GORDON v ATTORNEY-GENERAL [2022] NZHC 2143

GORDON v ATTORNEY-GENERAL [2022] NZHC 2143

The Court refused to grant an advance protective costs order because the applicants did not establish the extreme circumstances required: although the litigation raises public interest issues and counsel act pro bono, the ongoing public policy reform process reduced the utility of pre-hearing protection and it was...

Source-derived case information.

Citation
[2022] NZHC 2143
Parties
First Applicant: Sarah Gordon; Second Applicant: Giles Newton-Howes; First Respondent: Attorney-General; Second Respondent: Director-General of Health
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 August 2022
Procedural Posture
Declaratory Proceedings Under the Mental Health (compulsory Assessment and Treatment) Act 1992 With a Bill of Rights Act Inconsistency Claim / Interlocutory — Protective Costs Application (trial Scheduled 7 November 2022)
Outcome
Application for a protective costs order declined
Legal Topics
Protective Costs Orders, Statutory Interpretation, Declarations of Inconsistency, Compulsory Treatment, Consent to Medical Treatment for Children, Advance Directives, Compulsory Community Treatment Orders
Mental Health Law Administrative Law Human Rights Law Civil Procedure — Costs Protective Costs Orders Statutory Interpretation Declarations of Inconsistency Compulsory Treatment +3 more

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Parties

Sarah Gordon

First Applicant

Giles Newton-Howes

Second Applicant

Attorney-General

First Respondent

Director-General of Health

Second Respondent

Procedural Posture

Declaratory Proceedings Under the Mental Health (compulsory Assessment and Treatment) Act 1992 With a Bill of Rights Act Inconsistency Claim / Interlocutory — Protective Costs Application (trial Scheduled 7 November 2022)

Legal Issues

  1. 1 Whether the Court should grant a protective costs order
  2. 2 Applicability of Corner House factors and High Court Rules to public interest litigation
  3. 3 Whether applicants have a private interest in the outcome

Ratio Decidendi

The Court refused to grant an advance protective costs order because the applicants did not establish the extreme circumstances required: although the litigation raises public interest issues and counsel act pro bono, the ongoing public policy reform process reduced the utility of pre-hearing protection and it was not clear the applicants could not proceed without the order; therefore costs should be decided at or after the substantive hearing, with sensitivity to access to justice concerns.

Court Disposition

Application for a protective costs order declined

Orders

  • Protective costs order declined
  • Costs will be considered after the substantive hearing; no advance protective costs order granted