Te Manawa o T�hoe Trust v McDonnell - [2022] NZCA 1

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA754/2021
[2022] NZCA 1

BETWEEN	TE MANAWA O TŪHOE TRUST Applicant
AND	TANIA MCDONNELL Respondent

Counsel:	S A McKenna for Applicant T P Oldfield for Respondent
Judgment: (On the papers)	31 January 2022 at 10.30 am

JUDGMENT OF BROWN J

AThe application for urgency in respect of the hearing of the application for leave to appeal dated 23 December 2021 is granted.
BThe application dated 23 December 2021 for a stay of the Employment Court’s order for interim reinstatement dated 2 December 2021 is declined.
CLeave is reserved to file a fresh application for stay of the order for interim reinstatement if the application for leave to appeal is granted. In that event full argument can be advanced on the issue of jurisdiction raised in the memorandum of counsel for the respondent dated 19 January 2022.
DThe respondent is entitled to costs for a standard interlocutory application on a band A basis with usual disbursements.

____________________________________________________________________

REASONS

On 20 January 2022 in my capacity as Duty Judge I declined the applicant’s application for a stay of an order of the Employment Court for the interim reinstatement of the respondent with reasons to follow. These are my reasons.

Relevant background

On 4 March 2019 the respondent commenced work with the applicant (the Trust) as its board administrator. Her employment continued until 14 May 2021 when she was dismissed on the grounds of redundancy. She lodged a claim in the Employment Relations Authority alleging that the Trust’s decision to dismiss her was unjustified. Her application to the Authority under s 127 of the Employment Relations Act 2000 (the Act) was unsuccessful.[1] However her challenge to the Authority’s determination was successful in the Employment Court which granted her application for interim reinstatement.[2]
[1]McDonnell v Board of Trustees of Te Manawa o Tūhoe Trust [2021] NZERA Auckland 388.
[2]McDonnell v Board of Trustees of Te Manawa o Tūhoe Trust [2021] NZEmpC 214 [Employment Court decision].
On 23 December 2021 the Trust filed an application in this Court under s 214 of the Act for leave to appeal against the Employment Court’s decision. At the same time it filed an application pursuant to r 12(3) of the Court of Appeal (Civil) Rules 2005 for a stay of the Employment Court’s order for interim reinstatement. It also sought urgency for the hearing of its application for leave to appeal.

Stay applications: relevant principles

In determining whether or not to grant a stay under r 12(3), the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.[3] Factors to be taken into account in this balancing exercise include:[4]
(a)       Whether the appeal may be rendered nugatory by the lack of a stay;
(b)       The bona fides of the applicant as to the prosecution of the appeal;
(c)       Whether the…

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.

Keep reading for free

Create a free CaseChat account to read Te Manawa o T�hoe Trust v McDonnell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZCA 1
Decision Date: 31 January 2022 at 10.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application by Te Manawa o Tūhoe Trust (the Trust) to appeal against a decision of the Employment Court to grant interim reinstatement to Tania McDonnell (the Respondent) as the Trust's board administrator. The Trust had previously dismissed McDonnell on the grounds of redundancy, a decision which she challenged as unjustified. McDonnell's claim was dismissed by the Employment Relations Authority but was successful on appeal to the Employment Court. The Trust filed an application for leave to appeal and a stay of the interim reinstatement order in the Court of Appeal, and also sought urgency for the hearing of the application for leave to appeal. The Court of Appeal was required to decide whether to grant the application for urgency and the stay, and to determine whether the Trust's intended appeal met the threshold criteria for leave to appeal.

The Court of Appeal considered the relevant principles for determining whether to grant a stay, including the balance of convenience between the parties and the effect on third parties. The Court found that the appeal would not be rendered nugatory by the lack of a stay, and that the Trust had bona fides in prosecuting the appeal. However, the Court found that McDonnell would be injuriously affected if the stay were granted, as it would be difficult for her to resume her role if it had been disestablished and the tasks contracted out to a third party. The Court also found that the Trust's conduct following the Employment Court's decision weighed against the grant of a stay, as the Trust had not taken steps to comply with the reinstatement order and had engaged in negotiations with McDonnell that were ultimately unsuccessful. The Court found that the balance of convenience fell significantly in favour of McDonnell, and declined to grant the stay. However, the Court reserved leave to file a fresh application for stay if the application for leave to appeal was granted, in which case full argument could be advanced on the issue of jurisdiction.

The Court of Appeal granted the application for urgency in respect of the hearing of the application for leave to appeal, and declined the application for a stay of the Employment Court's order for interim reinstatement. Leave was reserved to file a fresh application for stay if the application for leave to appeal was granted. The respondent was entitled to costs for a standard interlocutory application on a band A basis with usual disbursements.

Orders