NEW ZEALAND POST PRIMARY TEACHERS' ASSOCIATION v CAMBRIDGE HIGH SCHOOL NZEmpC WN
| Jurisdiction | New Zealand |
| Judge | A D Ford |
| Judgment Date | 13 February 2013 |
| Court | Employment Court |
| Docket Number | WRC 28/12 |
| Date | 13 February 2013 |
In the Matter of Proceedings Removed from the Employment Relations Authority
And in the Matter of a challenge to objection to disclosure
and
and
WRC 28/12
IN THE EMPLOYMENT COURT WELLINGTON
Interlocutory application by Ministry of Education (“Ministry”) seeking disclosure of a list of members of the New Zealand Post Primary Teachers' Association (“NZPPTA”) and disclosure of internal email communications between NZPPTA officials in response to an email communication from a Ministry official expressed to be “without prejudice” — substantive proceedings between parties related to the interpretation and application of a variation to the collective agreement between the Ministry and the NZPPTA which affected the pay of provisionally registered secondary school teachers — whether the disclosure of the list of NZPPTA members was relevant to the proceedings and ought to be disclosed — whether emails expressed to be “without prejudice” should be disclosed — whether the emails were related to a “dispute” that attracted the without prejudice privilege
Tanya Kennedy, counsel for the plaintiffs
Antoinette Russell, counsel for the defendants
INTERLOCUTORY JUDGMENT OF JUDGE A D Ford
In a minute dated 4 December 2012, Chief Judge Colgan made a fixture in this proceeding for 1 February 2013, which was the first available date after the Court vacation, to deal with a number of defended interlocutory applications. The substantive hearing is scheduled for 6, 7 and 8 March 2013. As it turns out, for one reason or another, several of the interlocutory issues that had been identified are no longer in contention. The hearing before me was confined to two issues relating to disclosure.
The defendants seek disclosure (to which the plaintiffs object) of:
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1. a list of the first plaintiff's, (NZPPTA) members;
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2. internal NZPPTA emails between NZPPTA officials or employees regarding an email from Ms Sarah Borrell of 15 July 2011, the subject line of which was “Without prejudice proposal around qualifications”.
The proceeding involves the interpretation and application of certain provisions of a collective agreement covering secondary school teachers, in particular a Variation, dated 27 September 2011, (the Variation) to the collective agreement (which affected the pay of provisionally registered secondary school teachers). The Secretary for Education does not accept the NZPPTA's interpretation of the provisions in question. The plaintiffs' claims were commenced by the filing of a statement of problem in the Employment Relations Authority (the Authority) but in a determination 1 dated 23 October 2012, the Authority ordered that the matter be removed to the Court to hear and determine without any investigation by the Authority.
In argument before me, the defendants were referred to as “the Ministry” and, for convenience, I will continue to refer to them either as “the Ministry” or simply as “the defendants”. Counsel for the defendants, Ms Russell, claimed that the list of NZPPTA members was required, “to enable the Ministry to determine, further to the allegations at [43] and [48] of the statement of claim, how many teachers are potentially affected by the dispute, and, for the purposes of remedies, who they are.”
In [43] of the statement of claim, the plaintiffs make the following comment on the Ministry's position in relation to the interpretation issues in question:
43. The Ministry's position on this issue is unclear and information is outstanding to show how all of the affected teachers (who are NZPPTA members) have been affected.
In response, the defendants pleaded in their statement of defence:
43. They deny that information is outstanding, and say that payroll information on all affected teachers was provided to the NZPPTA on 26 October 2012. They say further that the NZPPTA has refused to provide the Ministry with a list of members.
Paragraph [48] of the statement of claim, which was the other allegation Ms Russell relied upon, appears in the section dealing with remedies and is simply a claim for interest on behalf of “affected teachers” in respect of any proven underpayment of salary.
