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Allan v Longlas Ltd
29 Mar 2007, D Asher, WA 48/07, (6 pages)
COSTS - Applicant withdrew claim after deadline for filing of witness statements - Respondent sought contribution of $7,275 to total costs of $11,022 - Respondent also sought costs associated with strike out application - Applicant submitted withdrew claim on medical advice and acted in good faith throughout - Claimed ability to pay costs severely limited - Applicant's application unimpressive from outset - Failure to particularise claims, promptly address respondent's concerns, or adhere to filing timetable, and decision to withdraw at almost last moment caused respondent significant unnecessary costs - However, Authority not prepared to conclude case stood no prospect of success - Costs for strike out application not caused unnecessarily by applicant - No evidence of financial circumstances of either party - Respondent entitled to recover some costs - $3,000 contribution appropriate - Counsel's time and hourly rate reasonable - Award consistent with applicant proceeding with case and not succeeding
Result: Costs in favour of respondent ($3,000)
Buck v Gourmet Foods Ltd
26 Sep 2007, L Robinson, AA 262A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent's total costs were $6,806 and sought contribution of $6,000 - Submitted applicant's claim without merit and had no prospect of success - Applicant argued for costs to lie where they fall - Submitted would have difficulty meeting award in excess of $1,500 - No reason to depart form conventional daily tariff approach - Respondent awarded contribution to costs of $1,500
Result: Costs in favour of respondent ($1,500)
Heremaia v Sheddan Investments Ltd t/a Tokaanu Hotel
9 Oct 2007, V Campbell, AA 229A/07, (2 pages)
COSTS - Successful personal grievance - Length of investigation meeting not specified - Total costs sought by applicant were $750 plus expenses and disbursements - Nothing in case to derogate from costs principle follow event - Contribution to costs awarded to applicant
Result: Costs in favour of applicant ($750) ; Disbursements ($508.40)
Higgins v 360 Degrees Ltd
30 Apr 2007, H Doyle, CA 48/07, (3 pages)
UNJUSTIFIED DISMISSAL – Constructive dismissal - Respondent in receivership – Receiver indicated would attend investigation meeting – No appearance by respondent – Applicant raised issue when pay reduced – Treated in abusive manner by director and threatened by co-worker – Told "don't bother coming back" when left premises – Applicant entitled to raise pay issue – Director in relationship with applicant's mother – Applicant did not return to workplace and moved out of mother's house – Breach of implied obligation not to act in manner calculated to destroy or damage relationship of trust and confidence – Foreseeable applicant would not return to work given seriousness of breach – Dismissal unjustified – Remedies – Leave reserved for applicant to return to Authority if had not received holiday pay – COSTS – Applicant submitted actual costs in vicinity of $1,500 – Telephone conferences and respondent's inability to be contacted about mediation taken into account – $1,500 suitable award - Factory hand
Result: Application granted ; Reimbursement of lost wages ($9,000)(18 weeks) ; Compensation for humiliation etc ($7,500) ; Orders accordingly ; Costs in favour of applicant ($1,500)
Lapthorn v Hayes
19 Sep 2007, J Crichton, CA 82A/07, (4 pages)
COSTS - Partially successful personal grievance - One and a half day investigation meeting - Applicant sought full indemnity costs - No supporting documentation provided demonstrating costs incurred - Respondent submitted costs should lie where they fall as her costs exceeded applicant's as put to additional expense defending claims in statement of problem which were not persevered by applicant during investigation meeting - Applicant relied on partial success in substantive proceedings to invoke principle costs to follow event - Respondent argued applicant had high contributionary factor, not appropriate to award full indemnity costs - No particular circumstances to justify full indemnity costs nor a matter for costs to lie where they fall - Applicant partially successful in claim and therefore entitled to contribution to costs
Result: Costs in favour of applicant ($3,000)
Maio v Effective Fencing Management Limited
1 Sep 2003, Y S Oldfield, AA 184A/03, (2 pages)
