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

RICKS v TE PŪKENGA t/a ARA INSTITUTE OF CANTERBURY [2023] NZHC 936 [26 April 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-000424[2023] NZHC 936BETWEEN TAHI JHETT RICKSPlaintiffAND TE PŪKENGA – NEW ZEALANDINSTITUTE OF SKILLS ANDTECHNOLOGY T/A ARA INSTITUTE OFCANTERBURYDefendantHearing: 27 March 2023Appearances: Mr Ricks, Plaintiff, in personO D Peers and C F Olds for DefendantJudgment: 26 April 2023JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 26 April 2023 at 4.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] Tahi Ricks successfully completed two years of a three-year Bachelor ofArchitectural Studies (BAS) degree at the Ara Institute of Canterbury (Ara).1 He sayshe did not undertake his final year of study in 2022 because of Ara's COVID-19vaccination policy. Under the Policy, Mr Ricks was not permitted to attend campusunless he was fully vaccinated against COVID-19 or had a Ministry of Healthapproved vaccine exemption. Mr Ricks did not accept the Policy and withdrew fromthe BAS and has not returned to his studies.[2] Mr Ricks seeks declarations that Ara breached a re-enrolment contract withhim by changing the conditions of his study without his consent and breached also theEducation (Pastoral Care of Tertiary and International Learners) Code of Practice 2021(the Code). In addition, he seeks a declaration that Ara failed to rebut a "rebuttableaffidavit" such that the affidavit has become a "judgement in commerce". Finally, heseeks an order Ara must pay him $10,522,540 as stated in the unrebutted affidavit.[3] This judgment concerns:(a) Mr Ricks' application for summary judgment on the last aspect of hisclaim; that is that Ara must pay him $10,522,540 because it failed torebut a rebuttable affidavit he had issued to it; and(b) Ara's applications that Mr Ricks' claims be struck out in its entirety, orthat summary judgment be entered against Mr Ricks.Factual background[4] In 2020, Mr Ricks commenced study at Ara for a BAS degree. He completedthe 2020 and 2021 academic years with good grades.[5] In early 2020, the COVID-19 pandemic began. During 2020 and 2021 therewere periods when students could not attend campus and Ara was able to continue1 I understand that what was Ara Institute of Canterbury Limited is now a business division of TePūkenga – New Zealand Institute of Skills and Technology and since 1 November 2022 is knownas Te Pūkenga – New Zealand Institute of Skills and Technology t/a Ara Institute of Canterbury,but neither party suggested that this affected the present applications.offering courses by alternative teaching methods. In respect of the BAS, Ara offeredthis course remotely during lockdowns.[6] In late 2021, the Government moved to a new COVID-19 ProtectionFramework (the CPF Order),2 characterised by red, orange or green traffic-lightsettings and the use of vaccine certificates to enter certain premises.[7] On 22 November 2021, the Government announced all of New Zealand wouldtransition into the CPF Order on 2 December 2021. The traffic-light setting for eachregion of the country was confirmed on 29 November 2021. It was announced theSouth Island would move into the CPF Order at the orange traffic-light setting. Thissetting did not require vaccination to access tertiary education providers.[8] On around 6 December 2021, Ara sent out re-enrolment forms to students,including Mr Ricks.[9] At around this time, Ara commenced a review of how it would protect staff andstudents from the risk of contracting COVID-19 while attending campus. The seniorleadership team at Ara was considering the introduction of a mandatory vaccinationpolicy. Between 13 and 17 December 2021, Ara undertook consultation concerningits proposed vaccination policy, including with staff and the student council. Ara saysit was not feasible to consult with individual students at that time. A shortenedtimeframe for consultation was necessary due to the health and safety implications ofdelay and the time of year.[10] On 15 December 2021, and during this period of consultation, Mr Ricksreturned his application for enrolment for the 2022 academic year. The enrolmentform stated, and Mr Ricks agreed:By submitting this application, if I accept a place for this programme I agreeto read, understand, and comply with the Ara Terms and Conditions ofEnrolment; Ara Policies & Procedures; and the published programme rules ofAra Institute of Canterbury Limited — including but not limited to PersonalInformation and Privacy Principles, Ara Fee Payment and Ara Student Rightsand Responsibilities.2 COVID-19 Public Health Response (Protection Framework) Order 2021.