Practice & Procedure - April 2007

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Credit Consultants Debt Services Ltd v Wilson and Anor

9 Mar 2007, PR Stapp, WA 37/07, (3 pages)

PRACTICE AND PROCEDURE - Application for removal to Employment Court - Application for urgency - Original employment relationship problem involved enforcement of restraint of trade clause - Applicant sought injunctive relief in respect of clause - Problem also involved application for penalties including that third party allegedly aided and abetted a breach - Satisfied matter of urgency because of allegations made, time period involved, and relationship between parties - Nature of relief sought supported urgency - Important question of law likely to arise other than incidentally concerning Authority's jurisdiction in regard to interim injunctive relief for restraint of trade provision and compliance - At very least, jurisdiction for injunctive relief rested in Employment Court - Cause of action to resolve matter lay at heart of matter - If matter filed in Court, any contemporaneous application filed in respect of claim for breach, compliance, and penalties in Authority would involve overlapping proceedings - Removal appropriate for applicant to take advantage of range of remedies available - Removal ordered

Result: Application granted ; Orders accordingly ; Costs reserved

Eagle Technology Group Ltd v Maskell & Ors

20 Mar 2007, J Wilson, AA 80/07, (4 pages)

PRACTICE AND PROCEDURE - Application for removal to Employment Court and urgency - Applicant sought number of injunctions, penalties and damages against respondents for breach of employment agreements - Applicant filed identical application in Employment Court - Court to consider within next few days whether it had appropriate jurisdiction to consider injunctions sought - Appropriate to address question of removal prior to hearing - Nature of application satisfied Authority granting of urgency appropriate - First and second respondents consented to removal - Third respondent did not consent on grounds no complaint before Authority or Court supported it being a party to either proceeding - Important question of law likely to arise other than incidentally - Third respondent's objection to being party to proceedings best dealt with by Court as part of progression of case - Matter removed to Court

Result: Application granted ; Orders accordingly ; Costs reserved

Fraser v The Vice Chancellor, University of Otago

9 Mar 2007, H Doyle, CA 22/07, (5 pages)

RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE - Whether grievance raised within 90 days - Whether communications between parties could be admitted as evidence to support claim grievance raised - Respondent claimed first notified of grievance outside 90 day period - Parties' representatives had telephone conversation after mediation - Personal grievance raised in time during conversation - Respondent submitted conversation continuation of mediation and inadmissible under Employment Relations Act 2000 s148(1)(b) and (d) - Not necessary to hear statements of what occurred at mediation or determine admissibility because phone call not continuation of mediation process, even if initiative for it arose from that process - Respondent claimed communications protected from disclosure to Authority because without prejudice and therefore privileged - Respondent sent letter on same day as conversation confirming belief applicant had no grounds for claim - Claimed letter intended to be without prejudice although not marked as such - Authority doubted whether letter attracted privilege - Nothing in letter had bearing on negotiation or attempt to settle or could be construed as admission of liability - Representative's raising of grievance during phone call not a communication intended to encourage and facilitate negotiation or settlement of dispute - Privilege only applied if dispute existed between parties - It could not exclude proof claim raised by one party - Privilege did not extend to raising of grievance as was independent of negotiations - Even if this not the case, Authority not satisfied letter privileged as contained response to grievance claim - Latter admissible as evidence grievance raised - Without prejudice communications could be admissible if avoided Authority being misled or deceived - That would result if conversation and letter deemed inadmissible - Unjust to applicant if respondent able to maintain not notified of grievance until statement of problem filed - Evidence grievance raised in communications admissible

Result: Question answered in favour of applicant ; Costs reserved

Harland v Commissioner of Police

16 Feb 2007, Shaw J, WC 4/07, (1 pages)

PROCEEDINGS REMOVED FROM EMPLOYMENT RELATIONS AUTHORITY - Application to have matter preliminary question determined - Whether certification of medical experts relied on by defendant complied with s28C Police Act 1958 and implication of any default - Statement of claim alleged medical certifications failed to comply with s28C - Alleged psychiatrist and psychologist engaged by defendant were not properly nominated nor approved therefore certificates not valid - Alleged notwithstanding invalidity, medical reports were in conflict and should have been reviewed - Alleged if plaintiff were in fact unfit then that was due to his working conditions which led to stress and psychological harm - Plaintiff submitted that if certification breached s28C defendant's decision could not stand and plaintiff was never properly dismissed - Preliminary question would therefore determine entire case - Defendant opposed hearing of preliminary question before substantive proceedings - HELD - While plaintiff made valid point, defendant's strong opposition to reinstatement meant that full hearing of all matters was inevitable in order to resolve employment relationship problem - Preliminary question could not be divorced from wider factual matters - Application dismissed - Police officer

