Nanzheng Liu v South Pacific Timber (1990) Ltd

 
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[2011] NZEmpC 100

IN THE EMPLOYMENT COURT AUCKLAND

Judges:

Judge Colgan

ARC 106/10

In The Matter Of an application for leave to file challenge out of time

BETWEEN
Nanzheng Liu Intending
Plaintiff
and
South Pacific Timber (1990) Limited Intended
Defendant
Counsel:

Rodney Hooker and Charlotte Taylor, counsel for intending plaintiff

Craig Andrews and Stephen Chan, counsel for intended defendant

Application to file a challenge to an Employment Relations Authority determination out of time — delay of three days — full copy of determination not sent to appellant's counsel — appellant overseas on business — standards of merit of challenge appellant had to meet — Authority held appellant was an independent contractor and dismissed personal grievance — appellant worked exclusively for respondent — business integration test.

The issues were: what were the standards of merit L had to establish and whether the merits allowed an extension.

Held: The standard to be met was not a pure civil litigation strike-out approach. It was unlikely a proceeding such as this could be struck out as disclosing no justiciable cause of action. L asserted he was an employee. Section 6 Employment Relations Act 2000 (meaning of employee) clearly permitted such questions to be determined. In those circumstances it was difficult to see how the case could be determined other than on its merits.

There were a number of factors that were indicative of a contract of service: L worked exclusively for South Pacific; L had a restraint of trade; L's activities were directed by South Pacific; there was significant integration into South Pacific's business; L was provided with a company laptop and email; and there was an expectation that L would comply with company policies. The inquiry as to whether someone was an employee was intensely factual and usually involved a balancing of competing claims and issues in order to determine the categorisation of the commercial relationship.

The merits did not lie so obviously and predominantly with South Pacific that L would have such a low prospect of success at a hearing de novo of the challenge that his claim should not be allowed to go to hearing.

The overall justice required L to be able to challenge the determination out of time.

Application granted.

JUDGMENT OF CHIEF JUDGE GL COLGAN
1

Should Nanzheng Liu be able to challenge a determination of the Employment Relations Authority after the expiry of the 28-day period within which he was entitled to do so as of right' Mr Liu's application was part-heard before Judge BS Travis but was then adjourned to allow him to adduce further evidence and submissions on the merits of his intended challenge. For reasons that are not clear, the resumed hearing was then scheduled before me. The parties have agreed, however, that they are content to re-argue the application in full including the new material now before the court.

2

The Authority found against Mr Liu on his personal grievance, alleging unjustified dismissal, in a determination 1 issued on 30 August 2010. The 28-day

period for challenging as of right expired on 27 September 2010. This application was filed, and the respondent put on notice of Mr Liu's wish to challenge the Authority's determination, on 30 September 2010, so that the delay was of three or four days after the expiry of the 28-day period. Although the Authority's determination was issued on 30 August 2010, it was not received in full by the applicant's solicitors until 9 September 2010. There were then communication difficulties between the solicitors and the applicant about his instructions to challenge the determination because Mr Liu had departed New Zealand on 8 September 2010 for a one-month business trip to China.
3

The Authority had emailed a scanned copy of the determination to the applicant's solicitors on 30 August 2010 but this omitted the crucial 11th page of the determination which included, at paras 29 and 30, the Authority's decision. This omission was only rectified on 9 September 2010 when the solicitors received a further full copy of the determination. Although, on 10 September 2010, a full copy of the determination was emailed to the applicant in China seeking instructions about a challenge and follow-up communications were sent by the solicitors on 15 and 21 September 2010, Mr Liu was unable to respond with a decision until overnight between 27 and 28 September 2010 when his wife (who had been in communication with his solicitors on 23, 24 and 27 September 2010) was advised by him that he wished to challenge the determination. These instructions were passed on to the solicitors early on 28 September 2010 but I infer that it was then a few days before the proceedings could be crafted and filed.

4

The factors to be considered and weighed by the Court are well established in case law of which only recent example need be mentioned to confirm that pedigree. 2

They are:

  • •the reason for the omission to bring the case within time;

  • •the length of the delay;

  • •any prejudice or hardship to any other person;

  • •the effect on the rights and liabilities on the parties;

  • •subsequent events; and

  • •the merits.

5

This list is not exhaustive and the overriding consideration will always be the interests of justice in the particular case. No one factor is necessarily any more important than another. In this case the intended defendant concedes, responsibly, that the application for leave will turn largely on the merits of the intended challenge. Although, through counsel, it does not concede that Mr Liu has satisfied the other guiding principles, it nevertheless does not offer evidence or put forward submissions against them. It leaves it to the Court to determine Mr Liu's compliance with them. Rather, the intended defendant has focused on what it intends is the absence of sufficient merit in Mr Liu's proposed challenge to persuade the Court that leave should not be given.

6

In these circumstances it is necessary to determine the standard of merit in Mr Liu's proposed case that he must establish before considering whether he has met that standard. A consideration of the merit of the proposed challenge can only be undertaken and made superficially because, of course, the whole point of the application is that the case can be considered on its merits.

7

What is the standard that Mr Liu must attain, or, looked at from the viewpoint of the intended defendant, what must it establish before this consideration will count against Mr Liu' I do not agree with Mr Hooker's submission that the same approach should be taken as in the case of applications to strike out proceedings or...

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