Roger Hurst v Eagle Equipment Ltd
 NZEmpC 110
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter Of an application for leave to file challenge out of time
Rose Alchin, counsel for the plaintiff
Samuel Hood, counsel for the defendant
Application for leave to file a statement of claim out of time — counsel filed statement of claim within time but failed to pay filing fee — re-filed the next day but was rejected — applicant facing disciplinary charges when made redundant — whether decision predetermined — whether applicant's inability to request disclosure in the Authority was grounds for granting leave — whether applicant's conduct in the Authority prevented exercise of discretion to grant relief.
The issues were: whether H's inability to request disclosure in the Authority was grounds for granting leave; whether H had a valid claim for commission; whether H had a valid claim that his redundancy had not been genuine; and whether H's conduct in the Authority prevented the Court exercising its discretion to grant relief.
Held: While the Authority did not have any stated procedure for dealing with disclosure of documents between parties, it had very wide powers under s160(1)(a) ERA (powers of authority — call for evidence and information from the parties). In the Employment Court expressed reservations as to whether the Authority could order one party to make discovery of documents to another. However, in appropriate cases, the Authority could direct parties to make documents available to it. No application had been made by H to require Eagle to produce any information. Availability of formal discovery in the Court did not, of itself, provide grounds for granting leave.
H's claim for outstanding commission was weak, with little prospect of success. If it was allowed to proceed it would have put Eagle to unnecessary duplication.
The other territory manager had not been called as a witness and the Authority had rejected H's evidence. There was sufficient evidence that H had a complaint he had been unjustifiably dismissed. The onus of proving justification rested upon Eagle. H did not have such a low prospect of success that his claim should not be allowed to go to a hearing.
H had failed to provide evidence in support of the commission claim but there were no examples directly related to the personal grievance claim that amounted to disqualifying conduct in the Authority.
Extension of time granted in relation to the personal grievance claim but not for the claim for commission.
The applicant, Mr Hurst, has applied for leave to file a statement of claim out of time, pursuant to regulation 13A of the Employment Court Regulations 2000. This regulation requires the application to state the grounds on which the application is made and that it be accompanied by an affidavit verifying the grounds on which it is made.
As has been pointed out in earlier cases, this application is in substance an application for an extension of time within which to make an election to challenge a determination of the Employment Relations Authority under s 179 of the Employment Relations Act 20001 (the Act). The Court has jurisdiction to extendtime under s 219(1) of the Act if something is not done within the time allowed, or is done informally.
The discretion conferred by s 219(1) is not subject to any statutory criteria but must be exercised judicially and in accordance with established principles.
Counsel were agreed that the authorities clearly state that the fundamental principle which must guide the Court is the justice of the case. Useful and convenient headings before reaching a conclusion on whether the justice of the case requires an extension of time that have been isolated by the authorities are the following 2:
(a) The reason for the omission to bring the case within time;
(b) The length of the delay;
(c) Any prejudice or hardship to any other person;
(d) The effect on the rights and liabilities of the parties;
(e) Subsequent events;
(f) The merits of the proposed challenge.
The list is not exhaustive and, in the balancing exercise, one factor alone may not be decisive: see 3 I also take into account the other well established principles referred to in , 4 applicable to applications for extensions of time generally, that the rules of Court must prima facie be obeyed. If the law were otherwise a party in breach would have an unqualified right to an extension of time. 5 Once an applicant is outside the time for appealing, the applicant's position suffers a radical change and now becomes an applicant for a grant of an indulgence by the Court instead of a person with a right to challenge. 6
The Employment Relations Authority's determination was dated 12 January 2011 and 9 February 2011 was the last day for filing a challenge. On that day the applicant's then solicitor, who I shall refer to as Ms S, filed a copy of a statement of claim by email but did not pay the filing fee either online or over the counter of a Westpac bank branch. The original of the statement of claim was sent to the Employment Court together with a cheque for the filing fee but, as it was received on 10 February, it was rejected.
As the attempt to file the challenge with the appropriate fee was made when that document was received by the Court on 10 February, the challenge was therefore one day out of time. I have not been informed when the respondent first became aware of the attempt to file the challenge out of time.
On 21 February the application for leave to file the challenge out of time was received by the Court. It was supported by an affidavit by Ms S who explained that the failure to pay the filing fee on time was an oversight by herself She deposed that the granting of leave would not prejudicially affect or disadvantage the respondent and that the applicant was dissatisfied with the determination of the Authority and wished to have the matter heard de novo in the Employment Court.
Although as Mr Hood, counsel for the respondent, pointed out, the reasons for Ms S's oversight and the late filing of the statement of claim have not been set out, I find that, contrary to Mr Hood's submissions, the delay has been, just, adequately explained.
The application for leave was opposed by the respondent which filed a notice of opposition on 3 March setting out extensive grounds and an affidavit of the respondent's Human Resource Manager, Anne Purnell, in support. The affidavit set out in considerable detail the events that had led up to the Authority's investigation and annexed a number of documents going to the merits of the applicant's claims.
On the same day as that notice of opposition was filed, the matter was referred to Chief Judge Colgan by the registry for directions. He issued a minute on 3 March which stated, in part:
Because there are issues raised by the opposition that the plaintiff has not had an opportunity to address, the plaintiff may have the period of 14 days from the date of this minute to file and serve any further affidavit evidence strictly in reply to that of the respondent.
The minute then went on to deal with issues as to the way in which the application for leave would be dealt with, either on the papers or by a hearing, the venue for the hearing, and gave a suggested date of hearing in Hamilton on Wednesday, 6 April 2011.
Counsel filed a joint memorandum on 7 March in which the then counsel for the applicant submitted that the matter could be heard on the papers and, if necessary, after the applicant had filed an affidavit in reply. Mr Hood submitted that a hearing was necessary and noted there might be a need for cross-examination. The matter was then referred to the Chief Judge for directions, which were the subject of a minute he issued on 8 March. He directed that, as there had been no agreement that the application could be heard on the papers, there had to be a hearing and then stated:
Neither party has advised the Registrar of unavailability on 6 April 2011 and accordingly that should be the date of hearing of the opposed application for leave. Following paragraph 2 of the Court's minute of 3 March 2011, the period of the plaintiff to file and serve any further evidence strictly in reply will expire on 17 March 2011.
On 18 March Ms S sent an email to the Court and to Mr Hood as follows:
I confirm that no further affidavit evidence in reply will be submitted for the above matter.
On that same day Mr Hood wrote to Ms S's firm requiring her to be available for cross-examination on 6 April, noting that her affidavit contained evidence of a contentious nature, referring to rules 13.5. 1 and 2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules), and stating those Rules prevented Ms S's firm from acting further in the proceedings. It concluded:
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