NZDSOS Inc v Medical Council of New Zealand
[2025] NZHC 2179
•5 August 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-415
[2025] NZHC 2179
UNDER the Judicial Review Procedure Act 2016 and Declaratory Judgments Act 1908 AND UNDER
Part 30 of the High Court Rules
IN THE MATTER
of an application for judicial review and application for declaration
BETWEEN
NZDSOS INC
Applicant
AND
MEDICAL COUNCIL OF NEW ZEALAND
First Respondent
DENTAL COUNCIL
Second Respondent
Hearing: On the papers Counsel:
L M Hansen for Applicant
H J P Wilson and A James for First Respondent J P Coates and G F Weir for Second Respondent
Judgment:
5 August 2025
JUDGMENT OF CHURCHMAN J
(Costs)
Introduction
[1] On 2 August 2023, NZDSOS Inc (the applicant) applied to judicially review a decision made by Te Kaunihera Rata o Aotearoa | the Medical Council of New Zealand (Medical Council), jointly with Te Kaunihera Tiaki Niho | the Dental Council (Dental Council). The decision was to issue a guidance statement dated 28 April 2021
NZDSOS INC v MEDICAL COUNCIL OF NEW ZEALAND [2025] NZHC 2179 [5 August 2025]
concerning the COVID-19 vaccination of health practitioners and the provision of advice to patients about COVID-19 vaccination (Guidance Statement).
[2] In a judgment dated 25 November 2024, I declined the application for judicial review, and invited the parties to agree to costs.1
[3] On 9 December 2024, counsel for the Medical Council of New Zealand (the first respondent) notified the Court that the parties were unable to reach agreement and filed a memorandum seeking costs. Counsel for the Dental Council (the second respondent) filed a memorandum on costs dated 10 December 2024. Counsel for the applicant then filed a reply on 20 December 2024.
[4] Due to an oversight in the court registry, these memoranda were not brought to my attention until 28 July 2025.
Submissions
First respondent’s submissions
[5] The first respondent seeks an order for $62,308.40 in costs and disbursements made up of $50,070.50 costs on a 2B basis and additional disbursements for the expert’s fees, amounting to $12,237.90.
[6] The first respondent seeks to recover costs for the preparation of the costs memorandum dated 9 December 2024. In support of this part of the application, the first respondent refers to various factors relating to the applicant’s conduct which are said to have increased the cost and complexity of the proceedings, namely:
(a)the applicant’s alleged refusal to engage in substantive discussions regarding costs;
(b)issues of confidentiality resulting in three memoranda being filed seeking confidentiality orders;
1 NZDSOS Inc v Medical Council of New Zealand & Medical Council [2024] NZHC 3538.
(c)the applicant’s insistence on the admissibility and relevance of Richard Aston’s evidence. The first respondent seeks costs for the memorandum dated 29 April 2024 and for preparation of written submissions under item 24 in the schedule; and
(d)the nature of the applicant’s claim and evidence required. The applicant’s seventh ground of review sought to bring a completely different claim regarding professional disciplinary proceedings and ivermectin. The first respondent was required to obtain expert evidence from Dr Matthew Doogue. In addition, the applicant filed six affidavits, including expert evidence from Dr Monika Clark Grill. The first respondent then obtained expert evidence from Professor John McMillian and Dr Helen Petousis-Harris (jointly with the second respondent).
[7] The first respondent rejects the applicant’s argument that there is significant public interest which justifies costs not being awarded or substantially reduced. The first respondent argues that the applicant cannot satisfy the test because the proceedings were bought to advance their own interests, their claim did not have sufficient merit and the applicant did not always act reasonably.
[8] The first respondent rejects the notion that only one set of costs would be appropriate. The first respondent submits that the Medical Council and the Dental Council made separate decisions to issue guidance statement and followed separate processes. Since those separate processes were challenged in the judicial review, the first respondent submits that the respondents required separate representation.
Second respondent’s submissions
[9] The second respondent seeks an order for costs amounting to $42,184.00, comprising $40,271.50 in 2B costs and $1,912.50 in disbursements.
[10] The second respondent does not accept that the applicant was advancing any public interest in pursuing litigation. It submits that members of the society and the
society itself were advancing their own interests, including those practitioners who gave evidence in support of the application.
[11] The second respondent submits that separate representation for each of the respondents was appropriate, referring to the same reasons as the first respondent. Each Council sent the guidance statement to its own registered practitioners and engaged with those of its own registered practitioners who responded to the guidance statement.
[12] While it was alleged the first respondent had taken disciplinary action and/or made referrals to professional conduct committees in reliance on the guidance statement, there were no equivalent allegations made against the second respondent. The second respondent notes that the confidentiality issues only affected the first respondent. Furthermore, the seventh ground of review was unrelated to the second respondent.
