B (CA671/2020) v ALA - [2021] NZCA 229

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA671/2020
[2021] NZCA 229

BETWEEN	B (CA671/2020) Applicant
AND	ALA Respondent

Court:	Miller and Clifford JJ
Counsel:	Applicant in person M P Ward-Johnson for Respondent
Judgment: (On the papers)	3 June 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is declined.
BThe application for non-publication orders is declined.
CThere is no order as to costs.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

B applies for an extension of time to apply for leave, and for leave, to appeal against a decision of the Employment Court delivered on 6 August 2019.[1]

Background

[1]ITE v ALA [2019] NZEmpC 93.

These applications have an extensive background. In summary, in April 2017 this Court declined similar applications by B to challenge, out of time, a costs judgment of the Employment Court. That costs judgment was made in proceedings in which the Employment Court had made extensive non-publication orders and in which the previous determinations of the Employment Relations Authority and the judgments of the Employment Court had, accordingly, been issued in anonymised form.[2]
[2]B has subsequently been fined a total of $19,500, and sentenced to 21 days’ imprisonment under a committal order, by the Employment Court for breaches of those non-publication orders and the underlying confidential matters.
It would appear that the existence of those non-publication orders was, however, not drawn to this Court’s attention on that occasion,[3] and its judgment declining those applications (the 2017 leave decision) did not anonymise the names of B and ALA.
[3]That was not the case on an earlier occasion relating to an application for leave to appeal arising in those proceedings: B v ALA [2016] NZCA 385.
ALA subsequently applied for a non-publication order in respect of the 2017 leave judgment. In a minute of 17 June this Court declined that application, observing:
In the absence of a compelling ground, which is not apparent from counsel’s memorandum, this Court will not suppress publication of a judgment which has been delivered and published.
Relying on the fact of the publication of the 2017 leave decision in that non‑anonymised form, B has now applied unsuccessfully on two occasions to the Employment Court for variation of the original non-publication orders.
The judgment of the Employment Court B now seeks to appeal is the second of those judgments, released by that Court on 6 August 2019.[4] The Employment Court reasoned the fact alone of the publication of the 2017 leave decision in a non‑anonymised form was not, of itself, any reason for the Employment Court to vary its non-publication orders.[5]
[4]ITE v ALA, above n 1.
[5]At [10].
The 28-day time period for filing an application for leave to appeal that decision expired on 3 September 2019.[6] B filed these applications on 17 November 2020.

Analysis

[6]Employment Relations Act 2000, s 214(2).

This application for an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading B (CA671/2020) v ALA

Details

AGLC: B (CA671/2020) v ALA [2021] NZCA 229
Case: [2021] NZCA 229
Decision Date: 3 June 2021 at 11.30 am

CaseChat Overview and Summary

In B (CA671/2020) v ALA, the applicant sought an extension of time to apply for leave to appeal against a decision of the Employment Court. The Employment Court had previously made non-publication orders in relation to the proceedings, which were issued in anonymised form. The applicant had been fined and sentenced for breaches of those non-publication orders. The Court of Appeal had previously declined similar applications by the applicant to challenge, out of time, a costs judgment of the Employment Court. The applicant had applied unsuccessfully on two occasions to the Employment Court for variation of the original non-publication orders. The applicant filed the current applications on 17 November 2020, well outside the 28-day time period for filing an application for leave to appeal. The applicant principally explained his considerable delay by reference to the impact on him of bankruptcy proceedings initiated by the respondent.

The court considered the application for an extension of time under rr 5(2) and 16A of the Court of Appeal (Civil) Rules 2005, and in exercising its discretion, it took primary account of the interests of justice. The court found the considerable delay was not persuasively explained by the applicant and that the merits of the proposed appeal were against the applicant. The court considered that none of the 14 legal issues raised by the applicant raised a question of law of sufficient public or private importance. The court found that the publication of the 2017 leave decision did not affect the status and binding force of the Employment Court’s non-publication orders. The application for an extension of time to file leave to appeal was declined, and the application for non-publication orders was declined. There was no order as to costs.

Orders