MARIKA PRETORIUS AND BOARD OF TRUSTEES OF TAUPO INTERMEDIATE SCHOOL
[2024] NZCA 689
•19 December 2024 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA733/2023 |
| BETWEEN | MARIKA PRETORIUS |
| AND | BOARD OF TRUSTEES OF TAUPO INTERMEDIATE SCHOOL |
| Court: | Thomas and Hinton JJ |
Counsel: | E Lambert for Applicant |
Judgment: | 19 December 2024 at 3 pm |
JUDGMENT OF THE COURT
A The application for an extension of time is granted.
B The application to adduce further evidence is declined.
C The application for leave to appeal is declined.
D The application to be represented by a lay advocate is declined.
EThe applicant must pay the respondent costs for three standard applications on a band A basis together with disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Hinton J)
The applicant, Marika Pretorius, seeks leave pursuant to s 214 of the Employment Relations Act 2000 to appeal an interlocutory judgment of the Employment Court dated 3 November 2023.[1] The judgment ordered security for costs in the sum of $5,000, declined a stay of execution of the $2,250 costs order made by the Employment Relations Authority and ordered that the respondent was entitled to costs.[2] The application for leave to appeal is opposed.
[1]Pretorius v Board of Trustees of Taupo Intermediate School [2023] NZEmpC 189 [Employment Court judgment].
[2]At [32], [56] and [57]. A subsequent judgment fixed costs at $9,000, see Pretorius v Board of Trustees of Taupo Intermediate School [2024] NZEmpC 14.
The leave application was filed within the relevant time period but not served by the applicant, as required, within that same period.[3] The applicant mistakenly believed service was the Court’s responsibility and as a consequence service took place three days out of time. The respondent does not oppose an extension of time and given the technical nature of the delay we grant the extension sought.
[3]Employment Relations Act 2000, s 214(2); and Court of Appeal (Civil) Rules 2005, r 16.
The applicant seeks leave to adduce further evidence, which is opposed.
By minute dated 11 April 2024 Mallon J allowed the applicant to be represented by a lay advocate for purposes of this leave application. The applicant seeks leave to be represented by a lay advocate, if leave to appeal is granted. That application is also opposed.
Background[4]
[4]We note that we draw most of this general background from Pretorius v Board of Trustees of Taupo Intermediate School [2022] NZERA 664 [Employment Relations Authority determination].
The applicant and her husband came to New Zealand on work visas with their family. She was working as a science teacher at Taupo Intermediate School from 2020. In October 2021, the school’s principal commenced consultation with staff regarding the vaccine mandate stipulated by the COVID-19 Public Health Response (Vaccinations) Order 2021 (the 2021 Vaccinations Order). The applicant and principal communicated several times prior to 6 December 2021 when, as the applicant had not acquired a vaccine exemption, the principal informed her that the respondent would be terminating her employment. Termination ultimately took place on 31 January 2022. The applicant and her family returned to South Africa.
Employment Relations Authority determination
On 18 May 2022, approximately 107 days after termination, the applicant lodged a statement of problem in the Employment Relations Authority. She alleged she had been unjustifiably dismissed. Her statement of problem was served on the respondent by the Authority on 27 May 2022, which was the first time the respondent or principal had been made aware the applicant was advancing a personal grievance claim.[5] She was represented by union advocates before the Authority.
[5]At [23].
The central issue before the Authority was whether the applicant had raised a personal grievance within 90 days of dismissal, and if not whether she had sought leave to do so as required by s 114(3) of the Employment Relations Act.
The Authority made its determination on the papers. It noted that personal grievances for unjustified dismissal must be raised after the dismissal has occurred.[6] Although her statement of problem only referred to personal grievance for unjustified dismissal, in reply submissions the applicant raised an unjustified disadvantage grievance, which the Authority said the facts did not support.[7] The Authority found that none of the communications by the applicant (either individually or collectively) raised an unjustified dismissal, or any other personal grievance claim, and even if they had, it would not have been sufficient: the claims would have been anticipatory because the communications preceded the dismissal.[8]
[6]At [35]–[36], citing Employment Relations Act, s 103(1)(a) and Creedy v Commissioner of Police [2006] ERNZ 517 at [28]–[30].
