IN THE EMPLOYMENT COURT AUCKLAND [2015] NZEmpC 136 ARC 25/14. KATHLEEN CRONIN-LAMPE First Plaintiff. RONALD CRONIN-LAMPE Second Plaintiff

Transcription

1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF AND IN THE MATTER BETWEEN AND AND proceedings removed [2015] NZEmpC 136 ARC 25/14 of an application by the defendant for orders requring further particulars of first and second plaintiffs' claims KATHLEEN CRONIN-LAMPE First Plaintiff RONALD CRONIN-LAMPE Second Plaintiff THE BOARD OF TRUSTEES OF MELVILLE HIGH SCHOOL Defendant Hearing: 21 April 2015 (Heard at Auckland) Appearances: J Katz QC and C Pidduck, counsel for first and second plaintiffs H Waalkens QC and P White, counsel for defendant Judgment: 6 August 2015 INTERLOCUTORY JUDGMENT OF JUDGE M E PERKINS [1] This judgment deals with an application by the defendant for further particulars of pleadings. There are four sets of proceedings between the parties presently before the Court. By way of background to the present application, it is helpful to set out briefly the details of these sets of proceedings in chronological order of their filing with the Court: a) ARC 55/13: This is a de novo challenge by Mr and Mrs Cronin-Lampe to a determination of the Employment Relations Authority (the Authority)

2 dated 12 June That determination dealt with personal grievances that Mr and Mrs Cronin-Lampe brought against the defendant and followed a four-day investigation meeting conducted by the Authority. The claims were dismissed in their entirety. The plaintiffs have lodged an amended statement of claim with the Court in respect of the de novo challenge. This has not yet been formally accepted for filing because it raises further matters by way of grievances to those already considered in the determination and which were not raised within the 90-day period prescribed in the Employment Relations Act 2000 (the Act). 2 They were not raised in the proceedings before the Authority. They are now the subject of applications seeking leave to raise further grievances out of time. b) ARC 79/13: This is a de novo challenge by the defendant Board of Trustees to a determination of the Authority dated 30 September It relates to the costs awarded in respect of the plaintiffs unsuccessful personal grievance claims. c) ARC 25/14: This is a matter where statements of problem filed by Mr and Mrs Cronin-Lampe in the Authority have now been removed to the Court. The removal was made pursuant to a determination of the Authority dated 14 April The proceedings involve common law actions for damages for breach of contract, tort and breach of statutory duties and are the subject of this judgment. Issues of limitation have been raised. An application for leave pursuant to s 4(7) of the Limitation Act 1950 has been filed. Affidavits in support and in answer have been filed by the parties. The application was originally filed in proceedings numbered ARC 55/13 but it relates to ARC 25/ Cronin-Lampe v Board of Trustees of Melville High School [2013] NZERA Auckland 249. Section 114(1). Cronin-Lampe v Board of Trustees of Melville High School [2013] NZERA Auckland 446 (costs). Cronin-Lampe v Board of Trustees of Melville High School [2014] NZERA Auckland 146.

3 d) ARC 48/14: This involves applications lodged with the Authority and now removed to the Court. Such removal was made pursuant to a determination of the Authority dated 9 June These are the applications where Mr and Mrs Cronin-Lampe seek leave to raise further grievances against the defendant, which were not raised within the 90-day period prescribed in the Act. They were not raised before the Authority in the statements of problem, the subject of the determination now covered by the challenge under ARC 55/13. If the applications for leave are granted, the amended statement of claim lodged under ARC 55/13 but not yet accepted for filing will become the set of pleadings upon which Mr and Mrs Cronin-Lampe will rely. Nevertheless, if the applications are granted those particular claims will need to be referred back to mediation as that is required by the Act. 6 [2] The present application for further particulars relates to each of the statements of claim each of the plaintiffs filed under ARC 25/14 covering the common law actions for damages for breach of contract and other causes of action. These pleadings were filed in the Court following the determination ordering that the statement of problem filed with the Authority be removed to the Court. The statements of claim appear to contain, in part, causes of action which may not be within the jurisdiction of this Court: specifically, claims based on tort and tortious actions for breach of statutory duty. However, jurisdictional issues, while adverted to by the defendant, have not yet been formally raised or argued and are not required to be the subject of this judgment. [3] The alleged personal grievances and the claims which include the action for damages for breach of contract, relate to a period when Mr and Mrs Cronin-Lampe were employed as counsellors by the defendant. Mrs Cronin-Lampe commenced employment as a long term reliever/counsellor in 1996 and the following year commenced permanent full-time employment as a guidance counsellor. Mr Cronin- Lampe commenced employment as a part-time counsellor with the defendant in 1996 and the following year moved to a full-time counselling position. They 5 6 Cronin-Lampe v Board of Trustees of Melville High School [2014] NZERA Auckland 223. Section 188(2).

