Sawyer v Vice-Chancellor of Victoria University of Wellington
[2019] NZHC 2149
•29 August 2019
EXISTING ORDER PROHIBITING PUBLICATION OF THE CONFIDENTIAL TERMS OF THE RECORD OF SETTLEMENT IN THE EMPLOYMENT RELATIONS AUTHORITY IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-491
[2019] NZHC 2149
BETWEEN CAROLINE ANN SAWYER
Plaintiff
AND
VICE-CHANCELLOR OF VICTORIA UNIVERSITY OF WELLINGTON
First Defendant
AND
GEOFFREY COLIN DAVENPORT
Second Defendant
AND
JOHANNA GRACE DRAYTON
Third Defendant
AND
PENELOPE JANE RYDER LEWIS
Fourth Defendant
AND
GREGORY PETER LLOYD
Fifth Defendant
AND
MARY THERESE SCHOLTENS
Sixth Defendant
AND
EMPLOYMENT RELATIONS AUTHORITY
Seventh Defendant
Hearing: 15 April 2019 Appearances:
Plaintiff appears in Person
M T Scholtens for First and Second Defendant L Castle for Third Defendant
H E Bridgman for Fourth Defendant P J Gunn for Seventh Defendant
Judgment:
29 August 2019
CAROLINE ANN SAWYER v VICE-CHANCELLOR OF VICTORIA UNIVERSITY OF WELLINGTON [2019] NZHC 2149 [29 August 2019]
JUDGMENT OF GRICE J
(Application to strike out the plaintiff’s proceedings (fourth amended statement of claim dated 9 April 2019) by first and second defendants)
Table of Contents
Introduction [1]
Factual background [6]
Legal proceedings [9]
21 December 2016: Employment Relations Authority on the ROS [12]
23 March 2018: Employment Court determination on disclosure
of documents [14]
22 June 2018: Employment Court on the ROS [19]
29 November 2018: Court of Appeal decision on the ROS and refusal
to order disclosure [22]
Present factual allegations by Ms Sawyer [23]
The parties [28]
Law [31]
Strike out [31]
The Employment Relations Act framework [37]
Claims against Mr Davenport [48]
The Employment Jurisdiction [56]
Before the ROS: claims already dealt with in the employment jurisdiction [59] After the ROS: claims yet to be dealt with in the employment jurisdiction [70] Other causes of action [73]
Privacy Commission’s investigation [74]
Bill of Rights [88]
State of the pleadings [91]
Conclusion [100]
Costs [103]
Introduction
[1] The first defendant (the Vice-Chancellor) and the second defendant (Mr Davenport) have applied to strike out the plaintiff’s (Ms Sawyer’s) claims against them.1 The Vice-Chancellor is Ms Sawyer’s former employer and Mr Davenport is its lawyer.
[2] Ms Sawyer has pursued various other legal actions relating to her previous employment with the Vice-Chancellor, a signed record of settlement (ROS) reached through mediation with that employer and allegations of faked documents and blackmail.
[3] In these proceedings, Ms Sawyer raises numerous and wide-ranging claims against the Vice-Chancellor and Mr Davenport. The claims made are difficult to distil but I summarise those matters as follows:
(a)The Vice-Chancellor must provide Ms Sawyer with information she seeks about herself pursuant to the New Zealand Bill of Rights Act 1990;
(b)The Vice-Chancellor must provide Ms Sawyer with information she seeks about herself pursuant to the Privacy Act 1993. She also claims Mr Davenport, alongside the Vice-Chancellor, breached their obligations under the privacy act by failing to safeguard her personal information;
(c)The Vice-Chancellor has breached his duty of care and good faith to Ms Sawyer in the context of employment;
(d)The Vice-Chancellor is liable for committing various torts against Ms Sawyer, including deceit, negligence, detinue and conversion;
1 A fourth amended statement of claim was filed before the hearing of this application. I refer to it as the statement of claim in this judgment.
(e)Mr Davenport, alongside the Vice-Chancellor, are also liable for committing the torts of fraud and interference with contract;
(f)The Vice-Chancellor and Mr Davenport are liable in fraud, inference with contract and conversion of her files;
(g)Mr Davenport is liable for breach of privilege; and
(h)The ROS should be set aside as it was created in blackmail,2 fraudulent misrepresentation, deceit and for other related reasons.
[4] The Vice-Chancellor and its lawyer, Mr Davenport, apply to strike the proceedings out on the following grounds:
(a)The claims made in the present proceedings have been dealt with by the Employment Relations Authority, the Employment Court and the Court of Appeal (Employment Jurisdiction).3 Any matters that remain outstanding should have been raised in those proceedings. The present proceeding is an abuse of process and this Court does not have the jurisdiction to hear these claims.
(b)The Employment Jurisdiction and the Human Rights Review Tribunal have exclusive jurisdiction for the relevant claims and some claims remain extant before the Human Rights Review Tribunal and Employment Court.
(c)This Court has no jurisdiction given the pre-existing and final and binding ROS between the Vice-Chancellor and Ms Sawyer.
(d)These proceedings are an abuse of process as Mr Davenport was acting in his capacity as a lawyer representing the Vice-Chancellor.
2 Crimes Act 1961, s 237.
3 I refer to the Employment Jurisdiction as meaning Employment Relations Authority, the Employment Court and Court of Appeal in their jurisdiction under the Employment Relations Act 2000.
(e)The statement of claim discloses no reasonably arguable cause of action.
[5]I will deal first with the facts that gave rise to the present proceedings.
Factual background
[6] Ms Sawyer was employed by the Vice-Chancellor as a lecturer in the Law Faculty at Victoria University in about January 2010. In early March 2014 Ms Sawyer made a written complaint against two other university employees who were senior members of the faculty. The Vice-Chancellor then appointed an investigator to undertake a full and independent investigation into those claims. The investigator provided a draft report for the Vice-Chancellor in July 2014. It was provided to Ms Sawyer for comment.
[7] Before the draft investigation report was finalised, Ms Sawyer and her lawyer attended an Employment Relations Authority mediation on 24 July 2014 with representatives of the Vice-Chancellor. The mediation resulted in a settlement of the employment disputes between Ms Sawyer and the Vice-Chancellor. The settlement was recorded in a signed record of settlement (ROS) certified by the Employment Relations Authority member conducting the mediation. It recorded the final settlement of Ms Sawyer’s employment complaints and that her employment would end on 25 February 2015.4
[8] From 24 July 2014 to the date Ms Sawyer left her employment in February 2015, she was not based at the law faculty premises. This period of time, the Vice- Chancellor says, was paid research and study leave for Ms Sawyer. She however says she was excluded from the faculty during that time by personnel in the law faculty. Ms Sawyer has left the employment of the Vice-Chancellor but says she resigned for constructive dismissal on 20 February 2015, rather leaving pursuant to the ROS which recorded her employment would cease five days later.
