MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2022] NZHC 1629

MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2022] NZHC 1629 [11 July2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-514[2022] NZHC 1629UNDER the Judicial Review Procedure Act 2016 andPart 30 of the High Court Rules 2016IN THE MATTER OF an application for judicial reviewBETWEEN MOVEME HEALTH LIMITEDApplicantAND NEW ZEALAND ARTIFICIAL LIMBSERVICERespondentHearing: On the PapersCounsel: A H Waalkens QC, and J W Upson for ApplicantB A Davies and M J Ferrier for RespondentJudgment: 11 July 2022COSTS JUDGMENT OF ISAC JIntroduction[1] In my principal judgment, I declined MoveMe Health Ltd's application fordeclarations circumscribing the scope of the New Zealand Artificial Limb Service'sstatutory functions.1 However, I called for submissions on whether a declaration oughtto be made in different terms and, if so, what form those terms should take. In my finaljudgment, I concluded for a range of reasons that it would be inappropriate to make adeclaration.21 MoveMe Health Ltd v New Zealand Artificial Limb Service [2022] NZHC 577 [principaljudgment].2 MoveMe Health Ltd v New Zealand Artificial Limb Service (No 2) [2022] NZHC 839 [finaljudgment].[2] I initially indicated that I was inclined to award the Service costs on a 2B basis,certifying for second counsel, but invited memoranda if agreement could not bereached.3 The parties have been unable to agree on the question of costs and have filedsubmissions.Submissions[3] The Service argues that it was the successful party and that costs on a 2B basistotalling $27,506.49 should follow the event. It says it was successful because theCourt wholly rejected the interpretations and arguments advanced by the applicant anddeclined to grant the relief sought. The Court accepted the Service's alternativedeclaration fairly reflected the expert evidence it had accepted but agreed that adeclaration, especially one radically at odds with that originally sought by theapplicant, would be inappropriate.[4] MoveMe says that costs should lie where they fall. It submits it has enjoyed ameasure of success because the Court rejected the respondent's unconstrainedinterpretation of the Service's statutory functions. By implication, this was also afinding that the Service, in implementing its erroneous interpretation of the law, hasexceeded the scope of its functions. Therefore, MoveMe has been vindicated in itsmain purpose when it brought the application for judicial review—ensuring that theService acts within the bounds of its legal functions.Discussion[5] All matters relating to costs are discretionary,4 although that discretion must beexercised on a principled basis. So far as possible the determination of costs should bepredictable and expeditious.5 The usual position is that costs follow the event.6[6] All things considered, I have no doubt that the Service was successful and isentitled to costs.3 Principal judgment at [142].4 High Court Rules 2016, r 14.1.5 Rule 14.2(1)(g).6 Rule 14.2(1)(a).[7] The applicant sought declarations narrowly defining the scope of products andservices the respondent may provide and the patient groups it may serve. The Courtdid not accept MoveMe's interpretation on those key issues, and refused to make thedeclarations sought, either in the terms originally formulated or as proposed followingthe principal judgment.[8] Further, there was no finding that the Service has acted unlawfully. Theapplicant's costs submissions acknowledge "the Court has not expressed in so manywords" that the Service's interpretation of the Act was wrong in law but says that is"the logical consequence of the Court's construction of the Act".[9] The need to imply a finding of unlawfulness highlights how the applicant'scase focussed on the meaning of statutory provisions in the abstract, rather thanseeking to consider those provisions against specific products or services provided bythe respondent.[10] Finally, while I considered the respondent's statutory functions do not permitit to provide any form of orthotic device or service,7 the parties have clearly notenjoyed equal success. The applicant sought a narrow interpretation of "similardevice" that would exclude most orthotic devices. I did not accept that interpretation.On the contrary, my conclusion was largely consistent with the respondent's morenuanced and contextual approach: "similar device" includes an orthotic device thatsupports a limb and promotes mobility (whether the limb is missing, partly missing orimpaired).8 The fact that this conclusion was slightly narrower than the respondentmay have hoped for does not change the fact that MoveMe was essentiallyunsuccessful in its challenge.[11] For the foregoing reasons, I am satisfied that the Service is entitled to costs.MoveMe has confirmed that it takes no issue with the Service's calculation of costs(should the Court decide an award of costs is appropriate). Accordingly, I award costsas sought in the schedule to the respondent's costs memorandum.7 Principal judgment at [125]–[126].8 At [138].[12] Additionally, the respondent seeks costs for preparing its costs submissions of$956 on the basis that the applicant, by resisting costs without good reason, has put itto further unnecessary cost. While it may be appropriate to make such an award insome cases, I do not consider it necessary here.Result[13] The applicant is to pay to the respondent costs on a 2B basis (includingdisbursements) in the sum of $27,506.49.Isac JSolicitors:Russell McVeagh, Wellington for ApplicantMinterEllisonRuddWatts, Wellington for Respondent