4 remained in employment until They carried out their counselling role with students and staff of the defendant during that period. The claims now made include allegations that they suffered trauma as a result of the trying circumstances of the work and the alleged lack of care, oversight and relief by the defendant. The allegations made in the personal grievance claims and the breach of contract claims are similar and so it is proposed that, depending upon the outcome of the limitation and leave applications, the claims in one form or another will be heard together. [4] Differences have now arisen between the parties as to the particulars set out in the statements of claim dated 31 October 2014, filed in ARC 25/14 on behalf of each plaintiff. When the issue of further particulars was first raised by the defendant, it was agreed that counsel would try and resolve the issues arising as to the pleadings. If agreement on any of the particulars sought could not be reached, a formal notice would be issued by the Board and responded to by Mr and Mrs Cronin-Lampe. A formal application would then be made to the Court on any request concerning which the response was not acceptable. That has now occurred and the defendant has filed the application requiring further particulars of the plaintiffs claims. The plaintiffs oppose the application. The application has now been heard by way of submissions. [5] Mr Katz QC, for the plaintiffs, has submitted that the application for further particulars, whilst separate from the personal grievance proceedings under the Act, needs to be considered within the context of the proceedings as a whole. He made the point in his submissions that substantial affidavits in support of the Limitation Act application have been filed by the plaintiffs and the Authority has already conducted a lengthy investigation meeting before issuing the determination on the personal grievances, the subject of the challenge. [6] Further necessary context from the defendant s point of view is the fact that now before the Court for resolution is the application for orders extending the time for commencement of the common law actions (pursuant to the Limitation Act) and extending the time within which the plaintiffs may raise the further personal grievances set out in the amended statement of claim presently held on the Court file (s 114 of the Act). For the purposes of responding to factual matters pleaded and

5 relevant to the Limitation Act application in particular, the application for further particulars therefore assumes considerable importance to the defendant. [7] Following the agreement upon and supply to the defendant of many of the further particulars sought, the remaining disputed particulars sought have been helpfully categorised in submissions from Mr Waalkens QC; and responded to by Mr Katz in his submissions in answer. [8] The first category of particulars relates to the allegations of unusual, exceptional or aggravating stressors. The particulars sought are: what the stressors were, when they were present, what trauma is alleged to have been foreseeable from the stressors and when it was foreseeable. In summary Mr Waalkens submissions on this category were: a) Without the particulars neither the defendant nor the Court can know what the unusual and/or exceptional events alleged are. b) Whether the events which are pleaded in the earlier paragraphs of the statements of claim are events different from those referred to later in the statement of claim to which they appear to relate. Mr Waalkens conceded that the later paragraphs may in part provide particulars if related to the earlier pleadings but they are still inadequate. c) Even if the events in the earlier part of the pleadings relate to the same events referred to in the later part of the pleadings, the stressors associated with those events and the foreseeable trauma associated with them are not detailed. d) The particulars sought under this category of pleadings are central to the claim. Without them the defendant is unable to prepare adequately for trial, consider settlement or respond adequately to the limitation application. If taken by surprise at trial, that may lead to prolonging of the proceedings by adjournment.

