Turner v Professional Conduct Committee of the Nursing Council of New Zealand

[2025] NZHC 1420

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2024-435-8

[2025] NZHC 1420

IN THE MATTER

of an appeal pursuant to s 106(2) of the Health Practitioners Competence Assurance Act 2003

BETWEEN

AMANDA JEAN TURNER

Appellant

AND

PROFESSIONAL CONDUCT

COMMITTEE of the NURSING COUNCIL OF NEW ZEALAND

Respondent

Hearing:

On the papers

Counsel:

I C Bassett for Appellant

M F McClelland KC and C Taylor for Respondent

Judgment:

3 June 2025

COSTS JUDGMENT OF BOLDT J

[1]    Ms Turner is a registered nurse. In March 2024 the New Zealand Health Practitioners Disciplinary Tribunal (the Tribunal) found that a series of Facebook posts Ms  Turner  made  in  2020  and  2021  constituted  professional  misconduct.  On  12 February 2025, I dismissed Ms Turner’s appeal against the Tribunal’s decision.1

[2]    The Tribunal concluded Ms Turner’s posts, which concerned Muslims, refugees, ethnic minorities, gender-diverse people and the Government’s response to the COVID-19 pandemic, were likely to bring discredit to the nursing profession. In this Court, Ms Turner contended the posts should properly have been regarded as

1      Turner v Nursing Council of New Zealand [2025] NZHC 134.

TURNER v NURSING COUNCIL OF NEW ZEALAND (COSTS) [2025] NZHC 1420 [3 June 2025]

private communications, that her former employer acted unlawfully when it obtained copies of her posts, that the Tribunal’s findings breached her right to freedom of expression and that there was insufficient evidence before the Tribunal about how many people saw the offending posts.

[3]    I dismissed each of the grounds on which Ms Turner relied and concluded the appeal lacked merit.2 I indicated my preliminary view that costs should follow the event, but provided counsel with the opportunity to file memoranda if they were unable to agree on an appropriate award.3

[4]    The parties have not been able to agree. The respondent, the Professional Conduct Committee of the Nursing Council (PCC), seeks scale costs on a 2B basis in the sum of $14,579.

[5]    On Ms Turner’s behalf, Mr Bassett agrees the sum nominated by the PCC accurately calculates scale costs for the appeal but submitted I should defer any award. Ms Turner has applied for leave to bring a further appeal to the Court of Appeal.    Mr Bassett argued it would be in the interests of justice and the most efficient use of resources if my costs decision were deferred until the Court of Appeal has had the opportunity to consider Ms Turner’s application.

[6]    Mr McClelland KC, on behalf of the PCC, submitted costs should follow the event in the usual way, and that there is no basis for deferral.

[7]    As a starting point, the law presumes costs will be fixed and awarded as they arise. There is a presumption against deferral even where an appeal has been lodged. In The Law of Costs in New Zealand, the learned authors observe:4

There is no presumption that determination of costs should be deferred pending an appeal, nor does an extant appeal justify a failure or refusal to pay costs. Generally it will be appropriate for costs to be determined despite an appeal being brought because the successful party is entitled to the fruits of any costs award, and an appeal does not operate as a stay. The ability of the Court of Appeal to set aside a costs award if a substantive appeal is successful

2 At [75].

3      At [75]–[76].

4      David Bullock and Tim Mullins The Law of Costs in New Zealand, (Lexis Nexis, Wellington, 2022) at [8.1]. Footnotes omitted.

tells against deferring determination of costs, as does the ability of a party to seek a stay of a costs award once it has been made. Deferral of costs is likely only justified where the parties have agreed, or in unusual circumstances such as where the appeal point is very narrow and is to be heard very quickly. Where the parties have already gone to the effort of filing submissions on costs it is unlikely that the determination of costs will be deferred if an appeal is subsequently brought.

[8]    I can see no reason to depart from the normal rule in this case. The sum payable is not in question. If leave is given and the appeal is successful the award will be reversed. There are no grounds to defer either the award or (subject to any application for a stay) the payment of costs pending the outcome of Ms Turner’s leave application.

[9]I award costs to the PCC in the sum of $14,579.

Boldt J