COSTS - Successful personal grievance - 1½ day investigation meeting - Applicant sought contribution to costs and disbursements - Remedies reduced by contributory conduct - Challenge to Employment Court - Applicant continued to pursue arrears - Appropriate to determine costs before challenge heard - Applicant undertook most of preparation work for investigation - Claimed preparation and expenses increased because respondent did not pursue counterclaims, and did not adhere to investigation timetable - Respondent also sought contribution to costs - Respondent made Calderbank offer - Offer not true Calderbank offer, as conditional on matters and proceedings unrelated to problem before Authority - No costs awarded to respondent - Respondent did not act in breach of good faith when failed to meet timetable deadlines - Applicant failed to show failures increased is costs - Claim for "compensatory allowance" for witnesses dismissed - Applicant unnecessarily complicated investigation process - However, costs claimed reasonable and representative's costs modest - Appropriate to award contribution to costs
Result: Costs in favour of applicant ($2,000) ; Disbursements ($370)
McCarthy v Centurion GSM Ltd and Anor
11 Apr 2007, R Arthur, AA 53A/07, (4 pages)
COSTS - Successful personal grievance - 1½ day investigation meeting - Applicant sought substantial contribution to total costs of $45,968 - First respondent sought order costs lie where they fall, or that costs not exceed usual tariff - Second respondent not employer, sought two thirds of costs - Respondents split costs of $20,527 for substantive matter - Also sought contribution to costs incurred obtaining order to recover document from applicant - No reason to depart from tariff approach - Reasonably complex case - Two factors of sufficient weight to warrant change in start point of $4,500 - Effect of unmeritorious arguments on costs and length of investigation, and issue of possession of document - Defence and counterclaim based on alleged fixed term agreement lacked merit and unnecessarily increased time and expense - At least half a day wasted -Warranted additional $2,000 costs - Discount of $500 for hour spent dealing with compliance order for return of document - Second respondent not entitled to separate consideration on costs - Respondents' principals shared responsibility for poorly documented nature of employment arrangements - Second respondent in nature of parent company to first respondent - Did not incur separate additional costs - However, order for costs against first respondent only
Result: Costs in favour of applicant ($6,000)
McDonald v Allen Motors Northland Ltd
28 Sep 2007, RA Monaghan, AA 238A/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent sought full costs of $8,849 - Applicant submitted contribution at lower end of scale would be appropriate, relied on argument costs increased by respondent calling unnecessary witnesses - Authority found neither party unnecessarily added to length or complexity - Applicant to contribute $3,000 to costs
Result: Costs in favour of respondent ($3,000)
McKay v Woodend Preschool & Nursery Ltd t/a Minnies Preschool
30 Jan 2007, P Montgomery, CA 11/07, (2 pages)
COSTS - Unsuccessful personal grievance - Less than one day investigation meeting - Respondent sought contribution of $4,650 to total costs of $6,200 - Also sought witness costs of $100 - Applicant argued costs unreasonable given nature of hearing and financial situation difficult - Submitted costs should lie where they fall - Matter suitable for assessment on tariff basis
Result: Costs in favour of respondent ($1,250) ; Witness expenses ($40)($20 each witness)
Nelson v Meadow Mushrooms Ltd
7 May 2007, H Doyle, CA 16A/07, (4 pages)
COSTS - Unsuccessful personal grievance - One day investigation meeting - Respondent sought contribution of $7,687, being 70 percent of total costs of $10,749 plus disbursements - Submitted daily tariff should be increased because case important and had wider ramifications for respondent - Also claimed applicant's case unduly technical and unreasonable - Applicant submitted costs should lie where they fall as she genuinely believed had claim and respondent well resourced - Reasons would apply to many employment relationship problems and no reason to depart from principle costs follow event - Some allowance to be made for site visit during investigation meeting, but not on basis of full costs for half day - $300 adjustment appropriate - Case important to both parties - Arguments raised by applicant not so unreasonably technical to require adjustment to usual award of costs - Matter called for award of costs at higher end of scale - Costs of $2,800 appropriate
Result: Costs in favour of respondent ($2,800) ; Disbursements ($232.19)
New Zealand Airline Pilots Association Incorporated v Air New Zealand Ltd
20 Mar 2007, L Robinson, AA 61A/07, (2 pages)
COSTS - Unsuccessful dispute - Two day investigation meeting - Respondent sought contribution of $4,750 to actual costs of over $13,000 - Applicant advised intended to file challenge in Employment Court and would not be heard on costs - Amount sought by respondent consistent with awards of costs in Authority - Just and appropriate to award $4,750 as sought
Result: Costs in favour of respondent ($4,750)
Phillips v iTAG Ltd
11 Jan 2007, P Montgomery, CA 1/07, (2 pages)
