Y v Kevin Hyde Engineering Ltd

• Jurisdiction: New Zealand
• Judge: AA Couch
• Judgment Date: 11 July 2013
• Court: Employment Court
• Docket Number: CRC 35/13
• Date: 11 July 2013

In the Matter of an application for a freezing order

BETWEEN

Mr Y

Appellant

and

Kevin Hyde Engineering Limited

Respondent

[2013] NZEmpC 129

CRC 35/13

IN THE EMPLOYMENT COURT CHRIST CHURCH REGISTRY

Application without notice for a freezing order under Employment Relations Act 2000 and waiver of the filing fee and obligation to provide undertaking as to damages — applicant impecunious — respondent company ordered to pay $37,000 at investigation meeting — respondent's shareholder and director moving to Australia and winding down company — evidence buildings used by business were owned by family trust — no evidence company was profitable — whether Employment Court had jurisdiction to waive filing fee — whether undertaking required — whether freezing order should be made.

counsel:

Peter Moore, advocate for the applicant

JUDGMENT OF JUDGE AA Couch

1 The applicant is anonymised in the intituling as Mr Y in deference to the non-publication order made by the Employment Relations Authority (the Authority) in proceedings before it between the same parties.

2 The applicant has placed before the Court an application without notice for a freezing order affecting all of the assets of the respondent. In order to pursue that application, the applicant also seeks a waiver of the filing fee normally payable and a waiver of the obligation to provide an undertaking as to damages. This decision addresses those issues.

3 The application was first received by the Court on 2 July 2013 when it was accompanied by a number of other documents but no evidence or filing fee. On 8 July 2013, three affidavits were provided in support of the application but no undertaking as to damages has been provided and the filing fee remains unpaid.

4 The application is made without notice. In such cases, an applicant has an obligation to make full and frank disclosure of all relevant information. The applicant in this case has been specifically made aware of that obligation by the Court and, in deciding the matter, I assume that obligation has been discharged. Even so, it must be borne in mind that all references to facts in this decision are based on untested evidence provided solely by the applicant.

Background

5 The respondent operated an engineering business in Leeston. The sole shareholder and director of the respondent is Kevin Hyde. He managed the company's business.

6 The applicant is a young man now aged 18. In February 2011, when he was 16 years old, he left school to work for the respondent. The employment relationship was intermittent but finally ended in May 2012.

7 The applicant pursued a number of claims against the respondent. These included two personal grievances and a claim for arrears of wages. The parties attended mediation but were unable to resolve their differences.

8 In September 2012, the applicant lodged a statement of problem with the Authority. That included the claims previously made and also sought several penalties for alleged breaches of the Employment Relations Act 2000 (the Act). On behalf of the respondent, Kevin Hyde provided a statement in reply in which he disagreed with many of the allegations made by the applicant. In particular, the allegations on which the personal grievances were based were vehemently denied.

9 The Authority directed the parties to attend an investigation meeting on 29 May 2013 and to provide statements of evidence prior to that date. At that stage, the respondent was represented by counsel, John Angland. The applicant complied with the Authority's directions. The respondent provided no evidence and did not attend the meeting. Mr Angland sought, and was granted, leave to withdraw on the grounds that he could not obtain instructions. The Authority member proceeded in the respondent's absence. She heard the applicant's evidence and subsequently received submissions on his behalf. In its determination given two days ago, the Authority has upheld most of the applicant's claims and ordered the respondent to pay him sums of money totalling nearly $37,000.

10 Mr Hyde telephoned the advocate for the applicant, Mr Moore, on 2 July 2013. In the course of their brief conversation, Mr Hyde said that he had been “back and forth to Australia” and was “going to work out of Australia”. Referring to the respondent, Mr Hyde said that he was “shutting the company down” that week. He also said that “the family trust owns all the buildings”.

11 Mr Angland has told Mr Moore that the respondent's business ceased trading several months ago. The applicant's mother says that, in March or April 2013, a friend of hers spoke to Mr Hyde who expressed interest in employing him but this apparently came to nothing. She also says that, two months or so ago, she went to the respondent's workshop to find the gates closed and no cars there but the doors were open.