[13] The second respondent submits that while both respondents were represented by Dentons Kensington Swan at the hearing, this was as a result of the merger of two firms of solicitors and this fact should not impact on the quantum of costs awarded. The second respondent had originally instructed its existing lawyers, Mr Coates and Ms Weir of Claro, to represent the Dental Council. In April 2024, Claro joined Dentons, the firm already instructed by the first respondent. The second respondent continued to be represented by Mr Coates and Ms Weir.
Applicant’s (NZDSOS) submissions
[14] The applicant submits that costs should be reduced on the basis of public interest considerations and that only one set of costs is appropriate. The applicant submits the respondents should not be entitled to costs on preparing the costs memoranda as the respondent were not prepared to agree to any reduction in costs.
[15] The applicant submits that the Medical Council and Dental Council perform a public function to protect the health and safety of members. The applicant suggests the proceeding was bought in the public interest regarding the lawfulness of the Guidance Statement which affected practitioners who were regulated by the relevant
Councils. The applicant highlights that the Guidance Statement had the effect of censoring doctors and affecting their ability to prescribe approved medicines for unapproved uses.
[16] The applicant submits that it was unnecessary for the Dental Council to be separately represented and therefore, only one set of costs should be allowed. The applicant notes that the Medical Council and Dental Council had the same interest in relation to defending the lawfulness of the Guidance Statement. Their aligned interests were evidence by the fact that they shared the expert costs of Helen Petousis-Harris.
[17] The applicant submits that the respondents had five counsel appear in the matter when two would have sufficed.
[18] The applicant further submits that the merger between Claro Law and Dentons was known by late 2023.
[19] The applicant submits the starting point is the Medical Council’s costs, the other half share of Helen Petousis-Harris’ costs and, excluding the claim for costs on the costs memorandum, would equate to $63,264.90.
Whether there is a public interest in the proceedings
Relevant law
[20]Rule 14.7 of the High Court Rules 2016 (the Rules) provides:
14.7 Refusal of, or reduction in, costs
Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—
…
(e)the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding; …
[21] Taylor v District Court at North Shore (No 2) summarised the test for determining whether a proceeding is in the public interest:2
… the proceeding must concern a matter of genuine public interest, have merit and be of general importance beyond the interests of the particular unsuccessful litigant. To obtain the benefit of the exception … the unsuccessful litigant must also have acted reasonably in the conduct of the proceeding.
Analysis
[22] I do not find the applicant’s reference to paragraph 17 of Bay v Australian Health Practitioner Regulation Agency useful in determining the issue of how the Court should assess costs in the current proceedings.3 Bay v Australian Health Practitioner Regulation Agency was a review of a decision of the Medical Board of Australia to suspend the applicant’s medical practicing certificate after he criticised the government’s measures against COVID-19. In light of the successful review against the decision, the Court ordered the respondents to pay the applicant’s costs of the proceedings.4 While the Court declined to make a reduction of costs due to the conduct of the Board during the proceedings, there was no issue of whether there should be a reduction in costs arising from an element of public interest.5
[23] Bay v Australian Health Practitioner Regulation Agency does not provide assistance to the Court in determining whether a reduction in costs ought to be applied as a result of the public interest in the case. In this case, the review of the Guidance Statement did not involve a disciplinary decision nor has the applicant succeeded in its application.
[24] In addition, I do not accept the applicant’s submission that Greenhorn v Speaker of the House of Representatives is authority which requires the Court to refuse to order costs against litigants bringing claims that relate to NZBORA.6 Radich J in
2 Taylor v District Court at North Shore (No 2) HC Auckland CIV-2009-404-2350, 13 October 2010 at [9] affirmed in New Zealand Climate Science Education Trust v National Institute of Water and Atmosphere Research Ltd [2013] NZCA 555 at [11].