4 The ROS was produced in this Court. Its terms are confidential to the parties.
Legal proceedings
[9] Ms Sawyer pursued various legal actions relating to the end of her employment, the ROS and allegations of faked documents and blackmail. Specifically:
(a)On 8 August 2016 Ms Sawyer issued a claim in the Employment Relations Authority for constructive dismissal and unjustifiable disadvantage for the period preceding the ROS. That claim was partially dismissed because the Authority found the ROS was final, binding and resolved all employment issues.5 Part of this litigation, however, relating to whether Ms Sawyer was constructively dismissed when she resigned on 20 February 2015 is still on going.6
(b)On 3 March 2017 the Employment Relations Authority also made a determination by consent that Ms Sawyer had breached the terms of the ROS and was ordered to fully comply with the ROS.7 Ms Sawyer sought an extension of time to appeal against this determination to the Employment Court. This was refused.8 Costs remain unresolved in those proceedings.
(c)On 12 January 2017 Ms Sawyer filed proceedings challenging the determination of the Employment Court that the ROS was valid. The Court made an interlocutory finding that various disclosure applications did not have to be fulfilled by the university.9 The substantive challenge was dismissed on 22 June 2018 as the Court determined the ROS was final, binding and a barrier to any proceedings filed by Ms Sawyer based on any matters purported to be resolved by it.10
5 Sawyer v Vice-Chancellor of Victoria University of Wellington [2016] NZERA Wellington 158.
6 Sawyer v Vice-Chancellor of Victoria University of Wellington [2019] NZEmpC 77.
7 Vice-Chancellor of Victoria University of Wellington v Sawyer [2017] NZERA Wellington 14.
8 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZEmpC 72.
9 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZEmpC 25 at [84].
10 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZEmpC 71 at [5].
(d)On 29 July 2018 Ms Sawyer filed an application for leave to appeal to the Court of Appeal against the finding by the Employment Court that the ROS was valid. On 29 November 2018 the Court of Appeal refused leave to appeal as there were no issues of general or public importance to be dealt with.11
(e)Nine Privacy Act requests were lodged with the Privacy Commissioner by Ms Sawyer between 18 February 2015 and 29 June 2015 seeking access to her personal information, including the “false” information and “fake” documents. On 31 May 2016 the file was closed as the office of the Commissioner concluded that the university had done everything it could to comply with the requests.
(f)On 3 August 2016 Ms Sawyer filed a statement of claim in the Human Rights Review Tribunal appealing against the Commissioner’s decision not to continue his investigation into her requests. Those proceedings remain extant and, I understand, have been stayed pending the determination of Ms Sawyer’s claims here.
(g)On 9 July 2018 Ms Sawyer filed these proceedings in the High Court.
Four amendments have since been made to the statement of claim.12
[10] The present proceedings, while discrete, must be seen in the context of other claims and complaints by Ms Sawyer against the Vice-Chancellor which have been made to or dealt with in the Employment Relations Authority, Employment Court and Court of Appeal, the Privacy Commissioner and the Human Rights Review Tribunal.
[11]I will now outline some of these decisions in more detail
21 December 2016: Employment Relations Authority on the ROS
[12] The Employment Relations Authority found there was no basis for setting aside the ROS. The Authority found that it was final and binding on the parties pursuant to
11 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZCA 533.
12 At the time of hearing.
s 149 of the Employment Relations Act and settled all matters between Ms Sawyer and the Vice-Chancellor, with the exception of the constructive dismissal claim.13 The Authority said “‘[t]his includes any claims against any officer or employee of the University…’. I find this provision includes the Vice-Chancellor.”14
[13] Ms Sawyer filed a challenge against this decision on 12 January 2017 in the Employment Court. Two decisions of the Employment Court were spawned from this application which I will deal with in the order the decisions were delivered.
23 March 2018: Employment Court determination on disclosure of documents
[14] The first decision made by the Employment Court in relation to Ms Sawyer’s application was an interlocutory determination on the disclosure of documents Ms Sawyer said were held by the Vice-Chancellor.15
[15] Ms Sawyer sought disclosure of numerous documents. In summary, this included all documents pertaining to Ms Sawyer and her health, any work performance records, various IP and email materials, all communications with Ms Sawyer’s former lawyers, any investigation records, all correspondence about Ms Sawyer that occurred during and after her employment and various email threads from Ms Sawyer’s emails with others.
[16] The Employment Court dismissed the disclosure application. It found that none of the categories of documents sought satisfied the test for disclosure in the Employment Court Regulations 2000.16 The Court commented:17
[25] The object of disclosure under the regulations is that, where appropriate, each party has access to relevant documents of the other party but within limits:18
…it being recognised that, while such access is usually necessary for the fair and effective resolution of differences between parties to employment relationships, there are circumstances in which such access is unnecessary or undesirable or both.
13 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 5, at [76].
14 At [30].
15 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 9.
16 At [84].
17 At [25] and [26].
18 Employment Court Regulations 2000, reg 37.
[26] The touchstone for disclosure is, therefore, relevancy tempered by ensuring that disclosure is not oppressive.19 A document is relevant if it directly or indirectly supports, or may support, the case to be presented by either party. It is also relevant if it may prove, or disprove, any disputed fact or is referred to in any other relevant document and is relevant.20
[17] The Employment Court went through each of the categories of documents Ms Sawyer had sought be disclosed. It upheld objections of the Vice-Chancellor on the basis that the documents “do not exist” or the application was premature as the documents were about the “the underlying personal grievance claims not the preliminary issue of the validity of the settlement”.21
[18] The Employment Court noted that some disclosure might be necessary if the preliminary issue of the enforceability of the ROS was decided in Ms Sawyer’s favour.
22 June 2018: Employment Court on the ROS
[19] Ms Sawyer challenged the Employment Relations Authority determination in relation to the validity of the ROS in the Employment Court. In her claim she did not explicitly seek to have the ROS declared unenforceable or set aside. Nevertheless, the Employment Court noted that it was implicit that it would have to first deal with the question of whether the ROS was a bar to further action, being final, binding and enforceable.22
[20] The Employment Court said that underpinning Ms Sawyer’s claims in relation to the ROS were allegations that she “… was coerced, mistaken or acted under duress
… that she was frightened by the University and had no alternative other than to sign the settlement agreement”.23
[21] The Employment Court concluded that the ROS entered into on 24 July 2014 was:24
19 Matthews v New Zealand Post Ltd (No 1) [1992] 3 ERNZ 145 (EmpC) at [150].
20 Employment Court Regulations 2000, reg 38(1)(a)-(d).
21 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 9, at [23].
