Maheta v Griggs

[2024] NZCA 242

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA612/2023
 [2024] NZCA 242

BETWEEN	DHARMENDRA MAHETA Applicant
AND	CHRISTOPHER JOHN GRIGGS Respondent

Court:	French and Ellis JJ
Counsel:	Applicant in person Respondent in person
Judgment: (On the papers)	19 June 2024 at 2.15 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal under s 214 of the Employment Relations Act 2000 against the decision of the Employment Court granting Christopher John Griggs leave to withdraw as counsel is declined.

BThe applicant is ordered to pay the respondent costs for a standard application on a band A basis together with usual disbursements.  The applicant is also ordered to pay a separate award of costs to SkyBus NZ Ltd for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

1. Mr Maheta is engaged in unjustifiable dismissal/disadvantage proceedings against his former employer SkyBus NZ Ltd in the Employment Court.  He seeks leave to appeal a decision of the Employment Court which granted his then lawyer, Mr Griggs, leave to withdraw as counsel in those proceedings.[1] 

   [1]Maheta v Skybus New Zealand Ltd EMPC 476/2019, 19 September 2023 (Minute of Judge Beck).

2. Under s 214 of the Employment Relations Act 2000, this Court can only grant leave on a question of law that in the opinion of this Court is one that by reason of its general and public importance or for any other reason ought to be submitted to this Court for decision.

3. The proposed questions of law are as follows:

   (a)Has there been a procedural error?

   (b)Does r 5.41(4) of the High Court Rules 2016 apply to the Employment Court?

   (c)Did the Employment Court err in not applying the correct law and authority in respect of s 4 of the Lawyers and Conveyancers Act 2006 and chs 3,4,7,11 and 13 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008?

   (d)Was the Employment Court decision to grant leave to withdraw a reasonable exercise of discretion?

   (e)Did the Employment Court err in holding Mr Maheta had a full opportunity to respond and to be fully heard?

4. Prior to the application for leave to appeal being filed, new counsel was assigned to act for Mr Maheta in the Employment Court proceedings.  We consider that of itself would be sufficient grounds to deny leave. 

5. However, we are satisfied that in any event none of the proposed grounds meets the test for granting leave.  They are entirely case specific and not of any general or public importance.  The law relating to the application of the High Court Rules in the Employment Court is settled as are the legal principles governing applications for leave to withdraw.  There is also no tenable basis on which it can be said that in this particular case the Employment Court erred in its application of the legal principles.  

6. Mr Maheta is not legally aided for the purposes of the application for leave to appeal.  That means that as an unsuccessful party he is liable to an award of costs.[2]  Mr Griggs seeks increased costs on the grounds that the application for leave to appeal was unnecessary, lacked merit, and was unreasonably persisted with despite an offer he made to Mr Maheta that if the application was withdrawn he (Mr Griggs) would not seek costs.  Costs are also sought by Mr Maheta’s previous employer, SkyBus NZ Ltd, which was initially named by Mr Maheta as a first respondent.  It seeks costs incurred for work done up to the time it was removed as a respondent.

   [2]Court of Appeal (Civil) Rules 2005, rr 53A(1)(a) and 53G(1).

7. Mr Maheta appears to be of limited financial means.  That is not however a reason to decline to award costs in this case as Mr Griggs and Skybus NZ Ltd have been put to needless expense.[3]  We therefore make an award of costs in favour of both.  We are not persuaded to impose any uplift on the costs.

Result

[3]Chesterfield Preschools Ltd v Commissioner of Inland Revenue [2011] NZCA 640 at [7].

1. The application for leave to appeal under s 214 of the Employment Relations Act 2000 against the decision of the Employment Court granting Christopher John Griggs leave to withdraw as counsel is declined.

2. The applicant is ordered to pay the respondent costs for a standard application on a band A basis together with usual disbursements.  The applicant must also pay a separate award of costs to SkyBus NZ Ltd for a standard application on a band A basis together with usual disbursements.