Ricks v Te P�kenga New Zealand Institute of Skills and Technology t/a Ara Institute of Canterbury

[2023] NZHC 936

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000424

[2023] NZHC 936

BETWEEN

TAHI JHETT RICKS

Plaintiff

AND

TE PŪKENGA – NEW ZEALAND INSTITUTE OF SKILLS AND TECHNOLOGY T/A ARA INSTITUTE OF CANTERBURY

Defendant

Hearing:

27 March 2023

Appearances:

Mr Ricks, Plaintiff, in person

O D Peers and C F Olds for Defendant

Judgment:

26 April 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 26 April 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RICKS v TE PŪKENGA t/a ARA INSTITUTE OF CANTERBURY [2023] NZHC 936 [26 April 2023]

[1]    Tahi Ricks successfully completed two years of a three-year Bachelor of Architectural Studies (BAS) degree at the Ara Institute of Canterbury (Ara).1 He says he did not undertake his final year of study in 2022 because of Ara’s COVID-19 vaccination policy. Under the Policy, Mr Ricks was not permitted to attend campus unless he was fully vaccinated against COVID-19 or had a Ministry of Health approved vaccine exemption. Mr Ricks did not accept the Policy and withdrew from the BAS and has not returned to his studies.

[2]    Mr Ricks seeks declarations that Ara breached a re-enrolment contract with him by changing the conditions of his study without his consent and breached also the Education (Pastoral Care of Tertiary and International Learners) Code of Practice 2021 (the Code). In addition, he seeks a declaration that Ara failed to rebut a “rebuttable affidavit” such that the affidavit has become a “judgement in commerce”. Finally, he seeks an order Ara must pay him $10,522,540 as stated in the unrebutted affidavit.

[3]This judgment concerns:

(a)Mr Ricks’ application for summary judgment on the last aspect of his claim; that is that Ara must pay him $10,522,540 because it failed to rebut a rebuttable affidavit he had issued to it; and

(b)Ara’s applications that Mr Ricks’ claims be struck out in its entirety, or that summary judgment be entered against Mr Ricks.

Factual background

[4]    In 2020, Mr Ricks commenced study at Ara for a BAS degree. He completed the 2020 and 2021 academic years with good grades.

[5]    In early 2020, the COVID-19 pandemic began. During 2020 and 2021 there were periods when students could not attend campus and Ara was able to continue

1      I understand that what was Ara Institute of Canterbury Limited is now a business division of Te Pūkenga – New Zealand Institute of Skills and Technology and since 1 November 2022 is known as Te Pūkenga – New Zealand Institute of Skills and Technology t/a Ara Institute of Canterbury, but neither party suggested that this affected the present applications.

offering courses by alternative teaching methods. In respect of the BAS, Ara offered this course remotely during lockdowns.

[6]    In late 2021, the Government moved to a new COVID-19 Protection Framework (the CPF Order),2 characterised by red, orange or green traffic-light settings and the use of vaccine certificates to enter certain premises.

[7]    On 22 November 2021, the Government announced all of New Zealand would transition into the CPF Order on 2 December 2021. The traffic-light setting for each region of the country was confirmed on 29 November 2021. It was announced the South Island would move into the CPF Order at the orange traffic-light setting. This setting did not require vaccination to access tertiary education providers.

[8]    On around 6 December 2021, Ara sent out re-enrolment forms to students, including Mr Ricks.

[9]    At around this time, Ara commenced a review of how it would protect staff and students from the risk of contracting COVID-19 while attending campus. The senior leadership team at Ara was considering the introduction of a mandatory vaccination policy. Between 13 and 17 December 2021, Ara undertook consultation concerning its proposed vaccination policy, including with staff and the student council. Ara says it was not feasible to consult with individual students at that time. A shortened timeframe for consultation was necessary due to the health and safety implications of delay and the time of year.

