| [1] | This is an
application for leave to appeal to this Court on a question of law under s214 of
the Employment Relations Act 2000.We have
been requested by the parties to
deal with the matter on the basis of their written
submissions. |
| [2] | Mr Greig was employed by the
Order of St John but was summarily dismissed for serious misconduct on 29 August
2001.He believed that
his dismissal was unjustified and took the matter to the
Employment Relations Authority.He was represented before the Authority by
Mr
Peebles, an industrial relations consultant, acting as an Advocate.Mr Greig
lost.The Order of St John then sought costs.On the
basis of actual legal
costs incurred of $20,153, it sought an order for costs between $10,000 and
$13,400 but the Authority limited
the award of costs to
$1,500. |
| [3] | Dissatisfied with the costs award,
the Order of St John has sought a de novo hearing on costs alone in the
Employment Court.It believes
that it is relevant to that proceeding that there
may have been a contingent fee arrangement between Mr Greig and Mr Peebles.The
Order wishes to argue that where such an arrangement exists and the plaintiff
who is a party to it ought properly to pay costs, then
those costs should be
awarded more generously as an economic incentive against the bringing of
unmeritorious claims under an arrangement
which is relatively risk
free. |
| [4] | The Order therefore served a notice
requiring disclosure and, upon discovery being refused, Judge Colgan was asked
to give a ruling
which he did in an interlocutory judgment on 25 March 2003.The Judge declined to order discovery and the present application for
leave to
appeal concerns that decision. |
| [5] | For the
Order of St John, Mr Brant submits that the issues of law of general or public
importance are whether the fact that an unsuccessful
plaintiff had the benefit
of a contingency fee arrangement (and the terms of that arrangement) is a
relevant factor when determining
costs; and, if it is a relevant factor, whether
a successful defendant is entitled to discovery of the documentation concerning
the
arrangement and whether such documents are
privileged. |
| [6] | Those may be interesting
questions, but it is not appropriate that leave be granted in this case because
effectively there is a prior
issue of fact which has been determined against the
Order of St John.Mr Peebles gave his personal assurance to the Employment
Court
that neither he nor Mr Greig had any documents relating to fees or fee
arrangements because the arrangements between them were conducted
orally.The
Judge recorded that Mr Greig had made an unsworn statement (albeit signed in the
presence of a District Court Deputy Registrar)
that Mr Brant accepted for the
purposes of the application as the equivalent of a statement on oath.Mr Greig had said that the costs
were a matter between himself and his
Advocate and that they had decided a price between them.“There was a
monetary value to
me and this was paid”. |
| [7] | Judge Colgan considered that Mr
Peebles’ assurance to the Court that there were no documents of the sort
the plaintiff wished
to have, together with Mr Greig’s unsworn statement,
were determinative of the issue concerning the objection to disclosure.In
other words, he made a finding that there was as a matter of fact no
documentation to be discovered.That is a factual finding which
is not
susceptible of challenge in this Court by appeal under s214 and renders moot the
question of law. |
| [8] | Leave to appeal is
accordingly refused. |
