New Zealand College of Midwives Incorporated v Attorney-General
[2024] NZHC 2173
•5 August 2024
NAMES OF REPRESENTATIVE GROUP MEMBERS AND COMMERCIALLY SENSITIVE INFORMATION SUBJECT TO CONFIDENTIALITY ORDERS AS PER MINUTE OF MCQUEEN J DATED 1 SEPTEMBER 2022 – THE COURT FILE IS NOT TO BE SEARCHED WITHOUT PERMISSION OF A HIGH COURT JUDGE IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-558
[2024] NZHC 2173
IN THE MATTER OF a claim for breach of contract, equitable estoppel, restitution and under the New Zealand Bill of Rights Act 1990 BETWEEN
THE NEW ZEALAND COLLEGE OF MIDWIVES INCORPORATED
First Plaintiff
YH
Second PlaintiffFH
Third PlaintiffAND
THE ATTORNEY-GENERAL
Defendant
On the Papers Counsel:
R A Kirkness, K E Cornegé and K Webster for the Plaintiffs
P H Courtney, S M Kinsler, K C Grant and C E Sinclair for the Defendant
Judgment:
5 August 2024
JUDGMENT OF GWYN J
(Plaintiffs’ application to file supplementary (reply) briefs of evidence)
THE NEW ZEALAND COLLEGE OF MIDWIVES INCORPORATED v THE ATTORNEY-GENERAL [2024] NZHC 2173 [5 August 2024]
[1] This an application by the plaintiffs for leave to file supplementary briefs of evidence. The defendant does not oppose admission of the supplementary briefs, except for portions of the proposed Reply Brief of James Mellsop, dated 20 July 2024 (second Mellsop brief). It is those disputed portions that are the subject of this judgment.
Introduction
[2] This proceeding concerns a settlement agreement dated 21 December 2018 (2018 Settlement Agreement) between the first plaintiff, the New Zealand College of Midwives Inc (College) and the Ministry of Health (Ministry). The 2018 Settlement Agreement relates to the development of a new model for the funding and contracting of lead maternity care (LMC) midwives.
The claim
[3]The claim is brought by the College and two representative plaintiffs.1
[4] The plaintiffs have pleaded five causes of action against the Ministry. The factual matrix underlying each of the causes of action is the same or overlaps to a substantial degree. The claims are summarised below.
Breach of contract
[5] The plaintiffs allege that, in breach of the 2018 Settlement Agreement, the Ministry failed to:
(a)implement a national midwifery agreement by 1 July 2020 or subsequently;
(b)pay LMC midwives a fair and reasonable service price for their work, based on a blended payment model, from at least 1 July 2020; and
1 The claim is brought as a representative proceeding pursuant to r 4.24 of the High Court Rules 2016, on behalf of the named plaintiffs and other lead maternity care midwives, who are referred to as “Group members”.
(c)provide the ability for LMC midwives to renegotiate the fees paid to them on an annual basis.
[6] The plaintiffs also allege that, in breach of the 2018 Settlement Agreement, the Ministry failed to:
(a)take all necessary steps to fulfil the terms of the 2018 Settlement Agreement; and
(b)work together with the College in good faith to fulfil their commitments under the 2018 Settlement Agreement.
[7] In response, the defendant pleads that the 2018 Settlement Agreement was not a binding contract, as the means of achieving agreement on every term essential to the parties’ bargain was not dealt with. It says that, to the extent a binding contract was entered into, it is a process agreement in which the parties indicated an intention to be immediately bound to work together on the specified elements (national midwifery agreement, national provider organisation, and a process to make a fair and reasonable service price), and they did so.
[8] The defendant also says the 2018 Settlement Agreement does not refer to implementation, because the College knew that significant changes to the funding and contracting arrangements for LMC midwives needed to be approved by Ministers/Cabinet and there was a range of reasons why Ministers/Cabinet did not ultimately proceed with the specified elements.
[9] The defendant also says that the Primary Maternity Services Notice 2021 (the 2021 Notice) is a statutory contract under which LMC midwives provide their services and claim and receive payment. The 2021 Notice has legislative effect; the College was consulted about changes to it and LMC midwives continued to provide their services under it, including claiming payment of improved remuneration and modules for service that became available over the period covered by this proceeding. LMC midwives have received annual increases in the remuneration for which they could claim since 2016.
