William Michael Benge v Air New Zealand Ltd

JurisdictionNew Zealand
CourtEmployment Court
Judgment Date29 March 2010
Docket NumberARC 95/09
Date29 March 2010

[2011] NZEmpC 26


ARC 95/09


IN THE MATTER OF proceedings removed from the Employment Relations Authority

AND IN THE MATTER OF an application for further and better particulars

William Michael Benge
First Plaintiff
Kenneth Carran Maclean Finlayson
Second Plaintiff
Peter Matthews
Third Plaintiff
Mark Francis Raymond Simich
Fourth Plaintiff
Alastair Murray Stewart Russell
Fifth Plaintiff
Bryan Tourell
Sixth Plaintiff
Christopher Robert James Peters
Seventh Plaintiff
Philip Rowan
Eighth Plaintiff
Air New Zealand Limited

Jim Roberts and Randall Walker, counsel for Plaintiff

Kevin Thompson, counsel for Defendants

Application for orders requiring further and better particulars of amended statement of claim — plaintiffs employed as senior airline pilots — they were obliged to either retire or be demoted at age 60 — defendant failed to advise the plaintiffs that the rules constraining pilots over 60 from flying were about to change — causes of action were breach of contract and personal grievances of unlawful discrimination and unjustified disadvantage in employment — compensatory damages sought — whether the statement of claim was adequate under r11 Employment Court Regulations 2000 (statement of claim).

At issue was whether the statement of claim was adequate under r11 Employment Court Regulations 2000 (“ECR”) (statement of claim).

Held:Providing the individual circumstances of each plaintiff were sufficiently differentiated in the common SOC, a joint SOC was appropriate. The overall objective of particulars was to inform the other party and the Court of the nature of the case as distinguished from the mode in which it would be proved (Commerce Commission v Qantas Airways Ltd) in order to prevent surprise and to limit and define issues. Regulation 11 ECR emphasised that there had to be a distinction between facts, and evidence of the facts. Probing for evidence in an application for further particulars was not permitted (Qantas Airways Ltd). It was necessary to state the facts but not the legal result of those facts in a SOC (Re Vandervell's Trust (No 2). It was also inappropriate to introduce controversial legal argument.

The general background paragraphs in the SOC did not require further particularisation in regards to each individual plaintiff, provided that the relevant detail was given later on. For example the relevant collective agreement applicable to the periods in question and any terms or conditions of employment relied upon by the plaintiffs did have to be identified later in the SOC when more specific detail was given.

There were a number of instances in the SOC where the plaintiffs had included unnecessary overpleading. Where matters were dealt with that might arise out of an affirmative defence or other pleading by Air NZ, they amounted to legal submissions and did not belong in a SOC. Because of this overpleading, an order for further particulars would perpetuate and exacerbate the situation.

Where Air NZ's request for particulars was for evidence, its concerns should be properly addressed as ones of evidence or interrogatories. No further particularisation was required. It was for Air NZ to assert in its defence matters that would appear to be within its knowledge, and not for them to be pleaded by the plaintiff (such as details relating to dates of remuneration changes).

In respect of requiring further particulars of the basis on which the plaintiffs alleged implied terms requiring the defendant to treat them fairly and reasonably, it was not appropriate to require the plaintiffs to particularise the entire basis for the implication of terms referred to, and whether they alleged a single implied term or multiple implied items and to list them individually. It was open to Air NZ to deny the existence of such implied terms and for it to be a question at trial or preliminary determination.

The plaintiffs did need to specify whether the statutory obligations set out in the SOC were the only ones relied upon and specify any others. However it was not required that they state whether legislation relied on by the defendants was part of the overall statutory scheme, as the plaintiffs were not relying on this. It was for the defendants to raise this in their statement of defence. The plaintiffs were not required to particularise further the effect of the specified statutory provisions upon the implied terms referred to earlier in the SOC. Implied terms in collective employment agreements that were relied on did need to be specified, but the plaintiffs did not have to particularise how each of the breaches of a statutory obligation amounted to a breach of the implied terms.

