IN THE EMPLOYMENT COURT AUCKLAND [2018] NZEmpC 107 EMPC 213/2017. AND IN THE MATTER OF an application for costs. KERRY MACDONALD Defendant

Transcription

1 IN THE EMPLOYMENT COURT AUCKLAND IN THE MATTER OF [2018] NZEmpC 107 EMPC 213/2017 a challenge to a determination of the Employment Relations Authority AND IN THE MATTER OF an application for costs BETWEEN AND TKR PROPERTIES LTD T/A TOP PUB & ROUTE 26 BAR AND GRILL Plaintiff KERRY MACDONALD Defendant Hearing: Appearances: On the papers filed on 18 June, 2 July, 8 and 22 August and 3 September 2018 R Mead, agent for plaintiff A Kersjes, advocate for defendant Judgment: 17 September 2018 COSTS JUDGMENT OF JUDGE J C HOLDEN [1] TKR Properties Ltd t/a Top Pub & Route 26 Bar and Grill (TKR Properties) discontinued its challenge to a determination of the Authority that found that it unjustifiably dismissed Ms MacDonald and ordered it to pay remedies to her. 1 Ms MacDonald now seeks costs on the discontinuance. [2] After the challenge was filed, TKR Properties applied for a stay of execution of the determination of the Employment Relations Authority (the Authority) and Ms MacDonald applied for security for costs. In my judgment dated 1 March 2018, 1 MacDonald v TKR Properties Ltd [2017] NZERA Auckland 199. TKR PROPERTIES LTD T/A TOP PUB & ROUTE 26 BAR AND GRILL v KERRY MACDONALD NZEmpC AUCKLAND [2018] NZEmpC 107 [17 September 2018]

2 I declined the application for a stay of execution and ordered TKR Properties to pay security for costs of $7,500 into Court. 2 [3] TKR Properties discontinued the proceedings on 22 March In its notice of discontinuance TKR Properties advised that there were no issues of costs between the parties but the notice of discontinuance was not signed by or on behalf of Ms MacDonald. No settlement of costs in the Court [4] Both parties have referred to settlement discussions between them. [5] Shortly after the challenge was filed in the Court, Ms MacDonald made a Calderbank offer to resolve the Court proceedings with a payment to TKR Properties of $250. That offer was not accepted. [6] After the interlocutory judgment came out, there were further s that referenced Ms MacDonald s steps to recover the amounts awarded by the Authority. The parties ultimately entered into a settlement agreement that resolved the warrant to seize property that Ms MacDonald had obtained to enforce the Authority s determination, with the parties agreeing that the amounts outstanding would be paid by weekly instalments and would be guaranteed by the directors of TKR Properties. [7] Mr Mead, a director of TKR Properties and its agent in the Court, says that he understood that the settlement resolved all matters. He says further that TKR Properties dropped the challenge because of his family commitments and not because he considered that the challenge lacked foundation. [8] I accept that Mr Mead s family commitments were a significant reason for the decision not to press on with the case. The difficulty for TKR Properties is that the settlement agreement excludes the Court proceedings. 2 TKR Properties t/a Top Pub & Route 26 Bar and Grill v MacDonald [2018] NZEmpC 10.

