Tavares v Waikato Institute of Technology
[2023] NZHC 2183
•15 August 2023
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-00019
[2023] NZHC 2183
BETWEEN IVONE DA SILVA TAVARES
Plaintiff
AND
WAIKATO INSTITUTE OF TECHNOLOGY
Defendant
Hearing: 7 August 2023 Counsel:
J Heinstman for the Plaintiff
S Hood and E Macpherson for the Defendant
Judgment:
15 August 2023
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 15 August 2023 at 12 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel: McKenna King, Hamilton
Norris Ward McKinnon, Hamilton
TAVARES v WAIKATO INSTITUTE OF TECHNOLOGY [2023] NZHC 2183 [15 August 2023]
Introduction
[1] During 2020 and 2021, Ivone Tavares, the plaintiff, was a student at the Waikato Institute of Technology (Wintec), undertaking study in the Master of Nursing Science (Pre-registration) programme.
[2] Ms Tavares did not complete the programme. She has since filed this proceeding against Wintec. The crux of her claim is that in the course of her study she was mistreated and faced various forms of discrimination which she alleges amount to breaches of contractual obligations owed to her by Wintec.
[3] Wintec has not yet provided a statement of defence and has instead filed an application for further and better particulars of Ms Tavares’ statement of claim dated 1 February 2023, maintaining that it cannot plead until the further particulars are provided.
Legal principles
[4] The parties are generally in agreement as to the requirements and purpose of a statement of claim. As noted by the Court of Appeal in Price Waterhouse v Fortex Group Ltd, properly drawn pleadings are an essential road map for the Court and the parties.1
[5] The principles applicable to an application for further and better particulars were summarised by Associate Judge Osborne in Benmarroc Estates Ltd v Molyneux Management Ltd:2
(a)The primary purpose of pleadings is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.
(b)The statement of claim should state the claim in each case so that the Court has sufficient clarity and detail to understand the issues it has to
1 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 17.
2 Benmarroc Estates Ltd v Molyneux Management Ltd HC Dunedin CIV-2007-412-735, 23 June 2009 at [8].
rule on, and the defendant knows the case which is to be met and is able to prepare for trial.
(c)Specifically required by r 5.26(b) are such particulars “… of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances as may suffice to inform the Court and the party or parties against whom relief is sought of the plaintiff’s cause of action”.
(d)The pleading must set out the facts or circumstances relied upon as giving rise to each cause of action alleged and the relief claimed as a consequence.
(e)The nature and level of particulars will depend on the facts of the individual case.
(f)The distinction between particulars and interrogatories is important — particulars are matters of pleading, designed to make plain to the opposite party the case to be raised whereas interrogatories are sworn statements of fact, procured by the opposite party to assist that party in proving his or her case.
(g)A request for further particulars can be resisted if the request goes beyond the scope of particulars and probes for evidence.
(h)Questions which a Court can usefully ask itself are:
(i)Has sufficient information been provided to inform the other party of the case they have to meet and to enable them to take steps to respond?
(ii)Is there a real risk that the other party may face a trial by ambush if further particulars are not provided?
(iii)Is the request oppressive or an unreasonable burden upon the party concerned?
(i)In considering whether any party is likely to be taken by surprise, the Court is entitled to have regard to the fact that:
(i)If the particulars sought are within the knowledge or control of the requesting party an order for further particulars may be declined pending the completion of discovery or other matters; and
(ii)Briefs of evidence will be exchanged well in advance of the hearing (see Petrocorp Exploration Ltd v New Zealand Refining Co Ltd (1993) 7 PRNZ 53). The Court is also entitled to take into account its ability in cases with substantial evidence to provide for defendants to have extended periods of time to digest and respond to the evidence of the plaintiff.
The statement of claim
[6]The statement of claim is divided into six parts:
(a)“Background”;
(b)“Placement at Henry Rongomau Bennett Centre”, dealing with events while Ms Tavares was on placement at the centre;
(c)“Placement at Fairfield Medical Centre”, dealing with events while Ms Tavares was on placement at the centre;
(d)“OSCE and Leaving Wintec”, dealing with events associated with Ms Tavares’ study for an objective structured clinical examination and her departure from her course of study at Wintec;
(e)“Cause of Action against the defendant: Breach of Contract”, pleading particular terms of the Education (Pastoral Care of Domestic Tertiary Students) Interim Code of Practice 2019 (the Code), which Ms Tavares alleges comprised terms of the contract breached by Wintec; and
(f)the prayer for relief, which seeks damages to be determined by the Court and costs on a solicitor-client basis.
Discussion
[7] Ms Tavares argues that sufficient facts are pleaded in the statement of claim to inform Wintec of the nature of the claim, and to enable Wintec to respond, and that there is no risk of ambush at trial. Ms Tavares argues that the provision of further particulars would be an unreasonable burden at this stage of the proceeding.
[8] Wintec submits that the claim is novel, and therefore the provision of sufficient particulars is important. Wintec is entitled to understand all the elements of a novel claim for breach of contract.
[9] Wintec’s notice requiring Ms Tavares to give further and better particulars sets out the precise further particulars sought in an expansive list. I do not propose to work through each of the numerous requests individually. It is sufficient to note that in places the requests go too far and stray into the domain of evidence.
