Court of Appeal Judgments of Public Interest

Appeal — Judicial Review Procedure Act 2016 — interim orders — decision

Appeal dismissed.

On 17 November 2025, on the advice of the Minister of Health (the Minister), the Medicines (Restriction on Prescribing Gonadotropin-releasing Hormone Analogues) Amendment Regulations 2025 (the Regulations) were made by Order in Council.  Their effect is to ban new prescriptions for gonadotropin-releasing hormone analogues, commonly known as “puberty blockers”, to treat gender dysphoria or gender incongruence in children or adolescents.  The Professional Association for Transgender Health Aotearoa Incorporated (PATHA) challenges the validity of the Regulations in the High Court.  PATHA also sought interim orders directing the Minister to take all necessary steps to suspend the Regulations pending further order of the Court.  The High Court declined that application but declared that the Crown should take no steps to enforce the Regulations pending determination of the application for judicial review.  PATHA appeals that decision.

Issue: Is the relief ordered by the High Court ineffective to preserve PATHA’s position?  

Held: No.  It would be extraordinary for any public body to facilitate a complaint about the prescription of puberty blockers as unethical because it is illegal, when doing so would disregard the intent of an order of the High Court which has, in effect, suspended the enforcement of the Regulations.  The same applies to private prosecution.  Any other view would be an unduly narrow and technical interpretation of the rule of law.  

Appeal — Te Ture Whenua Māori Act 1993 — Māori Land Court — statutory interpretation — customary rights — jurisdiction

Appeal dismissed.  There is no order as to costs.

The trustees of the Whatitiri Māori Reserves Trust (the Trustees) hold the land around the Poroti Springs, which is Māori freehold land, for the benefit of three hapū.  They, supported by the New Zealand Māori Council, filed a claim against the Attorney-General and the Northland Regional Council in the Māori Land Court.  They seek customary rights in the wai of the Poroti Springs, separate to the whenua, and damages for injury to those rights, relying on s 18 of Te Ture Whenua Māori Act 1993 (the Act).  The parties sought declarations in the High Court as to whether the Māori Land Court has jurisdiction to hear and determine the claims. 

The High Court determined that the Māori Land Court does not have jurisdiction to make orders for customary title in respect of freshwater or to order damages for injury to customary title to water under s 18.  The Trustees and the New Zealand Māori Council appeal.  The Attorney-General and the Northland Regional Council oppose the appeal.

Issue 1: Does the Māori Land Court have jurisdiction to consider claims to water separate from land?

Held: no.  The text of the Act alone does not provide a propitious context to find jurisdiction over water in light of the lack of references to water and s 18’s basis being s 129’s requirement that all land in New Zealand have one of six statuses.  A central purpose of the Act is to facilitate and promote “the retention, use, development and control of Māori land as taonga tuku iho by Māori owners, their whānau, their hapū and their descendants” and to “protect wāhi tapu”.  Tikanga and te ao Māori will often be important to the Act’s operation and interpretation, although the fit will not always be comfortable, and the statutory context must also be considered.

In te ao Māori, and at tikanga for the hapū, whenua is inherently and holistically interlinked with the rest of the environment, including wai.  As the Crown agrees, the Māori Land Court has jurisdiction to adjudicate on water rights that are incidents of freehold title under s 18(1)(a).  The pleaded claim, however, is to water only.  The Act’s focus is on the legal status of land.  The interconnectedness of wai and whenua in te ao Māori and at tikanga does not support the Māori Land Court having jurisdiction to consider a claim only to water separate from associated land: there is no land with any legal status on which to ground the claim within the Act.  Neither case law nor policy arguments affect that interpretation.  The Māori Land Court does not have jurisdiction to consider the claim under s 18(1)(a) or (h).

Issue 2: Does the Māori Land Court have jurisdiction to award damages for injury to water here?

Held: no.  consistent with the Privy Council’s decision in McGuire v Hastings District Council, neither does the Māori Land Court have jurisdiction under s 18(1)(c) to award damages for the lawful exercise of statutory powers under the RMA, which is what is sought. 

Intellectual property — trade marks — comparative advertising.

Zuru’s appeal is allowed. We make a declaration that the use of the word "LEGO" in Zuru’s original compatibility statement did not infringe the registered trade mark LEGO Lego’s cross-appeal is dismissed. 

Zuru is entitled to band A costs for a standard appeal. We certify for second counsel. 

Lego has been a leading manufacturer of plastic building bricks, baseplates and figures since the late 1940s, although the Lego name originated several years before that. Although the patents and copyright Lego once held on its basic brick and baseplate products have long since expired, the registered trade mark LEGO remains. Zuru markets their own plastic toy building bricks and related products under the trade mark MAX BUILD MORE. Zuru’s plastic toy brick products are compatible for use with Lego's products. Zuru wishes to tell consumers this and have sought to do so through the use of a compatibility statement on the packaging of their products: "LEGO® BRICK COMPATIBLE". The statement uses the word mark, but not the well-known LEGO logo. 

