Wade v Hume Pack-N-Cool Limited [2011] NZCA 421 (29 August 2011)

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Wade v Hume Pack-N-Cool Limited [2011] NZCA 421 (29 August 2011)

Last Updated: 8 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/2011 [2011] NZCA 421

BETWEEN ERROL HARRISON WADE Applicant

AND HUME PACK-N-COOL LIMITED Respondent

Hearing: 23 August 2011

Court: Ellen France, Randerson and Harrison JJ

Counsel: Applicant in person M J Sharp for the Respondent

Judgment: 29 August 2011 at 3.30 pm

JUDGMENT OF THE COURT

1. The application for leave to appeal is dismissed.
2. Mr Wade is ordered to pay Hume costs as for a standard application for leave to appeal on a band A basis together with usual disbursements.
   

REASONS OF THE COURT

(Given by Harrison J)

[1] Errol Wade has applied for leave to appeal under s 214 of the Employment Relations Act 2000 against a decision of Judge Travis in the Employment Court,[1] dismissing his application to reinstate his discontinued challenge to a determination of the Employment Relations Authority (the ERA) in favour of the respondent,[2] Hume Pack-N-Cool Ltd.
[2] The factual background is as follows. Mr Wade was employed by Hume Pack-N-Cool Ltd (Hume), a Bay of Plenty packing and coolstore company, for some years. In early January 2004 Hume raised with Mr Wade concerns that he was allowing other people to buy petrol on his company fuel card. Mr Wade denied any wrongdoing and immediately countered with a claim for outstanding wages and expenses to a total of over $1 million.
[3] On 12 January 2004 Mr Wade met with Hume’s representatives for the purposes of settling his claim. He alleges Hume agreed to pay $70,000 in satisfaction of his claim. Hume asserts that the parties agreed on a figure of $40,000 which was duly paid in March 2004. According to Mr Wade, this payment was in part settlement only, with a balance of $30,000 remaining due and owing.
[4] In 2007 Mr Wade applied to the ERA for a compliance order that Hume pay $30,000 of unpaid wages and other sums. On 16 October 2007 the ERA upheld Hume’s defence that the parties had settled Mr Wade’s claim for $40,000 and dismissed Mr Wade’s application. On 8 November 2007 he lodged a challenge to the ERA’s decision with the Employment Court. He was represented by counsel. A fixture was allocated for 14 and 15 August 2008.
[5] At a meeting on 4 August 2008 counsel advised Mr Wade to abandon his challenge; in exchange, counsel believed, Hume would be unlikely to pursue Mr Wade for costs awarded in the ERA. Mr Wade does not dispute that he accepted counsel’s advice. But he now says he was pressured by his former counsel into following that course.
[6] Counsel filed a notice of discontinuance in the Employment Court on 6 August 2008 which the Registry treated as a withdrawal of Mr Wade’s challenge. Mr Wade then pursued unsuccessfully a complaint of professional misconduct against his former counsel with the New Zealand Law Society (NZLS). On 3 December 2009, following receipt of a letter from the NZLS advising that the Employment Court had jurisdiction to reinstate an abandoned challenge, Mr Wade applied for reinstatement.
[7] Mr Wade was represented by new counsel on the application to the Employment Court. Following a defended hearing, Judge Travis found that the notice of discontinuance filed by Mr Nabney was valid and effective;[3] and that Mr Nabney acted with Mr Wade’s authority in filing the notice.[4] However, despite this finding, the Judge accepted that he had an inherent power to reinstate withdrawn or discontinued proceedings “in appropriate cases where there would otherwise be a miscarriage of justice”.[5]
[8] Judge Travis found that Mr Wade would not suffer a miscarriage of justice if his challenge were not reinstated. That was because the merits of his claim were weak; Mr Wade’s challenge to the ERA’s decision was discontinued by his duly authorised representative acting with Mr Wade’s authority; and that Mr Wade’s real ground for seeking to reinstate his challenge was to pursue a collateral attack on the credibility of Hume’s witnesses in making allegedly false allegations of Mr Wade’s theft of petrol – which was not an issue raised before the ERA.[6]
[9] Mr Wade now represents himself. He applies for leave on the ground that he is “blameless” and is entitled to an ultimate finding that Hume’s witnesses be found guilty of perjury. He says he has evidence which shows conclusively that he did not steal petrol from Hume. He says that Judge Travis did not appreciate that a miscarriage would occur if his challenge was not reinstated because the lawyers involved were keeping crucial information about Hume’s perjury from the Employment Court. Significantly, as Mr Sharp emphasises for Hume, Mr Wade’s submissions in this Court are silent on the merits of the issue which was the subject of his challenge to the ERA’s decision – he does not refer to his underlying allegation of Hume’s breach of the settlement agreement by failing to pay an additional $30,000.
[10] It is well settled that this Court’s jurisdiction to grant leave to appeal against a decision of the Employment Court is limited by statute. We may grant leave only if in our opinion the question of law involved in an appeal is one that by reason of its general or public importance or for any other reason ought to be submitted for decision.[7]
[11] We agree with Mr Sharp that Mr Wade’s application does not raise a question of law. He is now attempting to raise a factual question which is collateral and unrelated to his originating application to the ERA for a compliance order. We endorse Judge Travis’ observation that Mr Wade does not suggest that Hume’s alleged perjury was related to the terms of the settlement agreement. In any event, Mr Wade does not submit that Judge Travis erred in his application of the relevant principles when dismissing Mr Wade’s application for reinstatement.
[12] Mr Wade’s application for leave to appeal is dismissed. He must pay costs to Hume on a standard band 2B basis together with usual disbursements.

Solicitors:
Holland Beckett, Tauranga for Respondent

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[1] Wade v Hume Pack-N-Cool Ltd [2011] NZEmpC 57.
[2] Wade v Hume Pack-N-Cool Ltd ERA Auckland AA322/07, 16 October 2007.
[3] At [39].
[4] At [46].
[5] At [53].
[6] At [53].
[7] Employment Relations Act 2000, s 214(3).