New Zealand College of Midwives Incorporated v Attorney-General

[2024] NZHC 1544

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 1544

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

Y
Second Plaintiff

F
Third Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing:	10 June 2024
Counsel:	R Kirkness, K Webster and R Reeves for the Plaintiffs (by VMR) P Courtney, S Kinsler and C Sinclair for the Defendant
Judgment:	14 June 2024

JUDGMENT OF GWYN J

(Plaintiffs’ application for particular discovery and further and better particulars)

THE NEW ZEALAND COLLEGE OF MIDWIVES INCORPORATED v THE ATTORNEY-GENERAL [2024] NZHC 1544 [14 June 2024]

Introduction

[1]    This proceeding concerns a settlement agreement dated 21 December 2018 between the first plaintiff, the New Zealand College of Midwives Inc (College) and the Ministry of Health (Ministry) (2018 Settlement Agreement). 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

[2]The claim is brought by the College and two representative plaintiffs.1

[3]    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

[4]    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

(c)provide the ability for LMC midwives to renegotiate the fees paid to them on an annual basis.

[5]    The plaintiffs also allege that, in breach of the 2018 Settlement Agreement, the Ministry failed to:

1      The claim is brought as a representative proceeding pursuant to r 4.24 of the High Court Rules 2016 [Rules], on behalf of the named plaintiffs and other lead maternity care midwives, who are referred to as “Group members”.

(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.

[6]    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.

[7]    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.

[8]    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.

[9]    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.

[10]   The defendant says that, to the extent the 2018 Settlement Agreement imposes legally enforceable obligations, they have not been breached.

Equitable estoppel

[11]   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.

[12]   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)

[13]   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, benefitted 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).

[14]   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)

[15]   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 (a 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.

[16]   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.

Issues for trial

[17]The issues for trial will include the following:

(a)whether the 2018 Settlement Agreement was a legally enforceable contract and, if yes, whether the 2018 Settlement Agreement was a “process” agreement or committed the Crown to substantive policy outcomes;

(b)whether the Crown breached the Agreement by:

(i)failing to implement a national midwifery agreement by 1 July 2020; and

(ii)failing to pay LMC midwives a service price that was reasonable;

(c)whether the Ministry breached an obligation to take all necessary steps to fulfil the terms of the 2018 Settlement Agreement and/or whether the Ministry failed to work together with the College in good faith in addressing the matters in the Agreement;

(d)whether the Ministry made representations they can be estopped from relying on;

(e)whether the plaintiffs can satisfy the requirements for quantum meruit;

(f)whether there is different treatment between LMC midwives and pleaded occupations in analogous or comparable situations, on the basis of gender. If so, whether that treatment has a discriminatory impact. If yes, is the policy nonetheless a demonstrably justified limitation on rights.

Application for particular discovery and further and better particulars

[18]   On 3 May 2023 I made a tailored discovery order (by consent) requiring the defendant to discover, amongst other things, relevant Cabinet minutes and/or briefings to Ministers and “[a]ny other documents relevant to the issues as outlined in the pleadings”.

[19]   On 22 December 2023 the plaintiffs filed an application for particular discovery and further and better particulars from the defendant.

[20]   On 29 January 2024 the defendant filed its notice of opposition. It advised contemporaneously that some of the concerns raised in the application would be explained in the defendant’s evidence. On that basis the parties agreed to defer the application until after service of the defendant’s evidence.

[21]   Between 28 March 2024 and 1 May 2024 the defendant filed briefs of evidence in support of its defence. In the course of correspondence leading up to the filing of the plaintiffs’ application, and in the affidavit sworn in support of its opposition, the defendant provided some 24 documents informally (between October 2023 and January 2024). On 29 April 2024 the defendant filed a supplementary affidavit of documents and discovered a further 75 documents (including those documents provided informally). Also on 29 April 2024 the defendant filed its statement of defence to the second amended statement of claim.

[22]   Having considered the defendant’s briefs of evidence, the further discovery and the second amended statement of defence, the plaintiffs consider that:

(a)relevant documents are likely to exist and have not been discovered; and

(b)there is still a lack of particularisation in the second amended statement of defence.

