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Employment Court of New Zealand |
Last Updated: 28 October 2022
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IN THE EMPLOYMENT COURT OF NEW ZEALAND AUCKLAND
I TE KŌTI TAKE MAHI O AOTEAROA TĀMAKI MAKAURAU
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[2022] NZEmpC 190
EMPC 49/2019 |
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IN THE MATTER OF
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proceedings removed in full from the Employment Relations Authority
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AND IN THE MATTER
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of a review of stay order
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AND IN THE MATTER
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of an application to set aside notice of appearance for protest as to
jurisdiction
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BETWEEN
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TE WHATU ORA – HEALTH NEW ZEALAND
Plaintiff
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AND
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CULTURESAFE NZ LTD (IN LIQUIDATION)
First Defendant
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AND
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ALLAN HALSE
Second Defendant
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AND
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ANA SHAW
Third Defendant
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Hearing:
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On the papers
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Appearances:
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M Beech, counsel for plaintiff No appearance for first defendant
A Halse, second defendant in person
C Sawyer, advocate for third defendant
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Judgment:
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25 October 2022
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INTERLOCUTORY JUDGMENT (NO 5) OF JUDGE B A CORKILL
(Review of stay order, and application to set aside notice of appearance for protest as to jurisdiction)
TE WHATU ORA – HEALTH NEW ZEALAND v CULTURESAFE NZ LTD (IN LIQUIDATION) [2022]
NZEmpC 190 [25 October 2022]
Introduction
[1] This judgment reviews an order of stay and resolves a protest as to jurisdiction.
Review of stay judgment
[2] On 24 May 2022, I ordered a stay of this proceeding, pending resolution of an application brought by Mr Halse for an extension of time to apply for leave to appeal this Court’s judgment of 22 September 2020.
[3] That order was granted until the interlocutory application for leave to appeal to the Court of Appeal had been resolved. I said I would then review the position further at that time.
[4] I am advised that, on 22 June 2022, the Court of Appeal issued a decision declining the application for an extension of time to apply for leave.1
[5] In those circumstances, I now discharge the order of stay made on 24 May 2022.
[6] I reserve costs.
Protest as to jurisdiction
[7] On 14 June 2022, an amended statement of claim was filed and served by Te Whata Ora – Health New Zealand (Health NZ).
[8] On 27 June 2022, Mr Halse filed an appearance under protest as to jurisdiction. On 11 July 2022, Health NZ filed an interlocutory application to set aside the protest as to jurisdiction. Notice of opposition to that step was filed by Mr Halse on 19 July 2022.
[9] I directed that submissions should be filed and that I would then resolve the application on the papers.
1 H v Bay of Plenty District Health Board [2022] NZCA 260.
Overview of the parties’ positions
[10] Mr Beech, counsel for the plaintiff, submitted that the proceeding has a long history, initially in the Employment Relations Authority and then by way of the various steps taken in this Court, as well as in the Senior Courts.
[11] He submitted that in this removed proceeding the plaintiff seeks declarations that the defendants obstructed, delayed, or prejudiced the proceedings of the Authority, were in contempt of the Authority, and breached the sub judice rule by failing to comply with multiple directions and a compliance order.
[12] Mr Beech said that multiple steps occurred thereafter, which led to the Court issuing a judgment on 22 September 2020 regarding a preliminary issue as to the scope of the Authority’s jurisdiction.2 Subsequent interlocutory orders were made by the Court whilst judicial review proceedings were considered by the Court of Appeal.3 The judicial review proceedings were struck out by that Court on 4 October 2021.4 On 21 December 2021, the Supreme Court dismissed an application for leave to appeal the Court of Appeal’s decision.5
[13] As already noted, an application for leave for extension of time to appeal this Court’s judgment of 22 September 2020 was brought and dismissed by the Court of Appeal.6
[14] Subsequently, the plaintiff’s amended statement of claim was filed and the protest as to jurisdiction was raised.
[15] Mr Beech’s central point is that the Court plainly had the jurisdiction to hear the removed proceeding.
4 H v Employment Relations Authority [2021] NZCA 507, [2021] ERNZ 858.
5 H (SC 135/2021) v Employment Relations Authority [2021] NZSC 188.
6 H v Bay of Plenty District Health Board, above n 1.
[16] In the notice of opposition to the application to set aside the protest, Mr Halse submitted first that s 187(1)(e) of the Employment Relations Act 2000 (the Act), which was relied on by Mr Beech to provide jurisdiction as regards the removed matter, did not establish jurisdiction, as the subsection concerns “matters” removed from the Authority. The plaintiff had previously admitted that there was no such “matter”.