COSTS - Successful personal grievance - Five hour investigation meeting - Applicant sought contribution of $2,954 to total costs of $4,477 - Respondent submitted Authority should take into account applicant's intention to resign, contribution, and that respondent a small business - Not appropriate costs lie where they fall - Applicant successful party, and entitled to reasonably incurred costs - Applicant's contribution already addressed in substantive determination, and not relevant to costs - Fact applicant intended to resign, and would have left employment with respondent, taken into consideration - Respondent to pay contribution of $2,000 to applicant's costs
Result: Costs in favour of applicant ($2,000)
Ramsay v Stephen Funeral Home Ltd
29 Jan 2007, P Cheyne, CA 8/07, (2 pages)
COSTS - Unsuccessful personal grievance - Five hour investigation meeting - Respondent's actual costs $7,326 - Applicant rejected Calderbank offer and claimed advised having offer was admission of wrong doing - Advice and other aspects of dispute between applicant and her solicitor did not affect costs matter - Offer did not add much to strength of respondent's right to have costs assessed - Applicant claimed impecuniousity and having difficulty finding employment - Investigation handled in economic and effective manner - Straightforward grievance claim - Tariff based approach appropriate - Department of Labour Survey of costs awards considered - Given applicant's difficult financial situation, respondent awarded costs at lower end of range - Applicant to pay $1,200 as contribution to costs
Result: Costs in favour of respondent ($1,200)
Sara v D H Bull (1988) Ltd
30 Mar 2007, P Cheyne, CA 34/07, (7 pages)
UNJUSTIFIED DISMISSAL - Constructive dismissal - Applicant claimed respondent breached apprenticeship agreement - Director originally agreed to be assessor - Later changed mind and prevented appointment of another assessor - No breach of duty - Director would not allow tutor to visit during work hours - Being difficult in response to deteriorating relationship - Breach of duty - However, not sufficiently serious to make resignation reasonably foreseeable - Director dissatisfied with applicant's work - Told him to re-evaluate position with respondent - Did not amount to ultimatum - Applicant found new position and resigned - Gave evidence would not have resigned until had other work - Led to conclusion conduct not dismissive - Applicant also claimed respondent's refusal to pay for upcoming course amounted to breach of duty - Could not claim constructive dismissal in anticipation of something that lay well in future - No constructive dismissal - UNJUSTIFIED DISADVANTAGE - No disadvantage arose from preventing tutor's visits - Applicant told to repay respondent full course and manual costs before left - Respondent demanded money or car keys - Conduct angry and abusive - No doubt applicant responded similarly, but responsibility for exchange rested principally with director - Unjustified disadvantage - Remedies - Compensation reflected applicant's comparatively minor contribution to situation - ARREARS OF WAGES AND HOLIDAY PAY - Respondent retained final pay against claim for manual and course fees - Money owing under original fees agreement deducted from arrears owing - Interest 9 percent - PENALTY - Respondent failed to pay arrears even though aware of legal obligations - Circumstances warranted penalty - COSTS - Less than one day investigation meeting - Applicant sought solicitor/client costs of $4,000 - $1,500 award appropriate - Apprentice engineer
Result: Application dismissed (Dismissal) ; Application granted (Disadvantage) ; Compensation for humiliation etc ($1,000) ; Arrears of wages and holiday pay (Quantum to be determined) ; Penalty ($1,000)(payable to Crown) ; Costs in favour of applicant ($1,500)
Selwood v Queen Margaret College Inc
9 Oct 2007, RA Monaghan, WA 42B/07, (2 pages)
COSTS - Partially successful personal grievance - Length of investigation meeting not specified - Applicant submitted modest award should be made in his favour or costs should lie where they fall - Respondent did not seek order for costs in its favour - Costs to lie where they fall
Result: Costs to lie where they fall
Urquhart v Air New Zealand Ltd
9 Oct 2007, V Campbell, AA 313/07, (2 pages)
COSTS - Authority concluded lacked jurisdiction to hear claim - Preliminary issue dealt with on papers - Respondent sought contribution to costs of $500 - Applicant claimed impecunious, although no supporting material provided - Authority satisfied award of token costs would inflict hardship on applicant and be unjust - Costs to lie where they fall
Result: Costs to lie where they fall
Van Leeuwen v Canterbury District Health Board
19 Sep 2007, J Crichton, CA 115/07, (2 pages)
COSTS - Unsuccessful personal grievance - Length of investigation meeting not specified - Applicant submitted costs to lie where they fall as he was legally aided and impecunious - Respondent made no submissions regarding costs - Costs to lie where they fall
Result: Costs to lie where they fall
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