in terms of the definition of “artificial limb” in s 4 of the Artificial Limb Service Act 2018.
[2] MoveMe specialises in the provision and manufacturing of clinical orthotic solutions. It has applied for judicial review seeking declarations, broadly, that:1
(a)the Service’s supply of orthotic products and services exceeds its statutory functions; and
(b)the Service’s statements of intent and performance expectations also exceed its functions.
[3] MoveMe’s primary contention is that orthotic devices are not similar devices to artificial limbs. It says that the purpose, scheme and legislative history of the Artificial Limb Service Act requires “similar device” to mean a device which has the same function as an “artificial arm, hand, leg, or foot”, that function being to replace a missing limb.
[4] In response, the Service, an autonomous Crown entity charged with a range of functions relating to artificial limbs, argues that Parliament intended the Service’s functions to include the supply of devices similar to prostheses. Such devices and services include orthoses and orthotic services. It says what MoveMe in fact seeks is an advisory opinion uncoupled from a live dispute between the parties, without sufficiently specific facts to enable a declaration to be made, and the declarations sought will not be of practical consequence to the parties or the public.
1 The precise formulation of the declarations sought by MoveMe are addressed below at [127].
[5] I will begin by setting out the relevant legislative history and background before turning to the issues.
The Service’s origins and legislative history
Early days
[6] The Service’s origins can be traced back to before the establishment of the Disabled Servicemen’s Re-establishment League, which was created in 1931 by the New Zealand Returned Soldiers’ Association. The League provided training, employment and rehabilitation services to disabled soldiers returning from the First World War.2 At that time, most artificial limbs were manufactured by private firms.
[7] During the Second World War, Parliament established the Rehabilitation Board to promote and assist the reintegration and rehabilitation of returning servicemen and servicemen’s widows into normal life in New Zealand.3 In 1942, the Board appointed the Disabled Servicemen’s Re-establishment League as its agent responsible for the training of disabled servicemen in new trades and occupations.4 In 1943, the Rehabilitation Board took over a large artificial limb manufacturer in Wellington and entrusted it to the League.5 From then on, the League’s factory provided the bulk of manufacturing and fitting services to returned servicemen.
[8] The first legislative recognition of the Services’ direct predecessors appears to be in the Artificial Aids Notice 1964,6 which allowed the League to supply certain “artificial aids” for outpatients of public hospitals.7 Under cl 4(b) of the Notice, the League could supply a range of devices, including several that were not artificial limbs, such as crutches, permanent splints8 and limb socks.
2 Duncan Stout Medical Services in New Zealand and The Pacific (Historical Publication Branch, Wellington, 1958) at 35.
3 Rehabilitation Act 1941, ss 4 and 9.
4 Duncan Stout, above n 2, at 35.
5 Duncan Stout, above n 2, at 34.
6 Gazetted under reg 4 of the Social Security (Hospital Benefits of Outpatients) Regulations 1947.
7 Artificial Aids Notice 1964, cl 4(b).
8 The Notice defined a “permanent splint” as “any splint or similar aid or appliance used permanently for purposes other than as corrective measures”: Artificial Aids Notice 1964, cl 2.
[9] In 1969, the League’s role was expanded when the government appointed it as a provider of rehabilitation services to civilians. The League established the New Zealand Artificial Limb Board as a delegated board to undertake its artificial limb activities. The Board was not a statutory body but rather an agency authorised to exercise tasks on behalf of the Rehabilitation Board.9
[10] In 1990, the Disabled Servicemen’s Re-establishment League and the Artificial Limb Board were re-structured (as part of a wider health sector restructuring). The League was renamed Workbridge Incorporated, which still exists today as an employment service for people with disabilities. The Artificial Limb Board was established as an independent entity under s 43(1) of the Social Welfare (Transitional Provisions) Act 1990, and its functions were set out in statute for the first time. Those functions appear to have been narrowed from the provision of “artificial aids” prescribed by the Artificial Aids Notice to “artificial limbs” only. The functions were:10
(a)to manufacture, import, export, market, distribute, supply, fit, repair, and maintain artificial limbs:
(b)to provide rehabilitative and other services to persons with artificial limbs:
(c)to carry out research and development in relation to artificial limbs: and
(d)to advise the Minister on matters relating to artificial limbs.
[11] In 1993, the Board’s functions were expanded. This was achieved through an amendment that inserted the underlined words below:11
(a)to manufacture, import, export, market, distribute, supply, fit, repair, and maintain artificial limbs and similar devices:
(b)to provide rehabilitative and other services to persons in connection
with artificial limbs and similar devices:
(c)to carry out research and development in relation to artificial limbs
and similar devices: and
9 Pursuant to s 13 of the Rehabilitation Act 1941.
10 Social Welfare (Transitional Provisions) Act 1990, s 44.
11 Pursuant to Social Welfare (Transitional Provisions) Amendment Act 1993, s 6.
(d)to advise the Minister on matters relating to artificial limbs and
similar devices.
[12] Neither the 1990 Act nor the 1993 amendments contained a definition of “artificial limb”. As set out below, “artificial limb” was first defined in 2018.12
[13] The explanatory note for the amending legislation noted the expansion of the statutory functions in general terms:13
Clause 40 amends section 44 of the principal Act, relating to the functions of the New Zealand Artificial Limb Board. The first amendment empowers the Board to carry out its functions in relation to devices similar to artificial limbs as well as in relation to artificial limbs. The second amendment empowers the Board to provide rehabilitative and other services to persons “in connection with” artificial limbs and similar devices rather than to persons “with” artificial limbs and similar devices.
(emphasis added)
[14] The day after these amendments, the Health Sector (Transfers) Act 1993 was passed as part of wide-ranging health sector reforms. Schedule 5 of that Act repealed a great number of statutes, orders, notices and regulations, including the Artificial Aids Notice 1964.
[15] In 2004, the Artificial Limb Board was classified as an autonomous Crown entity following the enactment of the Crown Entities Act 2004.
[16]In 2013, the Board was renamed the New Zealand Artificial Limb Service.
[17] In 2018, the Service’s empowering legislation was moved into a stand-alone Act, the Artificial Limb Service Act 2018. This occurred as part of an attempt to clarify New Zealand’s social security legislation which had become outdated and confusing.14 The Minister for Social Development described the change as “policy neutral”.15
12 See below at [21].
13 Social Welfare Reform Bill (No. 3) 1993, Explanatory Note, p 9.
14 The Social Security Act 1964 was split into three new Acts: the Artificial Limb Service Act 2018, the Social Security Act 2018 and the Residential Care and Disability Support Services Act 2018: Carmel Sepuloni “Social Security legislation now easier to understand” (press release, 18 September 2018).
