MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2023] NZCA 621

MOVEME HEALTH LIMITED v NEW ZEALAND ARTIFICIAL LIMB SERVICE [2023] NZCA 621 [5December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA228/2022[2023] NZCA 621BETWEEN MOVEME HEALTH LIMITEDAppellantAND NEW ZEALAND ARTIFICIAL LIMBSERVICERespondentHearing: 2 August 2023Court: French, Miller and Wylie JJCounsel: A H Waalkens KC and S R Courtney for AppellantM G Colson KC and B A Davies for RespondentJudgment: 5 December 2023 at 10 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONSFrench and Wylie JJMiller J[1][101]FRENCH AND WYLIE JJ(Given by Wylie J)Introduction[1] This appeal arises out of a dispute between two commercial competitors, bothseeking to provide orthoses and related services to those who require the same. It turnsin large part on a narrow point of statutory interpretation — do orthoses fall within thedefinition of the words "artificial limb" contained in s 4 of the Artificial Limb ServiceAct 2018 (the Act)?The dispute[2] The appellant, MoveMe Health Ltd (MoveMe), manufactures and providesorthoses1 and related services. The respondent, Peke Waihanga | New ZealandArtificial Limb Service (the Service), has its own empowering Act and it has thevarious functions set out in that Act.2 It has traditionally been involved in themanufacture and supply of artificial limbs and in the provision of rehabilitation andother services, primarily to amputees. In recent years it has started to supply orthosesand related services to a wider range of patients.[3] MoveMe claims that the Service, in supplying orthoses and related services, isacting unlawfully. It argues that:(a) the Service's statutory functions are, relevantly, limited to the supply ofartificial limbs and the provision of rehabilitation and other services forpersons in connection with artificial limbs;(b) the Act defines an artificial limb as a device that is an artificial arm,hand, leg, or foot, or "a similar device"; and(c) most orthoses do not fall within this definition. For example, orthosesinclude inserts for shoes or sandals intended to correct gait orprovide comfort.1 Broadly, orthoses are external orthopaedic devices, such as braces or splints, that prevent or assistmovement of the neuro-muscular or skeletal systems, for example, of the spine or limbs. Orthosesinclude insoles worn in shoes.2 Artificial Limb Service Act 2018.[4] In response, the Service argues that the definition of the words "artificial limb"in the Act extends to orthoses and that, as a result, its statutory functions permit it tosupply orthoses and provide orthotic services along with prosthetics andconnected services.[5] The dispute is commercially significant. Both the Service and MoveMe haveresponded to requests from district health boards (DHBs) to supply a range of devices,including orthoses and to supply services in relation to such devices. If MoveMe iscorrect, the Service cannot offer all of the devices which the DHBs require; nor canthe Service offer all of the services the DHBs require. The Service would be confinedto offering artificial limbs as defined in the Act and services associated with theprovision of artificial limbs.[6] In the High Court, Isac J found that some orthoses are similar devices toartificial limbs because they perform the same purpose or function as artificial limbs,namely restoring or promoting mobility in a missing or deficient limb.3 He held thatMoveMe could not claim that orthoses that have a similar function, purpose orcharacter to artificial limbs, are not artificial limbs as defined.4 He did not howeveraccept the Service's argument that its statutory functions permit it to supply any formof orthotic device or related service.5[7] MoveMe had sought declaratory relief but there was some uncertainty at trialabout the wording of the declarations it sought. The Judge was prepared to find that"a similar device", for the purposes of the Act, includes an orthotic device that supportsa limb and promotes mobility (whether the limb is missing, partly missing or impaired)but he declined to make a declaration to this effect until the parties had had theopportunity to address the appropriate relief.63 MoveMe Health Ltd v New Zealand Artificial Limbs Service [2022] NZHC 577 [substantivejudgment] at [123].4 At [125].5 At [126].6 At [138]–[139].[8] After receiving further submissions from the parties, the Judge issued a finaljudgment declining to grant any declaration, either in the terms discussed in hissubstantive judgment, or in alternative terms as suggested by each party.7[9] MoveMe has appealed both judgments and, before us, it sought declarations inrather different terms than were sought before the Judge. It sought declarationsas follows:(a) that the words "a similar device" for the purpose of the Act include anorthotic device that supports a limb and promotes the mobility of anamputee or someone at risk of amputation (whether the limb of thatperson is missing, partly missing or impaired); and(b) that "a person at risk of amputation" is a person assessed by a registeredhealth practitioner as having a medical condition that has a real risk ofresulting in the amputation of a limb.8[10] The Service sought to uphold the judgments and it was opposed to the amendeddeclarations sought by MoveMe.The partiesMoveMe[11] MoveMe has been providing orthotic services in New Zealand since 1991.It specialises in the manufacture of orthotic solutions and the provision of orthoticservices. It also provides podiatry services. It operates in most main centres and holdscontracts for the provision of orthotic services with various DHBs and with theAccident Compensation Corporation. It also provides orthotic services to privateclients. The contracts it has with DHBs and with the Accident CompensationCorporation comprise a very large part of its orthotics business.7 MoveMe Health Ltd v New Zealand Artificial Limb Service (No 2) [2022] NZHC 839 [final ordersjudgment] at [11].8 In closing, Mr Waalkens KC for MoveMe accepted that MoveMe did not require that this matterbe covered in any declaration and that it had been suggested merely as a matter of guidance.The Service[12] The Service provides a wide range of services to patients in connection withthe provision of artificial limbs and similar devices, including amputation preventionefforts, pre-amputation and post-amputation support, orthotic and prosthetic services,peer-support, rehabilitation planning, assessments, rehabilitation and therapyinterventions, the fabrication and fitting of devices, community support and pro-activefollow-up services. These various services are provided through six main servicecentres and 14 regional clinics.[13] The establishment of the Service and its legislative history was summarised bythe Judge in his substantive judgment.9 We discuss these matters in more detail below.At this stage we simply record that the Service's origins can be traced back to theDisabled Servicemen's Re-establishment League Inc, which was set up to assistdisabled soldiers returning to New Zealand after the First World War. The Leaguereceived legislative recognition in 1964 and its role was expanded to the provision ofrehabilitative services to civilians. Its functions have expanded over the years as well.The Act[14] The Act came into force on 26 November 2018. Its purpose is to continue,state the functions of, and otherwise provide for the Service.10[15] The Act sets out the Service's functions as follows:11(a) to manufacture, import, export, market, distribute, supply, fit, repair,and maintain artificial limbs:(b) to provide rehabilitative and other services to persons in connectionwith artificial limbs:(c) to carry out research and development in relation to artificial limbs:(d) to advise the Minister on matters relating to artificial limbs.9 Substantive judgment, above n 3, at [6]–[25].10 Artificial Limb Service Act, ss 3 and 7.11 Section 8.