Parker v Silver Fern Farms

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeChambers J
Judgment Date08 Nov 2011
Neutral Citation[2011] NZCA 564
Docket NumberCA780/2009

[2011] NZCA 564

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Chambers, Harrison and Stevens JJ

CA780/2009

BETWEEN
Jonathon Parker
Applicant
and
Silver Fern Farms Limited
First Respondent

and

Employment Court
Second Respondent
Counsel:

B A Corkill QC for Applicant

T P Cleary for First Respondent

Application for judicial review of Employment Court (“EC”) decision — applicant (“A”) employed by respondent — dismissed after refused to take drug test following discovery of cannabis in his car — Employment Relations Authority (“ERA”) dismissed claim for unjustified dismissal — lawyer refused to undertake further work without funding — another lawyer agreed to act provided legal aid was obtained — Legal Services Agency declined legal aid but this was reversed by Legal Aid Tribunal — by then appeal was out of time — EC declined application to file an appeal out of time of ERA decision — whether Court of Appeal had jurisdiction to hear review application in light of s193 Employment Relations Act 2000 (proceedings not to be questioned).

NOTE: EXTANT EMPLOYMENT COURT ORDER SUPPRESSING NAMES OR IDENTIFYING PARTICULARS OF THE APPLICANT'S FORMER LAWYERS: SEE [55] OF THE REASONS

Held: On the face of it s193 ERAct limited judicial review to the ground of “lack of jurisdiction” as defined in s193(2) (none of the exceptions in s193(1) were relevant in the circumstances). A review of the legislative history of equivalent sections illustrated that it was not appropriate to permit a broad interpretation that would allow judicial review on the grounds sought by P. From when the Court of Arbitration was been established by the Industrial Conciliation and Arbitration Act 1954, through the Industrial Relations Act 1973, Labour Relations Act 1987, Employment Contracts Act 1991, and up to the ERAct, limitations had consistently been set on when judicial review was available. Case law supported judicial review only being available when jurisdiction was in issue ( New Zealand Waterside Workers' Federation Industrial Association of Workers v Frazer; and New Zealand Engineering, Coachbuilding, Aircraft, Motor and Related Trades Industrial Union of Workers v Court of Arbitration). Parliament had clearly had the opportunity to increase the scope but had declined to do so. Instead it followed the ground-breaking House of Lords' decision in Anisminic Ltd v Foreign Compensation Commission and permitted judicial review in only three discrete circumstances, all involving lack of jurisdiction.

By excepting s213 ERA from the privative provision, the legislature had not widened the scope of judicial review so as to permit review on all grounds. That proposition would have made a nonsense of s193(2). There was nothing to suggest that s213 was intended to have any different role from its predecessors, namely to counter the normal role of the High Court as the “judicial review” court and to confer jurisdiction for such reviews exclusively on the CA. The s213 inclusion in the exception in s193(1) might have been the result of drafting errors.

No jurisdiction with respect to review application.

JUDGMENT OF THE COURT
  • A The application for judicial review is dismissed.

  • B The question of whether the interim orders prohibiting publication of the names or identifying particulars of the applicant's former lawyers should be made permanent or discharged is remitted to the Employment Court. The orders remain in place in the meantime.

  • C No order as to costs.

REASONS OF THE COURT

(Given by Chambers J)

Application for review of Employment Court decision
1

Jonathan Parker, the applicant, worked for Silver Fern Farms Ltd, the first respondent, 1 at its Oringi works. On 31 October 2007, a private investigator employed by Silver Fern found cannabis in Mr Parker's car. Mr Parker left the works before Silver Fern's enquiries could proceed. This was despite Silver Fern's request that he stay on site and the union representative's recommendation that he should do so. Mr Parker was then absent from work on medical advice for about five weeks. When he eventually sought to return to work, Silver Fern made it a condition of his return that he undergo a drug test. Mr Parker refused to do so, asserting that Silver Fern's drug and alcohol policy did not allow it to make that a condition of his returning to work. Silver Fern then dismissed him. He raised a personal grievance. The Employment Relations Authority, by a decision dated 7 November 2008, dismissed his claim for unjustified dismissal. 2

2

Mr Parker was dissatisfied with the Authority's determination. He wanted his case heard by the Employment Court. He had 28 days within which to challenge the Authority's determination. 3 He contacted a lawyer, Mr C. Because he could not afford to pay Mr C, he had to apply for legal aid. The Legal Services Agency had not determined that application by the time the appeal period expired. Accordingly, no appeal was filed in time.