3 [9] It includes a paragraph: 7. TKR Properties Ltd have made an application to the Employment Court namely, EMPC 213/2017 TKR Properties Ltd t/a Top Pub & Route 26 Bar and Grill v MacDonald. For clarity this agreement has no connection with that application and any matters relating to that filing are to be dealt with separately and distinctly from this agreement. [10] The paragraph referring to the agreement being in full and final settlement talks only of the Employment Relations Authority, and of further action in relation to enforcing the initial determination, so does not assist TKR Properties or detract from clause 7. [11] In the face of clause 7, I find that costs in the Court were not resolved by the settlement. Ms MacDonald is entitled to her costs [12] Clause 19 of sch 3 of the Employment Relations Act 2000 (the Act) gives the Court a broad discretion to award Court costs as the Court thinks reasonable. Since 1 January 2016 the Court has used a guideline scale to assist it in exercising its discretion. 3 These proceedings have not previously been allocated a category but Category 2, Band B is an appropriate classification. [13] Although the Court has a discretion, it must be exercised on a principled basis. [14] Under reg 6(2) of the Employment Court Regulations 2000, if a case arises for which no form of procedure has been provided by the Act or by the Regulations, the Court usually will look to dispose of the case as nearly as may be practicable in accordance with the provisions of the High Court Rules [15] Rule of the High Court Rules provides that, unless the defendant otherwise agrees or the Court otherwise orders, a plaintiff who discontinues a 3 Employment Court Costs-Guideline Scale : <

4 proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance. [16] While there remains a discretion under the Rule, the Court of Appeal has recognised it must be exercised only where it is just and equitable, with the onus on the discontinuing plaintiff to persuade the Court to exercise that discretion. The presumption that costs are to be paid is not lightly displaced. 4 [17] In these proceedings, the defendant was put to some effort. She was successful in her application for security for costs and in defending the application for a stay of execution. I see no reason why she should not be compensated for costs up to the discontinuance. [18] Her application for costs sought $5,665.25, inclusive of disbursements and GST and was supported by an invoice for that amount. The invoice included the Authority filing fee, but the filing fee in the Authority was covered by its costs determination so is not allowed. 5 The figure then becomes $5, ($4,850 plus $ GST) [19] Ms MacDonald says that, if the Employment Court s Guideline Scale were used, she would be entitled to claim for 4.5 days. My own review of the Guideline Scale leads to 4.3 days on the basis of Band B. However, for completeness I also include the calculation if done on the basis of Band A: Item Description Time allowed Band B Time allowed Band A 2 Commencement of defence to challenge Yarrall v Earthquake Commission [2016] NZCA 517, (2016) 23 PRNZ 765 at [12], confirmed in Taranaki Galvanisers Ltd v Udderfield Ltd [2018] NZCA 297 at [16]; see also Kelleher v Wiri Pacific Ltd [2012] NZEmpC 98, [2012] ERNZ 406 at [10]. 5 MacDonald v TKR Properties Ltd t/a Top Pub & Route 26 Bar and Grill [2017] NZERA Auckland 240 at [19].

5 11 Preparation for first directions conference 13 Attendance at first directions conference Filing interlocutory application Filing opposition to interlocutory application Preparation of written submissions TOTAL 4.3 days 2 days [20] At the Category 2 daily rate of $2,230, that leads to $9,589 for Band B and $4,460 for Band A. In both calculations, the figures are exclusive of GST, which I would allow here as Ms MacDonald has paid GST and is not able to recover it as she is not GST-registered. 6 Adding GST brings the figures to $11, for Band B and $5,129 for Band A. [21] These calculations demonstrate that the amount invoiced of $5, is reasonable, and I allow it. [22] Ms MacDonald now also seeks $1,495 for costs since making her application, covering consultations, a further telephone conference with the Court, and the preparation of Ms MacDonald s affidavit and submissions. Applications for costs on costs are relatively rare but, when made, can be granted as part of the Court s broad discretion. 7 Here it was necessary for Mr Kersjes to attend a telephone conference to progress the application and so I allow a further $ ($446 plus GST). 6 New Zealand Venue and Event Management Ltd v Worldwide NZ LLC [2016] NZCA 282, (2016) 23 PRNZ 260 at [11]-[12], Nisha v LSG Sky Chefs NZ Ltd [2018] NZEmpC 8 at [245]. 7 Nisha v LSG Sky Chefs NZ Ltd [2018] NZmpC 33 at [11]-[18].

6 [23] In conclusion, TKR Properties is to pay Ms MacDonald costs of $6,090.40, inclusive of GST. J C Holden Judge Judgment signed at 4.15 pm on 17 September 2018