[11] On 22 December 2021, Ara introduced its COVID-19 Vaccination Policy (thePolicy). Its relevant practical effect for present purposes was that students engaged inAra activities requiring physical attendance upon campus had to be vaccinated or tohave a Ministry of Health vaccination exemption. Non-disclosure of a person'svaccination status was deemed to mean they were not vaccinated. The Policy was tobe reviewed as the Government's mandates and directions were released and updatedwhen deemed necessary by Ara's Board of Directors guided by the Chief Executive.[12] On 22 and 23 December 2021, the Policy was communicated to all staff andstudents via email on the internal MyAra system. There were also further updatesmade on the MyAra system between 23 December 2021 and 27 April 2022.[13] On 23 January 2022, the Government mandated that the whole of New Zealandmove to the red traffic-light setting under the CPF Order, which required tertiaryeducation providers to be either CVC compliant or non-CVC compliant. "CVC" wasa reference to the My Vaccine Pass system and whether a facility would requireentrants to show proof of vaccination as a condition of entry. Ara elected to be a CVCcompliant entity.3 If it had elected to be a non-CVC compliant entity it would havebeen unable to allow students on campus, vaccinated or otherwise.[14] On 4 February 2022, Ara emailed Mr Ricks confirming his eligibility forenrolment for year three of the BAS. Ara's email contained the following notice:Important COVID-19 Vaccination Information For StudentsVaccination against COVID-19 is now required for a number of Ara studyprogrammes and campus facilities. This continues to be updated and it isimportant you visit ww.ara.ac.nz for the latest information to help you makeyour study decisions.[15] Mr Ricks was aware of the Policy as on 8 February 2022 he sent Ara adocument headed "Notice of Conditional Acceptance" stating that under duress heaccepted the Policy but only if certain conditions were satisfied, failing which hewould not provide any information concerning his health status. The conditions3 COVID-19 Public Health Response (Protection Framework) Order 2021, pt 1, sub-pt 3 and sch 7,pt 2, sub-pt 4 (version as of 23 January 2022).required Ara to respond to 14 questions concerning, amongst other things, COVID-19vaccinations, the status of clinical trials and manufacturer safety evidence.[16] Ara responded to Mr Ricks on 16 February 2022. It explained the effect of theCPF Order and the basis upon which the Policy had been prepared. Mr Ricks wasadvised that if he was not vaccinated or did not hold a vaccine exemption, he wasprevented from accessing the campus as a result of the CPF Order because Ara wasrequired to uphold the requirements of New Zealand Government legislation and wasunable to accept any conditions attached to access to the campus. Mr Ricks wasencouraged to discuss alternative options as to how he might complete his studies in away that was compliant with the CPF Order and the Policy.[17] There followed correspondence between Mr Ricks and Ara, during which hewas advised that correspondence learning was not available for the BAS. It wasrecommended he could either pause his enrolment as circumstances might change, orwithdraw.[18] On 2 March 2022, Mr Ricks returned Ara's 16 February 2022 letter on whichhe had prominently written the words "no consent no contract". On that day also,Mr Ricks requested that his enrolment be paused.[19] On 16 March 2022, Mr Ricks requested he be withdrawn from the BAS. Hisrequest was actioned, and he was refunded the enrolment fee he had paid.[20] On 17 March 2022, Mr Ricks sent Ara another document, this time headed"Affidavit of Truth". This document required Ara to dispute "claims, statements,assertions, facts contained herein" which were said to represent Mr Ricks' "truth".There followed 82 matters for Ara to respond to and it was stated that if Ara did notdispute any of the claims that were made within 14 days it would result in an automaticdefault judgment against Ara and it would be liable to Mr Ricks' fee schedule. Thefee schedule contained amounts payable by Ara totalling more than $10 million saidto relate to losses Mr Ricks suffered, including $3 million for harm to his educationand $7 million for harm to his future.[21] On 4 April 2023, Mr Ricks sent Ara a document headed "Notice of Recognitionand Thanks", noting that Ara had failed to rebut the Affidavit of Truth which "nowstands as Truth in Law and a Judgement in Commerce, which no-one can overturn".He stated that "ultimately, this means you — Darren Mitchell/Ara are now liable tothe fee schedule which is remedy for the damages caused to me". He advised that Arahad a further 10 working days to arrange a meeting with him if it would like to discussa settlement figure or arrange payment options, otherwise he would pursue collectionof the debt for the full amount.