[1] The present appeal concerns Judge Couch’s rejection of the appellant’s application to the Employment Court to strike out review proceedings issued by Mr Kenneth Rawlings. At issue in the review proceedings was the propriety of an Employment Relations Authority (“the Authority”) order deeming Mr Rawlings’ statement of problem to have been withdrawn. Before us, the key issue was whether it was open to Mr Rawlings to commence review proceedings.
[2] Later in this judgment, we will address the issue just identified but, before we do so, we will discuss the factual background, identify the key statutory provisions, point out possible errors in the approach taken by the Authority and explain why the Employment Court’s supervisory jurisdiction is not precluded by statutory restrictions associated with procedural rulings.
[3] We note that in the judgment of this Court granting leave to appeal, Mr Francis Wall, the advocate who acted for Mr Rawlings before the Authority and the Employment Court, was granted permission to be Mr Rawlings’ McKenzie friend at the hearing of the appeal. Mr Rawlings did not attend the hearing of the appeal and Mr Wall wished to present submissions directly on his behalf. This is not the role of a McKenzie friend but in the particular circumstances of the case and without opposition from Ms Inglis who appeared for the Authority, we allowed him to do so. No one should assume this indulgence will be granted in any future case.

Factual background

[4] Mr Rawlings was employed by Gabbett Machinery NZ Ltd. On 31 March 2005 he was given notice that his employment would terminate on 30 April 2005. On 4 May 2005 Mr Rawlings, through his agent/advocate, Mr Wall, lodged a statement of problem with the Authority in Christchurch. The statement of problem is written in the first person and from the perspective of Mr Wall rather than of Mr Rawlings. Mr Wall made it clear that Mr Rawlings was challenging his dismissal and that he was seeking interim reinstatement. But he also set out a summary of his views about employment law. In the course of this exercise, Mr Wall complained:

In the past whenever I have attempted to extrapolate on law before the Christchurch outlet [of the Employment Relations Authority] for the benefit of my clients I have been met with a despotic, infantile attitude of ignorance, utter disbelief, prejudice, and retribution.

The proceedings so initiated were allocated the number CEA 132/05.

[5] On 9 May 2005 the Employment Relations Authority issued a notice of directions, which included:

3. In CEA 132/05, the statement of problem contains much irrelevant material about Mr Wall’s views on the law and some abusive material about the Christchurch Employment Relations Authority.

4. CEA 132/05 will not be investigated until an amended statement of problem has been lodged devoid of Mr Wall’s views about the law and without the views and the abusive comments about the Christchurch Employment Relations Authority. The respondent, Gabbett Machinery Ltd, is not required to lodge a statement in reply until directed to do so by further order of the Authority.

CEA 132/05 will be treated as withdrawn if no amended statement of problem has been lodged within 4 weeks of today’s date.

[6] No amended statement of problem was lodged. As a result, on 9 June 2005 the senior support officer to the Employment Relations Authority wrote to Mr Wall in these terms:

I refer to the direction of the Authority dated 9 May 2005 and in particular paragraph number 4.

There has been no response to the requirement in this paragraph. The Authority proceedings are thereby deemed to be withdrawn.

[7] The direction and later letter made it clear that the Authority would not further investigate the claim identified in the statement of problem lodged by Mr Wall on behalf of Mr Rawlings. But presumably the Authority, if asked, would have been prepared to consider exercising the power under cl 4 of the Second Schedule to the Employment Relations Act 2000 to re-open the investigation. We note that the Second Schedule sets out the procedural rules that apply to the Authority. Clause 4 relevantly provides:

4 Reopening of investigation

(1) The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previously made.

Likewise, because the deemed withdrawal did not involve a substantive decision on the merits of the case, it would have been open to Mr Rawlings to file a further statement of problem. As to this, we note that the case is still within the time limit of three years provided for under s 114(6).

[8] Rather than deal with the situation on one or other of the pragmatic bases just identified, Mr Rawlings, via Mr Wall, lodged challenge proceedings with the Employment Court pursuant to s 179 of the Act. But on 7 July 2005 the Registrar of the Employment Court wrote to Mr Wall telling him:

It is my opinion that you are not able to challenge, by way of section 179, an action by a staff member of the Authority or an Authority Member. You may wish to consider section 194 “Application for review” and I would also draw your attention to section 184 “Restriction on review”.

Your application, together with the $200 which accompanied it, is therefore returned to you.