[10]   On 15 December 2021, and during this period of consultation, Mr Ricks returned his application for enrolment for the 2022 academic year. The enrolment form stated, and Mr Ricks agreed:

By submitting this application, if I accept a place for this programme I agree to read, understand, and comply with the Ara Terms and Conditions of Enrolment; Ara Policies & Procedures; and the published programme rules of Ara Institute of Canterbury Limited — including but not limited to Personal Information and Privacy Principles, Ara Fee Payment and Ara Student Rights and Responsibilities.

2      COVID-19 Public Health Response (Protection Framework) Order 2021.

[11]   On 22 December 2021, Ara introduced its COVID-19 Vaccination Policy (the Policy). Its relevant practical effect for present purposes was that students engaged in Ara activities requiring physical attendance upon campus had to be vaccinated or to have a Ministry of Health vaccination exemption. Non-disclosure of a person’s vaccination status was deemed to mean they were not vaccinated. The Policy was to be reviewed as the Government’s mandates and directions were released and updated when deemed necessary by Ara’s Board of Directors guided by the Chief Executive.

[12]   On 22 and 23 December 2021, the Policy was communicated to all staff and students via email on the internal MyAra system. There were also further updates made on the MyAra system between 23 December 2021 and 27 April 2022.

[13]   On 23 January 2022, the Government mandated that the whole of New Zealand move to the red traffic-light setting under the CPF Order, which required tertiary education providers to be either CVC compliant or non-CVC compliant. “CVC” was a reference to the My Vaccine Pass system and whether a facility would require entrants to show proof of vaccination as a condition of entry. Ara elected to be a CVC compliant entity.3 If it had elected to be a non-CVC compliant entity it would have been unable to allow students on campus, vaccinated or otherwise.

[14]   On 4 February 2022, Ara emailed Mr Ricks confirming his eligibility for enrolment for year three of the BAS. Ara’s email contained the following notice:

Important COVID-19 Vaccination Information For Students

Vaccination against COVID-19 is now required for a number of Ara study programmes and campus facilities. This continues to be updated and it is important you visit ww.ara.ac.nz for the latest information to help you make your study decisions.

[15]   Mr Ricks was aware of the Policy as on 8 February 2022 he sent Ara a document headed “Notice of Conditional Acceptance” stating that under duress he accepted the Policy but only if certain conditions were satisfied, failing which he would not provide any information concerning his health status. The conditions

3      COVID-19 Public Health Response (Protection Framework) Order 2021, pt 1, sub-pt 3 and sch 7, pt 2, sub-pt 4 (version as of 23 January 2022).

required Ara to respond to 14 questions concerning, amongst other things, COVID-19 vaccinations, the status of clinical trials and manufacturer safety evidence.

[16]   Ara responded to Mr Ricks on 16 February 2022. It explained the effect of the CPF Order and the basis upon which the Policy had been prepared. Mr Ricks was advised that if he was not vaccinated or did not hold a vaccine exemption, he was prevented from accessing the campus as a result of the CPF Order because Ara was required to uphold the requirements of New Zealand Government legislation and was unable to accept any conditions attached to access to the campus. Mr Ricks was encouraged to discuss alternative options as to how he might complete his studies in a way that was compliant with the CPF Order and the Policy.

[17]   There followed correspondence between Mr Ricks and Ara, during which he was advised that correspondence learning was not available for the BAS. It was recommended he could either pause his enrolment as circumstances might change, or withdraw.

[18]   On 2 March 2022, Mr Ricks returned Ara’s 16 February 2022 letter on which he had prominently written the words “no consent no contract”. On that day also,  Mr Ricks requested that his enrolment be paused.

[19]   On 16 March 2022, Mr Ricks requested he be withdrawn from the BAS. His request was actioned, and he was refunded the enrolment fee he had paid.

