Brittain v Telecom Corporation of New Zealand Ltd (No 2) [2002] NZCA 58; [2002] 2 NZLR 556; [2002] 1 ERNZ 59 (11 March 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA191/00

	BETWEEN	MARGARET JOAN BRITTAIN & ORS
		Applicants

	AND	TELECOM CORPORATION OF NEW ZEALAND LIMITED
		First Respondent

	AND	TELECOM NEW ZEALAND LIMITED
		Second Respondent

	AND	TELECOM DIRECTORIES LIMITED
		Third Respondent

Hearing:	11 March 2002
Coram:	Gault J Blanchard J McGrath J
Appearances:	B M Cunningham for Applicants J A Haigh QC & J A Kean for Respondents
Judgment:	11 March 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT J

[1] This is an application for conditional leave to appeal to Her Majesty in Council from a judgment of this Court delivered on 28 November 2001. The principal question is whether this Court has jurisdiction to grant leave to appeal notwithstanding s135(5) of the Employment Contracts Act 1991. Section 135(1), concerning appeals to this court on questions of law, provides:

Where any party to any proceedings under this Act is dissatisfied with any decision of the Court (other than a decision on the construction of any individual employment contract or collective employment contract) as being erroneous in point of law, that party may appeal to the Court of Appeal against the decision; and section 66 of the Judicature Act 1908 shall apply to any such appeal.

[2] The determination of the Court on any appeal under s135 is “final and conclusive” and the Court has no jurisdiction to grant leave to appeal to the Privy Council (De Morgan v Director-General of Social Welfare [1997] 3 NZLR 385 (PC)).
[3] The applicants are a number of employees who have brought claims in the Employment Court against their employer, the respondents, referred to collectively as Telecom. The applicants allege breaches of express and implied terms of their employment contracts and, in particular, breaches of terms in relation to the provision by Telecom of a safe working environment. They were all employed in work which required them to use computers. They contend that their employment has been detrimentally affected by injury caused by occupational overuse syndrome.
[4] The remedies sought vary between the applicants but include, in a number of cases, applications for a declaration that there is no bar under the Accident Rehabilitation and Compensation Insurance Act 1992 against the recovery of compensatory damages for Telecom’s breaches. Telecom made interlocutory applications for orders determining two questions before the substantive hearing. The reason for this was that the answers to these questions may result in some or all of the applicants being barred from pursuing their claims.
[5] The first question was whether s14(3) of the 1992 Act applies so as to allow the applicants’ proceedings for breach of contract to be brought in spite of the fact that the claims arise directly or indirectly out of personal injuries. Because there existed conflicting authority on the point, including a decision of the very Judge seized of the matter, it was agreed by all counsel that it was an appropriate occasion for the Employment Court to state a case for this Court under s122 of the Employment Contracts Act 1991, being the legislation in force at the relevant time.
[6] The second question was whether s4(7) of the Limitation Act 1950 applies, with the effect that either the claims are barred thereunder or the applicants require leave to bring those claims. The Employment Court determined this question adversely to the applicants and they appealed to this Court, pursuant to s135, against that ruling.
[7] As noted by Tipping J in his judgment for the Court, there were therefore two appeals before this Court, one pursuant to the case stated and the other from the ruling of the Employment Court that s4(7) of the Limitation Act applied. While it is clear that this Court lacks jurisdiction to grant conditional leave in respect of the second appeal, the question arises as to whether we nevertheless have jurisdiction to grant leave in respect of the appeal by way of case stated.
[8] The applicants apply under rule 2(a) of the 1910 Order in Council which provides for appeals as of right:

...from any final Judgment of the Court of Appeal where the matter in dispute on the Appeal amounts to or is of the value of five thousand New Zealand dollars or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of five thousand New Zealand dollars or upwards.