[23]   On 10 May 2024 the plaintiffs filed an amended interlocutory application for particular discovery and further and better particulars.

[24]   That is the basis on which the plaintiffs say they have sought particular discovery and further and better particulars.

Legal principles

Discovery orders

[25]   Rule 8.19 of the High Court Rules 2016 (Rules) applies. A Judge can order a party to provide particular discovery if, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, there are grounds for believing that a party has not discovered a document or group of documents that should have been discovered.

[26]   The approach to an application under r 8.19 is summarised in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd:2

(a)Are the documents sought relevant, and if so, how important will they be?

(b)What are the grounds, and what is the probative value of those grounds, for the belief that the documents sought exist?

2      Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14].

(c)Is discovery proportionate?

(d)Weighing and balancing these matters, is an order appropriate?

[27]   Assessing proportionality involves balancing the time and costs of making the discovery against the potential value of the discovery.3 This cost/benefit analysis is not limited to financial costs, but includes broader considerations such as the amount at issue, the resources of the parties and delay to the proceedings.4

[28]   Rule 8.14 of the Rules is also relevant — a party must make a reasonable search for documents within the scope of the discovery order. There is no absolute obligation to seek out and discover every arguable document.5 What amounts to a reasonable search depends on the circumstances, including the following factors:6

(a)the nature and complexity of the proceeding;

(b)the number of documents involved;

(c)the ease and cost of retrieving a document;

(d)the significance of any document likely to be found; and

(e)the need for discovery to be proportionate to the subject matter of the proceeding.

Particulars order

[29]   Rule 5.48 of the Rules requires that a statement of defence must provide particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the Court, the plaintiff, and any other parties of the defendant’s defence.

3      Southland Building Society v Barlow Justice Ltd [2013] NZHC 1125 at [17], citing Karam v Fairfax New Zealand Ltd [2012] NZHC 887 at [137]–[142].

4      NSK Ltd v General Equipment Co Ltd [2015] NZHC 1979 at [22]–[23].

5 At [24].

6      Rules, r 8.14(2).

[30]   A defendant is required to provide “clear, direct, fair and substantial” answers to a plaintiff’s pleading, sufficient to enable a reasonable degree of pre-trial briefing and preparation.7 Rule 5.21 further provides that a Judge can require a party to file a more explicit pleading if they consider that the original pleading is defective or does not give sufficient particulars.

First particular discovery order

[31]   It is common ground that the Ministry contracted PricewaterhouseCoopers (PwC) on 24 May 2019 to “assess, compare and benchmark the LMC midwife role to inform the assessment of what a fair and reasonable service price might be”.8 PwC presented a report Fair and Reasonable Pay for an LMC Midwife on 27 September 2019. The parties are at odds as to the purpose for which the PwC report was sought and how it was used.

[32]   The plaintiffs point to disclosure by the defendant of two documents: first, a procurement document dated 4 September 2019, showing that the Ministry commissioned additional work from PwC to develop a “maternity service price model”, which looked at the sector and analysed three impacts (the PwC Extension Work); and, second, an Excel spreadsheet that the plaintiffs have been advised by the defendant is the output of the PwC Extension Work.

[33]   The first category of documents sought by the plaintiffs in the first particular discovery order is documents provided by PwC to the Ministry of Health, pursuant to the 4 September 2019 procurement document in relation to “an estimated high level service price for the delivery of community maternity services in New Zealand”.

[34]   The plaintiffs also seek disclosure of the “independent report” referred to in the New Spending Initiative Summary dated 15 January 2020, entitled “Implementing the Maternity Action Plan”, which is said to have been “completed in October 2019 that modelled the cost of paying ‘fair and reasonable’ remuneration to community

7      Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19; and Marley New Zealand Ltd v Skellerup Rubber Services Ltd [2013] NZHC 1653 at [17]–[19] and [41].

8      Brief of Evidence of Kassandra Jane for the defendant, dated 30 April 2024 at [9.35].

based-midwives”, to the extent it is a document that is separate from the first category of documents sought.