[16] The Act provides that the Service is a Crown entity for the purposes of s 7 ofthe Crown Entities Act 2004 and, except as otherwise provided by its governinglegislation, that the Crown Entities Act applies to the Service.12 In some respects theService differs from other Crown entities. All of its operating revenues are generatedfrom service contracts. It is not funded by Crown appropriation and it is exempt frompaying income tax.13[17] Every five years a review of the Service's operations must be carried out inorder to consider whether the Service should be retained or abolished and whether anyamendments to the Act are necessary or desirable. The findings of the review arerequired to be reported to the Minister responsible for the administration of the Act.14The proceedingThe extension of the Service's functions into orthotics[18] In 2014, the Service's board identified a need for a change in its then approach,given its limited revenue streams, Crown entity operational requirements, changes intechnology and workforce requirements, and the direction of the Government's healthstrategies. The Service employed a new chief executive officer, Sean Gray, and setabout what he describes as a "transformation journey". It broadened its focus andbegan providing orthotic services to its patients. It focused initially on thecontralateral limbs of amputees, both to enable better function (through limbalignment) and more broadly in an attempt to prevent further amputations. It thenexpanded its prevention services to the prevention of amputation for non-amputees.[19] In 2017 the Service responded to a request for proposals for the provision oforthotic services to the Waikato District Health Board. The Service's tender wassuccessful and it was awarded the Waikato District Health Board Orthotic ServiceContract (the Waikato Contract), together with Orthotic House, a provider oforthoses/orthotic services with centres in Hamilton and Hastings. Under theWaikato Contract the Service is responsible for providing services to diabetic and12 Section 9.13 Section 13.14 Section 14.vascular clients. It provides its services under the name Waikato Orthotic Services,having incorporated a wholly owned subsidiary, Orthotic Service Waikato Ltd, for thispurpose. Orthotic House is responsible for other patients. It provides orthotic servicesat its own clinics.[20] The Waikato Contract was in place at the time the Act came into force.[21] In 2021, the Service tendered for the Auckland Metro District Health BoardOrthotic Services Contract (the Auckland Metro Contract). It was successful and itwas appointed to a panel for the provision of orthotic services under the contract. It isproviding personal health orthotic services and products (custom made and off theshelf products) for Auckland Metro DHB clients/patients.MoveMe's response[22] MoveMe was advised by the Service in early 2017 that the Service wasintending to expand its services to provide orthoses and orthotic services to persons atrisk of amputation.[23] Both MoveMe and the Service had made a number of attempts to work togetherbetween 2015 and 2017. However, any collaboration was short-lived. When MoveMebecame aware that the Service was tendering for the Waikato Contract, it took legaladvice and lodged a complaint with the Ombudsman. The Ombudsman undertook aninvestigation and ultimately concluded that the dispute between the parties raised alegal issue, requiring resolution through the courts.[24] MoveMe said that it came as a further shock to its board and executive teamwhen it discovered, in July 2021, that the Service was tendering for theAuckland Metro Contract and when it found out that the Service was to be appointedas a panel provider. MoveMe had been the previous provider of these services underearlier contracts with the relevant DHBs.[25] There were three other major DHB orthotic services contracts coming up fortender in late 2021 and early 2022. MoveMe considered that it was urgent that it seekto clarify the scope of the Service's statutory powers and, accordingly, it commencedthe judicial review proceedings which have resulted in this appeal. It invited theService to agree not to seek to enter into any new orthotic services contracts, or torenew existing orthotic services contracts, until the proceedings were determined orany amendments to the Act had been put in place. The Service refused to agree eitherto cease actively seeking orthotic services contracts or to support an urgent hearing ofMoveMe's proceeding.MoveMe's statement of claim[26] MoveMe's statement of claim is dated 9 September 2021. It alleges that fromaround 2017 the Service acted unlawfully by purporting to expand the scope of itsactivities to include activities unrelated to artificial limbs and services that are not inconnection with amputees or artificial limbs. It refers to the Service's Statement ofIntent for 2017–2021 and to its Statement of Performance Expectations for 2017-2018,asserting that both refer to the provision of services, including orthotic services, tothose at risk of amputation. It also refers to the Service tendering for theWaikato Contract. It asserts that in November 2020 the Service indicated an intentionto expand its activities to include the provision of orthotic services for persons withdeteriorating health and disability conditions. It also refers to the Service's 2020briefing report to its then incoming Minister, to the Service's website and to theService responding to the Auckland Metro DHB's request for proposals for theappointment of providers to a panel for the supply of personal health orthotic servicesand/or products.[27] Three grounds of review were initially raised. First, it was alleged that theService was acting outside its statutory functions by offering and holding itself out asa supplier of orthotic products and services, and secondly, that the Service's Statementof Intent for 2021–2024 and its Statement of Performance Expectations for 2021–2022were unlawful. The third ground of review was abandoned at trial.[28] MoveMe initially sought declarations that:(a) the Service had acted outside its functions and unlawfully inundertaking its expanded activities;(b) the meaning of the words "similar device" in the definition of artificiallimb in the Act is limited to devices that have a similar function to anartificial arm, hand, leg, or foot;(c) the provision of services to "persons in connection with artificial limbs"requires that the services are provided to persons who require or havean artificial limb; and(d) the Service's Statement of Intent for 2021–2024 and its Statement ofPerformance Expectations for 2021–2022 were unlawful.[29] As noted above at [9], the declarations sought before us were in ratherdifferent terms.The High Court judgmentsThe substantive judgment[30] The Judge summarised the dispute between the parties and then set out theService's origins and legislative history.15 He referred to the Act and to theCrown Entities Act.16 He then summarised the background to the dispute anddiscussed the affidavits filed by various experts in relation to the nature of prosthesesand orthoses and the practices of prosthetics and orthotics.17 He recorded that he hadfound this evidence substantially helpful in determining the central issue.18 He notedthat, while the term artificial limb does not appear to be a term of art, the questionraised in the proceeding arises in a clinical setting, and that words and phrases used in15 Substantive judgment, above n 3, at [3]–[4] and [6]–[18].16 At [19]–[31].17 At [32]–[54].18 At [50]–[51].technical legislation should be assumed to have been used in their technical sense ifthey have acquired one.19[31] The Judge next focused on MoveMe's grounds of review before turning toconsider whether orthoses are similar devices to artificial limbs. He observed that themeaning of legislation must be ascertained from its text and in light of its purpose andcontext, and that legislation applies to circumstances as they arise.20 He referred tothe text of the Act and to the competing submissions for the parties. He recorded thatit was uncontentious that orthoses are devices and the real question was whether theyare similar devices to an artificial arm, hand, leg or foot.21 He observed that "similar"does not mean "the same" and recorded that counsel had agreed that the pairing of"similar" and "device" places the focus on the functionality rather than the form of thedevice.22 The Judge recorded that there is nothing to suggest that Parliament intendedthe meaning of "similar" to be restricted, or that a similar device is only a device toreplace a missing limb or part of a limb.23 He observed that the term is not expressedto be so qualified or limited and that, in ordinary usage, similar means "having aresemblance in appearance, character, or quantity, without being identical". The Judgeappended to this list of descriptors "function" and "purpose".24[32] The Judge expressed the view that MoveMe's interpretation — namely that thefunction of a prosthetic limb is only to replace a missing limb or part of limb —essentially equated a "similar device" to an artificial limb and in doing so, renderedthe category of "similar device" redundant.25 The Judge tested MoveMe'sinterpretation by asking what kinds of device could fall within the similar devicecategory. He