Solomon v Musa
[2011] NZCA 387
•11 August 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA784/2010 [2011] NZCA 387 |
| BETWEEN CLIVE SOLOMON |
| AND MEMO MUSA |
| Hearing: 19 April 2011 |
| Court: Ellen France, Randerson and Wild JJ |
| Counsel: M J Leggat for Applicant |
| Judgment: 11 August 2011 at 4.30 pm |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
B There is no order as to the costs of the application.
REASONS OF THE COURT
(Given by Wild J)
Mr Solomon applies for leave to appeal against a costs decision given by Chief Judge Colgan in the Employment Court on 28 October last.[1]
[1] Musa v Whanganui District Health Board [2010] NZEMPC 143 (Costs decision).
Section 214(1) of the Employment Relations Act 2000 limits the proposed appeal to a question of law. Section 214(3) further limits an appeal to a question of law which, in this Court’s opinion, “by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.
Mr Solomon faces the further obstacle that a decision as to costs is a discretionary one. Under the Employment Relations Act, that discretion is a wide one. It is to be found in cl 19 of Schedule 3 to the Act:
19 Power to award costs
(1)The Court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as the Court thinks reasonable.
(2)The Court may apportion any such costs and expenses between the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable.
In advancing Mr Solomon’s application, Mr Leggat accepted all of this, and that he must be able to bring the proposed appeal within the well known formula spelt out by this Court in May v May governing appeals against the exercise of a judicial discretion.[2] Mr Leggat sought to do that by advancing the application on the grounds of error of principle and the taking into account of irrelevant considerations.
[2]May v May [1982] 1 NZFLR 165 (CA). This Court has adopted the May v May formula for appeals against costs decisions of the Employment Court in New Zealand Fire Service Commission v McCulloch [1999] 2 ERNZ 426 (CA) at [13], Victoria University of Wellington v Alton-Lee [2001] 1 ERNZ 305 (CA) at [46], and also Health Waikato Ltd v Elmsly (2004) 2 NZELR 58, [2004] 1 ERNZ 172 (CA) at [33].
The costs decision Mr Solomon seeks to appeal was given after Chief Judge Colgan dismissed a proceeding brought by Mr Musa against Mr Solomon claiming monetary penalties. Until his resignation, Mr Musa had been the Chief Executive Officer of the Whanganui District Health Board. Mr Solomon was a surgeon at Whanganui Hospital and a member of the Board. It is unnecessary to go into further detail. Significantly, in his substantive judgment the Chief Judge had commented that the defended hearing he had presided over “revealed a remarkable depth and intensity of antagonism”.[3] He had expressed the hope that the hearing would be “the last episode in a long running saga”.[4]
[3] Musa v Whanganui District Health Board [2010] NZEMPC 2010 (substantive decision) at [2].
[4] Substantive decision at [2].
Mr Leggat’s primary submission was that the Chief Judge’s costs decision completely disregards the “very fundamental principle” that costs should follow the event and be a reasonable contribution to costs actually and reasonably incurred. That is not seriously arguable. Although the Chief Judge described the costs discretion as “very broad”, he recognised that it must be exercised “in a principled and not arbitrary way”.[5] The Chief Judge had earlier amplified that in the following way:
[5] In the normal course of events, Mr Solomon, having been successful, would be entitled to an order for contribution to his reasonable costs of representation. The Court would start by assessing the reasonableness of his actual legal costs and then determine what is a reasonable contribution to those, starting at a notional two-thirds level and adjusting up or down, depending upon the relevant particular factors of the case.
[5] Costs decision at [6].
The Chief Judge departed from that “normal course” for the “unusual reasons”[6] he spelt out in his costs decision.
[6] Costs decision at [19].
The Chief Judge had a discretion to depart from what he recognised was the “normal course” if good reason existed for a departure. We do not consider it seriously arguable that the Chief Judge’s costs decision was an unprincipled one.
We have a similar view of Mr Leggat’s argument that the Chief Judge’s costs decision took account of irrelevant considerations. That argument is partly based on the submission that the Chief Judge had ruled out, as irrelevant, evidence about Mr Musa’s performance. The Chief Judge’s ruling did not go that far. Rather, in his interlocutory ruling of 26 July 2010, the Chief Judge had stated that:
[10] ... The Court must not only have relevant background information to place in context the events alleged to be the breach or breaches, but needs to know about these events and the parties to them to determine the most just outcome of the case.
The Chief Judge did rule that it would be “unnecessary and irrelevant to revisit the merits of the events that led to the settlement of Mr Musa’s personal grievance and his ending his employment relationship with the Board.”[7]
[7] Musa v Whanganui District Health Board [2010] NZEMPC 95 at [11].
Mr Leggat also challenged the evidentiary basis for the Chief Judge’s views about Mr Musa’s attitude. We consider an evidentiary basis for the Chief Judge’s view about Mr Musa’s altruism existed in Mr Musa’s evidence-in-chief[8] and cross-examination.[9] The Chief Judge had evidence of a sharp difference in views toward Mr Musa within the Board itself, and of substantial support for Mr Musa from Board staff.[10] He also had evidence entitling him to form the view that Mr Musa’s financial settlement with the Board was modest, compared with the damages he would have got had he exercised his rights at law.[11] And Mr Dewar was on sound ground in submitting that no-one was better placed than the Chief Judge to make an assessment about that.
[8] Case on Appeal Vol 2 at 162 at [20].
[9] Case on Appeal Vol 2 at 190.
[10] Evidence of Ms Ailsa Stewart, Board member, Case on Appeal Vol 2 249 at [15].
[11] Costs decision at [14].
Lastly, Mr Leggat accepted that the Chief Judge had made a finding that Mr Solomon had, in mid-2006, been advocating Mr Musa’s replacement as Chief Executive Officer with another general manager at the hospital.[12] Certainly that was in 2006, but the “hounding out” of office found by the Chief Judge comprised a continuum of events.
[12] Substantive decision at [5].
To summarise, it is not reasonably arguable that any of the three considerations advanced by Mr Leggat were irrelevant to costs, and we do not accept that any of them lacked an evidentiary basis.
Lastly, but most importantly, our firm view is that the application raises no question of law that, by reason of its general or public importance or for any other reason, warrants determination by this Court. Quite the opposite. What is sought to be impugned is a discretionary costs decision in litigation between two individuals. It is litigation that the Chief Judge hoped would be the last episode in a long and unfortunate saga. He reiterated that hope at the end of his costs decision. Entertaining an appeal would undermine the wisdom of those sentiments.
The application is dismissed.
Consistent with the Chief Judge’s view as to costs, the costs of this application also are to lie where they fall.
Solicitors:
Michael Leggat, Wellington for Applicant
Thomas Dewar Sziranyi Letts, Lower Hutt for Respondent
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