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The Chief Executive of the Bay of Plenty District Health Board v New Zealand Public Service Association
13 Dec 2006, Travis J, AC 73/06, (15 pages)
NON DE NOVO CHALLENGE TO DETERMINATION OF EMPLOYMENT RELATIONS AUTHORITY - Costs - Defendant unsuccessfully brought dispute before Employment Relations Authority - Approximately 2 hour hearing - Authority awarded plaintiff $500 costs - Plaintiff alleged Authority determined costs prior to expiry of time for filing memorandum in reply - Alleged Authority failed to place necessary weight on Calderbank offer - Plaintiff sought up to full indemnity solicitor/client costs of total costs of $11,827.06 - In alternative sought $6,000 or $1,500 - HELD - Procedure was a matter for Authority - Offer to let costs lie where they fell providing other side abandoned a dispute was not strictly Calderbank offer - Authority's failure to consider reply did not cause prejudice - Authority's costs award not improper and therefore not disturbed - Challenge dismissed
Result: Challenge dismissed ; Authority's costs award confirmed ; Costs reserved
Cotes v PR Driving Services and Lahore Transport Contractors Ltd
17 Jul 2006, J Wilson, AA 172A/06, (3 pages)
COSTS - Unsuccessful personal grievance - Half day investigation meeting - Respondents sought $5,000 contribution to total costs of more than $8,000 - Respondents argued applicant's claim doomed to failure and as applicant pursued claim against two respondents additional costs were incurred - Applicant argued costs should lie where they fall or costs should be awarded to him - Applicant raised number of issues in support of claim - However, with exception of length of investigation, had not addressed various considerations Authority took into account when considering costs - Little to justify greater or lesser award than usual - Fact counsel acted for both respondents perfectly appropriate and his behaviour entirely professional and appropriate throughout process - Under circumstances, probably necessary for applicant to cite both respondents - Applicant to pay $1,500 costs - Respondents and their counsel to calculate how amount applied between them
Result: Costs in favour of respondents ($1,500)
DV Ryboproduckt Ltd v The 49 Crew of the MFV "Aleksandr Ksenofonotov'
30 Jan 2007, J Crichton, CA 10/07, (11 pages)
ARREARS OF WAGES - Matter came before Authority last year when applicant alleged respondent crew refused to leave vessel at end of contract of employment, preventing applicant from re-crewing vessel - Crew refused to leave ship because disputed wages calculation - Presence of crew on vessel resolved at mediation - Issues before Authority concerned what contract and terms of employment governed employment relationship and whether deductions from pay were lawful - Authority satisfied it had jurisdiction to hear Wages Protection Act 1983 ("WPA") claim under s103(5) Fisheries Act 1996 - Jurisdiction to hear claim about whether could look at employment agreement (to extent required to deal with wages issues) considered - Crew authorised captain to sign collective employment agreement ("CEA") on their behalf - Dispute over what happened at meeting when CEA discussed - Crew alleged were told deductions would not be taken from wages (unless wrongdoing) - Whether deduction for accommodation and airfares lawful - CEA sought to provide ship owner with option to deduct expenses for travel, daily allowances, food and lodging - Submission that by entering into CEA crew consented in writing to deductions not accepted - Explicit informed consent required, opposed to consent by default as in present case - Authority impelled to that view by informal way CEA executed and by its wording, which only conveyed option on employer - Form of execution of CEA (crew being asked to execute schedule the effect of which authorised captain to enter CEA on their behalf) amounted to remote control - Even less likely arrangements could be seen as complying with s5 WPA - Arrangement not saved by s16 WPA since not a CEA in terms of Employment Relations Act 2000 - Deductions unlawful and must be returned to crew - Position different in respect of some wage advances where separate documentation of consent - Orders made confirming agreements parties reached provisionally about wages due and owing to crew - Crew's entitlement to share of catch did not factor into wages calculation for particular voyage - Tax issue outside of Authority's ambit - Whether applicant had right to recover cost of housing two crew members in Wellington while they waited for Authority's decision not within Authority's jurisdiction - Parties' representatives encouraged to resolve application of determination - COSTS - Applicant alleged crew's behaviour put it to additional costs of $100,000 - Also alleged made $600,000 loss on voyage - Application primarily favoured crew - Costs to lie where they fall