The High Court determined that the compatibility statements constituted infringing use under s 89 of the Trade Marks Act 2002 (TMA). He also found that the statements were not protected by the statutory defences of comparative advertising (s 94) or use indicating the quality of purpose of the goods (s 95) because the use had not been in accordance with honest practices. He did not, however, consider that Lego's counter-claims of passing off or breaches of the Fair Trading Act 1986 (FTA) were made out. Zuru and Lego each appeal these findings.

 The Court allows the appeal with reasons given by Ellis and Palmer JJ and concurring reasons given by Cooke J. 

Was the use here "use as a trade mark"? 

Per Ellis and Palmer JJ: No. Use as a trade mark in terms of s 89(2) is concerned with the orthodox function of a trade mark: as a badge of origin in the user. There will be no infringement if the Lego mark was not used by Zuru in a manner likely to be taken as indicating the trade origin of Zuru’s goods. The orthodox conceptual distinction between use "as" and use "of' a trade mark is reflected in the TMA as it had been in s 8(1A)(d) of the Trade Marks Act 1953. When enacting the TMA there was a conscious Parliamentary decision not to carry over the concept of deemed infringement by "importing a reference" to a sign or mark. The broader concept of use as a trade mark and use of trade mark function argued for by Lego is based on the expansive European approach, which is not the position in New Zealand. The defence provisions also do not support Lego's proposed interpretation of s 89(2). Section 89(2) operates as a gateway to infringement and, so, to the defence provisions, most of which are very clearly predicated on use as a trade mark (prima facie infringement) having first been established. Section 94 should not be interpreted as an exception or outlier in that regard. 

Here, the High Court erred in assessing whether the LEGO mark was used by Zuru as a badge of origin. The relevant question was whether relevant consumers would think that the LEGO mark is telling them the trade source of the Zuru bricks. While the LEGO mark is relatively prominent, larger than the rest of the descriptive phrase and LEGO has no further meaning beyond the connection with the toy products, its use here is purely descriptive. The compatibility statement would indicate to relevant consumers that the MAX bricks are not LEGO bricks but can be used with them. This is not a use with trade mark significance. 

Per Cooke J: Yes. Use of a trade mark requires the use of the mark to identify the trade mark owner's goods or services, but there is no requirement that there be misappropriation of the owner's intellectual property. The passing of the Trade Marks Act 2002, and particularly the inclusion of the new comparative advertising defence contained in s 94, indicates that the scope of permissible comparative advertising was intended to be clearly defined. A narrower conception of use, as the majority holds, would render s 94 otiose and frustrate the legislative intent. Here, LEGO is a made-up word, and any use of such a word is necessarily use as a trade mark. Section 89(2) is engaged here.

 
Was the comparative advertising defence engaged here? 

Per Ellis and Palmer JJ: As there was no use of a trade mark in terms of s 89(2), this question need not be determined. If that conclusion was wrong, however, the comparative advertising defence would apply to protect Zuru’s use here. 

Per Cooke J: Yes. The High Court Judge erred in narrowly construing the comparative advertising defence. Claims of equivalence are able to give rise to the defence, as well as claims of superiority. The use was also in accordance with honest practices. The statement was true, it was not unfair, there is no confusion arising from the use of the trade mark, and there was an open and obvious comparison. An aggressive comparison between goods to obtain a customer base is not dishonest practice, but rather is simply competition. As the claim of equivalency here was comparative advertising and it was in accordance with honest practices, the comparative advertising defence is engaged here. 

Was Lego's counter-claim of passing of and misleading conduct made out? 

Per Ellis and Palmer JJ (Cooke J agreed): No. At trial, Zuru rightly accepted that Lego’s trade mark had acquired strong goodwill and reputation. Accordingly, the FT A and passing off claims turned on whether Zuru had used the LEGO trade mark so as to confuse or deceive the relevant public. As the High Court Judge found, the counter-claims were not made out. The Judge was correct to reject the argument put forward by Lego's expert - Professor Klein - that consumers would be misled by Zuru’s packaging because reasonable customers view packaging as a whole, customers rely on a range of diagnostic cues when purchasing, and the MAX mark would be correctly taken as that of a brand.

HUMAN RIGHTS - declaration of inconsistency - hate speech - freedom from discrimination - s 61, Human Rights Act 1993 - s 19, New Zealand Bill of Rights Act 1990

Mr Hoban is a homosexual man. On 27 July 2017, he became aware of a "sermon" given by a pastor, who said:

"My view on homo marriage is that the Bible never mentions it so I'm not against them getting married ... As long as a bullet goes through their head the moment they kiss ... Because that's what it talks about - not homo marriage but homo death.'

Mr Hoban was "horrified" at the remarks and the lack of a response by the police or the Human Rights Commission. He applied to the Human Rights Review Tribunal for a declaration of inconsistency under s 92J of the Human Rights Act 1993 (HRA) on the basis that s 61 (the "hate speech" provision) was inconsistent with the right to freedom from discrimination as affirmed by s 19 of the New Zealand Bill of Rights Act 1990 because it only prohibits hate speech based on colour, race, or ethnic or national origins, and not hate speech based on sexual orientation.

