Gordon v Attorney-General [2024] NZCA 327 (18 July 2024)

Last Updated: 22 July 2024

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA506/2023 [2024] NZCA 327

	BETWEEN	SARAH GORDON First Appellant GILES NEWTON-HOWES Second Appellant
	AND	ATTORNEY-GENERAL First Respondent DIRECTOR-GENERAL OF HEALTH Second Respondent

Court:	French and Ellis JJ
Counsel:	I H V Reuvecamp for Appellants K Laurenson and I M C A McGlone for Respondents
Judgment: (On the papers)	18 July 2024 at 11.00 am

JUDGMENT OF THE COURT

1. The application for a protective costs order is declined.
2. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

• [1] The appellants seek a protective costs order (PCO) in relation to their appeal from a decision of Cull J dated 25 August 2023.^[1] They say without such an order they will be unable to, and will not, pursue their appeal which, they say, is brought in the public interest. The effect of such an order would be to insulate them from an adverse costs award in the event their appeal is unsuccessful. It is common ground that such orders are made only in exceptional circumstances.^[2]

Background

• [2] In the High Court, the appellants sought to challenge the compliance of key provisions in the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHA) with certain rights confirmed by the New Zealand Bill of Rights Act 1990 (the NZBORA).^[3] As the High Court Judge noted:^[4]

[10] There are no facts pertaining to any patient or applicant at issue in these proceedings. The proceedings relate solely to the civil commitment provisions of the MHA and whether they can be given a human rights consistent interpretation. ...

• [3] Five causes of action were pleaded but, because of the more circumscribed ambit of the appeal, it suffices to focus for present purposes on the first and fifth.
• [4] The first cause of action sought declarations under the Declaratory Judgments Act 1908 that:
  1. A person cannot be mentally disordered if they have the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health;
  2. Under sections 10(1)(b)(ii) and 12(1)(b)(ii), it can never be desirable that the proposed patient be required to undergo further (compulsory) assessment and treatment if the proposed patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health;
  3. Under section 27(3), it can never be necessary for the Court to make a compulsory treatment order if the patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health; and
  4. A patient must be considered “fit to be released” under the MHA if the patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health.
• [5] The first cause of action also sought, in the alternative, a declaration that the entry and exit criteria under the civil commitment provisions of the MHA^[5] are inconsistent with various NZBORA rights, namely s 11 (the right to refuse medical treatment), s 19 (the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993), and s 22 (the right not to be arbitrarily arrested or detained).
• [6] Implicit in the first cause of action is the proposition that the decision of a full bench of this Court in Waitemata Health v Attorney-General (which was concerned with the proper interpretation of “fit to be released from compulsory status” in the MHA) was wrongly decided.^[6] An application to transfer the proceedings directly to this Court was, however, declined, in a decision dated 13 June 2022.^[7]
• [7] The fifth cause of action was concerned with community treatment orders made under the MHA and sought declarations that:

(a) the provision of compulsory treatment under a compulsory treatment order “in circumstances where a patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health” was inconsistent with the rights confirmed in ss 11 and 19 of the NZBORA; and

(b) the limits on the s 11 right arising from the provisions relating to, and the existence of, compulsory treatment orders, cannot demonstrably be justified in a free and democratic society for a number of reasons, including that they impair the right (to refuse medical treatment) more than is reasonably necessary and the benefits of such orders are outweighed by the significance of the limit on the right.

• [8] One last, but important, matter of context is that the respondents have always conceded that time has moved on in the 30 years since the MHA was enacted and accepted that aspects of the legislation are likely inconsistent with the NZBORA. The Ministry of Health | Manatū Hauora (the Ministry of Health) is currently reviewing the MHA and, at the time the claim was filed, the then Government was committed to its repeal and replacement. Shortly before the hearing in the High Court (January 2023) Cabinet sent its first set of drafting instructions for a Bill to the Parliamentary Counsel Office.
• [9] More recently, the Crown has advised that, following the 2023 election, the incoming Government has not announced any decision to halt the reform and officials at the Ministry of Health and Parliamentary Counsel Office continue to work on drafting a Bill.

The PCO in the High Court

• [10] Prior to the substantive hearing in the High Court, the appellants sought a PCO. Palmer J declined the application in the first instance but was persuaded to revisit the matter, and granted the order sought.^[8] As noted, the effect of this was that, in the event the appellants’ claims failed, they would not be liable to pay the respondents’ costs.
• [11] Palmer J’s reasons for making the PCO can be summarised as follows:^[9]

(a) Since his initial decision refusing the application, new information had become available to the effect that the appellants were not willing to bear the risk of a costs award themselves; it had become clear that the proceedings would not be pursued in the absence of a PCO.

