Brown v Tauranga City Council
[2017] NZCA 126
•13 April 2017 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA64/2017 [2017] NZCA 126 |
| BETWEEN | GEOFFREY JOHN BROWN |
| AND | TAURANGA CITY COUNCIL |
| Hearing: | 10 April 2017 |
Court: | Harrison, French and Brown JJ |
Counsel: | Applicant in person |
Judgment: | 13 April 2017 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to file leave to appeal is declined.
B The application for leave to appeal is declined.
CThe applicant is ordered to pay the respondent’s costs on a standard application for an extension of time on a band A basis and usual disbursements.
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REASONS OF THE COURT
(Given by Harrison J)
Introduction
Geoffrey Brown has filed two applications for leave. One is to appeal against a costs judgment of the Employment Court.[1] As that application was made out of time, Mr Brown also applies for an extension of time to file it. Both applications are opposed by the Tauranga City Council.
Background
[1]ITE v ALA [2016] NZEmpC 147.
Mr Brown was employed from 26 August 1996 by the Council as an information technology network specialist. In March 2014 Mr Brown was placed on special leave following security concerns. He was subsequently suspended after an investigation and a complaint by the Council to the police, which was later withdrawn.
In due course Mr Brown and the Council agreed to settle their differences on terms contained in an agreement signed off by a mediator pursuant to s 149 of the Employment Relations Act 2000. Among those terms were obligations of confidence and undertakings of confidentiality arising from the employment investigation. Significantly, Mr Brown also accepted liability to indemnify the Council against all legal costs incurred in addressing or dealing with a breach of the confidentiality provisions.
Mr Brown breached his confidentiality obligations. The Council obtained compliance orders in the Employment Relations Authority which also imposed a penalty.[2] The Authority ordered Mr Brown to contribute $15,000 towards the Council’s legal costs. Mr Brown challenged the Authority’s decision in the Employment Court. Judge Inglis dismissed his appeal in a substantive decision on the merits delivered on 15 April 2016 and reimposed the penalty.[3] The relief granted included a declaration of Mr Brown’s liability to pay the Council indemnity costs following his breaches of the settlement agreement. Quantification of his liability was adjourned for further submissions.[4] This Court later declined Mr Brown’s application for leave to appeal the substantive decision.[5]
[2]P v Q [2015] NZERA Auckland 181.
[3]ITE v ALA [2016] NZEmpC 42.
[4]At [105].
[5]B v ALA [2016] NZCA 385.
In a decision delivered on 15 November 2016 Judge Inglis quantified Mr Brown’s liability for indemnity costs in accordance with the substantive decision which is subject to the present applications. She ordered Mr Brown to pay a total sum of $153,120 comprising legal and experts’ fees and disbursements of $1,429.90. Mr Brown seeks leave to appeal that decision.[6]
[6]ITE v ALA, above n 1, at [16].
The 28-day time period for filing an appeal expired on 13 December 2016. Mr Brown filed his application for leave on 3 February 2017. He has explained his delay as being due to the demands of assisting a close relative who is suffering from a terminal illness.
Decisions
Mr Brown’s application for an extension of time to file the application for leave is governed by r 5(2) of the Court of Appeal (Civil) Rules 2005. In exercising our discretion we must take primary account of the interests of justice. The factors relevant to that inquiry are the length of the delay and its reasons; the parties’ conduct; the extent of any prejudice caused by the delay; the respective merits of the appeal; and the existence or otherwise of any issues of public importance.[7]
[7]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].
The first group of factors favour Mr Brown. The delay was not inordinate and is apparently explicable. It has not caused the Council any prejudice. However, in our judgment the merits are decisive against him.
In order to obtain leave Mr Brown must identify a question of law which by reason of its general or public importance or for any other reason ought to be submitted to this Court for determination.[8] As framed by Mr Brown, the question is whether the Employment Court erred in awarding costs by failing to take into account that the Council was guilty of “contributory conduct”. Mr Brown says the Council breached various provisions of the Local Government Act 2002. Mr Brown’s comprehensive notice of application for an extension of time lists some 24 particulars of management failure said to give rise to the Council’s contributory misconduct.
[8]Employment Relations Act 2000, s 214(3).
In our judgment Mr Brown has failed to identify an arguable question of law. In her substantive decision Judge Inglis applied the settled principle that one party may contractually bind itself to pay the other party’s full solicitor/client costs.[9] Mr Brown sought leave to appeal that decision on three identified questions of law but not on whether the Judge erred in finding that Mr Brown was liable to indemnify the Council for its costs. As a result, the scope of Mr Brown’s challenge was limited to consideration of the costs themselves, either as falling outside the scope of the indemnity provision or being unreasonable in amount.
[9]ITE v ALA, above n 3, at [86]–[89] applying Black v ASB Bank Ltd [2012] NZCA 384 at [78] and Watson & Son Ltd v Active Manuka Honey Association [2009] NZCA 595 at [35].
In assessing and quantifying the costs payable by Mr Brown in accordance with her substantive decision, the Judge took Mr Brown’s submissions into account on whether the Council’s costs fell within the scope of the indemnity provision.[10] She rejected what was apparently Mr Brown’s subsidiary submission that the Council’s conduct ought to reduce or extinguish its entitlement. Her finding in this respect was essentially one of fact and cannot give rise to any question of law. We add that, first, the contribution argument was not available to Mr Brown given this Court’s earlier decision and, second, even if Mr Brown’s application had raised a question of law, the question is not one of any general or public importance.
[10]ITE v ALA, above n 3, at [90]–[93].
Our conclusion that Mr Brown’s application for leave to appeal is without merit is decisive against his application for an extension of time.
Result
Mr Brown’s applications for an extension of time to appeal and for leave to appeal are declined.
Mr Brown is ordered to pay Council’s costs on a standard application for an extension of time on a band A basis together with usual disbursements.
Solicitors:
Ward Johnson Law, Tauranga for Respondent
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