BLUESTAR PRINT GROUP (NZ) LIMITED V DAVID MITCHELL CA CA189/2009

BLUESTAR PRINT GROUP (NZ) LIMITED V DAVID MITCHELL CA CA189/2009 23 July 2009IN THE COURT OF APPEAL OF NEW ZEALAND CA189/2009 [2009] NZCA 323BETWEEN BLUESTAR PRINT GROUP (NZ) LIMITED Applicant AND DAVID MITCHELL Respondent Hearing: 21 July 2009 Court: Hammond, Robertson and Baragwanath JJ Counsel: C Heaton for Applicant No appearance for Respondent P B Churchman as Amicus Judgment: 23 July 2009 at 11.30 amJUDGMENT OF THE COURT Leave is granted to appeal on the following question: Was there an error of law by the Employment Court Judge in not taking into account the Calderbank offer because it did not address the personal vindication elements of the personal grievance?____________________________________________________________________REASONS OF THE COURT(Given by Robertson J)[1] This application for leave to appeal raises an issue of public or general importance with regard to the treatment of Calderbank letters in the resolution of disputes in the Court system generally and particularly in the Employment Court. [2] The respondent advised that he was unable to continue to participate in the proceedings. [3] Mr Peter Churchman was appointed to appear on the application for leave to appeal against the costs judgment of Judge C M Shaw dated 19 March 2009 in the Employment Court at Wellington (EC WC2/09 and WRC 19/06) as amicus. [4] The respondent commenced proceedings alleging unjustifiable dismissal against the applicant in the Employment Court. The Judge found that Mr Mitchell was unjustifiably constructively dismissed and awarded him $10,000 compensation under s 123(1)(c)(i) of the Employment Relations Act 2000 ("the Act"). [5] Having received written submissions from each party on the question of costs, the Court was advised of a Calderbank letter which had been written on 30 November 2005 where there was an offer to settle fully and finally for $10,000 plus the sum of $3,000 towards the respondent's past legal costs. [6] Judge Shaw, in her costs judgment, said:[26] The Calderbank offer will not be taken into account in assessing costs. Although it was precisely the amount ordered by the Court the offer did not address the personal vindication element of the personal grievance which was at the heart of Mr Mitchell's claim to the Court.[7] Although the applicant framed its case in wider terms, we are satisfied that there is one issue which comes within the strict criteria that apply under s 214 of the Act.[8] Leave is granted to appeal on the following question: Was there an error of law by the Employment Court Judge in not taking into account the Calderbank offer because it did not address the personal vindication elements of the personal grievance?Solicitors: Morrison Kent, Wellington, for Respondent