(b) Te Kāhui Tika Tangata | the Human Rights Commission (the HRC) had, by its intervention, lent its weight to the importance of the domestic and international human rights issues at stake in the proceeding.

(c) It had become clearer that the appellants were seeking clarification of the law pending the outcome of the current law reform exercise, which might prove to be lengthy.

(d) It had become clearer that the appellants did not have a material private or personal interest in the outcome of the proceeding but were bringing them in the public interest and to vindicate the rights of those subject to the current mental health law (who were unlikely to be in positions to take proceedings themselves).

(e) Access to justice is a foundational right in our system of justice.

(f) While a costs regime that deters frivolous and vexatious cases increases access to justice overall, the ability of plaintiffs, represented by competent counsel, to bring proceedings that are in the public interest, about serious human rights issues, for no personal benefit, should not be determined by their ability to pay costs.

• [12] The respondents did not seek leave to appeal Palmer J’s decision and, in their submissions relating to the current application, do not suggest it was wrong.

The judgment under appeal

• [13] The appellants’ claims failed. In a comprehensive judgment delivered on 23 August 2023, Cull J declined all of them.^[10]
• [14] Early on in her decision, the Judge noted that the HRC had intervened in, and supported, the proceedings. She recorded the HRC had said that, since New Zealand’s ratification of the United Nations Convention on the Rights of Persons with Disabilities (the CRPD), it is generally accepted that the legal framework under the MHA has fallen behind international human rights standards and, for that reason, was already under review.^[11]
• [15] The Judge later explained the key thrust of the appellants’ position as follows:^[12]

[53] The underlying premise of the applicant’s proceeding is that “mental capacity” should be the determinative factor in the assessment and treatment of a person’s mental health, and in the consent provisions. The applicants propose that the same test for capacity that is used in the Protection of Personal and Property Rights Act 1988 (PPPR Act), and the Substance Addiction (Compulsory Assessment and Treatment) Act 2017 (Substance Addiction Act), should be adopted in the MHA.

• [16] She later went on to elaborate that the declarations sought:

[61] ... reflect the applicants’ challenge underpinning these proceedings, that a person cannot be mentally disordered if they have the decision-making skills or mental capacity to make decisions about assessment and treatment relating to their mental health, and if the patient has mental capacity they are “fit to be released.”

• [17] The Judge’s reasons for declining to make any general declarations can be summarised as follows:^[13]

(a) the meaning of “mental capacity” (which is not a term used or defined in the MHA) was unclear;

(b) the declarations sought involved generalised and hypothetical assertions; and

(c) the interpretation of the key definition of “mental disorder” proposed was not available to the Court.

• [18] In relation to the first reason, the Judge was plainly assisted by the HRC, who had explained that the United Nations Committee on the Rights of Persons with Disabilities distinguishes between mental capacity and legal capacity: the right of a disabled person is to exercise legal capacity irrespective of whether their mental capacity is diminished. The appellants’ position and the declarations sought failed to take account of this critical distinction and also failed to articulate what “mental capacity” should mean, instead asking the Court to “legislate” a definition, which would be to usurp the role of Parliament.^[14]
• [19] In relation to the second reason, the Judge said:^[15]

[87] It is well established that it is consistent with the courts’ function to make declarations as to the proper construction of legislation, “whether consequential relief is or could be claimed or not” and even in anticipation of an act or event. Whether or not a declaration should be made, is a matter for the Court’s discretion. Here, the Crown, rightly cautions the Court that declaratory judgments are not appropriate for resolving hypothetical questions, devoid of an actual controversy or specific fact setting. The first applicant, while not presently subject to compulsory treatment, submitted that she, at times, meets the MHA criteria for compulsory assessment and treatment. However, she notes that “these proceedings will have no direct impact on me personally at this time” and thus, it is apparent that the application is concerned with the rights of patients generally, or the potential impact on the rights of potential patients.

...

[89] The applicant’s key proposition is that “a person cannot be mentally disordered if they have the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health.” Such a declaration, would require the Court to be satisfied that a person with mental capacity cannot be mentally disordered. Here, the assertion, while supported by the second applicant in his affidavit, has not been supported by an evidence-based analysis or clinical review of whether a person with mental capacity can also be mentally disordered. Without a factual foundation before the Court, the applicants are requesting that the Court adopt the proposition as a clinical given, in the absence of an evidential basis for doing so.