22 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 10, at [5] and [7].
23 At [9].
24 At [74].
… valid, binding and enforceable. It was the product of arms’ length negotiations between Ms Sawyer and the University in which they resolved their employment relationship problems. The agreement was full and final and is a barrier to proceedings by Ms Sawyer based on any matter resolved by it.
29 November 2018: Court of Appeal decision on the ROS and refusal to order disclosure
[22] Ms Sawyer sought leave to appeal to the Court of Appeal. On 29 November 2018 the Court of Appeal delivered its decision refusing leave to appeal. It said:25
[11] We are satisfied that the proposed appeal is not one that, due to its general or public importance or for any other reason, ought to be submitted to this Court for decision.
[12] First, we note that — as counsel for Victoria University submitted — the Employment Court came to its conclusion as to the validity of the Settlement Agreement on the evidence before it. In those circumstances, there is no room to argue that the Employment Court reversed the burden of proof. Further, to challenge the Employment Court’s finding on the validity of the Settlement Agreement is ultimately to challenge the Employment Court’s factual conclusions regarding Ms Sawyer’s allegations of blackmail, collusion, duress and threatening conduct. As is reasonably evident, that does not amount to a question of law for the purposes of s 214 of the Employment Relations Act.
[13] Secondly, and as regards Ms Sawyer’s submission that [Mr Miller] did not have authority to sign the Settlement Agreement, the submission is that “it was not open to the Court to find the signature of [Mr] Miller valid on the facts”. Again, this does not amount to a question of law for the purposes of s 214 of the Employment Relations Act.
[14] Thirdly, we accept that questions about the legality of settlement agreements may give rise to questions of law of general or public importance. However, we are satisfied that is not the case here. Ms Sawyer maintains that the contract was created illegally because it was procured following victimisation and blackmail. That is the very factual basis upon which the Employment Court declined to set aside the Settlement Agreement for duress
— a factual basis which, as we noted above, is not amendable to a grant of leave pursuant to s 214 of the Employment Relations Act. Insofar as Ms Sawyer says the terms of the settlement agreement are illegal, we agree with the Judge that the terms of the settlement agreement were conventional.
Present factual allegations by Ms Sawyer
[23] The claims made by Ms Sawyer in the 17 page Statement of Claim are wide ranging.
25 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 11.
[24] In summary, Ms Sawyer says that the ROS is invalid for a number of reasons and so does not operate as a bar to her pursuing these proceedings. She says “fake” documents about her were created by one of the senior law faculty members about whom she had complained. She says these “fake” documents were put into the University system. These, Ms Sawyer says, include emails purporting to be sent by her and as well as false information put into her health records held by the University. Once the “fake” documents had been put into the system, she says, they were relied upon in the 2014 investigation, used against her and used to blackmail her into signing the ROS.
[25] Ms Sawyer says as a result of the investigator being given those “fake” documents, the 2014 employment investigation was “a bogus investigation”, the draft investigation report was based on the “fake” information which led to draft findings against her and that she was “blackmailed” or coerced into signing the ROS.
[26] Ms Sawyer says it was only sometime later that she realised the “fake” documents had been put into the system. She says:
(a)Some of the people she has joined in these proceedings might have not known from the beginning about the “fake” documents although they subsequently became aware that the documents were false. Therefore, their involvement then became “knowing” participation in a conspiracy against her.
(b)These people included her own lawyers.26
(c)A conspiracy against her to use the “false” information and “fake” documents resulted. This led to her loss of employment and the damage which she refers to in these proceedings.
[27] Ms Sawyer says she has been asking the Vice-Chancellor for her University human resources employment files as well as copies of the “manufactured” or “fake”
26 The third, fourth and fifth defendants are former lawyers who have acted for Ms Sawyer in connection with her employment disputes with the first defendant and the ROS.
emails. She claims the emails were sent from her email address or computer, but not by her.
The parties
[28] Ms Sawyer has issued these proceedings against seven defendants. The sixth (Ms Scholtens QC) and seventh (the Employment Relations Authority) defendants were added days before the hearing of this application when Ms Sawyer filed the fourth amended statement of claim.
[29] The third (Ms Drayton), fourth (Ms Ryder-Lewis) and fifth (Mr Lloyd) defendants are all lawyers that have previously represented Ms Sawyer in relation to the ROS or employment issues.
[30] The sixth defendant (Ms Scholtens QC) is the barrister instructed to act for the Vice-Chancellor in relation to the claims brought by Ms Sawyer.
Law
Strike out
[31]Rule 15.1 of the High Court Rules 2016 (the Rules) provides:
The Court is empowered to strike out all or part of a pleading if it is frivolous of vexatious; or is otherwise an abuse of the process of the Court.
[32] Where a pleading discloses no reasonably arguable cause of action or is otherwise an abuse of process, an order striking out the whole or part of pleading may be appropriate.27 A court will not strike out a claim summarily unless it can be sure that it cannot possibly succeed.28
27 High Court Rules, rr 15.1(1)(a) and (d); Dotcom v District Court at North Shore [2018] NZCA 442, [2018] NZAR 1859 at [14].
28 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ and Anderson J.
[33] Typically, in strike out hearings the court assumes that pleaded facts, whether or not admitted, are true.29 That does not, however, include pleaded allegations which are entirely speculative and without foundation.30
[34] The Court of Appeal in Dotcom v District Court at North Shore reiterated the limited nature of strike out, as follows:31
[16] The jurisdiction to strike out should be exercised sparingly.32 In Reid v New Zealand Trotting Conference we observed that the purpose of the strike- out power is fundamentally to avoid the misuse of judicial processes which tend to undermine confidence in the administration of justice.33 The re- litigation of matters already determined may constitute an abuse of process for precisely that reason.34
[35] In relation to striking out for abuse of process in Commissioner of Inland Revenue v Chesterfields Preschools Ltd, the Court of Appeal said:35
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes. Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. …
[36] The Vice-Chancellor and Mr Davenport allege these proceedings are an abuse of process because the issues and facts are matters dealt with or should be dealt in the employment jurisdiction or other specialist tribunals rather than this Court.
The Employment Relations Act framework
[37] The Vice-Chancellor says the claims in these proceedings cannot stand as they have been dealt with in the Employment Jurisdiction. I now consider the legislative framework of that jurisdiction.