[35]The plaintiffs also seek:

(a)documents recording recommendations made or briefings provided by the Ministry to Ministers and/or Cabinet in relation to these work stream(s);

(b)documents recording decisions made by Ministers and/or Cabinet in relation to these workstream; and

(c)documents recording decisions made by the Ministry Executive Leadership Team (ELT) in relation to these workstream(s), including:

(i)the requests submitted to the ELT in October and November 2019 for “the full funding between what the Ministry was currently paying to LMC midwives and what the PwC modelling spreadsheet (the output of the contract extensions with PwC) had indicated might be necessary” and the ELT’s rejection of those requests in October and November 2019, which are referred to in paragraphs [10.7] and [10.8] of the brief of evidence of Kassandra Jane dated 30 April 2024; and

(ii)“the bid that was eventually approved by the Ministry’s ELT and submitted to Treasury in December 2019” and the ELT’s approval of that bid, which are referred to in paragraph [10.10] of the brief of evidence of Kassandra Jane.

Plaintiffs’ submissions

[36]   The plaintiffs say that other documents discovered by the defendant also show that the development of the maternity service price model in the PwC Extension Work included: discussion about a national provider organisation; a draft contract framework for primary maternity services provided by PwC to the Ministry; and a

potential national provider organisation structure document provided by PwC to the Ministry.

[37]   The plaintiffs say it is unlikely that the Excel spreadsheet is the only output from the PwC Extension Work. The spreadsheet has been discovered, but without any accompanying documents. The plaintiffs say the PwC Extension Work can be expected to have been the subject of internal communications within the Ministry and a briefing provided to the Ministry’s senior leadership (and potentially Ministers), none of which has been discovered. The plaintiffs refer to Ms Jane’s brief of evidence where she says: “The output of this additional piece of work informed early iterations of the 2020 Budget bid but the estimates provided by PwC did not ultimately form the basis of the Implementing the Maternity Action Plan new initiative budget bid.”9

[38]   As part of the Schedule A documents, the plaintiffs also seek disclosure of an “independent report” of October 2019 that is relied on in  an  internal  Ministry “New Spending Initiatives Summary” entitled “Implementing the Maternity Action Plan” (Summary). The plaintiffs say that it appears that the Summary informed the development of the Cabinet paper dated 24 April 2020 that was prepared by Associate Minister Genter in relation to the maternity sector.

[39]   The plaintiffs say the Summary was disclosed to them for the first time on   29 April 2024. It sets out an “Options Analysis” that includes consideration of whether the identified options would enable the Ministry to “meet the terms of the 2018 Settlement Agreement” as well as those that would result in a “breach” of the agreement.

[40]   The Summary also records that the formula and assumptions included under the headings ‘Funding Sought’ and the ‘Alternative Option’ in the Summary were informed by an “independent report” that “modelled the cost of paying ‘fair and reasonable remuneration’ to the community-based midwives … versus the current spend”.

9      At [9.39].

[41]   The plaintiffs say that the “independent report” of October 2019 does not appear to have been discovered. It is unclear what relationship there is (if any) between that independent report and the PwC Extension Work.

[42]   Accordingly, the plaintiffs seek discovery of the “independent report” of October 2019 as one of the Schedule A documents sought in the first particular discovery order.

[43]   The plaintiffs say that the brief of evidence filed by Ms Jane, dated 30 April 2024, describes events from which it can be inferred that there are further relevant documents falling within the Schedule A documents category. Ms Jane was a Senior Advisor – Maternity Services at the Ministry from January 2014 to March 2020 (inclusive). Ms Jane says she was instructed by Keriana Brooking, Deputy Director General – Health System Improvement and Innovation at the Ministry, to “request the full funding difference between what the Ministry was currently paying to LMC midwives and what the PwC modelling spreadsheet (the output of the contract extension with PwC) had indicated might be necessary”.

[44]   Ms Jane’s evidence explains that early iterations of the 2020 Budget bid which she prepared in accordance with Ms Brooking’s instructions in October and November 2019 “failed to make it through Ministry Executive Leadership Team (ELT) and peer review processes”. Her evidence is that in December 2019 a further iteration of the bid was made and approved by the Ministry’s ELT. The Budget bid was submitted to Treasury in December 2019.

[45]   The plaintiffs say that no documents showing the October 2019, November 2019 or December 2019 iterations of the 2020 Budget bid, or the responses of the Ministry’s ELT to those iterative budget bids, have been disclosed by the defendant. Nor have any documents showing engagement with Treasury been disclosed. The plaintiffs say it is clear these documents exist, are relevant and come within the category of Schedule A documents.