15 Ibid.
[18] Although the Artificial Limb Service Act uses the term “artificial limb”, it was common ground between the parties that artificial limbs in a clinical setting are referred to as prostheses. Given that was the term generally used in the submissions and evidence of the parties, I will use it as well.16
Artificial Limb Service Act 2018
[19] The Artificial Limb Service Act came into force on 26 November 2018. It consists of only 16 sections.
[20]The purpose of the Act is simply:17
… to continue, state the functions of, and otherwise provide for, a New Zealand Artificial Limb Service.
[21] The critical issue in this proceeding concerns the definition of “artificial limb” in s 4. It provides:
artificial limb means a device that is—
(a)an artificial arm, hand, leg, or foot; or
(b)a similar device.
[22] Section 7(1) provides that the Act “continues the New Zealand Artificial Limb Service”. By s 7(2), the Service is declared to be the New Zealand Artificial Limb Board established on 1 April 1990 by s 43(1) of the Social Welfare (Transitional and Provisions) Act 1990.
[23]The functions of the Service are defined in s 8. They are:
(a)to manufacture, import, export, market, distribute, supply, fit, repair, and maintain artificial limbs:
(b)to provide rehabilitative and other services to persons in connection with artificial limbs:
16 In submissions, MoveMe referred to artificial limbs as “limb” prosthetics. It did so, presumably, because the term “prosthetic” appears to have a wider clinical meaning and can be applied to any form of device that replaces a missing part of the body, not just limbs. That is to be contrasted with the definition of artificial limb in the Act, which means an artificial arm, hand, leg or foot, or “similar device”. Regardless, MoveMe did not suggest there was anything of significance to be drawn from Parliament’s use of the expression “artificial limb” rather than “prosthetic”.
17 Artificial Limb Service Act 2018, s 3.
(c)to carry out research and development in relation to artificial limbs:
(d)to advise the Minister on matters relating to artificial limbs.
[24] The Service is also classified as a Crown entity for the purposes of s 7 of the Crown Entities Act 2004, and that Act applies to the Service except to the extent that the Artificial Limb Service Act expressly provides otherwise.18
[25] Every five years, pursuant to s 14, a review of the Service’s operations must be carried out in order to consider whether the Service should be retained or abolished, and whether amendments to the Act are necessary or desirable. The findings of the review are to be reported to the responsible Minister.
Crown Entities Act 2004
[26] In order to understand MoveMe’s challenge, it is necessary to understand the effect of the Crown Entities Act on the Service’s operation. The Service is a statutory entity under s 7(1)(a) and pt 2 of sch 1 of the Act.19
[27] The Crown Entities Act reforms the law relating to Crown entities to provide a consistent framework for the establishment, governance and operation of Crown entities.20 It also clarifies accountability relationships between Crown entities, their board members, their responsible ministers on behalf of the Crown, and the House of Representatives.21
[28] Section 14(1) states that the functions of a statutory entity include the functions in the entity’s Act, and any functions that are “incidental and related to, or consequential on” those functions. In performing its functions, a statutory entity must act consistently with its objectives.22
18 Artificial Limbs Service Act 2018, s 9.
19 Accordingly, the applicable provisions are ss 13–78 of the Crown Entities Act 2004.
20 Crown Entities Act 2004, s 3.
21 Ibid.
22 Crown Entities Act 2004, s 14(2).
[29] The Crown Entities Act is both enabling and constraining of statutory entity action.
[30] The enabling provisions are ss 16 and 17. They provide that a statutory entity may do anything authorised under its own Act or the Crown Entities Act,23 and “may do anything that a natural person of full age and capacity may do”.24
[31] The constraining provisions appear at ss 18 and 19. Section 18 provides that a statutory entity may only act for the purpose of performing its functions. Section 19 states that acts of a statutory entity are invalid if they are contrary to or outside the authority of legislation or are not done for the purpose of performing its function.25
Background
[32] The foundation of this proceeding is the applicant’s view that the respondent’s continuing expansion into the orthotic services field exceeds its narrow statutory functions which are concerned only with prosthetic limbs and amputees.
[33] Since 2015, the Service has actively sought to expand the scope of its operations. It says the goal of this expansion is to better perform in its statutory functions and better serve its potential patient groups.
[34] In evidence, Mr Sean Gray, the Chief Executive of the respondent, explained that this “transformation journey” was driven by the Service’s Board with the full knowledge and support of the responsible Minister.
[35] Initially, the Service focussed its move into orthotic services on the contralateral limbs of amputees, to provide better mobility but also, importantly, to reduce the risk of further amputation of the contralateral limb. In 2020, diabetes and vascular amputations represented 48 per cent of new amputee referrals to the Service.
23 Crown Entities Act 2004, s 16.
24 Crown Entities Act 2004, s 17.
25 Section 20 is an exception to s 19. It provides that a limited class of contracts entered into by a statutory entity do not become invalid simply due to non-compliance with s 19.
Approximately 50 per cent of these amputees will experience a significant ulcer on their contralateral limb that may result in secondary amputation. In addition, over 50 per cent of unilateral upper limb amputees will develop musculoskeletal symptoms in their contralateral limbs.
[36] The Service then expanded its prevention focus into primary prevention of amputation to non-amputees.
[37] These broader aims were then reflected in subsequent statements of intent and performance expectations published by the Service. Prior to 2015, the focus was predominantly on providing services to amputees.26 For instance, the Service’s stated vision was “independent and productive lives for amputees”,27 and its mission was “to enable amputees to achieve independence by delivering prosthetic and rehabilitation services”.28 But by 2017, the respondent recorded its intention to expand operations to include persons at risk of amputation.29 By 2021, the respondent’s Statement of Intent included “prevention efforts to avoid deterioration of health and disability conditions including amputation; mainly through the provision of supportive orthotic devices and intervention services”.30
[38] As part of this expansion, the respondent has actively pursued orthotic service contracts with district health boards,31 and has successfully secured two such contracts.
[39] In 2018, the Service was awarded a contract to provide orthotic services to the Waikato DHB. The contract was ultimately entered into with Orthotic Waikato Service Limited, a Crown entity subsidiary of the Service incorporated in July 2018.
26 As reflected in the New Zealand Artificial Limb Service Statement of Intent 2014–2018 (25 June 2014).
27 At 5. Amputees were defined as people with limb loss and those with congenital limb deficiencies
and pre-amputation visits.
28 Ibid. Those services being limited under contracts to avoid duplication of services already provided by hospital-based and community-based physiotherapists.
29 New Zealand Artificial Limb Service Statement of Intent 2017–2021 (30 June 2017) at 13. Also reflected in the Service’s Statement of Performance Expectations 2018–2019 (30 June 2018) and Statement of Performance Expectations 2019–2020 (30 June 2019).
