Robert Alexander Moodie v The Employment Court Coa

• Jurisdiction: New Zealand
• Judge: O'Regan P
• Judgment Date: 07 November 2012
• Neutral Citation: [2012] NZCA 508
• Docket Number: CA414/2012
• Court: Court of Appeal
• Date: 07 November 2012

BETWEEN

Robert Alexander Moodie

Applicant

and

The Employment Court

First Respondent

and

Elizabeth Grace Strachan

Second Respondent

[2012] NZCA 508

Court:

O'Regan P, French and Asher JJ

CA414/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Application by second respondent under r5 Court of Appeal (Civil) Rules 2005 (directions — if no applicable rules Court must dispose of proceeding as it thinks best calculated to promote the ends of justice) and r15.1 High Court Rules (dismissing proceeding) to strike out the applicant's claim for judicial review of a decision of the first respondent (Employment Court) — application by applicant for an extension to appeal against the respondent Court's decision, out of time — applicant and second respondent were involved in an employment dispute — first respondent Court held that second respondent was an employee of the applicant, that she had been unjustifiably constructively dismissed and was entitled to half of the net profits from the applicant's legal practice for the period she was employed — grounds for judicial review were delay in delivery of judgment of over two years post hearing, alleged bias and bad faith and that the first respondent had exceeded its jurisdiction

Counsel:

Applicant in person

D Consedine for First Respondent

P B C Churchman for Second Respondent

• A The application for judicial review of the Employment Court's decision is struck out.

• B The application for an extension of time to appeal against the Employment Court's decision is dismissed.

• C The applicant must pay the respondent costs for a standard application for leave to appeal plus usual disbursements.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by O'Regan P)

Table of Contents

	Para No
Introduction	[1]
Factual background	[4]
The statement of claim	[8]
Our approach	[10]
Judicial review of an Employment Court decision	[11]
Appeals	[12]
Judicial review	[13]
Jurisdiction to strike out	[18]
Grounds of review	[26]
Delay	[29]
Discrimination	[34]
Bias	[37]
Unsubstantiated findings	[39]
Failure to consider evidence adduced by the applicant	[40]
Excess of jurisdiction	[43]
Bad faith and nullity	[44]
Conclusion: application to strike out	[45]
Extension of time for seeking leave to appeal	[46]
Costs	[52]

Introduction

1 The applicant, Dr Moodie, has applied to this Court for judicial review of an Employment Court decision delivered by Chief Judge Colgan, dealing with a dispute between the applicant and the second respondent, Ms Strachan. 1 Ms Strachan has applied to strike out the application for judicial review on the basis that the application for judicial review cannot possibly succeed and is an abuse of process. She says that the application for judicial review is really an impermissible attempt to appeal against factual findings and is vexatious.

2 In this judgment we deal with the application by Ms Strachan to strike out the application for judicial review. During the hearing of the strike out application, the applicant indicated that he also wished to apply for leave to appeal against the Employment Court decision. With the consent of Ms Strachan's counsel, we agreed to also deal with the applicant's oral application for an extension of time to seek leave to appeal and we also deal with that in this judgment.

3 The Employment Court abides this Court's decision. Counsel for the Employment Court appeared as a matter of courtesy and was given leave to withdraw.

Factual background

4 In late 2004/early 2005 the applicant and Ms Strachan agreed that Ms Strachan would become associated with the applicant's legal practice in a voluntary capacity. Ms Strachan would gain experience and skill, while the applicant would gain assistance in the preparation of his files. Ms Strachan's involvement in the applicant's practice developed quickly, and during 2005 she asked that she be remunerated consistently with her input into the practice. There was dispute about the agreed remuneration, but the Employment Court found that the parties agreed that Ms Strachan would share equally in the net profits of the practice with the applicant.

5 Ultimately, the parties' employment relationship broke down. Ms Strachan concluded working with the applicant in December 2006 after they had had a disagreement about the level of remuneration to which Ms Strachan was entitled. Ms Strachan filed a statement of claim in the Employment Relations Authority alleging unjustified constructive dismissal. The proceeding was removed to be heard at first instance by the Employment Court.

