COVID-19: Related cases

This page lists recent and upcoming active cases in the High Court involving COVID-19 matters.

Judgments involving COVID-19 matters are available on the COVID-19: Related judgments page.

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

CIV-2021-485-595

Status: Active (application on first cause of action unsuccessful)

Proceeding: Judicial review

Hearing now on: 3, 4 and 7 March 2022

Hearing on first cause of action: 8 November 2021. This was heard concurrently with CIV-2021-485-584: Four Midwives v Minister for COVID-19 Response.

Judgment, first cause of action: Four Midwives, NZDSOS and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3064 [12 November 2021]

Judgment, interim orders: NZDSOS and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3071 [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.

Grounded Kiwis Group Ltd v Ministry of Health

CIV-2021-485-556

Status: Active

Proceeding: Judicial review

Hearing updated: Set down for 14 and 15 February 2022.

Grounded Kiwis, a society that advocates for the interests of New Zealanders impacted by the COVID-19 managed isolation and quarantine system and New Zealand’s border policy in response to COVID-19, brings a claim for judicial review against the Minister for Health, the Minister for COVID-19 Response and the Chief Executive of the Ministry of Business, Innovation and Employment.  They challenge the Isolation and Quarantine Order and the Air Border Order, as well as the various systems that have been used for allocating the limited number of managed isolation places. This is on the basis that the decisions were unlawful or unreasonable for a number of reasons and particularly that the right of New Zealanders to enter New Zealand in s 18(2) of the Bill of Rights Act 1990 was breached.

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

CIV-2022-485-001

Status: Active

Proceeding: Judicial Review

Substantive hearing has been set for 15 February 2022 at 10am at the Wellington High Court.

Summary The matter is a Judicial Review challenging the validity of the COVID-19 Public Health Response (Specified Work Vaccinations) Order 2021. The parties also filed an application for interim orders seeking that the second and third respondents do not take any steps under the Order on 17 January 2022. A teleconference was held with Justice Cull on 12 January. Her Honour declined to make the interim orders sought.

 

Bailey v The Medical Council of New Zealand

CIV-2021-485-529

Status: Active

Proceeding: Judicial review

Hearing: Set down for 8 and 9 February 2022

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

The applicant is a registered medical practitioner who was referred to the Professional Conduct Committee for investigation as a result of video content relating to COVID-19.  She challenges that decision by way of judicial review. 

She also applied for interim orders to stop a Medical Council disciplinary process until the substantive hearing.  That application was heard on 17 November 2021 and was declined on the basis of the balance of convenience and interests of justice.

D & Ors v Minister of Health & Ors

CIV-2022-485-13

Status: Active

Proceeding: Judicial review

Hearing set down for 27 January at 10am for one day.

Summary Judicial Review challenging the approval and rollout of the COVID-19 vaccine to children aged 5-11.  Name suppression of the applicants applies until further order of the court.

Te Pou Matakana Ltd & Anor v Attorney General & Anor

CIV-2021-485-624

Status: Finished (application successful; MoH directed to complete review of decisions within three days)

Proceeding: Judicial review

Hearing: was held on 25 November 2021 at 10:00 am.

Judgment: Te Pou Matakana Limited v Attorney-General [2021] NZHC 3319 [6 December 2021]

Summary: Challenge brought by Māori health provider Te Pou Matakana/Whānau Ora Commissioning Agency (WOCA) against second decision made by the Ministry of Health to not to provide individual data of unvaccinated Māori, to enable targeted delivery of COVID-19 vaccination services.  The Court had previously directed the Ministry to remake its decision (see CIV-2021-485-553 below).  The Privacy Commissioner was granted leave to intervene.

Court upheld all grounds of review, finding the 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.

Four Midwives v Minister for COVID-19 Response

CIV-2021-485-584

Status: Finished (application unsuccessful)

Proceeding: Judicial review

Hearing: 8 November 2021. This was heard concurrently with NZDSOS's first cause of action in CIV-2021-485-595: NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General.

Judgment: Four Midwives, NZDSOS and NZTSOS v Minister for COVID-19 Response [2021] NZHC 3064 [12 November 2021]

Summary: See above for NZDSOS Inc & NZTSOS v Minister for COVID-19 Response & Attorney General.

Reddington & Ors v Attorney General

CIV-2021-485-515

Status: Finished (claim abandoned)

Proceeding: Judicial review

Members of the Armed Forces brought a judicial review claim against the Attorney-General and the Chief of Defence Force, challenging a directive made by the Chief of Defence Force requiring members of the Armed Forces to be vaccinated against COVID-19 and which stipulates that if a member continues to refuse without valid medical reasons or exceptional organisational or personal reasons, a discharge process be initiated.

They challenged the decision to issue this directive on the basis that it was illegal due to the form of the directive, inconsistent with the Armed Forces Discipline Act 1971, and inconsistent with the New Zealand Bill of Rights Act 1990.

The case was abandoned following the passing of the COVID-19 Response (Vaccinations) Legislation Act 2021.

Four Aviation Security Service Employees v Minister of COVID-19 Response & Ors

CIV-2021-485-509

Status: Finished (application unsuccessful)

Proceeding: Judicial review

Hearing: 21–22 October 2021, 10:00 am, Wellington High Court, Courtroom 3

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

Media release: 8 November 2021

Summary:  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.

Te Pou Matakana Limited (t/a Whānau Ora Commissioning Agency) and Anor v Attorney-General

CIV-2021-485-553

Status: Finished (application successful; decision referred back to MoH)

Proceeding: Judicial review

Hearing: was held on 26 October 2021, 10:00 am, Wellington High Court, Courtroom 4

Judgment: Te Pou Matakana Limited v Attorney-General [2021] NZHC 2942 [1 November 2021]

Summary: Māori health provider Te Pou Matakana/Whānau Ora Commissioning Agency (WOCA) 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.

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

CIV-2021-404-1889

Status: Finished (application successful; decision referred back to MBIE)

Proceeding: Judicial review

Hearing: was held on 27 October 2021

Results judgment: [2021] NZHC 2869 [28 October 2021]

Reasons judgment: [2021] NZHC 2897 [29 October 2021]

Summary: 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.

GF v Minister of COVID-19 Response & Ors

CIV-2021-485-474

Status: Finished (application unsuccessful)

Proceeding: Judicial review

Hearing: 20 September 2021

Judgment: [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.