30 New Zealand Artificial Limb Service Statement of Intent 2021–2024 at 5.
31 New Zealand Artificial Limb Service Statement of Performance Expectations 2021–2022 (30 June 2021) at 9.
[40] The scope of the services and products covered by the Waikato DHB contract were outlined in the Request for Proposals as:
Orthotic Service
Clinical assessment of patient’s needs and the ‘Provision of Specialist Orthotist Services’ are:
• Assessment for and fitting of advanced orthoses
• Consultation and recommendations on client management
• Completion of necessary documentation and client notes
• Liaison with clinical/ hospital staff
• Outpatient, ward and department visits as required
• Attendance at various DHB Clinics at multiple locations
• Manufacture and fitting of custom orthotic consumables and/or footwear
• Purchase and supply of standard ‘off the shelf’ orthotic consumables and/or footwear
• Modification, repair and fitting of orthotic consumables and/or footwear
• Normal business hour call outs
• After normal business hour call outs for unstable spinal injuries only
• Reviews / follow-up repairs and refurbishment
Orthotic Products (orthoses) An orthosis may be used to:
• Control, guide, limit and/or immobilize an extremity, joint body segment for a particular reason
• To restrict movement in a given direction
• To assist movement generally
• To reduce weight bearing forces for a particular purpose
• To aid rehabilitation from fractures after the removal of a cast
• To otherwise correct the shape and/or function of the body, to provide easier movement capability or reduce pain
[41] The Request for Proposals defined orthoses as including foam and plastic cervical collars, spinal orthoses (such as scoliosis and spinal fracture girdles, corsets and body jackets), upper and lower extremity orthoses (including splinting), fracture and joint support bracing, diabetic shoes and socks, orthotic footwear, insoles and heel raisers and compression binders.
[42] The respondent’s expansion into the orthotic market was disruptive. MoveMe began raising its concerns with the Service in May 2017. Unsatisfied with the Service’s answer, it subsequently made a complaint to the Office of the Auditor- General. The Auditor-General advised in April 2018 that it would not investigate the Service’s actions due to the context of the competitive process and because it believed that the decision was a solely legal one.
[43] In May 2018, MoveMe lodged a complaint with the Ombudsman as a result of learning that the Service intended to provide services to the Waikato DHB. It requested an investigation into two issues:
(a)first, whether the Service was acting outside its statutory mandate under the Social Welfare (Reciprocity Agreements, and New Zealand Artificial Limb Service) Act 1990, and therefore contrary to law; and
(b)second, whether the Service’s failure to respond when MoveMe raised its concerns was unreasonable.
[44] MoveMe’s request stated its belief that only a very small proportion of the services covered in the Waikato DHB contract (around five per cent) fell within the Service’s functions, which it considered to be limited to “the provision of services to amputees, arguably extending to those at risk of amputation”. It emphasised that it was not bringing the request for competitive reasons but because it was entitled to expect statutory entities to act within their functions.
[45] On 12 July 2019, the Ombudsman provided a provisional opinion to MoveMe, indicating he considered the matter to be beyond his jurisdiction. He concluded:
In general, I consider that organisations are entitled to rely on legal advice received when making decisions of the nature at issue here. As such, my provisional opinion is that [the Service] did not act unreasonably when tendering for and accepting the Waikato DHB contract.
I wish to be very clear about what I am saying here. I simply have no authority to assert that [the Service] has acted contrary to law. Any such determination is the function of a court, not an Ombudsman. But in concluding that [the Service] did not act unreasonably from an administrative standpoint, I am doing so on the basis that it acted in reliance on legal advice on one possible interpretation available. Whether it is the correct one or not is not within my province to definitively decide.
[46] Following the provisional opinion there was further correspondence between MoveMe, the Ombudsman and the Service.32 It appears the Ombudsman revised his provisional opinion in November 2019 and provided this to the Service for comment, who responded with comprehensive submissions in January 2020.
32 Though not all of that correspondence has been put before the Court.
[47] The Ombudsman’s complaint process culminated in a final decision issued in June 2020.33 The Ombudsman concluded that:
The difficulty for me as I see it, is that [the question whether the Service is operating within its statutory functions] must turn on a point of law which I am not equipped to finally determine. As you are aware, an Ombudsman's investigation cannot determine questions of law. Legal proceedings would be necessary to obtain an answer.
[48] In July 2021, the Service was awarded an orthotics contract for the Auckland, Counties Manukau and Waitematā DHBs and was appointed as the only panel provider. MoveMe had been the previous provider of these services. The scope of the Auckland DHBs contract was for “Orthotic Personal Health Services and/or Products relating to Personal Health patients (outpatients non-acute) and Diagnostic Related Groups patients (inpatients acute)”. Evidence was given by the Chief Executive of MoveMe, Dr Fitzpatrick-Cockram, that the applicant considers none of the patients receiving orthotic services under this contract will be amputees or have any permanent disability to a limb, and that only a very small percentage (6–7 per cent) would be at risk of amputation.
[49] In September 2021, MoveMe brought this proceeding seeking an urgent determination. MoveMe’s evidence is that three of its DHB orthotic service contracts, comprising approximately 30 per cent of its orthotics revenue, were due to expire between November 2021 and March 2022.34 It says that the upcoming renewals make it urgent that the correct scope of the Service’s statutory powers is clarified.
Evidence of the clinical context
[50] Extensive expert evidence was filed by both parties in relation to the nature of prostheses and orthoses, and the practice of prosthetics and orthotics. The essential contest between the witnesses is whether a clinical distinction can be drawn between the nature of the respective devices, and the disciplines they fall under.
33 Although the evidence appears to suggest the decision was conveyed to MoveMe in a letter dated 6 March 2020.
34 Although all were to continue unless and until the expiry of a 90 day notice to terminate.
[51] While both parties to some extent took issue with the admissibility, relevance or weight to be attached to the expert evidence of the other, overall I have found it substantially helpful in determining the central issue. While the term “artificial limb” may not appear to be a term of art, the question raised in this proceeding — whether an orthotic is a “similar device” to an artificial limb — exists in a clinical setting. Words and phrases used in technical legislation should be assumed to be used in their technical sense if they have acquired one.35 And to the extent the Act refers to an artificial limb “or similar device”, it is appropriate to have regard to the clinical and technical setting with which it engages.
[52] Expert evidence was provided for the applicant by Mr Zac Kleinhans and Mr Courtney Snyman, both of whom are certified orthotists and prosthetists.
[53] The Service adduced expert evidence from Mr Paul Sprague, also a certified orthotist and prosthetist, Dr Cynthia Bennett, a physical medicine and rehabilitation physician working as a consultant, Professor Simon Fraser, a chair in industrial design at Victoria University of Wellington, and Mr Alan Thurston, a retired associate professor and orthopaedic surgeon.
[54] Naturally, the evidence tends to highlight the differences and similarities between orthoses and prostheses, between the professional schools that deal with each form of device, and the patient groups who might require them.
[55]I return to consider the key aspects of the expert evidence later in this judgment.
