Fifield v Rotorua District Council

[2015] NZCA 77

IN THE COURT OF APPEAL OF NEW ZEALAND

CA547/2014
[2015] NZCA 77

BETWEEN	FRANK JOHN FIFIELD Applicant
AND	ROTORUA DISTRICT COUNCIL Respondent

Hearing:	16 March 2015
Court:	Randerson, Wild and French JJ
Counsel:	Applicant in Person T P Cleary for Respondent
Judgment:	19 March 2015 at 11:30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is declined.

BNo order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

The application

1. The applicant Mr Fifield applies for an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005 to appeal against a judgment of Chief Judge Colgan delivered in the Employment Court on 28 May 2013.[1]  Chief Judge Colgan dismissed Mr Fifield’s application for leave to challenge a determination of the Employment Relations Authority (ERA) out of time.  The ERA had, on 28 March 2012, dismissed claims Mr Fifield had made against a supervisor at the Rotorua District Council relating to events in 1989 and 1990.[2] 

Brief background facts

[1]Fifield v Rotorua City Council [2013] NZEmpC 94.

[2]Fifield v Kearns [2012] NZERA Auckland 110. 

1. Mr Fifield has a longstanding grievance in respect of events relating to his dismissal from employment with the Rotorua District Council in 1989 and 1990.  Since that time, he has brought several proceedings seeking reinstatement and recovery for lost wages. 

2. In 2007, Mr Fifield applied for special leave to appeal from a decision of the former Labour Court dated 4 December 1989.  His application referred to the Council’s refusal to reinstate him.  This Court dismissed the application on the grounds that it was misconceived and was hopelessly out of time.[3]  The history of the matter to that point was set out in some detail in this Court’s judgment and need not be repeated here. 

   [3]Fifield v Rotorua District Council [2007] NZCA 36.

3. In 2012, Mr Fifield brought proceedings in the ERA against a Mr Kearns who had never been his employer though he appears to have been in a supervisory role over Mr Fifield in the 1989/1990 period.  In the determination issued by the ERA on 28 March 2012, Mr Fifield’s application was dismissed as frivolous and vexatious.[4]  Mr Fifield sought to challenge the determination of the ERA in the Employment Court.  Leave was required since Mr Fifield’s application was out of time. 

   [4]Fifield v Kearns, above n 2.

4. Chief Judge Colgan dismissed that application on 28 May 2013.  He did so for these reasons:

   (a)There was no adequate explanation for the lengthy delays by Mr Fifield in advancing his grievance.

   (b)The latest intended challenge was some five years after this Court had noted in 2007 that Mr Fifield was hopelessly late in attempting to revisit events which occurred in his employment in 1989.

   (c)It would be oppressive to expect his former employer to now attempt to justify its actions.

   (d)The ERA was correct in describing Mr Fifield’s proceedings as vexatious.

   (e)The intended challenge in the Employment Court was brought against a different party than the party against whom the proceeding in the ERA was brought.

The present application

1. This Court is required to consider whether it is in the overall interests of justice to grant an extension of time under r 29A.[5] We note that the history of lengthy and unexplained delay in these proceedings has continued.  It was not until 30 September 2014 that this Court received Mr Fifield’s present application for an extension of time to appeal against the decision of Chief Judge Colgan delivered some 16 months previously.  In terms of s 214 of the Employment Relations Act 2000, any appeal must have been lodged within 28 days of the Employment Court’s judgment.  That would have required the appeal to be filed by 25 June 2013.  It appears that Mr Fifield may have been attempting unsuccessfully to obtain legal advice but this does not provide any adequate explanation for delay of this length.

   [5]My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].

2. In terms of s 214 of the ERA, an appeal to this Court is available only on questions of law.  Mr Fifield has not identified any question of law.  So far as his grounds of appeal may be discerned, they simply seek to reopen concerns over the circumstances of his dismissal or termination of his employment in 1989/1990. 

Conclusion and result

1. In the circumstances, we are satisfied that an extension of time to file an application for leave to appeal must be refused. 

2. The application for an extension of time to appeal is formally declined.  We make no order for costs in the circumstances.

Solicitors:
Matt Dearing, Employment and Manufacturers Association, Auckland for Respondent