NZ HEALTH PROFESSIONALS ALLIANCE INC v ATTORNEY-GENERAL [2021] NZHC 3322

NZ HEALTH PROFESSIONALS ALLIANCE INC v ATTORNEY-GENERAL [2021] NZHC 3322[6 December 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-178[2021] NZHC 3322UNDER the Declaratory Judgments Act 1908 and theNew Zealand Bill of Rights Act 1990IN THE MATTER of Part 1 s 8 (regarding new ss 14(2) and15(2)) and Part 2 s 15 of the AbortionLegislation Act 2020BETWEEN NEW ZEALAND HEALTHPROFESSIONALS ALLIANCEINCORPORATEDPlaintiffAND THE ATTORNEY-GENERAL OF NEWZEALANDDefendantOn the papersCounsel: I C Bassett for PlaintiffD J Perkins and G M Taylor for DefendantJudgment: 7 December 2021JUDGMENT OF ELLIS J (COSTS)[1] Earlier this year I declined the plaintiff's application for a declaration thataspects of the Abortion Legislation Act 2020 were inconsistent with a number of therights confirmed by the New Zealand Bill of Rights Act 1990, including freedom ofconscience and the freedom to manifest religion or belief.1 I found that the provisionsin question did not limit those rights and (in the alternative) even if they did, weredemonstrably justified in a free and democratic society.1 New Zealand Health Professionals Alliance Inc v Attorney-General [2021] NZHC 2510.[2] In relation to costs, I said:[194] I did not hear from the parties on costs. My inclination is that theyshould follow the event in the ordinary way, calculated on a 2B basis. I wouldbe inclined to certify for second counsel.[195] But if there is some relevant matter that counsel need to draw to myattention, or if agreement on that front cannot be reached, memoranda of nomore than three pages in length are to be filed within 15 working days of therelease of this judgment.[3] The parties are agreed that a 2B costs classification is appropriate and that—ifthat classification is applied here—the quantum would be $37,032.87.[4] But the plaintiff says that no costs should be awarded against it because therewere material and significant matters of public interest at stake in the proceeding.2Reliance is placed on r 14.7(e), which provides that, despite the usual rule, the courtmay refuse to make an order for costs or may reduce the costs otherwise payable underthose rules if—the proceeding concerned a matter of public interest, and the party opposingcosts acted reasonably in the conduct of the proceeding Costs and NZBORA claims[5] The starting point is that, ordinarily, costs should follow the event.3 Ifsuccessful, the Crown is entitled to costs just as other litigants are.4 But it is alsoaccepted that a different approach may apply in NZBORA litigation. In Attorney-General v Udompun Glazebrook J for the majority explained:5[186] In this area it may not always be appropriate to allow costs to followthe event. It is important to remember that Baigent damages are awarded onlywhere other remedies are not sufficient and awards are, in any event, modest.Applying the normal costs rules in such circumstances may discouragelitigants from bringing BORA claims. This would clearly have the result ofweakening BORA protections.[6] Hammond J agreed, saying:2 High Court Rules, r 14.7(e).3 Rule 14.2(1)(a).4 See, for example, Reefdale Investments Ltd v Commissioner of Inland Revenue (2004) 17 PRNZ229 (HC).5 Attorney-General v Udompun [2005] 3 NZLR 204 (CA).[223] In principle, BORA should not be watered down by leaving personswith no incentive or an inability to bring proceedings. This is because BORAplaces an affirmative obligation on the "judicial branches of the governmentof New Zealand" (s 3(a)) to "affirm, protect and promote" (preamble toBORA) the provisions of that enactment. An obligation of that strength is notdischarged by the application of "usual" costs rules.[224] There is some indication in the case law that although, generallyspeaking, to date Courts have tended to assert that merely because litigation isof a "public interest" or "test case" variety that is not a licence to depart fromthe "usual" regime for costs. Where there is a government (or governmentagency) involved in a case involving fundamental human rights, that may bea circumstance to alter the usual exercise of a costs discretion (see Ahnee vDPP [1999] 2 WLR 1305 at 1315 (PC), per Lord Steyn, and Nuredine vMinister for Immigration & Multicultural Affairs (1999) 91 FCR 138 atp 145).[7] Considerations of the kind discussed here play out in a number of ways. Insome cases, they manifest in awards of increased or (more unusually) indemnity costsfor a plaintiff who succeeds in a claim under NZBORA. In cases where a plaintiff ina claim under NZBORA has failed, they may result in costs lying where they fall.