noted that some devices, such as prosthetic blades used by athletes, andpylons and hooks, do not strictly fall within the category of an artificial arm, leg, handor foot, but by implication, fall within the catch-all of "similar device".26 The Judge19 At [51], citing P St J Langan Maxwell on the Interpretation of Statutes (12th ed, Sweet & Maxwell,London, 1969) at 28; Jenkins v Inland Revenue Commissioners [1944] 2 All ER 491 (CA) at 495;Ancient Trees of New Zealand Ltd v Attorney-General HC Wellington CP483/93, 29 April 1994 at11; and Holt & Co v Collyer (1881) 16 Ch D 718 at 720.20 Substantive judgment, above n 3, at [62].21 At [68].22 At [69].23 At [70].24 At [70].25 At [71].26 At [72].considered that such devices are intended to perform the function of a missing limband that they are an artificial limb.27[33] The Judge preferred the Service's view that the real question was whether therewas a similarity between orthotic and prosthetic devices in terms of their function andpurpose, bearing in mind that inherent in the expression "similar" is the presence ofdifference.28 He went on to refer to s 8 of the Act and in particular the words "inconnection with" in s 8(b).29 The Judge noted that these words were added in 1993and that the amendment suggests a conscious expansion of the provision ofrehabilitative and other services from people who already have an artificial limb tothose who may be at risk of requiring one. The Judge considered that there wasstrength in the Service's submission that this function appears to extend the range ofrehabilitative and other services to amputees in connection with prostheses, whichmight include orthoses, and orthotic services, for a contralateral limb.30[34] The Judge noted that there is no reference to amputees in the Service's statutoryfunctions. He considered that this did not support a narrow interpretation focused onamputees or devices which replace missing limbs. The Judge considered that overall,the text of the legislation, to the extent it provides guidance, indicates that the meaningof "similar device" is wider than MoveMe had submitted and that the expression musthave been intended to include devices that perform a similar function, or have a similarcharacter to artificial limbs. He considered that some orthoses clearly meet thisrequirement.31[35] The Judge next turned to the purpose of the Act. He discussed s 3, noting thatit indicates the importance of the continuity of the Service and thus emphasises therelevance of its historical activity when considering the scope of its statutoryfunctions.32 He discussed the Service's functions set out in s 8, noting that they arebroad. He observed that the Act's purpose is not limited to dealing with amputees andthat rather, its broad purpose is to support and enhance mobility and to assist the27 At [73].28 At [74].29 At [76].30 At [77]–[78].31 At [79]–[80].32 At [82].rehabilitation of people with mobility difficulties.33 The Judge considered that thepurpose of the Act, with its focus on rehabilitation, research and services in connectionwith mobility, does not support the restrictive interpretation advanced by MoveMe.34[36] The Judge also took into account the context of the legislation. He discussedfirst the historical context, noting that the history of the Service suggested that itspredecessors were involved in supplying a broader range of products than justprosthetic limbs. He considered that the activities of the Services' predecessors wereconcerned more generally with enhancing health, rehabilitation, and mobility, ratherthan having a narrow focus on prosthetic limbs and amputees.35 He also consideredthe 1993 amendments. He considered that there was then a clear and deliberatebroadening of the Service's functions from artificial limbs alone. He expressed theview that the change adding the words "similar devices" expanded the types ofproducts which the Service could provide and that the change from "persons withartificial limbs" to "persons in connection with artificial limbs" extended the patientgroup to persons at risk of amputation, but who are not yet amputees.36 The Judgealso considered that, given that the Service was already engaged in the supply of someorthotic devices and services at the time the Act was passed, it is illogical thatParliament should be taken to have narrowed the scope of the Service's functions,without expressly doing so or making that intention clear in the accompanyingparliamentary materials.37[37] The next contextual matter considered by the Judge was the clinical context.He noted that there were two key points in dispute between the expertwitnesses — first, the overlap (or distinction) between orthoses and prostheses and thepatient groups that use them, and secondly, the function and purpose of the two formsof device.38 He discussed the evidence in detail, recording that the witnesses calledby MoveMe had acknowledged that there was a degree to which the two forms ofdevice overlapped.39 The Judge considered that these concessions were consistent33 At [85].34 At [87].35 At [92].36 At [96] (emphasis original).37 At [101].38 At [103].39 At [106].with the Service's expert evidence, which, he commented, made "a compelling casethat it is not possible to draw a bright line between orthoses and prostheses" and thatinstead, "they exist on a continuum".40 Overall the Judge preferred the expert evidenceof the Service, which indicated that there is an overlap between orthoses andprostheses, in so far as they relate to missing or deficient limbs. The Judge consideredthat the evidence indicated that the interpretation of the words "similar device"advanced by MoveMe was out of step with the clinical context.41[38] Finally in terms of context, the Judge considered the function and purpose ofprosthetic and orthotic devices. He noted that a key prong of MoveMe's case was thata "similar device" means a device with a similar function. The Judge observed that,while that might be the case, he could nevertheless not accept MoveMe's view offunctionality. He considered that MoveMe's argument that the function of an artificialarm, hand, leg or foot is to replace a missing limb, focused more on the form andappearance of the device rather than its function, purpose or character. The Judgeconsidered that a wider and more coherent view is that the function of prosthetic limbsis to support and promote mobility, and that, on this approach, orthotics that serve thesame purpose or function qualify as similar devices.42[39] Finally in this regard, the Judge asked himself — are orthoses similar devicessimilar to prostheses? He answered this question by finding that some orthoses aresimilar devices to prostheses; they perform the same purpose or function in that theyrestore or promote mobility in a missing or deficient limb.43 He concluded thatMoveMe's submissions sought to draw the line in the wrong place, but that theService's submissions sought to draw the line in the wrong place as well. He did notaccept the Service's submission that its statutory functions permit it to supply any formof orthotic or service.44[40] The Judge went on to consider whether the Court should grant declarations assought. He summarised the declarations sought by MoveMe but he did not accept that40 At [109].41 At [118].42 At [122].43 At [123].44 At [125]–[126].the application for review should be granted, or that declarations in the terms soughtshould be issued.45 He accepted that there was a dispute between the parties as to thecorrect interpretation of the legislation, that the dispute arose from specific facts andthat MoveMe's claim was not a claim in the abstract. He also accepted that the disputewas live and had practicable implications for the parties.46 Given these considerations,the Judge was prepared to find that a similar device "for the purposes of [the Act]includes an orthotic device that supports a limb and promotes mobility (whether thelimb is missing, partly missing or impaired)".47 He considered that this conclusionwas sufficient to determine the extent of the Service's functions but noted that theparties had not had an opportunity to address this particular form of relief. He invitedthe parties to file further submissions on this issue.48The final orders judgment[41] Having received further submissions from the parties, the Judge issued his finalorders judgment on 27 April 2022. He concluded that it was not appropriate to makea declaration, either in the terms proposed by him in the substantive judgment, or assuggested by either party.49 The Judge noted the difficulty that the case presented.He commented that it involved the