Arthur Kaipara (Hata) v Carter Holt Harvey Ltd

 
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[2011] NZEmpC 132

IN THE EMPLOYMENT COURT AUCKLAND

Judge Travis

ARC 45/11

In The Matter Of a challenge to a determination of the Employment Relations Authority

And In The Matter Of application for security for costs

And In The Matter Of an application to strike out (in part) an affidavit in support

Between
Arthur Kaipara (Hata)
Plaintiff
and
Carter Holt Harvey Limited
Defendant
Counsel:

Stan Austin, advocate for plaintiff

Daniel Erickson, counsel for defendant

Reasons for dismissing defendant's application for security for costs and plaintiff's application to strike out parts of an affidavit filed by human resources manager in support of defendant's application — plaintiff claimed he was unjustifiably dismissed — plaintiff alleged human resources manager adopted persona of an expert witness and objected to paragraphs where she attested to oral evidence given at Employment Relations Authority investigation meeting — whether parts of affidavit should be struck out — whether plaintiff should provide security for costs

The issues were: whether parts of F's affidavit should be struck out; and whether K should provide security for costs.

Held: In respect of the affidavit, at no point had F held herself out as an expert other than by referring to her employment has human resource operations manager. The matters to which she deposed set out Cater Holt's view of those matters. There was no suggestion that her evidence had been given on the basis of expert testimony. F was an eye witness to the disciplinary enquiry at the authority and was able to give evidence of what she claimed she heard K say. Part of her evidence was admissions allegedly made by K, which could turn out to be highly relevant to the outcome of the challenge. F was entitled to refer to K's alleged admission and to Carter Holt's view of the circumstances that led to dismissal.

There was no clear evidence as to K's impecuniosity. The only material Carter Holt relied on was insufficient to believe that K would be unable to pay costs if his challenge failed. Even if the material was taken to be sufficient, it clearly linked the impecuniosity to the dismissal which had cost K his job. The court had shown a marked reluctance to make orders for security for costs against grievants whose financial circumstances may have been caused or contributed to significantly by their dismissal. A litigant whose impecuniosity may have either been caused or aggravated by his/her dismissal would not be lightly deprived of a right to challenge. There were no exceptional circumstances to warrant such an order.

REASONS FOR INTERLOCUTORY JUDGMENT OF JUDGE B S TRAVIS
1

On 6 October 2011 I dismissed the defendant's application for security for costs and the plaintiff's application to strike out large parts of the affidavit filed in support of the defendant's application. These are my reasons for so doing.

2

The defendant sought an order that the plaintiff's claims be stayed pending the plaintiff's payment into Court of $6,083.80, being the amount that the plaintiff was ordered to pay as a contribution towards the defendant's costs and disbursements by a determination of the Employment Relations Authority. 1 The

plaintiff opposed the application and applied to strike out the evidence contained in the affidavit of Collette Firth, the human resource operations manager for the defendant's wood products division, filed in support of the defendant's application.
3

It is convenient to deal with the plaintiff's strike out application first. The plaintiff submits that in her affidavit Ms Firth has adopted the persona of an “expert witness” but has stated no qualifications for that status. Certain paragraphs of the affidavit were sought to be struck out on that basis. These included: a statement that she has personal knowledge of the facts and was duly authorised by the defendant to provide evidence on its behalf; statements that the plaintiff does not have a strong prima facie case and that his prospects of success are low; that the defendant considers that the plaintiff was given ample opportunity to explain his version of events and that he made telling admissions.

4

I heard the submissions for and against the strike out of those paragraphs. I have concluded that at no point was Ms Firth holding herself out as an expert other than referring to her employment as human resource operations manager. The matters to which she deposed set out the defendant's view of those matters. There was no suggestion that her evidence had been given on the basis of expert testimony. I was therefore satisfied that the plaintiff had not provided grounds for the striking out of those paragraphs.

5

The plaintiff also objected to paragraphs in which Ms Firth attested to the oral evidence given at the Authority's investigation meeting because, allegedly on her own admission, the plaintiff claims she was a spectator without standing at that meeting. Ms Firth deposes that she was involved in the defendant's preparation for the Authority's investigation meeting, which she attended and at which she heard the oral evidence of all the witnesses including the plaintiff. She referred to the plaintiff's evidence to the Authority that he had been unable to find employment since he was dismissed on 29 January 2010, that this has put his family under huge financial pressure and it was necessary for him to access his superannuation funds. This was supported by a copy of the plaintiff's witness statement as filed with the Authority, which is annexed to Ms Firth's affidavit. She also referred to evidence before the Authority in which the plaintiff admitted to failing to follow the defendant's procedures for the electrical isolation of machines under repair and claimed that he had repeated this on more than one occasion during his oral evidence. She also referred to paragraphs in the Authority's determination which indicates that it accepted the defendant's evidence, which allegedly was not disputed, that the plaintiff had been fully trained in relation to electrical isolation procedures.

6

I can see no basis in law for those passages in Ms Firth's evidence to be struck out. She was allegedly an eye-witness to the disciplinary enquiry at the Authority, and is able to give evidence of what she claims she heard the plaintiff say. This is especially so as part of that evidence is of admissions allegedly made by the plaintiff which may turn out to be highly relevant to the outcome of the challenge. Such evidence of admissions has always been accepted by the Courts.

7

The plaintiff then complained that Ms Firth made statements as to the findings of the Authority that are contradicted by the Authority in its determinations. These are as to whether certain meetings were disciplinary meetings or health and safety meetings. If Ms Firth turns out to be wrong in that evidence, which I do not find to be particularly relevant to the application for security for costs, this is a matter that may be remedied at trial and was not a basis for it to be struck out from her affidavit in support of an interlocutory application.

8

The plaintiff then objected to what was stated by Ms Firth to be the basis for the dismissal on the grounds of serious misconduct, namely the plaintiff's own admission that he had breached the relevant isolation procedures and had failed to ensure other employers on his shift had followed the proper procedures prior to entering a dangerous area. The plaintiff contests this evidence and Mr Austin submitted that it is contradicted by the plaintiff's unchallenged evidence in his written statement and the evidence provided by Paul Trow, one of the defendant's managers. This may well be an issue for trial but I find that Ms Firth is entitled to express what she...

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