Defendant’s submissions

[46]   In response to the first particular discovery order, the defendant says the additional work carried out by PwC on maternity service price modelling is not relevant to the issues in the pleadings, because that work models future spending; this proceeding looks backwards.

[47]   The defendant also says the PwC modelling information is not relevant because it was not the basis on which the Ministry put forward its final position to Treasury for the 2020 Budget, which resulted in a successful bid for primary maternity services.

[48]   The Ministry says that it has nevertheless disclosed the relevant documents, being the Excel spreadsheet produced by PwC, which was provided on 29 September 2023. It says that document is the PwC “report”. It is the “independent report” referred to by the plaintiffs (see [34] above).

[49]   In relation to the October 2019, November 2019 and December 2019 iterations of the 2020 Budget bid, the defendant again says that the material sought is not relevant and, in any event, the Budget bids are set out in detail in Ms Jane’s brief of evidence of 30 April 2024.

Discussion

[50]   I do not accept that the product of the PwC Extension Work is not relevant to the proceeding. Even if, as the defendant submits, the PwC modelling information was not the basis for the Ministry’s final position in its 2020 Budget bid, that “final position” was not arrived at in a vacuum. As the defendant’s own evidence (Ms Jane) notes, the PwC Extension Work informed early iterations of the 2020 Budget bid.  Ms Jane also says that “[a] key aspect of preparing the 2020 Budget bid was quantifying the funding the Ministry might bid for, hence the contract extension with PwC”. The fact that the Ministry may not have accepted PwC’s advice about what it considered a fair and reasonable service price for LMC midwives, does not render the advice irrelevant. If, as Ms Jane’s evidence appears to suggest, that advice “failed to make it through” the ELT process, that in itself (and the reasons for it) are highly likely to be relevant to the plaintiffs’ claim.

[51]   The submission for the Ministry that the PwC Extension Work is not relevant because it is forward-looking is not clear to me. As Mr Kirkness submits, the purpose of the 2018 Settlement Agreement was to change the status quo; it was forward- looking.

[52]   I therefore accept that the content of the PwC Extension Work, and consequent decision-making by the Crown, are relevant to whether the Crown was taking steps consistent with whatever commitments it may be found to have made under the 2018 Settlement Agreement (including as to good faith and cooperation).

[53]   It appears that the PwC Excel spreadsheet is not the only document relevant to the PwC Extension Work. Although the spreadsheet was the only document received by the Ministry from PwC, counsel for the defendant, Ms Courtney, advised that there was a series of emails from the Ministry to PwC in relation to the Extension Work. Those documents are likely to also be relevant to the issues in the proceeding, readily locatable and should be disclosed.

[54]   The Crown says that the October, November and December 2019 iterations of the Budget bid are set out in detail in Ms Jane’s brief of evidence. Ms Jane’s evidence does include some discussion of Budget 2020, in particular the November 2019 iteration of the bid. It does not include copies of those bids. Significantly, Ms Jane says:

However, these October/November 2019 iterations of the bid failed to make it through Ministry Executive Leadership Team (ELT) and peer review processes. Keriana [Brooking] then instructed me to write the next iteration of the bid so that, over a number of outyears, the funding could be scaled up to reach the point of fair and reasonable pay. I was also instructed to change the initiatives that we were seeking funding for, adding item (c) listed below [introducing new modules to fund community midwives caring for women and whānau with complex needs]. I gathered that the change in direction, away from establishing a new funding and contracting arrangement for community-based midwifery services (as per the 2018 Settlement Agreement) and remaining with the Notice, had come from ‘above’ – which I understood to mean from the ELT.

[55]   From this I conclude that the Budget bids, and the responses of the Ministry’s ELT to each of the iterations, are relevant to the claim as pleaded and should be disclosed.

[56]   No order is made in relation to the “PwC Report” or the “independent report” as the defendant says these are the same document (the PwC Excel spreadsheet) which has already been disclosed.