The applicant’s grounds of review
[56] MoveMe originally advanced three causes of action. By the time the matter came on for hearing it had abandoned the third, which appeared to be a challenge to the lawfulness of the Waikato DHB orthotic contract.
35 Peter St J Langan Maxwell on the Interpretation of Statutes (12th ed, Sweet and Maxwell, London, 1969) at 28; Jenkins v Inland Revenue Commissioners [1944] 2 All ER 491 (CA) at 495; Ancient Trees of NZ Ltd v Attorney-General HC Wellington CP483/93, 29 April 1994 at 11; Holt & Co v Collyer (1881) 16 Ch D 718, 720.
[57] Its remaining principal challenge — of illegality — was that the Service had acted outside its functions under the Act by offering, seeking and entering into contracts “for the provision of products and services that are not, or not related to, artificial limbs and not for persons in connection with artificial limbs”.
[58] On this basis, MoveMe seeks a declaration that the Service has acted unlawfully, and that:
…the meaning of “similar device” in the definition of “artificial limb” in the Act is limited to devices that have a similar function to an artificial arm, hand, leg, or foot, which are artificial devices that replace or augment a missing limb.
[59] It also seeks a declaration that the reference in s 8(b) of the Act to provision of services “to persons in connection with artificial limbs” requires that the services are provided to persons who require or have an artificial limb.
[60] Finally, the applicant seeks a declaration that the various statements of intent and performance expectations of the Service, to the extent they refer to commercial activities inconsistent with the other declarations, are also unlawful.
The issues for determination
[61]Two issues require consideration. They are:
(a)First, the scope of devices contemplated by the term “artificial limb” in s 4 of the Artificial Limb Service Act 2018. In particular, are orthoses “similar” devices to prostheses?
(b)Second, whether the relief claimed by the applicant can and should be granted.
FIRST ISSUE: ARE ORTHOSES SIMILAR DEVICES TO PROSTHESES?
[62] The meaning of legislation must be ascertained from its text and in light of its purpose and context.36 And, legislation applies to circumstances as they arise.37 In other words, courts are anxious to give statutes an ambulatory of dynamic interpretation that keeps them up to date in the modern world.38
Text of the Act
[63]I begin with the text. It is useful to recall the definition of “artificial limb” in
s 4 of the Artificial Limb Service Act:
artificial limb means a device that is—
(a)an artificial arm, hand, leg, or foot; or
(b)a similar device
[64] Mr Waalkens QC, for the applicant, submits that the plain meaning of the text supports a narrow interpretation. He argues that the meaning of “similar device” must be coloured by the plain and well-understood meaning of the words that precede it. The plain meaning of “device” is a “thing designed for a particular function or adapted for a purpose”. Therefore, a “similar device” is one which has a similar function or purpose to an artificial arm, hand, leg, or foot — a device which replaces a missing limb or part of a limb. Expressed another way, MoveMe argues that a “similar device” is limited to artificial devices that replace or augment a missing limb.
[65] It follows that orthotics cannot be similar devices, except to the rare extent that their function is to replace a missing limb. He argues that this interpretation is consistent with the maxim ejusdem generis, which requires that generic words (“similar device”) should be read down by reference to the specific words they follow (“an artificial arm, hand, leg or foot”).39
36 Legislation Act 2019, s 10(1).
37 Legislation Act 2019, s 11.
38 Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 540.
39 Citing Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407, [2008] 2 NZLR 182.
[66] Mr Colson QC, for the respondent, submits that the ejusdem generis maxim assists the Service, not the applicant. He points out that Parliament could easily have used the words “similar body part” or “other body part” had a narrow view such as that advanced by MoveMe been its intention. Instead, the term used is “similar device”. This expression suggests functionality, rather than the limb, is the focus.
[67] Mr Waalkens also argues that the Service’s functions (and that of its predecessors) are tied to the organising concept of an “artificial limb”, a plain and well-understood term. If Parliament had intended the Service to have the wider functions that the respondent contends, it would have been simpler and more intuitive to express that without reference to artificial limbs. Additionally, membership of the Service’s Board includes representatives of war amputee interests and the Amputees Federation of New Zealand Incorporated but no equivalent representative of any other broader patient group.40 Finally, the five-yearly statutory review of the Service and whether any amendments to the Act are desirable,41 suggests that legislative amendment is required if the Service’s functions are to be broadened.
[68] It is uncontentious that orthotics are “devices”. The real question is whether they are “similar” devices to an artificial arm, hand, leg, or foot.
[69] Similar does not mean the same. Counsel agreed that the pairing of “similar” and “device” places the focus on the functionality rather than the form of the device. The disagreement arises over what the function of a prosthetic limb is. MoveMe says it is only to replace missing limbs or parts of limbs. The Service says it is something broader.
[70] In my view, there is nothing in the text to suggest that Parliament intended the meaning of “similar” to be restricted in the way MoveMe proposes. The term is not expressed to be qualified or limited. The question is whether a device is a similar device to an artificial arm, hand, leg, or foot. “Similar” in ordinary usage means
40 Artificial Limb Service Act 2018, s 10.
41 Artificial Limb Service Act 2018, s 14, referred to above at [25].
“having a resemblance in appearance, character, or quantity, without being identical.”42 To this list of descriptors can be added “function” and “purpose”.
[71] The difficulty with MoveMe’s narrow interpretation is that it essentially equates a similar device with an artificial limb, and in doing so renders the category of “similar device” redundant.
[72] One can test MoveMe’s interpretation by asking which kinds of device fall within the category. MoveMe’s answer focusses on the physical form and appearance of an artificial limb rather than its purpose or function. Its case is that some devices such as the Ossur Cheetah, a prosthetic blade used by athletes, or pylons and hooks, do not strictly fall within the category of artificial arm, leg hand or feet but, by implication, fall within the catch-all of “similar device”. It was said these devices might not be artificial limbs but they perform a role in providing for a missing limb, and are therefore a similar device.
[73] In my view, blades and hooks are intended to perform the function of a missing limb. They are an artificial limb. So I do not consider MoveMe’s conception of a “similar device” makes sense of the category.
[74] I prefer the Service’s view that the real question is whether there is a similarity between orthotic and prosthetic devices in terms of their function and purpose, bearing in mind that inherent in the expression “similar” is the presence of difference. If there were no points of distinction between prostheses and orthoses, the devices would be the same, not similar.
