New Health New Zealand Incorporated v Minister for Covid-19 Response - [2025] NZCA 592

Judicial review - Mistake of fact - New Zealand Bill of Rights Act 1990 

In response to COVID-19, a number of orders were made imposing face covering (masking) requirements. The appellant brought judicial review proceedings challenging two of those orders: the COVID-19 Public Health Response (Protection Framework) Order 2021 made on 30 November 2021 (the 2021 Order) and the COVID-19 Public Health Response (Masks) Order 2022 made on 12 September 2022 (the 2022 Order) (together, the Orders). The Orders were made under the COVID-19 Public Health Response Act 2020 (the Act). The appellant's challenge was dismissed in the High Court and the appellant was ordered to pay costs of $117,889.50 to the respondents. 

The substantive appeal, concerning the lawfulness of the face covering requirements imposed by the Orders, is dismissed. The appeal against the High Court costs decision is allowed. The costs order is set aside and replaced with an order that the appellants pay the respondents $29,472.38 in costs. There is no order in this Court as to costs. 

Is the appeal moot? Held: Yes. 
The appeal is moot given the 2021 Order and the 2022 Order have been revoked and the primary legislation under which the Orders were made has been repealed. However, the Crown did not seek to rely on mootness and the issues raised by the appeal are of sufficient legal and public importance for the matter to be heard and determined by the Court, despite the appeal being moot. 

Were the Orders made in reliance on a material mistake of fact? Held: No. 
The Court discussed the law on mistake of fact as a judicial review ground, concluding that in New Zealand there are two categories that fall under the heading of mistake that are an available ground of judicial review: a material mistake as to an established fact and mistake arising as a result of a flawed factual evaluation. The appeal raised only the first category of mistake. The Court also discussed the relevance of evidence post-dating the Orders, concluding that expert evidence impeaching or justifying the decision to make the Orders with the benefit of hindsight was irrelevant. 

Having regard to the respondents' evidence, the appellant failed to demonstrate that face coverings were not an effective measure to contribute to preventing or limiting the risk of the outbreak or spread of COVID-19, as a matter of established fact. That was the appellant's pleaded mistake of fact. Essentially, the appellant erroneously attempted to elevate the Cochrane reviews (which concerned randomised controlled trials conducted to evaluate the effectiveness of face coverings) into the definitive work on whether or not face coverings are effective. 

The appellant attempted to reformulate their argument, contending that the Ministers making the Orders were instead labouring under a mistake of fact because they did not appreciate there was uncertainty as to the effectiveness of face coverings. However, the Court was not satisfied that certainty as to the effectiveness of face coverings was a material factor in the Ministers' decisions to make the Orders. The evidence of the Ministers confirmed that they were aware the effectiveness of face coverings depended on a number of factors and ultimately face covering requirements were merely one part of a suite of measures. 

Did the Orders both engage and unjustifiably limit the right to refuse to undergo medical treatment? Held: No. After noting the parties' competing submissions on the point, the Court decided it was unnecessary in the context of a moot appeal, and without greater argument and analysis about international jurisprudence on the topic, to seek to determine the scope of the words "medical treatment" in s 11 of NZBORA. That was because the Court was well satisfied that, if the face covering requirements did limit the right in s 11, that limitation was demonstrably justified. In addition, the Court considered the Ministers were satisfied that the Orders "[did] not limit or [were] a justified limit on the rights and freedoms in [NZBORA]", as required by s 9(1)(ba) of the Act. 

Was the Orders' limitation on freedom of expression unjustified? Held: No. 
The Orders' limitation on freedom of expression was demonstrably justified because there was a substantial body of expert opinion that face coverings were effective in restricting the spread of COVID-19. The restriction on the right of expression was to a limited extent - it did not prevent expression, applied only to certain environments, and only for certain periods of time. It was also proportionate to the need for which it was imposed. 

Was the costs award against the appellant too high? Held: Yes. 
The Court considered there was significantly more public interest in the proceedings than the Judge in the High Court suggested. Acknowledging the recent decision in Chief of Defence Force v Four Members of the Armed Forces, where the Supreme Court did not see reason to depart from the ordinary rule that the successful party should be awarded costs, the Court viewed the present case as quite different given the much wider group of people affected by the face covering requirements. The Court also noted the measure of success the appellant had in the High Court in respect of the right to freedom of expression being engaged, along with the level of disbursements incurred by the respondents. As against that, the Court had regard to the Judge's concerns with the way the appellant conducted its case in the High Court. 

The Court considered the appropriate result was to order the appellant to pay 25 per cent of the respondents' total costs and disbursements in the High Court. That reflects the high public interest in a challenge to the face covering requirements, tempered with the deficiencies in how the challenge was conducted.