B (SC74/2021) v ALA - [2021] NZSC 105

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 74/2021
[2021] NZSC 105

BETWEEN	B (SC 74/2021) Applicant
AND	ALA Respondent

Court:	William Young, Glazebrook and Ellen France JJ
Counsel:	Applicant in person M P Ward‑Johnson for Respondent
Judgment:	27 August 2021

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.

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REASONS

The parties settled an employment dispute that arose between them and, in mid‑2014, entered into a settlement agreement which included confidentiality provisions. In the context of enforcement proceedings brought by the respondent in relation to the settlement agreement, permanent non-publication orders were made by the Employment Court in 2016.[1] Subsequently, a judgment delivered by another Court was published in which the parties were identified. Relevantly, the applicant then made an application to the Employment Court to change the Court’s non‑publication orders arguing that the intituling adopted by the other Court undermined and effectively annulled the Employment Court’s non‑publication orders. That application was dismissed by the Employment Court.[2] The applicant then applied out of time for leave to appeal from that decision to the Court of Appeal. The Court of Appeal declined to grant the application for an extension of time.[3] Although the Court did not grant the non-publication orders sought by the respondent, the Court did anonymise its judgment. The applicant now seeks leave to appeal to this Court from that decision.[4]
[1]ITE v ALA [2016] NZEmpC 42, (2016) 15 NZELR 16.
[2]ITE v ALA [2019] NZEmpC 93 (Judge Corkill).
[3]B (CA671/2020) v ALA [2021] NZCA 229 (Miller and Clifford JJ) [CA judgment].
[4]The notice of application refers to s 214A of the Employment Relations Act 2000. However, that section applies to direct appeals from the Employment Court so is not applicable in this case.
In support of the application for leave, the applicant advances numerous grounds of challenge to the non‑publication orders including issues which, the applicant says, arise from the Employment Court judgment which the Court of Appeal did not address and the operation of the Employment Relations Act 2000 with other legislation such as the Local Government Act 2002 and the Local Government Official Information and Meetings Act 1987. We see the substance of the complaint, however, as largely resting on the earlier publication and the undermining effect on the operation of the court system which it is said has flowed from keeping the non‑publication orders in place. The applicant also challenges the Court of Appeal’s assessment of the significance of the publication and says there is no legislative authority for the approach taken or for the anonymisation of the parties’ names.
The respondent, in opposing leave, submits that if successful on the proposed appeal the applicant seeks to disseminate material the subject of final compliance orders which are based on agreed confidentiality. In these circumstances, the respondent says there is no countervailing public interest that would warrant any amendment to the non-publication…

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 (SC74/2021) v ALA

Details

AGLC: B (SC74/2021) v ALA [2021] NZSC 105
Case: [2021] NZSC 105
Decision Date: 27 August 2021

CaseChat Overview and Summary

In the case of B (SC 74/2021) v ALA, the Supreme Court of New Zealand was asked to review a decision made by the Court of Appeal. The applicant, B, sought leave to appeal a decision by the Court of Appeal that had declined to grant an extension of time for an appeal against a decision of the Employment Court. The dispute arose from a settlement agreement between the applicant and the respondent, which included confidentiality provisions. The Employment Court had made permanent non-publication orders in 2016, which were later undermined when another court published a judgment identifying the parties. The applicant had sought to challenge these non-publication orders, but both the Employment Court and the Court of Appeal dismissed the application.

The primary legal issue for the Supreme Court was whether there was a basis for the Court of Appeal's decision to decline the application for an extension of time, and if the appeal had sufficient merit to warrant a review by the Supreme Court. The applicant argued that the Court of Appeal had not adequately considered the impact of the publication on the non-publication orders and that there was no legislative authority for the anonymisation of the parties' names. The respondent, ALA, opposed the application, asserting that there was no countervailing public interest that would justify any amendment to the non-publication orders. Furthermore, the respondent maintained that the Court of Appeal's assessment of the limited significance of the publication was appropriate and that there was inherent jurisdiction to anonymise the parties' names.

The Supreme Court found that the Court of Appeal had correctly applied settled principles in declining the application for an extension of time. The Court noted that the applicant's challenge was to the application of those principles in the specific circumstances of the case, rather than to the principles themselves. As such, the Supreme Court held that the appeal did not raise a question of general or public importance. The Court further concluded that the Court of Appeal's assessment of the limited impact of the publication was reasonable and that there was no indication of a miscarriage of justice in that assessment. Consequently, the application for leave to appeal was dismissed, and the applicant was ordered to pay the respondent's costs of $2,500.

The Supreme Court also noted that in order to maintain the confidentiality orders, the names of the parties were anonymised in the judgment. This decision was upheld as appropriate given the context of the case.

Orders