[75] I also accept that the similarity between the two types of device is reflected in the definitions of orthosis and prosthesis within the Oxford Dictionary, Lexico and the World Health Organisation’s Standards for Prosthetics and Orthotics, the latter of
42 Oxford Dictionary definition of “similar” < See also Heffernan v Comcare [2014] FCAFC 2, (2014) 218 FCR 1 at [46]. Although Heffernan concerned quite different circumstances — whether a modified vehicle was similar to a medical or surgical aid or appliance
— it is interesting that the Court focussed on the similarity of character rather than function. This highlights that similar can be defined at varying levels of abstraction: for example, similarity in appearance, form, function, character, purpose or aim. The issue is in determining which level of abstraction is appropriate.
which defines ‘orthosis’ and ‘prosthesis’ as “externally applied device[s]” used, respectively, “to modify the structural and functional characteristics of the neuromuscular and skeletal systems” and “to replace wholly or partly an absent or deficient43 limb segment”.
[76] The applicant’s textual reading also focusses on the s 4 definition of “artificial limb” but does not persuasively account for clues derived from a wider reading of the legislation. As the Service points out, s 8(b) of the Act records that one of its functions is:
…to provide rehabilitative and other services to persons in connection with
artificial limbs. (emphasis added)
[77] The legislative expansion in 1993 was from “persons with artificial limbs” to “persons in connection with artificial limbs”. The amendment suggests a conscious expansion of the provision of rehabilitative and other services from people who already have an artificial limb to those who may be at risk of requiring one.
[78] There is strength in the Service’s submission that this function appears to extend the range of rehabilitative and other services to an amputee in connection with a prosthesis, which might include orthoses and orthotic services for a contralateral limb.
[79] While the applicant contends that the respondent’s functions are confined to providing services to amputees, no reference is made to amputees in the statutory functions. In fact, the only reference to amputees in the Act is in s 10 which provides for the interests of war amputees and the Amputees Federation in the board’s membership.44 As Mr Colson notes, that does not support a narrow interpretation focused on amputees or devices which replace missing limbs. The Federation itself has a natural interest in amputation prevention and orthotic care for contralateral limbs.
43 It is curious that the definitions of prosthesis include the concept of replacement of a deficient
limb. It suggests a considerable degree of overlap with orthoses.
44 Section 10 also requires that members be appointed to represent the interests of District Health Boards and the New Zealand Orthopaedic Association, and that a further member be appointed by a majority of the Service’s current members.
[80] Overall, the text of the legislation, to the extent it provides guidance about the meaning of “similar device” indicates that the expression must be wider than the category advanced by MoveMe. I accept that the expression must have been intended to include devices that perform a similar function, or have a similar character, to artificial limbs. Some orthoses clearly meet that requirement.
Purpose of the Act
[81]The Act’s purpose is crisply stated in s 3. It is:
…to continue, state the functions of, and otherwise provide for, a New Zealand Artificial Limb Service.
[82] Although at first glance this does not shed much light on the scope of the definition of artificial limb, it does indicate the importance of the continuity of the Crown entity, and therefore emphasises the relevance of its historical activity when informing the scope of its statutory functions. This is in turn emphasised by s 7, which reiterates the continuance of the Service, its pre-existing activities, and that of its predecessors.
[83] And, as I have noted, the functions defined in s 8 of the Act also provide guidance about its purpose. Section 8 states:
The functions of the Service are—
(a)to manufacture, import, export, market, distribute, supply, fit, repair, and maintain artificial limbs:
(b)to provide rehabilitative and other services to persons in connection with artificial limbs:
(c)to carry out research and development in relation to artificial limbs:
(d)to advise the Minister on matters relating to artificial limbs.
[84] These functions are broad. Of particular significance in ascertaining purpose is the inclusion of rehabilitative and “other” services in connection with artificial limbs, including similar devices, and a research and advisory function.
[85] The broad purpose of the Act is to support and enhance the mobility of people, and to assist the rehabilitation of people with mobility difficulties. In short, the Act’s purpose is not limited to dealing with amputees. Had Parliament intended to limit the functions of the Service to amputees, one would not have expected it to have extended the definition of artificial limb to include “similar devices”.
[86] As the Service submits, this broad purpose avoids the unattractive view that its functions are limited to an ambulance at the bottom of a cliff, rather than a fence at the top designed to prevent amputation. This in turn suggests the provision of orthoses and orthotic services that avoid or reduce the risk of amputation fall within the purpose of the Act.
[87] Again, I consider the purpose of the Act, with its wider focus on rehabilitation, research and services in connection with mobility, does not support the restrictive interpretation advanced by MoveMe.
The Act’s context
[88] Next I turn to consider the context of the legislation. There are two aspects: historical and clinical.
Historical context
[89] The parties advanced submissions on three historical points of context. The first was the Service’s predecessors and the forms of devices and services they provided.
The Service’s predecessors
[90] Mr Waalkens submitted the legislative history demonstrates that the Service and its predecessors always had a narrow purpose focused exclusively on prosthetic limbs and amputees. He pointed to the Service’s origins as the Artificial Limb Board, an entity which took over the artificial limb manufacture and fitting functions of the Disabled Servicemen’s Re-establishment League. He says those discrete functions were formalised when the Board was established as a statutory entity in 1990.
[91] Mr Colson submitted that the legislative history confirms that the functions of the Service and its predecessors have never been confined to just prosthetic limbs. He notes that from 1964, under the Artificial Aids Notice, the League was involved in providing a range of mobility devices beyond artificial limbs for amputees.
[92] Tracing the history of the Service suggests that its predecessors were involved in supplying a broader range of products than just prosthetic limbs. The Disabled Servicemen’s Re-establishment League was established to help rehabilitate disabled soldiers returning from war and reintegrate them into society. Its functions were broad. Under the Artificial Aids Notice 1964, it was able to provide devices such as permanent splints45 (a quintessential orthotic). I consider the activities of the League and the Board were concerned more generally with enhancing health, rehabilitation and mobility of people, rather than having a narrow focus on prosthetic limbs and amputees.
The 1993 amendments
[93] As noted earlier,46 the Board was made an independent statutory entity in 1990 and its functions were first set out in statute. Then, just three years later, the functions were broadened to include the provision of “similar devices” “in connection with” the supply of rehabilitative and other services. The parties agree there is little legislative material surrounding the 1993 amendments which sheds light on Parliament’s intention, though unsurprisingly they have opposing views on the purpose and effect of the amendments.
[94] MoveMe submitted the amendments were not intended to significantly broaden the Service’s functions, as reflected by the absence of any significant commentary or policy rationale. The addition of the words “and similar devices” clarified that the Board could provide devices that have the function of replacing a missing limb. The amendment to allow the provision of services to “persons in
45 As noted, the Artificial Aids Notice 1964, at cl 2, defined a “permanent splint” as any splint “or similar aid or appliance” used permanently for purposes other than corrective measures. This strongly suggests that orthoses designed to return mobility to a disabled (rather than missing) limb fell within the scope of the approved activities of the Disabled Servicemen’s Re-establishment League. This also makes sense given wounded servicemen and women are likely to have a range of mobility affecting injuries beyond amputation.