[20]   On 17 March 2022, Mr Ricks sent Ara another document, this time headed “Affidavit of Truth”. This document required Ara to dispute “claims, statements, assertions, facts contained herein” which were said to represent Mr Ricks’ “truth”. There followed 82 matters for Ara to respond to and it was stated that if Ara did not dispute any of the claims that were made within 14 days it would result in an automatic default judgment against Ara and it would be liable to Mr Ricks’ fee schedule. The fee schedule contained amounts payable by Ara totalling more than $10 million said to relate to losses Mr Ricks suffered, including $3 million for harm to his education and $7 million for harm to his future.

[21]   On 4 April 2023, Mr Ricks sent Ara a document headed “Notice of Recognition and Thanks”, noting that Ara had failed to rebut the Affidavit of Truth which “now stands as Truth in Law and a Judgement in Commerce, which no-one can overturn”. He stated that “ultimately, this means you — Darren Mitchell/Ara are now liable to the fee schedule which is remedy for the damages caused to me”. He advised that Ara had a further 10 working days to arrange a meeting with him if it would like to discuss a settlement figure or arrange payment options, otherwise he would pursue collection of the debt for the full amount.

[22]   Ara responded to Mr Ricks on 11 April 2022, rejecting Mr Ricks’ claims and updating him on developments, specifically that the Policy was under review following removal by the Government of the vaccine pass requirements.

[23]The Policy remained in force until 2 May 2022.

Mr Ricks’ summary judgment application

Relevant principles

[24]   A plaintiff’s application for summary judgment is brought pursuant to r 12.2(1) of the High Court Rules 2016. It provides:

Judgment when there is no defence or when no cause of action can succeed

(1)The court may give judgment against a defendant if the plaintiff  satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.

…

[25]   The correct approach to a plaintiff’s summary judgment application is set out in Krukziener v Hanover Finance Ltd as follows:4

[26]  The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 at 3 (CA). The Court must be left without any real doubt or uncertainty. The

4     Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.

onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC). In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).

Mr Ricks’ submissions

[26]   Mr Ricks seeks summary judgment for payment pursuant to the unrebutted affidavit. He identifies the issue as whether Ara has an arguable defence to overturn an unrebutted affidavit, and submits it cannot do so.   Mr Ricks believes there are   10 commercial maxims, which are legal directives that must be upheld by the New Zealand courts and he relies on passages from the Bible in support of his submission that an unrebutted affidavit must stand and he is entitled to judgment accordingly. In a concession to his position, however, at the conclusion of the hearing Mr Ricks advised he was now prepared to accept just $1 million in satisfaction of this claim.

My analysis

[27]   Mr Ricks’ belief in the efficacy of the Affidavit of Truth document is misguided and his claim for judgment based upon it has no prospect of success. The legal maxims that Mr Ricks relies upon are not legal directives which the courts must uphold regardless of context. Bible passages are not law enforceable in the courts. Further, the law does not recognise a process of entering judgment on the basis of an unrebutted affidavit and certainly not when such affidavit was not issued in respect of any proceeding then currently before the Court.

[28]   The pseudo-legal documents Mr Ricks relies upon are commonly presented to the courts by people influenced by the Sovereign Citizen movement. They have been consistently rejected by the courts.5    Mr Peers referred to Bank of New Zealand v

5      Warahi v Chief Executive of the Department of Corrections [2021] NZHC 3059 , Warahi v Chief Executive of the Department of Corrections [2022] NZCA 105 at [9]–[11] ; Niwa v Commisioner of Inland Revenue [2019] NZHC 853; [2019] NZAR 1104 ; Warren  v Chief Executive of the

Stewart which concerned an application for an order adjudicating Mr Stewart bankrupt.6 Mr Stewart sought to oppose the application on several bases, including that the bank had admitted certain allegations contained in an unrebutted affidavit which became a judgment in commerce. Associate Judge Bell dealt with this matter quickly by stating “[n]ext, Mr Stewart alleges that the bank, by not refuting his allegations, is deemed to have admitted them. That submission is simply wrong.”7

[29]   Mr Ricks sought to distinguish the decision in Bank of New Zealand v Stewart on its facts. He is correct that as that proceeding concerned an insolvency matter it arose in a different context than this case but, regardless, the decision demonstrates that an unrebutted affidavit of the kind Mr Ricks relies upon has no legal recognition and is of no legal effect.

