Laura Jane George v Auckland Regional Council NZEmpC

 
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[2011] NZEMPC 25

IN THE EMPLOYMENT COURT AUCKLAND

ARC 91/10

ARC 124/10

In the Matter of special leave to remove proceedings

And in the Matter of an application for proceedings to be tried at the same time or one immediately after the other

Between
Laura Jane George
Plaintiff
and
Auckland Regional Council
Defendant

And in the Matter of proceedings removed

And in the Matter of application for proceedings to be tried at the same time or one immediately after the other

Between
Auckland Regional Council
Plaintiff
and
Laura Jane George
Defendant
Counsel:

Tony Drake, counsel for Ms George

Tim Clarke, counsel for Auckland Regional Council

Application by Council that its claim against employee for damages for breach of contract, and the employee's claims for unjustifiable dismissal and unjustifiable disadvantage, be heard together or one immediately after the other — application of r4 (determination of proceedings) and r6(2)(a)(ii) (procedure — application of High Court Rules) Employment Court Regulations 2000 and r10.12 High Court Rules (Court may order that 2 or more proceedings be consolidated on terms it thinks just) — whether the issues arose out of the same employment relationship — whether the plaintiff would be unduly prejudiced.

Held: Under r10.12 HCR there was a broad discretion conferred to do what was in the interests of justice. Factors included: savings in costs and time; removing the risk of inconsistent decisions and convenience and expedition. While this rule conferred a separate and very wide jurisdiction ( Morris v AEL Bloodstock Ltd), care must be taken to avoid confusion, prejudice or oppression to one party from the size and complexity of a consolidated proceeding, especially where the evidence admissible in one proceeding will not be admissible in another. The latter considerations did not apply in this case.

There was a common question of law or fact arising. The facts that gave rise to the Council's damages claims could affect the remedies that would otherwise have been awarded to G. There could also be issues as to the degree of the Council's knowledge of G's alleged failures at the time of dismissal and whether the proved failures in relation to the damages proceedings were sufficiently serious to justify a reduction in remedies. However the Court of Appeal in Salt v Fell referred to the Courts wide equity and good conscience jurisdiction in making assessments under s123 Employment Relations Act (remedies), and this was a matter for the trial judge.

The risk of inconsistent decisions on issues on credibility, the dispute over the extent of G's duties and responsibilities and the issue of remedies satisfied r10.12(a) HCR (common question of law or fact) and r10.12(b) HCR (rights to relief claimed therein are in respect of or arise out of the same event) and provided a compelling reason why it was desirable to make an order under r10.12 HCR.

Under r10.12 HCR there could also be an order staying remedies that could be awarded in favour of G until the determination of what, if any, liability she had to the Council in the negligence proceeding. That met G's objection to the proceedings being heard together on the basis it would unduly prejudice her by delaying the expeditious disposition of G's more straight forward grievance claim.

Such an order would also save the parties' time, costs and reduce the duplication of judicial resources. Having both sets of proceedings determined at the same time would enable the Court to determine the precise nature of G's duties; her level of management authority and the seniority of her role, which were in issue in the damages claim and which might also be relevant in the grievance proceedings.

Application allowed

INTERLOCUTORY JUDGMENT OF JUDGE B S Travis

1

The Auckland Regional Council (the Council) has applied to the Court for an order that the proceedings in ARC 91/10 and ARC 124/10 be tried at the same time or one immediately after the other.

2

The grounds for the application are that the proceedings in ARC 91/10 which involve a claim by Ms George that she was unjustifiably disadvantaged and unjustifiably dismissed and the claim by the Council in ARC 124/10 for damages for breach of contract and for penalties against Ms George, arise out of the same employment relationship. It is common ground that there is no express power in the Employment Court Regulations 2000 for either the consolidation of two or more proceedings or for the making of orders that they be heard together. The Council relies on regs 4 and 6(2)(a)(ii) and r 10.12 of the High Court Rules. Regulation 4 provides:

Determination of proceedings

These regulations must be construed in a manner that best secures the speedy, fair, and just determination of proceedings before the court.

3

Regulation 6 provides:

6 Procedure

  • (1) Every matter that comes before the court must be disposed of as nearly as may be in accordance with these regulations.

  • (2) If any case arises for which no form of procedure has been provided by the Act or these regulations or any rules made under section 212(1) of the Act, the court must, subject to section 212(2) of the Act, dispose of the case—

    • (a) as nearly as may be practicable in accordance with—

      • (i) the provisions of the Act or the regulations or rules affecting any similar case; or

      • (ii) the provisions of the High Court Rules affecting any similar case; or

    • (b) if there are no such provisions, then in such manner as the court considers will best promote the object of the Act and the ends of justice.

4

Rule 10.12 of the High Court Rules...

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