[17] Mr Halse said he had not submitted to the jurisdiction of the Court. He had protested jurisdiction throughout, pointing out formally that these proceedings should never have been issued.
[18] The attempt to have the Court extend its and the Authority’s jurisdiction was contemptuous of the authority of Parliament.
[19] These points were developed in submissions filed by Mr Halse, in which he emphasised that no plausible reading of ss 178 or 187 of the Act gave any power to the Authority to issue the various directions that were made. An attempt to “enforce” them was an abuse of process. The removal of the matter to the Court did not magic a power into existence: a power to remove a “matter” from a statutory tribunal to a statutory court did not mean that an abuse of process became a valid “matter”.
Legal provisions
[20] An appearance under protest as to jurisdiction is considered under r 5.49 of the High Court Rules 2016, via reg 6 of the Employment Court Regulations 2000.
[21] Rule 5.49(6) materially states that:
...
(6) The court hearing an application under subclause (3) or (5) must,—
- (a) if it is satisfied that it has no jurisdiction to hear and determine the proceeding, dismiss the proceeding; and
- (b) if it does not dismiss the proceeding under paragraph (a), set aside the appearance.
...
[22] The scope of this procedure was analysed by the Supreme Court in
Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd.7
[23] The Court discussed the scope of what can be addressed as an objection to “jurisdiction” under r 5.49 of the High Court Rules, citing L J Diplock’s classic expression of the meaning of that term set out in Garthwaite v Garthwaite:8
In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limits which are imposed upon its power to hear and determine issues between persons seeking to avail themselves of its process by reference
(1) to the subject matter of the issue or (2) to the persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors.
[24] The court also considered that material to the meaning of the term used in r 5.49 were the following remarks of Lord Scott in Tehrani v Secretary of State for the Home Department, who emphasised that in its strict sense the “jurisdiction” of a court refers to the matter that the court is competent to deal with.9 Lord Scott stated that courts created by statute are competent to deal with matters that the statute creating them empowered them to deal with.10
[25] The inception of this case was an order of removal of proceedings which had been filed by the plaintiff in the Authority for penalty, contempt, and takedown orders.
The order of removal was made in a determination of 25 February 2019.11
[26] A statement of claim, dated 1 April 2019, was then filed by the plaintiff in this Court on 2 April 2019. A statement of defence was filed on behalf of the defendants on 19 September 2019, without a protest to jurisdiction being raised, albeit the document denied the various allegations made, and submitted there was no cause of action, that the plaintiff’s actions were vexatious and/or should be struck out.
8 Garthwaite v Garthwaite [1964] P 356 (CA) at 387.
9 Tehrani v Secretary of State for the Home Department [2006] UKHL 47, [2007] 1 AC 521.
10 At [66].
[27] Various procedural steps were taken thereafter. The main step was the resolution of an agreed preliminary question as to the scope of the Authority’s jurisdiction.12
[28] Earlier this year, an amended statement of claim was filed which amended the original statement of claim by removing reference to a compliance order made by the Authority on 3 December 2018, since I had concluded the Authority had no jurisdiction to make it.13
[29] In all other respects the amended statement of claim reflects the original statement of claim.
[30] In these circumstances, the question I must consider is whether this Court possesses jurisdiction, in the sense in which that term was used by the Supreme Court, to hear the removed matter.14
[31] Section 187(1)(e) states that the Court has exclusive jurisdiction to hear and determine “matters removed” to it under s 178.
[32] Section 178 of the Act provides that the Authority may, on its own motion, order removal of the “matter or any part of it” for the Court to hear and determine the matter without the Authority investigating it.
[33] The word “matter” as used in ss 178 and 187 of the Act is not defined. It is, however, along with a variety of other terms that are used in the Act, one which has potential application in a variety of circumstances.
[34] The Supreme Court considered the breadth of this and other terms as used in s 161, the section which in part describes the jurisdiction of the Authority, in FMV v TZB.15
13 At [152].
14 Redcliffe Forestry Venture Ltd, above n 7.
15 FMV v TZB [2021] NZSC 102, [2021] 1 NZLR 466.
[35] It said this:
- [62] It is therefore unsurprising that the examples [of employment relationship problems] listed in s 161(1) are extensive and diverse. They are varied in two ways: in subject matter and in form.