[30]   The fact that Ara did not respond to Mr Ricks’ Affidavit of Truth document does not give rise to any cause of action recognised in law. Mr Ricks’ application for summary judgment is therefore dismissed.

Ara’s strike out application

Relevant principles

[31]   Ara’s strike out application is made pursuant to r 15.1 of the High Court Rules, which provides:

Dismissing or staying all or part of proceeding

(1)The court may strike out all or part of a pleading if it—

(a)discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b)is likely to cause prejudice or delay; or

Department of Corrections [2017] NZSC 20 ; Rangitaawa v Chief Executive of the Department of Corrections [2013] NZCA 2 ; Martin v Chief Executive of the Department of Corrections [2016] NZHC 2811 at [20] ; Wallace v Chief Executive of the Department of Corrections [2017] NZSC 1 at [4]–[5] ; James v District Court at Whanganui [2022] NZHC 2196 ; James v District Court Whanganui [2022] NZHC 2309 , Baker v Lawrence [2022] NZHC 2734, Brady v New Zealand Police [2019] NZHC 1040.

6      Bank of New Zealand v Stewart [2015] NZHC 2864.

7 At [34].

(c)is frivolous or vexatious; or

(d)is otherwise an abuse of the process of the court.

…

[32]The criteria for striking out are as follows:8

(a)pleaded facts, whether or not admitted, are assumed to be true although this does not extend to pleaded allegations which are entirely speculative or without foundation;

(b)the cause of action or defence must be clearly untenable;

(c)this jurisdiction is to be exercised sparingly and only in clear cases reflecting the Court’s reluctance to terminate a claim or defence short of trial;

(d)the jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument;

(e)the Court should be particularly slow to strike out a claim on any developing areas of law, particularly where a duty of care is alleged in a new situation.

[33]   While the Court may receive affidavit evidence on a strike out application, it will not generally attempt to resolve disputed issues of fact or consider evidence which is inconsistent with the pleading. However, it need not accept a pleading that is contrary to indisputable fact9 and may finally decide an issue when it is satisfied that it has all relevant evidence before it. Such was the case in Chan v Boston Trustees 6037 Ltd where Associate Judge Andrews struck out a claim for specific performance on an agreement for the sale and purchase of shares.10 The Judge noted as follows:

8      Attorney-General v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) at 267.

9      Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53, 62-63.

10     Chan v Boston Trustees 6037 Ltd [2021] NZHC 1694.

[27]   The parties accept that all of the relevant documentation is before the Court. They agree that it is unlikely that any further relevant evidence, whether oral or otherwise, will be produced at trial.

[28]      I agree with Mr Jeffs’ submission, for the defendants, that I should proceed on the basis that all the factual information comprising the contextual matrix for the interpretation of the relevant documents is before me.

Mr Ricks’ causes of action

[34]   Mr Ricks’ statement of claim encompasses several causes of action but they are merged into one. Upon my reading of the statement of claim the causes of action relied upon appear to be the following:

(a)for payment of a debt under the unrebutted affidavit;

(b)that Ara breached a re-enrolment contract with Mr Ricks by introducing the Policy without his consent;

(c)that the Policy breached parts of the Code because Ara:11

(i)did not have alternative study options available for Mr Ricks, such as correspondence learning;12

(ii)promoted an exclusive culture based on Mr Ricks’ medical status;

(iii)failed to uphold Mr Ricks’ cultural needs and aspirations;13

(iv)created access barriers  by  discriminating  and  segregating  Mr Ricks rendering him unable to access facilities and services based on his medical status;

11     While Mr Ricks believes Ara breached obligations owed to him personally, I understand he considers other students were similarly affected.

12     At the hearing Mr Ricks also said there could have been recorded lectures for students who could not attend lectures in person and tuition by Zoom.