[10] The defendant denies the Crown failed to take all necessary steps to fulfil what the 2018 Settlement Agreement required of it, or that it did not act in good faith on the principles and objectives the parties had agreed to work towards. Intervening factors meant the parties were not able to reach a mutually acceptable outcome.
[11] The defendant says that, to the extent the 2018 Settlement Agreement imposes legally enforceable obligations, they have not been breached.
Equitable estoppel
[12] The plaintiffs allege that the Ministry is estopped in equity from acting contrary to representations made by the Ministry that the renumeration of LMC midwives would be fair and equitable; in line with government pay equity principles; free from systemic undervaluation; and free from any element of gender-based differentiation.
[13] In response the defendant says that equitable estoppel should not apply in a public law setting, as it would have the effect of interfering with a policy or political process affecting the public generally. In any event, there were no clear, enforceable representations and nor can the plaintiffs demonstrate reliance and detriment.
Restitution (quantum meruit)
[14] The plaintiffs allege that the representative plaintiffs (the second and third plaintiffs) and Group members provided midwifery services from 1 July 2020, which the Ministry desired, benefited from and freely accepted or acquiesced in, in anticipation of a national midwifery contract being concluded and payment of a fair and reasonable service price for work done. The plaintiffs allege that no such contract has been concluded and nor have LMC midwives been paid fair and reasonable remuneration (based on a blended payment model with the ability to renegotiate annually).
[15] The defendant pleads that quantum meruit does not apply because the 2018 Settlement Agreement is separate from the statutory contract under which LMC midwives provide their services (the 2021 Notice). The Crown has paid for the services it received, at the statutory rate.
New Zealand Bill of Rights Act 1990 (unlawful discrimination)
[16] The plaintiffs allege that the terms and conditions of work for LMC midwives, including remuneration, issued by the Crown under the 2021 Notice has resulted in different treatment based on gender between LMC midwives (an historically and currently female-dominated profession) and comparative professions in the health sector (that have been historically and/or are currently male-dominated professions). The plaintiffs allege that this different treatment constitutes gender-based discrimination for the purposes of s 19(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights) that cannot be justified for the purposes of s 5 of the Bill of Rights.
[17] The defendant says the plaintiffs cannot show “discrimination” as a matter of fact. None of the occupations considered by the plaintiffs are exact comparators for LMC midwives; any different treatment between LMC midwives and the pleaded occupations is not based on gender and even if there is a limitation on LMC midwives’ rights, any different treatment is justified.
[18] One of the remedies sought in each of the plaintiffs’ causes of action is damages and/or equitable compensation and/or restitution for the second and third plaintiffs (and for each Group member) in an amount representing the difference between the fees they have received under the relevant Maternity Services Notice and a fair and reasonable service price.
[19]In order to establish the plaintiffs’ alleged loss, the Court will need to assess:
(a)what LMC midwives (including, in Phase one, the two representative plaintiffs) currently earn under the Primary Maternity Services Notice (the Notice), which is issued by the defendant pursuant to s 94 of the Pae Ora (Healthy Futures) Act 2022 (and before that pursuant to s 88 of the New Zealand Public Health and Disability Act 2000); and
(b)what is a “fair and reasonable” service price for LMC midwives.
[20] Each of the parties has adduced expert economic evidence relevant to the exercise of determining what is a fair and reasonable service price for LMC midwives. That economic evidence includes Mr Mellsop’s evidence.
Trial
[21]The trial is set down for six weeks, commencing on 5 August 2024.
[22] The proceeding has been divided into two phases. Phase one is to determine the common questions of fact and law said to arise in respect of the representative plaintiffs and the Group members. Phase two (if necessary) will determine the quantum of the claims of each of the Group members.
The application
[23] By application dated 8 July 2024, the plaintiffs have sought leave to file supplementary (reply) briefs of evidence for five witnesses whose evidence relates to the plaintiffs’ first to fourth causes of action. The defendant has filed a notice of opposition which opposes leave being granted in respect of one of those briefs of evidence, in part. That is the second Mellsop brief.
[24] The application in relation to those opposed portions of the second Mellsop brief is made under r 9.8 of the High Court Rules 2016 (Rules).
Relevant legal principles
[25]Rule 9.8 of the Rules states:
9.8 Supplementary briefs
(1)A party wishing to offer a supplementary brief must serve it as soon as possible.