29 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
30 Dotcom v District Court at North Shore, above n 27, at [15].
31 Dotcom v District Court at North Shore, above n 27.
32 Couch v Attorney-General, above n 28, at [31].
33 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at 9.
34 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541;
Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.
35 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 (footnotes omitted).
[38] The Employment Relations Authority has exclusive jurisdiction to make determinations about employment relationship problems generally.36 This includes: disputes about the interpretation; application or operation of employment agreements; matters related to the breach of an employment agreement; personal grievances; matters related to the good faith obligations imposed under the Employment Relations Act; and any other action that arises from or is related to an employment relationship or the interpretation of the Employment Relations Act. An exception to this is an action founded on tort.37 Section 161(3) also provides that:38
Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.
[39] Mediation services have also been established by the Employment Relations Authority in order to promote “fast and effective resolutions, treat matters presented for mediation in different ways”.39 Any statement, admission or document created or made for the purposes of the mediation and any disclosures in the course of the mediation are confidential.40
[40] The parties to a mediation may enter into agreed terms of settlement.41 The person conducting the mediation must undertake certain tasks before certifying the agreed terms of settlement. Importantly the settlement is final. Once a certificated ROS has been completed, s 149(3)(b) provides:
except for enforcement purposes, no party may seek to bring those terms before the Authority or the court, whether by action, appeal, application for review, or otherwise.
[41] A person who breaches an agreed term of settlement is liable to a penalty imposed by the Authority.42 The Authority may issue compliance orders requiring the parties to comply with the terms of a settlement agreement.43 In this case compliance orders were made against Ms Sawyer to enforce the ROS.
36 Employment Relations Act, s 161.
37 Section 161(1)(r).
38 Section 161(3).
39 Section 145(1)(b).
40 Section 148.
41 Section 149.
42 Section 149(4).
43 Section 151.
[42] Section 152 prevents challenges or calling into question the mediation service on various grounds as follows:
152 Mediation services not to be questioned as being inappropriate
(1)No mediation services may be challenged or called in question in any proceedings on the ground—
(a)that the nature and content of the services was inappropriate; or
(b)that the manner in which the services were provided was inappropriate.
[43] However, any agreed terms of settlement signed under s 149 may be challenged or called into question on the grounds that the effect of the agreed terms of settlement were not properly explained by the Employment Relations Authority member certifying the ROS. The explanation must include that the ROS is final and binding and enforceable by the parties; it cannot be cancelled under ss 36 to 40 of the Contract and Commercial Law Act 2017, and except for enforcement purposes, the terms may not be brought before the Authority or the Court, whether by “action, appeal, application for review or otherwise”.44
[44] A ROS may also be challenged or called into question if s 149(2) is not complied with. That subsection requires the mediator certifying the agreement under s 149 to be satisfied in that the parties with the knowledge of the final and binding nature of the agreement and that it cannot be cancelled or brought before the Authority, are firm in their request to the mediator to sign the agreed terms of settlement.45
[45] The Employment Relations Act establishes the Employment Court.46 The Employment Court is a court of record and has exclusive jurisdiction, among other things, to hear any reviews from the Employment Relations Authority47 and to hear and determine any challenges to the determinations of the Employment Relations Authority.48 The Court has the power to make decisions or orders, not inconsistent with the Act or the individual employment agreement, as “in equity and good
44 Section 149(2)–(3).
45 Sections 149(2)(b) and 152(2).
46 Sections 186.
47 Section 194(1)–(2).
48 Sections 179 and 187(1)(a).
conscience it thinks fit”.49 It may admit and call for evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.50
[46] Except on the ground of lack of jurisdiction and other grounds I discuss below, no decision of the Employment Court is reviewable, challengeable or appealable or may be called into question in any court.51 The Judges of the Employment Court are appointed in the same manner, and have similar powers, rights and privileges as those of the High Court.52
[47] Applications for judicial review and appeals, limited to a question of law, may, with leave, be brought in the Court of Appeal against the relevant Employment Court decision. The Court of Appeal must have regard to the special jurisdiction and powers of the Employment Court, the object of the Employment Relations Act.53
Claims against Mr Davenport
[48] Mr Davenport was the lawyer representing the Vice-Chancellor on employment matters concerning Ms Sawyer. He both advised the Vice-Chancellor in the course of the investigation and also appeared for the Vice-Chancellor at the employment relations mediation which resulted in the ROS. He has apparently continued to act as the Vice-Chancellor’s lawyer in matters concerning Ms Sawyer.
[49]Two main issues arise in relation to the claim against Mr Davenport:
(a)Was he acting as lawyer for the Vice-Chancellor at the material times or did he step outside that role and take on personal responsibility?
(b)If the claims against the Vice-Chancellor are struck out, does it follow that the claims against Mr Davenport as the Vice-Chancellor’s lawyer should also be struck out?
49 Section 189(1).
50 Section 189(2).
51 Section 193(1).
52 Section 200.
53 Sections 214, 216 and 219.
[50] It is only in exceptional circumstances that a lawyer’s duty of care extends beyond his own client. This is always subject to a lawyer’s overriding obligations to the Court.54 Each party is entitled to expect the other party will look to their own lawyer for advice and protection in the usual course.55 Only in circumstances where the lawyer has assumed some responsibility toward the other party, for instance, by the provision of a solicitor’s certificate intended to be relied upon by the other party, will a duty to that party arise.56
[51] A legal representative acting for a public body is not infected with the public character of that body.57 The Court of Appeal in Commissioner of Inland Revenue v Chesterfield Preschools said:
[82] … It is plain that Mr Shamy’s conduct related to the discharge of his professional responsibilities as a lawyer. Any concerns by the taxpayer about Mr Shamy’s conduct as a lawyer can be dealt with in another forum. In our view they do not give rise to a claim for misfeasance in public office. Accordingly the claims against Mr Shamy must be struck out.
[52] In this case the claims made against Mr Davenport relate to his role as a lawyer for the Vice-Chancellor in the employment related matters concerning Ms Sawyer. There is nothing to indicate Mr Davenport assumed special responsibility toward Ms Sawyer nor did he become “infected” by the public obligations of the Vice- Chancellor. Therefore, if the claims against the Vice-Chancellor are to be struck out, the claim against Mr Davenport fall away. To allow them to stand would amount to permitting the claims against the Vice-Chancellor to be relitigated by a collateral attack on his lawyer. Any claims struck out against the Vice-Chancellor must be struck out in relation to Mr Davenport as well.
[53] Even if the claims against the Vice-Chancellor were not struck out the claim against Mr Davenport could not stand as there is nothing to suggest he took on any personal responsibility to Ms Sawyer, even on the facts as put forward by her.
