NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL [2018] NZSC 70

NEW HEALTH NEW ZEALAND INCORPORATED v SOUTH TARANAKI DISTRICT COUNCIL[2018] NZSC 70 [7 August 2018]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 141/2016[2018] NZSC 70BETWEEN NEW HEALTH NEW ZEALANDINCORPORATEDAppellantAND SOUTH TARANAKI DISTRICT COUNCILFirst RespondentATTORNEY-GENERAL FOR AND ONBEHALF OF THE MINISTER OFHEALTHSecond RespondentCourt: Elias CJ, William Young, Glazebrook, O'Regan andEllen France JJCounsel: M T Scholtens QC, L M Hansen and T Mijatov for AppellantD J S Laing and H P Harwood for First RespondentA M Powell and S K Jameson for Second RespondentJudgment: 7 August 2018JUDGMENT OF THE COURT (AS TO COSTS)New Health is to pay costs of $5,000 to the second respondent.____________________________________________________________________REASONSIntroduction[1] In our judgment delivered on 27 June 2018, we dismissed two appeals byNew Health New Zealand Inc (New Health), the appellant.1 Costs were reserved. Theparties have been unable to reach agreement as to costs and now seek orders from the1 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 60.Court. In particular, the Attorney-General, the second respondent, seeks costs of$5,000. The appellant opposes on the basis costs should lie where they fall.Background[2] The first of the two appeals challenged the validity of the MedicinesRegulations 2015 (the Regulations appeal). Broadly speaking, the MedicinesRegulations made it clear that fluoridating agents for use in fluoridating drinking waterare not medicines for the purposes of the Medicines Act 1981. The Court rejectedNew Health's claim noting, amongst other matters, that there was no improper purposewhere the effect of the Medicines Regulations is prospective. The second of theappeals related to whether or not specified fluoridating agents were medicines for thepurposes of the Medicines Act (the Medicines Act appeal). The Court found thatappeal was moot given the making of the Regulations.[3] At the same time as the judgment in the Regulations and Medicines Act appealswas delivered, the Court also delivered its judgment in New Health New Zealand Incv South Taranaki District Council.2 That judgment related to New Health's challengeto the statutory authority of the South Taranaki District Council to fluoridate the watersupplies for Patea and Waverley (the fluoridation appeal). New Health's appeal wasunsuccessful. But, in the course of finding there was statutory authority to fluoridatethe water supplies, the Court (William Young J dissenting) found that the fluoridationof water medical treatment for the purposes of s 11 of the New Zealand Bill of RightsAct 1990 (the Bill of Rights). New Health was ordered to pay the South TaranakiDistrict Council costs of $20,000 plus usual disbursements. The Attorney-General didnot seek costs, counsel having accepted the Attorney-General's role was akin to thatof an intervenor.Arguments as to costs[4] Against this background, counsel for the Attorney-General seeks a reducedaward of costs of $5,000. That award is sought on the basis that costs should followthe event in the usual way.2 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59.[5] An award of costs is resisted by the appellant on two bases. First, it issubmitted that New Health is a public interest litigant and has brought the litigation inthe public interest to test the view that fluoridation was not medical treatment withoutconsent and did not involve the delivery of a medicine. Counsel for New Healthsubmits that the appellant was ultimately successful on the former question. Secondly,New Health maintains that the outcomes could have been different if the finding thatfluoridation was medical treatment had been made earlier. The submission is that theCrown has been the beneficiary of the fact that this finding was not made earlier.Our assessment[6] We see no basis to depart from the usual position that costs follow the event.To the extent that there is a public interest aspect to these two appeals that interest ismet by reducing the award of costs to $5,000.3 But to require the Crown to meet allof the costs of these two appeals would not be just in the circumstances of the case.The Regulations appeal had little merit with an inevitable effect on the Medicines Actappeal. The Court's finding in the fluoridation appeal as to s 11 does not alter that.4Against that background, it is speculative to suggest the approach to the MedicinesRegulations may have been different had the position with respect to s 11 beenclarified earlier.[7] For these reasons, New Health must pay the second respondent costs of $5,000.Solicitors:Wynn Williams Lawyers, Christchurch for AppellantSimpson Grierson, Wellington for First RespondentCrown Law Office, Wellington for Second Respondent3 In a case of this duration with two counsel involved, an award of $15,000 would normally bemade.4 By a majority, albeit for different reasons, the Court concluded that although s 11 is engaged thestatutory power to fluoridate is not constrained by s 11 of the Bill of Rights.