Rochester v Fujitsu General New Zealand Ltd

[2003] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

CA61/02

BETWEENDARRYL ROCHESTER

First Appellant

ANDPETER MIHU

Second Appellant

ANDCARL WHEELER

Third Appellant

ANDFUJITSU GENERAL NEW ZEALAND LIMITED

Respondent

Hearing:12 March 2003

Coram:Gault P
McGrath J
Anderson J

Appearances:  J Ablett-Kerr QC, C A Reaich and S A Saunderson-Warner for the Appellants

J G Miles QC and C L Elliott for the Respondent

Judgment:12 March 2003 

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1]       As presented in Court today this is an appeal against that part of a judgment of the Employment Court, delivered by Judge Shaw on 21 March 2002, which granted leave to the first respondent to file a fourth amended statement of claim in a proceeding it has brought against three former employees.

[2]       As the Court has outlined the factual background to the Employment Court proceeding, in an oral judgment delivered earlier today following the hearing of another interlocutory appeal brought by the appellants, it is unnecessary to repeat in this judgment an extensive description of the circumstances giving rise to this appeal.  What is said in that judgment of the procedural history of the proceeding is to be taken as incorporated in the present judgment (cf Rochester & Others v Fujitsu General New Zealand Limited and Anor CA 147/02, 12 March 2003).

[3]       On 14 March 2002 the first respondent applied to the Employment Court for leave to file a fourth amended statement of claim.  A notice of opposition was filed on 19 March 2002.  At this time, in accordance with consent orders made by Judge Shaw on 19 December 2001, the trial was scheduled to commence in less than three weeks on 8 April 2002.  There had been a history of adjournment of two previous fixtures made by the Employment Court for the trial and, because of continuing interlocutory applications that needed to be determined before final dates were set for exchanging briefs of evidence, by 19 March 2002 the fixture for 8 April was also under pressure.

[4]       The Employment Court held an urgent hearing on 20 March 2002 to determine the application for leave.  The following day Judge Shaw made an order granting leave to the first respondent to file the fourth amended statement of claim.  As the effect of the order was in part to add the second respondent as an additional plaintiff, the Judge imposed conditions requiring that party to file a verified list of discovered documents by 28 March, and to make its documents available for inspection at the first opportunity.

[5]       The following day Judge Shaw gave written reasons in which she outlined the principles applied in reaching the decision as follows:

These are that such an application will be allowed if it is in the interests of justice and it is desirable that the parties should have an opportunity to ensure that the real controversies between the parties are reflected in the pleadings.  In addition, the Court is obliged to take into account the nature of the amendments sought, the degree of prejudice to the other party, and other matters such as delay and costs.

[6]       The Judge discussed the proposed amendments to the pleading which asserted, for the first time, breaches by the appellants of their employment contracts in relation to copyright and implied obligations to account for and return property of the employer at the conclusion of the period of employment.  The Judge observed the former did not raise new causes of action and the latter did “not add unduly” to the first respondent’s case. The concerns over the absence of discovery by the second respondent were however justified and would be met by the conditions imposed as to prompt discovery and inspection.  It is implicit in these conditions that the Judge believed at the time that allowing amendment of the pleading would not itself cause the abandonment of the fixture.  The amendments would moreover assist both the Court and the parties.  Judge Shaw was satisfied that leave should be given to file the amended statement of claim, so that the case could properly be determined at trial. 

[7]       Mrs Ablett-Kerr for the respondents in her submissions on this appeal took issue with the principles applied by the Judge.  She referred in her written submissions extensively to authorities on Rule 187(2) which is the relevant provision in the High Court Rules.  Mrs Ablett-Kerr submitted that the Judge had failed to have regard to principles stated in these authorities, to the weakness of the first respondents’ position or to its continuing failure to comply with timetabling orders of the Court.  The Judge had also failed to address the inability of the appellants to administer interrogatories to the second respondent.

[8]       We appreciate that in persevering with the present appeal counsel for the appellants hoped to have the support of a favourable judgment on the question of waiver of privilege argued in the appeal in CA147/02 decided earlier today.  That appeal was however unsuccessful.  Nevertheless we feel bound to point out that it should have been apparent shortly after this appeal was brought that the issues the appellants wished to raise concerning the grant of leave to file the fourth amended statement of claim had become largely a matter of history.  The respondents have, since 8 April last, as of right filed fifth and sixth amended statements of claim in the Employment Court.  Moreover, the elapse of time since the decision appealed against has removed any possible contention that the appellants are currently prejudiced by the decision to give leave to amend.  In these circumstances we are disappointed that this avoidable interlocutory appeal was maintained, with consequential delay in resolution of the litigation in the Employment Court, and unnecessary expense to the parties.  They were represented by a total of five counsel in this Court who had to assimilate an unnecessarily lengthy five volume case on appeal.

[9]       We see nothing in the statement of principles applied by the Judge that is in conflict with those which the appellants say were breached.  The appellants’ complaint in reality is not one of principle; it is rather with the way in which the Judge exercised her discretion to grant the application.  It is of course axiomatic that in such an appeal the appellant must show that the Judge below reached a decision that was plainly wrong.  We are far from persuaded that was the case here.  In a situation of considerable urgency, where the Employment Court was properly concerned, if possible, to avoid an adjournment of the imminent fixture by delivering judgment urgently, with reasons shortly to follow, we are satisfied the Judge addressed all relevant matters and reached a considered decision to grant leave to amend that was open to her.

[10]     For these reasons the appeal is dismissed. Having heard counsel on the question, but having regard to the order already made in appeal CA147/02 we order that the appellants pay costs of $2000 to the respondent together with all reasonable disbursements to be agreed by counsel or failing agreement determined by the Registrar.

Solicitors:

Bell Gully, Wellington, for Appellants
Peter Verboeket and Company, Wellington, for Respondents