...

[96] The legislative framework for inclusion of a capacity test clearly requires careful assessment and consideration within the complex mental health context. The declarations involve statutory interpretation questions which the Court cannot properly answer on facts which are not context dependent. It is also inappropriate as I discuss below, for a Court to make such an assertive hypothetical declaration when the issue is clearly part of the legislative reform currently under consideration.

• [20] And the third reason was simply that the High Court was — at least insofar as the first cause of action was concerned — bound by the decision of this Court in Waitemata Health, in which it was held that the statutory definition of “mental disorder” could not be read in the way contended for by the appellants.^[16]
• [21] In terms of the specific declarations of inconsistency sought, the Judge found:

(a) the right to refuse medical treatment (s 11 of the NZBORA) was engaged (and limited) by the compulsory treatment provisions;^[17]

(b) the right to be free from discrimination (s 19 of the NZBORA) and not to be arbitrarily detained (s 22 of the NZBORA) were not engaged;^[18] and

(c) the limit on the s 11 right (which was, itself, limited to a relatively few number of patients who are not in a position to give consent to treatment) could be demonstrably justified in a free and democratic society.^[19]

• [22] In this last respect the Judge also said:

[185] I make the observation that the Government has committed to making the MHA more rights consistent. That is commendable and is consistent with New Zealand’s obligations under the CRPD. However, it does not signal, as the applicants appear to suggest, that the challenged MHA provisions are not rights consistent. Clinical advancement and greater understanding of mental illness is organic and has advanced over the last 30 years. It is timely therefore that the MHA is updated and reformed, as the Government has accepted. It does not provide a ground, however, for a declaration of inconsistency.

• [23] Overall, the Judge considered it relevant that the issues raised were for Parliament, not the Courts, and that reform of the MHA was in train:

[235] Plainly, reform of the MHA to reflect contemporary clinical practice and legislative reform in discharging New Zealand’s obligations under the International Conventions is important to overhaul legislation that has been in place for 30 years, as the Government has recognised. The more concerning provisions, which have been the subject of international human rights criticisms have been speedily removed, such as the provision for indefinite compulsory treatment orders. It is now for Parliament to complete its legislative reform without the Court’s interference or influence in that Parliamentary process.

• [24] The Judge concluded:^[20]

[236] The MHA involves “complex ethical, legal and policy issues” with multiple levels of interests within the mental health system. The MHA affects a wide range of persons. For a Court to unilaterally make declarations importing new meaning into the legislative wording goes well beyond declaring the law.

[237] I acknowledge the applicants’ hope that this will assist in meeting all parties’ collective responsibility to ensure that the current MHA is applied in a way that respects and promotes a person’s rights and places human rights principles at the centre of service provision. However, there is a government commitment to reform the MHA to make it more compliant with New Zealand’s CRPD obligations. Steps have already been made to repeal offending provisions. The complexity of reforming the approach to mental disability in light of more rights-based and current clinical practice requires careful consultation and consideration as part of the reform process and legislative drafting.

• [25] The effect of the PCO made by Palmer J was that costs did not follow the event; no costs award against the appellants was made.

The substantive appeal

• [26] As noted earlier the appellants’ appeal challenges the High Court’s findings on the first and fifth causes of action only. The grounds of appeal as expressed in the notice of appeal are that the High Court “erred in fact and law”:

(a) In relation to the first cause of action — entry and exit criteria, by:

(i) finding that the limit imposed on the right to refuse to undergo medical treatment was justified;

(ii) finding that the right to freedom from discrimination and the right not to be arbitrarily detained were not engaged;

(iii) finding that a more human rights consistent interpretation of the relevant provisions of the MHA was not available; and

(iv) declining to grant the relief sought;

(b) In relation to the fifth cause of action — community treatment orders, by:

(i) finding that the limit imposed on the right to refuse to undergo medical treatment was justified;

(ii) finding that the right to freedom from discrimination was not engaged; and

(iii) declining to grant the relief sought.

• [27] The appellants ask this Court to grant declaratory relief (including declarations of inconsistency).
• [28] The HRC has been granted leave to intervene in the appeal.

Should a protective costs order be made on appeal?