application of an abstract and broad expression —a similar device — to a complex clinical and commercial setting.50 He observed that,for a declaration to have utility, it should be fact-specific, efficacious, and capable ofpracticable application.51 He concluded that the substantive judgment had to speakfor itself and that a declaration radically at odds with that sought by MoveMe and withthe evidence and submissions filed by the parties, was not appropriate. He venturedthat any such declaration would invite further dispute over new questions ofinterpretation and would not comprehensively address the scope of the Service'sfunctions. He also commented that it would create a risk of unfairness, given that the45 At [127]–[128].46 At [135]–[137].47 At [138].48 At [138]–[141].49 Final orders judgment, above n 7, at [11].50 At [12].51 At [13], citing Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA398, [2015] NZAR 1708 at [80].evidence and submissions filed sought to address the issues as MoveMe initiallydefined them.52 For these reasons, he declined to make a declaration.53The submissionsMoveMe's submissions[42] Mr Waalkens KC, on behalf of MoveMe, submitted that the key issue iswhether any declaration should refer to amputees or persons at risk of amputation.He argued that the Service's functions are explicitly limited to matters relating toartificial limbs and that the Service's history, as well as the legislative history andstatutory context, reinforces the position that the Service's role is confined to artificiallimbs and amputees. He argued that the words "a similar device" ought to beinterpreted consistently with the ejusdem generis maxim and by reference to thespecific words in para (a) of the definition of the words "artificial limb", namely "anartificial arm, hand, leg, or foot".54[43] Mr Waalkens further argued that, although the Act was introduced in 2018, itskey provisions had been introduced in 1993 and that the 2018 amendments were of noreal significance. He put it to us that an artificial limb is well understood to be a devicethat replaces or augments a missing limb or part of a limb and that the focus is onfunction. He submitted that an orthotic is different from a prosthetic, although heacknowledged that there can be an overlap. He put it to us that, in general terms,orthotics are not devices that are similar to artificial arms, hands, legs or feet, as theydo not perform the function, or a function related to, the replacement or augmentationof a missing limb or part of a limb. Rather, orthotics perform a function in harmonywith the function of an artificial limb. He argued that it is the function of the devicewhich supplies the bright line, not necessarily the device itself. In his argument, thefunction of orthotics is not to replace a missing limb or part of a limb, but is rather tosupport, or immobilise, correct, or prevent injury to, an existing body part.Mr Waalkens acknowledged that there is an overlap with respect to patients who maybe at risk of amputation because such patients may benefit from the provision of an52 Final orders judgment, above n 7, at [13].53 At [14].54 Artificial Limb Service Act, s 4 definition of "artificial limb", para (a).orthotic device. He accepted that when an orthotic device is used in this way, it is asimilar device in accordance with the statutory definition.[44] Turning to relief, Mr Waalkens submitted that the making of declarations toclarify issues between the parties is warranted in this case. He accepted, withhindsight, that MoveMe's shifting submissions on the appropriate declarations hadconfused and complicated matters, but argued that given the existence of the disputearising from specific facts in issue and with practical consequences, declarations oughtto be made.The Service's submissions[45] Mr Colson KC, on behalf of the Service, argued that MoveMe is seeking toplace a singular interpretation on a broad expression — "a similar device" — that isused in a complex clinical setting. He submitted that context is everything, and thatthe historical, legislative and clinical contexts are key to the statutory interpretationexercise in issue. He referred to the functions with which the Service is tasked unders 8 of the Act and to the definition in s 4. He noted that the only reference to a patientgroup in these provisions is to persons generally and that there is no specific mentionof amputees. He argued that a wide range of orthotics are "similar devices" under theAct and that providing orthoses, as well as prostheses, is within the Service's statutoryfunctions, both because they are similar devices and because they are part of"rehabilitative and other services to persons in connection with artificial limbs", asthose words are used in s 8.[46] In relation to the proposed declarations, Mr Colson argued that MoveMe choseto focus its evidence and submissions on confining the meaning to be given to thewords "similar device". He submitted that the High Court was right to decline to makeany declarations. He noted that the amended declarations proposed by MoveMe recastwhat it had sought in the High Court. He argued that they do not seek to draw a linebetween what is a similar device and what is not, and that instead, they focus on acertain patient group — amputees — which is not mentioned in the Act. He suggestedthat the declarations sought would simply invite further dispute over new questions ofinterpretation and would not address the scope of the Service's functions.AnalysisThe Act — interpretation[47] There are two key provisions in the Act.[48] First, the words "artificial limb" are defined in the Act as follows:4 InterpretationIn this Act, unless the context otherwise requires,—artificial limb means a device that is—(a) an artificial arm, hand, leg, or foot; or(b) a similar device[49] Secondly, the Act states the functions of the Service. Section 8, detailing thosefunctions, has been set out above at [15].[50] The meaning of the Act has to be ascertained from its text and in light of itspurpose and its context.55 Meaning should always be cross-checked against purposeand in determining purpose the court must have regard to both the immediate andgeneral legislative context.56 The legislative process and antecedents can supplycontext,57 and the social, commercial or other objectives of the Act can be relevant.58If a word or phrase in an Act has a technical meaning in a particular area of expertise,and the word or phrase is used in relation to that area of expertise, the word should begiven its technical meaning, unless a contrary intention appears.59Section 4[51] We start with the definition.55 Legislation Act 2019, s 10(1).56 Commerce Commission v Fonterra Co-operative Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at[22].57 Attorney-General v Taylor [2017] NZCA 215, [2017] 3 NZLR 24 at [131].58 Commerce Commission v Fonterra Co-operative Ltd, above n 56, at [22].59 Morais v Venis [2022] NZHC 522 at [12], citing Falkiner v Commissioner of Stamp Duties [1973]AC 565 (PC); Jenkins v Inland Revenue Commissioners, above n 19, at 495; VanSilfhout v Pathirannehelage [2021] NZHC 2268 at [43]; aff'd Van Silfhout v Pathirannehelage[2023] NZCA 5 at [29] and [44]; and Maunsell v Olins [1975] AC 373 (HL) at 390–391 per LordSimon dissenting, with whom Lord Diplock agreed, referring to Langan, above n 19, at 28.[52] Section 4 of the Act provides that an artificial limb means a device which fallswithin either para (a) or (b). As a general rule, the word "means" introduces acomplete and exhaustive definition.60 Relevantly each of the other two words definedin s 4 also uses the word "means" to introduce the definition.61 In contrast, the word"including" is used in s 10 (dealing with the membership of the Service). We inferthat Parliament intended to draw a distinction between the words "means" and"including" with the result that the definition given to the words "artificial limb" wasintended to be a complete and exhaustive definition.[53] The definition uses the words "a device".62 The word "device" is an ordinaryEnglish word. It means a thing made or adapted for a particular purpose.63[54] The definition goes on to say that an artificial limb means a device that fitswithin para (a) "or" para (b). The component parts of the definition are disjunctive.This produces some difficulty, because the definition in para (b) repeats the word"device" and introduces the word "similar". Read literally the extended definition inpara (b) makes little sense. To define an artificial limb as a device that is a similardevice is profoundly unhelpful. If para (b) is to have any meaning, it must refer backto para (a). This also follows from the use of the word "similar".