[9] First, an order on an interlocutory application is not regarded as a final order for this purpose: Scottwood Charitable Trust v Bank of New Zealand (CA117/00 judgment 14 November 2001). Further, a decision on a case stated on a question of law posed at a preliminary stage of proceedings is not easily read onto either limb of the remainder of the rule.
[10] However, even if we assumed for present purposes that the rule is satisfied, there remains the question whether it is available in the present proceedings commenced in the Employment Court.
[11] Mr Cunningham, who appeared for all applicants, submitted that while s135 precludes further appeal beyond this Court in matters to which that section applies, s122 differs in that it does not provide that the decision of this Court is final. It simply states:

Statement of case for Court of Appeal – In any matter before the Court the Judge may of the Judge’s own motion, or on the application of any party, state a case for the Court of Appeal on any question of law arising in the matter, excluding any question as to the construction of any employment contract.

[12] Section 211 Employment Relations Act 2000 is in essentially the same terms.
[13] Mr Cunningham contended that there is good reason for permitting further appeal because the decision of this Court is the first one in the proceedings on the point of law in issue. He was not able to suggest any other policy reason why there should be right of appeal to the Privy Council from a decision on a point of law raised as a preliminary issue in proceedings when the Act clearly precludes such an appeal from a final determination of proceedings by this Court.
[14] We are not persuaded that the Act contemplates a further appeal. Section 122 is essentially an empowering provision. Its place in the Act is among a group of sections headed “Judges of the Court” and it provides a mechanism by which a Judge of the specialist Employment Court can, of his or her own motion or on the application of a party, consult the Court of Appeal on a question of law arising in a proceeding. That section is to be read with s135 conferring jurisdiction on this Court to hear appeals on points of law. It is by that route that the case stated comes before this Court.
[15] In the present case the strict terms of s135 are not met because there was no decision of the Employment Court on the point. But that was a matter of convenience. The same Judge had earlier decided the point so the parties sensibly recognised that the best course was to agree to have the matter referred to this Court by means of a case stated.
[16] Even when a Judge determines of his or her own motion to state a case for this Court on a question of law arising in a proceeding, the appropriate course is for the parties to bring it to the Court by way of appeal. Parliament cannot have intended that, merely because there may have been no decision on the point (though generally there will be) some different procedure, not prescribed, should apply with the result that a further right of appeal would follow.
[17] In the De Morgan case the Privy Council, in dealing with an analogous situation arising in a purported further appeal from a District Court decision which was not precluded by strict application of the wording of s67 Judicature Act 1908, said:

Their Lordships, whilst accepting the grammatical force of Mr Napier’s submission, reject it as a matter of common sense. In the ordinary case, the decision of the High Court on appeal from the District Court is final. Where a case involving “some question of law of considerable difficulty or great importance” merits a leap-frog direct to the Court of Appeal from the District Court the decision of the Court of Appeal is final. What possible logic can there be in giving a right of appeal to the Privy Council from the Court of Appeal in cases where there has been an appeal from the High Court to the Court of Appeal but not where a case of exceptional importance or difficulty goes directly to the Court of Appeal under s68?

[18] Their Lordships construed the provisions as not permitting further appeal. We are satisfied that is the correct course also in this case. Section 135(1) confers the substantive right of appeal to the Court on a point of law in respect of “any proceedings under this Act”. It is the over-arching substantive provision dealing with the Court’s jurisdiction on appeals of the type in question. An appeal by case stated under s122 is simply a different procedural mechanism by which the parties come before this Court. There is no logical distinction between a question of law that comes before the Court by way of case stated and one that is taken directly under s135 that would allow the former a further right of appeal to the Privy Council where the latter is denied one. For these reasons we are satisfied that the appeal was determined under s135 and consequently there is no jurisdiction to grant leave to appeal to the Privy Council. The application is dismissed.
[19] The respondents are entitled to costs which we fix at $2500 together with disbursements approved, if necessary, by the Registrar.

Solicitors
Thomas Dewar Sziranyi Druce, Lower Hutt, for Applicants
Russell McVeagh, Wellington, for Respondents