IN THE EMPLOYMENT COURT AUCKLAND [2015] NZEmpC 218 EMPC 169/2015. SURENDER SINGH Defendant

Transcription

1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF BETWEEN AND an application for costs [2015] NZEmpC 218 EMPC 169/2015 CORPORATE ENERGY LIMITED (IN LIQUIDATION) (FORMERLY KNOWN AS CORPORATE ENERGY LIMITED T/A CALTEX GLENBROOK) Plaintiff SURENDER SINGH Defendant Hearing: 7 December 2015 (Heard at Auckland) Appearances: No appearance for plaintiff S Laurent, counsel for defendant Judgment: 7 December 2015 ORAL JUDGMENT OF JUDGE M E PERKINS Introduction [1] On 27 May 2015 the Employment Relations Authority (the Authority) issued a determination in the matter of a personal grievance which had been commenced by Surender Singh against Corporate Energy Limited t/a Caltex Glenbrook. 1 Following an investigation meeting that took place over a period of two days, the Authority determined that the underlying true nature of the relationship between Mr Singh and Corporate Energy Limited was that of employment. Accordingly, the Authority decided that it had jurisdiction to investigate Mr Singh s employment-related claims against Corporate Energy Limited. Costs were reserved. That would have entailed a 1 Singh v Corporate Energy Ltd t/a Caltex Glenbrook [2015] NZERA Auckland 152. CORPORATE ENERGY LIMITED (IN LIQUIDATION) (FORMERLY KNOWN AS CORPORATE ENERGY LIMITED T/A CALTEX GLENBROOK) v SURENDER SINGH NZEmpC AUCKLAND [2015] NZEmpC 218 [7 December 2015]

2 continuation of the investigation meeting, but before that could be recommenced, Corporate Energy Limited filed a challenge to the determination in this Court. [2] That challenge was commenced by way of the filing of a statement of claim on 24 June Mr Singh filed a defence to that challenge and following directions conferences, the challenge was set down for a hearing in this Court. That was due to commence today, 7 December Timetabling was set by me for the filing of briefs of evidence by Corporate Energy Limited and briefs of evidence by Mr Singh. There was also a direction that there was to be a bundle of agreed documents prepared in preparation for the hearing. This would ensure that when in the briefs of evidence reference was made to a document as being an exhibit, then the appropriate page number in the bundle of documents could be referred to. [3] The time passed for Corporate Energy Limited to file its briefs of evidence and it failed to do so. It also failed to attend to the preparation of the bundle of documents. That of course left Mr Singh and his lawyer, Mr Laurent, in difficulties with the filing of his briefs of evidence because his briefs of evidence would have needed to reply to those of Corporate Energy Limited. [4] As no steps were taken by the plaintiff to comply with the timetabling, Mr Laurent, on behalf of Mr Singh, filed an interlocutory application on notice to strike out or dismiss the proceedings. That elicited some response to a degree from Corporate Energy Limited in that a person who purported to be a director of the company wrote to the Court advising that Corporate Energy Limited intended to participate in the proceedings. [5] Prior to that time Mr R W Roussell, who was the advocate for Corporate Energy Limited, and who had filed the statement of claim on behalf of the plaintiff, indicated to the Court that he no longer had instructions and that he was seeking to withdraw from acting for Corporate Energy Limited. He did that. He filed documents in accordance with the High Court Rules. The process for him to withdraw was not followed to the letter, but in any event, it was clear that Corporate Energy Limited knew, as did Mr Laurent, that Mr Roussell was no longer going to act for Corporate Energy Limited in these proceedings. I regard the letter which was

3 then written to the Court by the director of Corporate Energy Limited, after Mr Roussell had withdrawn, as merely an attempt to try and delay Mr Singh further in pursuing this matter. The reason I say this is that not long after that letter was received by the Court, a notice of discontinuance dated 3 December 2015 was received by the Court from Mr C A Johnson, who indicated he had been appointed as the liquidator for Corporate Energy Limited. In filing the notice of discontinuance, he indicated that the company (or rather the liquidator) would not be seeking to pursue the challenge further. [6] In a covering letter from Mr Johnson enclosing the notice of discontinuance, he indicated that he disputed the amount of costs which Mr Laurent had stated he would be seeking from Corporate Energy Limited in respect of this challenge if the strike out application went ahead and was successful. Strike out [7] The matter has been called today. There is no appearance registered either for Corporate Energy Limited or for the liquidator. There is no need to deal with the application to strike out because that has now been pre-empted by the notice of discontinuance being filed which brings the challenge to an end. Costs [8] The remaining matter then to be determined is the amount of costs which should be awarded against Corporate Energy Limited for having pursued this challenge against Mr Singh and then discontinuing that at the last minute. Mr Singh has been caused a substantial delay in his ability to pursue his personal grievance and also substantial inconvenience and cost in having to participate in the challenge to the extent that he has. [9] Mr Laurent has filed a memorandum setting out a calculation of costs based on the scale which this Court intends to adopt as a pilot commencing in the New Year. Until that pilot commences, the Court will continue to follow the normal principles applying in costs which have now been established in a number of Court

4 of Appeal decisions. 2 Principles which can be elicited from those decisions are that costs will follow the event and that costs will normally be two-thirds of actual and reasonable costs. The Court retains its discretion and, depending upon the way in which a party behaves in proceedings, the Court may consider full indemnity costs. It would be fair to say that the new scale, which is an adaptation of the High Court scale, is generally based on two-thirds of reasonable costs. The effect of the scale will not be too different from the principles which have generally applied in this Court, although having adopted a scale (on a pilot basis) it will enable parties embarking on proceedings to have a fair idea at the outset of the likely costs award to the successful party, rather than having to wait until the proceedings are completed. [10] Mr Laurent, adopting the new scale, has arrived at a figure of $8,920. As I say, the liquidator has indicated in his letter that he considers that to be excessive but the liquidator will be unaware of the attendances that have been necessarily incurred for Mr Singh in having to deal with matters such as pleadings and other attendances relating to disclosure of documents and the like which have taken place since the challenge was first lodged in this matter. From my experience I consider that the claim that is now made on behalf of Mr Singh for $8,920 is in fact a moderate claim for costs and in all the circumstances I consider that it would be an appropriate award. [11] Accordingly, the proceedings now are discontinued. On the discontinuance it is appropriate that there be an award of costs against the plaintiff which has filed the challenge and now discontinued it. I regard an appropriate award of costs against Corporate Energy Limited is $8,920 and there will be an award accordingly. [12] Mr Laurent will probably need to seal that order for costs because he, on behalf of Mr Singh will want to pursue the liquidator and possibly the directors and shareholders of Corporate Energy Limited for those costs. Later on Mr Singh will be wanting to pursue any award by the Authority against Corporate Energy Limited or 2 See Victoria University of Wellington v Alton-Lee [2001] ERNZ 305 (CA); Binnie v Pacific Health Ltd [2002] 1 ERNZ 438 (CA); Health Waikato Ltd v Elmsly [2004] 1 ERNZ 172 (CA).

5 any other party joined to the proceedings in the Authority. That will all be considered in the further investigation meeting which will now take place in the Employment Relations Authority. M E Perkins Judge Oral judgment delivered at 9.53 am on 7 December 2015