The Tribunal found against Mr Hoban. Mr Hoban unsuccessfully appealed to the High Court. With leave, he now appeals again to this Court.

Is the legislative omission of the ground of sexual orientation from the protection against hate speech afforded by s 61 of the HRA discriminatory in terms of s 19(1) of the Bill of Rights Act?  Held: yes.

Those subjected to threatening, abusive or insulting language which excites hostility against people belonging to the prohibited grounds of discrimination in subss 21(I)(e)-(g) of the HRA receive the protection of ss 61 and 131, which acknowledges their s 19(1) right to freedom from discrimination. Those subject to language which excites hostility against people belonging to other prohibited grounds of discrimination in s 21(1) do not receive equivalent protection or acknowledgement. It is clear that this amounts to differential treatment: the statute puts some categories of prohibited grounds of discrimination in a special category which it denies to others. This differential treatment causes a disadvantage because no statutory remedy is provided for the unprotected group. It follows that prima facie discrimination has been established, contrary to s 19(I) of the Bill of Rights Act.

Is s 61 of the HRA a measure falling within s 19(2) of the Bill of Rights Act?      Held: yes.

Section 61 is a measure taken by the legislative branch captured by s 19(2). It was also enacted "for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination", irrespective of the fact it only assists or advances a limited class of those subject to unlawful discrimination. "Assisting" is broader than "advancing", which is evidenced by Parliament using both terms in s 19(2). A person may be assisted by receiving protection against hate speech through laws which aim to prevent such speech occurring and to provide remedies when they do: this is what has led to the commencement of the present proceeding.

The complaint about s 61 is not that it does not assist those to whom it applies, but that it is underinclusive and does not assist the position of persons subject to hate speech on other grounds. But this does not mean that s 61 cannot be regarded as a measure intended to protect those to whom it applies, or that it is not included ins 19(2). It is relevant thats 61 was always intended to have a limited ambit; other forms of discrimination were never intended to be covered. Section 19(2) of the Bill of Rights Act therefore applies to s 61 of the HRA. Section 61 therefore does not constitute discrimination in accordance with s 19(2).

Despite the other grounds then being moot, the Court went on to consider them to assist the Supreme Court in the event of an appeal.

Is the omission of sexual orientation ins 61 of the HRA a justified limit for the purposes of s 5 of the Bill of Rights Act?     

The Crown has a proactive justificatory role where there is a limit on a right. In this case Parliament has not curtailed an existing right: it has afforded protection to a limited class of the people likely to be subject to hate speech. The justification issue must be approached on the basis that the provision said to create the unlawful discrimination is one that seeks to protect those to whom it applies, which gives rise to such a significant issue here about deference and legislative choice. It is well-established that the court's review of a justification will be more intensive when the matter is more legal than political, social or economic. Here, there is a significant issue about the extent to which the Court passing judgment about justification risks trenching on matters which are for Parliament to determine.

A limited extension of the hate speech law to cover sexual orientation would raise legitimate questions about why a more comprehensive approach had not been taken. There is no consensus about expanding hate speech protections (as demonstrated by the history of the provisions). Further, a more extensive hate speech law could give rise to issues about freedom of expression. Parliament might consider that not all of the prohibited grounds of discrimination will require the same human rights response or engage the same rights to freedom of speech and religion-these are not straightforward assessments, and they are ones most appropriately made by the broadly representative legislative branch rather than through litigation. We emphasise however that the provisions to which Mr Butler referred in the United Kingdom, Ireland, Canada and Australia make the omission of a hate speech proscription based on sexual orientation in New Zealand increasingly anomalous.

Regarding the Crown's present justification argument, the discriminatory nature of s 61 is not demonstrably justified on the basis of New Zealand's international obligations alone. Whether the omission of hate speech on the grounds of sexual orientation is demonstrably justified is not logically answered by pointing to inclusion in the HRA of hate speech on the grounds of colour, race, or ethnic or national origins. The discriminatory effects of the section can be demonstrably justified by focusing on Parliament's original motivation for enacting s 61.  This approach might underplay the New Zealand legislature's own commitment to human rights. Furthermore, the question raised by s 5 must be addressed on the basis of current standards and an analysis which rests solely on the content of international instruments adopted 60 years ago seems inappropriate. With respect to the Crown's concern regarding freedom of speech, it is not clear why proscribing hate speech based on sexual orientation should impose any greater detriment to freedom of speech than was the case with the inclusion of colour, race, or ethnic or national origins in s 61. It is, in any event a matter for Parliament.

Should this Court issue a declaration of inconsistency?           Held: no.

As s 19(2) applies to s 61 of the HRA and the appeal cannot succeed, no declaration of inconsistency can be made. This Court endorses the High Court's expression of sympathy for Mr Hoban.

Result: The appeal is dismissed. There is no order as to costs.