Morgan v Whanganui College Board of Trustees [2013] NZCA 587 (27 November 2013)

Last Updated: 4 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA498/2013 [2013] NZCA 587
BETWEEN	KENNETH LEE MORGAN Applicant
AND	WHANGANUI COLLEGE BOARD OF TRUSTEES Respondent

Hearing:	26 November 2013
Court:	Randerson, French and Miller JJ
Counsel:	D Burton and F Hills for Applicant P B Churchman QC and E J Unsworth for Respondent
Judgment:	27 November 2013 at 4:00 pm

JUDGMENT OF THE COURT

Leave to appeal is granted on the following question:

Was the Employment Court correct in law to determine that the relevant communications between the parties or their representatives were protected by privilege or were otherwise inadmissible?
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[1] We give brief observations to explain the general scope of the identified question of law.
[2] First, it appears to us that the judgment of the Chief Judge under appeal^[1] is arguably inconsistent with the judgment of the Employment Court given by Judge Couch in Bayliss Sharr v McDonald^[2] as to the need for a dispute to have arisen before communications may be protected by privilege and as to what may constitute a dispute for these purposes.
[3] Second, there is a potential issue as to whether a more nuanced approach is required in employment law cases where statements made in privileged communications may constitute evidence of constructive dismissal.
[4] Third, we envisage the question of law as embracing the issue of whether any of the relevant communications are capable in law of constituting any of the established exceptions to the protected status of privileged communications.
[5] Fourth, we expect that the appeal will be determined on the basis of the agreed statement of facts which was before the Employment Court although any final decision in that respect must lie with the panel hearing the appeal.

Solicitors:
Cullen – The Employment Law Firm, Wellington for Applicant
Horsley Christie, Whanganui for Respondent

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^[1] Lee Morgan v Whanganui College Board of Trustees [2013] NZEmpC 117.

^[2] Bayliss Sharr v McDonald [2006] ERNZ 1058.