[9] Mr Wall took up the Registrar’s perhaps not particularly pressing invitation to lodge review proceedings and filed, on behalf of Mr Rawlings, a statement of claim seeking review of the Authority’s decision to deem the claim to have been withdrawn. It is fair to say that the statement of claim suffered from the same sort of defects as the Authority identified in the initial statement of problem. As well, and inappropriately, the application for review did not name Gabbett Machinery as a respondent.
[10] It is clear from the material which Mr Wall has placed before us that he has previously come to the attention of the Authority and Employment Court. It is likewise clear that this provided the context for the directions issued by the Authority on 9 May 2005.

The key statutory provisions

[11] Section 179 of the Act provides:

179 Challenges to determinations of Authority

(1) A party to a matter before the Authority who is dissatisfied with the determination of the Authority or any part of that determination may elect to have the matter heard by the Court. ...

(5) Subsection (1) does not apply—

(a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and

(b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.

[12] Section 194 provides:

194 Application for review

(1) If any person wishes to apply for review under Part 1 of the Judicature Amendment Act 1972, or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal to exercise, or proposed or purported exercise by—

(a) the Authority; or

(b) an officer of the Authority or the Court; or

...

of a statutory power or statutory power of decision (as defined by section 3 of the Judicature Amendment Act 1972) conferred by or under this Act or any of the provisions of Parts 5, 6, 7, or 7A of the State Sector Act 1988, the provisions of subsections (2) to (4) of this section apply.

...

(3) Where a right of appeal (which includes, for the purposes of this subsection, the right to make an election under section 179) is conferred on any person under this Act or the State Sector Act 1988 in respect of any matter, that person may not make an application under subsection (1) in respect of that matter unless any appeal brought by that person in the exercise of that right of appeal has first been determined.

[13] Section 184 provides:

184 Restriction on review

(1) Except on the ground of lack of jurisdiction or as provided in section 179, no determination, order, or proceedings of the Authority are removable to any court by way of certiorari or otherwise, or are liable to be challenged, appealed against, reviewed, quashed, or called in question in any court.

(1A) No review proceedings under section 194 may be initiated in relation to any matter before the Authority unless—

(a) the Authority has issued final determinations on all matters relating to the subject of the review application between the parties to the matter; and

(b) (if applicable) the party initiating the review proceedings has challenged the determination under section 179; and

(c) the Court has made a decision on the challenge under section 183.

(2) For the purposes of subsection (1), the Authority suffers from lack of jurisdiction only where,—

(a) in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in question; or

(b) the determination or order is outside the classes of determinations or orders which the Authority is authorised to make; or

[14] We have emphasised (by italics) the subsections which are primarily relevant to the appeal.

Possible errors in the approach adopted by the Authority

[15] The direction of the Authority was akin to the sort of “unless order” which the High Court in practice employs only as a last resort and where there has been a history of failure to comply with other orders, see Hytec Information Systems Ltd v Coventry City Council [1997] 1 WLR 1666 at 1674 (CA). Such orders are available in the Employment Court under r 6 of the Employment Court Regulations 2000 but are, no doubt, sparingly used.
[16] As of 9 May 2005, there had been no history of failure on the part of Mr Rawlings to comply with other orders or directions. Presumably the Authority took the view that the actions of Mr Wall in other cases provided a broader justificatory context. In his written submissions on behalf of Mr Rawlings, Mr Wall put the worst possible interpretation on the actions of the Authority: that the direction and deemed withdrawal were a result of an official vendetta against him personally and were thus affected by bad faith (cf s 184(2)(c)). We are inclined to see the issue in rather different terms, whether possibly inappropriate conduct by Mr Wall in cases in which Mr Rawlings was not involved justified the abruptness of the unless direction in Mr Rawlings’ case. This issue might be thought to give rise to a legitimate argument, at least in the context of a challenge under s 179.
[17] Although the deemed withdrawal was probably of limited intended effect, it is doubtful whether it was within the powers of the Authority.
[18] Despite its infelicities, the statement of problem identified a claim by Mr Rawlings within ss 103(1)(a) and 113 of the Act that he had been unjustifiably dismissed by Gabbett Machinery. We presume (although we do not know) that Mr Rawlings had earlier validly raised a personal grievance in accordance with s 114. As well, the statement of problem contained an application for interim reinstatement under s 127.
[19] The Act does not confer on the Authority an explicit power to make unless directions or to deem proceedings abandoned for non-compliance. In this regard, the relevant provisions are:

157 Role of Authority

(1) The Authority is an investigative body that has the role of resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities.

