Application for protective costs order in advance – High Court Rules 2016 r 7.49 – application to vary, rescind or transfer earlier decision (being Gordon v Attorney-General [2022] NZHC 2143 (Palmer J)) – Mental Health (Compulsory Assessment and Treatment) Act 1992 – New Zealand Bill of Rights Act 1990 – application for declaration of inconsistency – applicable principles – public interest – jurisdiction – public policy – academic commentary, policy reports, and precedent – earlier decision is rescinded on the basis it is “wrong” – application for full protective costs granted on the basis that the plaintiff will not seek costs if they are successful, and where counsel is acting pro bono

Gordon v Attorney-General [2022] NZHC 2801 (Palmer J)

Please note: this decision rescinds the recent decision of Gordon v Attorney-General [2022] NZHC 2143 (Palmer J) and is thought to be the first time a protective costs order has been made in New Zealand.

Associate Professor Sarah Gordon had applied for a declaration about interpretation of aspects of the Mental Health (Compulsory Assessment and Treatment) Act 1992, including compulsory treatment.

If the declarations sought were not made, then Gordon also applied for a declaration of inconsistency with the New Zealand Bill of Rights Act 1990.

Gordon then applied for a protective costs order in advance of a forthcoming hearing, and this application was declined in Gordon v Attorney-General [2022] NZHC 2143 (Palmer J) where it was held that the court is best placed to consider costs matters and public interest factors after any hearing.

Gordon now applies pursuant to the High Court Rules 2016 r 7.49 for that earlier decision declining a protective costs order to be rescinded, varied or alternatively transferred to the Court of Appeal.

Applicable principles – assessment of further evidence, including Gordon’s evidence as to her concern about exposure to potential costs and the personal cost of that versus the public interest factor in the proceedings – acknowledgement that the Human Rights Commission now seeks to intervene and the significance of the potential human rights factors that are signalled by their interest in intervening – whether the matter of protective costs would benefit from fuller argument, as the decision now in question was made on the papers – extensive discussion of public policy factors, and recognition of the importance of Gordon’s ability to get access to justice – weighing of the extent of financial evidence provided, including argument by the Crown as to the contrast between the purported significance of the case versus Gordon’s unwillingness to fund it – acknowledgement of new evidence provided that clarifies Gordon’s position – detailed reference to both New Zealand and overseas case law, academic commentary and New Zealand policy reports – importance of clarity within the law, notwithstanding that reform is potentially forthcoming

Held: the earlier decision of Gordon v AttorneyGeneral [2022] NZHC 2143 (Palmer J), is rescinded on the basis it is “wrong”. Gordon’s application for full protective costs is granted and costs will not be awarded against G if she is unsuccessful, on the basis that Gordon will not seek costs if she is successful and where counsel is acting pro bono.

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin.