[1] This is an appeal from an interlocutory decision of the Employment Court.
[2] The appeal is under the Employment Contracts Act 1991. It relates to a decision of Judge Travis on 21 May 2004 in AC28/04 declining an application for leave to introduce what are described as “new issues, explanations, or facts” on the appeal from the Employment Tribunal to that Court.

Background

[3] The appellant, Mr Hardie, is a law practitioner and patent attorney. He employed Dr Round (another law practitioner). Dr Round was paid at the rate of $15.00 per hour, on the basis of time sheets submitted. Mr Hardie became suspicious that Dr Round was billing for hours he had not worked. So he set about monitoring him (the term used in the judgment under appeal was “entrap”, although Mr Hardie takes exception to this characterisation), with the assistance of his Office Manager, Mrs Burgess.
[4] As a result of this monitoring, Mr Hardie became satisfied that he had reasonable grounds to suspect Dr Round of cheating him. A meeting was held, and Dr Round was summarily dismissed.
[5] This dismissal occurred in 1999, and it was common ground that the relevant legislation for the purposes of this case remains the Employment Contracts Act 1991.
[6] Dr Round initiated a personal grievance action. In January 2001 the Employment Tribunal found that the dismissal procedure which Mr Hardie had followed was inadequate. Indeed the Tribunal went so far as to hold that the evidence demonstrated that Mr Hardie’s decision to sack Dr Round was pre-determined. Damages were awarded to Dr Round.
[7] Mr Hardie then applied to have the personal grievance re-heard. He claimed that effectively he was prevented by the Tribunal from adducing relevant evidence, and that he was “ambushed” by some of Dr Round’s evidence. As a consequence, he said he was unable to rebut it.
[8] That application for a rehearing was dismissed by the Employment Tribunal in April of 2002, on the basis that there were no valid grounds for a rehearing. That decision was appealed to the Employment Court, which dismissed that appeal in December 2002.
[9] An appeal against that determination then advanced to this Court. The appeal was dismissed by this Court in a judgment delivered by Blanchard J on 7 October 2003 CA 9/03.
[10] Following the failure of his attempt to get the proceeding reheard before the Employment Tribunal, Mr Hardie then pursued an appeal of the substantive personal grievance claim in the Employment Court. In the course of that proceeding, on 2 February 2004 Mr Hardie filed an application seeking leave to introduce “new issues, explanations and facts” (as detailed). That application was supported by several affidavits.
[11] That application was opposed by Dr Round. The application was heard by the Employment Court on 3 March 2004, and dismissed. That is the judgment of Judge Travis which is now on appeal before this Court.

The jurisdiction of this Court

[12] The jurisdiction of this Court on appeal under the 1991 Act is derived from s 135 of the Act which, relevantly, provides:

135. Appeals to Court of Appeal on question of law-

(1) 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) Every such appeal shall be made by giving notice of appeal within 28 days after the date of the issue of the decision to which the appeal relates.

(3) In its determination of any appeal, the Court of Appeal may confirm, modify, or reverse the decision appealed against or any part of that decision.

(4) Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Court or the Court of Appeal so orders.

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

[13] It will be observed that the section treats any appeal made under it, as being subject to the application of s 66 of the Judicature Act 1908. Neither counsel in their submissions referred to this requirement.
[14] It is clear law, by the decision of this Court in Association of Dispensing Opticians of New Zealand Inc v Opticians Board [2000] 1 NZLR 158, that interlocutory orders are encompassed by s 66, and as this Court noted, appeals against them “are commonplace”.
[15] However, not every interlocutory order may be appealed. In the Opticians case this Court noted that interlocutory decisions fall into at least three categories: (a) those determining rights and liabilities in issue, ie., the merits; (b) those deciding the shape of the substantive proceedings, (these in turn include, first, pre-trial rulings and, secondly, decisions made in the course of the hearing); (c) ancillary but important rulings on times and procedures.
[16] Very broadly, by the decision of this Court in the Opticians case decisions within category (a) will be appealable, and those in category (c) unappealable. As to (b), rulings substantially affecting the shape of the hearing and separate from the hearing itself will be appealable, but rulings given in the course of a hearing or as part of the trial conduct or management process will be unappealable.
[17] This case could be considered in terms of that analysis, but there is here the additional complication which is suggestive of a fourth category: what is sought to be appealed on this occasion, is an interlocutory ruling in the course of an appeal before another appellate body.
[18] What Mr Hardie is seeking to appeal is the decision of Judge Travis on the appeal to the Employment Court that the hearing of the substantive appeal be vacated, that a separate hearing of the application for leave be held, and also various questions and the outcomes arising out of the determination on that application, by Judge Travis.
[19] We have substantial reservations as to whether it is appropriate to seek to advance to this Court an appeal against an interlocutory decision of the Employment Court as to how the appeal to that Court is to be advanced.
[20] However, we note that the 1991 Act has been superseded so that this issue is moot, as one of principle; it is difficult to see that any other appeal could be affected by our views on this matter; and neither counsel was properly prepared, before us, to argue these issues. It is therefore, not strictly necessary for us to resolve the relationship between s 66 and interlocutory appeals within other appellate regimes.
[21] As it transpires, on any view of the matter, there is a more uncontentious and direct route of dealing with what is presently before us, to which we now turn.

A question of law for determination?

[22] It is elementary that under s 135 Mr Hardie can only appeal with respect to a “question of law”.
[23] We pressed Mr Hardie as to what the specific question of law is that he was seeking the decision of this Court on. His response was that the decision of the Employment Court Judge was irrational in that, properly considered, the Judge could not have reached the view that Mr Hardie had not acted with reasonable diligence on his application; and that there were no exceptional circumstances why Mr Hardie should be able to advance his fresh issues and material, on the Employment Court appeal.
[24] The question sought to be advanced fails at every level.
[25] In the first place, it appears to us on a fair reading of the trial material, that Mr Hardie was always aware of the general nature of Dr Round’s defence, and that he could not fairly say that he had been “ambushed”.
[26] Secondly, even if that were not so as to the pleadings, in a situation such as the present, where one party seeks to re-open - essentially on a further evidence basis - what was advanced at the hearing, the usual very stringent tests would normally apply. And further to that, this is not a case where Mr Hardie availed himself of any of the avenues which are normally open to counsel where they say they have been taken by surprise: an application for an adjournment, or to call rebuttal evidence, for instance.
[27] Thirdly, the discretion exercised by Judge Travis was of a character routinely to be dealt with, and particularly within the province of, the Judge in the lower court. It would be rare indeed, and only on the clearest demonstration that the Judge was plainly wrong, that this Court would intervene in a decision of that character.
[28] Fourthly, and most importantly within the statutory context of this appeal, the question as framed raises no point of law for determination by this Court. It is just another illustration of an attempt to dress up, as a question of law, Mr Hardie’s dissatisfaction with the decision actually arrived at by Judge Travis.

Conclusion

[29] The appeal is dismissed.
[30] Dr Round will have costs of $3,000 together with his usual disbursements.

Solicitors:
Simpson Grierson, Auckland for Respondent

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