COVID-19: Related judgments

Case name: NZDSOS Incorporated v Minister for Covid-19 Response

Case number: SC 150/2021

Citation: [2021] NZSC 163

Summary: application to leave to bring a direct appeal to this Court is dismissed

Judgment: PDF (43 KB)

Cost Judgment: PDF (154 KB)

Case name: David Simon Barton v R

Case number: SC 13/2020

Citation: [2020] NZSC 24 25 March 2020

Summary: Criminal Appeal - Application for leave to bring an appeal

Result:

A The application for an extension of time to apply for leave to appeal is granted.
B The application for leave to appeal is dismissed.
21 August 2020

Judgment: PDF (351 KB) 

Case name: Borrowdale v Director-General of Health

Citation: [2021] NZCA 520 2 November 2021

Summary: appeal dismmissed. Administrative Law. Judicial review.

Judgment: PDF (446 KB)

Case name: SANDHU v GATE GOURMET NEW ZEALAND LIMITED

Citation: [2021] NZCA 203 21 May 2021
Leave to appeal is granted on the following question of law:

Whether, in the absence of sickness, default, or accident, the minimum wage is payable for all of a worker’s agreed contracted hours of work

Case name: Borrowdale v Director-General of Health

Citation: [2020] NZCA 156 8 May 2020

Summary: Application for removal of judicial review proceeding challenging lockdown notices from High Court, and transfer to Court of Appeal, declined.

Judgment: PDF (182 KB) 

Case name: Nottingham v Ardern

Citation: [2020] NZCA 144 4 May 2020

Summary: Court of Appeal dismisses appeal against High Court decision to refuse to issue writs of habeas corpus. The measures taken by the Government in response to COVID-19 have not detained the appellants. Judicial review is the appropriate procedure for the allegations of unlawfulness made. Interim name suppression declined.

Judgment: PDF (236 KB) 

Case name Grounded Kiwis Group Inc v Minister of Health

Citation [2022] NZHC 1407 15 June 2022

Summary Declaratory relief following substantive judgment.

Judgment PDF (202 KB)

Case name David John Higgs v Minister of Immigration

Citation [2022] NZHC 1333   8 June 2022

Summary 

Judgment on Judicial decisions online

Case name Grounded Kiwis Group Incorporated v Minister of Health

Citation [2022] NZHC 832  27 April 2022

Summary Grounded Kiwis challenged elements of the MIQ system from 1 Sept 2021 to 17 Dec 2021 were unjustified limits on NZ citizens’ right of entry affirmed by s 18(2) of NZBORA. The respondents contended the system was a demonstrably justified public health response to the COVID-19 pandemic. Held: the system, where places in MIQ were available through a virtual lobby that did not prioritise citizens over others or on the basis of need or the length of time a person had been seeking to return, was not a justified limit on the s 18(2) process when demand for MIQ sufficiently exceeded supply. Emergency process did not sufficiently ameliorate this due to its tight criteria that was narrowly interpreted.

Judgment PDF ( 1.3 KB) and Media release PDF (208 KB)

Case name NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General

Citation [2022] NZHC 716  8 April 2022

Summary Unsuccessful judicial review challenge to the vaccine mandates in the health and disability, and education sectors. The mandates were established in October 2021. A Government announcement that they were to be discontinued in the education sector, and narrowed in the health and disability sector was made in March 2022. The Court held that the mandates were lawful as a demonstrably justified limit on the right to refuse a medical treatment when they were imposed, and that it was unable to conclude they were unjustified prior to the Government announcements notwithstanding that the increased transmissibility of the Omicron variant reduced the justification for the mandates. Criteria for exemptions from the mandate were also held not to be unreasonable.

Judgment PDF (525 KB)

Case name Tamaki v Police 

Citation [2022] NZHC 593 29 March 2022

Summary Successful bail variation appeal. Since Mr Tamaki was given a 24-hour curfew, all Covid-19-related restrictions on outdoor gatherings have been lifted. Such gatherings comprise Mr Tamaki's alleged offending. Therefore, little risk of re­ offending. Bail varied to permit a family holiday.

Judgment PDF (166 KB)

Case name Idea Services Ltd v Attorney-General

Citation [2022] NZHC 308 28 February 2022

Summary Application for declaration that immediate modification order made under the Epidemic Preparedness Act 2006 invalid. Held Order intra vires s 15, and therefore lawful at inception in April 2020. Order did not engage applicants's 17 BORA right but was a justified limit if it did.

Held despite no explicit statutory review requirement, Minister and Chief Executive of MBIE were required to periodically review the Order against s 15 requirements. Review obligation implicit in Act's text and purpose and also required by constitutional principle. The failure to undertake review until November 2021 was unlawful. Application allowed in part. Directions to reconsider Order against s 15 requirements .

Judgment PDF (488 KB)

Case name Yardley, Wallace and a Defence Force Worker v Minister for Workplace Relations and Safety, Commissioner of Police, Chief Of Defence Force, and the Attorney General

Citation [2022] NZHC 291 25 February 2022

Summary Judicial review proceedings brought by three Police and Defence Force workers against the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021. The High Court upheld the challenge, finding that the Order imposed an unjustified limitation on the applicants' rights, and that the limit was not demonstrably justified. The Court was not satisfied that the Order advanced the purpose for which it was created, namely to ensure the continuity of public services and maintain public trust in those services. The number of workers affected across Police and NZDF was small, and there was nothing to suggest internal vaccination policies could not achieve the objective. Further, the emergence of the Omicron variant meant that a threat existed for both vaccinated and unvaccinated staff and the Order did not make a material difference in that regard. The Order was accordingly set aside.

Judgment PDF (419 KB)

Media release PDF (171 KB)

Case name Broadbent v Chief Executive of the Ministry of Health 

Citation [2022] NZHC 159 12 February 2022

Summary  Application for writ of habeas corpus. Applicants detained in MIQ facility on their arrival in New Zealand. They had applied in advance for an exemption from MIQ allowing them to isolate at home. MBIE had declined to grant exemption. Applicants said decision was arbitrary, in breach of natural justice and unreasonable.

HELD: Even assuming the decision refusing exemption were invalid, the default position (in the absence of a valid decision ranting an exemption) was that the applicants were to be isolated in an MIQ facility. Their detention in the MIQ facility was therefore lawful. In addition, a habeas corpus application was not the appropriate procedure for considering the applicants' administrative law challenges to the decision. Application for a writ of habeas corpus refused.

Judgment PDF (218 KB)

Case name MKD & Ors v Minister of Health

Citation [2022] NZHC 67 1 February 2022

Summary Eight applicants with children aged between 5 and 11 seek judicial review of the provisional consent granted to Pfizer's paediatric vaccine and of the roll-out of the vaccine to children in that age group. They say the provisional consent was based on an error of law because there is evidence that the health risks of the paediatric vaccine outweigh its benefits. They also assert a failure to consider the Convention on the Rights of the Child and were motivated by irrelevant considerations including community spread and protection of vulnerable adults.
Pending a hearing of their substantive application, they applicants sought interim orders halting the paediatric vaccine roll- out to non-immunocompromised children aged 5 to 11 pending a hearing of their substantive review. Their concerns include that vaccination will be required for participation in school and extramural activities and that their children will be under significant social pressure to be vaccinated. 

The application for interim orders was declined. Insofar as the applicants have a qualifying right or interest to protect (which is doubtful, given that vaccination is not mandatory) , it is not threatened by the provisional consent; there are no plans to exclude children from educational services based on vaccination status. Moreover, the merits of the substantive case are weak; despite the existence of views to the contrary, the respondents ' evidence indicates that in granting the consent the Minister applied the correct statutory test and made an informed and reasonable assessment that the paediatric vaccine' s therapeutic value outweighed its risks. As well, the adverse repercussions (both public and private) of halting the roll-out were very significant and counted strongly against interim relief.

Judgment PDF (335 KB) 

Media release PDF (86 KB)

Case name Te Pou Matakana Limited v Attorney-General

Citation [2021] NZHC 3319 6 December 2021

Summary Judicial review by Maori health provider Te Pou Matakana/Whanau Ora Commissioning Agency of Ministry of Health decision not to provide individual data of unvaccinated Maori, to enable targeted delivery of COVID-19 vaccinations. Court upheld all grounds of review, finding Ministry: erred in fact and law in assessment of whether disclosure of the data was necessary under r 11(2)(d) of Health Information Privacy Code 2020; breached the applicants' right to natural justice through its consultation process; and acted inconsistently. Ministry directed to complete its consideration of provision of data in areas where it has not yet agreed to provide data, having regard to findings in judgment.

Judgment PDF (507 KB)

Case name Bailey v The Medical Council of New Zealand 

Citation [2021] NZHC 3168 24 November 2021

Summary judgment Dr Bailey's application for interim orders to stop a Medical Council disciplinary process is declined on the basis of the balance of convenience and interests of justice 

Judgment Bailey v The Medical Council of New Zealand [2021] NZHC 3168 [24 November 2021]

Case name Afghan Nationals v The Minister for Immigration

Citation [2021] NZHC 3154 22 November 2021

Summary Successful judicial review by wider members of families associated with the New Zealand Defence Force seeking to flee Afghanistan to join their family here.COVID-19 border closure did not provide reason to refuse visas. Long-standing visa applications could not be refused for that reason. Act required applications to be assessed in accordance with instructions in effect when visa applications made.Applicants would have the same rights to enter New Zealand as any other residents once visas granted. Further errors in failing to apply humanitarian exceptions which applied to those in the position of the applicants. Immigration New Zealand directed to reconsider the grant of visas in accordance with law.

Judgment PDF (473 KB)

Case name NZDSOS Inc and NZTSOS v Minister for Covid-19 Response

Citation [2021] NZHC 3071 12 November 2021

Summary NZDSOS and NZTSOS challenge the order requiring health and medical practitioners to be vaccinated in order to continue to work. They apply for interim orders preserving their position, which will be heard on 22 November 2021. Until then, they apply for interim interim orders preserving their position. That application is declined on the basis the merits of the argument are not likely to be particularly strong, and the balance of convenience does not favour interim interim orders for the next week.

Judgment PDF (184 KB)

Case name Four Midwives, NZDSOS and NZTSOS v Minister for COVID-19 Response

Citation [2021] NZHC 3064 12 November 2021

Summary Four midwives, NZDSOS and NZTSOS challenge the order requiring them to be vaccinated against COVID-19. They argue the order is not legally valid because the Act does not empower it to be made, if interpreted consistently with the right to refuse medical treatment under the Bill of Rights and the principle of legality. A second cause of action of NZDSOS and NZTSOS, that the Order is invalid because it is not a reasonable and justified limit on the right under s 5 of the Bill of Rights, has yet to be heard.

The words of the Act encompass the power to require a person not to associate with others unless vaccinated, and to be vaccinated in order to engage in an activity. Interpreting the empowering provision in light of its purpose and context does not detract from that. The right to refuse to undergo medical treatment under s 11 of the Bill of Rights is engaged here. No order can be made under the empowering provision that limits the right unless it is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society under s 5 of the Bill of Rights. In this case, the applicants do not argue the Order is an unjustified limit. The Bill of Rights does not require the usual purposive interpretation of empowering provision to be narrowed to mean that the Order is outside its scope. Indeed, the text of the Act explicitly indicates that Parliament envisaged that orders may be made which limit rights under the Bill of Rights, as long as the limits are justified under s 5. The common law principle of legality, which requires legislative limitations on fundamental rights to be clearly expressed, does not require a different interpretation.

The application is declined. The four midwives are anonymised in the judgment and their court file is not to be searched without permission of a Judge, for three years, to preserve their effective exercise of the right of access to justice, in light of concerns for them and their family members deriving from current social division.

Judgment PDF (483 KB)

Cost Judgment PDF (197 KB)

Case name K, B, L, N & Ors v Minister of COVID-19 Response & Ors

Citation [2021] NZHC 3012 8 November 2021

Summary judgment Challenge to Order requiring Aviation Security Service employees to be vaccinated dismissed. Order was within empowering provision notwithstanding the provision made no reference to vaccination as it helped to minimise the risk of outbreak or spread of COVID-19. Order limited the applicants rights to refuse to undergo medical treatment, but this was demonstrably justified under the Bill of Rights as vaccination contributed to minimising the risk of outbreak or spread. The Minister had not failed to take into account relevant considerations, or made an irrational decision. The Court commented on the desirability of vaccination mandates being addressed by primary legislation.

