Attorney-General v David [2001] NZCA 336; [2002] 1 NZLR 501; [2001] ERNZ 291 (24 September 2001)

Last Updated: 12 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 156/01

	BETWEEN	ATTORNEY-GENERAL
		Appellant

	AND	SARGON NWIA DAVID
		First Respondent

	AND	EMPLOYMENT RELATIONS AUTHORITY
		Second Respondent

	AND	NEW ZEALAND LAW SOCIETY
		Third Respondent

CA 160/01

	BETWEEN	ATTORNEY-GENERAL
		Appellant

	AND	SARGON DAVID
		First Respondent

	AND	A E TILLEY LIMITED
		Second Respondent

Hearing:	20 September 2001
Coram:	Richardson P Tipping J Anderson J
Appearances:	E D France for Appellants P B Churchman and T J Flaherty for Respondents
Judgment:	24 September 2001

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] These linked applications under s214 of the Employment Relations Act 2000 ("the ERA") seek leave to appeal to this court on questions of law involved in the proposed appeal from the decision of the Full Court of the Employment Court of 29 May 2001. One proceeding before the Employment Court was a proceeding removed from the Employment Relations Authority ("the Authority") into the Court. The other was for review of a ruling on procedure by the Authority. The two proceedings are clearly inter-related and the underlying issues are common to both.
[2] At the beginning of its judgment the Employment Court records that in substance the two matters before the Employment Court posed the important question whether and to what extent the Authority in cases before it can dispense with cross-examination of witnesses and rely instead on its questioning of them with or without the assistance of questions supplied by the parties.
[3] The Employment Court saw the Authority's Practice Note as expressing a general policy against allowing cross-examination. Paragraph 4 of the Practice Note states:

... Depending on any directions previously given, a witness may read a prepared statement or give oral evidence. This evidence may be added to at the request of the party or the party's representative. Following this the Authority will question the witness. There will not be cross-examination by opposite parties or their representatives, although they may be invited to propose additional matters for the Authority to inquire into in relation to the evidence or anything else of relevance to the investigation.

[4] The Employment Court in its initial summary said that, for the reasons it went on to develop, "... having regard to the nature of the Authority and the subject-matter of most of the matters that come before it, cross-examination is a necessary ingredient of the principles of natural justice at every hearing at which a party wishes to exercise that right, being a hearing or meeting that can lead to the establishing of facts and a determination based on them of the merits of an employment relationship problem". Their ultimate conclusion was:

83. In the result, we accept the submissions of counsel for Mr David and the NZLS that, in those cases in which a party, whether employer or employee, assures the Authority that cross-examination is necessary in order to resolve a conflict of evidence, natural justice will require the Authority to permit cross-examination.

[5] As it happens, the substantive proceedings have been settled and so the immediate parties have no live issue remaining between them. The Authority made no submissions before the Employment Court and the proposed contest is between the Attorney-General and the New Zealand Law Society, both having been granted intervener status in the Employment Court.
[6] Their counsel agree that, even though the substantive proceedings have been settled, the questions of law involved in the appeal, "which concern the manner in which the Authority is to exercise its investigative role", ought to be submitted to the Court of Appeal for decision. The questions of law identified by Ms France for the Attorney-General in her written submissions are as follows:

11.1 Does its obligation to comply with the principles of natural justice require the Authority to permit cross-examination whenever a party considers that cross-examination is necessary to resolve a conflict of evidence?

11.2 If not, can the Authority adopt a policy limiting cross-examination to those cases in which the Authority considers cross-examination would assist it in the performance of its investigatory and fact finding role?

11.3 Given the provisions of ss184 and 188(4) of the ERA, to what extent can the Employment Court properly review or direct the Authority in relation to the exercise of its investigative role and powers?