Result: Application dismissed ; Orders accordingly ; No order for costs

Lauchlan v Keegan Contractors Ltd

15 Mar 2007, GJ Wood, WA 41/07, (6 pages)

PRACTICE AND PROCEDURE - Admissibility of evidence - Respondent requested applicant attend mediation - Parties attended mediation - Applicant made allegations about what respondent's managing director ("MD") said at mediation - If allegations of what MD said true, applicant's later evidence (about advice he sought of representative) would not have occurred - Found, as matter of fact, claims about what happened at mediation did not occur - Preferred MD's evidence that said nothing at mediation constituting grounds for breaching confidentiality - Approach consistent with Jesudhass v Just Hotel Ltd (cited below) - Applicant could establish other matters from MD's behaviour leading up to mediation, fact of mediation, and events after mediation - While finding resolved issue Authority addressed whether what occurred at mediation not for purposes of mediation and/or for purposes of settling litigation or potential litigation - Initiative to formally address employment issues through mediation unusual - Did not mean initiative unacceptable per se or protections of mediation disregarded - Had events taken place outside mediation "without prejudice" privilege could not have applied - Authority found Court's phrase in Jesudhass v Just Hotel Ltd "for the purposes of mediation" reflected common law requirement communications genuinely be for purpose of settling litigation or potential litigation before confidentiality applied - Authority found Court not holding had to be litigation or potential litigation before confidentiality could apply - Statutory protection akin to common law - However, prerequisites not same - Considered Jesudhass v Just Hotel Ltd concluded parties engaging in mediation to deal with issue in employment relationship were acting for purposes of mediation - All actions taken for purposes of mediation - Certain evidence inadmissible - Ordered documents be altered

Result: Question answered in favour of respondent ; Orders accordingly ; Costs reserved

McKelvie v Spacific Yearbooks Ltd

8 Mar 2007, R A Monaghan, AA 64/07, (4 pages)

RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE - Whether letter marked "without prejudice" could raise personal grievance - On any reading, letter to respondent's counsel raised grievances - Whether privilege meant letter could not be produced or relied on in evidence - Authority considered contents of letter with reference to bearing on settlement negotiations - Due to nature of letter, Authority did not accept approach offended against judicial disapproval of "dissecting out" admissions from rest of without prejudice communication - Privilege properly invoked in respect of "remedies sought" section as had bearing on, or reasonably incidental to, any attempt to settle - Authority had difficulty accepting "background facts" section had that kind of relevance to negotiations - Investigation and determination of grievances would be impeded if correspondence withheld because without prejudice written at start - Section of letter raising grievances had nothing else to do with settlement negotiations - Authority did not believe it could be anything but misled if nothing in evidence to show grievances raised by letter when that was exactly what happened and both parties knew it - If applicant forced to apply for leave to raise grievance out of time the process involved in determining application would compound the misleading of the Authority - Not in interests of justice to permit withholding in entirety a letter raising a personal grievance, particularly if resulted in absence of evidence grievances raised at relevant time - Injustice would be exacerbated by forcing grievant into further litigation to seek leave - Without prejudice letter could raise grievance, but if matter proceeded to litigation and admissibility of letter in issue, question was whether legal tests for attracting without prejudice privilege were met - Authority did not believe they were met in respect of part of letter which raised applicant's grievances

Result: Question answered in favour of applicant ; Costs reserved

NZ Amalgamated Engineering Printing & Manufacturing Union Inc v Air New Zealand Ltd

7 Mar 2007, Travis J, AC 11A/07, (1 pages)

PRACTICE AND PROCEDURE - Proceedings for declaration of injunction and interim injunction - Parties gave notice of discontinuance and sought non-publication orders in relation to pleadings, transcript of evidence and all documents produced to Court - HELD - Parties had reached full and final settlement of all matters arising out of claims and counter-claims - No issue as to costs - In light of confidentiality issues final suppression orders were justified and granted

Result: Application granted (non publication order); Orders accordingly ; No order for costs

NZ Amalgamated Engineering Printing & Manufacturing Union Inc v Air New Zealand Ltd

2 Mar 2007, Travis J, AC 11/07, (1 pages)

PRACTICE AND PROCEDURE - Proceedings for declaration of injunction and interim injunction - Application by defendant to strike out plaintiff's third amended statement of claim - Plaintiff had established case to answer - Reasons to be given later - Application dismissed