46 Above at [10]–[11].
connection with artificial limbs” merely clarified that the Board’s functions extended to people who did not technically have an artificial limb but were nevertheless in connection with one. For instance, people who have been referred for amputation, and amputees who have decided not to have an artificial limb, would be captured.
[95] In response, the Service argued the 1993 amendments were a clear and deliberate broadening of the Service’s functions. The definition of “artificial limbs” was extended to include “similar devices” and the addition of the words “in connection with” clarified that the provision of services was not restricted to amputees. The respondent says this legislative broadening demonstrates an intention to give the Service flexibility to evolve its operations as the clinical environment changed.47 The revocation of the Artificial Aids Notice 1964 immediately after the 1993 amendments reflected an intention that the Board’s expanded functions would encompass at least the supply of devices that were available under the Notice.
[96] For the reasons already outlined, I consider that the Artificial Limb Board’s activities were never limited to prosthetic limbs and amputees only. However, even if I am wrong about that, the 1993 amendments were a clear and deliberate broadening of the Board’s functions from artificial limbs alone. The change to “similar devices” expanded the types of products which the Board could provide. And the change from “persons with artificial limbs” to “persons in connection with artificial limbs” clearly extended the patient group to people who are at risk of amputation, but not yet amputees.
[97] I do not accept the interpretation advanced by MoveMe, which requires reading down the ostensibly expansive amendments. For the reasons I have noted there is nothing to suggest that Parliament intended the functions to be restricted to the provision of products and services to amputees or even those referred for amputation. Had this been its intention, it could easily have made that clear.
47 No doubt reflecting the ambulatory nature of statutes, reflected in s 11 of the Legislation Act 2019.
The 2018 Act
[98] MoveMe argued that the only significant change introduced by the 2018 Act was that Parliament brought the term “similar device” from the Service’s functions to form part of the definition of “artificial limb”. This, it was suggested, confirmed the meaning of artificial limb is a narrow one. Parliament had the opportunity to broaden the scope of the Service’s functions and to clarify that its patient cohort was not limited to amputees but chose not to. It was argued that the limited Select Committee materials supports the view that the Service’s role was intended to be confined to artificial limbs and amputees, noting that the Committee requested follow up information concerning amputees but not the wider services the respondent says it can offer.
[99] In response, the Service submitted there is no evidence to suggest that the enactment of the 2018 Act was intended to alter or limit the scope of the Service’s functions. Indeed, the Minister’s press release noted the legislative rewrite was policy neutral.48 In other words, the 2018 Act simply carved out the relevant section of the 1993 Act and continued business as usual.
[100] The Service also points to the fact that since 2015 it has been further expanding its work into orthotics and orthotic services, under an express mandate from its Board. When the 2018 Act was passed by Parliament, the Service was already engaged in the provision of orthotic services, including through the Waikato DHB contract. The responsible Minister was aware of and supported the expansion, having signed off and tabled in the House the Service’s statements of intent and performance expectations. Against that background, the 2018 Act cannot have been intended to suddenly and opaquely limit the scope of the Service’s functions in the way contended by the applicant (and without informing the respondent that it was no longer able to provide the services it was then providing). Accordingly, the failure to clarify the Service’s functions in the 2018 Act is not evidence of a narrow meaning as MoveMe contends. Rather, it reflects that Parliament considered the Service’s functions were sufficiently broad to encompass the activities it was then engaged in, including orthotic services.
48 See above at [17].
[101] Overall, I find the Service’s position on this aspect of historical context persuasive. Given the Service was already engaged in the supply of some orthotic devices and services at the time the Act was passed, it is illogical that Parliament should be taken to have narrowed the scope of its functions without expressly doing so within the legislation or having made that intention clear in the accompanying parliamentary materials.
Clinical context
[102] The second aspect of context the parties addressed in detail is the clinical setting in which the dispute arises.
[103] A considerable amount of expert evidence was provided to assist the Court in understanding that clinical context. Within that evidence, two key points of clash arose. They were:
(a)the overlap (or distinction) between orthoses and prostheses and the patient groups that use them; and
(b)the function and purpose of the two forms of device.
[104]I now turn to consider these aspects of clinical context.
Overlap between types of device and patient groups
[105] Evidence was provided for the applicant by Mr Snyman and Mr Kleinhans, certified orthotists and prosthetists. Their evidence emphasised that prosthetics and orthotics are well-understood to be distinct categories of devices that can be easily and separately described by professionals and laypeople. Their view was that the function of a prosthetic limb is to replace a missing body part, whereas the function of an orthotic is to support, immobilise, correct or prevent injury to an existing body part.
They also pointed to the definitions of prosthesis and orthosis of reputable international bodies, including the World Health Organisation, as illustrating the distinguishable nature of the two devices.
[106] Despite this, both witnesses also acknowledged that there was a degree to which the two forms of device overlap. Mr Snyman deposed that:
At the margins, there may be some orthotic devices that could be used to assist part of a missing limb, for example, half foot orthoses but this is a very small subset of orthotics and could readily be described as an artificial limb substitute or a device performing the same function.
[107] And in his evidence, Mr Kleinhans says that while orthotic services and devices are predominantly used by non-amputee patients:
… there will be some circumstances where orthotic service[s] might be provided to an amputee in connection with the artificial limb, for example, when the contralateral limb (or sound limb) develops issues or injury due to the strain caused by wearing an artificial limb.
[108]Dr Fitzpatrick-Cockram, MoveMe’s chief executive, also conceded that:
There may be a small overlap between artificial limb contracts and orthotic services contracts where an amputee is referred for an orthotic under an orthotics service contract, but this would usually arise where the need for the orthotic is not related to the artificial limb or, possibly, where [the Service] has decided to refer the person to an orthotic service.
[109] These concessions are consistent with the respondent’s expert evidence, which makes a compelling case that it is not possible to draw a bright line between orthoses and prostheses. Instead they exist on a continuum.
[110] The Service’s evidence provided a pictorial representation of this. It illustrates “the increasingly similar nature of, and blurring of lines between, orthotics and prosthetics”, due in part to technological advances.49
49 The continuum was provided to the Court as two separate tables but has been merged into one for convenience.
[111] The difficulty with the rigid classification sought by MoveMe becomes immediately apparent by reference to these illustrations. The two hand devices in the centre of the diagram reflect what can be described as hybrid devices. They both replace parts of missing hands, but also provide functional support and augmentation for those parts of the hand that remain. They defy a binary classification, a point confirmed in the balance of the Service’s expert evidence.
[112] The concept of a continuum was also echoed in the evidence of Professor Simon Fraser, a chair in Industrial Design at Victoria University of Wellington. Professor Fraser has worked with the respondent in researching prosthetic and orthotic devices. He considers it is artificial to draw a distinction between prosthetics and orthotics from a research and technology point of view. There is an overlap from one device to the other in clinical practice, design, and the use of
materials and technology. For example, digital scanning, computational design and 3D printing technology can be used to create individualised orthoses to treat diabetes patients and mitigate the risk of amputation. The same technology can be used, should amputation eventuate, to manufacture a responsive socket liner for a prosthetic limb.