54 Allied Finance and Investments Ltd v Haddow & Co [1983] NZLR 22 (CA) at 24.
55 At 24.
56 At 35.
57 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 35, at [77] and [81].
[54] Accordingly, I conclude that the claims against Mr Davenport are an abuse of process and should be struck out. In summary the relevant claims are the allegation Mr Davenport is liable to Ms Sawyer in breach of privilege58 and that he unlawfully, in breach of good faith, fairness, natural justice and the terms of Ms Sawyer’s contract of employment, arranged to protect the Vice-Chancellor’s managers in various ways.59
[55] To avoid repetition, I deal with the other claims against both Mr Davenport and the Vice-Chancellor below.
The Employment Jurisdiction
[56] It is common ground that disputes between Ms Sawyer and the Vice- Chancellor have been the subject of the claims in the Employment Relations Authority, Employment Court and Court of Appeal. The issue is whether the claims against the Vice-Chancellor and Mr Davenport in these proceedings have been dealt with in that jurisdiction or should have been.
[57] It is an abuse of process for a plaintiff to commence a proceeding in which it seeks to rely on issues or facts which were or ought to have been relied on in a previous proceeding.60 The Court of Appeal in Broadspectrum (New Zealand) Ltd v Nathan reiterated that principle as follows:61
[49] It is incumbent upon a party to litigation to raise every point that is relevant to the issues before the court in that litigation. This proposition is often traced to the following passage from the judgment of Sir James Wigram VC in Henderson v Henderson:62
In trying this question, I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to
58 At [63] and [89] of the statement of claim.
59 At [12(a)]–[12(i)].
60 Beattie v Premier Events Group Ltd [2014] NZCA 184, [2015] NZAR 1413 at [45].
61 Broadspectrum (New Zealand) Ltd v Nathan [2017] NZCA 434, (2017) 15 NZELR 398 (emphasis added).
62 Henderson v Henderson (1843) 3 Hare 100 at 114, (1843) 67 ER 313 at 319 (Ch).
points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
[50] If a party does not raise an aspect of its case in litigation, but then in a later proceeding attempts to introduce it as relevant to the same issue between the parties, that can amount to an abuse of procedure. Lord Bingham put the matter as follows in Johnson v Gore Wood & Co (a firm):63
But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.
[58]I now consider the proceedings dealt with in the employment jurisdiction.
Before the ROS: claims already dealt with in the employment jurisdiction
[59] The Employment Relations Authority has exclusive jurisdiction over matters “relating to or arising out of an employment relationship”.64 That phrase has been the subject of some judicial comment where employment proceedings also raise matters which fall within the jurisdiction of the High Court. Actions found in tort, for instance, are generally outside the Employment Jurisdiction, even where the employment relationship and the tort claims are closely related.
[60] This may also occur where the parties are in an employment relationship and a breach of copyright claim arises at the same time. For instance, in Pain Management Systems (NZ) Ltd v McCallum claims in conversion, breach of copyright, breach of confidence (in relation to separate consultancy agreement, not an employment contract), under the Fair Trading Act 1986 and a patent dispute were determined in the
63 Johnson v Gore Wood & Co (a firm) [2001] UKHL 65, [2001] All ER 481 at 31.
64 Employment Relations Act, ss 161 and 5 definition of “employment relationship”.
High Court rather than the Employment Jurisdiction.65 It may be in appropriate cases the claims may be split between the High Court and the Employment Court.
[61] That is not the situation here. In the present case many of the matters at issue have already been, or should have been, determined in the Employment Jurisdiction. On the same facts, the pleadings here include claims of fraud and deceit, interference with Ms Sawyer by running a “coverup” through the falsification of her records, conspiracy to defraud and to interfere with her contract of employment.
[62] Ms Sawyer alleges she was forced to enter the ROS by the fraud, blackmail and duress applied by various defendants. The remedy sought is that the record of settlement be declared void.
[63] The allegations pleaded by Ms Sawyer of a conspiracy or campaign leading to interference with her employment contract were specifically dealt with by the Employment Court in considering the validity of the ROS. It said:66
[42] Turning to the other matters raised, there is no evidence supporting the idea that Dr Sawyer was the victim of a campaign to remove her from the university or that the investigation was controlled by the persons about whom she complained. The events which led to her employment ending started with her complaint, and not because of action taken by any other person. She claimed emails had been produced by someone other than her, using her work computer. Her evidence was that these emails may have formed part of a body of information used to adversely influence Professor Willis’ investigation (or perhaps weaken the university’s confidence in her as an employee). She also said the university held (or may have held) fake medical information about her. There was no evidence the university possessed faked information of any type or that strange and bizarre documents had ever existed. Furthermore, Mr Miller said the university did not have emails it knew to be fake, or fake medical records, and he was not challenged about that evidence. I accept [RM]’s evidence.
[64] Similarly, the allegations of blackmail, collusion, duress and threatening conduct were dealt with by the Employment Court. The Court of Appeal noted she could not challenge the Employment Court’s factual findings.67
65 Pain Management Systems (NZ) Ltd v McCallum HC Christchurch CP72/01, 14 August 2001 at [22]–[26].
66 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 10.
67 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 11, at [14].
[65] The claims have been comprehensively dealt with in the Employment Jurisdiction. As is apparent from the statutory provisions I have set out above the appellate pathway has been exhausted. The matters are not now able to be challenged or called into question in this Court, despite the proceedings now being framed as including torts.
[66] The matters once determined cannot be litigated again under some other guise. In addition, any matters which could and should have been raised in these employment proceedings should not be allowed to be raised subsequently by way of a collateral attack on the final decisions in those earlier proceedings.68
[67] In Dotcom v District Court at North Shore, the Court of Appeal reiterated that the relitigation of matters that had already been determined may constitute an abuse of process as it amounts to the misuse of judicial resources and tends to undermine confidence in the administration of justice.69 This is based on the principle that court processes should not be employed for ulterior purposes or in such a way as to cause improper vexation and oppression.
[68] It has long been established that it is an abuse of process to initiate proceedings in a court for the purpose of amounting a collateral attack upon a final decision which has been made by another court of competent jurisdiction. This is especially so when the intending plaintiff had the full opportunity to contest the facts in the court by which it was made.70 As their Lordships said in Reichel v Magrath:71
… I think it would be scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again.