(2)The acceptance and use of the supplementary brief in court will be at the discretion of the trial Judge.
[26] The Court has a wide discretion under r 9.8 to allow supplementary written statements. Justice Doogue recently held in Body Corporate 384825 v Queenstown Lakes District Council:2
[32] The Court is given a wide discretion under r 9.8 to allow supplementary written statements to be accepted and used. The following principles guide the exercise of the discretion:
(a)Leave will necessarily depend on the particular facts and circumstances of the case.3
(b)A balancing of where the overall justice of the case lies is required, weighing the prejudice to the party that served the supplementary brief if leave is reserved against that to other parties if leave is granted;
(c)The fact that the supplementary brief improves the evidential case of the party seeking to offer it is not, without more, a basis for refusing leave;
(d)The prejudice may be especially significant where the supplementary brief is provided at a late stage in the proceeding;
(e)Granting an adjournment to allow more time to respond and/or ordering costs that reflect the extra work required in responding to the supplementary evidence may minimise prejudice resulting from a grant of leave;
(f)The effect on public resources if a trial needs to be vacated due to the supplementary evidence being provided at the last minute.4
(g)To the extent that further evidence is a response to evidence adduced by the defendants, the plaintiff is entitled to provide that further evidence orally.5
(h)Leave to adduce further evidence that improves a party’s position may be allowed if the trial date is a sufficient time away.6
[27] Briefs of evidence in reply are not specifically contemplated under the Rules. As Andrew J observed in Body Corporate 406198 v Argon Construction Ltd:7
2 Body Corporate 384825 v Queenstown Lakes District Council [2021] NZHC 1207 at [32].
3 Signal v Berry [2016] NZHC 1126 at [24].
4 Body Corporate 354085 “Perspective Apartments” v Auckland Council (No 1) [2016] NZHC 200 at [9].
5 Currie v Goodwin HC Auckland CIV-2002-404-001820, 27 August 2004.
6 Madretsma Farm Ltd v Frizzell HC Napier CP 9/94, 28 March 2001 at [5].
7 Body Corporate 406198 v Argon Construction Ltd [2023] NZHC 1072 at [14].
There are many authorities which doubt whether “reply” evidence is permissible at all outside a submissions hearing based on affidavit evidence, where there is no cross-examination by default, and reply evidence is expressly provided for.8
[28] In Minister of Education v Carter Holt Harvey Ltd Fitzgerald J postulated that the lack of specific provision for reply briefs:9
…is likely so because the trial process involves oral evidence, where important points of reply can be led as part of a witness’s evidence in chief or will be elicited by counsel complying with his or her obligation under s 92 of the Act. Evidence “in reply” elicited in these ways will be far more helpful and informative to the Court than a reply brief which mechanically responds to each paragraph of a defence witness’s brief.
[29] There is relatively little case law directly addressing the proper scope of evidence “in reply”. In Minister of Education v Carter Holt Harvey Ltd Fitzgerald J canvassed some of that case law.10 The Court succinctly distilled the authorities in the following terms:11
… reply briefs of evidence are not a vehicle for engagement on every aspect of a defence witness’s brief and/or reiteration or expansion of the plaintiff’s primary evidence. Nor are they a vehicle for introducing wholly new matters.
… “new matters” does not extend to all the matters in a defendant’s evidence. While Mr Flanagan is correct that Carter Holt’s evidence is “new” in that it is the first time the Ministry has seen Carter Holt’s evidential response to its case, what must be new is a new “matter” or “topic” on which it is fair and just for the Ministry to have the opportunity to respond.
Mr Mellsop’s economic evidence
[30] Mr Mellsop filed his first brief of evidence on 24 November 2023. It provided his expert opinion on:
(a)The conceptual economic framework for assessing a “fair and reasonable” price for LMC midwifery services.
8 SCC (NZ) Ltd v Samsung Electronic NZ Ltd [2018] NZHC 2780 at [201]–[208]; see also Body Corporate 354085 v Auckland Council (No 1), above n 4. I acknowledge a different approach and a focus on reply briefs was taken in Minister of Education v Carter Holt Harvey Ltd [2020] NZHC 1539.
9 Minister of Education v Carter Holt Harvey Ltd, above n 8, at [128].
10 At [129]–[136].
11 At [137] (emphasis in original).
(b)The types of practical methodologies that can be used to determine a “fair and reasonable” price for LMC midwifery services given that framework.