Ms Russell submitted that the Ministry could not provide accurate data to the NZPPTA without the provision of a list of its members. Counsel referred to the Court's equity and good conscience jurisdiction and to regulations emphasising “the importance of ensuring the speedy and efficient disposition of cases” submitting:
20. … if the Court decides the substantive issue in the NZPPTA's favour, the list will be required in order for the judgment to be implemented, and its disclosure at this stage will enable the Ministry to prepare more effectively for its implementation.
Ms Russell further contended that the list of NZPPTA members was required in terms of s 236 of the Employment Relations Act 2000 (the Act), “in order to establish plaintiffs' counsel's authority for representing those members”.
Anticipating an NZPPTA argument that disclosure of its membership would involve issues of confidentiality and privacy, Ms Russell submitted that no public interest concerns would be involved in disclosure of the list of NZPPTA members because of the conditions imposed in reg 51 of the Employment Court Regulations 2000 (the regulations) which protected the integrity and confidentiality of all documentation made available through the disclosure process.
The grounds upon which the plaintiffs object to disclosure of “a list of the NZPPTA members” are:
1.1 The document listing around 18,000 NZPPTA members is not relevant to the resolution of these dispute proceedings (regulation 37 and 38); and
1.2 In the alternative, if disclosed, would be injurious to the public interest (regulation 44(3)) in terms of confidentiality and/or privacy of information.
On the issue of relevancy, both counsel referred to reg 38(1) which provides:
38 Relevant documents
(1) For the purposes of regulation 37 and regulation 40 to 52, a document is relevant, in resolution of any proceedings, if it directly or indirectly—
(a) supports, or may support, the case of the party who possesses it; or
(b) supports, or may support, the case of the party opposed to the case of the party who possesses it; or
(c) may prove or disprove any disputed fact in the proceedings; or
(d) is referred to in any other relevant document and is itself relevant.
Ms Kennedy, counsel for the plaintiffs, cited the following passage from Airways Corporation of New Zealand v Postles : 2
The pleadings define the ambit of the proceedings and thereby define the issues to which questions of relevance must be related.
Counsel also submitted, in reliance upon Woolf v Kelston Girls' High School Board of Trustees 3 that the test is actual relevance, not merely potential relevance.
Ms Kennedy submitted that on the pleadings the matter before the Court involves a dispute over the interpretation, application and operation of clauses in a collective agreement between the Secretary for Education and the NZPPTA. Counsel stressed that on the Ministry's own assessment no more than 1,957 teachers
In the alternative, counsel for the plaintiffs' submitted that if the Court holds that the information is relevant then disclosure should not be ordered because it would be “injurious to the public interest”, in terms of reg 44(3)(c), in that personal information relating to approximately 16,000 members “would be disclosed for no legitimate purpose”.
In Lawrence v Ian Lock and John Sheahan as liquidators of ex CED Foods (in liquidation), 4 Judge Couch, consistently with the passage cited from Postles in [13] above, stated:
[14] The starting point in determining whether any document is relevant to particular proceedings is the pleadings. That is because the pleadings describe the case of each party and, to a large extent, identify issues of fact.
I agree with Ms Kennedy that the issues defined in the pleadings are issues relating to the dispute between the parties over the interpretation, application and operation of particular clauses in the collective agreement and, as such, I cannot see how a list of NZPPTA members is going to be relevant to the determination of the issues so identified. Should the plaintiffs be successful then it will become necessary for the parties to focus on the position of the individual teachers affected by the decision who are represented by the NZPPTA but the identity of those individuals is not relevant now to the substantive issues before the Court.
In their statement of claim, the plaintiffs specifically seek an order reserving leave to refer individual cases to the Court if necessary should they be successful in their substantive action. In [48] they also plead:
48. There are likely to be a significant number of teachers affected and the NZPPTA will need to work through each of its members pay calculations where the teacher is affected.
In response, the defendants plead:
48. They admit that approximately 1,800 full time teacher equivalents are paid on the trained scale in qualification groups that could be affected, based on a snapshot of Ministry of Education payroll data.
As stated, I do not consider that the list of NZPPTA members is relevant to the substantive issues before the Court. The defendants...
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