[22] Ara responded to Mr Ricks on 11 April 2022, rejecting Mr Ricks' claims andupdating him on developments, specifically that the Policy was under reviewfollowing removal by the Government of the vaccine pass requirements.[23] The Policy remained in force until 2 May 2022.Mr Ricks' summary judgment applicationRelevant principles[24] A plaintiff's application for summary judgment is brought pursuant to r 12.2(1)of the High Court Rules 2016. It provides:Judgment when there is no defence or when no cause of action cansucceed(1) The court may give judgment against a defendant if the plaintiffsatisfies the court that the defendant has no defence to a cause ofaction in the statement of claim or to a particular part of any suchcause of action.[25] The correct approach to a plaintiff's summary judgment application is set outin Krukziener v Hanover Finance Ltd as follows:4[26] The principles are well settled. The question on a summary judgmentapplication is whether the defendant has no defence to the claim; that is, thatthere is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1at 3 (CA). The Court must be left without any real doubt or uncertainty. The4 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.onus is on the plaintiff, but where its evidence is sufficient to show there is nodefence, the defendant will have to respond if the application is to be defeated:MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normallyresolve material conflicts of evidence or assess the credibility of deponents.But it need not accept uncritically evidence that is inherently lacking incredibility, as for example where the evidence is inconsistent with undisputedcontemporary documents or other statements by the same deponent, or isinherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 at 341(PC). In the end the Court's assessment of the evidence is a matter ofjudgment. The Court may take a robust and realistic approach where the factswarrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).Mr Ricks' submissions[26] Mr Ricks seeks summary judgment for payment pursuant to the unrebuttedaffidavit. He identifies the issue as whether Ara has an arguable defence to overturnan unrebutted affidavit, and submits it cannot do so. Mr Ricks believes there are10 commercial maxims, which are legal directives that must be upheld by the NewZealand courts and he relies on passages from the Bible in support of his submissionthat an unrebutted affidavit must stand and he is entitled to judgment accordingly. Ina concession to his position, however, at the conclusion of the hearing Mr Ricksadvised he was now prepared to accept just $1 million in satisfaction of this claim.My analysis[27] Mr Ricks' belief in the efficacy of the Affidavit of Truth document is misguidedand his claim for judgment based upon it has no prospect of success. The legal maximsthat Mr Ricks relies upon are not legal directives which the courts must upholdregardless of context. Bible passages are not law enforceable in the courts. Further,the law does not recognise a process of entering judgment on the basis of an unrebuttedaffidavit and certainly not when such affidavit was not issued in respect of anyproceeding then currently before the Court.[28] The pseudo-legal documents Mr Ricks relies upon are commonly presented tothe courts by people influenced by the Sovereign Citizen movement. They have beenconsistently rejected by the courts.5 Mr Peers referred to Bank of New Zealand v5 Warahi v Chief Executive of the Department of Corrections [2021] NZHC 3059 , Warahi v ChiefExecutive of the Department of Corrections [2022] NZCA 105 at [9]–[11] ; Niwa v Commisionerof Inland Revenue [2019] NZHC 853; [2019] NZAR 1104 ; Warren v Chief Executive of theStewart which concerned an application for an order adjudicating Mr Stewartbankrupt.6 Mr Stewart sought to oppose the application on several bases, includingthat the bank had admitted certain allegations contained in an unrebutted affidavitwhich became a judgment in commerce. Associate Judge Bell dealt with this matterquickly by stating "[n]ext, Mr Stewart alleges that the bank, by not refuting hisallegations, is deemed to have admitted them. That submission is simply wrong."7[29] Mr Ricks sought to distinguish the decision in Bank of New Zealand v Stewarton its facts. He is correct that as that proceeding concerned an insolvency matter itarose in a different context than this case but, regardless, the decision demonstratesthat an unrebutted affidavit of the kind Mr Ricks relies upon has no legal recognitionand is of no legal effect.