Gates v Gaze Burt DC Auckland CIV-2010-004-1968 [2012] NZDC 549 (16 April 2012)

Last Updated: 5 January 2020

IN THE DISTRICT COURT AT AUCKLAND

CIV-2010-004-001968

BETWEEN LINDA GATES Plaintiff

AND GAZE BURT Defendant

Hearing: 26 March 2012

Appearances: Plaintiff/Applicant in person Mr M Anderson for Defendant Mr K Thompson for Air New Zealand (non-party)

Judgment: 16 April 2012

DECISION OF JUDGE P A CUNNINGHAM

[ON PLAINTIFF’S APPLICATION FOR NON-PARTY DISCOVERY]

Background

[1] Mr Andrew Clemow is a solicitor with the Law Firm Gaze Burt. He acted for the plaintiff Mrs Linda Gates in Employment Court proceedings she brought against her former employer Air New Zealand. Mrs Gates almost 25-year employment with Air New Zealand ceased when her employment was terminated on 26 April 2002 on the grounds of redundancy.

[2] In May 2002 Mrs Gates raised a personal grievance. It had three parts to it. Firstly, that the redundancy was not genuine; secondly, she had been treated unfairly in the decision to terminate her employment which unfairness constituted unjustifiable disadvantage; and thirdly, that she had been discriminated against on the grounds of employment status.

GATES V BURT DC AK CIV-2010-004-001968 [16 April 2012]

[3] A claim was filed in the Employment Relations Authority (“ERA”) and on 26 April 2004 the Authority recorded Mrs Gates’ concession that the redundancy was genuine and dismissed her claim based on the other two aspects of the personal grievance.

[4] On 24 May 2004 a statement of claim was filed in the Employment Court (“EC”) seeking a hearing de novo of the entire matter that was before the ERA.

[5] An employment advocate acted for Mrs Gates before the ERA and that same advocate initiated the challenge in the Employment Court. Mr Clemow commenced acting for Mrs Gates in May 2005. At that stage there was a date set down in the Employment Court for a hearing. I have seen a decision of Judge Colgan dated 13 July 2005 which sets out the reasons for adjourning the hearing that was set down to commence in the following week.

[6] Mr Clemow had filed Mrs Gates’ brief of evidence on 6 July 2005 and that elicited a response from counsel for Air New Zealand that a focus on allegations of bullying in the work place resulting in a claim of unjustified disadvantage was not raised or pursued in the ERA. Apart from the issue of whether or not the Court should hear this aspect of the claim, Air New Zealand advised that it was not in a position where it could prepare a response to the bullying allegation prior to the trial which was to happen the following week.

[7] That was one of the number of reasons why Judge Colgan adjourned the hearing. The Judge said at paragraph [20]:

I accept that the case of what she describes as “bullying and harassment” at work was not signalled sufficiently until the late receipt of her brief of evidence.

[8] Another reason for adjourning the case included that the statement of claim filed by Mrs Gates’ former representative did not sufficiently meet the requirements for a pleading in the EC. The Judge directed that an amended statement of claim be filed.

[9] The Judge was concerned that the 3 days set down for the case was insufficient. This was a further reason for the adjournment. Next was the fact that Mrs Gates was intending to call a number of other witnesses probably by subpoena whose evidence had not been briefed. Further, that Mrs Gates was likely to apply for legal aid but the application had not been lodged.

[10] Air New Zealand took the point Mrs Gates’ claim to unjustified disadvantage in employment had not been raised in the statutory period after its occurrence which required amendment to the statement of defence and to the statement of claim. Finally, the Judge directed the parties to take part in further mediation.

[11] Mr Clemow says he ceased acting for Mrs Gates in September 2006, I gathered from what was said at the hearing before me that this was due to Mrs Gates’ inability to continue to pay counsel’s fees.

[12] The hearing in the Employment Court did not happen until the week of 10 November 2008 and it took 4 days. Judge Couch delivered his decision on 11 September 2009 and I was provided with a copy of that decision.

