Judge rejects scale costs and orders the Crown to foot the entire $349,107.98 bill
A family caregiver will have her full $349,107.98 legal bill met by the Crown, Chief Judge Christina Inglis ruled on 13 July 2026.
The dispute began in 2019, when the caregiver claimed she was an employee of the Ministry of Health while caring for her severely disabled adult son at home. The Employment Court agreed in 2021, the Court of Appeal disagreed, and the Supreme Court ultimately confirmed she was an employee and sent the case back to the Employment Court.
Three questions were left for Chief Judge Inglis: whether the Crown should pay indemnity costs, whether the caregiver's son should stay in the case as a second defendant, and whether her personal grievance claim could proceed.
Both sides accepted the caregiver was entitled to costs at the highest scale category. Scale costs would have come to $122,356.59. Her actual costs were $349,107.98. She argued the Crown's conduct, the complexity of the litigation and its public interest justified a full award.
The judge declined to find the Crown's conduct exceptionally bad, the usual trigger for indemnity costs. But she held that the complexity of the case and its public interest justified the Crown meeting the caregiver's costs in full, applying the Court's equity and good conscience jurisdiction. The judge noted the proceeding was a test case affecting thousands of caregivers and disabled people, and that the Crown had gained clarity about its legal obligations from it. The Supreme Court had earlier described the Crown's funding offer as "unreasonable (if not unlawful)".
At the close of the costs submissions, the judge invited the Crown's counsel to identify a reason why it might be fair for the caregiver to be left out of pocket. Counsel said she could not think of one, and neither could the judge.
Chief Judge Inglis ordered the Crown to pay the caregiver's actual costs of $349,107.98 plus GST, disbursements of $2,689.59, $2,000 towards the costs of an unpaid advocate, and $5,000 in costs on the costs application, all with interest and payable within 14 days.
The judge also struck out the caregiver's son as a second defendant. His status had been settled, as he was never his mother's employer, and the remaining issues concerned the caregiver's entitlements as an employee. Through his litigation guardian, the son argued he still had an interest in how many hours of care would be funded, but the judge found his presence was no longer necessary and declined to grant him intervenor status.
The Crown's final application sought to strike out the caregiver's personal grievance for disadvantage, arguing it had already been decided or was out of time. The judge disagreed. Only a grievance for discrimination had been substantively determined by the earlier courts, and the disadvantage grievance had never been finally resolved.
Applying the Court's equity and good conscience jurisdiction, the judge held that personal grievances turn on substance rather than technicalities, and that the three year limit had been met once the grievance was first brought before the employment institutions. Unjustifiable disadvantage, she said, was "a broad concept that can encompass a wide range of employer actions or omissions".
The application to strike out the grievance was declined, leaving the claim to continue to the reserved remedies hearing. The caregiver has signalled she intends to file further claims in the Employment Relations Authority, which the Crown has indicated it will likely oppose. Costs on the interlocutory applications were reserved.
