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646 Victoria (Hamilton) Ltd v Phillips
23 May 2007, Perkins, J, AC 29/07, (1 pages)
PRACTICE AND PROCEDURE - Application to strike out proceedings by defendant - Delay - No appearance by plaintiff - Plaintiff filed de novo challenge and application for stay of Authority proceedings in August 2006 - Court granted stay and directed remedies awarded by Authority be paid into Court - Plaintiff failed to comply - Plaintiff failed to co-operate with progression of proceedings - HELD - Clear that plaintiff had no intention of proceeding with challenge - Delay caused substantial prejudice to defendant particularly in enforcing Authority determination - Application granted - Defendant's cross-challenge withdrawn - COSTS - Defendant awarded $3,000 costs for Court proceedings
Result: Application dismissed ; Orders accordingly ; Costs in favour of defendant ($3,000)
Eastern Bay Indepenent Industrial Workers Union Incorp v Cater Holt Harvey Ltd
30 Nov 2006, V Campbell, AA 322A/06, (3 pages)
COSTS - Unsuccessful application to reopen investigation meeting - Length of investigation meeting less than one day - Respondent sought full costs of $37,951 - High costs due to respondent's need to respond to three statements of problem with range of claims - Not appropriate case for indemnity costs - Two Calderbank offers made and applicant on notice respondent intended to seek full costs - Both offers reasonable and, along with respondent's warnings, significant factors to be considered - Obligation on applicant to contribute significantly to post-offer costs
Result: Costs in favour of respondent ($10,000)
Grenside v Gaskin
30 Apr 2007, D Asher, WA 67/07, (7 pages)
BREACH OF CONTRACT - Matter dealt with on papers - No appearance for respondent - Other than statement in reply no submissions filed by respondent - Applicant alleged respondent breached confidentiality of mediated settlement and sought damages and penalty - After parties settlement reached at mediation, applicant applied for taxi licence - Respondent emailed LTNZ referencing his dismissal of applicant, how much it cost him in "unfair dismissal costs" and made other allegations - As result of email LTNZ halted application - LTNZ obliged to make inquiries on applicant's fitness to hold licence - Because other allegations contested and irrelevant to present application, non-publication of allegations ordered - Respondent breached obligation to keep fact of proceedings, settlement and its terms confidential - Breaches gratuitous, deliberate, and amounted to serious breach of applicant's employment agreement - "Unfair dismissal costs" not reference to legal costs and close to amount agreed in settlement - Respondent claimed properly exercised right to file objection under public notification - Claim rejected since allegations not relevant to purpose of objection and had nothing to do with applicant's character/fitness to hold licence - Other prohibited allegations may have proved relevant and could have been advanced without unnecessarily breaching confidentiality obligations - However, respondent clearly not prepared to appear in Authority - Damages - Applicant claimed breach affected ongoing employment in taxi industry - Claim unsupported by evidence - Reasonable to expect some evidence of impact email had on application for licence and re-employment experiences - Unconscionable for applicant to recover damages out of proportion to actual loss - Damages not established - PENALTY - Respondent largely failed to defend very serious claim - Respondent well-placed to communicate concerns without reporting dismissal and amount it cost him - Comments unrelated to application and clearly breached undertakings as to confidentiality - Due to distress caused applicant awarded half of penalty - COSTS - Length of investigation meeting not specified - Applicant awarded fair and reasonable costs of $1,800
Result: Application granted (Breach of contract) ; Application dismissed (Breach of contract) ; Penalty ($4,000)($2,000 payable to Crown)($2,000 payable to applicant) ; Costs in favour of applicant ($1,800)
Rural Women New Zealand Incorporated v Jehma
2 Nov 2006, D Asher, WA 151/06, (4 pages)
COMPLIANCE ORDER - Compliance with record of settlement sought - Respondent confirmed had not adhered to terms of settlement - Attributed failure to period of unemployment and other financial commitments - Respondent submitted now able to pay sum in instalments as originally agreed - Applicant also sought interest and costs - Respondent had not disputed any aspect of applicant's claim - However, Authority did not accept interest claim because of amount sought and applicant had claimed it under District Courts Act 1947 - Current 90-day bill rate fair and reasonable rate - Compliance ordered - COSTS - Length of investigation meting not specified - Applicant awarded costs of $2,000
Result: Application granted ; Compliance ordered ; Interest ($186)(7.58%) ; Costs in favour of applicant ($2,000) ; Disbursements ($70)(Filing fee)
Service & Food Workers Union Nga Ringa Tota v OCS Ltd
21 Mar 2007, Shaw, J, WC 8A/07, (1 pages)
COSTS - Successful de novo challenge to Employment Relations Authority determination - Plaintiff sought unspecified costs - Challenge related to dispute about interpretation and operation of collective agreement - HELD - Both parties ultimately benefited from having definitive ruling - Costs to lie where they fell
Result: Cost to lie where they fall
Snorkel Elevating Work Platforms Ltd v Thompson
3 Nov 2006, PR Stapp, WA 73A/06, (4 pages)
PRACTICE AND PROCEDURE - Issue raised regarding interest payable by respondent - Claim for interest disposed of at time of substantive determination - Matter closed - COSTS - Both parties claimed costs for respective applications that had been consolidated and heard together - Length of investigation meeting not specified - Each successful with own claim - Applicant sought contribution of $15,000 towards total costs of $35,000 for its recovery application - Submitted costs should lie where they fall for respondent's personal grievance - Also sought disbursements of $22,469, including expenses relating to video conference, witnesses, and counsel's travel - Respondent's costs were $25,148 for recovery action, and $18,078 for his personal grievance - Costs ordered on both applications as Authority satisfied both genuine and not just matter of leverage against each other - Expense of video conferencing to be shared as benefited both parties - No other disbursements ordered because both parties required to prepare for investigation, inevitably involving photocopying etc - Both parties chose their counsel and travel expenses inevitable part of proceedings given applicant's obligations involved attendance in New Zealand - Respondent should not have to pay for applicant's choice - Attendance of witnesses a standard requirement - Given employer was applicant it should meet own witness costs - Respondent to pay costs of $6,000, being 40 percent of reasonable costs of $15,000 - Assessment based on preparation, representation and time involved in Authority investigation, and because of proportionality of applicant's claim - Applicant to pay $3,000 towards respondent's costs for straight forward personal grievance