The claim in this Court

[13] In the notice of claim filed in this Court Mrs Gates identified at section 3(b) a duty she says Mr Clemow had to act competently. Reference is made to documents numbered 1-72 filed with the notice of claim. There was a further statement saying that Mr Clemow was required to comment on the allegations by counsel for the defendant (Air New Zealand) that the matter was outside the 90-day requirement. Section 3(d) of the notice of claim states that Mr Clemow was responsible for the matter being adjourned and subsequently dragged out, that Air New Zealand has alleged this matter was outside the 90-day time requirement was repeated. The loss claimed was $20,594.13 which is reimbursement of legal costs paid by Mrs Gates to the law firm Gaze Burt.

[14] Included in the documents attached to the notice of claim of Mrs Gates is a letter dated 14 May 2002 from the Employment Disputes Service (who was acting on her behalf) to Air New Zealand. That letter clearly refers to humiliation, bullying and harassment which has constituted disadvantage. Two specific work colleagues of Mrs Gates are named. Mrs Gates says that Mr Clemow failed to mention that the outline of submissions by counsel for Air New Zealand dated 22 January 2004 confirmed that work place bullying was raised at the ERA.

[15] I mention this because it became apparent during the hearing before me that this is one of Mrs Gates’ primary concerns. As is the fact that the Employment Court hearing did not proceed in July 2005.

[16] There was a settlement conference in this Court on 10 April 2011. Following the settlement conference Judge Sharp made a number of directions including that Mrs Gates was to file and serve an amended claim setting out cogently and in full the claim that she makes against Mr Clemow and on which she proposes to proceed.

The amended statement of claim

[17] A document entitled an amended statement of claim dated 17 August 2011 has been filed. It is not an amended statement of claim in the conventional form. It is comprised of a set of dates with notations beside each about what happened on those various dates. The first date is 20 May 2005 when Mr Clemow commenced acting for Mrs Gates. It covers the period up to 30 August 2006 when Mr Clemow ceased acting for Mrs Gates. It continues on for another 4 pages in chronological order up until the time of the filing of this claim and the progress of it through the Court. The last date is 11 August 2011.

[18] Most of the entries beside the dates in the amended statement of claim document which cover the period from May 2005 until September 2006 when Mr Clemow was representing Mrs Gates refer to difficulties in obtaining a grant of legal aid. It appears the legal aid position was complicated by the fact that Mrs Gates received an inheritance. From my reading of the document some of that

money was used to pay an account for Mr Clemow’s services towards the end of 2005. In December 2005 Mr Clemow advised Mrs Gates in a letter that it might be worth reapplying for legal aid.

[19] In March 2006 Mr Clemow was seeking a judicial settlement conference in Employment Court. That appears not to have happened.

[20] The only statements I could identify in the amended statement of claim that amounted to allegations against Mr Clemow were numbers 10 and 11 which recorded that Mr Clemow had an obligation to file a memorandum confirming that what counsel for Air New Zealand was saying about workplace bullying being before the ERA but neglected to do so.

[21] As I understand the position, the fact that workplace bullying was in a letter attached to the statement of problem in the ERA does not mean it formed part of the claim before the ERA. If that is the case there is no substance to this aspect of the current claim before this Court.

[22] Suffice to say that the present amended statement of claim does not in my view adequately inform the defendant of the allegations against it.

This application

[23] This application for discovery against the non-party Air New Zealand seeks the following documents:

1. Copies of all Accounts Payable reorganisation and re- structure proposals from 1 April 2001 to 26 April 2002.
   
2. Copy of Ms Hawkins’ response to the Plaintiff’s email dated 08 August 2001.
   
3. Copy of Ms Hawkins’ response to the Plaintiff’s formal complaint dated 01 November 2001.
   
4. Copy of the two emails from Ms Cosgrove to Accounts Payable Employees post 11 September 2001 advising all Accounts Payable Positions were secure.

5. Copy of the Human Resources Minutes of meetings with Ms Browne, Ms Pulin, Ms Rust and Ms Tauili’ili referred to in the email dated 06 December 2001.
   
   6. Copy of the final re-structure referred to in the Accounts Payable Minute dated 20 February 2002.
      
   7. Copy of annual leave form completed by the Plaintiff for leave commencing 15 March 2002.
      
   8. Copy of Accounts Payable Minutes from 06 March 2002 to 31 December 2001.
      
   9. Copy of the Accounts Payable Restructuring referred to in the email dated 11 April 2002.
      
   10. Confirmation of the date Air New Zealand received the letter from Employment Disputes Services dated 14 May 2002 which raised the Personal Grievance within 90 days of the email dated 23 April 2002.
       
