NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL [2017] NZSC 162

NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL[2017] NZSC 162 [30 October 2017]IN THE SUPREME COURT OF NEW ZEALANDSC 141/2016[2017] NZSC 162BETWEEN NEW HEALTH NEW ZEALANDINCORPORATEDAppellantAND SOUTH TARANAKI DISTRICTCOUNCILFirst RespondentATTORNEY-GENERAL for and on behalfof the Minister of HealthSecond RespondentCourt: Elias CJ, William Young, Glazebrook, OʼRegan andEllen France JJCounsel: M T Scholtens QC and L M Hansen for AppellantD J S Laing and H P Harwood for First RespondentA M Powell for Second RespondentJudgment: 30 October 2017JUDGMENT OF THE COURTThe application for leave to admit the TDB report annexed to theaffidavit of Philip Barry is dismissed.____________________________________________________________________REASONSIntroduction[1] The appellant, New Health New Zealand Inc, seeks leave to adduce newevidence in relation to the appeal on this matter set down for hearing on 16 and17 November 2017. The evidence comprises an affidavit from Philip Barry exhibitingtwo reports, namely:(a) a report dated 11 December 2016 prepared by TDB Advisory Ltd(described as financial and economic advisors) of which Mr Barry is aprincipal, entitled "The Costs and Benefits of a National ToothBrushing Education Programme for Children" (the TDB report); and(b) a report prepared in September 2015 by the Sapere Research Group(described as a consulting firm providing inter alia, economic andpublic policy services) entitled "Review of the benefits and costs ofwater fluoridation in New Zealand" and made public by the Ministry ofHealth in May 2016 (the Sapere report).[2] The TDB report states that it sets out to address two questions, namely, the costof a national tooth-brushing education programme for children aged 12 and under andthe dental health effects and treatment savings for those under 18 years of age resultingfrom such a programme. The report considers these questions against the backgroundof similar programmes in Scotland and in Denmark.[3] The Sapere report is a cost benefit analysis of water fluoridation inNew Zealand.The application for leave[4] To put the application for leave in context, one issue raised by the appellant'swritten submissions on the appeal is whether fluoridation of drinking water by the firstrespondent, the South Taranaki District Council (the Council), engages the right unders 11 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) to refuse toundergo any medical treatment and, if it does, whether fluoridation is a limit on thatright demonstrably justified under s 5 of the Bill of Rights.[5] The application for leave is advanced primarily on the basis that the proposedevidence will substantially assist the Court in making any assessment under s 5. Theappellant says that the analysis of the costs and benefits of a national tooth-brushingand education programme undertaken in the TDB report will be relevant in deciding,as part of the s 5 analysis, whether fluoridation impairs the s 11 right as little aspossible. The appellant also submits the report could not have been obtained earlierbecause it followed publication of the Sapere report which post-dated the hearing inthe High Court of this matter and so it is fresh evidence. Finally, the appellant saysthe TDB report responds to the Sapere report. If both reports are admitted, there willbe no prejudice to the Council.[6] The application is opposed by the Council on the basis that the TDB report isnot fresh as it could have been commissioned prior to the High Court hearing. TheCouncil also submits the report lacks credibility because it is based on a hypotheticaltooth-brushing programme. The Council argues the report is not cogent because it isnot directed to the key issue under any s 5 inquiry which will focus on waterfluoridation (but rather, on other hypothetical measures which might also be beneficialfor oral health) especially where there is sufficient evidence already to enable theCourt to address the s 5 issues. Finally, the Council says that it will be prejudiced byadmission of this evidence given further evidence would be necessary to respond andno response could be prepared prior to the filing of the Council's submissions whichare due on 30 October 2017.[7] The second respondent, the Attorney-General, abides the decision of the Court.Discussion[8] We decline leave to adduce the TDB report on the basis it does not meet theestablished guidelines for admission.1[9] The report is not fresh. The application of s 5 of the Bill of Rights was in issuein the High Court and the report could, with reasonable diligence, have beencommissioned prior to the hearing on 25–26 November 2013 in that Court.2[10] Further, it is difficult to see how the TDB report would assist the Court in anys 5 analysis given its untested and hypothetical nature.1 Paper Reclaim Ltd v Aotearoa International Ltd [2007] NZSC 1, [2007] 2 NZLR 124 at [16] citingr 40, Supreme Court Rules 2004 and Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999]1 NZLR 641 (CA) at 649.2 See, for example, the discussion in New Health New Zealand Inc v South Taranaki District Council[2014] NZHC 395, [2014] 2 NZLR 834 (Rodney Hansen J) at [107]–[109].[11] Finally, we accept the Council's submission that introduction of the report atthis very late stage would prejudice the Council.Result[12] The application for leave to adduce the TDB report is accordingly dismissed.It is unclear to us whether the appellant or the Council would nonetheless still seekadmission of the Sapere report. We can leave the question of admission of that reportfor argument at the hearing, if necessary.[13] Any questions of costs can be addressed in the judgment on the appeal.Solicitors:Wynn Williams Lawyers, Christchurch for AppellantSimpson Grierson, Wellington for First RespondentCrown Law Office, Wellington for Second Respondent