Snowdon v Radio New Zealand Limited

[2006] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/06

BETWEENLYNNE FRANCES SNOWDON

Applicant

ANDRADIO NEW ZEALAND LIMITED

Respondent

Hearing:19 June 2006

Court:O'Regan, Robertson and Ellen France JJ

Counsel:R A Moodie for Applicant

M F Quigg and J Bates for Respondent

Judgment:23 June 2006 

JUDGMENT OF THE COURT

AAN EXTENSION OF TIME FOR FILING THE APPEAL IS GRANTED BUT THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED.

BCosts to the respondent of $1,500 along with usual disbursements.

____________________________________________________________________

REASONS

(Given by Ellen France J)

Introduction

[1]       The applicant, Ms Lynne Snowdon, has brought personal grievance proceedings against the respondent, Radio New Zealand Limited, in the Employment Court.  Those proceedings have been on foot for some time.  In a decision delivered on 16 December 2005, Judge Shaw in the Employment Court dealt with various issues relating to discovery in the personal grievance proceedings.  The applicant seeks leave to appeal under s 214 of the Employment Relations Act 2000 from that decision.  The application is opposed by Radio New Zealand.

Factual background

[2]       The background to the personal grievance proceedings are set out in the decision of this Court in Snowdon v Radio New Zealand Limited [2005] 1 ERNZ 43.  For present purposes, the relevant facts are that, on 7 September 2004, the applicant served the respondent with a notice under reg 42 of the Employment Court Regulations 2000 requiring disclosure.  Attached to the notice was a schedule containing a list of 101 documents or classes of documents for which disclosure was sought.

[3]       The respondent filed a notice of objection to disclosure of all of the documents.  The ground for objection was, in essence, that disclosure may not be required under the Regulations because it was not clear that all of the documents were relevant.

[4]       The applicant challenged the notice of objection on the grounds that it did not specify the documents or class of documents to which objection was taken and also because the grounds of objection were not those provided for in reg 44(3) of the Employment Court Regulations 2000.

[5]       Matters on the disclosure front were deferred by a substantive hearing on the applicant’s application for an interim injunction and then by the applicant’s unsuccessful application for leave to appeal to this Court (the decision referred to above). 

[6]       Various meetings and discussions between the parties followed, along with other Court attendances.  A list of documents was provided by the respondent.  It followed the form provided in the Regulations and acknowledged the classes of documents or specific documents in Radio New Zealand’s possession and control.  There was disclosure of materials.  Ultimately, however, matters were not resolved and the challenge to the notice of objection to disclosure was set down for a hearing. 

The Employment Court decision

[7]       The Employment Court dealt, broadly, with two issues.  The first was the validity of the respondent’s notice of objection.  The second was whether or not various categories of documents had to be disclosed.

[8]       On the first aspect, the Court noted that the applicant’s objection was that the respondent had made no voluntary self-initiated disclosure as required by the Employment Court Regulations 2000.  The applicant objected to any procedure requiring the applicant to prove relevance. 

[9]       In this context, Judge Shaw found that the applicant’s notice of disclosure was not “strictly” in accordance with the Regulations.  That was because of the attached list which sought a “vast amount of documentation with wide parameters”. 

[10]     Judge Shaw concluded that in this situation, the notice of objection was appropriate:

Given the breadth and extent of the documentation sought, the [respondent] was entitled to object to the relevance of the documents listed whether by description or by class before it could move to identify areas of privilege or the like.

[11]     The Judge accordingly dismissed the applicant’s claim that the notice of objection was invalid.  The Judge took the view that neither of these departures from form invalidated either the notice of disclosure or the objection. 

[12]     The Judge then dealt with the various categories of documents for which disclosure was sought.  The respondent agreed some of the categories were of relevant documents and orders were made for their disclosure.  On the other categories, the Judge made various rulings as to relevance and ordered disclosure of some, but not all, of the material sought by the applicant.

The argument for Ms Snowdon

[13]     The principal argument made by the applicant is that the failure of the respondent to follow the process provided for in the Regulations has implications for other cases and raises an important question of law about how the Regulations are to be interpreted.

[14]     In addition, the applicant contends the Judge was wrong to assess relevance by reference to the pleadings and in this way ignoring affidavit evidence of the factual position provided by the applicant. 

[15]     The applicant says that the end result is that there has been inadequate discovery and that inadequacy will mean the applicant cannot get a fair hearing. 

The argument for Radio New Zealand

[16]     Mr Quigg for Radio New Zealand accepts that the issue of compliance with the Regulations may be a question of law of some interest in other cases but not in this case.  That is because matters have moved on, with discovery having been given and the matter having been dealt with by the Judge.  

Discussion

[17]     Regulation 42(3) provides that, within 14 days of service of a notice requiring disclosure, the opposing party must assemble and list all the relevant documents.  In terms of reg 44(1), the opposing party may file a notice of objection.  The only grounds of objection are legal professional privilege, self-incrimination, or that disclosure would be injurious to the public interest.

[18]     Assuming, without deciding the matter, that there was non-compliance with the Regulations, it is possible that compliance with the Regulations raises an issue of law of more general or public importance as is required by s 214(3) of the Employment Relations Act.  However, we accept the submissions for the respondent that in this case the issue does not raise any question of more general or public importance.  Nor is it of any importance in this case.  That is because the applicant has had disclosure of the documentation which the Judge says is relevant. 

[19]     In terms of the approach taken to the particular categories of documents by the Judge, that involves the application of well-settled principles to the facts.  No more general issue is raised.  Further, as this Court said in the earlier Snowdon decision, there is a reluctance to intervene in procedural issues in the Employment Court. 

[20]     We are not satisfied the issues raised by the applicant have any broader relevance or any particular importance in this case.

Application out of time

[21]     The application is out of time.  The respondent objected to the late filing and says Radio New Zealand is prejudiced by the lateness because it has continued to make disclosure in accordance with the Judge’s decision.  It appears, however, that the lateness is due to the fact the decision from which leave to appeal is sought was delivered close to the Christmas break.  The delay is not significant.  It is explicable, even if not entirely excusable.  On balance this factor should not deprive Ms Snowdon of a consideration of her application and an extension of time is accordingly granted.

Result and costs

[22]     For these reasons, we grant an extension of time for filing the application but the application for leave to appeal is dismissed.  We award costs of $1,500 to the respondent, along with usual disbursements.

Solicitors:
Moodie & Co, Feilding for Applicant
Quigg Partners, Wellington for Respondent