High Court Finds Crown Discriminated Against Midwives

Friday 27 March, 2026

Executive Summary

On 26 March 2026, the High Court released its judgment in *The New Zealand College of Midwives Inc v The Attorney-General* [2026] NZHC 405, upholding claims brought on behalf of 1,473 lead maternity carer (LMC) midwives.
Gwyn J found the Crown breached a binding 2018 Settlement Agreement with the New Zealand College of Midwives, and that the funding model imposed on LMC midwives amounted to unlawful discrimination on the ground of sex under section 19 of the New Zealand Bill of Rights Act 1990.
The Court awarded damages to the representative plaintiffs and $1,000 to each group member for injury to dignity.
The Crown has filed an appeal, so the judgment is not yet final.
Tompkins Wake acted for the plaintiffs, as part of a trial team led by Robert Kirkness of Thorndon Chambers.

Background

LMC midwives provide most of New Zealand's primary maternity care. Since 1993, their remuneration has been set through Notices issued unilaterally by the Crown under section 88 of the New Zealand Public Health and Disability Act 2000 (now succeeded by the Pae Ora (Healthy Futures) Act 2022), rather than through negotiated contracts of the kind used elsewhere in the health sector.

The New Zealand College of Midwives (the College) first raised concerns about this model in 2015, filing judicial review proceedings alleging the Notice breached the right to freedom from discrimination on the basis of sex under the New Zealand Bill of Rights Act 1990 (NZBORA). Those proceedings were withdrawn following a series of mediated agreements between 2016 and 2018, culminating in the 2018 Settlement Agreement signed on 21 December 2018.

Under that Agreement, the Crown committed to implementing a national midwifery agreement underpinned by a "Blended Payment Model" by July 2020, providing midwives the ability to renegotiate price annually, and ensuring a "fair and reasonable" service price. In return, the College agreed not to pursue further proceedings over the Crown's earlier breach of a 2017 agreement.

When the promised national agreement did not materialise, the College and two representative plaintiffs, Yvonne Hiskemuller and Fiona Hermann, brought a representative proceeding against the Attorney-General on behalf of the 1,473 LMC midwives. The case went to a six-week trial before Gwyn J between 5 August and 13 September 2024, and the judgment was released some eighteen months later.

What the Court Found

The judgment ran to five causes of action. Three findings sit at the centre of the decision.

The 2018 Settlement Agreement was a binding contract

The Crown argued the Agreement contained process obligations only, and that any substantive commitments would either be unenforceable for uncertainty or would improperly fetter the Crown's future policy discretion. The Court rejected each argument. It held that Ms Brooking, the Ministry's Deputy Director-General at the time, had both implied actual authority and apparent authority to bind the Crown, that no Cabinet approval was required as a condition of the Agreement's validity, and that the long-discredited "fettering" doctrine from *Rederiaktiebolaget Amphitrite v R* did not stand in the way of a damages award, applying the more recent Australian authority *Searle v Commonwealth* [2019] NSWCA 127.

On that basis, the Court found the Crown breached three substantive obligations: to implement a national midwifery agreement by July 2020, to give midwives an annual right to renegotiate price, and to pay a fair and reasonable service price.

The Crown fell short of its duty to cooperate and act in good faith

The Court found the Crown did not adequately progress the joint workstreams required under the Agreement, and fell short of its duty of good faith. This included commissioning further pricing analysis (the "PwC Extension Work") without telling the College it had done so, and allowing work on a national provider organisation to be effectively paused following informal advice from the Health and Disability System Review, without transparent communication to the College about what that meant for the Agreement's timeline.

The funding model unlawfully discriminated on the ground of sex

Applying section 19 of NZBORA, the Court compared LMC midwives' treatment with that of obstetricians and general practitioners providing comparable maternity services. It found LMC midwives — a workforce that is almost entirely female — suffered material disadvantage, including financial detriment and loss of professional autonomy, that the Crown had not demonstrably justified.

Remedies

The Court awarded damages to the representative plaintiffs, calculated by reference to what they would have earned had the Agreement been honoured, together with $1,000 to each of the 1,473 group members for injury to dignity, and made declarations on liability.

Tompkins Wake's Role

Tompkins Wake acted for the plaintiffs throughout this litigation, as part of a trial team led by Robert Kirkness along with Mark Hickford, Nerys Udy and Taz Haradasa, of Thorndon Chambers. Our team on the case comprised Kate Cornegé, Kerryn Webster, and Rosalie Reevess, spanning public law, litigation and employment expertise across the six-week trial and the years of preparation that preceded it.

The case involved detailed evidential work reconstructing a decade of dealings between the College and the Ministry of Health, from the initial 2015 judicial review proceedings through six successive interim and settlement agreements, and extensive expert evidence on comparative pay analysis and the "fair and reasonable" service price at the heart of the dispute. The proceeding also required close engagement with Crown contracting doctrine, including arguments on ministerial authority, Cabinet approval, and the historic "fettering" principle that had not been substantially tested in New Zealand in this context.

We acknowledge the courage and perseverance of the New Zealand College of Midwives and its 1,473 members in pursuing this claim over more than a decade, and the support of litigation funder Omni Bridgeway, without which the proceeding would not have been possible.

What Happens Next

The Crown has filed an appeal, and the Ministry of Health has indicated it considers the High Court erred in its findings on both the Bill of Rights issues and the status of the 2018 Settlement Agreement. The case will now proceed to the Court of Appeal, and the ultimate scope of liability and remedy remains subject to that outcome.

Regardless of the appeal's result, the High Court's reasoning on Crown contracting authority, the enforceability of settlement agreements reached through mediation, and how funding structures can give rise to unlawful discrimination claims under NZBORA, is likely to be referred to well beyond this case.