[69] The claims in this court insofar as they cover the matters dealt with in the Employment Jurisdiction up to and including the execution of the ROS on 24 July 2014 are an abuse of process and the relevant pleadings should be struck out. I summarise the pleadings as including the allegations that:
68 New Zealand Social Credit Political League Inc v O’Brien [1984] 1 NZLR 84 (CA) at 95.
69 Dotcom v District Court at North Shore, above n 27, at [16].
70 Hunter v Chief Constable of the West Midlands Police, above n 34, at 541.
71 Reichel v Magrath (1889) 14 App Cas 665 at 668, later cited with approval by their Lordships in
Hunter v Chief Constable of the West Midlands Police, above n 34, at 542.
(a)the ROS and actions by the Vice Chancellor were ultra vires the powers and duties of the Vice-Chancellor, with particular reference to s 161 of the Education Act 1989.72
(b)the Vice-Chancellor is liable to Ms Sawyer for a breach of his duties to her including a duty of care, a duty to treat her employment with the “highest ethical standards”, a duty of good faith in employment, a duty of fairness, natural justice and adherence to the terms of Ms Sawyer’s contract of employment.73
(c)the Vice-Chancellor is liable to Ms Sawyer by virtue of torts of fraud, deceit, interference with Ms Sawyers contract of employment, negligence, detinue and conversion.74
(d)the Vice-Chancellor and Mr Davenport are liable to Ms Sawyer in fraud, interference with contract, conspiracy to defraud and deceit.75
(e)the Vice-Chancellor and Mr Davenport are liable for detaining, converting and conspiring to detain and convert Ms Sawyers file.76
(f)the ROS is not valid and is illegal and void as it was created by blackmail, fraudulent misrepresentation, deceit, in error, fraudulently and criminally.77
(g)the ROS was an illegal contract and the Employment Relations Authority did not have original jurisdiction, so the decision is per incuriam.78
72 At [14(a)]–[14(c)] of the statement of claim.
73 At [81].
74 At [82(a)]–[82(d)].
75 At [83(a)], [83(b)] and [83(e)].
76 At [88].
77 At [91(a)]–[91(n)].
78 At [95].
After the ROS: claims yet to be dealt with in the employment jurisdiction
[70] Ms Sawyer says she resigned on 20 February 2015 claiming a constructive dismissal. The ROS provided that her employment would terminate on 25 February 2015 following paid research and study leave from 24 July 2014. Ms Sawyer’s constructive dismissal claim, insofar as it related to the period of 24 July 2014 to 20 February 2015 after the execution of the ROS, remains to be dealt with.79
[71] As I have discussed above, in some proceedings it may be appropriate for issues involved to be heard partly in the Employment Jurisdiction and partly in High Court if the causes of action are facts are so amenable. However, this is not such a case. The constructive dismissal claims presently before the Employment Court deal directly with the excluded period of 24 July 2014 to 20 February 2015. Those matters are within the exclusive jurisdiction of the Employment Jurisdiction as they squarely relate to an employment relationship.
[72] Therefore, the claims in this court insofar as they cover the matters dealt with in the Employment Jurisdiction from the execution of the ROS on 24 July 2014 to the date of Ms Sawyer’s resignation on 20 February 2015 are an abuse of process and should be struck out. The relevant pleadings relate to the allegation the Vice- Chancellor and Mr Davenport forced Ms Sawyer’s resignation for constructive dismissal.80
Other causes of action
[73] Ms Sawyer raised further points in the Statement of Claim which might not have been specifically raised in the Employment Jurisdiction.
Privacy Commission’s investigation
[74] Ms Sawyer also seeks in these proceedings the production of her human resources file, the electronic material, hardcopy of files and extraneous notes by the
79 These proceedings remain on foot in the Employment Court. Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 6.
80 At [83(c)] of the statement of claim.
Human Resources department as well as the production of emails from a number of email accounts.
[75] Ms Sawyer sought production by the Vice-Chancellor of documents as including her HR file and “fake” documents and emails. These claims for access to personal information were the subject of a comprehensive investigation by the Privacy Commissioner.
[76] The Privacy Commissioner’s investigation resulted in a decision not to investigate further and to close Ms Sawyer’s complaint file. In a letter of 31 May 2016 addressed to the Vice-Chancellor advising of that outcome the Commissioner said:
I am satisfied that VUW has done all it can to engage with Ms Sawyer’s many and varied concerns and requests. While Ms Sawyer remains of the view that VUW is withholding personal information from her, and has fabricated information that it is seeking to keep from her, I do not accept that any further investigation into this complaint would be fair to the parties or warranted in the circumstances.
For the above reasons, I have now closed this file under section 71(2) of the Privacy Act. However, I have advised Ms Sawyer of her right to take the complaint to the Human Rights Review Tribunal herself if she wishes.
[77] The Privacy Commissioner in the decision of 31 May 2016 not to investigate the complaint in particular noted:
(a)Victoria University had agreed to action the requests and provide the information that Ms Sawyer had requested and released most of that information to Ms Sawyer at the end of July 2015.
(b)Ms Sawyer then ceased engaging with the Commissioner concerning a list of other information and that was not ultimately sent on to the University.
(c)The various requests made by Ms Sawyer to the University for information and compliance by Victoria University with those requests.
[78] Ms Sawyer then lodged a statement of claim in the Human Rights Review Tribunal challenging the Privacy Commissioner’s decision. In that document she
pursued her claims to the “false documents”. She specified the contraventions of the Privacy Act upon which she relied in her claim to the Human Rights Review Tribunal as follows:
VICTORIA UNIVERSITY BREACHED THE PRIVACY ACT 1993 BY COLLECTING AND USING FALSE INFORMATION AND DOCUMENTS ABOUT ME CREATED BY A COLLEAGUE. IT FAILED TO CHECK THE INFORMATION AND DOCUMENTS WERE GENUINE. IT IS NOT CREDIBLE THAT NONE OF THE DOCUMENTS OR INFORMATION CAN BE FOUND AS THEY ARE STILL BEING USED.
THERE HAVE BEEN BREACHES OF PRINCIPLES 1, 3, 4, 5, 6, 7, 8 AND
11. IF THE FALSE DOCUMENTS HAD NOT BEEN CREATED FOR THE PURPOSES OF FORCING ME OUT OF MY JOB, THERE WOULD BE A BREACH OF PRINCIPLE 10.
THE PRIVACY COMMISSIONER HAS SO FAR CERTIFIED re PRINCIPLE 6.
[79] The information privacy principles in the Privacy Act do not generally confer on any person any legal right that is enforceable in a court of law, with the exception of entitlements conferred in principle 6.81 Principle 6 provides:82
(a)Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—
(a)to obtain from the agency confirmation of whether or not the agency holds such personal information; and
(b)to have access to that information.
(2)Where, in accordance with subclause (1)(b), an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.