   11. Copy of the Plaintiff’s personnel file referred to in the affidavit of Mr Usherwood dated 23 November 2007.
       

[24] At the hearing Mrs Gates had in her possession a letter dated 18 August 2005 which Mr Clemow had written to Air New Zealand. It was clear from what she said that a large number of documents sought in this application had been sought by Mr Clemow from Air New Zealand on 18 August 2005. I was told that the response at the time was that if the items listed in the letter had existed they no longer did.

[25] I went through all the items in the application with Mr Thompson counsel for Air New Zealand. He advised me as follows. In the Employment Court proceedings Mrs Gates filed two notices requiring Air New Zealand to disclose certain documents. Those were attached to an affidavit in support of Air New Zealand’s opposition to this application by Colin Edward Asherwood dated 27 October 2011. All of the documents now sought by Mrs Gates in this proceeding were sought in one or other of those two notices. They are dated 3 January 2007 and 17 August 2007 respectively.

[26] Mr Thompson responded individually to the documents sought by Mrs Gates in the current application.

1. This document was sought in the 2007 notices and that if they did exist they no longer do or cannot be found.
   
   2. This relates to the claim of bullying and Mr Thompson did not think Air New Zealand had ever seen in.
      
   3. In relation to Mrs Hawkins’ response dated 1 November 2001, Mr Thompson advised that this was disclosed in the Employment Court proceeding.
      
   4. The emails from Mrs Cosgrove post 11 September 2001, Mr Thompson advised that these have been searched for but not located.
      
   5. In relation to minutes of Human Resources meetings referred to in an email dated 6 December 2001, Mr Thompson advised that these had been searched for but not found. There were no minutes that those present at the meeting could recall.
      
   6. Air New Zealand is not aware of any such document referred to number 6.
      
   7. Mr Thompson advised that annual leave forms were not kept but their contents were recorded in a computer and the computer record had been supplied to Mrs Gates in the Employment Court proceedings.
      
   8. In relation to accounts payable minutes 6 March 2002 – 31 December 2002, a search had been mounted to locate these and those that were located were provided to Mrs Gates.
      
   9. No document was found matching the description of the accounts payable restructuring referred to in an email of 11 April 2002.

10. Air New Zealand had not been able to ascertain the date on which the letter of 14 May 2002 was received by Air New Zealand but there was no dispute that it was received.
    
    11. Personnel file – This had never been found. In addition to surmising that it may have been dismantled, there was the additional complication that there had been a shift in premises between the time Mrs Gates ceased working for Air New Zealand and the date of the proceeding.
        

[27] Mrs Gates did not disagree that the documents now sought had been requested before and that the responses outlined by Mr Thompson had been given before.

[28] I refer specifically to Item No. 1 in the application which is a copy of the reorganising and restructure proposal that led to Mrs Gates’ redundancy and Document 11 which referred to Mrs Gates’ personnel file. Air New Zealand’s position is that neither of these documents have been located. Mr Thompson said that one possibility in relation to the personnel file was that it had been taken apart for the purpose of the ERA proceedings and for that reason was no longer in existence. In terms of the reorganising and restructure proposal Mr Thompson said his enquiries revealed that no one had ever seen it.

[29] I can well understand the degree of suspicion that Mrs Gates might have about that response. Given that Mrs Gates raised a personal grievance very shortly after her position was terminated, and she was an employee for 25 years, it is surprising that her personnel file was not preserved in a way that was able to be obtained in the context of the ERA and EC proceedings. The fact there is no document upon which the redundancy was founded is equally surprising. It seems unlikely to me that positions would be made redundant in an organisation the size of Air New Zealand without something in writing justifying that redundancy.

Opposition to this application

[30] Air New Zealand opposed the application for non-party discovery on the grounds that a further search would be unlikely to recover any further documents. Air New Zealand’s backup position was that if the Court did make an order for non- party discovery then it would be a costly exercise and security for costs was a concern because Air New Zealand had had to issue bankruptcy proceedings before it was paid the costs awarded to it against Mrs Gates in the Employment Court.

[31] Mr Anderson appeared in the event he might be able to assist the Court. He did not take an active part in the application before me.

[32] The relevant rule covering discovery of documents from a non-party is the High Court Rule 8.26. Subsection (1) contains the test the applicant must meet.