[7]Employment Relations Authority determination, above n 4, at [45].
[8]At [55]–[64].
The Authority noted it only had jurisdiction to deal with the manner in which an employer implemented and/or complied with the 2021 Vaccinations Order, not the lawfulness of the Order, the vaccination mandate, or the vaccine’s safety.[9]
[9]At [60]–[63].
The Authority ordered that the respondent, as the successful party, was entitled to a contribution to its legal costs in the sum of $2,250, payable within 28 days of the determination.[10]
Employment Court judgment
[10]At [76]–[79].
The applicant challenged the Authority’s determination on a de novo basis.[11] The ruling at issue determined an application by the respondent for security for costs and an application by Ms Pretorius for a stay of the costs ordered by the Authority.
[11]Employment Court judgment, above n 1, at [4].
There being no particular provisions relating to security for costs in the Employment Court, the respondent’s application turned on r 5.45(1) of the High Court Rules 2016, which gives the Court a discretion to order security where a plaintiff is resident outside New Zealand or there is reason to believe the plaintiff would be unable to pay costs if unsuccessful.[12] Ms Pretorius acknowledged she was both resident outside New Zealand and was impecunious.[13]
[12]At [11]–[12]; and Employment Court Regulations 2000, reg 6(2)(a)(ii).
[13]At [14].
The Employment Court Judge, Judge Beck, noted that the statutory threshold had been met, and that in exercising her discretion she must consider all of the circumstances, balance the interests of both parties, and make an order that is just.[14]
[14]At [13]–[14], citing McLachlan v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [15]–[16].
The Judge considered the merits of the applicant’s substantive case at some length.[15] The 2021 Vaccinations Order applied to the applicant as an “affected person”. The central issue for the challenge as before the Authority was whether the applicant had raised a grievance within 90 days.[16] The Judge found that while the majority of the Ms Pretorius’s correspondence with the principal dealt with concerns about the 2021 Vaccinations Order and its implications for her, which was outside the Court’s jurisdiction, it also raised issues about how the school was dealing with her and the actions the respondent was taking.[17] The Judge concluded that given the Ms Pretorius was pursuing a de novo challenge to the Authority’s determination, her claim could not be said to lack merit at that stage. The evidence would be heard afresh and in person.[18] The Judge said it was not possible to predict with any certainty what the outcome would be.[19] The merit of Ms Pretorius’s case was therefore a neutral factor in the balancing exercise.[20]
[15]Employment Court judgment, above n 1, at [15]–[26].
[16]At [17]–[18]; and COVID-19 Public Health Response (Vaccinations) Order 2021, cl 4 and sch 2; from 25 October 2021 until 4 April 2022.
[17]Employment Court judgment, above n 1, at [24].
[18]At [25]. As aforementioned, the matter was heard on the papers before the Authority.
[19]At [25].
[20]At [26].
The applicant argued that if she succeeded in having her grievance heard (that is if it was not time-barred) the case involved novel or important questions. The Judge said that point was premature, but in any case there was “nothing to indicate that [the] substantive issues [would] be significant or novel on any level” and that issues arising when determining whether a grievance was raised within 90 days are well known.[21] The Judge also found that the case was unlikely to give rise to issues of public interest, this factor counted in favour of security being granted.[22]
[21]At [27]–[28].
[22]At [28].
The applicant attributed her impecuniosity to the actions of the respondent, saying she was forced to return home to South Africa due to the terms of her work visa. The Judge considered it was not possible to determine that matter but noted that the applicant’s grievance was for unjustified disadvantage, not for unjustified dismissal and “it was clear that the [2021 Vaccinations Order] was being revoked after she booked tickets but before she left New Zealand”.[23] The Judge said it was not clear that the actions of the respondent were the cause of the applicant’s difficult personal circumstances and that this was not a factor that counted against security being granted.[24]
[23]At [29].