6 [9] In response under this category, Mr Katz submitted that the later paragraphs 16.7 and 17 do indeed provide details of the traumatic events and circumstances alleged in the earlier paragraphs. He stated that they occurred throughout the period of employment; and names, dates and details of the events and circumstances are given. [10] The second category of particulars relates to what Mr Waalkens described as vague references to hazards and harm. He submitted that the unparticularised claims are inadequate in the context of the allegation made in the statements of claim that the defendant has failed to identify and manage hazards, or harm. Mr Waalkens submitted that the defendant is entitled to know which hazards are being referred to and when those hazards were present. He submitted that without those details it would be impossible to prepare rebuttal evidence or take other pre-trial steps. Pertinently he also submitted that it would be impossible for the Court to determine the leave applications specifically relating to limitation which are presently before the Court. [11] In response to these submissions, Mr Katz submitted that the defendant is seeking that the plaintiffs plead law by defining harm and hazard which are already defined in the Health and Safety in Employment Act In addition the plaintiffs have responded to the defendant s notice for further particulars on this point by saying that the particulars sought are a matter of evidence and have already been answered in the evidence of the first and second plaintiffs and the medical specialists who gave evidence before the Authority. As well, the plaintiffs gave voluntary particulars by informing the defendant that the hazards included the inherently stressful nature of the work, the excessive workload, the lack of safe systems of work, lack of employer support, bullying and the failure to attend to the matters set out in the opening paragraphs of the statements of claim. [12] The third category relates to the caseload alleged to have been undertaken by the plaintiffs while employed by the defendant. The allegation in the statements of claim is that the defendant failed to ensure that the caseload was at a manageable level. Mr Waalkens pointed out that the claim is in the face of a 14-year period of 7 Section 2.

7 employment over which time the school roll has dropped dramatically. In response to the request for particulars on this category of pleadings, the only additional information that was provided by the plaintiffs was that the caseload was unmanageable from That was the year after commencement of employment by Mrs Cronin-Lampe and the year of commencement of full-time employment by Mr Cronin-Lampe. A further point taken in response to the request was that the particulars were refused on the basis that certain minutes containing the particulars are within the possession and control of the defendant. Mr Waalkens submitted that does not provide a valid justification for refusing to provide the particulars sought. [13] In response to the submissions on this particular category, Mr Katz answered by stating that the plaintiffs responded to the defendants notice by saying the caseload was not within manageable levels by virtue of the number of staff, students and wider community requiring counselling and pastoral care. Melville High School was a low decile high school with an at risk student population for the duration of the plaintiffs employment. He further submitted that the issue of an unmanageable caseload is a matter of evidence. [14] The next category referred to by Mr Waalkens comprises the allegations that students required counselling and pastoral care for various issues. He submitted that vague references made in the statements of claim at paragraph 16.7, that the students suffered from various issues such as grappling with sexual orientation, suffering from abuse, eating disorders, mental health conditions, self-harming or having addictions, is not adequate. While parts of paragraph 16.7 of the statements of claim contain some particulars by naming individual students, a substantial part of the paragraph relates to individual student cases where specific particulars are not provided. Those students or staff members specifically identified are now deceased. Mr Waalkens submitted that the absence of the further details on other students or staff members referred to makes it impossible for the defendant to address the allegations. He also submitted that it would be impossible for the Court to determine the leave applications without further details. He submitted that claiming confidentiality as Mr Katz has done on behalf of the plaintiffs is not an adequate ground to resist providing the particulars; and claiming that the plaintiffs have not retained notes that would provide the necessary information is also not a valid