[30] The fact that Ara did not respond to Mr Ricks' Affidavit of Truth documentdoes not give rise to any cause of action recognised in law. Mr Ricks' application forsummary judgment is therefore dismissed.Ara's strike out applicationRelevant principles[31] Ara's strike out application is made pursuant to r 15.1 of the High Court Rules,which provides:Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; orDepartment of Corrections [2017] NZSC 20 ; Rangitaawa v Chief Executive of the Department ofCorrections [2013] NZCA 2 ; Martin v Chief Executive of the Department of Corrections [2016]NZHC 2811 at [20] ; Wallace v Chief Executive of the Department of Corrections [2017] NZSC1 at [4]–[5] ; James v District Court at Whanganui [2022] NZHC 2196 ; James v District CourtWhanganui [2022] NZHC 2309 , Baker v Lawrence [2022] NZHC 2734, Brady v New ZealandPolice [2019] NZHC 1040.6 Bank of New Zealand v Stewart [2015] NZHC 2864.7 At [34].(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.[32] The criteria for striking out are as follows:8(a) pleaded facts, whether or not admitted, are assumed to be true althoughthis does not extend to pleaded allegations which are entirelyspeculative or without foundation;(b) the cause of action or defence must be clearly untenable;(c) this jurisdiction is to be exercised sparingly and only in clear casesreflecting the Court's reluctance to terminate a claim or defence shortof trial;(d) the jurisdiction is not excluded by the need to decide difficult questionsof law, requiring extensive argument;(e) the Court should be particularly slow to strike out a claim on anydeveloping areas of law, particularly where a duty of care is alleged ina new situation.[33] While the Court may receive affidavit evidence on a strike out application, itwill not generally attempt to resolve disputed issues of fact or consider evidence whichis inconsistent with the pleading. However, it need not accept a pleading that iscontrary to indisputable fact9 and may finally decide an issue when it is satisfied thatit has all relevant evidence before it. Such was the case in Chan v Boston Trustees6037 Ltd where Associate Judge Andrews struck out a claim for specific performanceon an agreement for the sale and purchase of shares.10 The Judge noted as follows:8 Attorney-General v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA)at 267.9 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53,62-63.10 Chan v Boston Trustees 6037 Ltd [2021] NZHC 1694.[27] The parties accept that all of the relevant documentation is before theCourt. They agree that it is unlikely that any further relevant evidence,whether oral or otherwise, will be produced at trial.[28] I agree with Mr Jeffs' submission, for the defendants, that I shouldproceed on the basis that all the factual information comprising the contextualmatrix for the interpretation of the relevant documents is before me.Mr Ricks' causes of action[34] Mr Ricks' statement of claim encompasses several causes of action but theyare merged into one. Upon my reading of the statement of claim the causes of actionrelied upon appear to be the following:(a) for payment of a debt under the unrebutted affidavit;(b) that Ara breached a re-enrolment contract with Mr Ricks by introducingthe Policy without his consent;(c) that the Policy breached parts of the Code because Ara:11(i) did not have alternative study options available for Mr Ricks,such as correspondence learning;12(ii) promoted an exclusive culture based on Mr Ricks' medicalstatus;(iii) failed to uphold Mr Ricks' cultural needs and aspirations;13(iv) created access barriers by discriminating and segregatingMr Ricks rendering him unable to access facilities and servicesbased on his medical status;11 While Mr Ricks believes Ara breached obligations owed to him personally, I understand heconsiders other students were similarly affected.12 At the hearing Mr Ricks also said there could have been recorded lectures for students who couldnot attend lectures in person and tuition by Zoom.13 Mr Ricks did not identify how his particular cultural needs and aspirations were affected.(v) withheld information from Mr Ricks regarding the Policy toforce compliance against his will; and(vi) failed to perform its basic function to provide Mr Ricks with aneducation.