Result: Arrears of wages ; Orders accordingly ; Costs to lie where they fall
Fuiava v Air New Zealand Ltd
21 Dec 2006, Travis J, AC 51A/06, (1 pages)
COSTS - Unsuccessful de novo challenge - Approximately one day hearing (Authority) - One day hearing (Court) - Defendant sought $4,500 contribution to actual costs of $12,191 including GST plus $50 disbursements in Authority - And $12,000 contribution to actual costs of $15,725.46 including GST plus disbursements of $186.40 in Court - HELD - Case presented in both Authority and Court in an efficient and economic manner - Had elements of a test case - There must have been an element of duplication in the submissions made by counsel for defendant in the present and another case where test issue live - Lower starting point than usual adopted - Burden of dealing with new s103A Employment Relations Act 2000 should not fall heavily on plaintiff - Modest award of $1,500 for Authority investigation appropriate - Court took into account the unfortunate consequences the dismissal had on the plaintiff who was well regarded at work and had a previously impeccable record - Loss of plaintiff's employment and cargo privileges was serious financial blow to plaintiff's family - Taking all matters into account including novelty of the issue Court ordered plaintiff to pay $2,500 towards defendant's Court costs - Cargo storeman
Result: Costs in favour of defendant ($1,500 )(Authority) ; ($2,500)(Court)
Katipo v New Era Plastics Ltd
17 Jul 2006, A Dumbleton, AA 163A/06, (2 pages)
COSTS - Unsuccessful personal grievance - Investigation meeting less than one day - Respondent sought order for costs of $6,874 on full indemnity basis - Claimed applicant did not act in good faith in course of investigation and put it to extra cost by seeking reinstatement - Applicant claimed limited means diminished by loss of employment and requested costs lie where they fall - No proper basis for full indemnity costs in this case - Authority did not understand why reinstatement claim should have caused respondent additional cost - Issues straight forward - Applicant's substantive claim meritorious - Redundancy only borderline genuine and for purposes of fixing costs grievance claim regarded as close call - Costs to lie where they fall
Result: Costs to lie where they fall
Keys v Flight Centre (NZ) Ltd & Anor
13 Dec 2006, Full Court, CC 14/06, (4 pages)
COSTS - Successful interlocutory application by first defendant for order striking out plaintiff's application for judicial review of Employment Relations Authority determination (see: [2005] 1 ERNZ 471) - Authority had granted Anton Piller order against plaintiff on first defendant's ex parte application - First defendant sought $3,500 contribution to actual costs of $4,434.75 inclusive of GST from plaintiff or her alleged non-party funder - First defendant also sought $565.25 associated with present costs application - HELD - Court was without power to make order for contribution from non-party under clause 19 Third Schedule Employment Relations Act 2000 - To be liable in costs person must be either original or joined party to a proceeding - Present was in nature of test case - Whether Authority had jurisdiction to issue ex parte Anton Piller order - Whether exercise of such jurisdiction could be challenged by way of judicial review - In view of full Court's decision in Axiom Rolle (cited below) challenge of Authority's order would inevitably be successful - Thus both sides would have succeeded - Costs to lie where they fell
OCS Ltd v Service & Food Workers Union Nga Ringa Tota Inc and Anor
15 Dec 2006, Shaw J, WC 15A/06, (1 pages)