3 Bay v Australian Health Practitioner Regulation Agency [2024] QSC 315.
4 At [136].
5 See [133].
6 Greenhorn v Speaker of the House of Representatives [2023] NZHC 2865.
that case went on to say, “[t]hat will not always be the case. A case-by-case assessment will always be required.”7
[25] In New Zealand Health Professionals Alliance Inc v Attorney-General (NZHPAI v Attorney-General), the Court applied a reduction in costs from $37,032.87 in scale costs to $25,000.8 The facts involved an application for a declaration that the Abortion Legislation Act 2020 was inconsistent with New Zealand Bill of Rights Act 1990.9 The Court acknowledged that while the plaintiffs were motivated by their beliefs that unborn children require their protection and that abortion effectively equates to murder, there was a considerable section of New Zealand society that does not share that belief.10 The Court declined to view the claim in wider terms except for the basis that the new law affected the individual practices of the plaintiff's members, namely their individual rights of conscientious objection.11
[26] I note that the applicants in NZHPAI v Attorney-General and the current case were a group of doctors seeking judicial review of a decision which affected the administering of health treatment. However, the cases can be distinguished on the following basis. In NZHPAI v Attorney-General, the plaintiff’s claim was centrally concerned with the rights and freedoms confirmed by the New Zealand Bill of Rights Act 1990 (NZBORA).12 The Court noted in NZHPAI v Attorney-General that the proceedings were conducted reasonably, and the scope and application of s 15 and s 13 of NZBORA were novel and important.13
[27] In this case, the applicant was motivated by their members’ opposition to vaccinations. There is some public interest in any guidance issued to doctors and dentists regarding appropriate conduct during a pandemic. However, I do not consider that the proceeding is a matter of genuine public interest of general importance beyond the interests of the applicant.
7 Greenhorn v Speaker of the House of Representatives [2023] NZHC 2865 at [63].
8 New Zealand Health Professionals Alliance Inc v Attorney-General [2021] NZHC 3322.
9 New Zealand Health Professionals Alliance Inc v Attorney-General of New Zealand [2021] NZHC 2510.
10 New Zealand Health Professionals Alliance Inc v Attorney-General, above n 8, at [14].
11 At [15].
12 At [9].
13 At [9] and [11].
[28] The Guidance Statement only affects the individual practices and interests of the members of the applicant who are opposed to vaccination. The applicant also bought the proceedings in the private interests of its members who were subject to disciplinary proceedings. As I discussed in my judgment at [134], the applicant sought a declaration that appeared to frustrate the role of the Health Practitioners Disciplinary Tribunal in determining what amounts to professional misconduct. The applicants sought to significantly expand the discretion of practitioners in a manner contrary to existing ethical and competence standards issued by the Medical Council.
[29] I accept the respondent’s submissions that the applicant did not act reasonably in the proceeding on a number of occasions, including the disclosure of sensitive and confidential documents and the admissibility of Mr Aston’s affidavit which contained evidence that was largely irrelevant to the proceedings.
[30] I find the proceeding did not concern a matter of public interest and that the applicant acted unreasonably in the conduct of the proceeding. I decline to make a reduction in costs.
Whether the applicant ought to pay costs for both respondents
Law
[31] Rule 14.15 of the Rules provides that a Court must not allow more than one set of costs unless it appears to the Court that there is good reason to do so. For example, if several defendants defended a proceeding separately and it appears to the Court that some or all the parties could have joined in their defence.
[32] Rule 14.15 requires the Court to exercise some caution before awarding costs, without more, in favour of multiple parties, particularly when there is some overlap or community of interest in the litigation position of those parties.14
[33] The Court in Independent Māori Statutory Board v Auckland Council observed the following factors as relevant to the Court’s assessment under r 14.15, namely:15
14 Norfolk Trustee Co Ltd v Tattersfield Securities Ltd HC Auckland CIV-2004-4043668.
15 Independent Māori Statutory Board v Auckland Council [2017] NZHC 678 at [9].
The Court should look in a realistic way at whether the parties have common or overlapping interests, and if so, to what extent. It can consider whether the parties took legal advice as to the appropriateness of separate/joint representation, and if so, what it was, and whether it was followed. The Court can consider the extent to which parties did or could have relied upon the evidence or submissions of another.
[34] In addition, the extent to which one party did or could have relied upon the evidence or submissions of another is also a relevant factor under r 14.15.16
[35] On the other hand, there are factors pointing against the ability of defendants to reasonably join in their defence:17
(a)if the plaintiffs ran separate cases against the defendants, or sought separate relief;
(b)the defendants' reputations are at stake, (for example, there is an allegation of fraud); and
(c)a conflict of interest was likely in terms of the way the plaintiffs ran their case and/or the defendants' relationship could be such that they are justified in remaining at arm’s length from each other.
[36] The Court has previously awarded a 15 per cent reduction where there was a commonality of interest, albeit a small degree.18 In relation to judicial review proceedings, the authorities suggest a Court may order an unsuccessful applicant to pay only one set of costs.19 In Rongotai Investments Ltd v Land Valuation Tribunal, Cooke J noted:20
An issue can emerge for such cases if the judicial review claim is not successful, and all named respondents seek costs. That can be seen as potentially unjust, particularly if an applicant for review faces multiple costs claims, yet would only be entitled to a single award if successful. The right of
16 Jordan v O'Sullivan (No 2) HC Wellington CIV-2004-485-2611, 1 May 2009.
17 At [8].
18 Coromandel Watchdog of Hauraki (Inc) v Minister of Finance [2020] NZHC 3445 at [31]; and
Ours Not Mines Ltd v Hauraki District Council [2025] NZHC 931 at [53].