[35] In terms of the relief sought (and leaving aside relief in respect of theunrebutted affidavit), Mr Ricks seeks:(a) A declaration that the defendant changed the conditions of theplaintiff's engagement with their studies without their consent, afterthey signed the re-enrolment contract.(b) A declaration that the defendant breached parts of [the Code] [36] Ara argues that Mr Ricks is using this proceeding as a vehicle to advancepersonal views about COVID-19 and the use of vaccines. It says Mr Ricks' desire forsubstantial financial compensation in reliance upon the unrebutted affidavit is thegravamen of his proceeding and should the Court strike out his claim for compensationas untenable, the balance of his claims are redundant or of academic interest at best.[37] Further, Ara submits, the balance of the claims are either untenable as a matterof law or should only be pursued using dispute resolution procedures available toMr Ricks contained in the Code. It says the civil claims procedure provides access tojustice for persons seeking legitimate private law remedies but not to advance personalviews on matters which are not justiciable such as the scientific efficacy ofvaccinations.14The claim based on the unrebutted affidavit[38] For reasons given at paras [27]-[30], Mr Ricks' claim based on the unrebuttedaffidavit is not reasonably arguable and is stuck out.14 Citing Reihana v Foran [2022] NZHC 2425 at [38].The breach of contract claim.[39] I am satisfied that I have before me all the relevant correspondence anddocuments necessary to determine the application to strike out this cause of action.[40] Mr Ricks' argument is that he entered into a re-enrolment contract with Ara buthe had not consented to the Policy and was not bound by it. He says Ara breached hisre-enrolment contract by purporting to change the terms of his study and by failing todisclose an intention to implement the Policy before sending him a re-enrolment formon 6 December 2021.[41] It is not entirely clear when Mr Ricks considers he concluded a re-enrolmentcontract with Ara for the 2022 academic year. His submission was:On 4 February 2022, Ara elected to confirm my re-enrolment under theagreement made on 15 December 2021, which did not require me toautomatically assent to future policies.On this basis he may be asserting that the re-enrolment contract was entered into on15 December 2021 or 4 February 2022 and I consider the position as at both dates.[42] Ara argues it did not enter into a re-enrolment contract with Mr Ricks for the2022 academic year. Furthermore, it says that when Mr Ricks submitted hisapplication for re-enrolment he agreed to abide by Ara's policies and procedures.When Ara confirmed on 4 February 2022 that it would accept Mr Ricks for re-enrolment, the Policy had already been introduced and Mr Ricks was, if he accepted aplace in the BAS programme, bound by it.[43] Ara also submits there are other insurmountable difficulties with Mr Ricks'breach of contract claim. It argues it would be unworkable if a tertiary institution wasunable to amend or add to policies and procedures from time to time. To holdotherwise would be to effectively limit its ability to govern to a once yearly event andsubject different students to different sets of policies and procedures depending on thedate of their enrolment. It says such a result would prevent compliance with ongoingstatutory duties and obligations, such as the Health and Safety at Work Act 2015 andthe Code. Ara also submits it has rights and discretions under the Education andTraining Act 2020, which empower it to perform its functions efficiently andeffectively, and it would be inconsistent with such functions, rights and discretionsthat it would be prevented from amending policies and procedures from time to time.[44] The relevant principles to determine whether parties have made a bindingcontract can be found in Fletcher Challenge Energy Ltd v Electricity Corporation ofNew Zealand Ltd.15 The pre-requisites to the formation of a binding contract are, first,an intention to be immediately bound at the point in time when the bargain is said tohave been agreed and, second, agreement, express or found by implication on everyterm which was legally essential to the formation of such a bargain, or was regardedby the parties themselves as essential to their particular bargain.16 Whether the partieshave succeeded in concluding a contract is determined objectively and the Court maygo beyond the words used by the parties to the background circumstances, as well astheir subsequent conduct towards one another.17[45] I accept Ara's position that Mr Ricks' claim alleging breach of contract cannotsucceed because first, he never concluded a re-enrolment contract with Ara for the2022 academic year and, second, if a contract was in fact concluded, Ara did notpurport to change the terms of Mr Ricks' enrolment without his consent, as the Policywas already in effect and was binding upon Mr Ricks.