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New Zealand Health Professionals Alliance Incorporated v Attorney-General of New Zealand [2021] NZHC 3322 (7 December 2021)

Last Updated: 12 January 2022

JUDGMENT OF ELLIS J (COSTS)

• [1] Earlier this year I declined the plaintiff’s application for a declaration that aspects of the Abortion Legislation Act 2020 were inconsistent with a number of the rights confirmed by the New Zealand Bill of Rights Act 1990, including freedom of conscience and the freedom to manifest religion or belief.¹ I found that the provisions in question did not limit those rights and (in the alternative) even if they did, were demonstrably justified in a free and democratic society.

¹ New Zealand Health Professionals Alliance Inc v Attorney-General [2021] NZHC 2510.

NZ HEALTH PROFESSIONALS ALLIANCE INC v ATTORNEY-GENERAL [2021] NZHC 3322

[6 December 2021]

• [2] In relation to costs, I said:

• [194] I did not hear from the parties on costs. My inclination is that they should follow the event in the ordinary way, calculated on a 2B basis. I would be inclined to certify for second counsel.

• [195] But if there is some relevant matter that counsel need to draw to my attention, or if agreement on that front cannot be reached, memoranda of no more than three pages in length are to be filed within 15 working days of the release of this judgment.

• [3] The parties are agreed that a 2B costs classification is appropriate and that—if that classification is applied here—the quantum would be $37,032.87.

• [4] But the plaintiff says that no costs should be awarded against it because there were material and significant matters of public interest at stake in the proceeding.² Reliance is placed on r 14.7(e), which provides that, despite the usual rule, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if—

the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding ...

Costs and NZBORA claims

• [5] The starting point is that, ordinarily, costs should follow the event.³ If successful, the Crown is entitled to costs just as other litigants are.⁴ But it is also accepted that a different approach may apply in NZBORA litigation. In Attorney-

General v Udompun Glazebrook J for the majority explained:⁵

[186] ... In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bringing BORA claims. This would clearly have the result of weakening BORA protections.

• [6] Hammond J agreed, saying:

² High Court Rules, r 14.7(e).

³ Rule 14.2(1)(a).

⁴ See, for example, Reefdale Investments Ltd v Commissioner of Inland Revenue (2004) 17 PRNZ 229 (HC).

⁵ Attorney-General v Udompun [2005] NZCA 128; [2005] 3 NZLR 204 (CA).

• [223] In principle, BORA should not be watered down by leaving persons with no incentive or an inability to bring proceedings. This is because BORA places an affirmative obligation on the “judicial branches of the government of New Zealand” (s 3(a)) to “affirm, protect and promote” (preamble to BORA) the provisions of that enactment. An obligation of that strength is not discharged by the application of “usual” costs rules.

• [224] There is some indication in the case law that although, generally speaking, to date Courts have tended to assert that merely because litigation is of a “public interest” or “test case” variety that is not a licence to depart from the “usual” regime for costs. Where there is a government (or government agency) involved in a case involving fundamental human rights, that may be a circumstance to alter the usual exercise of a costs discretion (see Ahnee v DPP [1999] UKPC 11; [1999] 2 WLR 1305 at 1315 (PC), per Lord Steyn, and Nuredine v Minister for Immigration & Multicultural Affairs [1999] FCA 1130; (1999) 91 FCR 138 at p 145).

• [7] Considerations of the kind discussed here play out in a number of ways. In some cases, they manifest in awards of increased or (more unusually) indemnity costs for a plaintiff who succeeds in a claim under NZBORA. In cases where a plaintiff in a claim under NZBORA has failed, they may result in costs lying where they fall.

• [8] A number of factors have been identified as potentially relevant to the exercise of the Court’s discretion in such cases. These may include:⁶

(a) whether the issues raised were of general public importance and/or whether the public interest required that those issue be resolved;

(b) whether the matter of public interest said to be at issue goes beyond the private interests of the plaintiff;

(c) whether the plaintiff had a financial interest in the outcome of the proceeding;

(d) whether the proceeding had genuine merit; and

(e) whether the plaintiff has acted reasonably in the conduct of the litigation.

⁶ See for example Wright v Attorney-General [2019] NZHC 59 at [10] and the discussion in Shane Campbell “Reviewing Costs in Public Interest Litigation” [2015] NZLJ 246.

Discussion

• [9] It cannot be (and, I think, is not) disputed that:

(a) the plaintiff’s claim was centrally—and, indeed, solely—concerned with the rights and freedoms confirmed by the NZBORA; and

(b) the proceedings were conducted reasonably by the plaintiff.

• [10] I also acknowledge, as I did in my substantive judgment, that:

(a) the members of the plaintiff sincerely believe that the provisions of the ALA limit, or are inconsistent with, their s 15 freedom to manifest their belief that abortion is morally wrong; and

(b) that aspect of the claim, at least, was a tenable one, as evidenced (for example) by Crown Law’s letter of advice to the Attorney-General about the Abortion Legislation Bill, dated 1 August 2019.⁷

• [11] And I accept that the issues raised by the claim about the scope and application of both s 15 and s 13 of the NZBORA were novel (in a New Zealand context) and important.

• [12] But whether or not any limit on those rights could be demonstrably justified under s 5 of the NZBORA was a different matter. In light of the strong competing rights and interests (discussed at length in my substantive judgment), it is difficult to see that that aspect of the plaintiff’s claim was ever likely to succeed.⁸

• [13] Nor could it be said that there was an ambiguity in the provisions of the ALA that needed judicial clarification. What they required was plain on their face. Moreover, they had been the subject of extensive submissions during the

⁷ Indeed, the letter also advised that the proposed provisions were inconsistent with a conscientious objector’s s 13 freedom of conscience, although the Crown’s position on that had changed by the time of the hearing before me.

⁸ This was never a case like Attorney-General v Taylor [2018] NZSC 104, where it had always been accepted by the Attorney-General that the legislation in question limited rights in a way that could not be justified under s 5.

Select Committee process and had been preceded by a comprehensive report from the Law Commission.

• [14] A slightly more complex question is whether the plaintiff’s claim was concerned with the private interests of the plaintiff’s members or the public interest more widely. From the perspective of the members of the plaintiff, their cause is a matter of wider public interest; they are motivated by their beliefs that “unborn children” require their protection and that abortion effectively equates to murder. But equally, there is a considerable section of New Zealand society that does not share that belief—or at least consider that there are more compelling and countervailing matters at play.

• [15] Ultimately, however, the way in which the claim was (and had to be) advanced was on the basis that the new law affected the individual practices of the plaintiff’s members—their individual rights of conscientious objection. I decline to view it in wider terms than that. The real matters of public interest raised by the new law (whether abortion should be regulated by criminal law or treated as a health issue, and where the balance should be struck between access to abortion services and conscientious objection) were matters that had already been considered by Parliament in the course of the legislative process; they were not directly engaged by the plaintiff’s claim.

• [16] The factors canvassed above pull in competing directions. In the end, I consider that a modest reduction in the costs otherwise payable strikes the right balance here. I therefore order that the plaintiff is to pay to the defendant costs in the sum of $25,000.00, plus disbursements.

Rebecca Ellis J

Solicitors:

Brace Legal for Plaintiff

Crown Law, Wellington for Defendant