[55] We agree with the Judge that the word "similar" does not mean "the same as".64Rather, similar means having a material resemblance or likeness to; being of a likenature or kind.65 Something that is similar to something else is not however identicalto it. As the Judge succinctly noted, inherent in the word similar is the presenceof difference.6660 Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington,2021) at 567. See also R v Webb [1924] NZLR 934 (CA) at 941 per Stringer J; and Haynes vMcKillop (1905) 24 NZLR 833 (SC) at 837.61 Artificial Limb Service Act, s 4 is the interpretation section. "Minister" and "Service" are alsodefined.62 Section 4 definition of "artificial limb".63 Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (OxfordUniversity Press, Melbourne, 2008) at 296.64 Substantive judgment, above n 3, at [69].65 Lesley Brown (ed) Shorter Oxford English Dictionary on Historical Principles (5th ed, OxfordUniversity Press, Oxford, 2002) vol 2 at 2840.66 Substantive judgment, above n 3, at [74]; and see Mays v Roberts [1928] SASR 217 at 219–220.[56] The definition in para (a) uses the words "an artificial arm, hand, leg, or foot".There is no difficulty with para (a). Arms, hands, legs and feet are all limbs. The word"artificial" is an ordinary English word. It simply means something made by humanart or effort rather than something natural.67 For the purposes of the para (a) definition,an artificial limb is a copy of an arm, hand, leg, or foot which seeks to replicate theform and/or function of the arm, hand, leg or foot. Devices which seek to replicatethe form and/or function of other body parts do not fall within the definition containedin para (a).[57] It does not however follow that a similar device referred to in para (b) isconfined to a like device which copies or replicates the form and/or function of anarm, hand, leg or foot. Otherwise there would be little or no need for para (b).We agree with the Judge that there is nothing to suggest that Parliament intended thatthe meaning of the word "similar" should be restricted, or, in context, that a similardevice is only some other kind of artificial device used in relation to the arm, hand,leg or foot.68 The term is not expressed to be so qualified; there is no express referencein para (b) to any one or more of the limbs mentioned in para (a); nor is there anyreference to amputees. The para (b) definition in our view extends to devices that arenot artificial arms, hands, legs or feet, but are similar to such devices in that they copyor replicate the form and/or function of some other part or parts of the body.[58] While the concept of similarity and the wording of para (b) indicate that thedefinition can include devices that seek to replicate the form and/or function of otherbody parts, for example, fingers, toes, ears or jaws, it does not extend to artificialdevices that do not seek to replicate form and/or function — for example, insolesdesigned to correct gait and/or to provide support or comfort or, normally, to braces orsplints intended to support or correct the neuromuscular or skeletal system. There mayhowever be situations where orthotics and orthotic services will be needed by a patientbecause of difficulties caused by the fact that the patient has an artificial limb, or toavoid the need for the amputation of a limb. In such situations the required devicemay well fall within the para (b) definition. The similarity of the device falls, in our67 Deverson and Kennedy (eds), above n 63, at 56.68 Substantive judgment, above n 3, at [70].view, to be determined by form and function; ultimately whether and why a device isneeded in any given patient's situation is a matter for clinical judgment.Section 8[59] The Service's functions set out in s 8 assist and provide guidance to themeaning of the words "artificial limb". Artificial limbs are referred to in all four ofthe statutory functions.[60] The Board's functions extend to the provision of rehabilitative and otherservices, the carrying out of research and the giving of advice to the Minister — eitherin connection with or in relation to artificial limbs. All broadly relate to the supportof, and enhancement of mobility for, persons generally. That the Act's purpose is notlimited to dealing with amputees is apparent. We agree with the Judge that, hadParliament intended to limit the functions of the Service to amputees, one would nothave expected it to have extended the definition of artificial limb to includesimilar devices.69[61] Inter alia, the Service's functions include the provision of rehabilitative andother services to persons "in connection with artificial limbs". The Service's functionswere expanded in 1993 from the provision of "rehabilitative and other services topersons with artificial limbs",70 to the provision of such services to "persons inconnection with artificial limbs and similar devices".71 We agree with the Judge thatthis amendment permits the Service to provide rehabilitative and other services topersons who do not have an artificial limb, but who might need one in the future.7269 At [85]–[87].70 Social Welfare (Transitional Provisions) Act 1990, s 44.71 Social Welfare (Transitional Provisions) Amendment Act 1993, s 6.72 Substantive judgment, above n 3, at [77].The purpose of the Act and its context[62] The Act's purpose is set out in s 3. It provides as follows:3 Purpose of this ActThe purpose of this Act is to continue, state the functions of, andotherwise provide for, a New Zealand Artificial Limb Service.[63] We agree with the Judge that the statutory purpose indicates the importance ofthe continuity of the Service and thus emphasises the relevance of its historicalactivity. 73 That this is the case is also emphasised by s 7 of the Act.[64] The Judge set out in some detail the Service's history and origins, and itsevolving legislation. Neither party took issue with the Judge's recital in this regardand we gratefully adopt the same.74[6] The Service's origins can be traced back to before the establishmentof the Disabled Servicemen's Re-establishment League, which was created in1931 by the New Zealand Returned Soldiers' Association. The Leagueprovided training, employment and rehabilitation services to disabled soldiersreturning from the First World War. At that time, most artificial limbs weremanufactured by private firms.[7] During the Second World War, Parliament established theRehabilitation Board to promote and assist the reintegration and rehabilitationof returning servicemen and servicemen's widows into normal life inNew Zealand. In 1942, the Board appointed the Disabled Servicemen'sRe-establishment League as its agent responsible for the training of disabledservicemen in new trades and occupations. In 1943, the Rehabilitation Boardtook over a large artificial limb manufacturer in Wellington and entrusted it tothe League. From then on, the League's factory provided the bulk ofmanufacturing and fitting services to returned servicemen.[8] The first legislative recognition of the Services' direct predecessorsappears to be in the Artificial Aids Notice 1964, which allowed the League tosupply certain "artificial aids" for outpatients of public hospitals. Undercl 4(b) of the Notice, the League could supply a range of devices, includingseveral that were not artificial limbs, such as crutches, permanent splints andlimb socks.[9] In 1969, the League's role was expanded when the governmentappointed it as a provider of rehabilitation services to civilians. The Leagueestablished the New Zealand Artificial Limb Board as a delegated board toundertake its artificial limb activities. The Board was not a statutory body but73 At [82].74 Footnotes omitted, emphasis in original.rather an agency authorised to exercise tasks on behalf of theRehabilitation Board.[10] In 1990, the Disabled Servicemen's Re-establishment League and theArtificial Limb Board were [restructured] (as part of a wider health sectorrestructuring). The League was renamed Workbridge Incorporated, which stillexists today as an employment service for people with disabilities.The Artificial Limb Board was established as an independent entity under s43(1) of the Social Welfare (Transitional Provisions) Act 1990, and itsfunctions were set out in statute for the first time. Those functions appear tohave been narrowed from the provision of "artificial aids" prescribed by theArtificial Aids Notice to "artificial limbs" only. The functions were:(a) to manufacture, import, export, market, distribute, supply, fit,repair, and maintain artificial limbs:(b) to provide rehabilitative and other services to persons withartificial limbs:(c) to carry out research and development in relation to artificiallimbs: and(d) to advise the Minister on matters relating to artificial limbs.