B (CA671/2020) v ALA [2021] NZCA 229 (3 June 2021)

Last Updated: 8 June 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA671/2020 [2021] NZCA 229

	BETWEEN	B (CA671/2020) Applicant
	AND	ALA Respondent

Court:	Miller and Clifford JJ
Counsel:	Applicant in person M P Ward-Johnson for Respondent
Judgment: (On the papers)	3 June 2021 at 11.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to apply for leave to appeal is declined.
2. The application for non-publication orders is declined.

100. There is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

Introduction

• [1] B applies for an extension of time to apply for leave, and for leave, to appeal against a decision of the Employment Court delivered on 6 August 2019.^[1]

Background

• [2] These applications have an extensive background. In summary, in April 2017 this Court declined similar applications by B to challenge, out of time, a costs judgment of the Employment Court. That costs judgment was made in proceedings in which the Employment Court had made extensive non-publication orders and in which the previous determinations of the Employment Relations Authority and the judgments of the Employment Court had, accordingly, been issued in anonymised form.^[2]
• [3] It would appear that the existence of those non-publication orders was, however, not drawn to this Court’s attention on that occasion,^[3] and its judgment declining those applications (the 2017 leave decision) did not anonymise the names of B and ALA.
• [4] ALA subsequently applied for a non-publication order in respect of the 2017 leave judgment. In a minute of 17 June this Court declined that application, observing:

In the absence of a compelling ground, which is not apparent from counsel’s memorandum, this Court will not suppress publication of a judgment which has been delivered and published.

• [5] Relying on the fact of the publication of the 2017 leave decision in that non‑anonymised form, B has now applied unsuccessfully on two occasions to the Employment Court for variation of the original non-publication orders.
• [6] The judgment of the Employment Court B now seeks to appeal is the second of those judgments, released by that Court on 6 August 2019.^[4] The Employment Court reasoned the fact alone of the publication of the 2017 leave decision in a non‑anonymised form was not, of itself, any reason for the Employment Court to vary its non-publication orders.^[5]
• [7] The 28-day time period for filing an application for leave to appeal that decision expired on 3 September 2019.^[6] B filed these applications on 17 November 2020.

Analysis

• [8] This application for an extension of time is governed by rr 5(2) and 16A of the Court of Appeal (Civil) Rules 2005. In exercising our discretion, we must take primary account of the interests of justice. The factors relevant to that inquiry are the length of the delay and its reasons; the parties’ conduct, the extent of any prejudice caused by the delay; the respective merits of the appeal; and the existence or otherwise of any issues of significance to the parties or broader public importance.^[7]
• [9] B explains his considerable delay in making these applications principally by reference to the impact on him of bankruptcy proceedings initiated by the respondent. B also says no prejudice or hardship to the respondent has arisen as a result of that delay, and the issues he raises involve questions of law that are of significant personal and public importance.
• [10] Given the considerable delay, we do not find B’s explanation of it persuasive. But, we acknowledge, in the circumstances no particular prejudice would appear to have been occasioned to the respondent, other perhaps than a measure of inconvenience.
• [11] In our judgment, however, the merits — or more accurately the lack of merits — associated with the proposed appeal are very much against B. B identifies some 14 legal issues which, he says, merit the grant of leave.^[8] In a supplementary memorandum, B urges us to consider each and every one of those individually.
• [12] We are satisfied that it is neither necessary nor appropriate to do so. Rather our assessment is that none of those issues raise a question of law of sufficient public or private importance even if — which is not clear — they raise any question of law. Rather they are challenges to the status of the non‑publication orders, following the publication of the 2017 leave decision. Accordingly, B would argue the Employment Court was wrong to decline the requested variation.
• [13] We are satisfied there is no legal basis for that argument.
• [14] We acknowledge that this Court’s 2017 leave decision did result in the names of B and ALA appearing on a document on the public record. We also acknowledge that this judgment was published in its non-anonymised form on Judicial Decisions Online (JDO) and the New Zealand Legal Information Institute (NZLII), two publicly available legal databases.
• [15] That aside, on this and each other occasion on which this Court and the Supreme Court have dealt with issues in these proceedings, the judgments have been anonymised. The release of the 2017 leave decision is, therefore, of limited publication significance. Nor, as the Employment Court determined in declining B’s application, does that publication affect the status and binding force of that Court’s non‑publication orders. That fact was emphasised by the Supreme Court’s reference to those orders on the face of its judgment declining B leave to appeal the Employment Court’s decision granting non-publication orders.^[9] B’s proposed appeal against the 6 August 2019 decision of the Employment Court is, accordingly, without merit.
• [16] In opposing B’s application, the respondent sought non-publication orders from this Court. It would be unusual for this Court to grant such orders. Rather, and as this Court has done previously in these proceedings, we have anonymised this judgment.

Result

• [17] The application for an extension of time to file leave to appeal is declined.
• [18] The application for non-publication orders is declined.
• [19] There is no order as to costs.

Solicitors:

---

^[1] ITE v ALA [2019] NZEmpC 93.

^[2] B has subsequently been fined a total of $19,500, and sentenced to 21 days’ imprisonment under a committal order, by the Employment Court for breaches of those non-publication orders and the underlying confidential matters.

^[3] That was not the case on an earlier occasion relating to an application for leave to appeal arising in those proceedings: B v ALA [2016] NZCA 385.

^[4] ITE v ALA, above n 1.

^[5] At [10].

^[6] Employment Relations Act 2000, s 214(2).

^[7] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]–[39]. Although Almond v Read was decided in the context of an application for an extension of time under r 29A of the Court of Appeal (Civil) Rules, it has been applied in applications under r 43: Sharma v Wati [2021] NZCA 220 at [4]. We consider the same principles would also apply equally to applications under r 16A.

^[8] These 14 legal issues were framed as follows: Excluding the “naming of parties” from non‑publication analysis is flawed; inconsistency with the Employment Relations Act; disregarding higher court and public domain documents; whether the judgment is substantive is irrelevant; lack of case law; legal inconsistency with the judgment of Judge Corkill; Judge Corkill’s bias to ALA; no evidence of intent used to make arbitrary conclusions; judgment outcomes bind lower courts, not the other way around; the Employment Relations Act does not allow non-publication orders from a higher court to be overridden based on compliance orders of the Employment Court; no allowance in law for Employment Court to review non-publication request in the Court of Appeal; operation of “open court” and confidentiality; the basis on which non-publication orders are made is clearly established by case law; and failure to take into account latest public interest factors.

^[9] B (SC18/2017) v ALA [2017] NZSC 51.