8 justification. The fact that in any event there has been this loss of documents, Mr Waalkens submitted, makes it even more important that the plaintiffs particularise what the defendant is required to rebut, so that it can investigate any other available witnesses and evidence. Overall, he submitted that the defendant needs to know what is being alleged to enable it to prepare any rebuttal that is necessary. [15] It is clear from Mr Katz s submissions in answer on this category that the concern is as to the plaintiffs special role as counsellors of the students. Those students not already identified would have been expecting confidentiality; and there is a real risk of harm to the students if their identity is required to be disclosed as part of the further particulars. In addition Mr Katz submitted that there is a real risk of harm to the counsellor/client relationship if the particulars are required to be provided. Mr Katz agreed in oral submissions that there could be no objection to providing particulars of the dates when the counselling services of the kind specified in the paragraph occurred. [16] The final category of particulars sought relates to the dates and details of Board of Trustees Student Welfare Committee Meetings, which are referred to in paragraph 17.1 and 17.3 of the statements of claim. Mr Waalkens submitted that there is no detail provided as to when the meetings are alleged to have occurred or what was discussed at them. Further particularisation of these allegations has been resisted on the basis that it is information within the possession and control of the defendant and is a matter of evidence. Mr Waalkens submitted that these are not valid reasons to oppose properly particularising the claims. The only description which has been provided is discussions of guidance statistics and issues. Mr Waalkens submitted that this sheds no greater light on the allegation the defendant is required to answer and that much greater particularisation is required. [17] Mr Katz, in answer, submitted that these particulars relating to the committee meetings were resisted by the plaintiffs as being matters of evidence. In any event Mr Katz submitted that the dates and minutes of the meetings are within the knowledge and control of the defendant. In addition, further details of these meetings are provided in the evidence of the plaintiffs already given.

9 [18] In their submissions counsel helpfully referred to previous cases dealing with applications such as that now before the Court. [19] The requirements as to pleadings in this Court are contained in the Employment Court Regulations 2000 (the Regulations). The Regulations do not contain express provisions as to applications for further particulars. In such a case the Court is required to dispose of the case as nearly as maybe practicable in accordance with the High Court Rules affecting any similar case. 8 Rule 5.21 of the High Court Rules has been followed in this case. [20] The principles applying to such applications are well established. The pleadings are required to be properly drawn and particularised to provide an essential road map of the facts and issues to be relevantly confined at trial. 9 The modern procedure requiring exchanges of briefs prior to trial does not alter that principle. Even though excessively refined pleadings or over-pleading is to be discouraged, this does not mean pleadings are now superfluous. Pleadings are critical to set the parameters of the case and identify the issues and extent of the dispute between the parties. [21] From the standpoint of the defendant, particulars of pleading are important to: 10 a) inform the defendant as to the case they have to meet; b) limit the scope of matters the plaintiff may put in issue at trial (or in the pre-trial settlement discussion); c) enable the defendants to know what witnesses it will need to retain and enable them to start preparing evidence ahead of the formal exchange of evidence; and Employment Court Regulations 2000, reg 6(2)(a)(ii). Thorp v Holdsworth (1876) 3 Ch D 637 at 639; Farrell v Secretary of State for Defence [1980] 1 WLR 172 (HL) at 173; Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218 at 238; Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 18. Platt v Porirua City Council [2012] NZHC 2445.

10 d) provide an opportunity for a defendant to seek summary determination on the basis that the claim as pleaded is untenable. [22] In a situation such as the present where the outcome of pre-trial applications on limitation will be significant, it is not an adequate response to a request for particulars of wide and in some parts relatively unfocussed pleadings to say that the particulars will be/or are contained in evidence, are precluded from disclosure by confidentiality or are already in possession of the defendant. [23] The further particulars now required will not substantially add to or increase the complexity of the plaintiffs pleadings. What is required is a further elaboration on exactly what it is that the plaintiffs require the defendant to answer. The defendant must have further information in order to investigate from its own witnesses and records matters pertinent to any defence it intends to mount. It is significant for instance that in respect of paragraph 16.7 of the statements of claim the plaintiffs have chosen to itemise, with sufficient particularity, some events but not others. It could have been said that those incidents sufficiently particularised are also the subject of evidence rather than pleading and yet they have been elaborated upon. Matters of confidentiality can easily be protected by setting restrictions on the extent to which information is revealed. It could be done by confidential memorandum rather than amended statements of claim. [24] In the present case where limitation issues exist, the plaintiffs need to particularise their claims with more detail than presently provided. For instance, the defendant and the Court are entitled to know the particular timing of those matters pleaded, which the plaintiffs say led to the trauma they are alleged to have suffered and for which damages are claimed. [25] From the Court s point of view it is important for the parameters of relevance to be prescribed when a period of employment subsisted for such a lengthy period but only causes of action arising within a two - or possibly a six-year period prior to commencement of proceedings are actionable. This applies to both the grievances and common law pleadings. If the plaintiffs are not properly pinned down to the relevant events in the proceedings there is the potential that the issues to be