“This rule applies if it appears to a Judge that a person who is not a party to a proceeding may be or may have been in the control of 1 or more documents or a group of documents that the person would have had to discover if the person were a party to the proceeding”.

Assessment

[33] As I have already said, the only specific complaints against Mr Clemow I can identify in the amended statement of claim is that he failed to notify the EC that the claim of bullying had been raised within 90-day period. This matter was dealt with in some detail by Judge Couch in his decision of 11 September 2009. In summary the Judge said as follows:

1. The letter of 14 May 2002 which referred to bullying and harassment was attached to the statement of problem that was filed in the employment proceeding. However the contents of the letter did not expand the scope of the proceeding as set out in the ERA problem.
   

2. At paragraph 33 the Judge concluded that the statement of problem dated 18 December 2002 did not commence an action in the Authority

in relation to a personal grievance that Mrs Gates’ employment had been affected to her disadvantage by bullying.

3. The Judge went on to consider whether section 157 of the Employment Relations Act which refers to the role of the Authority and whether the scope of the proceeding before the Authority was informally altered in the course of the investigation to include a personal grievance based on bullying. The Judge concluded that a letter by Mrs Gates’ representative dated 10 September 2003 did not have the effect of doing this as had been submitted.
   
4. While Mrs Gates was not entitled to advance the personal grievance based on bullying the Judge had nonetheless had regard to the evidence adduced to support her claim in the context of the hearing before the Employment Court in November 2008.
   

[34] The Court’s findings were that whatever tensions there were between staff in the accounts payable office where Mrs Gates worked, this was between individual staff members and was not encouraged or condoned by management. The Judge went on to say that he was not satisfied that interpersonal issues in the accounts payable office were a factor in the restructuring process that led to the disestablishment of Mrs Gates’ position.

[35] As I understood Mrs Gates’ submissions, she is unhappy about the fact that Mr Clemow did not press the matter of the bullying aspect being part of her personal grievance at the hearing before Judge Colgan on 12 July 2005. Even if Mrs Gates could establish this as a fact, no loss could possibly flow from the fact it did not happen. My reasons for saying that include:

1. There were a considerable number of reasons why Judge Colgan adjourned the July 2005 hearing which have already been traversed in this decision. (see paragraphs 7-11). The case was always going to be adjourned for the good reasons Judge Colgan referred to.

2. Mr Clemow ceased acting for Mrs Gates 2 years and 2 months before the Employment Court hearing. In terms of preparing the case for a hearing, there was plenty of time to submit anything further in order to adequately present Mrs Gates’ case before the Employment Court.
   
   100. Ultimately the Employment Court found that although harassment and bullying had been raised in the initial letter raising the personal grievance of 14 May 2002, it did not form part of the proceeding before the ERA and therefore did not form part of the claim before the EC.
        
   4. Even if the issue of bullying and harrassment had been before the ERA and the EC, the evidence did not support the allegations of bullying and harassment made by Mrs Gates.
      

Accordingly, any alleged failure by Mr Clemow to press the bullying issue as Mrs Gates contends he should have would have made no difference to the outcome of the case.

[36] Even if I am wrong about that, it is difficult to discern how the documents now sought are relevant. Most of them concern the redundancy which Mrs Gates conceded was genuine in the EC proceeding.

[37] Even where she able to do so, I am satisfied that Air New Zealand does not have any of the documents sought. I am satisfied that the documents now sought by Mrs Gates have either been provided to Mrs Gates in the EC proceedings or they never existed or no longer exist. I refer to para [26] herein to this regard. A further search would be pointless. The application is dismissed.

[38] I invite Air New Zealand and Mr Anderson to file memoranda as to costs if they wish to seek costs. Those should be provided within 14 days of the date of this decision. Mrs Gates has a further 14 days to reply.

[39] I direct the Registry to convene a directions conference for half an hour in Court on the first date available after 1 June 2012. That should be proceeded by the

filing of memoranda 3 clear days prior to the date of the conference in which counsel for the defendant and Mrs Gates should set out the next appropriate steps to get this matter to a hearing. Any further interlocutory processes contemplated by either party should be identified. This proceeding is now over 18 months old and it canvasses issues that go back 10 years. There is a pressing need to bring it to a conclusion.

P A Cunningham District Court Judge