[24]At [29].
The Judge agreed with the respondent that this was a proceeding where, in the circumstances, it was just that the respondent bore some of the costs risk, but that some risk should be shared. This factor counted in favour of security being awarded.[25]
[25]At [30].
In the overall balancing exercise, the Judge considered it was in the interests of justice for a modest amount of security for costs to be awarded. In light of the risk of the order preventing the challenge from being heard, she considered the sum of $5,000 was reasonable whereas “an order of $10,000 would be prohibitive”.[26]
[26]At [31].
After considering at some length the application for a stay of enforcement of the $2,250 costs ordered by the Authority, the Judge declined it.[27] She noted that the Court had a wide discretion, the starting point being that the successful party is entitled to the benefit of the judgment they have obtained.[28] The challenging party needs to establish the basis for a stay.[29] Additional factors relevant to the assessment process included the likely merits, impact on non-parties, the importance of the matters at issue and whether the challenge was brought in good faith.[30] The overarching consideration is the overall interests of justice.[31]
[27]At [45]–[56].
[28]At [40] and [42].
[29]At [42].
[30]At [43].
[31]At [44].
The Judge said that notwithstanding her findings in relation to the merits it was always a possibility that a challenge would succeed, but that does not of itself warrant a stay.[32] There was no suggestion the respondent would be unable to repay in the event Ms Pretorius was successful in her challenge and the costs finding reversed.[33] After noting that the applicant had sought numerous extensions of time and filed documents that included significant irrelevant material, the Judge concluded that there was nonetheless no issue of bad faith in bringing the challenge.[34]
[32]At [46].
[33]At [47].
[34]At [49]–[52].
The Judge repeated that while the substantive challenge was important to the parties it did not raise any novel or important point of law, nor were there any public interest considerations in either the application before her or the challenge.[35] There was also no evidence of any third parties being impacted by the decision.[36]
[35]At [53].
[36]At [54].
Concluding, on the balance of convenience, that the applicant had not made out an adequate basis for exercise of the Court’s discretion in her favour, the Judge declined a stay of execution of the Authority’s costs award.[37]
Application for leave to adduce further evidence
[37]At [55]–[56].
The applicant seeks to adduce a WhatsApp message — her own voice message, relating to her very difficult personal circumstances in South Africa — and her New Zealand work visa (the latter emailed with her written submissions) as new evidence. In assessing whether leave should be granted to adduce further evidence the Court will consider credibility, freshness and cogency.[38] Although the visa evidence appears credible, it is plainly not fresh. Additionally, the Judge was aware the applicant’s position is that she had to return to South Africa “due to the terms of her work visa”.[39] We have some concerns about the credibility of the voice message, given that it appears to be an informal communication between the applicant and an advocate. Additionally, we do not consider the evidence is sufficiently fresh nor cogent. The Judge was aware that the applicant currently faces difficult personal circumstances, as are we.
[38]Court of Appeal (Civil) Rules, r 45; and Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59; [2007] 2 NZLR 1 at [6], n 1, citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192.
[39]Employment Court judgment, above n 1, at [29].
This application is declined.
Application for leave to appeal
The applicant faces considerable hurdles on her application for leave to appeal.
Section 214 of the Employment Relations Act relevantly provides:
(1)A party to a proceeding under this Act who is dissatisfied with a decision of the court … as being wrong in law may, with the leave of the Court of Appeal, appeal to the Court of Appeal against the decision ...
…
(3)The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
The section makes plain that the applicant must establish both that the decision raises a question of law and that the appeal is one of general or public importance or one which for some other reason ought to be submitted to this Court for decision. In a previous decision declining leave to appeal under s 214, this Court held that an order for security for costs was not of general or public importance.[40] Similarly, no such issue has been raised here.
[40]Snowden v Radio New Zealand [2013] NZCA 108 at [10].
Many of the submissions made on behalf of the applicant relate to findings of the Authority, not the interlocutory judgment of the Employment Court, that being the judgment from which leave to appeal is sought.