[11] In 1993, the Board's functions were expanded. This was achievedthrough an amendment that inserted the [italicised] words below:(a) to manufacture, import, export, market, distribute, supply, fit,repair, and maintain artificial limbs and similar devices:(b) to provide rehabilitative and other services to persons inconnection with artificial limbs and similar devices:(c) to carry out research and development in relation to artificiallimbs and similar devices: and(d) to advise the Minister on matters relating to artificial limbsand similar devices.[12] Neither the 1990 Act nor the 1993 amendments contained a definitionof "artificial limb". "[A]rtificial limb" was first defined in 2018.[13] The explanatory note for the amending legislation noted the expansionof the statutory functions in general terms:Clause 40 amends section 44 of the principal Act, relating to thefunctions of the New Zealand Artificial Limb Board. The firstamendment empowers the Board to carry out its functions in relationto devices similar to artificial limbs as well as in relation to artificiallimbs. The second amendment empowers the Board to providerehabilitative and other services to persons "in connection with"artificial limbs and similar devices rather than to persons "with"artificial limbs and similar devices.(emphasis added)[14] The day after these amendments, the Health Sector (Transfers)Act 1993 was passed as part of wide-ranging health sector reforms.Schedule 5 of that Act repealed a great number of statutes, orders, notices andregulations, including the Artificial Aids Notice 1964.[15] In 2004, the Artificial Limb Board was classified as an autonomousCrown entity following the enactment of the Crown Entities Act 2004.[16] In 2013, the Board was renamed the New Zealand ArtificialLimb Service.[17] In 2018, the Service's empowering legislation was moved into astand-alone Act, the Artificial Limb Service Act 2018. This occurred as partof an attempt to clarify New Zealand's social security legislation which hadbecome outdated and confusing. The Minister for Social Developmentdescribed the change as "policy neutral".[65] A number of matters can be drawn from this recital:(a) The Artificial Aids Notice 1964 allowed the Service — then known asthe Disabled Servicemen's Re-establishment League — to supplyvarious "artificial aids" for outpatients of public hospitals. The Leaguesupplied a range of devices, including several that were notartificial limbs.(b) In 1969, the League's role was expanded. The Government appointedit as a provider of rehabilitation services to civilians.(c) The League and the New Zealand Artificial Limb Board (which theLeague had established) were restructured in 1990. The Artificial LimbBoard was established as an independent entity and its functions wereset out in statute for the first time. Its functions were narrowed fromthe provision of artificial aids to the provision of artificial limbs.(d) In 1993, the Artificial Limb Board's functions were expanded, bypermitting it to manufacture and supply not only artificial limbs butalso similar devices. It was also empowered to provide rehabilitativeand other services to persons in connection with artificial limbs andsimilar devices.[66] As noted above, the Service entered into the Waikato Contract in 2017. In thefollowing year, in 2018, the Act came into force.[67] The Service's chief executive, Mr Gray, has deposed that the Service and itspredecessors have long supplied a broader range of mobility related devices than justartificial limbs. He says that the Service remains the sole supplier of limb socks forManatū Hauora | the Ministry of Health. He claims that the 2018 Act came into forcewith the full knowledge and support of the Minister responsible for the Service, thatthe Minister signed off on the Service's accountability documents at the time, and thatthe documents were tabled in Parliament.[68] In our view, the Service's history, and its antecedent legislation, supports theService's argument that there is no bright line between orthoses and artificial limbs asdefined. They also support our conclusion that a similar device is a device that is notan artificial arm, hand, leg or foot, but is similar to such a device in that it copies orreplicates the form and/or function of some other part or parts of the body.[69] There is further guidance found in the Act.[70] As noted, the Act records that the Crown Entities Act applies to the Service,except to the extent that it (the Artificial Limbs Service Act) expresslyprovides otherwise.75[71] The Crown Entities Act does not replace the individual statutes under whichCrown entities are established; rather it complements those statutes.76 The Act setsout five categories of statutory or Crown Entity. The Service is an autonomous Crownentity, which is a type of statutory entity.77 As such, it must have regard to governmentpolicy when directed to do so by its responsible Minister.78[72] The Crown Entities Act relevantly provides as follows:75 Artificial Limb Service Act, s 9; and Crown Entities Act 2004, s 4(2).76 See Crown Entities Act, s 4, which explains that the rules for the establishment, governance,operation and accountability of Crown entities are set out in various acts of Parliament, includingthe Crown Entities Act and the entity's own Act.77 Crown Entities Act, sch 1 pt 2.78 Section 7(1).14 Functions(1) The functions of a statutory entity are—(a) the functions set out in the entity's Act; and(c) any functions that are incidental and related to, orconsequential on, its functions set out in paragraphs (a) ...[73] Section 14(1)(c) is statutory recognition of the "reasonably incidental" doctrinedeveloped at common law.79 This doctrine was developed by courts to "facilitate thecommercial functions of public utilities established under statute".80 It has generalapplication to the exercise of public powers and it is applied liberally rather thannarrowly.81 Crown entities can do whatever is reasonably incidental to orconsequential upon the achievement of their authorised functions.82 While public actsnot directed at a body's primary or core functions are impeachable, other acts of anincidental or consequential nature are impliedly authorised and valid.83The subsection does not permit a Crown entity to perform functions which wouldotherwise be outside its powers.84[74] The Crown Entities Act also provides as follows:16 Core things statutory entities can doA statutory entity may do anything authorised by this Act or theentity's Act.79 See Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters,Wellington, 2021) at [19.3.3(3)] and [23.2.2(2)]; and Attorney-General v Lower Hutt City [1964]NZLR 438 (CA) at 456 per North P and at 462 per McCarthy J.80 Joseph, above n 79, at [19.3.3(3)].81 At [8.6.1].82 At [8.6.1].83 At [8.6.1]. See also [19.3.3(3)] and [23.2.2(2)].84 Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1 (HL) at 31 perLord Templeman; New Health New Zealand Inc v South Taranaki District Council [2018] NZSC59, [2018] 1 NZLR 948 at [165] per Glazebrook J and at [219] and [282]–[283] per Elias CJdissenting; and see New Zealand Law Society Crown Entities Act 2004 (NZLS Papers, April 2005)at 68.17 Other things statutory entities can do(1) A statutory entity may do anything that a natural person of fullage and capacity may do.Notwithstanding the width of these provisions, those acts of a Crown entity that arecontrary to, or outside the authority of an Act, or that are done otherwise than for thepurpose of performing the Crown Entity's functions, will be invalid.85[75] These various provisions again suggest that the definition of the words"artificial limb", and the Service's functions, should not be narrowly construed.The evidence[76] We now turn to the evidence, some of it expert. The Judge considered theevidence to be substantially helpful. He noted that while the term artificial limb mightnot appear to be a term of art, the question in the proceeding is raised in a clinicalsetting. He took the view that it was appropriate to have regard to thatclinical setting.86[77] We agree, but we have some reservations about the approach taken by thevarious witnesses. The witnesses commented primarily on the differences, real orperceived, between orthoses and prostheses. The Act does not use either of thesewords. Rather it uses the words "artificial limb" and defines these words.The