(c)Application of some of these practical methodologies to determine a “fair and reasonable” price for LMC midwifery services as at July 2020.
(d)A mechanism that could be used to translate forwards or backwards in time a particular determination of a “fair and reasonable” price for LMC midwifery services.
[31] In arriving at his expert opinion on these issues, Mr Mellsop carried out his own benchmarking exercises, being an intertemporal adjustment of the service price for LMC midwives in 1996 and a purchasing price parity adjustment of the income of Ontario community-based midwives.
[32] Mr Mellsop then used this analysis to determine a fair and reasonable service price for LMC midwives as at July 2020. That date reflects the plaintiffs’ pleading that, in addition to guaranteeing LMC midwives a “fair and reasonable” service price, the 2018 Settlement Agreement required a “national midwifery contract to be implemented by July 2020” and that contract would necessarily have included a contract price for midwifery services that was fair and reasonable. The plaintiffs also plead that the fair and reasonable service would be subject to annual negotiation, pursuant to the 2018 Settlement Agreement, which states that the national agreement “will include the ability to renegotiate price annually”.
[33] In response to Mr Mellsop’s first brief of evidence, the defendant filed and served economic evidence from Kieran Murray and Dr Deborah Cobb-Clark. The second Mellsop brief is stated to respond to that evidence.
[34] The four aspects of the second Mellsop brief which have been challenged by the defendant are:
(a)the comparator analysis for “Straightforward FTE 2020” contained in table 1 and paragraphs 65 to 67 (“Straightforward FTE analysis”);
(b)the “Ontario 2020 (First Brief)” comparator analysis contained in table 1, footnotes 3, 24, 29 and 30, paragraph 61 and Appendix E (“Ontario comparator analysis”);
(c)the intertemporal benchmarking analysis at paragraphs 37 to 40 and 122 (“Intertemporal benchmarking analysis”);
(d)the analysis as to whether payments are “fair and reasonable” contained in Appendix A (“Fair and reasonable analysis”); and
(e)Appendices D to F.
The plaintiffs submit that:
(a)Mr Mellsop’s proposed supplementary evidence follows his original methodologies and does not require analysis of “new” data;
(b)The defendant’s expert witnesses have the data and skill necessary to consider Mr Mellsop’s additional analysis; and
(c)A draft without prejudice copy of Mr Mellsop’s proposed reply brief was provided to the defendant on 8 July 2024. The evidence is unlikely to be called until the third week of hearing (the week starting 19 August 2024) and the defendant’s experts will likely be giving their evidence in the last two weeks of the hearing (the weeks starting 2 and 9 September 2024).
[36] The plaintiffs also say that the challenged portions of the evidence relate to a significant issue in the proceeding (what is a fair and reasonable service price) and will provide assistance to the Court. It is technical economic evidence which is better adduced in written, rather than oral, form, for the benefit of both the Court and the defendant’s witnesses. As in Body Corporate 406198, the evidence is not just relevant,
but important. As a matter of fair trial and ensuring that the plaintiffs have a fair opportunity to establish the damages for which they contend, the evidence should be adduced.
[37] The defendant objects to the introduction of those parts of the evidence set out at [35] above, on the basis that it contains substantial new analysis not contained in Mr Mellsop’s original brief of evidence and which Mr Murray has not had an opportunity to analyse. The defendant says the analysis cannot be characterised as reply evidence, but rather is introduced as new scenarios aimed at determining a fair and reasonable price for primary maternity services. The defendant also says that it is seriously prejudiced, receiving the proposed new evidence two weeks out from trial. Any further brief of evidence from Mr Murray would need to be adduced part-way through the trial. Both parties acknowledge that it is not appropriate for expert evidence dealing with economic analysis to be given orally.
Challenged portions of the second Mellsop brief
[38]The specific portions of the evidence are discussed below.
“Straightforward FTE analysis”
[39] The plaintiffs say that the “straightforward FTE analysis” relates to the benchmarking exercises carried out in Mr Mellsop’s first brief. In his brief, Mr Murray argues that Mr Mellsop’s indexed approach does not account for “how LMC midwives are actually paid.” Mr Murray states: 12
The actual average income claimed in 2022 by LMC midwives caring for 40 to 50 births was $162,218 (see Table 6 above); that is, actual incomes increased by 61 per cent compared to the average income in 2014. Actual income claimed by this group of LMC midwives was therefore 21 per cent to 35 per cent higher than if payments had been based on their 2014 income and indexed for wage and price inflation.