Second particular discovery order

[57]   The second particular discovery order seeks documents relating to alleged decisions made by Cabinet, Ministers and/or the Ministry’s senior leadership (including the ELT) in relation to, among other things, the implementation of the 2018 Settlement Agreement.

[58]   The specific documents sought are set out in Schedule B to the plaintiffs’ amended application.

Plaintiffs’ submissions

[59]   The plaintiffs say these documents are relevant for the reasons outlined above in relation to the first particular discovery order. The documents are likely to exist and have not been discovered. Briefings or recommendations provided to, and any responses or decisions made by, the Ministry’s senior leadership, including the ELT, Ministers or Cabinet, in relation to the decisions and changes in policy directions alleged in the defendant’s second amended statement of defence should have been recorded in writing and appropriately maintained, stored and managed. The plaintiffs rely on the Cabinet Manual and the Public Records Act 2005, regarding obligations to do so.10

[60]   The plaintiffs also say it is not credible that the decisions, and the information relied on to make them, were made orally. That is because they involve consideration of a potential fundamental change in the way in which LMC midwives are contracted and paid, against the background of previous litigation brought by the first plaintiff and the Ministry’s entering into the 2018 Settlement Agreement with the first plaintiff.

[61]   The plaintiffs say that the explanation offered by Philip Knipe for the Ministry, that some Ministerial, Cabinet and Ministerial senior leadership documents, including

10     Cabinet Office Cabinet Manual 2017 at [3.22(b)]; and Public Records Act 2005, ss 17 and 18.

documents of previous Ministers, are not available because they have not been returned from the Minister’s offices, or did not come back signed, is inadequate and contrary to the requirements of the Cabinet Manual.

[62]   The plaintiffs say that the defendant’s own pleading indicates that Schedule B documents do exist, but have not been discovered. For example:

(a)The defendant has pleaded that “Ministers decided against implementing a national community midwifery service organisation – despite requesting and receiving advice from the Ministry about it on two occasions (in 2019 and again in 2022) – as it was not considered to align with how the Government wanted the health system to evolve following the HDSR [Health and Disability System Review] recommendations.” The plaintiffs say there must be documents recording the Ministers’ decisions, as well as documents recording who considered it did not align with how the Government wanted the health system to evolve.

(b)Second, the defendant has pleaded that “Between June and October 2019, the Ministry and the College collaborated to design the new operational policy and contract, including the service specifications and payment rules; and while Ministers did not authorize its implementation, the work was used in the 2021 Notice that came into effect on 29 November 2021.” The plaintiffs say someone must have made a decision not to “authorise” implementation of the work referred to and there must also be documents recording that the decision-making around the work was then “used in the 2021 Notice”.

(c)The defendant has pleaded that “The College knew that any new system would require Ministerial/Cabinet approval; and that has not occurred as what was proposed is considered to be inconsistent with what is required from the health system in its contemporary context”. The plaintiffs say that someone must have “considered” that the proposals were “inconsistent” and will have communicated their view to the

Minister and/or Cabinet to ensure it was complied with. No documents have been disclosed.

(d)The defendant alleges that “The principles around the Maternity Action Plan were agreed to by the Ministers of Health on 7 February 2019”. No documents have been discovered that record what is alleged to have been agreed to on 7 February 2019.

(e)Clare Perry and Ms Jane both refer to document MOH.001.02290 in their briefs of evidence. The defendant has not discovered any document with that reference.

(f)The defendant has discovered 10 weekly reports to the Minister for the period November 2017 to October 2019 (discovered as a single document). The plaintiff says is very likely that there are other weekly reports that exist and have not been discovered. They request that all weekly reports be discovered for the period from January 2019 to June 2021 that refer to the 2018 Settlement Agreement or any of its elements.

(g)The plaintiffs’ further concern is that the weekly reports provided have been heavily redacted, apparently because the redacted portions are irrelevant. The plaintiffs say the redacted portions are annotations to the document and it is difficult to see how such annotations could be irrelevant.

Defendant’s submissions

[63]   The defendant reiterates that, as summarised in the three affidavits filed by Mr Knipe, it has undertaken extensive searches to locate all relevant documents, including documents of the kind sought in Schedule B of the plaintiffs’ application. Those include searches in the Ministry’s document management system, using agreed keyword terms; liaison with the Department of the Prime Minister and Cabinet (DPMC) and the Treasury to run keyword searches across their respective databases; searches of CabNet, the DPMC document management system, which holds Cabinet

papers, Cabinet minutes, and the calendar of Cabinet meetings; and targeted searches of the Ministry’s document management system and SharePoint databases.