witnesses assumed that an artificial limb is a prosthesis.87 We accept that it is butnote that prostheses cover a much wider range of devices. A prosthesis is any artificialdevice that can be attached to the body as an aid. Prostheses include bridges, dentures,artificial parts of the face, artificial limbs, hearing aids and cochlear implants,implanted pacemakers and many other substitutes for parts of the body that are missingor non-functioning.88 There are penile prostheses as well as cosmetic prostheses such85 Crown Entities Act, s 19(1) — note the exception in s 20.86 Substantive judgment, above n 3, at [51].87 At [18], the Judge recorded that it was common ground between the parties that artificial limbs ina clinical setting are referred to as prostheses.88 Elizabeth A Martin and Jonathan Law (eds) Oxford Concise Colour Medical Dictionary (7th ed,Oxford University Press, Oxford, 2020) at 632.as artificial eyes, teeth, noses and breasts, all of which are in widespread use.89 We arenot persuaded that the witnesses have focused on the right question. The termprotheses has a wide meaning in clinical usage but it is only those protheses that areartificial limbs as defined in the Act that are relevant to our enquiry. The issue iswhether orthoses are artificial limbs as defined, not whether orthoses are prostheses.Nevertheless, we address the evidence briefly.[78] MoveMe adduced expert evidence from Mr Zac Kleinhans and Mr CourtneySnyman, both orthotists and prosthetists. The Service adduced evidence fromMr Paul Sprague, an orthotist and prosthetist, Dr Cynthia Bennett, a physical medicineand rehabilitation physician (as well as a member of the Service's board),Professor Simon Fraser, a professor of industrial design, and Mr Alan Thurston, aretired associate professor, an orthopaedic surgeon and a former member of theService's board.[79] Mr Kleinhans and Mr Snyman deposed that prosthetics and orthotics aredistinct categories of device, that can be easily and separately described both byprofessionals and lay persons. They asserted that the function of a prosthetic limb isto replace a missing body part, whereas the function of an orthotic is to support,mobilise, or prevent injury to an existing body part.[80] Mr Kleinhans said that artificial limbs exist in various component types tomake them functional for users so that they can perform everyday tasks, or to providecosmetic resemblance to the missing body part. He said that in contrast, an orthotic isan "externally applied device used to modify the structural and functionalcharacteristics of the neuromuscular and skeletal system". He gave a non-exhaustivelist of examples, including an ankle/foot orthotic, resting hand or foot braces, a spinalbrace, a knee brace and the like. He asserted that an orthotic is not an artificial limbor prostheses, as it is not designed or used to replace or augment the absence of a limb.In his view, orthotic services and devices are predominantly used by patients otherthan amputees, but he did acknowledge that there will be some circumstances whereorthotic services might be provided to an amputee in connection with an artificial limb,89 Harvey Marcovitch (ed) Black's Medical Dictionary (43rd ed, Bloomsbury, London, 2017) at 543;and Martin and Law, above n 89, at 632.for example, if the contralateral (or sound) limb develops issues or injury due to thestrain caused by wearing an artificial limb. He also said that for a relatively smallpercentage of patients, orthotic services can reduce the risk of amputation.[81] Mr Synman was clear in his view than an artificial limb, a prothesis, is wellunderstood in the medical profession to be a device that replaces or augments amissing limb and that the function of a prosthetic limb is the replacement of a missingbody part, or a portion or segment of a body part. Orthotics is the support,immobilisation, correction or prevention of injury of an existing body part.He asserted that prosthetic limbs and associated services are provided to a veryspecific patient cohort, namely persons who have lost a limb through surgical removalor trauma, or who have a congenital limb deficiency; in contrast, orthotics are providedto a broad range of people across the general population for many and varied reasonsand for different purposes. He accepted that, at the margins, there may be someorthotic devices that can be used to assist part of a missing limb, for example, half footorthoses, but said that this is a very small subset of orthotics and that this subset couldreadily be described as an artificial limb substitute or a device performing thesame function.[82] The witnesses called by the Service considered that it is not possible to draw abright line between orthoses and prostheses. It was broadly the view of these witnessesthat both types of device exist on a continuum.[83] Mr Sprague expressed the view that orthoses should be regarded as similardevices to prostheses. He considered that both types of device have a common subjectmatter and that a frequent patient goal when accessing either prosthetic or orthoticservices is to restore safe and efficient walking. He considered that there is an overlapin the population who access orthotic and prosthetic services and commented that themajority of amputations are as a result of peripheral vascular disease, secondary todiabetes, and that the provision of orthotic services is an important part of theconservative management of this disease within a multidisciplinary team.He considered that the purposes of orthotic and prosthetic devices are very similar. Hecommented that the specific category of orthoses which could most readily beinterpreted as being a similar device to an artificial limb is that which is fitted to limbsrather than to the head or torso. He observed that the vast majority of such devices areused for ambulatory or weight-bearing purposes and that essentially such devices aredesigned to replace, augment or accommodate the structure and/or function of theneurological, muscular and/or skeletal systems, using passive, dynamic or poweredmaterials and components. He considered that other devices, for example, for headsand torsos, might appear to be different from artificial limbs, but that they have exactlythe same high-level aims of facilitating independence. He commented that suchdevices also employ the same fundamental concepts as artificial limbs to achievethose aims.[84] Dr Bennett deposed that the practice of prosthetics and orthotics involves theprovision of comprehensive services for individuals who benefit from prostheticsand/or orthotics to improve safety, function, independence and quality of life.She stated that "prosthetics" generally refers to a functional (moveable) artificial limband that "orthotics" generally refers to a formed component of a limb, which may doany of a number of things, including to support improved alignment and joint functionor maintaining position to improve comfort and safety of daily activities. She assertedthat prosthetic and orthotic devices can be regarded as similar and that both areexternally applied devices that are designed and fitted to the body to achieve one ormore of a number of goals. She asserted that the differences between the two are oftenarbitrary and that there is an undeniable similarity between prosthetic and orthoticdevices, their functions and their service provision.[85] Professor Fraser commented on the research and development of orthotics andprosthetics and whether there is a similarity in the two types of devices from thatperspective. He concluded that from a research and development point of view,orthotics and prosthetics have a direct connection to each other, both in terms of designand the materials used and in terms of the applicability of new andemerging technologies.[86] Mr Thurston expressed the view that prosthetic and orthotic devices canobjectively be regarded as similar devices, assisting with patient mobility and otherpurposes. He commented on the overlap between the two disciplines.Conclusion[87] Viewed in the round, we agree with the Judge that it is not possible to draw abright line between orthoses and prostheses. Rather, they exist on a continuum.90Some orthoses are, in our view, similar to some prostheses and some fall within thedefinition of the words artificial limb contained in the Act. This view appears to beconsistent with clinical usage. The word "orthotics" is defined in Black's MedicalDictionary as being "[t]he speciality of designing, fitting and supervising the use ofexternal skeletal aids, including splints and artificial limbs (collectively knownas orthoses)."91[88] In our judgment the Judge was correct when he concluded that some orthosesare similar devices to artificial limbs as defined.92 Some orthoses clearly have asimilar function, purpose or character to artificial limbs, but it cannot be said that allorthoses are similar devices to artificial limbs and fall within the statutory definitionof the words "artificial limb".A declaration or declarations?