Norske Skog Tasman Ltd v Clarke [2005] NZCA 1; [2005] ERNZ 206 (8 February 2005)

Last Updated: 20 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA181/03

BETWEEN NORSKE SKOG TASMAN LIMITED
Appellant

AND EDWARD CLARKE
Respondent

Hearing: 6 December 2004

Coram: Anderson P, McGrath and Glazebrook JJ

Appearances: R J McIlraith and K M Dunn for Appellant
D G Jacobson for Respondent

Judgment: 8 February 2005

JUDGMENT OF THE COURT

Application for leave is dismissed with costs to the respondent of $3,000 together with disbursements as fixed by the Registrar, including the reasonable travelling and accommodation expenses of respondent’s counsel.

____________________________________________________________________

REASONS

(Given by Anderson P)

[1] This is an application for conditional leave to appeal to the Privy Council from a judgment of this Court on appeal from the Employment Court. Such applications are very rare because appeals in Employment Court cases were abolished pursuant to s 62A(7) of the Industrial Relations Act 1973 (enacted by s 3 of the Industrial Relations Amendment Act 1977) which provided:

The determination of the Court of Appeal on any appeal under this section shall be final and conclusive.

[2] A similar provision was included in the successors to that Act, namely the Labour Relations Act 1987, s 312(6); Employment Contracts Act 1991, s 135(5); Employment Relations Act 2000, s 213(4). Prior to the 1977 Amendment the Industrial Court was reviewable by the High Court on the sole ground of lack of jurisdiction – Industrial Relations Act 1973, s 47(6).
[3] That appeals from the Employment Court ended in this Court was confirmed in Brittain v Telecom Corporation of New Zealand Ltd (No 2) [2002] 2 NZLR 556.
[4] It is the appellant’s contention that the transitional provisions in the Supreme Court Act 2003 now provide, in effect, for appeals in such cases to be taken to the Privy Council. How an Act, intended to abolish appeals to the Privy Council, could effect a resurrection in Employment Court cases is explained by counsel for the appellant in this way. It is argued that being an appeal involving, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $5,000 or upwards (which is indeed the case) s 50(1) of the Supreme Court Act provides that the Privy Council may hear and determine an appeal against the final judgment of this Court, which heard the appeal on 4 December 2003 and delivered judgment on 20 May 2004.
[5] Section 50(1) of the Supreme Court Act provides as follows:

50 Privy Council may still determine appeals in certain existing proceedings

(1) The Privy Council may hear and determine, or continue to hear and determine,—

(a) an appeal against a final judgment of the Court of Appeal made before 1 January 2004, or made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004, where—

(i) the matter in dispute on the appeal amounts to or is of the value of $5,000 or upwards; or

(ii) 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 $5,000 or upwards; or

(b) an appeal arising out of a successful application to a New Zealand court (whether made before, on, or after 1 January 2004) for leave to appeal to the Privy Council against a decision of the Court of Appeal—

(i) made before 1 January 2004; or

(ii) made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004; or

(c) an appeal arising out of a successful application to the Privy Council (whether made before, on, or after 1 January 2004) for special leave to appeal to it against a decision of the Court of Appeal—

(i) made before 1 January 2004; or

(ii) made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004.

[6] Section 214(7) of the Employment Relations Act 2000, to which we referred above, originally provided that the decision of the Court of Appeal on an appeal to that Court under this section, and on an application for leave to appeal under this section, is final. However, from 1 January 2004, s 214(7) of the Employment Relations Act was repealed by s 47 and Schedule 1 Supreme Court Act.
[7] Counsel for the appellant submitted that Parliament’s intention was that a further right of appeal from the Court of Appeal should exist, and that the effect of ss 50 and 51 of the Supreme Court Act opened up a small window of time for such an appeal to be taken to the Privy Council.
[8] The respondents say, however, that where Parliament’s intention was to abolish appeals to the Privy Council it is inconceivable that it should have intended nonetheless to resurrect appeals of a type which had not been permitted for more than quarter of a century. The reasons for abolition in 1977 were policy based. The indigenous context of industrial relations made it inapt that a court at the other end of the world, with its own cultural context, should be interpreting New Zealand employment relations law.
[9] It is of course the creation of a new indigenous Supreme Court that has led to the restoration of a further right of appeal, on limited grounds, from this Court. We agree with the contention on behalf of the respondents that it is inconceivable, in these circumstances, that Parliament could have intended to bring back to life, even relatively transiently, a right of appeal to the Privy Council which for so long has been considered inappropriate, and to do so with legislation that recognises the inappropriateness now of any appeal to the Privy Council.
[10] Our view is reinforced by a lengthy historical legislative policy of restricting appeal or review of the specialist court known successively as the Arbitration Court, Industrial Court and Employment Court. For example, s 47(6) Industrial Relations Act 1973 provided:

Except on the ground of lack of jurisdiction, no decision, order, or proceeding of the Court shall be removable to any Court by certiorari or otherwise or be liable to be challenged, appealed against, reviewed, quashed, or called in question in any Court.

[11] The Industrial Conciliation and Arbitration Acts of 1908, 1925 and 1954 each confirmed the exclusive jurisdiction of the Court and contained no less stringent privative clauses – s 96(2) 1908 Act, s 97 1925 Act, s 47 1954 Act.
[12] Section 5 of the Interpretation Act 1999 provides as follows:

5 Ascertaining meaning of legislation

(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.

(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.

(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.

[13] In our view the purpose of the Supreme Court Act was to repatriate final appeals and to extend the advantages of that process to cases such as appeals from the Employment Court because of the advantages of such repatriation. The purpose of s 50 Supreme Court Act was to preserve, transitionally, appeals to the Privy Council where such appeals existed before 1 January 2004. Of significance, to our mind, is the heading to s 50 which, italicised by us for emphasis, states:

Privy Council may still determine appeals in certain existing proceedings.

[14] That heading is entirely consistent with the purpose of the Supreme Court Act in the respects we have mentioned and makes perfectly plain that existing rights are preserved rather than that new rights of appeal to the Privy Council are created.
[15] For these reasons the application for leave is dismissed with costs to the respondent of $3,000 together with disbursements as fixed by the Registrar, including the reasonable travelling and accommodation expenses of respondent’s counsel.

Solicitors:
Russell McVeagh, Auckland for Appellant
Sharp Tudhope, Tauranga for Respondent