13     Mr Ricks did not identify how his particular cultural needs and aspirations were affected.

(v)withheld information from Mr Ricks regarding the Policy to force compliance against his will; and

(vi)failed to perform its basic function to provide Mr Ricks with an education.

[35]   In terms of the relief sought (and leaving aside relief in respect of the unrebutted affidavit), Mr Ricks seeks:

(a)A declaration that the defendant changed the conditions of the plaintiff’s engagement with their studies without their consent, after they signed the re-enrolment contract.

(b)A declaration that the defendant breached parts of [the Code] …

[36]   Ara argues that Mr Ricks is using this proceeding as a vehicle to advance personal views about COVID-19 and the use of vaccines. It says Mr Ricks’ desire for substantial financial compensation in reliance upon the unrebutted affidavit is the gravamen of his proceeding and should the Court strike out his claim for compensation as untenable, the balance of his claims are redundant or of academic interest at best.

[37]   Further, Ara submits, the balance of the claims are either untenable as a matter of law or should only be pursued using dispute resolution procedures available to  Mr Ricks contained in the Code. It says the civil claims procedure provides access to justice for persons seeking legitimate private law remedies but not to advance personal views on matters which are not justiciable such as the scientific efficacy of vaccinations.14

The claim based on the unrebutted affidavit

[38]   For reasons given at paras [27]-[30], Mr Ricks’ claim based on the unrebutted affidavit is not reasonably arguable and is stuck out.

14     Citing Reihana v Foran [2022] NZHC 2425 at [38].

The breach of contract claim.

[39]   I am satisfied that I have before me all the relevant correspondence and documents necessary to determine the application to strike out this cause of action.

[40]   Mr Ricks’ argument is that he entered into a re-enrolment contract with Ara but he had not consented to the Policy and was not bound by it. He says Ara breached his re-enrolment contract by purporting to change the terms of his study and by failing to disclose an intention to implement the Policy before sending him a re-enrolment form on 6 December 2021.

[41]   It is not entirely clear when Mr Ricks considers he concluded a re-enrolment contract with Ara for the 2022 academic year. His submission was:

On 4 February 2022, Ara elected to confirm my re-enrolment under the agreement made on 15 December 2021, which did not require me to automatically assent to future policies.

On this basis he may be asserting that the re-enrolment contract was entered into on 15 December 2021 or 4 February 2022 and I consider the position as at both dates.

[42]   Ara argues it did not enter into a re-enrolment contract with Mr Ricks for the 2022 academic year. Furthermore, it says that when Mr Ricks submitted his application for re-enrolment he agreed to abide by Ara’s policies and procedures. When Ara confirmed on 4 February 2022 that it would accept Mr Ricks for re- enrolment, the Policy had already been introduced and Mr Ricks was, if he accepted a place in the BAS programme, bound by it.

[43]   Ara also submits there are other insurmountable difficulties with Mr Ricks’ breach of contract claim. It argues it would be unworkable if a tertiary institution was unable to amend or add to policies and procedures from time to time. To hold otherwise would be to effectively limit its ability to govern to a once yearly event and subject different students to different sets of policies and procedures depending on the date of their enrolment. It says such a result would prevent compliance with ongoing statutory duties and obligations, such as the Health and Safety at Work Act 2015 and the Code. Ara also submits it has rights and discretions under the Education and

Training Act 2020, which empower it to perform its functions efficiently and effectively, and it would be inconsistent with such functions, rights and discretions that it would be prevented from amending policies and procedures from time to time.

[44]   The relevant principles to determine whether parties have made a binding contract can be found in Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand Ltd.15 The pre-requisites to the formation of a binding contract are, first, an intention to be immediately bound at the point in time when the bargain is said to have been agreed and, second, agreement, express or found by implication on every term which was legally essential to the formation of such a bargain, or was regarded by the parties themselves as essential to their particular bargain.16 Whether the parties have succeeded in concluding a contract is determined objectively and the Court may go beyond the words used by the parties to the background circumstances, as well as their subsequent conduct towards one another.17

[45]   I accept Ara’s position that Mr Ricks’ claim alleging breach of contract cannot succeed because first, he never concluded a re-enrolment contract with Ara for the 2022 academic year and, second, if a contract was in fact concluded, Ara did not purport to change the terms of Mr Ricks’ enrolment without his consent, as the Policy was already in effect and was binding upon Mr Ricks.

