NEW HEALTH NEW ZEALAND INC v WELLINGTON WATER LTD [2022] NZHC 2389

NEW HEALTH NEW ZEALAND INC v WELLINGTON WATER LTD [2022] NZHC 2389 [16 September2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-556[2022] NZHC 2389UNDER the Judicial Review Procedure Act 2016IN THE MATTER of an application for judicial review and anapplication for a declarationBETWEEN NEW HEALTH NEW ZEALAND INCApplicantAND WELLINGTON WATER LTDFirst RespondentWELLINGTON CITY COUNCILSecond RespondentHUTT CITY COUNCILThird RespondentHearing: 13 September 2022Appearances: T Mijatov and J S Trevella for the ApplicantA S Butler for the RespondentsJudgment: 16 September 2022JUDGMENT OF COOKE J(Declining interim relief)[1] By application dated 30 August 2022 the applicant seeks interim orders unders 15 of the Judicial Review Procedure Act 2016 prohibiting the reintroduction offluoride into Wellington's drinking water supply until further order of the Court.[2] The application is supported by four affidavits, one from the Chairman of theapplicant, and three affidavits providing expert evidence. The application is opposedby the respondent who has filed nine affidavits relating to the circumstances underwhich fluoridation has occurred in the wider Wellington region.[3] The application was first referred to me as Duty Judge on 2 September andafter hearing from counsel I directed a hearing before me on 13 September.Background[4] The applicant has a well-established track record of challenging decisions tointroduce fluoride into New Zealand's drinking water supplies. It unsuccessfullychallenged such decisions in 2013–2018 before the High Court,1 the Court of Appeal,2and the Supreme Court.3[5] In these proceedings it now challenges the legality of the fluoridation of theWellington region water supplies. The water in the Wellington region has beenfluoridated since the 1960s. The relevant decision-makers named in the proceedingsare the second and third respondents — the Wellington City Council and the Hutt CityCouncil. The first respondent, Wellington Water Ltd (Wellington Water), is a companyowned by a number of local authorities in the wider region. It manages drinking watersupply issues operationally.[6] In May and November 2021 Wellington Water stopped fluoridating the waterat two of its four water treatment plants — Te Marua and Gear Island. This was dueto what can be described as operational issues surrounding the equipment andresources, including health and safety issues. Wellington Water did not tell therelevant councils that it had done this until March 2022. When they became aware ofthis the councils were concerned and they have required full fluoridation be promptlyrestored. An independent inquiry was commissioned into the circumstances, with theresults reported in June 2022.1 New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 395, [2014] 2NZLR 834.2 New Health New Zealand Inc v South Taranaki District Council [2016] NZCA 462, [2017] 2NZLR 13.3 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR948.[7] Significant work has been undertaken by Wellington Water to restore the abilityof these two plants to deliver fluoridation in accordance with the councils' policies.There is a commissioning process that is currently being completed following theupgrade and repair works. The Te Marua plant commenced commissioning in the lastweek of July 2022 and moved into a phase involving fluoridation at full levels on27 August, with the commissioning period scheduled to finish at around24 September. After moving to this phase the fluoridation levels have been within thetargeted range for delivering optimally fluoridated water. The Gear Islandcommissioning has been more complex, but it is expected that it will move to a phaseinvolving fully fluoridated water about now.[8] These two facilities are only two of the plants that deliver fluoridated drinkingwater to the Wellington and Hutt region. The Te Marua plant is in Upper Hutt, and theWaterloo, Wainuiomata and Gear Island plants are in Lower Hutt. They form part ofan integrated network that serves the region overall, including not only Wellington andthe Hutt but also Porirua.