(3)The application of this principle is subject to the provisions of Parts 4 and 5.
[80] However, the statement of claim here does not plead enforcement to rights of access to personal information under Principle 6. It focusses on documents and information which Ms Sawyer says are “fake” and created by the Vice-Chancellor and/or his staff.
81 Privacy Act, s 11(2).
82 Section 6.
[81] These claims were also specifically dealt with in the context of the allegations against the Vice-Chancellor in the Employment Court in an attempt to impugn the ROS. The allegations in the Statement of Claim recast as claims for the disclosure of documents under the Privacy Act are an attempt to relitigate the events leading up to and including the ROS, including claims relating to the validity of the ROS.
[82] Nevertheless, I have considered whether it might be appropriate to stay the parts of the statement of claim that relate solely to a claim to enforce access to personal information held by the Vice-Chancellor to allow Ms Sawyer the opportunity to properly plead under s 11 and Principle 6 of the Privacy Act. For instance, she says in her statement of claim:
80. The First Defendant as Chief Executive is liable to provide the Plaintiff with information about her by virtue of the New Zealand Bill of Rights Act 1990 and to produce to the Plaintiff her personal information for checking and correction under the Privacy Act 1993.
[83] However, in the circumstances I do not consider that the pleading in relation to such a claim can stand alone or is tenable. To allow it to stand alone would be an abuse of process in the circumstances:
(a)There is no pleaded basis for a claim for “enforcement” of the right to access of personal information under Principle 6.
(b)The personal information that is sought by Ms Sawyer is the “false information and documents” and is the subject of a claim to the Human Rights Review Tribunal.
(c)The statement of claim filed in that Tribunal relates to documents which Ms Sawyer says are not genuine and have been forged. That is the same claim as pleaded in these proceedings.
(d)The continuation of a simple claim under s 11 of the Privacy Act against Mr Davenport and the Vice-Chancellor for enforcement of access to personal information (Principle 6) in these proceedings offends against
the High Court Rules which are designed to promote the “just speedy and inexpensive determination” of the proceedings.83
(e)Some of the defendants, including Mr Davenport, are not susceptible to claims to enforce access to personal information under the Privacy Act as they are not public-sector agencies holding Ms Sawyer’s personal information.84
(f)The allegations which form the basis of this claim (that the documents are “fake” or “false”) have been dealt with or should have been dealt with in the Employment Jurisdiction.
[84] Ms Sawyer also argues that the Vice-Chancellor and Mr Davenport breached their obligations under the Privacy Act by “not properly safeguarding the plaintiff’s Personal information, causing her loss in damage”. Principle 5 of the Privacy Act relates to storage and security of personal information. Principle 5 does not confer on any person any legal right that is enforceable in a court of law.85 Therefore, those claims are untenable as claims under the Privacy Act.
[85] While the Court should exercise caution in allowing a strike out application, nevertheless “defendants ought not to be subjected to the substantial costs, much of which is usually unrecoverable in defending untenable claims”.86 That is most certainly the case here in relation to claims for personal information by Ms Sawyer.
[86] The Vice-Chancellor also suggested that the Privacy Act provisions which allow an aggrieved individual to bring proceedings before the Human Rights Review Tribunal operate in a similar manner as to the privative clauses in the Employment Relations Act.87 For the reasons above, I do not consider it is necessary to further consider this aspect of the argument.
83 High Court Rules 2016, r 1.2.
84 Privacy Act, ss 3, 6 and 2 definition of “agency” and “public sector agency”.
85 Section 11(2).
86 In a case involving novel issues of law in public law negligence while the Attorney-General v Body Corporate 200200 [2007] 1 NZLR 95 (CA) at [51].
87 Privacy Act 1993, s 83.
[87] Therefore, the claims in this court, insofar as they relate to the Privacy Act, are an abuse of process and should be struck out. I summarise those matters as the pleadings that involve allegations that:
(a)the Vice-Chancellor must produce Ms Sawyer’s personal information for checking and correction pursuant to the Privacy Act.88
(b)the Vice-Chancellor and Mr Davenport deprived Ms Sawyer of her property preventing her from seeking justice.89
(c)the Vice-Chancellor and Mr Davenport are liable to Ms Sawyer for a breach of their obligations under the Privacy Act for not properly safeguarding her personal information.90
Bill of Rights
[88] Ms Sawyer also pleads s 14 of the New Zealand Bill of Rights Act in the context of the Privacy Act allegation.
[89] Section 14 relates to freedom of expression. It provides that everyone has the right to freedom of expression, including the freedom to seek, receive impart information and opinions of any kind in any form.91 I do not consider the pleading of this provision adds anything to the claims for personal and other information which I have dealt with.
[90] Therefore, the pleadings insofar as they relate to the New Zealand Bill of Rights Act should be struck out. The relevant allegation is that the Vice-Chancellor is liable to provide Ms Sawyer with information by virtue of the New Zealand Bill of Rights Act.92
88 At [80] of the statement of claim.
89 At [83(d)].
90 At [87].
91 New Zealand Bill of Rights Act, s 14.
92 At [80] of the statement of claim.
State of the pleadings
[91]The requirements of pleadings were summarised by the Court of Appeal in
Commissioner of Inland Revenue v Chesterfields Preschools Ltd:93
[84] The procedural requirements for statements of claim are spelled out in the HCR. For present purposes r 5.17 (distinct matter to be stated separately), r 5.26 (statement of claim to show nature of claim) and r 5.27 (statement of claim to specify relief sought) describe the key principles. In summary they are:
·The pleading must be accurate, clear and intelligible.
·Sufficient particulars must be given to enable the defendant to be fairly informed of the case to be met.
·While adequate particulars are required, the statement of claim must not stray into setting out the evidence relied upon.
·Separate causes of action must be separately stated.
·The pleading should set out all the elements of the cause of action (in this case misfeasance).
The relief sought must be clearly pleaded in respect of each cause of action and, where there is more than one plaintiff and multiple defendants, the relief sought by each plaintiff against each defendant must be clearly stated.
…
[87] If a statement of claim has been drafted in compliance with the above requirements, then both the court and the defendant parties should have a clear understanding of what is being alleged and against whom. However, verbose, ill-drafted pleadings may defeat the purpose of a statement of claim to such an extent that it is an abuse of process. This principle is intended, as Odgers suggests, to “prevent the improper use of [the court’s] machinery”.94 Pleading should not be permitted to be a means of oppressive conduct against opposing parties.