Judgment Four Aviation Security Service Employees v Minister of Covid-19 Response - [2021] NZHC 3012 8 November 2021

Media release 8 November 2021

Case name Te Pou Matakana Limited v Attorney-General

Citation [2021] NZHC 2942

Summary Māori health provider Te Pou Matakana/Whanau Ora Commissioning Agency sought judicial review of Ministry of Health decision not to provide individual data of unvaccinated Māori, to enable targeted delivery of COVID-19 vaccination services.
Court upheld two grounds: Ministry incorrectly applied rule 11(2)(d) of Health Information Privacy Code 2020, in particular it applied the wrong test as to whether disclosure of the information was necessary; and WOCA had a legitimate expectation that the Ministry's decision would be made in accordance with the principles of Te Tiriti o Waitangi, informed by tikanga, but it was not.

Ministry's decision set aside and Ministry directed to remake decision .

Judgment PDF (344 KB)

Case name: Bolton v The Chief Executive of the Ministry of Business, Innovation and Employment

Citation: [2021] NZHC 2897 [29 October 2021]

Summary results judgment: Results judgment. Application to judicially review decision declining request for exemption from MIQ and instead to self-isolate at home. Application granted. Respondents directed to reconsider the application. Reasons to follow.

Summary reasons judgment: Mr Bolton and his partner had applied for an exemption from isolation in an MIQ facility and instead proposed to self-isolate at home under strict conditions . MBIE declined the application. Mr Bolton and his partner's application for judicial review was successful. The references to "other needs" in clause 12 of the Isolation and Quarantine Order were to be interpreted more broadly than just medical needs as MBIE had done in declining the application. 

MBIE had made an error of law in saying that exceptional circumstances were required under clause 12 and in considering the application on the basis that the "other needs" were restricted to medical needs. As a result, MBIE had also failed to take into account a number of relevant considerations . 

Decision set aside. The respondents were directed to reconsider the application taking into account a number of relevant factors and balancing them against the risk of spread of COVID-19 having regard to the applicants' proposed precautions and current community circumstances.

Judgment: results judgment and reasons judgment

Case name: Tomkinson v Countdown Supermarket, Timaru

Citation TOMKINSON v COUNTDOWN SUPERMAKET, TIMARU [2021] NZHC 2742 [13 October 2021]

Summary: n/a

Judgment available on Judicial Decisions Online

Case name: GF v Minister of COVID-19 Response

Citation: [2021] NZHC 2526 24 September 2021

Summary Unsuccessful application for judicial review of the COVID-19 Public Health Response (Vaccinations) Order 2021.

The Order was delegated legislation validly made pursuant to section 9 of the Public Health Response Act 2020. The Associate Minister of Health was authorised to sign the Order by section 7 of the Constitution Act 1986. The process for creating the Order met all the prerequisites contained in the empowering act and the Order itself. The Order did not contain an unlawful right to override primary legislation. To the extent that the Order infringed the rights protected by ss 11 and 19 of the New Zealand Bill of Rights Act, the infringement was no more than was justified in a free and democratic society. In judicial review proceedings it was not appropriate for the Court to second-guess the policy decisions made by the Minister. Those decisions were logical and rational on the basis of the available evidence.

Judgment here

Case name: Mountfort v Cheam

Citation: [2021] NZHC 1535 25 June 2021

Summary: Application by lessor for possession of premises based on non-payment of rent. Lessee disputed that rent was outstanding, claiming she was entitled to an abatement of rent under cl 27.5 of the ADLS standard form of lease for the ongoing effects of COVID-19 rest rict ions . Alternatively, lessee sought relief against cancellation.

HELD: (1) Clause 27.5 applied only where the lessee was unable to gain access to the premises to fully conduct her business. During the period in issue, the lessee was able to gain such access. She had experienced a reduction in customers during that period, but that was because of the wider effects of COVID-19, rather than because of any inability (by the lessee or her customers) to access the premises. Lessor was accordingly entitled to cancel the lease.

(2) The lessee should be refused relief against cancellation if the Court is satisfied that there is no realistic chance the arrears, or the next rent commitments, can or will be met. The Court was not so satisfied. Relief granted, on strict conditions

Judgment here

Case name: Nga Kaitiaki Tuku Iho Medical Action Society v Minister of Health

Citation: [2021] NZHC 1107 18 May 2021

Summary: Applicants sought declarations under s 15 Judicial Review Procedure Act declaring the provisional consent granted for the Pfizer Comirnaty COVID-19 vaccine under s 23 Medicines Act was unlawful and vaccine rollout should therefore be halted. Held: There was a reasonably arguable case the consent given was ultra vires s 23, because it contemplates provisional consents will be given for a new medicine only where the medicine will be used to treat a limited number of patients-not all New Zealanders over the age of 16. But the public and private repercussions of hindering the country's vaccine rollout strongly militated against making the declarations. Interim orders declined.

Judgment available on Judicial Decisions Online

Case name: Fraser Wright Maddigan v New Zealand Police

Citation: [2021] NZHC 1035 11 May 2021

Summary: Maddigan found travelling near Te Anau after being told by Police, first in Queenstown and then at Te Anau, he must return to his home in Christchurch to comply with COVID-19 level 4 lockdown restrictions. Appeal against conviction after a guilty plea to a charge under Civil Defence Emergency Management Act for failing to comply with a Police direction. High Court held directions from the Police were likely reasonable and lawful to limit spread of the epidemic. No abuse by Police in charging Maddigan because of belligerent way he had refused to comply with directions. Judge had not denied Maddigan bail to pressure him into pleading guilty. But, legislation did not allow Judge to deny bail. Maddigan had given up his right to defend the charge, in part, to avoid being remanded in prison. Accordingly, his conviction and fine had to be quashed. Proceedings to go back to the District Court.

Judgment available on Judicial Decisions Online

Case name: Borrowdale v Director-General of Health

Citation: [2020] NZHC 2090 19 August 2020

Summary: High Court declares the requirement that New Zealanders stay at home for the 9 day period between 26 March and 3 April was justified, but unlawful. All other challenges to legality of early COVID-19 response fail.

Case name: R v Tarrant CRI-2019-009-2468

Summary: Sentencing of Brenton Harrison Tarrant to proceed under COVID-19 Alert level 2 – victims to have priority in courtrooms

Mander J Minute 18 August 2020 PDF (166 KB) 

Case name: Borrowdale v Director General of Health hearing 27 July 2020

Summary: Borrowdale v Director General of Health – Judicial Review Hearing

case synopsis: PDF (257 KB)

Case name: Graeme Robert Hattie v AG sued on behalf of Chris Hipkins in capacity as Minister of Health and Ors

Summary: Muir J vacates judicial review hearing and urges Director General of Health to urgently readdress terms of purported blanket suspension of compassionate leave from quarantine

Muir J Minute 8 July 2020 PDF (90 KB)

Case name: R v Tarrant CRI-2019-009-2468

Summary: High Court announces sentencing in Queen v Tarrant to commence Monday 24 August at Christchurch High Court: reasons

Mander J Minute 2 July 2020 PDF (153 KB) 

Case name: Christiansen v The Director-General of Health (reasons)

Citation: [2020] NZHC 887 4 May 2020 and [2020] NZHC 883 1 May 2020

Summary: Judicial review of DG's refusal to allow plaintiff to leave mandatory quarantine to visit father at end stage of life. Failure to consider compassionate grounds or exceptional circumstances justified interim relief to allow visit.

Reasons PDF (1.8 MB) Results PDF (40 KB)

Case name: Cama Products Ltd v Power Parts (2018) Ltd

Citation: [2020] NZHC 802 24 April 2020

Summary: Of relevance to the legal arrangements in place in response to COVID-19 is para [20].

Judgment available on Judicial Decisions Online

Case name: B v Ardern

Citation: [2020] NZHC 814 24 April 2020

Summary: Application for a writ of habeas corpus. Application declined.

Judgment: PDF (212 KB) 

Case name: A v Ardern

Citation: [2020] NZHC 796 23 April 2020

Summary: Application for a writ of habeas corpus. Application declined.

Judgment: PDF (216 KB) 

Case name: Hikaka v New Zealand Police

Citation: [2020] NZHC 716 7 April 2020

Summary: Driving offending, theft and breaching community detention and intensive supervision. Unsuccessful appeal from 19 months imprisonment. Home detention unsuitable. COVID-19 referred to as potentially relevant consideration.

Judgment: available on Judicial Decisions Online

Case name: Environmental Protection Authority v BW Offshore Singapore Pte Ltd

Citation: [2020] NZHC 704 7 April 2020

Summary: Successful urgent application by EPA to stay Environment Court decision staying abatement notice. Notice prevented oil mining vessel from disconnecting from pipes and leaving New Zealand . Stay granted by the EC allowed disconnection to proceed. HC identified potential legal errors by EC: it did not consider when a notice could be issued for change in circumstances notwithstanding earlier decision; undue focus on legal ownership; risks of vessel being required to stay potentially overstated; and it could not safely conclude that disconnection would be risk neutral. Significant change in circumstances meant that a notice could be issued to allow fuller assessment of potential adverse effects.

Judgment: available on Judicial Decisions Online  

Case name: Savill v AMFL Ltd

Citation: [2020] NZHC 655 25 March 2020

Summary: Application for without notice interim injunction to restrain mortgagee sale during period of COVID-19 Alert Level 4 restrictions. Application granted.

Judgment: available on Judicial Decisions Online  

Case name: Prescott v New Zealand Government

Citation: [2020] NZHC 653 25 March 2020

Summary: Court declined to grant the writ of habeas corpus

Judgment: available on Judicial Decisions Online 

Case name: R v Ekeroma and Fatu

Citation: [2020] NZHC 565 19 March 2020

Summary: Dismissal of further application to discharge jury in relation to COVID-19 developments: here, the Chief Justice's advice to practitioners.

Judgment: available on Judicial Decisions Online  

Case name: R v Ekeroma and Fatu

Citation: [2020] NZHC 562 19 March 2020

Summary: Reasons for dismissal of application by defendant for discharge of the whole jury, per Juries Act 1981, s 22. The application arose amidst COVID-19 issues and focussed on ss 22(2)(a) and 22(3)(a). Counsel was concerned jurors would "rush to justice", in the face of such issues. One juror discharged due to potential illness per s 22(2)(a). Remaining jurors willing to continue. At time of judgment, a "casualty" or "emergency" was not constituted, trial fairness not jeopardised. Application dismissed.

Judgment: available on Judicial Decisions Online 

Several cases are published on the District Court website,

Cases tag: COVID-19 DC website

Case Name, citation: VMR v Civil Avaiation Authority [2022] NZEmpC 5 [24 January 2022]

Case number EMPC 386/2021

Summary: The Employment Court declined an application for interim reinstatement in relation to four aviation workers at Christchurch Airport, employed by the Civil Aviation Authority. The four workers were dismissed as a result of their vaccination status. The Court considered that it was only weakly arguable that the workers were not covered by the COVID-19 Public Health Response (Vaccinations) Order 2021. It was also arguable that there were procedural issues with the dismissal. While this meant there was an arguable case for their dismissal being unjustifiable, the Court felt it was inappropriate to order reinstatement in circumstances where that would be likely to put the Civil Aviation Authority in breach of the Order.

Judgment (Employment Court website): here

Case Name: WXN v AUCKLAND INTERNATIONAL AIRPORT LIMITED [2021] NZEmpC 205 [23 November 2021]

Judgment (Employment Court website): here

Media Release (Employment Court website): here

Case name: "Employees" v Attorney-General

Case number: EMPC 280/201

Citation: [2021] NZEmpC 141 24 August 2021

Summary: The Employment Court found that it did not have jurisdiction to judicially review the COVID-19 Public Health Response (Vaccinations) Order 2021. It also found that it could not grant an injunction against all employers to prevent them from dismissing employees based on the Order. The applications will continue in the High Court and the Employment Relations Authority.

Judgment PDF (178 KB)