The NZ College of Midwives v Attorney-General - [2026] NZHC 405

Representative proceeding brought by the New Zealand College of Midwives Inc (College), on behalf of 1,473 LMC midwives, against 1the Attorney-General representing the Ministry of Health (Ministry) for breach of contract, breach of obligations to take all necessary steps and work together in good faith, equitable estoppel, quantum meruit, and unlawful discrimination on basis of gender under s 19 of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Alleged commitment to pay LMC midwives fair and reasonable remuneration underpinned all claims.

Lead maternity care (LMC) midwives paid under capped, modular Notices issued by the Crown. Notices relevant to this proceeding issued under s 51 of the New Zealand Public Health and Disability Act 2000 in 2007 and 2021.

In 2017, College abandoned judicial review proceedings against the Ministry in return for promises under a series of six agreements made between 2016 and 2018. Ministry made a series of contractual promises under the final 2018 Settlement Agreement. College believed those promises were to be implemented by 1 July 2020.

First cause of action for breach of 2018 Settlement Agreement. Attorney-General denied existence of substantive obligations under the Agreement and raised series of constitutional issues, asserting Agreement could not bind the Crown.

Held, Agreement enforceable against the Crown. Official who signed Agreement on behalf of Ministry had actual, apparent and implied authority to do so; Agreement not subject to further approvals; Agreement did not impermissibly fetter Crown's future freedom to act.

Held, Agreement required Crown to implement a national midwifery contract by 1 July 2020, pay LMC midwives a fair and reasonable service price by July 2020, and provide ability for midwives to renegotiate fees paid to them on annual basis. Text of Agreement, context and subsequent conduct of Crown all supported this finding. Failure of the Crown to call certain key witnesses gave rise to an inference that their evidence would not have assisted the Crown's case: Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 (CA)).

Held, Crown failed to meet these obligations and breached the Agreement.

Second cause of action for breach of obligations under 2018 Settlement Agreement to take all necessary steps to fulfil its terms and to work together with College in good faith.

Held, obligations both express and implicit in Agreement.

Held, Ministry breached those obligations. Circumstances such as COVID-19 pandemic, Health and Disability System Review and political arrangements did not justify failures.

Third cause of action for equitable estoppel. Plaintiffs claimed Crown represented fair and reasonable price free from gender-based discrimination would be paid from 1 July 2020.

Held, equitable estoppel available against Crown (Commonwealth of Australia v Verwayen (1990) 170 CLR 394); representations clear and unequivocal; plaintiffs relied on representations; reliance reasonable until 1 July 2020.

Held, continued reliance not reasonable after 1 July 2020; individual midwives had not established detriment. Equitable estoppel claim not made out.

Fourth cause of action for quantum meruit based on "free acceptance" (Morning Star (St Lukes Garden Apartments) Ltd v Canam Construction Ltd CA90/05, 8 August 2006).

Held, expectation of payment of fair and reasonable service price was not for those services. No evidence of expectation that price would be paid retrospectively. Quantum meruit claim not made out.

Fifth cause of action was for unlawful discrimination on the basis of gender under s 19 of Bill of Rights. Two step analysis from Ministry of Health v Atkinson [2012] NZCA 184, as framed in J v Attorney-General [2023] NZCA 660, applied.

Held, LMC midwives discriminated against on basis of gender. Obstetricians and GPs suitable comparators. Differential treatment between LMC midwives and obstetricians/GPs. Differential treatment "on ground of' gender as cannot solely be explained by other factors, so gender remains "material ingredient" (McAlister v Air New Zealand Ltd [2009] NZSC 78 per Tipping J). Differential treatment imposes material disadvantage on LMC midwives, in form of financial detriment, lack of autonomy and lack of self-worth.

Held, limit on right to be free from discrimination not demonstrably justified under s 5 of Bill of Rights.

Held, a declaration not an adequate remedy for fifth cause of action (discrimination). Award of damages necessary as incentive to avoid repetition of the breach. $1,000 awarded to each LMC midwife to recognise injury to dignity as result of breach, and to vindicate right (Association of Ontario Midwives v Ontario (Health and Long-term Care) 2020 HRTO 165 considered).

Held, appropriate remedy for first and second (contractual) causes of action to attempt to restore plaintiffs to position if breaches of contract had not occurred. Where plaintiffs' loss not capable of precise calculation, Court entitled to make reasonable assumptions (Yam Seng Pte Ltd v International Trade Corp Ltd [2013] EWHC 111 (QB)). Having regard to the parties' Co-design work, two PwC reports and a benchmarking exercise and a discrete choice model exercise carried out by the plaintiffs' expert witnesses, the Court determined a fair and reasonable service price.

Held, fair and reasonable take home pay, as at 1 July 2020, for a notional LMC midwife working 1.0 FTE was $170,340. Figure to be adjusted for successive years based on Labour Cost Index. 

Held, LMC midwives must be paid the fair and reasonable service price, backdated from 1 July 2020.