[64]   On that basis, the Ministry says it has made a reasonable search for documents within the scope of the tailored discovery order and any relevant documents generated by these searches have been discovered. It is not proportionate for the Ministry to undertake further searches when these already extensive searches have not uncovered further documents.

[65]   The Ministry also says that, to the extent that relevant information is not contained in documents, it is covered in the briefs of evidence filed on behalf of the defendant.

[66]   In relation to the request for signed copies of relevant documents, the Ministry says that would add little, in view of the fact that Ministers have given evidence as to their decision-making in response to the advice tendered by officials. For example, the Hon Dr David Clark specifically notes he is aware that some reports which have been discovered were not signed by him, but he has indicated where it is likely that he would have signed a briefing in hard copy, but the hard copy may not have been sent to the Ministry.

[67]   Ms Courtney’s response in relation to the request for further weekly reports to the Minister is that the reports are omnibus reports covering many subjects within the health portfolio, and subsequent meetings with the Minister correspondingly involved the attendance of a number of Deputy Directors-General. Not all reports included information relevant to the claim. All those that did so have been disclosed.

[68]   Counsel reiterates that the redactions to the weekly reports relate only to irrelevant material. For example, in relation to part of one document headed “PWC report on fair and reasonable remuneration for LMC midwives” the redactions are not to annotations relating to the text of that part of the document, but rather because the photographs of the double-sided physical copy show text from the reverse side of the page. Relevant annotations on the hard copy have not been redacted.

[69]   Document MOH.001.02290, referred to in  the  briefs of  evidence of both  Ms Perry and Ms Jane, has not been discovered. The defendant notes that privilege is claimed for the document but it will discover a “standalone” version of the document.

[70]   More generally, counsel for the defendant says that it is not a case of decisions having been taken at a particular point in time. Rather, as the defendant’s evidence records, it was a rapidly changing environment which necessitated some adaptation, while the Ministry was nevertheless still moving towards implementing fair and reasonable remuneration for LMC midwives. That context is important — by way of example, the defendant notes the election of a new government in 2017 and the Health and Disability System Review (HDSR) established on 3 September 2018 (led by Heather Simpson), which required final recommendations to be made to the Government on a future health and disability system that is sustainable, is well placed to respond to future needs of all New Zealanders, and shifts the balance from treatment of illness towards health and well-being. As I understand the defendant’s case, it is that the HDSR inevitably had an impact on the work being carried out pursuant to the 2018 Settlement Agreement.

Discussion

[71]   First, in relation to the weekly reports to the Minister, I accept that all such reports containing information relevant to the allegations in this proceeding have been disclosed. I also accept that any redactions to those reports have been made on the basis that the redacted portions are not relevant. No further disclosure is required in this regard.

[72]   I am also satisfied that it would be disproportionate to require the defendant to identify, locate and disclose all instances where a document sent to the Minister’s office was not returned, or did not come back signed.

[73]   The more general question of documents potentially in existence, recording decisions, for example, “deciding against implementing a national community midwifery service organisation… as it was not considered to align with how the Government wanted the health system to evolve following the HDSR recommendations”, is more problematic.

[74]   As the plaintiffs submit, it appears that one of the key defences advanced by the defendant is that the parties did what was required of them, but “intervening factors” meant they were not able to reach a “mutually acceptable outcome on the issues between them”. These intervening factors, the Ministry alleges, include certain decisions and changes in policy direction made by the Ministry’s senior leadership, Ministers and/or Cabinet.

[75]   I accept that the plaintiffs have sought the second discovery order directly as a result of the defendant’s own pleading, where it has pleaded as positive allegations of fact that decisions were taken, or it is implicit in the pleading that a decision must have been taken, but no relevant decision documents have been discovered.

[76]   However, I accept the assurance from counsel for the defendant that all appropriate searches have been made and where such documents sought exist, they have been discovered.

