Brian Muldoon v Nelson Marlborough District Health Board NZEmpC

 
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[2011] NZEmpC 115

IN THE EMPLOYMENT COURT

CHRISTCHURCH

CRC 7/11

In the Matter of a challenge to a determination of the

Employment Relations Authority

Between
Brian Muldoon
Plaintiff
and
Nelson Marlborough District Health Board
Defendant
Counsel:

Anjela Sharma, counsel for plaintiff

Paul McBride, counsel for defendant

Application by the plaintiff seeking recall of the Employment Court's judgment to deal with a claim for interest which was not addressed in the substantive judgment. The application was opposed by the defendant on the basis the Court was functus officio — whether r6 Employment Court Regulations 2000 importing the powers of the High Court where there was no relevant express provision for the Employment Court, meant the Employment Court had the powers in r11.9 High Court Rules (“Recalling judgment”) which meant the Court was not functus officio.

Held: The Employment Court was not functus officio. The finding in Ashburton Veterinary Club Inc v McGowan that the Tribunal was functus officio, was distinguishable. First, it dealt with the practice and procedure of the Employment Tribunal and not of the Employment Court which had, by reference to r6 Employment Court Regulations 2000, the powers of the High Court where there was no relevant express provision for the Employment Court. Rule 11.9 High Court Rules (“Recalling judgment”) provided: “A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed”.

In the McGowan case, not only had no application for costs been made, but a claim to them had been disavowed expressly by counsel during the hearing. That was not the position here.

The Employment Court decision in Fleming v Jacquelynne Brown, Chief Executive — Department of Child, Youth and Family Services was distinguishable in the sense that the slip or omission rule was not relied on in a subsequent claim for interest after delivery of a substantive judgment in which only questions of costs were reserved for further decision.

The current proceeding had not concluded because costs had yet to be dealt with. Even more fundamentally, however, even if there were no live applications before the Court, it, as in the case of other courts, was empowered to recall its judgments to correct slips or omissions. Failure to deal with an issue raised in the proceeding or, more particularly as in this case, to grant a form of relief claimed, was a classic example of the appropriate exercise of such a power. If the Court had overlooked doing something it ought to have addressed, then it was only just that there should be a procedure to enable that to be considered and, if appropriate, done.

The plaintiff did claim interest on remuneration lost, even if this was not highlighted expressly in evidence. It was enough that the claim for interest was made in the statement of claim and reiterated in final submissions and that the defendant was therefore on notice of that remedy.

Application granted.

SUPPLEMENTARY JUDGMENT OF CHIEF JUDGE G L Colgan

1

The plaintiff seeks recall of the Court's judgment to deal with his claim for interest which was not addressed in the substantive judgment. Although counsel for the plaintiff has couched the request as an inquiry about why interest was not awarded, the real thrust of Ms Sharma's submission is that interest should have been awarded and, accordingly, I will treat the request as one to recall and correct the judgment. The defendant opposes recall of the judgment in these circumstances and the parties have made submissions by memorandum.

2

There is a fundamental jurisdictional issue raised by the defendant that should be dealt with first. The defendant says, employing archaic Latin, that the Court is “functus officio”. That means that there is no live proceeding before the Court in which it is empowered to make orders. In short, its role is spent.

3

That is, however, clearly not so. First, the proceeding has not concluded because costs have yet to be dealt with. Even more fundamentally, however, even if there were no live applications before the Court, it, as in the case of other courts, is empowered to recall its judgments to correct slips or omissions. Failure to deal with an issue raised in the proceeding or, more particularly as in this case, to grant a form of relief claimed, is a classic example of the appropriate exercise of such a power. If the Court has overlooked doing something it ought to have addressed, then it is only just that there should be a procedure to enable that to be considered and, if appropriate, done.

4

I am satisfied that in this case the plaintiff did claim interest on remuneration lost, even if this was not highlighted expressly in evidence. The calculation of interest is not generally something that is dealt with in evidence. The rules governing an award of interest on monetary compensation for remuneration loss are circumscribed and generally applied, if warranted, without leading evidence although a calculation of the amount of interest by counsel is usually helpful, as has now been provided in this case. It is enough that the claim for interest was made in the statement of claim and reiterated, albeit briefly, in final submissions and that the defendant was therefore on notice of that remedy.

5

Because the defendant, through counsel, has made strenuous submissions in opposition to interest now being awarded including by reference to decided cases, I should address those.

6

The first case relied on by Mr McBride is Ashburton Veterinary Club Inc v McGowan. 1 He submitted that the Court held that in the absence of any reservation of leave on a particular issue (in that case costs), the Employment Tribunal was without the power to make such an award subsequently. This...

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