[113] The clinical context of the legislation is of course relevant to the Service’s broader functions, including “research and development in relation to artificial limbs”.50 These functions cannot be separated from the others, and the term “artificial limb” (including similar devices) must have the same meaning across each function. Research and development work must be carried out with the clinical functions in mind.
[114] Mr Paul Sprague, a certified orthotist and prosthetist in Australia and full member of the Australian Orthotic Prosthetic Association, described the health fields of orthotics and prosthetics as “allied”. He deposed that the fields are generally classified collectively in terms of education, certification, service delivery and practice in most parts of the world, including Australia and New Zealand. He explained that:
A large part of what drives the overlap between the two streams (and so highlights the similarity of the devices used in each stream) is the common subject matter…The biomechanical aims during efficient gait are the same for people who are able bodied, have neurological impairment or an amputation. Whether providing a prosthesis or an orthosis for this purpose, the clinician will use common principles and techniques to modify the influence of the ground reaction force on the body, and use materials and components to compensate for or accommodate the lost structure or function of the musculoskeletal and/or neurological system.
[115] Mr Sprague also deposed that the purposes of orthotic and prosthetic devices are very similar. The specific category of orthoses which could most readily be interpreted as “similar devices” to artificial limbs are those which are fitted to limbs rather than the head or torso. Within this category of limb orthoses, the majority of those that are fitted are used, just like prostheses, for ambulatory or weight-bearing purposes. These devices are designed to replace, augment or accommodate the structure or function of the neurological, muscular or skeletal systems. Further, much
50 Artificial Limb Service Act 2018, s 8(c).
the same technology, material and componentry are used for both forms of mobility assisting devices.
[116] Mr Sprague also explained that there are clinical areas of practice which are difficult to classify as either prosthetics or orthotics. For example, proximal femoral focal deficiency is a condition which may or may not be managed surgically, and in some cases will require the fitting of a device encompassing an artificial leg and foot, even though the individual retains an anatomical foot which fits inside the device.
[117] The respondent’s evidence also points to the overlap in the populations that access both prosthetic and orthotic services. Mr Sprague confirmed that the majority of amputations result from diabetes and peripheral vascular disease. He noted that for those at risk of lower limb amputation, the provision of foot orthotics is a critical treatment method in preventing amputation. Given the close overlap between the streams of orthotics and prosthetics, patients at risk of amputation may benefit from a service that provides both services in a combined delivery model.
[118] Overall, I prefer the expert evidence of the Service, indicating as it does that there is certainly overlap between orthoses and prostheses insofar as they relate to missing or deficient limbs. The evidence indicates the interpretation of “similar device” advanced by the applicant is out-of-step with the clinical context. And, while not going as far as the respondent’s experts, the applicant’s witnesses were driven to make concessions that were consistent with the position that some orthoses are similar devices for the purposes of the Act.
Function and purpose of prosthetic and orthotic devices
[119] The second area of clinical context addressed by the parties’ experts related to the function, purpose and aims of the two forms of device.
[120] For MoveMe, Mr Kleinhans and Mr Snyman’s evidence highlighted what they considered were the differing functions of orthoses and prostheses, and the different patient groups who might use them. While they considered prostheses have the specific purpose of replacing a missing limb and therefore have a very specific patient cohort, orthoses cover a vast array of medical issues and are provided to a wide group
of the population. For instance, orthotics include moonboots to assist fracture healing after a cast is removed, bands to support women in pregnancy or for hernias, back and neck braces, foot insoles and cranial helmets.
[121] For the Service, Dr Bennett and Mr Sprague deposed that orthoses and prostheses, in their clinical setting, have overlapping functions, purposes and aims in that both ultimately seek to enable a person to maintain independence, improve their functionality, and remain active, safe and healthy. Dr Bennett’s evidence is that both prosthetic and orthotic devices are externally fitted devices designed to achieve a range of goals, including to improve biomechanical alignment, correct or accommodate deformity, protect, support or prevent an injury, assist recovery and rehabilitation, reduce pain, increase function and mobility, and increase independence. She notes that from the perspective of rehabilitation: “there is no separation in the purpose or need for these similar devices in supporting individuals to optimise their safety, function and independence”.
[122] A key prong of the applicant’s case is that similar device means a device with a similar function. While that may be the case, I do not accept the applicant’s conception of functionality. MoveMe says that the function of an artificial arm, hand, leg, or foot is to replace a missing limb. To qualify as a similar device, the function of an orthotic must therefore be to replace a missing limb. However, as I have concluded, that view focusses more on the form and appearance rather than the function, purpose or character of the two forms of device. A wider and more coherent view is that the function of prosthetic limbs is to support and promote mobility. On that approach, orthotics that serve the same purpose or function qualify as similar devices.
So are orthoses similar devices to prostheses?
[123] The answer to the first issue is that some orthoses are similar devices to prostheses. They perform the same purpose or function in that they restore or promote mobility in a missing or deficient limb. This conclusion is supported by the text, purpose and context of the legislation.
[124] However, the answer to the first question raises another: which orthoses are similar? Where and how does the Court draw the line?
[125] I have concluded that MoveMe has sought to draw the line in the wrong place, by excluding orthoses that have a similar function, purpose or character as prostheses.
[126] But equally, I consider that the Service has also sought to draw the line in the wrong place. Its argument, in a nutshell, is that because some orthoses are similar devices to prostheses, all orthoses are similar devices. That, of course, is a non- sequitur. So I do not accept the Service’s submission that its statutory functions permit it to supply any form of orthotic device, or service.
SECOND ISSUE: SHOULD THE COURT GRANT DECLARATIONS OF THE KIND SOUGHT?
Relief claimed
[127] As noted, MoveMe seeks the following declarations under s 16(1)(b) of the Judicial Review Procedure Act 2016:
(a)that “similar device” in the definition of “artificial limb” is limited to devices with a similar function to an artificial arm, hand, leg, or foot, which are artificial devices that replace or augment a missing limb;
(b)that the reference to provision of services “to persons in connection with artificial limbs” requires that the services are provided to persons who require or have an artificial limb; and
(c)that the Service’s Statement of Intent for 2021–2024 and Statement of Performance Expectations for 2021–2022 are unlawful (to the extent that they clam otherwise).
[128] For the reasons set out in my consideration of the first issue, I do not accept that the application for review should be granted, or that declarations in the form sought should issue.
[129] However, having determined what I consider to be the correct interpretation of the disputed statutory terms, there remains the question whether I should make a
declaration to that effect. A declaration defines the legal position inter partes without stipulating sanctions.51 It is a statement of the law, not of the legal result of the law.
