AFFCO New Zealand Limited v Employment Court

IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/2016
[2017] NZCA 209

BETWEEN	AFFCO NEW ZEALAND LIMITED Applicant
AND	EMPLOYMENT COURT First Respondent
NEW ZEALAND MEAT WORKERS AND RELATED TRADES UNION INCORPORATED Second Respondent

Court:

Randerson, French and Asher JJ

Counsel:

P R Jagose and G P Malone for Applicant
K G Stone and V McCall for First Respondent
P Cranney and S R Mitchell for Second Respondent

Judgment:

(On the papers)

24 May 2017 at 4.00 pm

JUDGMENT OF THE COURT

The costs payable under the order made on 12 April 2017 are to be calculated in accordance with the daily recovery rate for a standard appeal and the time allocations for an application for leave to appeal contained in the Court of Appeal (Civil) Rules 2005.

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REASONS OF THE COURT

(Given by French J)

In a judgment delivered on 12 April 2017, we dismissed AFFCO New Zealand Ltd’s application for judicial review and ordered the company pay the second respondent costs “as for a standard application on a band A basis and usual disbursements.”[1]
[1]AFFCO New Zealand Ltd v Employment Court [2017] NZCA 123.
The parties disagree on the amount of costs payable in terms of that order and have referred the matter back to the Court for resolution. In particular, they disagree whether the calculation should be determined by reference to scale costs on an appeal, or scale costs for an application.
The difficulty has arisen because under r 53D of the Court of Appeal (Civil) Rules 2005 scale costs are calculated in accordance with the time allocations in sch 2 and sch 2 only mentions appeals and applications for leave to appeal. Further, r 53C — which regulates the daily recovery rate — only refers to appeals.
However, the established practice is that the appropriate daily recovery rate for a “standard application” is the same as for a standard appeal. As regards the time allocation, costs “as for a standard application on a band A basis” are calculated by analogy on the same basis as applications for leave under sch 2. Our order was made in accordance with that established practice.
The costs payable under the order made on 12 April 2017 are to be calculated in accordance with the daily recovery rate for a standard appeal and the time allocations for an application for leave to appeal contained in the Court of Appeal (Civil) Rules.

Solicitors:
AFFCO Corporate Office, Hamilton for Applicant
Crown Law Office, Wellington for First Respondent
Oakley Moran, Wellington for Second Respondent

CaseChat Overview and Summary

In the case of AFFCO New Zealand Limited v Employment Court, the Court of Appeal of New Zealand addressed the calculation of costs following an earlier dismissal of an application for judicial review by AFFCO New Zealand Ltd against the Employment Court. The second respondent, the New Zealand Meat Workers and Related Trades Union Incorporated, was also involved in the proceedings. The case was presided over by Randerson, French, and Asher JJ, with legal counsel representing both parties. The judgment, delivered on 24 May 2017, clarified the method of calculating costs as per the earlier order made on 12 April 2017.

The primary legal issue before the Court was the interpretation of the Court of Appeal (Civil) Rules 2005 concerning the calculation of costs in the context of a standard application versus an appeal. Specifically, the Court needed to determine whether the costs should be calculated based on the scale for appeals or the scale for applications for leave to appeal. This ambiguity arose because the relevant rules and schedules in the Court of Appeal (Civil) Rules 2005 only explicitly mentioned appeals and applications for leave to appeal, without clear guidance on standard applications.

The Court resolved this issue by referring to established practice, which held that the daily recovery rate for a standard application is the same as that for a standard appeal. Furthermore, the time allocation for costs "as for a standard application on a band A basis" is calculated by analogy to applications for leave to appeal, as outlined in Schedule 2 of the Court of Appeal (Civil) Rules. The Court confirmed that its earlier order was made in accordance with this established practice. Consequently, the Court mandated that the costs payable should be calculated using the daily recovery rate for a standard appeal and the time allocations for an application for leave to appeal, as specified in the Court of Appeal (Civil) Rules.

In conclusion, the Court of Appeal clarified that the costs payable under the order made on 12 April 2017 are to be calculated in accordance with the daily recovery rate for a standard appeal and the time allocations for an application for leave to appeal contained in the Court of Appeal (Civil) Rules 2005. This ruling resolved the disagreement between the parties regarding the appropriate method for calculating the costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established