[46] Turning now to the position as of 15 December 2021, Mr Ricks was sent a re-enrolment form on 6 December 2021. By returning the form Mr Ricks was notguaranteed a place on the BAS, nor did he enter into a re-enrolment contract with Ara.The form anticipates that if Mr Ricks satisfies pre-requisite requirements and agreesto certain conditions he may be offered a place in the BAS. Importantly, the formrequired Mr Ricks to confirm that if he accepted a place in the BAS programme heagreed to read, understand and comply with, amongst other things, Ara's Terms andConditions of Enrolment and Ara's Policies and Procedures. Mr Ricks refers to andrelies upon Ara's policy on Learner Rights and Responsibilities which also includesthat students are expected to "Follow Ara policies and regulations". It follows, Ara15 Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand [2002] 2 NZLR 433.16 At [53].17 At [54].did not enter into a re-enrolment contract with Mr Ricks on 15 December 2022 whenhe returned his re-enrolment form.[47] Mr Ricks was offered a position for the third year of the BAS program on4 February 2022 but did not conclude a contract with Ara at that time either. As notedabove, by 4 February the Policy had been introduced and notified to the student bodythrough the MyAra system. By the terms of his re-enrolment form, if Mr Ricks wishedto accept a place on the BAS programme he agreed to read, understand and complywith the terms of the Policy. Ara's 4 February email, states prominently thatvaccination against COVID-19 was required for a number of study programs andcampus facilities and directing Mr Ricks to Ara's website. To create a contract theacceptance of an offer must be both a final and unqualified expression of assent to theterms of the offer.18 Mr Ricks never unconditionally accepted the offer of re-enrolmenton the terms upon which it was made and went so far as to make it clear on 2 March2022, when returning Ara's letter of 16 February, that he had not entered into anycontract with Ara. Accordingly, no contract of re-enrolment was concluded.[48] Mr Ricks' statement of claim is consistent with this analysis. He pleads thathe sent a "Notice of Conditional Acceptance" in response to the 4 February email andthat he only "conditionally accepted and agreed" to the Policy under duress. Further,if there was any doubt about his position, he stated it quite clearly when he returnedAra's letter of 16 February with the words "No consent no contract".[49] Mr Ricks' additional argument that Ara should have disclosed the Policy tohim when sending the re-enrolment form on 6 December 2021 is misguided. Evenupon his view no pre-enrolment contract was concluded as at that date. Further, Arahad not finalised the Policy or even begun to consult with staff and studentrepresentatives in respect of it. Ara's policies and procedures change from time totime and it had no obligation to disclose to Mr Ricks a proposed policy that at thattime it was only considering and that was to be the subject of a consultation process.18 Stephen Todd and Matthew Barber Burrows, Finn and Todd on the Law of Contract in NewZealand (7th ed, LexisNexis, Wellington, 2022) at 3.4.1.[50] While that is sufficient to deal with the breach of contract claim, I also do notaccept Mr Ricks' submission that, in effect, Ara's processes and policies, as far as theyapplied to him, were ossified as at the date he submitted his application for re-enrolment. That can never have been intended and would be both unworkable andinconsistent with the relevant statutory overlay.The remaining cause of action for breach of the Code[51] Mr Ricks' remaining cause of action alleges Ara breached the Code. Ara hassubmitted a substantial amount of affidavit evidence relevant to this claimcontradicting pleaded allegations in Mr Ricks' statement of claim. It would not beappropriate to strike out the claim under r 15.1 in those circumstances. However, Araalso applies for summary judgment in respect of this remaining cause of action and itis in that context that I will consider it.Ara's summary judgment applicationRelevant principles[52] A defendant's application for summary judgment is made under r 12.2 of theHigh Court Rules, which reads:The court may give judgment against a plaintiff if the defendant satisfies thecourt that none of the causes of action in the plaintiff's statement of claim cansucceed.