Matsuoka v Pollak - [2018] NZHC 3292

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001935

[2018] NZHC 3292

BETWEEN
JOHN TAKASHI MATSUOKA

Applicant

AND

GARRY MICHAEL POLLAK

Defendant

Hearing: 5 December 2018

Appearances:

Michael O’Brien for the Applicant

Christine Meechan QC for the Defendant

Judgment:

13 December 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 13 December 2018 at pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

MATSUOKA v POLLAK [2018] NZHC 3292 [13 December 2018]

Introduction

[1] Although formally separate and discrete, these proceedings form part of a much larger and varied series of disparate proceedings all arising out of and connected one way or another with Mr Matsuoka’s dismissal from his employment with LSG Sky Chefs New Zealand Ltd (“LSG”) in 2011.

[2] Since 2011 the defendant, Mr Pollak, has acted for parties which have found themselves embroiled in actions brought by Mr Matsuoka. His role in those proceedings has given rise to the present proceedings, which are brought in contempt by way of originating application. Mr Matsuoka claims that Mr Pollak was in contempt of Court when he destroyed a memory stick allegedly in contravention of an order of the Employment Court.

[3] Mr Pollak says that the proceedings are frivolous and vexatious. He also claims that they are brought for an improper collateral purpose and amount to an abuse of the process of the Court. For these reasons he applies to strike the proceedings out.

Background

[4] For a period of five months in 2011 Mr Matsuoka was employed by LSG as a ground steward. LSG is an airline catering business which employs large numbers of staff throughout New Zealand. It uses an external payroll service. Initially the payroll service used by LSG was provided by PSG Payroll Ltd (“PSG”), but more recently it has been provided by a company known as Zambion Ltd (“Zambion”). A Mr Pumphrey was a principal of both.

[5] After LSG dismissed Mr Matsuoka he challenged his dismissal. He sought remedies and penalties of approximately $1,000,000.

[6] Mr Pollak acted as LSG’s solicitor until October 2017. He has acted for PSG and Zambion since late 2016.

[7] In the course of the employment proceedings, among the many interlocutory applications brought, Mr Matsuoka made numerous applications for further and better

discovery for the purpose of attempting to obtain documents from LSG’s computer system. He also brought a non-party discovery application against PSG in 2014.

[8] Prior to a hearing for various of these interlocutory applications in March 2017, Mr Matsuoka made an application for preservation orders in respect of payroll information on the PSG/Zambion system. Mr Pollak acted for PSG and Zambion on the application. On 20 December 2016, Judge Perkins of the Employment Court made an interim (preservation) order which relevantly included the following:1
“… there will be an order pursuant to r 7.55 of the High Court Rules that PSG and Zambion are to retain all payroll…

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 Matsuoka v Pollak

Details

AGLC: Matsuoka v Pollak [2018] NZHC 3292
Case: [2018] NZHC 3292
Decision Date: 13 December 2018

CaseChat Overview and Summary

In the case of Matsuoka v Pollak, the applicant, Mr Matsuoka, sought to hold Mr Pollak in contempt for allegedly destroying a memory stick in contravention of an order made by the Employment Court. Mr Pollak sought to have the proceedings struck out as frivolous and vexatious and as an abuse of process. The Court found that the proceedings were frivolous in that they lacked the seriousness required of matters for the Court’s determination. The preservation order had expired with the settlement of the employment proceedings and there was no evidence that Mr Matsuoka had suffered any prejudice or loss as a result of the destruction of the memory stick. The Court also found that the proceedings were an abuse of process. They were part of a pattern of vexatious conduct on the part of Mr Matsuoka, who had brought numerous proceedings against Mr Pollak and others arising out of his dismissal from employment. The Court accepted that the “without prejudice” letter written by Mr Matsuoka’s counsel was relevant to the issue of whether the proceedings had been brought for an improper or collateral purpose. The letter was found to be disingenuous in its purpose and unreasonable in its terms. The Court granted Mr Pollak’s application to strike out the proceedings. It invited counsel to confer with a view to reaching agreement on the issue of costs, or in the alternative to file memoranda not later than 5:00 pm on Friday, 8 February 2019.

Orders