[89] Declarations can be granted under the Judicial Review Procedure Act 2016.93Further, the High Court has an inherent jurisdiction to declare rights and obligationsinter partes independently of any statutory authority.94 The principal purpose of adeclaration is vindication.95 A declaration authoritatively states the legal positionbetween the parties without granting any consequential relief.96[90] We agree with the Judge that the court cannot refuse to make a declarationwhere refusal would be inconsistent with the court's essential function of interpretingthe law and applying the law to the facts of a particular case.97 We also agree with the90 Substantive judgment, above n 3, at [109].91 Marcovitch, above n 89, at 480.92 Substantive judgment, above n 3, at [118].93 Judicial Review Procedure Act 2016, s 16(1)(b).94 Joseph, above n 79, at [27.3.3(1)], referring to Burt v Governor-General [1992] 3 NZLR 672 (CA)at 676.95 Joseph, above n 79, at [27.3.3(2)], citing Middeldorp v Avondale Jockey Club Inc [2020] NZCA 13at [30].96 Joseph, above n 79, at [27.3.3(2)].97 Substantive judgment, above n 3, at [130], citing Electoral Commission v Tate [1999] 3 NZLR174 (CA) at [31].Judge that where there is uncertainty about the meaning of legislation, parties need tobe able to turn to the court for an authoritative ruling.98[91] As against this, the courts can and should in appropriate cases refuse to makea declaration. As the Judge noted, courts have typically been reluctant to makedeclarations which amount to advisory opinions.99 Any declaration should be"fact-specific, efficacious and capable of practicable application".100 The court willnot answer purely abstract or hypothetical questions,101 or questions raised inanticipation of an actual controversary.102[92] As the Judge observed in the present case, there is a dispute between the partiesas to the correct interpretation of the Act. The dispute arises from the Service'sexpansion into the general provision of orthotics and orthotics services, includingunder contracts with district health boards. Further, the dispute is live and it hasconsequences for the parties who are competitors in the orthotic services market.103[93] Nevertheless, we do not consider that declarations in the terms sought byMoveMe are appropriate.[94] First, the declarations sought by MoveMe seek to introduce concepts which arenot contained in the definition of the words "artificial limb" or elsewhere inthe Act — for example "orthotic device", "supports a limb", "promotes the mobilityof an amputee" and "person at risk of amputation".[95] Secondly, we agree with the Service that declarations in the terms soughtwould simply invite further dispute between the parties. They would introduceundefined terms into the mix and they would require that a registered health assessordetermine whether or not a person is at risk of amputation and therefore whether or98 Substantive judgment, above n 3, at [131].99 At [132].100 Department of Internal Affairs v Whitehouse Tavern Trust Board, above n 51, at [80].101 Attorney-General v Refugee Council of New Zealand Inc [2003] 2 NZLR 577 (CA) at [45] perBlanchard, Tipping and Anderson JJ; and Wool Board Disestablishment Co Ltd v Saxmere Co Ltd[2010] NZCA 513, [2011] 2 NZLR 442 at [141] per Hammond J dissenting in part.102 New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84 (CA) at 85.See also Joseph, above n 79, at [27.3.3(3)]; and Matthew Smith New Zealand Judicial ReviewHandbook (2nd ed, Thomson Reuters, Wellington, 2016) at [75.10.6].103 Substantive judgment, above n 3, at [135]–[137].not the Service can provide orthotic services to such a person. This would beimpracticable.[96] Thirdly, we cannot see that declarations in the terms sought wouldcomprehensively address the Service's functions. As the Judge noted, the difficultywith the declarations sought in this case is that they involve the application of anabstract and broad expression — a similar device — in a clinical and commercialsetting.104 We cannot see that it is possible to frame a declaration that resolves thedemarcation dispute between the parties in a satisfactory way without being able torefer to a specific device — whether an orthotic or an artificial limb.[97] Finally, to make declarations in the terms sought would be unfair.The evidence and the submissions filed sought to address the matters put in issue byMoveMe in the High Court. The Service has not had the opportunity to fully respondto MoveMe's evolving case.[98] Accordingly, we have concluded that the Judge did not err when he held that itwas not appropriate to make declarations, either in the terms proposed by the Judge inhis substantive judgment, or in the terms suggested by the parties when they filedfurther submissions.Result[99] The appeal is dismissed.[100] We do not consider that an award of costs is appropriate. Both parties havehad a measure of success on the appeal. While we have dismissed the appeal, weconsider it likely that the Service is, at least to an extent, exceeding its statutoryfunctions. In this sense, the Service is the unsuccessful party to the appeal. In ourjudgment, costs should lie where they fall.104 Final orders judgment, above n 7, at [12].MILLER J[101] The Service has extended its functions to reflect a patient-centric approach tocare, the provision of multi-disciplinary services, and the commercial demands ofDHBs. This may improve patient care and encourage competition. But to some extentit has led the Service to offer devices (and associated services) which are not confinedto artificial limbs as defined.[102] I agree that declaratory relief is inappropriate for the reasons given by Frenchand Wylie JJ. I write separately in connection with the concept of "a similar device".[103] I agree with the findings and reasons of Isac J at [105]–[126] of his substantivejudgment but would draw the line which delimits the Service's functions at a differentpoint. I also agree with his observations about the legislation at [96].[104] In company with my colleagues, and contrary to the argument for MoveMe, Iconsider that an artificial limb, as defined in this legislation, is not confined to anartificial arm, hand, leg or foot supplied to a person who is missing such limb. It isnot necessary that the person be at risk of amputation, or that their impairment be dueto injury rather than disease or neurological impairment. The impairment need notbe permanent.[105] Rather, the words "a similar device" must be given a liberal interpretation thatis consistent with the objects of the Act, which are not confined to amputees and haveto do generally with promoting mobility in connection with the supply of artificiallimbs and provision of rehabilitation services in connection with artificial limbs.[106] I consider that "similar" relevantly means resembling an artificial arm, hand,leg or foot in function, character or appearance. The degree of resemblance requiredis a question of clinical judgement.[107] The definition does not correspond to what the expert evidence tells us are thegenerally recognised but overlapping definitions of prosthetic and orthotic devices.An artificial limb may include a device which medical professionals would classify asan orthosis. I agree with French and Wylie JJ that not all prostheses, as they havedefined that term at [77] above, meet that definition.[108] An artificial limb can be attached to a person who retains the natural limb butrequires a device to perform the functions of that limb. That follows once it isrecognised that the recipients of artificial limbs need not be amputees. An artificiallimb might extend to a device fitted to a contralateral (sound) limb to support thefunction of the unsound limb.[109] Following my purposive approach to the legislation, and respectfully differingfrom French and Wylie JJ and Isac J, the term "artificial limb" is also capable ofextending to any artificial device used to replace or augment the structural andfunctional characteristic of the neuromuscular and skeletal system. For example, theterm might include spinal braces used to support the mechanical functions of the spine.Solicitors:Wotton + Kearney, Wellington for AppellantMinterEllisonRuddWatts, Wellington for Respondent