Link: Case Summary Document
Citation:  NZSC 89 (Supreme Court of New Zealand, Elias CJ, Tipping, McGrath, William Young JJ)
Acknowledgement:The Pemsel Case Foundation thanks The Australian Centre for Philanthropy and Nonprofit Studies for its contribution in the drafting of this Case Note.
The appellant, Right to Life New Zealand Inc (Right to Life), lost an appeal in the Supreme Court of New Zealand (New Zealand’s highest court) on 9 August 2012: see Right to Life New Zealand Inc v The Abortion Supervisory Committee  NZSC 68. In that case, Right to Life argued that the Abortion Supervisory Committee (the Committee), established under the Contraception, Sterilisation, and Abortion Act 1977 (NZ) (the Act) was not fulfilling its statutory functions and that, in consequence, abortions were being approved in circumstances in which they should not be permitted.
In the High Court (the court of first instance), Miller J held that the Committee was misinterpreting its functions and powers by reasoning that it was precluded from reviewing or scrutinising decisions of certifying consultants about abortions. Miller J found that the Committee was able to do so using its powers in section 36 of the Act to require consultants ‘to keep records and report on cases they have considered, for the purpose of performing its statutory functions’. The Court of Appeal overturned that decision, and certain aspects of the Court of Appeal’s decision were then appealed to the Supreme Court.
Although the substantive issues in the Supreme Court appeal were not argued successfully by Right to Life, each side was said by that court to have had partial success. Therefore, a costs order was made which meant that each side should bear its own costs since each side had had partial success (at ).
The central issue before the Supreme Court concerned interpretation of some sections of the Act. That issue demanded a consideration of whether the Committee had the power to review or scrutinise the decisions of certifying consultants and form its own view about the lawfulness of their decisions to the extent necessary to perform its functions. On this issue, Right to Life was partially successful.
In this application, Right to Life applied for recall of that part of the judgment of the Supreme Court which dealt with costs, on the ground that no direction was given in relation to the costs orders made in the Court of Appeal. That Court had ordered Right to Life to pay all the costs of a complex appeal back to the Abortion Supervisory Committee. Right to Life contended that, as a result of its partial success in the Supreme Court, the costs order of the Court of Appeal should be set aside.
Right to Life submitted that the approach of the Supreme Court differed from that of the Court of Appeal regarding some observations made by Miller J in the High Court (the court of first instance). The Court of Appeal was critical of the comments and said that they should not have been made and that they had no legal effect.
The Supreme Court said what Miller J said did not amount to conclusions on the issues before him and were the type of comments on the materials before the Court which it is not uncommon for a judge to make (at ). The sole point of agreement with the Court of Appeal decision was that the observations had no legal effect. Therefore, Right to Life argued that the Supreme Court had agreed with it on that point of the appeal. The Supreme Court, however, had made it clear in its judgement that comments such as those made by Miller J were not capable of being appealed against (at ). This is in line with long legal tradition which differentiates between comments made by a judge in passing (called obiter dicta), and the remarks of a judge which constitute the actual judgement (called the ratio decidendi).
Right to Life also argued in this application that since it had properly brought before the court issues relating to interpretation of the Act, then the costs order should be reconsidered.
Under the Supreme Court Rules, the Supreme Court of New Zealand may make any orders that seem just concerning the whole or any part of the costs and disbursements of a civil appeal or an application to bring such an appeal (Supreme Court Rules 2004, rule 44(1)). One of the principles identified by the Supreme Court in the application of this rule is that it will rarely be just to require a successful party to bear the full costs of its case.
The Supreme Court held in this application that it had upheld the Court of Appeal’s finding that the Committee was not empowered to review the decisions of clinicians in individual cases (at ). Therefore, Right to Life did not succeed on that argument. However, the Supreme Court also held that the Committee’s functions included undertaking general inquiries to keep under review the provisions of the abortion law and to ensure consistency of the administration of the law throughout New Zealand (at  and –). This represented a partial success for Right to Life.
The Supreme Court had also decided not to interfere with the Court of Appeal’s costs orders in its judgement of 9 August. On this point, the Court said in this application (at ):
That was a considered decision of the majority although the reasons for it were not stated explicitly. The decision took into account both parties’ partial success in the appeal, but also the many other grounds addressed in the Court of Appeal’s judgment on which Right to Life was not given leave to appeal by this Court. In these circumstances, this Court decided that the just outcome was to leave the Court of Appeal’s costs orders in place. All members of the Court are of the view that the appellant’s submissions show no basis for recalling that or any other aspect of this Court’s costs orders.
Therefore, the recall application was dismissed.
The case may be viewed at: http://www.nzlii.org/nz/cases/NZSC/2012/89.html
The substantive decision of the Supreme Court may be viewed at: http://www.nzlii.org/nz/cases/NZSC/2012/68.html
Implications of this case
This is yet another example of a nonprofit organisation pursuing litigation to the highest court, which has resulted in a very large costs burden for the organisation. There was already settled law in New Zealand on the legality of the legislation in question: Wall v Livingston  1 NZLR 734 (CA). This litigation sought to refine the interpretation of the legislation’s.