[40] In his second brief, at [65]–[67] and Table 1, Mr Mellsop sets out his estimates of the payments that an LMC midwife working 45 straightforward cases would have received in 2020 under the Notice and compares those figures to benchmark pay
12 Brief of Evidence of Kieran Murray (1 May 2024) at [6.33] (footnotes omitted).
ranges. He says he uses the same set of modules used by Mr Murray at Table 2 of the latter’s brief of evidence, but for a different year. Mr Mellsop says this analysis is directly responsive to Mr Murray’s evidence. Mr Mellsop’s analysis is prepared based on data that was available to the defendant and has been used by Mr Murray in his own brief.
[41] The defendant responds that Mr Mellsop does not engage with the actual claims data which Mr Murray has analysed, but rather creates a new hypothetical scenario for his comparator analysis, based on his own estimate of take-home pay for LMC midwives in 2020. Mr Mellsop does not model how LMC midwives are actually paid (that is, higher actual average income in 2020 than in 2014), which is the point made in Mr Murray’s evidence.
[42] Mr Mellsop’s calculations are based on the payment schedule to the Notice to that extent it is straightforward and, it appears, readily capable of analysis and response by Mr Murray. It is not clear what the defendant has in mind when it says Mr Mellsop’s underlying assumptions are not explained. Some at least of those assumptions appear to be included in the Notes at Table 6. To the extent there may be other, unexplained assumptions, that will properly be a matter for cross-examination by the defendant.
[43] I accept that this portion of the second Mellsop brief is more in the nature of an expansion of his original evidence, rather than reply evidence. I do not grant leave to the plaintiffs to adduce paras [65]–[67] and Table I of the second Mellsop brief.
Ontario Comparator analysis
[44] In his first brief of evidence Mr Mellsop concluded that community-based midwives in Ontario, Canada appeared to be the best overseas benchmark, as part of ascertaining a “fair and reasonable” price. Mr Mellsop undertook a benchmarking exercise that estimated the income that an Ontario midwife would have earned in July 2020. He calculated an equivalent New Zealand price, based on purchasing power parities (PPP), in particular PPP for private consumption. Mr Mellsop’s view is that PPPs are the appropriate price conversion metric because midwifery is a “non- tradeable” service, in the sense of not being globally tradeable.
[45] In the second Mellsop brief, Mr Mellsop notes that since his first brief was filed and served, the OECD’s PPPs for private consumption (now renamed to PPPs for household final consumption expenditure) has been updated. The 2020 PPP of 1.1848 used by Mr Mellsop in his first brief has increased to 1.2008 for the same year. Mr Mellsop has updated his calculations to reflect this update.
[46]The defendant says (and the plaintiffs accept) that this is not evidence in reply.
[47] Mr Murray’s affidavit agrees with Mr Mellsop that PPP is a relevant measure when comparing prices and incomes across countries. However, the defendant says Mr Mellsop’s recalculation updates only one parameter and does not account for any other factor that may have changed; it is unclear whether, by doing so, he has introduced bias into his calculations.
[48] The submissions filed for the plaintiffs in support of this application state that “[t]he approach and reasoning [in relation to the adjusted PPP information] are the same as for the equivalent analysis in the First Mellsop Brief.”
[49] I accept that the PPPs is the only parameter of a number that is changed in the second Mellsop brief. But it is a significant factor and I conclude that it is relevant updating evidence of assistance to the Court. There is minimal prejudice to the defendant in allowing it in.
Intertemporal benchmarking analysis
[50] There are two relevant aspects to Mr Mellsop’s proposed evidence on intertemporal benchmarking.
Extension for years 2021, 2022, and 2023
[51] In his first brief Mr Mellsop calculates a fair and reasonable service price and provides a mechanism that could be used to translate a price forward or backward in time.
[52] In his second brief Mr Mellsop extends his intertemporal indexing to 2021, 2022 and 2023. The submissions for the plaintiffs state that this is “in response to Mr Murray’s criticism” and the basis for Mr Mellsop’s calculations has not changed from his first brief; he has applied the mechanism set out in that first brief to the additional years. In that sense it is not “new analysis”.