Relevant principles
[130] The importance of the Court’s role in resolving disputes about the meaning of legislation was outlined by the Court of Appeal in Electoral Commission v Tate. It said the Courts cannot refuse to make declaratory judgments where that would be inconsistent with the Courts’ essential function of interpreting and applying the law to the facts of a particular case.52 It went on to say:53
The Courts’ function to interpret and enforce statutory law has implications for the rule of law. Unless the meaning of a statute is declared when it is validly in dispute, the law, and with it, the lawfulness of the person or body’s actions, will be uncertain. Thus, where a body purports to act in accordance with a disputed interpretation of a statutory provision, and on the proper interpretation it does not have that power, the body will be acting illegally and any person affected will be deprived of a right or rights which he or she is entitled to enjoy under the law. To avoid this situation the Courts’ authoritative interpretation is required. No one under the rule of law is able to escape the disinterested judgment of the law, and rendering that disinterested judgment is the function of an independent judiciary.
[131] Statutory interpretation is an essential function of the courts. Where there is uncertainty about the meaning of legislation, parties need to be able to turn to the courts for an authoritative ruling. This proceeding, which turns on the meaning of disputed statutory language, would appear to warrant the making of a declaration.
[132] Against that, however, the courts have typically been reluctant to make declarations which amount to advisory opinions. An advisory opinion is a legal determination uncoupled from specific facts or a live dispute — a finding in the abstract. In arguing that the declarations sought should be refused, Mr Colson drew the Court’s attention to Department of Internal Affairs v Whitehouse Tavern Trust Board where the Court of Appeal said:54
51 Philip Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, 2021) at [27.3.3(2)].
52 Electoral Commission v Tate [1999] 3 NZLR 174 at [31].
53 At [32].
54 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80] (footnote omitted).
It is well-established that a court will generally not make a declaration under the Judicature Amendment Act unless there is a dispute between the parties, the dispute arises from specific facts which are already in existence, the dispute is alive and its determination will be of some practical consequence to the parties or the public. The requirement that the declaration have utility means that it should be fact-specific, efficacious and capable of practical application.
[133] In Wool Board Disestablishment Co Ltd v Saxmere Co Ltd, Hammond J set out the fundamental principles regarding declarations:55
First, there must be an actual controversy between the parties (or as it is sometimes put, a real and not a theoretical question to be answered). As part of that concern there must be a proper contradictor. That is, there must be someone before the court with a true interest to oppose the declaration sought. Secondly, there is the question of whether a declaration may have a practical effect on non-parties. Thirdly, it is generally accepted that a declaration must have utility, which can encompass a wide range of factors. Fourthly, declarations should not normally preempt or somehow supplant findings which would need to be made in a criminal prosecution. Fifthly, the availability of other remedies is a relevant factor. But sixthly, and perhaps most importantly, the rule of law itself requires that if a law has been contravened that should be publicly enunciated and formally made known. In that respect it is to be noted that the emphasis in the discretionary exercise has recently shifted somewhat to a consideration of whether there are grounds to refuse relief following a finding of error of law.
[134] In Earthquake Commission v Insurance Council of New Zealand Inc, a full bench of the High Court observed:56
The types of situation in which discretionary relief will normally be refused include cases in which the subject matter of the proposed declaration can be characterised as “theoretical”, “academic”, “hypothetical” and “abstract”. Those terms, while to some degree interchangeable, provide a useful benchmark for cases in which declaratory relief may not be appropriate. All involve cases where there is an absence of concrete facts.
Consideration
[135] There is undoubtedly a dispute between the parties as to the correct interpretation of the legislation, namely “similar devices” and “in connection with”.
55 Wool Board Disestablishment Co Ltd v Saxmere Co Ltd [2010] NZCA 513, [2011] 2 NZLR 442 at [141] per Hammond J.
56 Earthquake Commission v Insurance Council of New Zealand Inc [2015] 2 NZLR 381 at [133] (footnotes omitted).
[136] Second, the dispute arises from specific facts, in particular the respondent’s expansion into the general provision of orthotics and orthotic services, including under contracts with district health boards. This is not a claim in the abstract. The Court has had the benefit of considerable expert evidence and extensive submissions on the historical and clinical context in which the legislation operates, and the types of device that are said to constitute orthoses and prostheses.
[137] Third, the dispute is live and has clear practical consequences for the parties, who are competitors in the orthotic services market. A declaration would clarify the scope of the respondent’s statutory functions. I am advised by counsel that legislative reforms may be contemplated or underway — and a declaration on the current scope of the legislation might also inform that process.
[138] Given the conclusion that I have reached on the first issue, I would find that a “similar device” for the purposes of the Artificial Limb Service Act 2018 includes an orthotic device that supports a limb and promotes mobility (whether the limb is missing, partly missing or impaired). I consider that conclusion is sufficient to determine the extent of the Service’s functions.
[139] A question arises as to whether I should make a declaration in terms of [138] above. I am aware that the parties have not had an opportunity to address this particular form of relief. Accordingly, I invite submissions. The submissions are to be no longer than 10 pages and should address the appropriateness of granting a declaration along the lines I have noted, and the precise form of the declaration, in keeping with the findings in this judgment.
[140] The applicant is to file any further submissions within five working days of the date of this judgment.
[141]The respondent is to file any submissions in reply five working days thereafter.
[142] Although I currently consider a declaration in the terms noted at [138] could be made, I have declined MoveMe’s application for relief in the terms sought. My current view is that costs are payable by the applicant to the respondent on a 2B basis,
and I would certify for second counsel. Should the parties not be able to agree on the question of costs memoranda may be filed.
Urgency
[143]Finally, I deal with the applicant’s request for urgency.
[144] The applicant sought urgency before the hearing, but no order was made by the Court to that effect before or at the hearing. Subsequently, MoveMe again claimed that the relief sought was urgent.57 A range of reasons were given, although the main reason related to the respondent tendering for and being awarded an orthotics contract with the Bay of Plenty DHB. I did not accept those submissions in minutes issued on 8 December 2021 and 4 February 2022.
[145] For the reasons noted in those minutes, I remain unsatisfied that this proceeding justifies the urgency the applicant claimed. The applicant has been aware of the respondent’s intention to expand into the provision of orthotic services since 2017. It complained to the Ombudsman in May 2018 and by July 2019 had received a provisional decision that this was a matter for the courts. Nevertheless, this proceeding was not commenced until September 2021. I agree with the respondent’s submission that any time pressures are of the applicant’s own making.
Conclusion
[146] I decline to make declarations as sought the applicant. I will consider nevertheless whether to make a declaration in the terms recorded at [138] above, or in amended terms, following the receipt of memoranda.
Isac J
Solicitors:
Russell McVeagh, Wellington for Applicant MinterEllisonRuddWatts, Wellington for Respondent
57 In memoranda of counsel dated 23 November 2021 and 2 February 2022.
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