Protective costs orders: principles

• [29] As before Palmer J, there is no real dispute before us as to the jurisdiction to make a PCO or as to the relevant principles. The availability of such orders has been referred to by Elias CJ (writing for herself and William Young J) in Environmental Defence Society Inc v New Zealand King Salmon Co Ltd.^[21] That decision related to the question of costs on two appeals in which New Zealand King Salmon Co Ltd had been the respondent. The Environmental Defence Society Inc (the EDS), a public interest litigant, had succeeded in one.^[22] In the other, Sustain Our Sounds Inc (SOS), another public interest litigant, had failed.^[23] Issues arose as to the equivalence of treatment as between public interest litigants and others in relation to costs.
• [30] It was in the course of discussing equivalence that the Chief Justice considered the role potentially played by protective and pre-hearing costs orders.^[24] Referring to the principles discussed by the Court of Appeal of England and Wales in R (on the application of Corner House Research) v Secretary of State for Trade and Industry, she said:^[25]

[18] The policy behind protective and pre-hearing costs orders is not dissimilar to that behind the reluctance to make an order of costs against a public interest litigant — a view that the risk of costs will otherwise impede access to justice and the representation of the public interest. Such orders permit public interest litigants security from the fear of an adverse costs order, provide them with the security of a cap, or advance the costs they need to carry on the litigation.

[19] The principles on which the courts will make protective costs orders were discussed by the Court of Appeal of England and Wales in R (on the application of Corner House Research) v Secretary of State for Trade and Industry. Relevant considerations include the fact that the claimant has no private interest in the outcome of the case and the likelihood that without such an order the claimant will have to discontinue the proceedings. To be suitable for a protective costs order, the case must raise issues of general public importance, the resolution of which is itself in the public interest. It must be fair and just to make the order having regard to the financial resources of all parties. It is a relevant circumstance likely to enhance the merits of the application if those acting for the claimant are doing so on a pro bono basis. ...

• [31] She continued:

[21] ... It is true that protective costs orders arise only in the extreme case that a public interest point which ought to be heard is likely not to be ventilated if a party without any personal stake is at risk of an undetermined exposure to costs. But they are prompted by the same underlying concern to ensure access to justice for public interest matters that arises when costs are sought against an unsuccessful public interest litigant. So it is of interest in the present circumstances to note that courts in other jurisdictions considering protective costs orders have thought it necessary to consider the converse case where a public interest litigant is successful and have thought fairness may require in some cases that a protective cost order be conditional on such a litigant not being awarded costs if successful.

• [32] In the King Salmon cases, costs were awarded in favour of the EDS in the appeal in which it had succeeded, and costs were ordered to lie where they fell in the appeal in which SOS had been unsuccessful.^[26] But Arnold J, writing for himself, McGrath, and Glazebrook JJ, was careful to stress that this outcome was not intended to set a precedent for all public interest appeals.^[27] He said:^[28]

[45] We should emphasise that our decision on the SOS appeal does not mean that whenever a group claiming to be acting in the public interest brings an appeal to this Court, it will be insulated from paying costs if unsuccessful. Rather, the outcome will be determined by the particular circumstances of this case. Here, it is the fact that SOS did have some success in the appeals that persuades us that costs should lie where they fall, although it is also relevant that the appeals concerned matters of public interest, that SOS was not pursuing a commercial benefit and that it acted reasonably in its conduct of the appeal.

• [33] To reiterate, then, a PCO will only be made in an exceptional case. Relevant considerations include, at first instance, whether:^[29]

(a) the claimant has a private interest in the outcome of the case;

(b) the claimant will have to discontinue the proceedings if an order is not made;

(c) the case raises issues of general public importance and resolution of them is in the public interest;

(d) it is fair and just to make the order, having regard to the financial resources of all parties; and

(e) those acting for the claimant doing so on a pro bono basis.

• [34] Where a PCO is sought on an appeal, however, the landscape may change somewhat. This was a point considered by the English and Welsh Court of Appeal in R (Compton) v Wiltshire Primary Care Trust.^[30] There, Waller LJ said:^[31]

47. As to the procedures to be used in the Court of Appeal, having upheld the guidance in the Corner House case ... it seems to me that any procedure in the Court of Appeal should follow that guidance as far as possible. Let me deal first with cases where PCOs have been granted and the proceedings have been fought out. The governing principles ... can be taken to have been established so far as the case at first instance is concerned. If the person benefiting from a PCO is the would-be appellant, they may however have to be re-examined at the appellate stage. It may have become clear that no issue of general public importance arises or it may be clear that there is no public interest in bringing the case to the Court of Appeal. If the beneficiary of a PCO has succeeded in the court at first instance, it is difficult to think that some protection will not be appropriate in the Court of Appeal.