(2) The Authority must, in carrying out its role,—

(a) comply with the principles of natural justice;

...

(3) The Authority must act as it thinks fit in equity and good conscience, but may not do anything that is inconsistent with this Act or with the relevant employment agreement.

160 Powers of Authority

(1) The Authority may, in investigating any matter,—

...

(f) follow whatever procedure the Authority considers appropriate.

(2) The Authority may take into account such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.

173 Procedure

(1) The Authority, in exercising its powers and functions, must—

(a) comply with the principles of natural justice; and

(b) act in a manner that is reasonable having regard to its investigative role.

[20] As noted, the Second Schedule provides for the procedure to be adopted by the Authority. This schedule too does not expressly confer the power to make unless directions. Clauses 13 and 14 provide:

13 No invalidity for want of form

No determination or order of the Authority, and no matter before the Authority, is to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.

14 Withdrawal of matter

Where any matter is before the Authority, it may at any time be withdrawn by the applicant or appellant.

[21] It is thus arguable that it was the duty of the Authority to resolve the problem, not to refuse to hear the dispute. Sections 160(1)(f) and 173(1)(b) arguably do not provide a statutory basis for declining to exercise the relevant statutory jurisdiction in this case. Further, the concept of a deemed withdrawal may be inconsistent with cl 14 of the Second Schedule. As well, cl 13 suggests that the sort of defects which the statement of problem exhibits did not warrant the proceedings being held to be bad for want of form.
[22] All in all there is scope for much argument about the appropriateness of the unless direction. Given that the unless direction provided the basis upon which the claim was deemed to have been withdrawn, that deemed withdrawal may well also be challengeable. But as Gabbett Machinery is not a party to the appeal, it would be inappropriate to go any further.

Why the Employment Court’s supervisory jurisdiction is not precluded by statutory restrictions associated with procedural rulings

[23] The Act provides for the Employment Court to supervise the Authority either by challenge under s 179 or by way of review under s 194. The Act makes it clear, albeit in different ways, that the general policy of the Act is against such supervision being exercised in relation to procedural rulings. It will be recalled that under s 179(5), the right of challenge provided by s 179(1) does not apply to:

(a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and

(b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.

We note that there are corresponding provisions in s 177(4) (which provides for the Authority to refer questions of law to the Employment Court) and s 178(6) (dealing with removal of proceedings from the Authority to the Court). As well, s 184(1A) provides:

(1A) No review proceedings under section 194 may be initiated in relation to any matter before the Authority unless—

(a) the Authority has issued final determinations on all matters relating to the subject of the review application between the parties to the matter; and

(b) (if applicable) the party initiating the review proceedings has challenged the determination under section 179 ... .

[24] Further, s 143 of the Act indicates that:

The object of this Part is to establish procedures and institutions that —

(fa) ensure that investigations by the specialist decision-making body are, generally, concluded before any higher court exercises its jurisdiction in relation to the investigations ... .

And s 188(4) of the Act provides, in relation to the Employment Court, that:

(4) It is not a function of the Court to advise or direct the Authority in relation to—

(a) the exercise of its investigative role, powers, and jurisdiction; or

(b) the procedure—

(i) that it has followed, is following, or is intending to follow; or

(ii) without limiting subparagraph (i), that it may follow or adopt.

[25] The argument advanced by Mr Quigg as amicus was that the procedural overlay to the actions of the Authority was not inconsistent with review under s 184(1A) but was enough to engage s 179(5), with the result that there was no right of challenge under s 179(1). So on his argument, the actions of the Authority in this case:

(a) Amount to “final determinations on all matters relating to the subject of the review application” so as to satisfy the jurisdictional requirement for review provided for in s 184(1A)(a); but

(b) Nonetheless are, for the purposes of s 179(5), merely “a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow”.

This seems to us to be a somewhat awkward approach to the proper construction of the two sections.

[26] We are satisfied that ss 179(5) and 184(1A) are intended to prevent challenge or review processes disrupting unfinished Authority investigations. But once the investigation is over and a determination has been made, there is no reason for limiting the challenge and review jurisdictions of the Employment Court. If the procedure adopted by the Authority has had a decisive influence on result (eg by refusing an adjournment and proceeding in the absence of a witness), the affected party, in the course of questioning that result, will be entitled to put in issue that procedure.
[27] Consistently with that approach we are of the view that the actions of the Authority in the present case are, for the purposes of s 179(5), not just a determination about procedure. Accordingly that subsection would not bar a challenge to the course taken by the Authority. We are likewise satisfied that s 184(1A)(a) does not preclude review proceedings. Both conclusions rest on the premise that, in substance, the Authority has determined the proceedings which were initiated by the statement of problem lodged on behalf of Mr Rawlings.