[46]   Turning now to the position as of 15 December 2021, Mr Ricks was sent a re- enrolment form on 6 December 2021. By returning the form Mr Ricks was not guaranteed a place on the BAS, nor did he enter into a re-enrolment contract with Ara. The form anticipates that if Mr Ricks satisfies pre-requisite requirements and agrees to certain conditions he may be offered a place in the BAS. Importantly, the form required Mr Ricks to confirm that if he accepted a place in the BAS programme he agreed to read, understand and comply with, amongst other things, Ara’s Terms and Conditions of Enrolment and Ara’s Policies and Procedures. Mr Ricks refers to and relies upon Ara’s policy on Learner Rights and Responsibilities which also includes that students are expected to “Follow Ara policies and regulations”. It follows, Ara

15     Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand [2002] 2 NZLR 433.

16 At [53].

17 At [54].

did not enter into a re-enrolment contract with Mr Ricks on 15 December 2022 when he returned his re-enrolment form.

[47]   Mr Ricks was offered a position for the third year of the BAS program on     4 February 2022 but did not conclude a contract with Ara at that time either. As noted above, by 4 February the Policy had been introduced and notified to the student body through the MyAra system. By the terms of his re-enrolment form, if Mr Ricks wished to accept a place on the BAS programme he agreed to read, understand and comply with the terms of the Policy. Ara’s 4 February email, states prominently that vaccination against COVID-19 was required for a number of study programs and campus facilities and directing Mr Ricks to Ara’s website. To create a contract the acceptance of an offer must be both a final and unqualified expression of assent to the terms of the offer.18 Mr Ricks never unconditionally accepted the offer of re-enrolment on the terms upon which it was made and went so far as to make it clear on 2 March 2022, when returning Ara’s letter of 16 February, that he had not entered into any contract with Ara. Accordingly, no contract of re-enrolment was concluded.

[48]   Mr Ricks’ statement of claim is consistent with this analysis. He pleads that he sent a “Notice of Conditional Acceptance” in response to the 4 February email and that he only “conditionally accepted and agreed” to the Policy under duress. Further, if there was any doubt about his position, he stated it quite clearly when he returned Ara’s letter of 16 February with the words “No consent no contract”.

[49]   Mr Ricks’ additional argument that Ara should have disclosed the Policy to him when sending the re-enrolment form on 6 December 2021 is misguided. Even upon his view no pre-enrolment contract was concluded as at that date. Further, Ara had not finalised the Policy or even begun to consult with staff and student representatives in respect of it. Ara’s policies and procedures change from time to time and it had no obligation to disclose to Mr Ricks a proposed policy that at that time it was only considering and that was to be the subject of a consultation process.

18     Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in New Zealand (7th ed, LexisNexis, Wellington, 2022) at 3.4.1.

[50]   While that is sufficient to deal with the breach of contract claim, I also do not accept Mr Ricks’ submission that, in effect, Ara’s processes and policies, as far as they applied to him, were ossified as at the date he submitted his application for re- enrolment. That can never have been intended and would be both unworkable and inconsistent with the relevant statutory overlay.

The remaining cause of action for breach of the Code

[51]   Mr Ricks’ remaining cause of action alleges Ara breached the Code. Ara has submitted a substantial amount of affidavit evidence relevant to this claim contradicting pleaded allegations in Mr Ricks’ statement of claim. It would not be appropriate to strike out the claim under r 15.1 in those circumstances. However, Ara also applies for summary judgment in respect of this remaining cause of action and it is in that context that I will consider it.