- [63] The examples vary in subject matter in that they traverse a wide range of issues. They include, of course, issues of interpretation, application, operation or breach of an employment agreement,16 as well as personal grievances generally,17 but they also cover (by way of example only) equal pay and unlawful discrimination,18 and patents and inventions. Specifically, the Authority has jurisdiction to resolve disputes and an invention made by an employee,19 and to review decisions of the Commissioner of Patents in respect of such inventions.20
- [64] The examples also come in a variety of forms in the sense that they are not all framed as “actions”. The Authority does have jurisdiction over actions,21 but it also has jurisdiction over disputes,22 matters,23 reviews,24 orders,25 facilitations,26 investigations,27 fixing provisions,28 making determinations,29 and joining third parties.30 Clearly, not all of these items are strictly “problems” – some of them are more in the nature of responses or solutions to problems. Further, the term “matters” occurs 11 times in the subsection.31 These include “matters related to a breach of an employment agreement”,32 “matters about whether a person is an employee”,33 “matters alleged to arise under section 68”,34 “matters about the recovery of wages”,35 and so on. This language is notable because it makes clear, if clarification were necessary, that the Authority’s jurisdiction is not intended to be limited to a prescribed set of legal categories, but is rather focused on the factual substance of the problem itself.
16 Section 161(1)(a)−(b).
17 Section 161(1)(e).
18 Section 161(1)(qd) (inserted 6 November 2020).
19 Section 161(1)(qa).
20 Section 161(1)(qb).
21 Section 161(1)(m), (q) and (r).
22 Section 161(1)(a) and (qa).
23 Section 161(1)(b)−(c), (d), (f)−(g), (h)−(k) and (qd) (inserted 6 November 2020).
24 Section 161(1)(qb).
25 Section 161(1)(n) and (p).
26 Section 161(1)(ca).
27 Section 161(1)(da).
28 Section 161(1)(cb).
30 Section 161(1)(ea) (inserted 27 June 2020).
31 Including the 6 November 2020 insertion of s 161(1)(qd).
32 Section 161(1)(b) (emphasis added).
33 Section 161(1)(c) (emphasis added).
35 Section 161(1)(g) (emphasis added).
[36] In the absence of a statutory definition of the term, I conclude that the word “matter” as used in ss 178 and 187 is a broad one, encapsulating a wide range of problems which the Authority is required to investigate. This is supported by its use together with other broad terms in s 161, as noted by the Supreme Court. All of this suggests that the word is non-technical and should be used in its broadest sense to achieve its purpose, that being to allow the Authority to remove not only “matters” but also “actions”, “proceedings” and “disputes”.
[37] Further support comes from Sibly v Christchurch City Council, which dealt with the meaning of the word “matter” in the context of making a challenge to an Authority determination.36 The Court accepted that a broad approach must be taken.
This was supported in subsequent cases.37
[38] Here, as the Authority recorded in its determination of 25 February 2019, the “matter” was as raised in the plaintiff’s statement of problem dated 10 December 2018.38 A statement in reply was filed by the present defendants on 3 January 2019. Removal then occurred.
[39] The allegations made in the contested statement of problem were not investigated: they were simply removed or transferred so the Court could resolve the allegations made under its processes rather than those of the Authority. The fact of removal did not mean the claims were valid. Removal did not legitimise the allegations in any way.
[40] Accordingly, there was removal of a matter, or problem, which the Court was authorised to hear under s 187(1)(e). It follows that the Court has express jurisdiction to hear the matter that was removed to it.
[41] Mr Halse submitted that such a conclusion is misconceived because the Authority erred in making the various directions which are the subject of the proceeding; he says that it lacked jurisdiction to take such steps.
36 Sibly v Christchurch City Council [2002] NZEmpC 76; [2002] 1 ERNZ 476 (EmpC).
38 Bay of Plenty District Health Board v Culturesafe New Zealand Ltd , above n 11.
[42] That, however, is not the point when a protest to jurisdiction is to be considered. The question is whether the Court has the ability to hear a proceeding which raises the various issues which have been removed and which the Court must then consider.
[43] Moreover, to this point, Mr Halse, and the other parties who are cited as defendants, have in fact proceeded on the basis that the Court did have jurisdiction to consider them. At no point, until now, has a protest as to the Court’s jurisdiction been raised by Mr Halse. Rather, the parties submitted to the jurisdiction by arguing their various points of view in the multiple steps which have been taken since 2019.
Result
[44] It follows that the appearance as to protest to jurisdiction must be set aside.
[45] I direct that Mr Halse is to file a statement of defence to the amended statement of claim by 4.00 pm on 15 November 2022. Ms Shaw has already filed a statement of defence to the amended statement of claim. The position of CultureSafe NZ Ltd (in liquidation) is unknown.
[46] Costs are reserved.
B A Corkill Judge
Judgment signed at 12.15 pm on 25 October 2022
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