AHMED ALKAZAZ v ENTERPRISE IT LIMITED [2021] NZSC 101

AHMED ALKAZAZ v ENTERPRISE IT LIMITED [2021] NZSC 101 [16 August 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 39/2021[2021] NZSC 101BETWEEN AHMED ALKAZAZApplicantAND ENTERPRISE IT LIMITEDRespondentCourt: William Young, Glazebrook and Williams JJCounsel: Applicant in personR J Bryant for RespondentJudgment: 16 August 2021JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is dismissed.B The application for recall of this Court's judgment of11 June 2021 (AlKazaz v Enterprise IT Ltd [2021] NZSC 59)is allowed only to make the corrections identified at [8]below.C The [2021] NZSC 59 judgment is reissued with thosecorrections.D The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONSLeave application[1] Mr AlKazaz applies for leave out of time to appeal directly against a decisionof the Employment Court dismissing his challenge against the Employment RelationsAuthority's (ERA's) refusal to reopen a prior investigation (the Employment Courtreopening decision).1 The investigation related to a decision in which Mr AlKazazsucceeded in an unjustified dismissal claim against the respondent, although the ERAreduced his award by 20 per cent for contributory conduct (the original ERAdecision).2 Mr AlKazaz ultimately wishes to dispute the finding of contribution.[2] Mr AlKazaz says that the exceptional circumstances justifying a leapfrogappeal are that he cannot obtain further employment in New Zealand unless the ERA'sinvestigation is reopened or challenged. His explanations for bringing the applicationout of time seem to be that he is a litigant in person whose first language is not English,and that he was following the standard process by first seeking leave to appeal to theCourt of Appeal.[3] Mr AlKazaz also refers to two other decisions under the heading "Particularsof the decision against which the Plaintiff wishes to Appeal":(a) a decision of the Court of Appeal refusing leave to appeal against theEmployment Court reopening decision (the Court of Appeal leavedecision);3 and(b) a single decision of the Court of Appeal dismissing his applications forrecall of the Court of Appeal leave decision, for stay of execution of thecosts order, and for a declaration that the respondent's representationwas "invalid".4[4] This Court does not have jurisdiction to hear an appeal against the Court ofAppeal leave decision.5 Nor does it have jurisdiction to hear an appeal against aCourt of Appeal decision refusing to recall a judgment declining leave to appeal.6There are no submissions addressing the refusal for stay and no evidence supportingthe allegation against the respondent's representation.1 AlKazaz v Enterprise IT Ltd [2020] NZEmpC 171 (Chief Judge Inglis).2 Alkazaz v Enterprise IT Ltd [2017] NZERA Auckland 400.3 Alkazaz v Enterprise IT Ltd [2021] NZCA 13 (Miller and Goddard JJ).4 Alkazaz v Enterprise IT Ltd [2021] NZCA 132 (Miller and Goddard JJ).5 Senior Courts Act 2016, s 68(b).6 Ngahuia Reihana Whanau Trust v Flight (2004) 17 PRNZ 357 (SC) at [3].[5] The application for leave to appeal against the Employment Court reopeningdecision is well out of time. Mr AlKazaz has now also applied to the EmploymentCourt for an extension of time to bring a late challenge against the original ERAdecision. In those circumstances, it is not necessary in the interests of justice to extendtime for leave to appeal to this Court.[6] In any event, even if the application had been made in time, the leave criteriaare not met. Mr AlKazaz has not raised any question of law7 and there are noexceptional circumstances justifying a direct appeal.8 Any appeal would be no morethan a challenge to the Employment Court's assessment of the facts relating to theapplication to reopen the ERA's investigation.Recall application[7] Mr AlKazaz has also applied to recall this Court's earlier refusal to stayproceedings in the Employment Court.9 It is unnecessary to deal with this matter inany detail in light of our refusal to extend time for Mr AlKazaz to bring his applicationfor leave to appeal. It is sufficient to note that the applicant pointed out some minorfactual errors in this Court's stay decision which it is appropriate to correct by meansof recall. These have no material effect on the result. The substantive matters raisedby the applicant in his recall application are now moot.[8] The stay judgment is therefore recalled and reissued with the followingcorrections:(a) At [3], delete the words "Over a year" and replace with "Eight months".(b) At [7], delete the words "been 'ordered to pay'" and replace with"paid".(c) At [7], delete the words "It is unclear what case this order relates to, orwhether he has paid this sum into the Court."7 Employment Relations Act 2000, s 214A(1).8 Employment Relations Act, s 214A(4); and Senior Courts Act, s 75.9 AlKazaz v Enterprise IT Ltd [2021] NZSC 59.(d) At [13], delete the words "Even more to the point, Mr AlKazaz has notsuggested that EIT is currently pursuing its costs award against him."Costs[9] The applicant must pay the respondent costs of $2,500 in respect of the leaveapplication.[10] There is no costs order in respect of the recall application.Result[11] The application for an extension of time to apply for leave to appeal isdismissed.[12] The application for recall of this Court's judgment of 11 June 2021 is allowedonly to make the corrections identified above at [8]. That judgment is reissued withthose corrections.[13] The applicant must pay the respondent costs of $2,500.Solicitors:Aspiring Law Ltd, Wanaka for Respondent