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FMV v TZB

FMV v TZB

Case [2018] NZHC 1131 21 May 2018

Jurisdiction

Abuse of Process

Standing

Discovery & Disclosure

Injunction

Employment & Labour Law

Administrative Law

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-3267

[2018] NZHC 1131

BETWEEN
FMV

Plaintiff

AND

TZB

Defendant

Hearing: 23 April 2018

Counsel:

A Sharp for Plaintiff

T Clarke and H Musgrave for Defendant

Judgment:

21 May 2018

JUDGMENT OF BREWER J

This judgment was delivered by me on 21 May 2018 at 4:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
HDA Lawyers Ltd (Auckland) for Plaintiff Bell Gully (Auckland) for Defendant

FMV v TZB [2018] NZHC 1131 [21 May 2018]

Introduction

[1] FMV was employed by TZB. It was a very unhappy experience for FMV and she alleges that TZB failed her in a number of ways which give rise to causes of action.

[2] FMV commenced her employment with TZB on 9 February 2009. She resigned on 21 January 2010.

[3] On 22 December 2016, FMV filed the current proceeding. The next day she lodged an application to commence proceedings in the Employment Relations Authority (the Authority). The Authority has stayed FMV’s proceeding until she provides certain evidence going to her mental health at relevant times.1

[4] On 20 December 2017, after the Authority had issued its stay, the proceeding was served on TZB. This was the day before the expiry of the 12 months service period provided for by r 5.72(2).2

[5] TZB applies for FMV’s proceeding to be struck out for abuse of process. Two grounds are given:

(a)The Court has no jurisdiction. This is an employment dispute and under the Employment Relations Act 2000 (the ERA) the Authority has exclusive jurisdiction.

(b)FMV’s claim duplicates the proceeding already filed before the Authority in that the same facts and issues are pleaded and the same relief is sought.

[6] TZB also seeks a suppression order and, if the application for strike-out is unsuccessful, an extension of time for filing a statement of defence.

1 [FMV] v [TZB] [2017] NZERA Auckland 112.
2 High Court Rules.

[7] The Court may strike out a cause of action if it does not have jurisdiction to hear it.3

[8] The Court may also strike out all or part of a pleading if it considers it is an abuse of process.4 The enquiry will entail a “broad, merits-based judgment”.5

[9] Attempting to bring a proceeding will amount to an abuse of process if it is duplicative of another proceeding which is extant but stayed.6 The rationale for this can be found in the words of the English Court of Appeal in Buckland v Palmer.7 The decision of that Court is set out succinctly in the headnote:8

It was an abuse of process of the Court to bring two actions in respect of the same cause of action but where there had been no judgment in the first action, that action could in appropriate circumstances be revived and amended to enable an adjudication to be made on…

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 FMV v TZB

Details

AGLC: FMV v TZB [2018] NZHC 1131
Case: [2018] NZHC 1131
Decision Date: 21 May 2018

CaseChat Overview and Summary

The case of FMV v TZB involved a claim brought by FMV against her former employer TZB, alleging mistreatment during her employment. TZB applied to have the claim struck out on the grounds that the High Court lacked jurisdiction over employment disputes, which fall under the exclusive jurisdiction of the Employment Relations Authority (ERA), and that the claim was an abuse of process due to duplication of an extant yet stayed proceeding before the Authority. FMV argued that her claim was based in tort rather than contract, thus falling outside the exclusive jurisdiction of the Authority. The Court found that FMV's claim was wholly dependent on the existence of her employment relationship with TZB and therefore fell under the Authority's exclusive jurisdiction. Additionally, the Court held that the claim was duplicative of the proceeding before the Authority, making it an abuse of process. The Court granted TZB's application to strike out the claim and made permanent the suppression order regarding the parties' identities.

In summary, the Court ruled that it had no jurisdiction to hear FMV's claim as it fell under the exclusive jurisdiction of the Employment Relations Authority. The claim was also struck out as an abuse of process due to its duplication of a proceeding before the Authority. The suppression order regarding the parties' identities was made permanent. TZB was awarded costs.

Orders