[77]   I record that this situation inevitably leaves the plaintiffs in a difficult position in grappling with Crown “decisions” that cannot be pinned down to specifics. I also note the potential difficulty for the defendant at trial in meeting the allegations made against it, in the absence of documents specifically recording decisions relevant to implementation of, or attempts to implement, the 2018 Settlement Agreement.

Application for further and better particulars

[78]   The plaintiffs initially gave notice requiring the defendant to give further particulars of its Amended Statement of Defence on 31 October 2023. Some further particulars were provided by the defendant by letter of 3 November 2023. By letter of 7 December 2023, the Crown advised that the further particulars sought were contained in the discovered documents or would be covered in the defendant’s briefs of evidence.

[79]The original application was brought by the plaintiffs on 22 December 2023.

[80]   By letter of 28 March 2024 the Crown advised that it intended to provide further particulars in response to the plaintiffs’ application with its statement of defence to the plaintiffs’ second amended statement of claim.

[81]   The Crown filed briefs of evidence on 28 March 2024, 30 April 2024 and     1 May 2024 and its Second Amended Statement of Defence on 29 April 2024.

Plaintiffs’ submissions

[82]   The plaintiffs say that, while some further particulars were provided that respond to parts of the plaintiffs’ original request, the defendant has not complied with the notice in full and the further particulars sought in Schedule C to the plaintiffs’ amended application remain outstanding.

[83]   The particulars sought relate primarily to alleged decisions made by the Ministry, Ministers or Cabinet not to accept the recommendations of the Co-design Project Group (comprising representatives of the College and the Ministry) and not to implement all or part of the 2018 Settlement Agreement.

[84]   The further particulars sought relate to specified paragraphs in the second amended statement of defence where, the plaintiffs say, the defendant has pleaded that those individuals or entities made those decisions, but has not provided sufficient details to inform the plaintiffs and the Court of the nature of the decisions, including who made them, when and in what capacity. The plaintiffs say this lack of particularisation is exacerbated by the defendant’s failure to provide copies of relevant Cabinet papers, minutes, and/or briefings to Ministers (as sought in the second particular discovery order).

[85]   The three matters that the plaintiffs say the defendant has failed to sufficiently particularise are:

(a)the nature of the Ministry’s decisions not to implement all or part of the 2018 Settlement Agreement, including:

(i)alleged concerns with the proposed structure contemplated by the 2018 Settlement Agreement;

(ii)decisions after 15–18 December 2017 not to implement the “blended payment model”;

(iii)the “circumstances prevailing the wider health section” which meant the 2018 Settlement Agreement could not be implemented;

(iv)the elements of the 2018 Settlement Agreement considered inconsistent with what was required from the health system; and

(v)whether these matters were communicated to the College.

(b)The nature of decisions after 18 December 2017 relating to Ministers and/or Cabinet not making their approval “available to implement the recommendations of the Co-design Project Group”.

(c)The nature of the alleged concerns that Ministers and/or Ministry officials apparently raised in respect of both the Co-design recommendations and the PwC Report, and whether these concerns were communicated to the College.

[86]   The plaintiffs say these further particulars are necessary for them to understand the defendant’s defence.

Defendant’s submissions

[87]   The defendant says the circumstances of this request are unusual, where the defendant has filed and served an amended and particularised statement of defence, linking briefs of evidence and memoranda in respect of the issues that will arise at trial.

[88]   It says the amended statement of defence already includes detailed particulars including, where possible, specific dates, events and correspondence on which the defendant places reliance.

[89]   The defendant also says that the matters on which the plaintiffs seek further particulars are addressed in the defendant’s evidence. One of the purposes of particulars is to enable a party to know what witnesses it will need to retain and enable it to start preparing evidence.11 That cannot be relevant at this stage of the proceeding where the parties have already exchanged extensive fact and expert evidence, which sets out in detail the matters now sought by way of particularisation. The defendant provides examples from its evidence of the matters referred to in particulars four, five, six, eight, 16, 17 and 18.

[90]   The defendant says that, to the extent the plaintiffs wish to clarify matters beyond the evidence already filed, that is a matter for cross-examination, not for particularisation.