3

On 6 January 2009, the Agency declined legal aid. Mr C told Mr Parker he could not carry out further work without proper funding. Mr Parker then tried to find another lawyer. Eventually, in April 2009, Mr A agreed to act provided legal aid was granted. Mr A drafted a statement of claim for the proposed challenge to the Authority's decision and submitted it to the Agency for the purposes of a reconsideration of a grant of aid.

4

The Agency stuck to its guns, however. On 5 June 2009, the Agency advised that it declined the application for aid. Mr A assumed that was the end of the matter. Unbeknownst to him, however, Mr Parker appealed the Agency's decision to the Legal Aid Review Panel. On 2 September 2009, the Panel issued its decision, reversing the Agency's decision and granting legal aid. 4

5

Mr Parker immediately told Mr A the good news. Mr A told Silver Fern's lawyer of the intended challenge. Within a couple of days the proceedings had been filed in the Employment Court, along with an application to file the appeal out of time.

6

Chief Judge Colgan heard the application to file an appeal out of time on 16 November 2009. On 18 November, he declined the application. 5

7

Mr Parker brought two applications in this Court following the Employment Court's decision. The first was an application for leave to appeal under's 214 of the Employment Relations Act 2000 (the ERA). This Court dismissed that application. 6 The second proceeding was an application for judicial review, asserting that the Employment Court, in reaching its decision, had acted in excess of jurisdiction and breached natural justice. Applications for judicial review in respect of proceedings before the Employment Court are brought in the Court of Appeal. 7 This Court's decision on such an application is final and conclusive. 8 It is this application for review with which we are concerned.

8

We have referred to Mr Parker's former lawyers as Mr C and Mr A. Mr C appears to have been given at least de facto name suppression in the Employment Court decision. 9 This was on the basis, the Chief Judge said, that Mr C had “not had an opportunity to give his account of what may be serious allegations of professional

negligence against him”. Mr A was accorded interim name suppression in a subsequent decision by the Chief Judge. 10
Issues
9

Mr Corkill QC, for Mr Parker, and Mr Cleary, for Silver Fern, submitted two issues arose. The first was whether the Chief Judge, in reaching his decision, breached natural justice. This was in fact the second cause of action but Mr Corkill put it first, as he submitted it was the stronger cause of action.

10

The second issue concerned the first cause of action, which was labelled in the pleading “Excess of jurisdiction”. This was a misnomer, however. Obviously the Chief Judge had jurisdiction to determine whether or not Mr Parker should have leave to file an appeal out of time. 11 This cause of action, as argued, shaded into the natural justice cause of action but differed in emphasis. The key complaint was that the Chief Judge had fallen into legal error in the views he expressed on lawyers' obligations to clients. For convenience, we shall refer to this cause of action as “the error of law cause of action”. The second issue was therefore whether the Chief Judge had made an error of law with respect to lawyers' obligations.

11

Following the hearing, however, we became aware of, in the course of preparing our judgment, s 193 of the ERA. This section had not been referred to us. It is a privative provision which, at least on its face, appeared to preclude an application for judicial review on the grounds relied on here. We issued a minute on 5 August 2011 seeking further submissions on this jurisdictional question. Perhaps unsurprisingly, Mr Corkill submitted there was jurisdiction while Mr Cleary contended to the contrary. We are grateful to counsel for their thoughtful additional submissions. In view of the dispute on this question as to jurisdiction, we must first deal with the issue of whether this application for review is outside our jurisdiction by virtue of s 193.

Do we have jurisdiction?
12

To place the jurisdictional argument in context, we need to set out briefly what Mr Corkill submitted on the two grounds of the application for judicial review. In essence, on the natural justice ground, he submitted as follows. The Chief Judge found that Mr Parker's challenge to the Authority's decision had “merit”. 12 His Honour said:

[26] Mr Parker has a substantial arguable case that the employer's policy, incorporated as part of the collective agreement to which he was subject, did not permit the employer to demand lawfully that he undergo a drug test as a condition of returning to work. Further, Mr Parker's case is that there was a genuine dispute between the parties as to the interpretation and operation of the drug testing policy. This should not have been resolved unilaterally by the employer...

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    ...(2009) 19 PRNZ 631 (HC) at [24]–[25]. 17 See, for example, the Employment Relations Act 2000, s 193 and Parker v Silver Fern Farms Ltd [2011] NZCA 564 at [18]–[54]. 18 Section 60(a). 19 Section 59(2). 20 Section 58(2) and (3). 21 John Ren “Enforcing Payment Obligations Under the Constructio......
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    ...usual disbursements. 1 Strachan v Moodie [2012] NZEmpC 95 . 2 Employment Relations Act 2000, s 214(1) . 3Parker v Silver Fern Farms Ltd [2011] NZCA 564, [2012] 1 NZLR 256. 4 See the text of s 213 at [13] above. 5Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [19......