[7] Ms France for the Attorney-General also now seeks leave to amend the application to invoke the right of appeal under s218 applying to the Judicial Review matter, to which by s218 the provisions of s66 of the Judicature Act 1908 apply. However, that raises the formidable difficulty that, in terms of the Court of Appeal (Civil) Rules 1997 r5, the appeal should have been brought within 28 days.
[8] The more important question, which bears on the granting of leave under s214 and on the exercise of the discretion to refuse relief under the Judicature Amendment Act, is whether a general question posed in relation to future conduct permits of a categorical answer or whether the limits and conditions can only be defined adequately and safely by reference to particular facts.
[9] As Lord Haldane put it in Attorney-General for British Columbia v Attorney-General for Canada [1914] AC 153, 162:

Not only may the [position] of future litigants be prejudiced by the Court laying down principles in an abstract form without any reference or relation to actual facts, but it may turn out to be practically impossible to define a principle adequately and safely without previous ascertainment of the exact facts to which it is to be applied.

(See also Gazley v Attorney-General (1996) 10 PRNZ 47.)

[10] In the judgment of this court in New Zealand Employers Federation Inc v National Union of Public Employees (NUPE) (CA32/01, judgment 2 May 2001) granting leave to appeal under s214, we noted (para [37]) that had it not been still a live issue between the parties it would have been necessary to consider, given the wider implications of the Employment Court's decision in that case, whether the application for leave to appeal might reasonably have been viewed as analogous to raising an issue involving a public authority as to a question of public law, citing R v Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42). In Salem Lord Slynn said at p47:

... in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se ... The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example ... when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated ...

[11] In R v Kensington and Chelsea Royal London BC, ex p Kujtim [1999] 4 All ER161 the Court of Appeal entertained a housing appeal by an asylum seeker which was academic because he had left the country. It was entertained because (a) he might return, and (b) there were a number of pending cases raising the same point. The Editor of the All England Law Reports Annual Review 1999 observed at p359 that the case illustrates the wisdom of not entertaining academic appeals because in the result the court's decision on that case was inconclusive. Clearly a cautious approach should be taken to leave applications where there are no live issues as between the immediate parties, in order to ensure that the answer to proposed abstract questions of law are not too fact dependent to provide any useful guidance.
[12] In a broad sense there are three possible answers to the question whether cross-examination by the parties is available before the Authority: cross-examination is as of right; no such cross-examination is permitted; and cross-examination is available in some circumstances with the Authority required to rule on whether and, if so, subject to what criteria, cross-examination is permitted. In terms of the Employment Court decision, cross-examination is by right whenever a party assures the Authority that it is necessary to resolve a conflict of evidence. That is perhaps not expressed as an absolute right, applicable where any witness is called, because, as framed, it is restricted to cases where that assurance is given and does not extend to cases where a party may wish to cross-examine to elucidate a factual situation but is unable to give that assurance. Nevertheless, the Employment Court's ruling is close to one end of the spectrum and, given that the Authority must adopt the approach which the Employment Court has mandated, we are satisfied that as a question of law the correctness of that stance is a question of law involved in the proposed appeal which is of general and public importance and ought to be submitted to this court for early decision.
[13] Next, as explored in argument with counsel, if the approach taken by the Employment Court is held to be erroneous in law, it will be desirable for the assistance of the Authority and the parties to try to determine where in that long continuum between the two ends of the spectrum the availability of cross-examination falls. In seeking to identify guiding principles as to the relevant criteria governing the availability of cross-examination in matters before the Authority and as to what conditions and limitations apply, it may be helpful, as Mr Churchman suggests, if counsel are able to identify a range of possible fact situations between the two extremes rather than simply leaving the matter at large for the exercise of discretion by the Authority.
[14] In discussion, counsel also accepted that it would be helpful to have relevant data as to the likely impact, particularly of the Employment Court's ruling, on the duration of proceedings and on resource implications for the Authority's budget and for the parties.
[15] Leave to appeal is granted.

Solicitors
Crown Law Office, Wellington, for Appellants
KPMG Legal, Wellington, for Respondents