[53] The defendant says it is not evidence in reply: it is not a response to Mr Murray (whose comments responded to Mr Robertson’s evidence) and Mr Mellsop’s analysis does not refer to Mr Murray. Mr Murray has undertaken a different analysis to that covered by Mr Robertson. Further, the indices data used in the further analysis was available at the time of the first brief of Mr Mellsop. This is new evidence, introduced too late for the defendant to respond.
[54] I accept this is new evidence, not in reply, which could have been adduced in Mr Mellsop’s first brief. I do not grant leave to adduce this evidence.
Intertemporal benchmarking analysis based on Eddy evidence regarding the number
of cases per year
[55] Mr Mellsop’s intertemporal analysis based the hours worked in 1996 on the Co-design Project Report (prepared jointly by representatives of the Ministry of Health and representatives of the College). The report recorded that, in 1996, “NZCOM [the College] recommended that the ‘best practice time allocation’ for a straightforward client was 37.5 hours per case, with a recommended caseload of 40 to 50 cases per year (midpoint 45).”
[56] The second Mellsop brief recalculates his intertemporal benchmarking evidence assuming that LMC midwives work fewer hours now than they did in 1996. The recalculation is said to respond to alternative evidence from Alison Eddy for the plaintiffs, that the recommended caseload was for 50–75 women per year across the period 1993–2002. Mr Mellsop reproduces his intertemporal benchmarking analysis using 62.5 cases, which is the midpoint of Ms Eddy’s evidence of the College’s recommended caseload in 1996, as between 50 and 75 women per year.
[57] Mr Mellsop says this does not materially change the intertemporal estimates set out in his first brief of evidence. The plaintiffs say this ensures the Court has an evidence-based assessment of the implication of Ms Eddy’s evidence of the College’s recommended caseload on Mr Mellsop’s analysis. It reproduces Mr Mellsop’s original intertemporal benchmarking with one assumption changed; it is not a new approach or model, but a change to an input.
[58] I accept the defendant’s submission that this does not in fact respond to Mr Murray’s points that: (a) there is no reliable measure of actual hours worked in 1996 compared to 2020 and Mr Mellsop has not analysed whether LMC midwives have in fact increased the number of hours worked on a straightforward case; and (b) the Co-design Project Report does not provide enough detail to determine whether all midwifery time is captured in the 1996 best practice time allocation for a straightforward case. In that sense it is not reply evidence.
[59] I agree that the evidence is new, rather than reply evidence and that allowing it in at this point would prejudice the defendant in being able to adequately respond. I do not grant leave to adduce this evidence.
“Fair and reasonable” analysis
[60]Mr Murray’s relevant evidence is that:
(a)“… increases to the LMC payment schedule [for straightforward cases] outpaced inflation [CPI] between 1996 and 2023, and therefore increased in real, or inflation adjusted, terms”.
(b)“… payments to LMC midwives increased in real terms since 2014, whether assessed relative to the rate of inflation or to salaries and wages as measured by the indexes utilised by Mr Mellsop”.
[61] Mr Mellsop’s proposed evidence in reply13 is put forward on the basis that Mr Murray’s evidence suggests that the two factors at [60] above, show that LMC
13 Reply Brief of Evidence of James Mellsop (20 July 2024) at [10] and Appendix A.
midwives are being paid a fair and reasonable price. The second Mellsop brief then puts forward a revised intemporal benchmarking analysis as to what is a fair and reasonable price.
[62] However in his second brief Mr Mellsop acknowledges that Mr Murray does not argue that his analyses suggest LMC midwives are being paid a fair and reasonable price.
[63] I agree with the defendant that Mr Mellsop’s revised methodology does not in fact respond to Mr Murray’s evidence and the modification to Mr Mellsop’s original methodology to factor in whether the price benchmark was fair and reasonable at the time, and any changes in the scope of the LMC midwife role, is introduced too late. It does not provide adequate time for the defendant to assess and respond.
[64]I do not grant leave to adduce this evidence.
Result
[65] The plaintiffs have leave to adduce the Ontario Comparator analysis evidence, but not the other disputed evidence contained in the second Mellsop brief.
[66]I make no order as to costs.
Gwyn J
Solicitors:
Tompkins Wake, Hamilton Meredith Connell, Wellington
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