[91]   The defendant also submits that the particularisation sought proceeds on what it calls a misapprehension of the facts. For example, particular three seeks details of decisions “not to accept” or “not to implement” those parts of the 2018 Settlement Agreement. Particular seven seeks details of decisions “not to accept the blended payment model”. The defendant says that these decisions are more appropriately characterised as positive decisions to implement alternative funding or policies which were inconsistent with the work streams in the Settlement Agreement. Similarly, in relation to particular seven, it says there was no decision to implement a blended payment model. Framing the decision in the negative mistakes the position.

Discussion

[92]   As in relation to the second discovery order, I accept that the plaintiffs’ application for further particulars arises from the defendant’s own pleading, where it has pleaded as positive allegations of fact that decisions were taken, or it is implicit in

11     Platt v Porirua City Council [2012] NZHC 2445 at [19(c)].

the pleading that a decision must have been taken, but it has not provided particulars of by whom and when such decisions were taken.

[93]   I note the defendant’s submission that particularisation may generally be inappropriate after the filing of extensive evidence, but here the pleadings were amended after the filing of the bulk of the evidence and, the plaintiffs say, the need for further particularisation arises from the amended pleading. Also, the plaintiffs say, relevant documents supporting the decisions pleaded have not been discovered (see second particular discovery order above), or have been discovered on an iterative basis, the defendant not having provided initial disclosure.

[94]   In relation to particulars 13 and 14 I accept that they address a general pleading directed at the plaintiffs’ knowledge, not at specific decisions made by the Crown. No further particularisation is required.

[95]   In relation to the other particulars sought, by way of example, I refer to particulars 3, 4 and 5. These relate to paragraph [2.2.2(g)] of the defendant’s second amended statement of defence where it says:

The structure contemplated by the 2018 Settlement Agreement and the Co- design recommendations was not implemented in full, because it was overtaken by health system changes arising from concerns that what had been proposed was not consistent with overall health system objectives in its contemporary context.

[96]   The pleading then refers to, among other things the issue of the Interim HDSR Report in August 2019 and the final report on 16 June 2020 and notes that the Settlement Agreement also pre-dated the findings of Wai 2575, the Whakamaua: Māori Health Action Plan, the establishment of Health New Zealand | Te Whatu Ora, and the implementation of the Pae Ora (Healthy Futures) Act 2022.

[97]   The difficulty the Crown has created by its pleading is that it is in effect saying that a decision or decisions were taken, but it largely pleads this in the passive voice, without reference to specific decisions, by identified people, on specific dates. It may be, as counsel submits, that the Crown’s position arose organically, over time and as a result of a number of events and I accept counsel’s assurance that details of all relevant decisions which were taken have been provided. However, as I have signalled above,

it is for the Crown to consider how the lack of evidence of specific decision-making may impact on its defence.

[98]I make no orders for further particulars.

Orders

[99]In summary, I make the following orders:

(a)The defendant is to discover the series of emails from the Ministry to PwC in relation to the PwC Extension Work.

(b)The defendant is to discover the October, November and December 2019 iterations of the Budget bids, and the responses of the Ministry’s ELT to each of the iterations.

(c)The defendant is to provide the plaintiffs with a copy of Document MOH.001.02290, as a “standalone” version.

Costs

[100]   The plaintiffs seek costs of their application on a 3C basis, submitting that they have been required to bring this application as a result of the defendant’s refusal to provide clearly relevant documents and to comply with the Particulars Notice dated 31 October 2023. The plaintiffs rely on the first and second affidavits of Frankie Pepperell, dated 22 December 2023 and 10 May 2024, in relation to the history of this application.

[101]In total, the plaintiffs seek costs of $29,122.50 in respect of the application.

[102]   The defendant also seeks costs on a 3C basis but not has provided a costs schedule or quantum sought.

[103]   I have concluded that some further discovery by the defendant is required. While not all of the further discovery, or the particularisation, sought by the plaintiffs

has been ordered, I accept there was a proper basis (on the defendant’s own pleading) for the plaintiffs to make the application.

[104]I am not persuaded that the circumstances require an award of increased costs.

[105]   I direct that the defendant pay the plaintiffs’ costs of this application on a 2B basis.

Gwyn J

Solicitors:

Tompkins Wake, Hamilton Meredith Connell, Wellington