David Mitchell v Blue Star Print Group (NZ) Limited - [2011] NZSC 111

IN THE SUPREME COURT OF NEW ZEALAND

SC 74/2011
[2011] NZSC 111

BETWEEN DAVID MITCHELL
Applicant

AND BLUE STAR PRINT GROUP (NZ) LIMITED
Respondent

Court: Blanchard, McGrath and William Young JJ

Counsel: Applicant in person
C Heaton for Respondent

Judgment: 22 September 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

Mr Mitchell brought a personal grievance claim against his former employer, Bluestar, claiming for lost wages plus $100,000 for hurt and humiliation and $400,000 for exemplary damages. The Employment Relations Authority dismissed his claims. He appealed to the Employment Court,[1] where there was a de novo hearing. Judge Shaw found that he had been unjustifiably constructively dismissed and awarded him compensation of $10,000 for humiliation etc. She dismissed the exemplary damages claim, saying it had been abandoned when Mr Mitchell accepted that such damages were not available as a remedy for a personal grievance.
[1] Mitchell v Blue Star Print Group (NZ) Ltd EmpC Wellington 21/08, 23 December 2008.
There had been a Calderbank offer by Bluestar before the matter came before the Authority in the sum of $13,000. In awarding costs to Mr Mitchell, Judge Shaw disregarded that offer, saying that a feature of Mr Mitchell’s case was his desire for personal vindication, which the offer had not addressed, and that his claim that he had been treated unfairly had been entirely successful. She awarded him costs of $1,000 in respect of the Authority hearing, $3,000 for the Employment Court hearing and $1,510 disbursements.[2]
[2] Mitchell v Blue Star Print Group (NZ) Ltd EmpC Wellington 2/09, 19 March 2009.
Bluestar successfully challenged the costs order in the Court of Appeal. The Court accepted a submission from Bluestar that Mr Mitchell had not abandoned his exemplary damages claim, referring to a passage from the hearing transcript in the Employment Court and to the fact that after the costs decision Mr Mitchell had written to the Court denying that he had abandoned the exemplary damages claim. However, he brought no appeal in respect of it.
The Court of Appeal found that Judge Shaw had exercised her discretion on a wrong principle.[3] It said that:
[15] ... The finding that Mr Mitchell had abandoned the claim for a large sum of money was central to the Judge’s reasoning that he was motivated primarily by vindication and not by money. But we are also satisfied that the Judge made a second error of principle in disregarding the Calderbank offer.
[3]Bluestar Print Group (NZ) Ltd v Mitchell [2010] NZCA 385 per O’Regan P, Randerson and Stevens JJ.
It considered that the Calderbank letter should have been taken into account and quashed the costs order.
Mr Mitchell’s application to this Court is well out of time but he explains that he was not notified of the Court of Appeal’s decision. Even so, his application was still not made until 4 July 2011, long after 29 November 2010 when he did receive a copy of the Court of Appeal…

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.

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Details

Case: [2011] NZSC 111
Decision Date: 22 September 2011

CaseChat Overview and Summary

David Mitchell, a former employee, sought to appeal a decision from the Court of Appeal that had quashed a costs order awarded to him by the Employment Court. The original dispute involved Mitchell bringing a personal grievance claim against his former employer, Blue Star Print Group (NZ) Limited, for lost wages, hurt and humiliation, and exemplary damages. After the Employment Relations Authority dismissed his claims, Mitchell appealed to the Employment Court where Judge Shaw found that he had been unjustifiably constructively dismissed and awarded him $10,000 for humiliation, dismissing the exemplary damages claim. The Employment Court also awarded Mitchell costs of $1,000 for the Authority hearing, $3,000 for the Employment Court hearing, and $1,510 in disbursements. Blue Star subsequently challenged the costs order in the Court of Appeal, arguing that Mitchell had not abandoned his exemplary damages claim. The Court of Appeal agreed, finding that the Employment Court judge had exercised her discretion on a wrong principle in disregarding a Calderbank offer and quashed the costs order. Mitchell now sought leave to appeal to the Supreme Court.

The legal issues the court had to decide included whether Mitchell's application for leave to appeal was made out of time, and if so, whether the application should be granted given the circumstances. The Court also needed to consider whether the Court of Appeal's decision involved a question of public or general importance. Mitchell argued that he was not notified of the Court of Appeal’s decision and was waiting for a copy of the transcript of the hearing in the Court of Appeal. The Court needed to determine if these factors justified the delay in making the application and if the issue of disregarding the Calderbank offer warranted an appeal.

The Supreme Court found that Mitchell's application for leave to appeal was indeed out of time. Despite Mitchell's explanations for the delay, the Court held that he did not receive a copy of the Court of Appeal judgment until 29 November 2010, and his application was not made until 4 July 2011. The Court also noted that Mitchell had the transcript of the Court of Appeal hearing two months before making the application. The Court held that Mitchell's case was not of such obvious merit that he should be given leave to appeal out of time, especially given that only a relatively small sum of costs was in issue. The Court concluded that the question of whether the Calderbank letter should or should not have been disregarded did not give rise to a question of public or general importance.

In light of the above, the Supreme Court dismissed Mitchell's application for leave to appeal.

Orders