COSTS - Unsuccessful application by plaintiff for declarations, injunction, and damages after defendants refused to comply with new timekeeping system involving finger scanning - Three day hearing - Defendants sought 80 percent contribution to actual costs of $40,040 plus disbursements of $2,898.0 - Disbursements included $1,474.44 for lost wages of witnesses - Plaintiff submitted matter in issue was a dispute and costs should lie where they fell - Also submitted that defendants' costs and disbursements not reasonable - HELD - Although present case began as a dispute, plaintiff did not follow statutory procedures for resolving it - Instead, plaintiff sought to enforce its own interpretation of collective employment agreement ("cea") - In so doing, plaintiff went beyond seeking interpretation of cea - High Court Rules scale of fees would have resulted in award of $25,000 for similar proceedings - Some factors added to defendants' costs but none warranted significant departure of usual basis of 66 percent of actual costs - Defendants awarded costs of $26,500 (66 percent of $40,040) - Lost wages not appropriate claim under disbursements and disallowed - Miscellaneous disbursements not itemised or supported by invoices also disallowed - Defendant awarded disbursements of $1,173.60
Result: Costs in favour of defendants ($26,500) ; Disbursements (1,173.60)
Olsson v Keith Matheson Ltd
19 Jul 2006, M Urlich, AA 107A/06, (1 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Respondent never filed costs memorandum - Applicant sought contribution of $2,500 to total costs of $2,812 - Applicant argued matter was capable of settlement, grounds for personal grievance were obvious, no Calderbank offer made and respondent failed to attend investigation meeting without explanation - Straightforward application - Costs incurred by applicant were reasonable - Applicant entitled to fair contribution to costs reasonably incurred - Indemnity costs unusual in jurisdiction - Not satisfied grounds for such award made out
Result: Costs in favour of applicant ($1,500)
Sandifer v Plumbers Gasfitters & Drainlayers Board NZ
18 Dec 2006, Travis J, AC 74/06, (1 pages)
COSTS - Unsuccessful de novo challenge - One day hearing - Defendant sought 60 percent contribution to actual costs of $8,505 and disbursements concerning witness expenses totalling $2,363 - Alleged counsel's rate modest - Defendant offered Calderbank type settlement by offering costs to lay where they fell and not to enforce $4,000 costs award against plaintiff in Authority - Plaintiff alleged impecunious - HELD - Costs sought not excessive - However Court not satisfied that plaintiff should bear whole of disbursements incurred, especially those relating to payments made to Chair of defendant's board - Plaintiff's financial situation mitigating factor - Award sought by defendant reduced in response to plaintiff's impecuniosity - Plaintiff ordered to pay $4,000 by instalments of $100 per month - Leave reserve for either party to address Court further if plaintiff's circumstances changed - Drainlayer and gasfitter
Result: Costs in favour of defendant ($4,000) ; Orders accordingly
Smith v Sovereign Ltd
12 Dec 2006, Travis J, AC 71/06, (10 pages)
COSTS - Successful de novo challenge (see: [2005] 1 ERNZ 832) - Numerous interlocutory applications, briefing and calling of numerous witnesses and application for recall of judgment - Two and a half day Authority hearing - Four day Court hearing - Plaintiff sought solicitor/client, indemnity costs of actual costs of $31,809.37 plus disbursements of $1,574.70 in Authority - And $109,462.50 plus disbursements of $4,819.92 in Court - In alternative sought 80% contribution - HELD - Not appropriate case for solicitor client costs - Court considered Authority's costs award, daily tariff, plaintiff's unsuccessful application for removal, preparation, and way plaintiff brought matter - Plaintiff awarded $6,000 towards Authority costs and $761.70 disbursements - Reasonableness of Court costs tested as though was a proceeding in High Court - $43,300 contribution to actual and reasonable costs would have been appropriate - Plaintiff's attack on genuineness of redundancy which failed in both Authority and Court unnecessarily lengthened trial and was depreciating factor - Plaintiff awarded $38,500 towards Court costs plus $2,995.95 disbursements
Result: Costs in favour of plaintiff ($6,761.70) (Authority) ; ($41,495.95) (Court) ; Costs to lie where they fall (present application)
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