[8] A number of factors have been identified as potentially relevant to the exerciseof the Court's discretion in such cases. These may include:6(a) whether the issues raised were of general public importance and/orwhether the public interest required that those issue be resolved;(b) whether the matter of public interest said to be at issue goes beyond theprivate interests of the plaintiff;(c) whether the plaintiff had a financial interest in the outcome of theproceeding;(d) whether the proceeding had genuine merit; and(e) whether the plaintiff has acted reasonably in the conduct of thelitigation.6 See for example Wright v Attorney-General [2019] NZHC 59 at [10] and the discussion in ShaneCampbell "Reviewing Costs in Public Interest Litigation" [2015] NZLJ 246.Discussion[9] It cannot be (and, I think, is not) disputed that:(a) the plaintiff's claim was centrally—and, indeed, solely—concernedwith the rights and freedoms confirmed by the NZBORA; and(b) the proceedings were conducted reasonably by the plaintiff.[10] I also acknowledge, as I did in my substantive judgment, that:(a) the members of the plaintiff sincerely believe that the provisions of theALA limit, or are inconsistent with, their s 15 freedom to manifest theirbelief that abortion is morally wrong; and(b) that aspect of the claim, at least, was a tenable one, as evidenced (forexample) by Crown Law's letter of advice to the Attorney-Generalabout the Abortion Legislation Bill, dated 1 August 2019.7[11] And I accept that the issues raised by the claim about the scope and applicationof both s 15 and s 13 of the NZBORA were novel (in a New Zealand context) andimportant.[12] But whether or not any limit on those rights could be demonstrably justifiedunder s 5 of the NZBORA was a different matter. In light of the strong competingrights and interests (discussed at length in my substantive judgment), it is difficult tosee that that aspect of the plaintiff's claim was ever likely to succeed.8[13] Nor could it be said that there was an ambiguity in the provisions of the ALAthat needed judicial clarification. What they required was plain on their face.Moreover, they had been the subject of extensive submissions during the7 Indeed, the letter also advised that the proposed provisions were inconsistent with a conscientiousobjector's s 13 freedom of conscience, although the Crown's position on that had changed by thetime of the hearing before me.8 This was never a case like Attorney-General v Taylor [2018] NZSC 104, where it had always beenaccepted by the Attorney-General that the legislation in question limited rights in a way that couldnot be justified under s 5.Select Committee process and had been preceded by a comprehensive report from theLaw Commission.[14] A slightly more complex question is whether the plaintiff's claim wasconcerned with the private interests of the plaintiff's members or the public interestmore widely. From the perspective of the members of the plaintiff, their cause is amatter of wider public interest; they are motivated by their beliefs that "unbornchildren" require their protection and that abortion effectively equates to murder. Butequally, there is a considerable section of New Zealand society that does not share thatbelief—or at least consider that there are more compelling and countervailing mattersat play.[15] Ultimately, however, the way in which the claim was (and had to be) advancedwas on the basis that the new law affected the individual practices of the plaintiff'smembers—their individual rights of conscientious objection. I decline to view it inwider terms than that. The real matters of public interest raised by the new law(whether abortion should be regulated by criminal law or treated as a health issue, andwhere the balance should be struck between access to abortion services andconscientious objection) were matters that had already been considered by Parliamentin the course of the legislative process; they were not directly engaged by the plaintiff'sclaim.[16] The factors canvassed above pull in competing directions. In the end, Iconsider that a modest reduction in the costs otherwise payable strikes the rightbalance here. I therefore order that the plaintiff is to pay to the defendant costs in thesum of $25,000.00, plus disbursements._____________________Rebecca Ellis JSolicitors:Brace Legal for PlaintiffCrown Law, Wellington for Defendant