Ara’s summary judgment application

Relevant principles

[52]   A defendant’s application for summary judgment is made under r 12.2 of the High Court Rules, which reads:

The court may give judgment against a plaintiff if the defendant satisfies the court that none of the causes of action in the plaintiff’s statement of claim can succeed.

[53]   It will be noted that a defendant applying for summary judgment must show the plaintiff cannot succeed on any of its causes of action.

[54]   A difference between applications for strike out and summary judgment is that upon a summary judgment application there is greater scope for the affidavit evidence to be relied upon, although the Court will generally not attempt to resolve disputed issues of fact.

[55]   Summary judgment will also not be appropriate where it is possible for a plaintiff to amend its claim so as to remedy defects relied upon by the defendant; it

should only be used where the defendant has a clear answer to the plaintiff which cannot be contradicted.19 In this respect Elias CJ in Westpac Banking Corporation v M M Kembla New Zealand Ltd relevantly said:20

Although [the predecessor to r 12.2] refers to the causes of action “in the plaintiff's statement of claim”,[the predecessor to r 15.1] (which permits the Court to strike out a cause of action) similarly is based upon “the pleading”. Under [r 15.1] the Court does not strike out pleadings where a defect can be cured by amendment which the party is willing to make. Similarly, the residual discretion of the Court under [r 12.2] to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings … Indeed, use of the discretion to enable amendment is arguably more necessary in the interests of justice in the case of summary judgment than in the case of strike out because summary judgment results in issue estoppel.

Breach of the Code

[56]   Mr Peers submits that although not presented as such, judicial review is what in fact Mr Ricks seeks in this case, and parties seeking judicial review declarations should be encouraged to avoid litigation wherever possible.21 Ara’s primary argument is that as far as Mr Ricks alleges breaches of the Code, he should pursue those using the dispute resolution processes that are provided by the Education and Training Act 2020 and the Education (Domestic Tertiary Student Contract Dispute Resolution Scheme) Rules 2021.

[57]   The Code was issued pursuant to s 534 of the Education and Training Act (the Act). Section 534(2) provides that a purpose of the Code is to support the Government’s objectives for the education of domestic tertiary students by requiring providers to take all reasonable steps to maintain the well-being and safety of students and, as far as possible, that domestic tertiary students have a positive experience that supports their educational achievement.

19     Westpac Banking Corporation v M M Kembla NZ Ltd [2001] 2 NZLR 298, (2000) 14 PRNZ 631 (CA); Attorney-General v Jones (2003) 16 PRNZ 715 (PC).

20 At [66].

21     Citing Graham Taylor, Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 217.

[58]   Section 535 provides for sanctions to be imposed for breaches of the Code, and ss 536-539 provide for a student contract dispute resolution scheme (the DRS). The purpose of the DRS is to resolve disputes between students, former and prospective students and providers relating to contractual and financial matters, and claims for redress for any loss or harm suffered as a result of a breach by a provider of the Code.22

[59]   There is provision for disputes to be subject to adjudication and for the issue of binding rulings and the imposition of non-monetary and monetary remedies, including payment of compensation by a provider to a student of an amount not exceeding $200,000 for damage, loss, or inconvenience suffered.23

[60]   I do not accept Ara’s submission that Mr Ricks’ claim for breach of the Code is not arguable for several reasons. First, the Act and the Code are intended to impose on providers, such as Ara, obligations owed to and enforceable by students, former students and prospective students. The remedies available to such students may include both monetary and non-monetary redress. While there is a detailed process provided for the resolution of disputes arising from alleged breaches of the Code,  Mr Peers accepts there is nothing in the Act that excludes the jurisdiction of the High Court to determine students’ claims for breaches of the Code.

[61]   Further, Ara’s submission that Mr Ricks should not be allowed to bring such a claim before the High Court is premised on the submission that he is, in reality, seeking judicial review. Ara seeks to draw on decisions made in the judicial review context, but Mr Ricks has not sought judicial review and Ara’s submission is incongruent with its position that primarily Mr Ricks is concerned with obtaining financial compensation.