The applicant says the case concerns a novel or developing area of the law, relying particularly on the effect of cl 8 of sch 1 of the 2021 Vaccinations Order. She submits that on its correct interpretation, cl 8 meant that her employment actually ended on 1 March 2022, not 31 January, and that she was therefore in time to file her personal grievance.[41] The Judge made no reference to this point, nor did it feature in the application for leave to appeal, although we understand it was argued. However, this alleged error does not undermine the Judge’s finding that the substantive merits were unclear;[42] in fact the Judge’s analysis appeared to proceed as if the claim were in time. Whether the applicant was within time to bring her substantive case, and the questions raised in the substantive case itself are, as the Judge said, not issues of general or public importance,[43] nor do they otherwise merit leave being granted.
[41]We note that these specific provisions were not mentioned in her notice of appeal, however we include them for completeness.
[42]See for example Employment Court judgment, above n 1, at [25].
[43]At [27] and [53].
The applicant also submits that the Judge erred in finding it not possible to determine whether her impecuniosity was caused by the respondent. Her notice of leave to appeal states that “case authority requires only that the alleged actions of the [respondent] … were caused by the [respondent]”. The proposition is unclear, nor is any authority cited, and we reject it. The Judge’s conclusion on this issue was a matter of fact which it is not possible for the applicant to appeal.
The applicant says further that the Employment Court erred in determining that an order for $5,000 security would not be prohibitive and nugatory in respect of the proceeding. The Judge did not expressly make that finding, but in any event that is an overall evaluation and again a matter of fact. Ultimately the Judge decided, having weighed all factors, that it was in the interests of justice that a modest order for security should be made.[44] Precisely what might happen following such an order can never be predicted with certainty. The applicant was, for example, able to find the funds to meet the costs for her family to return to South Africa. And she suggests that if she did not have to pay security and could proceed with the appeal, her family might be in a position to return here.
[44]At [32].
For completeness, we note the decision of McLachlan v MEL Network Ltd, referred to by the Judge as standing for the proposition that where an order for substantial security may effectively prevent a plaintiff from pursuing their claim, security should only be ordered where the plaintiff’s claim has little chance of success.[45] That case referred specifically to an order for substantial security and is not applicable here.
[45]At [13]; and McLachlan v MEL Network Ltd, above n 14, at [15].
The applicant says that the Judge erred in refusing a stay of execution because she wrongly found that s 180 of the Employment Relations Act makes clear that a challenge does not operate as a stay. That section states that “[T]he making of an election under section 179 does not operate as a stay of proceedings on the determination of the Authority unless the court, or the Authority, so orders.” The wording of the section is clear. The Judge did not err on this point.
The decision in respect of both the stay and the order for security for costs was discretionary. There is no error apparent on the part of the Judge in the exercise of her discretion. She applied the correct legal principles to the facts before her. She took into account relevant factors and did not take into account irrelevant factors. The Judge fairly balanced the parties’ interests and the amount ordered as security for costs was reasonable.
We see no merit in this application and clearly there is no question of law of general, public or other importance that would justify an appeal to this Court.
Application for representation by lay advocate
As leave to appeal has been refused, the application for representation by a lay advocate for purposes of the appeal falls away and is declined.
Costs
The respondent seeks costs on the applications for leave to adduce further evidence, leave to appeal and leave for lay representation. The respondent also seeks an uplift of 50 per cent on standard costs on the basis that the application for leave was meritless. No costs are sought in respect of the application to extend time, nor would that have been appropriate.
In this Court the applicant was granted a fee waiver. She clearly is struggling financially. While we accept that the application for leave to appeal and to adduce evidence were devoid of merit, in all the circumstances we decline to order an uplift and we award standard costs in favour of the respondent on the three applications on which the applicant was unsuccessful.
Result
The application for an extension of time is granted.
The application to adduce further evidence is declined.
The application for leave to appeal is declined.
The application to be represented by a lay advocate is declined.
The applicant must pay the respondent costs for three standard applications on a band A basis together with disbursements.
Solicitors:
McElroys, Auckland for Respondent
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