IN THE EMPLOYMENT COURT WELLINGTON [2018] NZEmpC 6 EMPC 363/2017. IOANA CHINAN Defendant

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1 IN THE EMPLOYMENT COURT WELLINGTON IN THE MATTER OF AND IN THE MATTER BETWEEN AND [2018] NZEmpC 6 EMPC 363/2017 a challenge to a determination of the Employment Relations Authority of an application to file a statement of defence out of time PERFORMANCE CLEANERS ALL PROPERTY SERVICES WELLINGTON LIMITED Plaintiff IOANA CHINAN Defendant Hearing: (on the papers dated 18 January and 12 February 2018) Appearances: B Buckett, counsel for the plaintiff M Lawlor, counsel for the defendant Judgment: 16 February 2018 INTERLOCUTORY JUDGMENT OF JUDGE B A CORKILL Background [1] This judgment resolves an issue as to the calculation of time over the Christmas/New Year period. [2] By way of background, on 8 December 2017, the plaintiff filed a statement of claim challenging a costs determination of the Employment Relations Authority (the Authority). 1 A copy of the statement of claim was ed by the plaintiff s lawyers 1 Performance Cleaners All Property Services Wellington Ltd v Chinan [2017] NZERA Wellington 112. PERFORMANCE CLEANERS ALL PROPERTY SERVICES WELLINGTON LIMITED v IOANA CHINAN NZEmpC WELLINGTON [2018] NZEmpC 5 [16 February 2018]

2 to the defendant s lawyers on 11 December 2017; there is no evidence of opposition to service by this means. [3] On 16 January 2018, the Registrar raised a query with counsel for the defendant as to whether the statement of defence was filed out of time, and should have been filed by 10 January 2018; this question was asked on the basis that reg 74B of the Employment Court Regulations 2000 (the Regulations) was subject to reg 74A, making it the prevailing regulation. [4] Mr Lawlor, counsel for the defendant, in a memorandum dated 18 January 2018 which accompanied a statement of defence for filing, stated that the effect of reg 74B was that the 12 days between 25 December 2017 and 5 January 2018 would not be counted when calculating the 30 days within which a statement of defence must be filed following service, and that the appropriate date for filing was therefore 22 January [5] Counsel for the plaintiff, Ms Buckett, stated that her client would not make submissions on the timing issue. The applicable regulations [6] Regulations 74A and 74B provide as follows: 74A What happens to timing when court is closed (1) This regulation applies when (a) (b) the time for doing an act at an office of the court ends on a day on which the office is closed; and the act cannot be done because the office is closed. (2) The act is treated as being in time if it is done on the next day on which the office is open. 74B What happens to timing in Christmas period (1) This regulation applies when the period of time within which an act must be done is calculated. (2) The 12 days starting with 25 December in one year and ending with the close of 5 January in the next year are not counted. (3) Subclause (2) is subject to

3 (a) (b) (c) an express provision in any Act; or an express provision in these regulations; or a direction of the court. The cases [7] In Vice-Chancellor of Lincoln University v Stewart the Authority had determined on 21 December 2007 that a matter between the parties should be removed to the Court. 2 On 30 January 2008, 40 days later, the employer filed a challenge to that determination in the Court. It was submitted that the challenge was out of time pursuant to s 179(2) of the Employment Relations Act (the Act) which imposed a 28-day time limit. Judge Couch found that the subsection of the Act was an express provision with the consequence that reg 74B(2) was overridden by s 179(2), by the application of reg 74B(3)(a). He also relied on the inherent primacy of an Act over delegated legislation. He then exercised the Court s discretion under s 219 of the Act to extend the time allowed for the challenge, thus validating the proceedings. 3 [8] In McLeod v National Hearing Care (NZ) Ltd, Judge Ford referred to a possible argument albeit one that had not been advanced before him that reg 74B and s 179 can be reconciled in that the regulation is expressed to apply only to the calculation of time and not to the number of days or the amount of time given. 4 In that way, the 28-day time limit would not be extended, but some days would simply not count in the calculation. However, Judge Ford also recognised that there were what he described as strong countervailing considerations as had been identified in Stewart and Trans Otway. 5 As he had not heard argument on the issue, he was not prepared to depart from the reasoning in those cases. [9] In New Zealand Air Line Pilots Assoc v Airways Corp of New Zealand Ltd, Judge Ford revisited the issue. 6 On this occasion he disagreed with the conclusion 2 Vice-Chancellor of Lincoln University v Stewart [2008] ERNZ 132 (EmpC). 3 This reasoning was subsequently applied in Trans Otway Ltd v Hall [2010] NZEmpC 76, (2010) 7 NZELR McLeod v National Hearing Care (NZ) Ltd [2012] NZEmpC 120, [2012] ERNZ 466 at [27] [28]. 5 At [29]. 6 New Zealand Air Line Pilots Assoc v Airways Corp of New Zealand Ltd [2014] NZEmpC 90,

4 reached in Lincoln University and went on to say that reg 74B could be read consistently with s 179(2) of the Act. He observed: 7 [25] It seems to me that regs 74A and 74B really do no more than give effect to practical realities in this jurisdiction. In recognition of the fact that the Court registries are closed between 25 December and 6 January, reg 74B operates so as to provide that the period beginning on 25 December and ending with the close of 5 January, the traditional Twelfth Night, is not to be counted when calculating the period of time within which a particular act must be done. Under that approach, as I noted in McLeod, reg 74B and s 179 of the Act can be reconciled or read consistently in that the regulation is expressed to apply only to the calculation of time and not to the number of days or the amount of time given. In that way, the 28-day time limit is not extended but some days simply do not count in the calculation of the 28 days. (footnotes omitted) [10] Mr Lawlor submitted that the above interpretation is preferable, and is consistent with the approach of the High Court. Under the High Court Rules, the period beginning on 24 December and ending on 3 January are court holidays, and therefore not working days. 8 Statements of defence must be filed within 25 working days, not calendar days as in this jurisdiction. The practical effect, Mr Lawlor submitted, is that whilst no express comparison to reg 74B exists in the High Court Rules, the Christmas period is not counted when calculating the time for filing. I note that this is also the effect of the Court of Appeal (Civil) Rules [11] I respectfully agree with the conclusions reached by Judge Ford in the Air Line Pilots judgment, both for the reasons he gave, and in the interests of consistency with the position in other courts as just described. Conclusion [12] The result is that the statement of defence which was filed and served in this case on 18 January 2018 was filed within time. It is not necessary to consider the application for an extension of time to file the statement of defence. [2014] ERNZ See also Peters v Housing New Zealand Corp [2014] NZEmpC 91, delivered at the same time by Judge Ford. 8 High Court Rules, r Court of Appeal (Civil) Rules 2005, r 3(1).

5 [13] Mr Lawlor made a supplementary submission to the effect that the statement of claim had been served by only, and that no address for service in respect of this proceeding had been given for the purposes of reg 28. Ms Buckett submitted that having regard to previous service arrangements, the statement of claim had been properly served for the purposes of that regulation. [14] I discussed this topic in Henderson v Nelson Marlborough District Health Board. 10 Whether proper service has been effected under the Regulations is a question of fact. [15] But in this case I find that any issues as to service were overtaken by the subsequent filing of the statement of defence. That pleading referred to the statement of claim as served. Any ability to raise an issue as to service was thereby waived. [16] There will be no order as to costs in respect of the present application. B A Corkill Judge Judgment signed at am on 16 February Henderson v Nelson Marlborough District Health Board [2016] NZEmpC 27.