New Zealand Law Society - Supreme Court roundup 16 - 31 December 2021

Supreme Court roundup 16 - 31 December 2021

Supreme Court roundup 16 - 31 December 2021

Decisions, proceedings and news from the highest courts in some common law jurisdictions in December.

New Zealand Supreme Court 

Obligations under undertaking

Cowan and anor v Cowan and anor [2021] NZSC 185 (20 December 2021)

Successful leave application - Approved question whether CA correct to dismiss appeal - Parties asked to address in submissions whether CA correct to exclude considering factors other than the amount made available to support applicants’ obligations under undertaking required by an earlier Court of Appeal decision – application allowed. 

Employment, contractor or employee, decision making process

Gill Pizza and ors v A Labour Inspector [2021] NZSC 184 (1 December 2021)

Unsuccessful appeal from CA - In 2018, Labour Inspector commenced action under s 228(1)  Employment Relations Act 2000 (ERA) before Employment Relations Authority (Authority) to recover wages two Pizza Hut franchisees, Gill Pizza Ltd and Malotia Ltd, owed under Minimum Wage Act 1983 and the Holidays Act 2003 - Action brought on behalf of 28 pizza delivery drivers - Both Gill and Malotia said delivery drivers not employees but contractors therefore not covered by either Minimum Wage Act or Holidays Act - Dispute between the parties therefore concerned the status of the delivery drivers –

Authority said it lacked jurisdiction to deal with s 228(1) action - Said before it could consider the application, Employment Court needed to resolve delivery drivers’ status under s 6(5) ERA Subsequently, Employment Court dismissed Labour Inspector’s challenge to Authority’s decision - CA reversed Employment Court decision, ruling for Labour Inspector –

SC granted Gill Pizza and Malotia leave to appeal from CA - Approved question whether CA correct to conclude that Employment Court erred to say, if a defendant asserted there was no employment relationship, Labour Inspector had first to seek declaration of employment status from Employment Court under ERA s 6(5) before commencing or continuing with proceeding under s 228(1) –

Issue arose because s 228(1) empowered Labour Inspector to commence an action on behalf of an “employee” to recover wages or holiday pay entitlements - Also, s 161(1)(q) gave Authority exclusive jurisdiction to deal with actions under s 228(1) - Although Authority could resolve matters regarding whether person was an employee, s 161 (1)(c) specifically excluded matters “arising on an application under section 6(5)” –

That exclusion became significant - Section 6(5) allowed Employment Court to make declaration regarding person’s employment status following an application by that person or on their behalf (with consent from the person) - Section 187(1)(f) gave Employment Court exclusive jurisdiction to hear and determine, under s 6(5), whether any person to be declared an employee – Authority therefore could not consider s 6(5) applications –

Both Authority and Employment Court said statutory framework prevented Labour Inspector from bringing a s 228 claim, Authority from dealing with it, where employment status disputed - Rather, status question had to be resolved under s 6(5) through an application to Employment Court by, or with consent from, each driver - Only after declaration granted could a Labour Inspector commence or resume a s 228(1) claim –

SC unanimously dismissed appeal - Agreed with CA interpretation of relevant statutory provisions – SC said question of whether person on whose behalf s 228(1) claim was brought was an employee was jurisdictional fact which the Authority could determine during the course of dealing with the claim - Formed part of elements Labour Inspector had to prove in successful s 228(1) application - Where element could not be established, Authority would dismiss application without further considering it –

SC agreed with CA interpretation of exclusion in s 161(1)(c) for matters regarding employment status arising on a s 6(5) application – Said Authority’s jurisdiction to determine whether someone an employee was only excluded where an application had, in fact, been made to the Employment Court under s 6(5) for a declaration - Legislative history behind the relevant provisions supported that finding – Appeal dismissed.