Result: Orders accordingly ; Costs in favour of applicant ($6,000) ; Disbursements in favour of applicant ($657.13)(Video conferencing) ; Costs in favour of respondent ($3,000)
South Taranaki Free Kindergarten Association v McLennan
6 Mar 2007, Shaw J, WC 9/07, (1 pages)
COSTS - Successful non de novo challenge and unsuccessful cross-challenge - Plaintiff successfully challenged reinstatement order - Plaintiff made Calderbank offer prior to Court hearing - Plaintiff sought $8,000 contribution to actual Court costs of $11,221 plus disbursements of $935 - Plaintiff submitted defendant should have costs in Authority of $2,000 for successful unjustified dismissal claim - Defendant submitted costs should lie where they fell - Defendant submitted unjustified dismissal catastrophic for her because of limitations in obtaining satisfactory alternative employment - HELD - Was appropriate that defendant pay proportion of plaintiff's costs because of Calderbank offer which was generous and realistic - Court took into account plaintiff's difficulties regarding future employment and that she had to call on retirement savings to fund litigation - Those factors persuaded Court not to order full indemnity/solicitor client costs - Costs in favour of plaintiff $8,000 plus $925 disbursements in Court - Costs in favour of defendant of $2,000 in Authority - Total due to plaintiff $6,925 - Calculation of outstanding wages reserved
Result: Costs in favour of plaintiff ($8,000) Disbursements ($925)(Court) ; Costs in favour of defendant ($2,000)(Authority) ; Calculation of outstanding wages reserved
Uelese & Uelese v Conference of Samoan Adventist Church
28 Aug 2006, L Robinson, AA 275/06, (3 pages)
COMPLIANCE ORDER - Applicants sought compliance with record of settlement - Authority's file documented considerable difficulty in obtaining respondent's co-operation - Authority minute directed investigation meeting to proceed as consequence of respondent's failure to take any steps - No appearance by respondent - Authority satisfied respondent had not complied with record of settlement - No evidence of excuse or justification for failure - Compliance ordered - Interest 9 percent - Leave reserved for applicants to bring further application to Authority in event of continuing non-compliance - PENALTY - On balance of probabilities, case deserved penalty - Penalty necessary to encourage observance of objects of Employment Relations Act 2000 - COSTS - Length of investigation meeting not specified - Applicants sought full costs of $1,681 - Costs reasonable - Entirely appropriate applicants be reimbursed full costs
Result: Compliance ordered ; Interest (9%) ; Penalty ($2,000)($1,000 payable to Crown, $1,000 payable to applicants) ; Costs in favour of applicants ($1,681.25)
Watson v Fibre Logistics Ltd
20 Oct 2006, RA Monaghan, AA 323/06, (3 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant sought wages and holiday pay due on termination - Dismissed after charged with offences involving misappropriation of funds from employee social club - Dismissal letter stated wage entitlements "frozen" pending outcome of misappropriation issue - Respondent claimed awaited outcome of trial in District Court - Respondent failed to meet timetable set by Authority for providing confirmation whether amounts in dispute, but subsequently advised amounts due - Authority set further timetable to allow respondent to address remaining claims - In light of delaying tactics to date, Authority warned would issue determination without hearing further from respondent - Nothing further heard from respondent after contacted by Authority - Unacceptable - Proceedings determined without hearing further from respondent - No appearance for respondent - Wages and holiday pay due and owing - Interest 7.7 percent - PENALTY - Respondent failed to comply with Wages Protection Act 1983 by not paying wages - Failure also breached employment agreement - Liable to penalty under s134 Employment Relations Act 2000 ("ERA") - Deliberately withheld wages and flouted law - Given at least two of breaches based on same conduct not appropriate to order penalties in respect of each breach - Rather, conduct treated as single breach - Deliberate nature of breach, aggravated by subsequent delaying tactics, meant more than nominal penalty called for - Authority not addressed on issue whether respondent in breach of good faith obligations or whether penalty should be awarded under s4A ERA - Possibility of breach merely noted - If applicant guilty of charges would be called to account in appropriate place - COSTS - Length of investigation meeting not specified - Some, but not all, of applicant's modest legal fees bore directly on Authority proceedings - Entitled to contribution to costs of $50 plus filing fee
Result: Arrears of wages ($2,115.38) ; Arrears of holiday pay ($3,077.89) ; Interest (7.7 %) ; Penalty ($3,000)(Payable to Crown) ; Costs in favour of applicant ($50) ; Disbursements ($70)(Filing fee)
Wyatt v Whangarei Boys' High School
30 May 2007, K Raureti, AA 85A/07, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Applicant sought total costs of $3,146 which included two days preparation time and filing fee - Respondent challenged substantive determination and indicated would not agree to make contribution to costs - Election to challenge did not operate as stay of proceedings on substantive determination - Respondent made no submissions on costs - Applicant succeeded in claim - Entitled to contribution to costs
Result: Costs in favour of applicant ($1,500)
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