Was it open to the respondent to issue review proceedings?

The approach of Judge Couch

[28] In the judgment under appeal Judge Couch concluded that:

(a) The “unless direction” was susceptible to challenge under s 179(1);

(b) The review proceedings were not precluded by s 194(3); and

(c) Likewise the review proceedings were not precluded by s 184(1A).

[29] On the first of these points the Judge expressed his reasons in this way:

[81] The concept of a “determination” is an important one under Part 10 of the Act, but it is not defined. The various contexts in which the word is used in the Act, however, offer some guidance.

[82] In s157(1) the Authority’s role is described as “resolving employment relationship problems by establishing the facts and making a determination”. This suggests that determinations are part of the process of resolving employment relationship problems. This is consistent with s161 where the jurisdiction of the Authority is declared to be “to make determinations about employment relationship problems generally”.

[83] Section 161 goes on to say, however, that this includes, in paragraph (s), “determinations under such other powers and functions as are conferred on it by this or any other Act.” The Act confers a wide range of powers on the Authority. These include the powers conferred by s160 and by clauses 4, 5, 7, 8 and 12 of the Schedule 2 to the Act. It is clear from the range of purposes and functions served by those powers that “determinations” may be made about matters of procedure as well as substance. This is consistent with s179(5) which specifically refers to determinations “about procedure”.

...

[86] I conclude that, in the context of s179(1) of the Employment Relations Act, the term “determination” should be given a wide meaning encompassing any exercise by the Authority of a power of decision affecting proceedings before it.

[87] Turning to the directions of the Authority in this case, their effect was to bring the proceedings to an end. In that way, they vitally affected the proceedings before the Authority.

[88] As to the document recording those directions, it substantially complies with the requirements of s174 in that it states the facts giving rise to the directions, the orders made and, implicitly, the reasons for making those orders. It is also notable that the document is both signed and sealed by the Authority. I infer from this that the Authority itself saw the document as recording information important to the parties and intended to be binding on them.

[89] I conclude that the directions given by the Authority on 9 May 2005 were a determination for the purposes of s179(1).

He also concluded that s 179(5) did not apply; this for reasons which are consistent with the approach we expressed in [23] – [27] above.

[30] He held that s 194(3) was irrelevant:

[34] ... Section 194(3) does not provide that the existence of a right of appeal precludes an application for judicial review unless and until the right of appeal is exercised. What s194(3) requires is that any appeal which has been brought must be determined before an application for review may be made. If a right of appeal exists but is not exercised, the existence of that right does not operate as a bar to an application for judicial review.

[35] In this case, the plaintiff has not exercised any right he may have to appeal the directions of the Authority by way of an election under s179. Ironically, that was what he initially attempted to do but was dissuaded from doing by the Registrar’s letter to Mr Wall of 7 July 2005. It follows that s194(3) has no application in this case.

[31] His conclusion as to s 184(1A) essentially proceeded on the basis that the key words in s 184(1A) for these purposes were “in any matter before the Authority”. He held that these words confined the effect of s 184(1A) to cases currently before the Authority. As the Authority had in effect determined Mr Rawling’s personal grievance claim, it was no longer before the Authority.
[32] On his approach therefore there was a right of challenge, but the right to proceed by review was not excluded by ss 194(3) or 184(1A).

Our approach

[33] We recognise that s 184(1A) is not entirely felicitously drafted.
[34] To make sense of the subsection, it is necessary to recognise that the phrase “any matter before the Authority” in s 184(1A) has, in substance, the same meaning as the rather different words which appear in s 184(1), “determination, order, or proceedings of the Authority”. This means that the phrase “any matter before the Authority” does not mean “any matter which is currently before the Authority” as the Judge held, but rather “any matter which is or has been before the Authority”. On the Judge’s approach, s 184(1A) only applies to a case which remains before the Authority despite a “final determination” of the kind contemplated by s 184(1A)(a). There would thus be few, if any, cases to which the subsection could apply.
[35] In s 184(1A)(b), the words “if applicable” mean that the requirement to challenge the determination applies only if there is a right to issue challenge proceedings.
[36] When construed in this way, the purpose of the subsection is clear. It is to prevent review proceedings being filed until the Authority is quit of the case and any rights of challenge have been exercised. In virtually every case, the challenge procedure (especially where it proceeds de novo) can be expected to tidy up the sort of problems which might otherwise have warranted review.
[37] As to this, we think it relevant to refer to the explanatory note to the Employment Relations Law Reform Bill which was the precursor to the 2004 Amendment of the Employment Relations Act which resulted in the enactment of what is now s 184(1A). The explanation of the new subsection is in these terms:

Section 184 restricts judicial review of determinations, orders, or proceedings to the Authority to lack of jurisdiction (within a restricted definition) or as provided in section 179. The amendment further restricts the right to take review proceedings in relation to any matter before the Authority unless—

The Authority has issued final determinations on all matters relating to the subject of the review application between the parties to the matter; and
The party initiating the review proceedings has challenged the determination under section 179; and
The Court has made a decision on the challenge under section 183.

[38] Reading ss 194(3) and 184(1A) together makes it clear that the right of challenge provided for under s 179(1) is the preferred method of challenging decisions of the Authority. In other words, if there is a right of challenge, review proceedings are excluded unless or until the right of challenge has been exercised.
[39] Before us Mr Wall accepted that the effect of s 184(1A)(a) is that review proceedings must be deferred until the Authority is finished with a case. He then contended, however, that in cases where the complaint is of “lack of jurisdiction” as defined in s 184(2) the person making the complaint can choose whether to use the challenge process or to proceed by way of review. We were not able, in the course of argument, to obtain from Mr Wall a method of reconciling this approach with the language of s 184(1A)(b) and (c). The effect of s 184(1) and (2) is that the review approach contended for by Mr Wall, s 184(1A)(b) and (c) are without effect.
[40] Mr Wall’s argument also invoked ideas of voidness. He contended that a determination made without jurisdiction is no determination at all. It is elementary that arguments as to jurisdiction can be considered on an appeal (and undoubtedly on a challenge under s 179) and we did not understand Mr Wall to dispute this. Given that s 184 proceeds on the basis that review can only proceed on the ground of lack of jurisdiction, s 184(1A)(b) and (c) have the necessary consequence that such review is deferred until the challenge process has been utilised.
[41] On our approach, the correctness or otherwise of the Judge’s conclusion that the challenge procedure was available is the decisive issue in the case.
[42] We have already held that the procedural overlay to the approach taken by the Authority does not engage s 179(5). For the sake of completeness we record that we are satisfied that determinations which are able to be challenged under s 179(1) are not confined to decisions on the substantive merits of a particular case. This is apparent from the way in which “determination” is used is used in s 179(5). On this aspect of the case we agree broadly with the approach taken by the Judge.
[43] Accordingly there was a right of challenge under s 179(1) with the consequence that the review proceedings are inconsistent with s 184(1A) and must be struck out.

Additional comments

[44] It is a matter of regret that the claim by Mr Rawlings, which included a request for interim reinstatement has, for nearly three years, been caught up in a procedural imbroglio.
[45] As is apparent, we have reservations about the appropriateness of the unless direction made by the Authority. We also are of the view that it was inappropriate for the registrar of the Employment Court to refuse to accept the challenge proceedings initially lodged by Mr Wall. But it is right to recognise that the fundamental problems in this case lie at the door of Mr Wall. The statement of problem was expressed in inappropriate terms. The sensible course of action was always to lodge an appropriately expressed statement of problem. And this could have been done even after the letter of 9 June 2005. As well, we confess to surprise at the stance taken by Mr Wall on behalf of Mr Rawlings in this Court. In reality Mr Rawlings has far better prospects of success in challenge proceedings than he would on review proceedings.
[46] What Mr Rawlings should do now is immediately file a fresh statement of problem, without the irrelevant and abusive content to which the Authority rightly took exception back in May 2005.

Disposition

[47] The appeal is allowed. The judgment of the Employment Court is set aside. The review proceedings are struck out. The Authority did not seek costs. That was a correct stance, as part of the blame for what has occurred can be attributed to the Authority’s wrongful “unless” order and the erroneous advice given by the Registrar of the Employment Court.

Solicitors:
Crown Law Office, Wellington for Appellant
M Quigg, Wellington as Amicus Curiae

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