Ryan v Health and Disability Commissioner

[2023] NZSC 73

NOTE: HIGH COURT ORDER MADE IN [2020] NZHC 373
PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE COMPLAINANT REMAINS IN FORCE.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

 SC 98/2021
 [2023] NZSC 73

BETWEEN	CHRISTOPHER RYAN Appellant
AND	HEALTH AND DISABILITY COMMISSIONER Respondent

Court:	Winkelmann CJ, William Young, Glazebrook, O’Regan and Ellen France JJ
Counsel:	A H Waalkens KC and K M Wills for Appellant V E Casey KC for Respondent
Judgment:	26 June 2023

JUDGMENT OF THE COURT

The appellant must pay the respondent costs of $25,000 plus      usual disbursements.

____________________________________________________________________

REASONS

(Given by O’Regan J)

1. In our judgment for this appeal, we reserved costs and asked for submissions from counsel.[1]  We have now received and considered those submissions.

   [1]Ryan v Health and Disability Commissioner [2023] NZSC 42 at [103]–[104].

2. The respondent, as the successful party, seeks standard costs for a one‑day appeal with two counsel appearing ($25,000) plus usual disbursements.  The appellant argues that there should be no order for costs.  The basis for that submission is that the issues arising in the appeal were finely balanced and complex and of considerable public interest, affecting the entire health profession.[2]  In the alternative, the appellant submits that the Court should award reduced costs.

   [2]Citing West Coast ENT Inc v Buller Coal Ltd [2013] NZSC 133 at [4].

3. The High Court awarded standard costs to the respondent.[3]  In contrast, the Court of Appeal decided that costs should lie where they fell.[4] 

   [3]Ryan v The Health and Disability Commissioner [2020] NZHC 373 (Grice J) at [74].

   [4]Ryan v The Health and Disability Commissioner [2021] NZCA 347 (French, Miller and Clifford JJ) at [99] and [102].

4. We accept the case was finely balanced and the decision will be of considerable interest to the health profession.  However, we are not persuaded that it would be appropriate to make no costs award.  As the respondent submitted, appeals by this Court are usually of wider public and general importance and often are complex and finely balanced.[5]  We see no reason to treat the present appeal differently from most other appeals that come before this Court.

   [5]Trans‑Tasman Resources Ltd v Taranaki‑Whanganui Conservation Board [2022] NZSC 63 at [5].

5. We therefore order that the appellant must pay the respondent costs of $25,000 plus usual disbursements.

Solicitors:
Wotton + Kearney, Wellington for Appellant
J I King, Office of the Health and Disability Commissioner, Wellington for Respondent