Discussion

• [35] Our starting point is that (as noted earlier) the respondents have not sought to argue that Palmer J was wrong to make a PCO in the circumstances then before him, based on the Corner House principles.^[32] We therefore proceed on the basis that:

(a) the appellants do not have a private interest in the outcome of the case;

(b) the appellants will not pursue the appeal if an order is not made; and

(c) counsel for the appellants is acting pro bono and the appellants would not seek costs if successful on appeal.

• [36] In terms of whether resolution of the issues raised is in the public interest and whether a PCO would be fair and just to all parties, however, the position has changed.
• [37] While we do not, of course, go so far as to say the appeal has no merit, some of the key reasons given in the High Court for declining the applications seem unlikely to be easily addressed, particularly insofar as the issues the Judge identified around “mental capacity” are concerned. Moreover, it is difficult not to agree with the Judge that dealing with such issues in a factual vacuum is both undesirable and difficult.
• [38] And lastly, the Crown accepts — as it has for some time — that there is an issue about New Zealand’s compliance with the CRPD and that the compulsory treatment provisions in the MHA constitute a limit on s 11 of the NZBORA. Whether, and the extent to which, those limits should continue or can be justified is a question that will be central to the ongoing reform process. Although we do not accept the submission that questions of “comity” arise (given there is no Bill before Parliament), there is necessarily a question of the duplication of resources.
• [39] In light of all these those matters, we are not persuaded that there is sufficient public interest in the appeal to warrant us taking the exceptional step of making a PCO. Nor do we consider that fairness and justice require the Court to make an order that would see the Crown (and the general body of taxpayers) again bearing its costs in the event the appeal is unsuccessful.

Costs

• [40] The parties have not addressed the question of costs. In our view they should lie where they fall.

Result

• [41] The application for a protective costs order is declined.
• [42] There is no order as to costs.

Solicitors:
Vida Law, Wellington for Appellants
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondents

---

^[1] Gordon v Attorney-General [2023] NZHC 2332, [2023] 3 NZLR 625 [Substantive judgment].

^[2] Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 167, (2014) 25 PRNZ 637 at [21].

^[3] The first appellant, Ms Gordon, is a mental health services consumer with an illness of a nature which, she says, places her at threat of compulsory assessment and treatment under the Mental Health (Compulsory Assessment and Treatment) Act 1992 [the MHA]. The second appellant, Mr Newton-Howes, is a psychiatrist and a clinician in charge of patient treatment under the MHA.

^[4] Substantive judgment, above n 1.

^[5] Including the definition of mental disorder in the MHA; sections 10, 12, 16, 18, 27, 34 and 35, and the meaning of “fit to be released”, in circumstances where a patient has the decision-making skills/mental capacity to make decisions about assessment and treatment relating to their mental health.

^[6] Waitemata Health v Attorney-General [2001] NZFLR 1122 (CA).

^[7] Gordon v Attorney-General [2022] NZCA 245.

^[8] Gordon v Attorney-General [2022] NZHC 2143 [Refusal judgment]; and Gordon v
Attorney-General [2022] NZHC 2801 [PCO judgment].

^[9] PCO judgment, above n 8, at [14]–[19].

^[10] Substantive judgment, above n 1.

^[11] At [4], citing United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008).

^[12] Footnotes omitted.

^[13] At [76].

^[14] At [83]–[85].

^[15] Footnotes omitted.

^[16] At [97], citing Waitemata Health, above n 6, at [72].

^[17] At [169].

^[18] At [170].

^[19] At [174]–[186].

^[20] Footnote omitted.

^[21] Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 2, at [21]–[22] per Elias CJ and William Young J. The majority of the Supreme Court in that case did not engage directly with the question of protective costs.

^[22] Environmental Defence Society Inc v New Zealand King Salmon Co Ltd [2014] NZSC 38, [2014] 1 NZLR 593.

^[23] Sustain Our Sounds Inc v New Zealand King Salmon Co Ltd [2014] NZSC 40, [2014] 1 NZLR 673.

^[24] No such orders had, however, been made in the two appeals themselves.

^[25] Environmental Defence Society Inc v New Zealand King Salmon Co Ltd, above n 2, per Elias CJ and William Young J, referring to R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 (footnotes omitted).

^[26] Environmental Defence Society Inc v New Zealand King Salmon, above n 2, at [30] and [49].

^[27] The majority did not discuss PCOs.

^[28] Footnote omitted.

^[29] Environmental Defence Society Inc v New Zealand King Salmon, above n 2, at [19], citing Corner House, above n 25, at [74].

^[30] R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749, [2009] 1 WLR 1436.

^[31] Emphasis added.

^[32] Corner House, above n 25.