12 The filing fee on the application is $306.67. The applicant says that he is unemployed and that, other than $53 in the bank and an unusable car, he has no assets of any value. He says that he lives with his parents and is receiving a sickness benefit of $153 per week. The applicant's mother says that she and her husband are willing to pay the filing fee for the applicant but that they do not have the necessary money and do not know how to borrow it.

Issues

13 The issues to be decided are:

• (a) Whether the Court has jurisdiction to waive the filing fee. (b) If so, whether it should be waived in this case.

• (c) Whether the application can be considered without an undertaking as to damages.

• (d) If so, whether a freezing order should be made.

Filing fee

14 This application is subject to regulation 8 of the Employment Court Regulations 2000 (the Regulations). Paragraph (4) of that regulation provides:

(4) The prescribed fee, or the reduced prescribed fee, 1 must be paid at or before the time at which the statement of claim is filed.

15 The logical effect of this regulation is that the application cannot be accepted for filing unless and until the filing fee is paid. The applicant seeks a waiver of that requirement so that his application can be decided without payment of a filing fee.

16 There is no specific provision in the Act or the Regulations authorising the waiver of a filing fee. The question must therefore be whether there is any general provision conferring jurisdiction on the Court to do so.

17 In the application for waiver, Mr Moore relies broadly on the Court's jurisdiction in equity and good conscience. This is presumably a reference to s 189 of the Act but, while this section guides the manner in which the Court should exercise its jurisdiction, it does not, of itself, confer jurisdiction. Mr Moore also urges the Court to grant a waiver as “a matter of public policy”. Public policy may aid the Court in the interpretation and application of legislation conferring jurisdiction on it but, again, does not confer jurisdiction.

18 Somewhat surprisingly, it does not appear to have been conclusively decided before whether the Court has power to waive the payment of a filing fee. The only specific reference to it seems to have been in Arkompat v Thai Chilli Co Ltd trading as Thai Chilli, 2 where the Chief Judge said:

Although rarely if ever sought, the legislation does not necessarily prohibit an application to the Court to waive or delay payment of a filing fee, or to file a proceeding and apply contemporaneously or subsequently to formalise its filing under s 219 of the Employment Relations Act 2000. Meritorious challenges should not fail simply for want temporarily of a filing fee. It would be a shameful day when the door of the Court were to remain closed to a litigant because of temporary impecuniosity and although Parliament The reference to “reduced filing fee” applies only where leave has been granted to serve a proceeding on an overseas party and has no application here.

and the Executive (by regulations) have not (yet) provided expressly for a fee waiver/postponement regime, it should not be beyond the wit of the Judges to so dispense justice in what will be rare but deserving cases.

19 While I agree with the expression of principle underlying this statement, I must be satisfied that the jurisdiction is properly conferred by the statute before it can be positively exercised. As has often been said, the Employment Court is a creature of statute and has no inherent jurisdiction. It has only the jurisdiction conferred on it by statute and the implied powers necessary to give effect to that jurisdiction.

20 As indicated by the Chief Judge in the passage above, the most likely source of a power to waive fees is s219 of the Act:

219 Validation of informal proceedings, etc

• (1) If anything which is required or authorised to be done by this Act is not done within the time allowed, or is done informally, the court, or the Authority, as the case may be, may in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done.

• (2) Nothing in this section authorises the court to make any such order in respect of judicial proceedings then already instituted in any court other than the court.

21 Section 219 is most commonly called in aid by parties who have not done something in time and who wish their doing it subsequently to be validated. An obvious example is the plaintiff who fails to challenge a determination of the Authority within the 28 day period allowed by s 179(2) of the Act and seeks an extension of time within which to do so.

22 What is sought here is something different. The applicant seeks to be relieved entirely of the obligation to do something which the Regulations require. In terms of the ordinary meaning of the words used, that is outside the scope of what the section allows. The power conferred on the Court is to make an order ...