[53] It will be noted that a defendant applying for summary judgment must showthe plaintiff cannot succeed on any of its causes of action.[54] A difference between applications for strike out and summary judgment is thatupon a summary judgment application there is greater scope for the affidavit evidenceto be relied upon, although the Court will generally not attempt to resolve disputedissues of fact.[55] Summary judgment will also not be appropriate where it is possible for aplaintiff to amend its claim so as to remedy defects relied upon by the defendant; itshould only be used where the defendant has a clear answer to the plaintiff whichcannot be contradicted.19 In this respect Elias CJ in Westpac Banking Corporation vM M Kembla New Zealand Ltd relevantly said:20Although [the predecessor to r 12.2] refers to the causes of action "in theplaintiff's statement of claim",[the predecessor to r 15.1] (which permits theCourt to strike out a cause of action) similarly is based upon "the pleading".Under [r 15.1] the Court does not strike out pleadings where a defect can becured by amendment which the party is willing to make. Similarly, theresidual discretion of the Court under [r 12.2] to refuse summary judgmentwould be properly invoked to avoid the oppression which would otherwiseresult if an application by a defendant for summary judgment would pre-empta plaintiff exercising the right to amend the pleadings Indeed, use of thediscretion to enable amendment is arguably more necessary in the interests ofjustice in the case of summary judgment than in the case of strike out becausesummary judgment results in issue estoppel.Breach of the Code[56] Mr Peers submits that although not presented as such, judicial review is whatin fact Mr Ricks seeks in this case, and parties seeking judicial review declarationsshould be encouraged to avoid litigation wherever possible.21 Ara's primary argumentis that as far as Mr Ricks alleges breaches of the Code, he should pursue those usingthe dispute resolution processes that are provided by the Education and Training Act2020 and the Education (Domestic Tertiary Student Contract Dispute ResolutionScheme) Rules 2021.[57] The Code was issued pursuant to s 534 of the Education and Training Act (theAct). Section 534(2) provides that a purpose of the Code is to support theGovernment's objectives for the education of domestic tertiary students by requiringproviders to take all reasonable steps to maintain the well-being and safety of studentsand, as far as possible, that domestic tertiary students have a positive experience thatsupports their educational achievement.19 Westpac Banking Corporation v M M Kembla NZ Ltd [2001] 2 NZLR 298, (2000) 14 PRNZ 631(CA); Attorney-General v Jones (2003) 16 PRNZ 715 (PC).20 At [66].21 Citing Graham Taylor, Judicial Review: A New Zealand Perspective (4th ed, LexisNexis,Wellington, 2018) at 217.[58] Section 535 provides for sanctions to be imposed for breaches of the Code, andss 536-539 provide for a student contract dispute resolution scheme (the DRS). Thepurpose of the DRS is to resolve disputes between students, former and prospectivestudents and providers relating to contractual and financial matters, and claims forredress for any loss or harm suffered as a result of a breach by a provider of the Code.22[59] There is provision for disputes to be subject to adjudication and for the issueof binding rulings and the imposition of non-monetary and monetary remedies,including payment of compensation by a provider to a student of an amount notexceeding $200,000 for damage, loss, or inconvenience suffered.23[60] I do not accept Ara's submission that Mr Ricks' claim for breach of the Codeis not arguable for several reasons. First, the Act and the Code are intended to imposeon providers, such as Ara, obligations owed to and enforceable by students, formerstudents and prospective students. The remedies available to such students mayinclude both monetary and non-monetary redress. While there is a detailed processprovided for the resolution of disputes arising from alleged breaches of the Code,Mr Peers accepts there is nothing in the Act that excludes the jurisdiction of the HighCourt to determine students' claims for breaches of the Code.[61] Further, Ara's submission that Mr Ricks should not be allowed to bring such aclaim before the High Court is premised on the submission that he is, in reality, seekingjudicial review. Ara seeks to draw on decisions made in the judicial review context,but Mr Ricks has not sought judicial review and Ara's submission is incongruent withits position that primarily Mr Ricks is concerned with obtaining financialcompensation.