…
[89] The grounds of strike out listed in r 15.1(1)(b)–(d) concern the misuse of the court’s processes. Rule 15.1(1)(b), which deals with pleadings that are likely to cause prejudice or delay, requires an element of impropriety and abuse of the court’s processes.95 Pleadings which can cause delay include those that are prolix; are scandalous and irrelevant; plead purely evidential matters; or are unintelligible. In regards to r 15.1(1)(c), a “frivolous” pleading is one which trifles with the court’s processes, while a vexatious one contains
93 Commissioner of Inland Revenue v Chesterfields Preschools Ltd, above n 35 (footnotes omitted).
94 Simon Goulding, D B Casson and William Blake Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London 1996) at [10.15].
95 McGechan on Procedure at [HR15.1.03].
an element of impropriety.96 Rule 15.1(1)(d) – “otherwise an abuse of process of the court” – extends beyond the other grounds and captures all other instances of misuse of the court’s processes, such as a proceedings that has been brought with an improper motive or are an attempt to obtain a collateral benefit.97 An important qualification to the grounds of strike out listed in r 15.1(1) is that the jurisdiction to dismiss the proceeding is only used sparingly. The powers of the court must be used properly and for bona fide purposes. If the defect in the pleadings can be cured, then the court would normally order an amendment of the statement of claim.
[92] The pleadings in this case do not comply with the requirements of r 5.26 of the High Court Rules in a number of respects and are generally difficult to follow. In particular, the statement of claim:
(a)Is prolix and diffuse as the material facts and allegations are spread throughout the document.
(b)Lacks clarity and precision.
(c)Includes irrelevant material, including purely evidential matters.
(d)Does not plead all the elements of the various torts that are claimed.
(e)Seeks damages but does not adequately plead causation.
[93] The issues above make it difficult for each of the defendants to identify exactly what is alleged against them for each cause of action. It is almost impossible for the defendants to give a targeted response to the claims against them.
[94] A further defect is that the statement of claim does not specify separately the relief or remedies sought on each cause of action immediately after the pleading of that cause of action.98 The prayer for relief at the end of the document seeks damages in very general terms:
96. The Plaintiff seeks damages for the loss and damage and distress caused to her by the Defendants including punitive or exemplary damages and for the breaches of her rights to justice, free speech and privilege.
96 At [HR15.1.04].
97 At [HR15.1.05(1)].
98 High Court Rules, r 5.27.
[95] In addition, serious allegations are made without proper particulars that set out the basis for each claim.99 To give some flavour of this:100
91.The Plaintiff further says that the document of 24 July 2014 is not valid, being illegal and void because it was created:
a.by blackmail, contrary to section 237 of the Crimes Act 1961;
b.by fraudulent misrepresentation and deceit;
c.to take advantage of a legislative provision believed in error by some to licence the commission of fraud, so fraudulently;
d.to cause the Plaintiff loss and damage, so fraudulently;
e.to be used to prevent the arrest or conviction of [TS] and [GS] contrary to section 312 of the Crimes Act 1961;
[96] The statement of claim is deficient in that it fails to identify the causes of action,101 does not plead relief in respect of each cause of action,102 is unclear as to exactly what is claimed against each defendant103 and contains irrelevant material. The pleadings make bare allegations and do not set out the elements of the causes of action. Further, multiple causes of action are pleaded together.104 For instance:
82. The First Defendant is liable to the Plaintiff for the torts of himself and his staff, including:
a.Fraud and deceit, by the making, holding and using of false records and information about the Plaintiff, causing her loss and damage, and requiring the Plaintiff’s cooperation in a bogus “investigation” on the pretence that it was properly conducted;
b.Interference with the Plaintiff’s contract of employment, by running a coverup of the falsification of the Plaintiff’s records so as to deprive the Plaintiff of the benefit of that contract;
c.Negligence, for failing to discharge his duties to the Plaintiff;
d.Detinue and conversion, for removing the Plaintiff’s copy of her personal records.
99 Rule 5.26.
100 The names of the people against whom the allegations are made are anonymised.
101 Rule 5.26.
102 Rule 5.27.
103 Rule 5.17.
104 Rules 5.14 and 5.17.
[97] While some latitude might be allowed, the pleadings could be described in similar terms to those described by Palmer J in O’Neill v Attorney-General, as being a “mass of factual allegations” thrown at the defendants to “figure out their basis”.105
[98] If the state of the pleadings had been the only matter in contention here, Ms Sawyer might well have been given the opportunity to amend the statement of claim as it relates to the Vice-Chancellor and Mr Davenport and the proceedings stayed for a period for that purpose.
[99] However, given my conclusions on the substance of the claims the pleadings constitute an abuse of process against the applicants. The failure of the pleadings to comply with the rules merely adds a further reason to strike out the proceedings against the Vice-Chancellor and Mr Davenport.
Conclusion
[100] Accordingly, I conclude orders should be made striking out the pleadings insofar as they relate to claims against the Vice-Chancellor and Mr Davenport. My reasons can be summarised as follows:
(a)The validity of the ROS has been confirmed by the Employment Jurisdiction and that finding cannot be challenged in these proceedings.
(b)The claims brought in these proceedings have been or should have been determined in the Employment Jurisdiction.
(c)The facts and issues raised relating to the constructive dismissal claim concerning issues arising from period 24 July 2014 to February 2015 are within the exclusive jurisdiction of the Employment Jurisdiction.
(d)The claims relating to the production of material and information for which relief is sought has been dealt with by the Employment Court
105 O’Neill v Attorney-General [2018] NZHC 1073 at [30].
and the Privacy Commissioner. Relevant proceedings are extant in the Human Rights Review Tribunal.
(e)Mr Davenport was acting as the Vice-Chancellor’s lawyer and took on no personal responsibility to Ms Sawyer.
(f)The claims have been struck out against the Vice-Chancellor and there is no reason to allow the same claims to be made against Mr Davenport.
(g)In general terms the fourth amended statement of claim does not comply with the High Court Rules in a number of respects. The pleading is discursive, confused and lacking clarity such as to make it almost impossible for each defendant to plead with precision.
[101]I order that the pleadings insofar as they related to claims against the Vice-
Chancellor and Mr Davenport defendants be struck out.106
[102] I note that the confidential terms of ROS are subject to a permanent non- publication order made by the Employment Relations Authority.107
Costs
[103] If the parties are unable to agree on costs memoranda should be filed as follows:
(a)The Vice-Chancellor and Mr Davenport to file within seven days of the date of the delivery of this judgment;
(b)Ms Sawyer is to respond on or before a further seven further days;
(c)The Vice-Chancellor and Mr Davenport may file their reply (if any) on or before a further three days.
106 An appeal is available from this decision.
107 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 5, at [4]–[5].
Grice J
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