New Zealand Health Trust v Attorney-General

[2020] NZHC 500

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-000111

[2020] NZHC 500

BETWEEN

NEW ZEALAND HEALTH TRUST

First Applicant

PROMISIA INTEGRATIVE LTD
Second Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing by way of teleconference:	12 March 2020
Counsel:	L Hansen and N Keating for the Applicants K Wevers and E Dowse for the Respondent
Judgment:	12 March 2020

JUDGMENT OF DOOGUE J

[1]                 The applicants seek leave to appeal my decision dated 9 March 2020 declining them interim relief pending the determination of substantive judicial review proceedings and ask that I grant a stay of publication of a notice in the Gazette until such time as the appeal is dealt with.

[2]                 Leave to appeal the decision is required in accordance with s 56(3) of the Senior Courts Act 2016.

[3]                 A high threshold exists for obtaining leave. The following considerations are relevant:

(a)the applicant should raise an arguable error of law or fact;

NEW ZEALAND HEALTH TRUST v ATTORNEY-GENERAL [2020] NZHC 500 [12 March 2020]

(b)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential importance; and

(c)leave should only be granted where the circumstances warrant incurring further delay.

[4]The applicants seek leave on three general grounds:

(a)That there is an error of law that needs to be corrected on appeal in [81] and additionally that this affected the Courts determination of the balance of convenience.

(b)That the Court misdirected itself as to the ultimate question for determination conceptualising it as “whether or not Arthrem is meant for administering to human beings for a ‘therapeutic’ purpose”. They say the question to be determined was whether or not Arthrem is a food and therefore excluded from the definition of medicine.

(c)That there is an error in the exercise of balance of convenience because any safety risk to the public can be mitigated against by the current warning on the labelling on Arthrem bottles.

[5]The respondent opposes the granting of leave arguing:

(a)That [81] does not need to be corrected on appeal as it is so patently wrong that it will not cause confusion and is therefore of no such public and precedential importance as to warrant leave being granted on this error alone.

(b)That in respect of the applicants’ second and third grounds there were no obvious errors in the decision because the test being applied was the balance of convenience and the decision plainly left the statutory interpretation and definitions for the Court to determine in the substantive judicial review.

(c)Labelling of the product in the meantime is insufficient to protect the public and that this is obvious from the decision to classify Arthrem as a prescription medicine.

[6]                 The Court on an application for leave should stand back and assess in a pragmatic and realistic way whether the interests of justice are served by granting leave.

[7]                 Standing back, I accept that I was in error in [81] of the decision because it is now submitted and is agreed that the position on damages in judicial review is settled by higher authority (see for example Combined Beneficiaries Union Inc. v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56). The law is settled by the Court of Appeal and that will not be affected by a lower Court’s statement in error.

[8]                 The statement as to the potential availability of damages if the applicants were successful in judicial review followed my detailed assessment of the public safety risks and the conclusion that the risk to the health and safety of the public outweighed the interests of the second applicant in any event. It also followed my assessment at [24] that there is “some uncertainty about the precise position Promisia seeks to preserve”.

[9]                 My view remains the same and, in fact, is compounded. I am informed if I grant leave to appeal and orders staying the publication in the Gazette, such interim orders would likely delay the respondent’s ability to publish the Gazette notice by several months.

[10]              Delaying the publication by notice in the Gazette by several months would potentially result in those users taking the substance developing more serious adverse reactions to it with all the potential deleterious effects outlined in [67]-[70] of my decision of 9 March 2020.

[11]              I do not consider that the application meets the high threshold for leave. There is no general or public importance in the alleged errors identified by the applicants, particularly because almost all of the alleged errors are matters that can and no doubt will be raised in the substantive judicial review and will be determined at that stage.

[12]I decline the application for leave to appeal.

[13]              In the event an appeal against this decision is lodged with the Court of Appeal before 10.00 am tomorrow then I grant the interim relief sought by the applicants.

[14]              I would trust the Court of Appeal would afford the matter urgency if the appeal is granted and any negative effects as outlined in [10] hereof could be mitigated against.

Result

[15]Application for leave to appeal is declined.

[16]              In the event of an appeal being lodged in the Court of Appeal before 10:00am tomorrow the publication of the notice in the Gazette shall be stayed until it is reviewed by that Court.

Doogue J

Solicitors:

Crown Law, Wellington Bartlett Law, Wellington