[10] However, I accept the fundamental point of the submissions for Wintec. The statement of claim does not give sufficient particulars to fully and fairly inform Wintec of the nature of the claim by reference to the well understood elements of a cause of action for breach of contract.
[11] I will deal with Wintec’s application by setting out the deficiencies in the pleading in general terms and confirming the general nature of the further particulars that are required. The statement of claim already contains a reasonable level of detail, so some re-shaping of the claim and cross-referencing between particular pleadings will go a long way to alleviating Wintec’s justified concerns.
[12] Once an amended pleading has been filed, the adequacy of that pleading can be reviewed and Wintec can consider whether it wishes to again seek further particulars.
[13] Wintec’s criticism of the pleading focuses on four elements of a cause of action for breach of contract:
(a)formation of the contract;
(b)terms of the contract;
(c)breaches of those terms; and
(d)losses caused by the breaches.
[14]That provides a useful basis for assessing the adequacy of the pleading.
Formation of the contract
[15]Ms Tavares pleads:
1.On 12 February 2020, the plaintiff was offered a place in the Master of Nursing Science (Pre-Registration) Course.
[16] This pleading appears to be duplicated in para [38] of the statement of claim. The relationship between paras [1] and [38] of the statement of claim needs to be clarified, including whether the “Offer of Place” was an offer to enter into a contract.
[17] Ms Tavares needs to provide particulars of the form of her acceptance of the offer.
[18] All pleadings relevant to the formation of the contract should appear in one part of the statement of claim, at the beginning.
Terms of the contract
[19]Ms Tavares’ pleading of terms is problematic in three respects:
(a)Most of the relevant terms are drawn from the Code, and these terms are not pleaded until paras [40] and [41] of the statement of claim, under the subheading, “Cause of action against the defendant: Breach of Contract”. This comes after the pleading of facts said to amount to the breaches of those terms. The sequence should be reversed.
(b)There is a further term of the contract pleaded in para [9] of the statement of claim, which is in addition to the terms drawn from the Code. That occurs under the heading “Placement at Henry Rongomau Bennett Centre”. The term pleaded in para [9] should be pleaded in the same part of the statement of claim as the other terms of the contract drawn from the Code. Logically, this should be after the “Background” and before the pleading of the particulars of the breaches (the latter occurring under the three subheadings “Placement at Henry Rongomau
Bennett Centre”, “Placement at Fairfield Medical Centre” and “OSCE and Leaving Wintec”).
(c)Finally, the statement of claim does not make it clear whether the terms drawn from the Code, and the additional term in para [9] of the statement of claim, are express or implied, written or oral. These particulars need to be provided.
Breaches of the terms
[20] As already noted, the breaches are grouped under the three subheadings “Placement at Henry Rongomau Bennett Centre”, “Placement at Fairfield Medical Centre” and “OSCE and Leaving Wintec”. The pleadings are deficient because they do not focus on acts or omissions by Wintec which are claimed to be in breach of the terms of the contract. Further, the pleaded facts of breach should be cross-referenced to the specific terms of the contract said to be breached.
The losses caused by the breaches
[21]The only pleadings that appear to relate to losses are the following:
35.The plaintiff has been set back by at least two years in her career. If Wintec had complied with its contractual obligations, the plaintiff would have graduated in 2022.
36.The plaintiff has been forced to pay additional fees (University of Waikato course fees) and has had to remain in New Zealand for longer than intended as she had planned to return to Europe after completion of her degree.
[22] Paragraphs [35] and [36] of the statement of claim currently appear within the section “OSCE and Leaving Wintec”. However, during argument, counsel for Ms Tavares confirmed that these allegations of loss relate to all three categories of breaches, being “Placement at Henry Rongomau Bennett Centre”, “Placement at Fairfield Medical Centre” and “OSCE and Leaving Wintec”. Therefore, the allegations in paras [35] and [36] should form a separate section of the pleadings dealing with the events of loss said to have arisen from all of the alleged breaches of the contract.
[23]Ms Tavares needs to plead the facts that establish:
(a)the nature of the loss;
(b)how and why the loss arose;
(c)the causal connection between the alleged breaches of the contract and the loss; and
(d)a reasonable estimation of the loss and the basis for that estimation.
Result
[24] The plaintiff must file an amended pleading, incorporating the amendments discussed in paras [16]–[20], [22] and [23] of this judgment. Rather than provide a prescriptive ruling regarding the specific particulars required, I will afford the plaintiff an opportunity to replead based on the directions in this judgment, on the basis that the defendant will be afforded an opportunity to request further particulars and to bring a second application if necessary.
[25] Although Wintec’s application has been successful, counsel for Ms Tavares has previously advised the Court that Ms Tavares remains in receipt of a grant of legal aid. If so, then there is no basis for an award of costs in Wintec’s favour. Counsel for Ms Tavares is directed to file a memorandum within five working days of receipt of this judgment, confirming whether Ms Tavares remains in receipt of a grant of legal aid.
[26]I make the following further directions:
(a)The plaintiff shall file and serve an amended statement of claim by 1 September 2023, providing the further particulars directed in this judgment.
(b)The defendant shall file and serve a statement of defence to the amended statement of claim by 22 September 2023.
(c)The proceeding is adjourned for a case management conference on the first available date after 22 September 2023.
Associate Judge Brittain
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