Real estate agents, cross-appeal, security for costs

Nottingham and anor v Real Estate Agents Authority and anor [2021] NZSC 186 (21 December 2021)

Unsuccessful leave application - On 24 July 2020, applicants filed appeal in CA against two HC judgments allowing their appeal against decision of Real Estate Agents Disciplinary Tribunal but declining to award them indemnity costs - Second respondent, H, cross-appealed against  substantive HC decision - Various issues arose about payment of security for costs and applicants applied to CA to have cross-appeal deemed abandoned or struck out for procedural failings – CA dismissed application saying cross-appeal remained on foot - Applicants sought leave to appeal to SC - Essentially said non-compliance with requirement to pay security for costs by due date was fatal and CA erred in not treating it that way –

SC said proposed appeal did not meet leave criteria - Applicants sought to challenge fairly routine application of the Court of Appeal (Civil) Rules to particular facts - No question of general or public importance arose – No basis for interfering with CA approach – No appearance of miscarriage of justice – Application dismissed.

Adducing further evidence, requests under Privacy Act

Ortman and anor v United States of America [2021] NZSC 187 (21 December 2021)

Unsuccessful leave application - Applicants sought leave to appeal from CA decision dismissing appeals, declining Ortmann’s and van der Kolk’s application to adduce further evidence, and declining  Dotcom’s application for orders enforcing requests made under the Privacy Act 1993 – SC said no question of general or public importance arose – No appearance of miscarriage of justice – Application dismissed.

Self-represented applicant, judicial review

H v Employment Relations Authority and ors [2021] NZSC 188 (21 December 2021)

Unsuccessful leave application – Self-represented H sought leave to appeal against CA decision striking out application for judicial review of 16 directions and orders of Employment Relations Authority (the Authority) and seven decisions of Employment Court - Directions, orders and decisions related to three separate cases in which company of which H was sole director and shareholder ( C ) represented employees in disputes with third, fourth and fifth respondents –

CA described general background as: “ While factually different, the three separate employment disputes follow the same general theme: C representing an aggrieved employee, refusing to comply with directions of the Authority, particularly with regard to publication of matters relating to mediated settlements, and posting derogatory material on its Facebook page. As a consequence penalties were imposed on both C and H personally” -

SC did not see any point of public importance or general commercial significance arising from CA decision which concerned procedure under which case came before CA - Did not see any appearance of miscarriage of justice in way CA dealt with issue before it – Application dismissed.

COVID-19, costs

NZDSOS and anor V Minister For Covid-19 Response and anor [2021] NZSC 189 (22 December 2021)

Unsuccessful respondents’ costs application - No dispute that proceedings involved matter of public importance - Only issue relating to costs whether applicants acted reasonably in seeking leave for direct appeal to SC – Finely balanced but no costs order made – Application declined.

Sexual offence, disputed facts, acceptance of guilt

Mittal v R [2021] NZSC 190 (23 December 2021)

Unsuccessful leave application – M pleaded guilty to doing an indecent act on a young person in his Uber vehicle - Disputed facts hearing during which both M and complainant gave evidence – M said act of indecency not voluntary but rather had been initiated by complainant who had claimed to have a gun -  Judge rejected his evidence - When she sentenced him, Judge did not discharge him without conviction - Sentenced him to two months’ community detention and 12 months’ intensive supervision - Appeal against conviction and sentence dismissed on 25 February 2019 – During appeal hearing, presiding Judge asked M’s then counsel (who had not represented him in DC) if he accepted his guilt and she, after consulting with M, confirmed that he did –

After some delay, M applied to CA for recall of 25 February 2019 judgment on basis that guilty plea should be set aside - Claimed that before he pleaded guilty, had made it clear to his counsel that he believed that he was not guilty - Said he had not received adequate advice and had been put under pressure –

CA reviewed merits of position M wanted to advance in SC in recall judgment - CA concluded, for reasons it gave, that in pleading guilty, M had taken “the only course realistically open to him” – This and other reasons CA gave for rejecting recall application strong indicators that there was no miscarriage of justice – Application declined.

Self-represented litigant, partially successful recall application

Paterson v Lepionka and ors [2021] NZSC 191 (23 December 2021)

Partially successful recall application – Self-represented P applied to recall – Court dismissed substantive application but corrected error and reissued judgment.

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