[9] The application for interim relief proceeds on the basis that orders should nowbe made to prevent the reintroduction of fluoride into the Wellington region's watersupply until further order, and particularly until the applicant's new judicial reviewchallenge is heard and determined.Approach to interim relief[10] The approach the Court adopts to an application for interim relief under s 15of the Judicial Review Procedure Act is well established. It was described by theSupreme Court in Minister of Fisheries v Antons Trawling Company Ltd in thefollowing terms:4Before a Court can make an interim order it must be satisfied that the ordersought is reasonably necessary to preserve the position of the applicant. Ifthat condition is satisfied the Court has a wide discretion to consider all thecircumstances of the case, including the apparent strengths or weaknesses of4 Minister of Fisheries v Antons Trawling Company Ltd [2007] NZSC 101; (2007) 18 PRNZ 754 at[3]..the applicant's claim for review, and all the repercussions, public and private,of granting interim relief.5The present case[11] A number of matters were referred to in the comprehensive submissions of theapplicant and the respondents. I do not intend to address all the matters that have beenraised, however. That is because there are three inter-related reasons why interimrelief is clearly not appropriate in this case.New Health's challenge already substantively addressed[12] The first point is that the applicant's challenge to the legality of the fluoridationof water supplies has already been substantively addressed in its earlier judicial reviewchallenge that proceeded unsuccessfully through to the Supreme Court. That judicialreview challenge involved comprehensive arguments advanced by the applicant thatthe fluoridation of water supplies was unlawful because it was not authorised bystatutory provisions, and involved a breach of the right to refuse to undergo medicaltreatment contrary to s 11 of the New Zealand Bill of Rights Act 1990 (NZBORA). Itinvolved extensive expert evidence on the underlying issues. In short the applicant'schallenge has already been substantially heard and determined. I accept that this doesnot prevent the ability to mount a new challenge contending that there have beensignificant developments concerning fluoridation that now mean its challenge shouldbe successful. But on the basis of the evidence that has been filed I do not apprehendthere is a strong case to say that there have been such substantial developments. Itseems to me to involve further information directed to the same issues.[13] Mr Mijatov and Mr Trevella argued that the judgment of the Supreme Court inNew Health New Zealand Inc v South Taranaki District Council was not authority forthe proposition that fluoridation involved a demonstrably justified limit on the s 11right, at least in relation to the water supplies in the Wellington region.6 But despitethe different opinions in the judgments of the Supreme Court, the ultimate conclusion5 Carlton & United Breweries v Minister of Customs [1986] 1 NZLR 423 at p 430 per Cooke J.6 New Health New Zealand Inc v South Taranaki District Council, above n 3.of the majority is clear and is summarised at [145] of the reasons.7 In short, themajority concluded that the decision to fluoridate was empowered by legislation, andthat the right in s 11 did not constrain the exercise of that power. The last part of thatconclusion involved different reasoning by the majority — O'Regan and Ellen FranceJJ concluded that fluoridation was a justified limit on the s 11 right in accordance withs 5 of the NZBORA, and William Young J concluded that s 11 was not engaged at all.But the key point is that the Court has concluded that such fluoridation of drinkingwater is lawful after a full consideration of the applicant's arguments and evidence onall issues.[14] The applicant argued that the conclusions of the Court related only tofluoridation being within the powers of territorial authorities, but did not extend to anyconclusions about the exercise of such powers. I do not agree. The conclusion thatthe power was not "constrained" by s 11 is a conclusion concerning the exercise of thepower challenged in that case. It is a conclusion that fluoridation is lawfulnotwithstanding the right in s 11.[15] It remains open for the applicant to argue that there have been newdevelopments that mean that its new challenge should now be decided differently.This could include arguments that the local conditions in the Wellington region aresufficiently different to warrant a different conclusion. But these arguments proceedfrom a difficult starting point, particularly given the reference in the Supreme Courtjudgments (as well as the judgments of the lower courts) to the conclusions that havebeen reached by the World Health Organisation and in a number of comparablejurisdictions that the fluoridation of drinking water is justified.8Legislative reform[16] The second related issue is that, following the decision of the Supreme Court,the position has been further considered by Parliament and new legislation has beenpassed. The Health (Fluoridation of Drinking Water) Amendment Act 2021 amended7 See also New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 70 atfootnote 4 — "By a majority, albeit for different reasons, the Court concluded that although s 11is engaged the statutory power to fluoridate is not constrained by s 11 of the Bill of Rights".8 New Health New Zealand Inc v South Taranaki District Council, above n 3, at [121].the Health Act 1956. It came into effect in December 2021. There are three keyelements of the amending legislation. First, local authorities who have beenfluoridating their water are required to continue with that fluoridation. Secondly, localauthorities who have not been fluoridating are given a power to fluoridate. Thirdly,the Director-General of Health is given power to direct local authorities to add, or notadd fluoride to drinking water.