11 determined under the pleadings at trial will not be properly identified and then the risk that the trial will be unnecessarily prolonged. In the event that the defendant is taken by surprise there is the further risk that a lengthy adjournment of that trial will be necessary. [26] It is true as Mr Katz submitted, on the basis of decisions such as BNZ Investments Limited v Commissioner of Inland Revenue 11 and Platt 12 that the courts have warned against over-pleading. However, in view of the fact that there are applications before the Court requiring resolution before trial relating to limitation and extensions of time, accurate particularisation of events and their timing is crucial. That was emphasised by Mr Waalkens in his analysis of Platt. [27] The statements of claim are already quite lengthy but not unduly so having regard to the fact that five causes of action are set out in each. I do not anticipate that the further particulars required by the defendant will unreasonably add to or complicate the pleadings as they presently stand. Indeed greater clarity is likely to be achieved. In addition there is the possibility that if the plaintiffs cannot persuade the Court that it has jurisdiction in all of the causes pleaded, the length of the documents will be reduced. In any event the manner in which further particulars appear to have been provided to the defendant to date have simply been responses by memoranda to particular questions contained in the notices without any subsequent amendment of the statements of claim themselves. This process could be followed and, in view of the confidentiality issues which Mr Katz has properly raised, that would be a preferable process. [28] The further particulars sought by the defendant consistently relate to the contractual causes of action pleaded. No further particulars are requested in respect of the cause of action relating to breach of statutory duties or the cause of action in negligence. I anticipate that in time those will be the subject of a further application in respect of the pleadings. In the meantime it is clear that the circumstances set out in paragraph 16.7 of the statements of claim are the circumstances to which the BNZ Investments Ltd v Commissioner of Inland Revenue (2008) 23 NZTC 21,821. Platt, above n10.

12 particulars of breach in respect of the three causes of action in contract relate. It is these causes of action to which the present application is directed. [29] Having regard to those principles discussed earlier, I am persuaded that the plaintiff should appropriately provide more particulars in respect of the heads of alleged breach and the circumstances upon which those allegations are based. There are crucial dates applying as to whether the plaintiffs are entitled to pursue all of their causes of action. No application is made for further particulars in respect of the challenge but so far as limitation is concerned it is to be noted that s 114(6) of the Act requires proceedings for a personal grievance to be commenced within three years of the grievance being raised. That period may be extended where grounds to do so are established, with an ultimate limitation of six years still applying. [30] In conclusion, I find that the statements of claim are not sufficiently particularised as to enable the defendant to be fairly informed of the case to be met; and are not sufficiently particularised as to enable the defendant reasonably to prepare rebuttal evidence in advance of trial. In addition, in the context of the plaintiffs application under the Limitation Act, there needs to be a further particularisation to enable the defendant properly to mount its opposition to the application and indeed to inform the Court for the purposes of enabling it to determine the application itself. With regard to the particulars of hazards or harm sought, this goes further than simple definition, and once again requires particulars as to identification of the actual hazards and timing as to the alleged breaches. [31] The defendant s application for further particulars annexes the notices which were forwarded to the plaintiffs setting out the further particulars required. I consider that those particulars should be provided in their entirety. I accept the submission made by Mr Katz on behalf of the plaintiffs as to their concerns about breaches of confidence both in respect of the information itself and its effect upon the relationship between counsellor on the one hand and student or staff member on the other. These are real concerns which need to be dealt with appropriately in the manner in which the information is to be provided and protected during the course of the proceedings. It is a matter which can be left to counsel who should advise an appropriate method procuring such protection. However, if there is any

13 disagreement as to the best way of dealing with that issue, the matter may be referred back to the Court. [32] The defendant s application is granted. The plaintiffs are to provide further particulars in relation to each paragraph of their statement of claim for which the defendants have sought particulars as set out in the notices attached to the defendant s application. Such particulars are to be provided within 21 days of the date of this judgment. [33] Costs are reserved. Judgment signed at 1 pm on 6 August 2015 M E Perkins Judge