6 The issues before the Employment Court were:

• (a) whether Ms Strachan was the applicant's employee, and the length and terms of any employment relationship (in particular any agreed remuneration);

• (b) whether the applicant breached any employment agreement by not paying Ms Strachan any agreed remuneration;

• (c) whether office purchase and rental arrangements were incidents of any employment relationship, or a separate commercial transaction and so beyond the Employment Court's jurisdiction;

• (d) whether Ms Strachan raised her personal grievances with the applicant within time;

• (e) whether Ms Strachan was unjustifiably constructively dismissed;

• (f) what remedies and damages were available to Ms Strachan for any unjustified dismissal or breaches of contract, and whether the applicant was liable for any penalties for breaches of the Employment Relations Act.

7 The Employment Court held that:

• (a) Between January 2006-December 2006 Ms Strachan was the employee of the applicant.

• (b) Ms Strachan was entitled to half of the net profits of the applicant's practice for the period of her employment together with half of the practice's bank balance as at 31 January 2006, representing an allowance for work performed by her before that date.

• (c) The office purchase and rental arrangements were beyond the Employment Court's jurisdiction.

• (d) Ms Strachan's personal grievance was raised within time.

• (e) Ms Strachan was dismissed constructively and unjustifiably by the applicant.

• (f) Ms Strachan was entitled to compensation of $30,000 for non- economic loss as a result of the applicant's conduct following Ms Strachan's dismissal. This conduct included accusing Ms Strachan of tampering with the practice's accounts, making it unnecessarily difficult for Ms Strachan to deal with a property that she owned jointly with the applicant, complaining unmeritoriously to the Law Society about Ms Strachan, withdrawing a reference made in support of Ms Strachan's application to adopt a child, and accusing Ms Strachan of stealing a portable hard drive. The applicant was also held liable for a penalty of $2,500 for refusing to provide or enter into a written employment agreement with Ms Strachan.

The statement of claim

8 The applicant's statement of claim in the application for judicial review set out six wide-ranging causes of action. In his notice of opposition to the strike out application, he referred to seven bases on which he said his application for judicial review was founded. These are:

• (a) Delay: The Employment Court's decision was delivered over two years after the hearing concluded. The applicant argues that this led to errors that impaired the decision.

• (b) Discrimination: The applicant takes issue with passages from the Employment Court's decision that suggest that the applicant allowed Ms Strachan to work at his practice because he needed assistance and to reduce his “intense involvement” in the practice. He argues that such statements reveal a bias against him and discrimination based on his age.

• (c) Bias: The applicant says the decision gives rise to an “unmistakeable presumption of bias” by the Judge against him.

• (d) Unsubstantiated findings: The applicant says the decision included findings that did not arise from the pleadings or from material that was properly before the Court.

• (e) Failure to consider evidence adduced by the applicant: The applicant submits that a major plank of his defence in the Employment Court was evidence that Ms Strachan had falsified documents and issued false invoices to Moodie & Co clients under her own name. He argues that the Court reached its conclusion that Ms Strachan was constructively dismissed without dealing with these allegations.

• (f) Excess of jurisdiction: The applicant argues that the Employment Court exceeded its jurisdiction.

• (g) Bad faith and nullity: The applicant also alleges that the Employment Court acted in bad faith, and that in all the circumstances the decision of the Employment Court was a nullity.

9 The applicant also says the pleadings include an application to grant leave to appeal out of time. In fact, this is pleaded as one aspect of the relief sought in the judicial review proceeding rather than a separate application, so there was no operative application for leave before the Court. As mentioned earlier, we agreed to consider and deal with an oral application for an extension of time to seek leave.

Our approach

10 We will consider each of the grounds for judicial review in turn and then consider their cumulative effect. Before we do, we will first consider this Court's jurisdiction in relation to judicial review of Employment Court decisions and whether this Court has jurisdiction to strike out such an application.

Judicial review of an Employment Court decision

11 Under the Employment Relations Act 2000, appeals against, and applications for judicial review of, decisions of the Employment Court must be made to this Court. This Court's judicial review jurisdiction is limited and must be seen in its statutory context, including the relevant appeal provisions.

Appeals

12 There is no general right of appeal from the...