19 See for example Enterprise Miramar Peninsula Inc v Wellington City Council [2018] NZHC 1041 citing Independent Fisheries Ltd v The Minister for Canterbury Earthquake Recovery [2015] NZHC 1353 at [10] and Jonathan Auburn, Jonathan Moffett & Andrew SharlandJudicial Review (Oxford University Press, Oxford, 2013).
20 Rongotai Investments Ltd v Land Valuation Tribunal [2020] NZHC 730 at [6].
access to the court to pursue judicial review is a fundamental one, recognised by s 27(2) of the New Zealand Bill of Rights Act 1990. It is features of this kind that have resulted in the practice in England and Wales that usually only one award of costs will be awarded in an unsuccessful claim for judicial review. In New Zealand there is no such well established practice — it is a matter of applying the discretion in r 14.1. Additional respondents who support a decision-maker can be awarded costs, or receive a partial award of costs, depending on the circumstances.
Analysis
[37] The applicant initially commenced proceedings against the first respondent in August 2023. On 16 November 2023, the applicant filed and served an amended statement of claim naming the Dental Council as the second respondent.
[38] There is some overlap or community of interest in the litigation position of the respondents. Both respondents are categorised as authorities under the Health Practitioners Competence Assurance Act 2003 (HPCAA). The respondents’ submissions were complementary in many respects relating to the extent of the powers of the respondents, the Code of Health and Disability Consumer’s Rights, s 14 of the New Zealand Bill of Rights Act 1990 and the issuing of the Guidance Statement.
[39] However, there is an argument that the distinct membership of the two Councils and their separate processes required separate representation. The first respondent is responsible for the profession relating to the practice of medicine under sch 2 and the second respondent is responsible for the professions of dentistry, dental hygiene, clinical dental technology, dental technology and dental therapy.21 The third, fourth and seventh ground of review required an assessment of the evidence specific to the processes of each respondent.
[40] I accept the second respondent’s submissions that the admissibility of Mr Aston’s evidence only related to the first respondent and the seventh ground of review was unrelated to the second respondent.
21 Health Practitioners Competence Assurance Act 2003, s 114(2).
[41] I am satisfied the parties required separate representation as to the proceedings and that the merger between Claro and Dentons Kensington Swan did not significantly alter that position.
[42] I note that the proceedings involved a judicial review claim and, if successful, the applicant would only be entitled to a single award. The different roles and oversight of the respondents over respective members may have made it inappropriate to run a joint defence and justified the respondents remaining at arm’s length. Therefore, separate costs are warranted. However, I consider a 15 per cent reduction ought to be applied to the sum of $50,070.50 given the commonalities in interests and overlap in submissions.
Whether the first respondent is entitled to costs on costs
[43] Counsel for the respondents seek costs of $956 for the preparation of costs memorandum, reflecting costs on a 2B scale under the Rules.
[44] The court has jurisdiction to award ‘costs on costs’ steps, in the discretion of the court.22 Generally, this will usually only be awarded in specific circumstances, such as where a party is shown to be wholly successful in its costs claim,23 or where a party fails to accept or engage with a reasonable offer to agree or settle costs issues without the determination of the court.24
[45] In the present case, I have determined the appropriate measure of costs above. It was open to the applicant to invite the respondent to file a memorandum regarding costs if the parties could not agree to a reduction in costs. In those circumstances, it is not appropriate to make a further order for costs on costs and costs ought to lie where they fall.
22 See Strata Title Administration Ltd v Body Corporate Administration Ltd [2014] NZCA 96 at [14];
Harrington v Wilding [2019] NZCA 605 at [45].
23 Paper Reclaim Ltd v Aotearoa International ltd [2007] NZCA 544, (2007) 18 PRNZ 743 at [62]; Energy Securities LP v Vector Ltd [2019] NZHC 1387 at [27]; Helilogging Ltd (in rec & liq) v Civil Aviation Authority of New Zealand [2021] NZHC 1676 at 34.
24 Booth v Poplar Road Farms Ltd [2019] NZHC 1889 at [25]; North Eastern Investments Ltd v Auckland Council [2018] NZHC 1805 at [20].
Outcome
[46]The applicant must pay costs in the sum of:
(a)$41,747.33 in reduced 2B scale costs to the first respondent plus
$12,237.90 for additional disbursements for expert’s fees to the first respondent;
(b)$35,043.80 in reduced 2B scale costs to the second respondent; and
(c)any further disbursements as determined by the Registrar.
Churchman J
Solicitors:
Maxwell Law, Wellington for ApplicantDentons Kensington Swan, Wellington for First and Second Respondents
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