[62]   It is also the case that there are limits on the remedies that can be provided to students under the DRS, including limits on monetary relief, which would not apply to proceedings before the High Court. Mr Ricks referred to this as one reason he

22     Education and Teaching Act 2020, s 536(2).

23     Section 537 and Education (Domestic Tertiary Student Contract Dispute Resolution Scheme) Rules 2021, r 25.

wanted the case heard in this Court, albeit that his statement of claim does not presently seek any monetary compensation for breaches of the Code.

[63]   Ara also submits that whether there had been a breach of the Code is now moot and that in any event on the facts it is not arguable that it has breached the Code. Ara again seeks to draw on judicial review jurisprudence.24 It submits that the impact of the Policy upon Mr Ricks was non-existent due to the intervening impact of the CPF Order and the activation of the red traffic-light setting from 23 January 2022. It is said that the CPF Order largely superseded the impact of the Policy and in such circumstances the question of whether Ara’s actions in implementing the Policy breached the Code is not one that warrants or requires a full civil trial.

[64]   In my view it  is at least  arguable the Policy did  adversely  impact upon    Mr Ricks by influencing his decision to withdraw from the BAS. This is because, regardless of what decision the Government made as to the traffic-light settings that were to apply, the Policy would continue to prevent him from attending on campus for as long as it remained in force, during which period Mr Ricks could not continue his studies. A claim brought on that basis is not frivolous and I understand that Mr Ricks was not the only student who withdrew from their studies due to the Policy, and so any decision made in his favour could have wider implications.

[65]   As to the merits of Mr Ricks’ case that the Code was breached, in making any final assessment of whether that is the case or not, the Court would need to resolve a range of disputed facts and issues that are entirely unsuitable for summary judgment.

[66]   Ara has therefore failed to satisfy me that Mr Ricks does not have an arguable claim for relief upon the basis that the Policy breached his rights under the Code. Accordingly, Ara’s application for summary judgment cannot succeed.

24     Matthew Smith The New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters, Wellington, 2016) at [19.6].

Result

[67]Mr Ricks’ application for summary judgment is dismissed.

[68]   Mr Ricks’ cause of action seeking a declaration and payment for failure by Ara to respond to his Affidavit of Truth is struck out (paras 29, 30, 31, 32 33 of the statement of claim, and paras C and D of the prayer for relief).

[69]   Mr Ricks’ cause of action alleging Ara breached a re-enrolment contract with him is struck out (para 35 of the statement of claim and para A of the prayer for relief).

[70]Ara’s application for summary judgment is dismissed.

[71]   In respect of costs, Mr Ricks is self-represented and would not ordinarily be entitled to costs. In any event, my preliminary view is that both parties have been successful to an extent and it may be appropriate to reserve costs. If, despite that indication, either party seeks costs, they may submit memoranda which shall be no more than five pages.

[72]   The Registrar is to arrange a telephone case management conference for timetabling directions to be made to progress the case towards a hearing no sooner than three weeks from the issue of this judgment. I expect the timetable directions would include that Mr Ricks files an amended statement of claim to reflect the orders I have made. Mr Peers should confer with Mr Ricks about a suitable timetable. Memoranda dealing with all the matters required for a first case management conference as set out in sch 5 of the High Court Rules shall be filed at least three working days prior to the conference.

[73]   Finally, I note that while Mr Ricks made a commendable effort in the preparation of his written submissions and in his oral presentation before me, the challenges faced by an unrepresented litigant in the High Court are formidable and the risks of incurring significant costs, whether successful or not, are very real. As there may be other avenues available to Mr Ricks to achieve a resolution of his complaints he might wish to take legal advice before proceeding further with this claim. Whether

he does so is obviously a matter entirely for him, but the direction I have made in [72] above is intended to allow him the time to do so.

O G Paulsen Associate Judge

Solicitors:
Buddle Findlay, Christchurch

Copy to:
Mr T J Ricks (Plaintiff, self-represented)