[17] As indicated the Wellington region water supplies have been fluoridated by thelocal authorities since the 1960s. The duty of such a local authority to continue withfluoridation would accordingly seem to arise under the new legislation. That duty isformulated by Schedule 1AA of the Health (Fluoridation of Drinking Water)Amendment Act in the following terms:Part 1Provisions relating to Health (Fluoridation of Drinking Water)Amendment Act 20211 Local authority must continue to add fluoride to drinking water(1) This clause applies to a local authority that, before this clausecommences, adds fluoride to drinking water supplied through its localauthority supply.(2) The local authority must continue to add fluoride to the water unlessdirected not to by the Director-General.(3) A local authority that contravenes or permits the contravention ofsubclause (2) commits an offence and is liable to the same penalty asif it had contravened or permitted the contravention of section 116I.(4) Subpart 2 of Part 5A applies to an offence against subclause (3) as ifit were an offence against section 116J.2 Local authority may add fluoride to drinking water in absence ofdirection(1) This clause applies to a local authority that,—(a) before this clause commences, does not add fluoride todrinking water supplied through its local authority supply;and(b) has never received a direction to add fluoride or not to addfluoride to drinking water supplied through its local authoritysupply.(2) The local authority may, at its discretion, add fluoride to drinkingwater supplied through its local authority supply.[18] The applicant argued that the duty in cl 1(2) does not apply here. That isbecause the level of fluoridation in Wellington water supplies have been beneath therecommended levels for a period of time, then leading to the cessation of fluoridationat the two plants I describe above. It was argued that any fluoridation that was not atthe levels that would have the claimed health benefits, and that a territorial authoritywho introduced fluoride at such sub-optimal levels could not be said to have addedfluoride to drinking water within the meaning of cl 1(1).[19] I do not accept these arguments. The clauses are clear on their face, particularlywhen given a purposive interpretation. They came into effect 28 days after thelegislation received Royal assent on 15 November 2021.9 It is true that in mid-December 2021 at two of the treatment plants for the region, Wellington Water wasnot adding fluoride to the drinking water because of equipment and operationalfailures. But fluoride was still being added at the other two plants. This was done inaccordance with the previous decisions that had been made by the Wellington and Huttcouncils. For that reason it seems to me that both councils have a duty to continuewith fluoridation. I do not accept that the word "adds fluoride" only mean "addsfluoride at optimal levels". Such an interpretation would mean that any localauthorities that had failed to implement their decisions effectively would have no dutyto continue with fluoridation at all. That is inconsistent with the purpose of theprovisions. The duty is concerned with the fact of fluoridation, not the precise levelat which it was added. The purpose of cl 1 is to prevent local authorities discontinuingwith fluoridation. Yet that is precisely what the applicant seeks to achieve by thisjudicial review proceeding.[20] It is also unrealistic to say that the Hutt and Wellington City Council properlyfall into cl 2, and that they have made fresh decisions under cl 2(2) of Schedule 1AAwhen insisting that Wellington Water restore proper service. Clause 1 of theprovisions more likely applies given its text, and in light of its purpose. It would notbe appropriate for the Court to make interim orders that appear to be contrary to9 Health (Fluoridation of Drinking Water) Amendment Act 2021, s 2.Parliament's legislation, even on an interim basis, absent truly compellingcircumstances.[21] Mr Mijatov and Mr Trevella sought to argue that the potential effect of thislegislation actually provided a reason for the grant of interim relief. If interim reliefwas not granted, they argued, then there was a risk that the respondents would be ableto rely on these provisions. But given that the duty under cl 1 arises at the date thelegislation came into effect in December 2021 any interim orders granted by the Courtcould not affect whether the duty existed. The duty either applied, or it did not.Interim orders would not affect that question.