Result: Application dismissed (strike out); Orders accordingly : No order for costs

Robson v Ihug Ltd

21 Mar 2007, J Wilson, AA 87/07, (7 pages)

PRACTICE AND PROCEDURE - Whether personal grievance filed within three year limitation period - Grievance raised with respondent 9 December 2003 - Statement of problem filed at Authority 11 December 2006 - Period of time described as beginning from or "after" a specified date, act or event does not include that day or day of act or event - Interpretation Act 1999 s35(2) applied - Point beyond which applicant could not commence action was three year period commencing from 10 December 2003 (day after grievance raised) - Three year period ended Saturday 9 December 2006 - Interpretation Act 1999 s35(6) entitled applicant to commence action in Authority on next working day - Fact respondent had changes of ownership and personnel since applicant's departure not a consideration if statement of problem filed in time - Entitled to have claim investigated - Parties directed to mediation

Result: Application granted ; Parties directed to mediation ; Orders accordingly ; Costs reserved

Selwood v Board of Trustees of Queen Margaret College

20 Mar 2007, R A Monaghan, WA 42/07, (3 pages)

PRACTICE AND PROCEDURE - Authority's investigation meeting into applicant's employment relationship problem adjourned part heard - No determination on matter issued - Respondent's counsel informed Authority television reporter contacted respondent and told it that applicant, witnesses, and family had given interviews in respect of issues before Authority - Respondent considered matter sub judice - Sought direction whether respondent's spokesperson could speak to reporter about issues before Authority or whether remarks should only be of general nature - Necessary to make clear Authority's position on acceptable media reporting of this employment relationship problem - Matter of urgency - Authority exercised power to follow such procedure as it considered appropriate - Print, television or radio interviews with people who had given or were to give evidence could be published or broadcast only after determination on merits issued - Direct reporting by media of evidence given during investigation meeting otherwise permissible, and to be carried out in accordance with legal and ethical obligations of media representatives reporting on civil proceedings in a court - Filming, photography or sound recordings in meeting room, or its immediate vicinity, while investigation meeting continuing could be carried out provided Authority's approval obtained in advance

Result: Orders accordingly ; No order for costs

Welten v ABB Ltd

2 Aug 2006, J Scott, AA 254/06, (6 pages)

PRACTICE AND PROCEDURE - Whether personal grievance filed within three year limitation period - No dispute grievance raised within 90 day period - Applicant sent letter to respondent asserting grievance raised earlier in writing and verbally - Respondent accepted earlier submission and engaged in mediation with applicant - Authority could not ignore intention of time limit in s114(6) Employment Relations Act 2000 ("ERA") - Grievance always encompassed same set of facts - Not open to applicants to "cherry-pick" dates to suit themselves - One grievance raised on four occasions - Grievance not commenced within three years - In alternative asked Authority to exercise discretion to extend time - No explanation for failure to commence proceedings in time - Applicant appeared to be represented throughout - Not possible to assess merits of case - Respondent explained prejudice would suffer if extension granted given departure of critical management personnel - On balance not appropriate to exercise discretion to grant leave under s219 ERA - Could not grant as extension pursuant to s221 ERA as required matter be properly before Authority and this claim was not - Reference in s221(c) ERA to s114(4) did not open door to argue exceptional circumstances should be considered in determining whether to grant extension - Section 221(c) ERA must be read in light of grounds on which Authority may grant leave to raise grievance out of time - Applicant's exceptional circumstances irrelevant to application for extension to time limit in s114(6) ERA - Barred from having grievance heard - Field service engineer

Result: >Application dismissed ; Costs reserved

Weston v Fraser

5 Feb 2007, Shaw J, WC 2/07, (1 pages)

PRACTICE AND PROCEDURE - De novo challenge to determination of Employment Relations Authority - Unjustified dismissal - Application by plaintiff for stay of proceedings - Application by defendant for strike out - Plaintiff failed to comply with previous Employment Court order as condition for stay (see: WC 24/06) - Rather than paying money as directed, plaintiff sought surety over properties to secure amounts to be paid - Defendant alleged plaintiff's surety application too late and not sufficient equity in properties to secure outstanding amount - Defendant applied for strike out of plaintiff's challenge - HELD - Previous conditional stay lapsed and application for stay dismissed - Fixture for challenge vacated - Application for strike out adjourned - Plaintiff to file notice of opposition to strike out by certain date - Strike out application hearing to be set down by Registrar - Car salesman

Result: Application dismissed (stay) ; Application adjourned (strike out) ; No order for costs

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