Errol Wade v Hume Pack-N-Cool Ltd
 NZEmpC 57
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter Of An Application To Reinstate A Challenge To A determination of the Employment Relations Authority
Mark Donovan, counsel for applicant
Kim Stretton, counsel for respondent
Application for order that applicant be permitted to pursue challenge to Employment Relations Authority determination — applicant had challenged determination but a “miscommunication” between applicant and counsel led to notice of discontinuance being filed — complaint was lodged with NZ Law Society against applicant's counsel — Legal Complaints Review Officer upheld Standards Committee ruling that no further action necessary — applicant continued to attempt to have employment proceedings reinstated — whether there were grounds warranting reinstatement of proceedings.
At issue was whether there were any grounds that warranted reinstatement of proceedings.
Held: The discontinuance notice did amount to a valid notice of discontinuance. If there had been non-service by A on Hume (due to a fully signed notice of discontinuance not being served on Hume) it could only be a technical objection as Hume did sign the notice of discontinuance and received confirmation from the Court that it had been filed. This perfected the notice of discontinuance. The standards of the High Court Rules were met, with the compliance being “as nearly as may be practicable” as required in r6 Employment Court Regulations 2000 (procedure). As there was direct conflict between W and A's accounts, and A's account had been accepted by the Standards Committee and the LCRO, it could not be found that A acted without actual authorisation from W. There was sufficient evidence to support the fact that A did act with W's authorisation.
W's claim did not have sufficient merit to warrant reinstatement of the proceedings. The initial claim raised by W was for over $1 million from Hume (raised without any prior notice). The fact that W was prepared to settle for $70,000 appeared to undermine the validity of his claim. The ERA had documents to support its finding against W. W had had advice from a solicitor other than A that his claim was without substantive merit. The manner in which W was proposing to pursue his challenge (a collateral credibility attack on issues not previously before the ERA) was not likely to result in a different finding.
JUDGMENT OF JUDGE B S Travis
The applicant seeks an order that he be permitted to pursue his challenge to a determination 1 of the Employment Relations Authority, issued on 16 October 2007, after his previous counsel (who I shall call “Mr A”) filed a purported notice of discontinuance on 6 August 2008. This application has been opposed by the respondent. The parties agreed to have the matter determined on the basis of the papers filed in Court. These include submissions and affidavits.
From this material the following facts emerge. The applicant challenged the Authority's determination on 8 November 2007 and elected to have a hearing denovo. The respondent failed to file its statement of defence in time and applied for leave to file out of time. That application was not opposed and Chief Judge Colgan granted leave to extend the time for filing the statement of defence. The matter was called over before me on Monday 19 May 2008. Mr A appeared as counsel for the applicant and Ms Kim Stretton as advocate for the respondent. I issued a minute recording the matters agreed, namely that the applicant should go first, there were no outstanding interlocutories and the matter would require two full days for a hearing, which should take place in Tauranga. I found that further mediation was unlikely to assist. I directed the parties to liaise with the Registrar to obtain an appropriate hearing date if a venue in Tauranga could be obtained. The parties also agreed that the applicant would file and serve his briefs of evidence 14 days before the fixture and the respondent 7 days before the fixture. The applicant also undertook the obligation of preparing an agreed bundle of documents. The registry arranged a hearing in liaison with the parties, in Tauranga, to occur on 14 and 15 August 2008. Mr A obtained an extension of time to file the applicant's briefs of evidence. Ms Stretton was given a consequential extension of time to file the respondent's briefs.
On 6 August 2008, under cover of a facsimile cover sheet from Mr A stating “I attach notice of discontinuance in the above matter”, a document described as a “notice of discontinuance” (the notice) was filed. It was signed by Mr A as counsel for the applicant and Ms Stretton on behalf of the respondent on 6 August 2008. This document was addressed to the respondent and to the Registrar of the Employment Court and stated:
1. These proceedings are hereby discontinued.
2. There is no issue as to costs in this Court.
The notice was sent to Judge Shaw that day, as she was rostered to hear the matter and she advised that she was happy for the fixture set down for 14 and 15 August to be vacated. The registry wrote to the parties on 6 August advising that on receipt of the notice, as there was no issue as to costs, the Court was treating the matter as withdrawn and had vacated the hearing.
On 12 August 2008, a telephone message was left on the registry's answer phone from the applicant personally stating that there had been a miscommunication with his lawyer and that he would like to continue with his challenge. The registry contacted Mr A, who replied on 12 August 2008 in the following terms, with a copy sent to Ms Stretton:
As discussed, I have received further instructions from Mr Wade. He now seeks to continue with this claim.
As a result of that decision and discussions between myself and him, I find myself in a position of conflict and I have advised him that he will need to instruct new counsel who will take whatever steps are necessary in order for these proceedings to continue.
Until he instructs new counsel, Mr Wade's contact details are as follows:
… (details omitted)
The registry responded by a letter dated 22 August 2008 to the applicant in the following terms:
I am writing to you in regards to advice received from Mr [A] on 12 August 2008 that you wish to continue the above matter.
This proceeding was withdrawn on 6 August 2008 following receipt of a Notice of Discontinuance signed by counsel for both parties.
Please find attached a copy of the letter sent to counsel advising that the matter has been withdrawn.
As the matter is no longer before the Court, I cannot be of any more assistance.
I encourage you to seek legal advice in relation to this letter.
The next communication from the applicant occurred on 24 November 2009 when he telephoned the Court to make an enquiry as to whether he could apply to reinstate the proceedings. He told the Court that he had lodged a complaint with the New Zealand Law Society against his former counsel and that he had been advised that he could apply to the Employment Court to continue the proceedings. It was suggested to the applicant that he file an application with a supporting affidavit.
On 3 December 2009 the applicant applied to have his case reinstated on the grounds that it was cancelled without his permission, that the evidence showed he could win his case and that the Law Society believed that he had not lost the opportunity to have his case reinstated. This was accompanied by an affidavit in which the applicant deposed that he visited Mr A's office on 4 August 2008 and had a conversation about a receipt, which the applicant claimed had been forged. He deposes that Mr A stated there was no way that they could get their hands on the original to confirm this and recommended that “we dropped the case”. He then deposes that Mr A cancelled his case but he had left Mr A's office with the belief that the case was continuing.
On 20 January 2010, Ms Stretton filed submissions opposing the reinstatement of the challenge with an affidavit from Mark Hume, a director of the respondent. It is claimed in this material that a few days before the hearing, Mr A said that the applicant would drop his case on condition that the respondent did not make a claim for costs. At that stage the Employment Relations Authority had awarded $1,500 costs against the applicant. This sum had not been paid. Mr Hume's affidavit complains about the way the applicant has pursued his claims, and in particular the delays and the additional costs that were being incurred.
On 28 April 2010, a notice of change of representation and address for service on behalf of the applicant was filed stating that his counsel was now Mark Donovan.
On 21 May 2010, the new solicitors acting for the applicant filed a substantial affidavit from the applicant, sworn on 19 May 2010. In that affidavit the applicant deposes that he attended an appointment at Mr A's office on 31 July 2008, but was told by Mr A's secretary that he was out and was unavailable to meet with him. Another appointment was made by the secretary to meet with Mr A on 4 August 2008. He claims that he was not aware at that time that the Court had directed him to file his evidence 14 days prior to...
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