[22] It seems to me that the existence of this legislation is fatal to the application.It may not eliminate the jurisdiction to make orders under s 15 as they would only beinterim orders to preserve a position until full argument at trial. But the fact thatParliament has formulated a duty on local authorities to continue with fluoridation,and that duly appears to apply, is a very strong reason why interim orders should notbe granted.Position to preserve[23] The final factor is that, in any event, I do not accept that the applicant has asufficiently strong position to preserve to warrant interim relief.[24] The test for interim relief involves a threshold question — that the order isreasonably necessary to preserve the position of the applicant. A number of recentdecisions have held that a liberal approach should be taken to the threshold question.It is not limited to preserving the status quo.10 It can include putting the applicant inthe position that it would have been but for the claimed illegality.11 It seems to methat one of the reasons why a liberal interpretation of the threshold requirement isappropriate is that it allows the Court to retain jurisdiction to grant interim orders inall appropriate cases. But the strength of the position the applicant seeks to preserve10 Kōkako Lodge Trust v Auckland Regional Public Health Service [2022] NZHC 2280 at [13]; NgaKaitiaki Tuku Iho Medical Action Society Inc v Minister of Health [2021] NZHC 1107 at [52]–[54].11 Christiansen v Director-General of Health [2020] NZHC 887, [2020] 2 NZLR 566 at [58].will nevertheless become highly relevant when it comes to deciding whether to grantsuch orders.[25] The difficulty for the applicant here is that, whilst there has been a period oftime when fluoridated water supplies have been compromised for operational reasons,the operational deficiencies have now largely been addressed, and fluoridated watersupply has all but been fully restored. I accept that the applicant satisfies thejurisdictional threshold — it can say that it is seeking to preserve a position until thechallenge is heard. Fluoridated water supplies have not yet been fully restored. Butnotwithstanding that the threshold is met, there are no compelling reasons justifyingan interim order being made to preserve that position until that challenge is heard.[26] Wellington water has been fluoridated since the 1960s. There has been nodecision by the Council not to fluoridate — the present circumstances simply arisefrom operational failings. The applicant does not put forward an argument thatfluoridation will cause any irretrievable harm to any persons in the meantime. Neitheris its ability to obtain effective relief compromised. If its claim were successful theCourt can still declare that such fluoridation was unlawful. Moreover there would bematerial public disruption if the Court were to order that fluoridation cease in themeantime. Indeed it is likely to lead to the same public concern that greeted thedisclosure of the operational failure to maintain fluoridation.Conclusion[27] I do not need to address the arguments or evidence in any fuller way toconclude that the application should be dismissed.[28] I accept that the applicant can technically say it has a position to preserve unders 15. But substantively Wellington water supplies have been fluoridated since the1960s, and the argument that the operational failures mean that interim relief is nowappropriate pending the substantive challenge is at best opportunistic, and alsosomewhat artificial given that full fluoridation has largely been restored. Theapplicant has already engaged in very extensive litigation contending that fluoridationof drinking water supplies is unjustified, and that litigation has failed in the HighCourt, the Court of Appeal, and the Supreme Court. Its views have been heard andalready dismissed at all levels. In any event there is now legislation that prevents localauthorities from discontinuing fluoridation. Notwithstanding the arguments advancedby the applicant it seems to me that this legislation likely applies.[29] For those reasons there is no justification for the Court to make any interimorders, and the application is dismissed.[30] The respondents will be entitled to costs. If costs cannot be agreed I willreceive a memorandum from the respondents within 10 working days (no more thanfive pages plus a schedule) to be responded to within 10 working days (no more thanfive pages plus a schedule).Cooke JSolicitors:Stout Street Chambers, Wellington for ApplicantThorndon Chambers, Wellington for Respondent