[62] It is also the case that there are limits on the remedies that can be provided tostudents under the DRS, including limits on monetary relief, which would not applyto proceedings before the High Court. Mr Ricks referred to this as one reason he22 Education and Teaching Act 2020, s 536(2).23 Section 537 and Education (Domestic Tertiary Student Contract Dispute Resolution Scheme)Rules 2021, r 25.wanted the case heard in this Court, albeit that his statement of claim does notpresently seek any monetary compensation for breaches of the Code.[63] Ara also submits that whether there had been a breach of the Code is now mootand that in any event on the facts it is not arguable that it has breached the Code. Araagain seeks to draw on judicial review jurisprudence.24 It submits that the impact ofthe Policy upon Mr Ricks was non-existent due to the intervening impact of the CPFOrder and the activation of the red traffic-light setting from 23 January 2022. It is saidthat the CPF Order largely superseded the impact of the Policy and in suchcircumstances the question of whether Ara's actions in implementing the Policybreached the Code is not one that warrants or requires a full civil trial.[64] In my view it is at least arguable the Policy did adversely impact uponMr Ricks by influencing his decision to withdraw from the BAS. This is because,regardless of what decision the Government made as to the traffic-light settings thatwere to apply, the Policy would continue to prevent him from attending on campus foras long as it remained in force, during which period Mr Ricks could not continue hisstudies. A claim brought on that basis is not frivolous and I understand that Mr Rickswas not the only student who withdrew from their studies due to the Policy, and so anydecision made in his favour could have wider implications.[65] As to the merits of Mr Ricks' case that the Code was breached, in making anyfinal assessment of whether that is the case or not, the Court would need to resolve arange of disputed facts and issues that are entirely unsuitable for summary judgment.[66] Ara has therefore failed to satisfy me that Mr Ricks does not have an arguableclaim for relief upon the basis that the Policy breached his rights under the Code.Accordingly, Ara's application for summary judgment cannot succeed.24 Matthew Smith The New Zealand Judicial Review Handbook (2nd ed, Thomson Reuters,Wellington, 2016) at [19.6].Result[67] Mr Ricks' application for summary judgment is dismissed.[68] Mr Ricks' cause of action seeking a declaration and payment for failure by Arato respond to his Affidavit of Truth is struck out (paras 29, 30, 31, 32 33 of thestatement of claim, and paras C and D of the prayer for relief).[69] Mr Ricks' cause of action alleging Ara breached a re-enrolment contract withhim is struck out (para 35 of the statement of claim and para A of the prayer for relief).[70] Ara's application for summary judgment is dismissed.[71] In respect of costs, Mr Ricks is self-represented and would not ordinarily beentitled to costs. In any event, my preliminary view is that both parties have beensuccessful to an extent and it may be appropriate to reserve costs. If, despite thatindication, either party seeks costs, they may submit memoranda which shall be nomore than five pages.[72] The Registrar is to arrange a telephone case management conference fortimetabling directions to be made to progress the case towards a hearing no soonerthan three weeks from the issue of this judgment. I expect the timetable directionswould include that Mr Ricks files an amended statement of claim to reflect the ordersI have made. Mr Peers should confer with Mr Ricks about a suitable timetable.Memoranda dealing with all the matters required for a first case managementconference as set out in sch 5 of the High Court Rules shall be filed at least threeworking days prior to the conference.[73] Finally, I note that while Mr Ricks made a commendable effort in thepreparation of his written submissions and in his oral presentation before me, thechallenges faced by an unrepresented litigant in the High Court are formidable and therisks of incurring significant costs, whether successful or not, are very real. As theremay be other avenues available to Mr Ricks to achieve a resolution of his complaintshe might wish to take legal advice before proceeding further with this claim. Whetherhe does so is obviously a matter entirely for him, but the direction I have made in [72]above is intended to allow him the time to do so._______________________O G PaulsenAssociate JudgeSolicitors:Buddle Findlay, ChristchurchCopy to:Mr T J Ricks (Plaintiff, self-represented)