Air NZ was not able to seek particulars of matters that had not been pleaded and that might more properly be affirmative defences that it could advance. Where particulars sought were already contained within the pleading, the defendant was probing for evidence, as there were sufficient particulars to fully, fairly and clearly inform it of the case it was required to answer.

Calling for the plaintiffs to particularise “all facts or other matters relied on” in relation to unlawful discrimination was an example of Air NZ seeking inappropriately to prepare the ground for legal argument by requesting particulars as a result of the plaintiffs having sought to plead interpretive propositions of law. The plaintiffs did not have to provide further particulars where it would amount to providing information about how Air NZ may have limited its breach or possible defences to a breach. Where Air NZ's claim for particulars related at best to an anticipated defence, it was unsustainable.

Although the majority of the defendant's applications to particularise were dismissed, some were allowed and, in respect of others, the plaintiffs provided information that satisfied the requests. However the plaintiffs' amended statement of claim was unsatisfactory in a number of respects and they should have the opportunity to consider re-pleading their causes of action more economically and to include changes which resulted from the judgment. The plaintiffs were to have one month from hearing to file and serve a second amended statement of claim.

Applications for further particulars relating to the plaintiffs' unjustified disadvantage grievances were rejected.

Majority of applications for further and better particulars dismissed.



This judgment deals with the defendant's application for orders requiring the plaintiffs to give further and better particulars of their amended statement of claim of 5 November 2010. The hearing to determine these opposed applications is the culmination of a series of attempts to establish the pleadings before this litigation can go to trial. Despite a lengthy conference with counsel in Chambers as long ago as July 2010, the parties have not been able to agree about how the plaintiffs? claims are to be framed and the Court is now required to give directions about these issues.


This is an important case for all parties and raises complex and potentially difficult questions of fact and law. The plaintiffs? claims relate to their treatment by their employer at the peaks of their careers as senior airline pilots. The monetary remedies claimed by the plaintiffs from the defendant may amount to several million dollars and the plaintiffs are not by any means all of the potentially affected pilots. So it is not surprising both that the pleadings are and will be lengthy and complex and that the defendant wishes to explore thoroughly and use all lawful defences that may be available to it.


But that said, the length of time that it has taken even to produce a statement of claim, the dimensions of that statement of claim (96 pages), the length of the hearing of these applications for further particulars (one day dealing only with the broad applicable principles), not to mention the length of this judgment to deal with all of the defendant's claims, all herald difficult and protracted litigation. It is unfortunate that there have been generated, also, complaints of stonewalling, delay for its own sake, and misuse of economic power in litigation. Regrettably, even at this early stage there are indicia of personal animosities which, if they continue, do not bode well for what will be a lengthy and sometimes trying case. Unfortunately, at this early stage at least, I do not consider that the alternative of mediation is so likely to assist the parties that the delays to the proceedings that it may bring will be justified by prospects of resolution. That is not to say, however, that the Court will not keep mediation in mind and indeed it must, under the Employment Relations Act 2000 do so constantly and direct the parties to mediation unless there are good reasons (defined in the statute) for not doing so.


The general nature of the litigation is as follows. The eight individual plaintiffs are or were employed by the defendant as airline pilots. They allege that upon attaining the age of 60 years, they were required by the defendant either to retire or to be demoted, actions which the plaintiffs say were unlawful in several different ways. The plaintiffs claim that the defendant, in breach of contract and/or unjustifiably, failed to advise them that the rules by which over age 60 pilots were constrained from flying in command of aircraft were about to change. They say that if that advice had been given, it would have enabled the plaintiffs either to preserve their employment or to maintain it at the same level as previously and thus would have enabled them to avoid what they say were the injurious consequences of the defendant's breaches. The plaintiffs claim compensatory damages.


The plaintiffs? causes of action are in breach of contract (both individual employment...

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