SAIPE v BETHELL (ALSO KNOWN AS TRUDE JEAN BETHELL-PAICE) [2021] NZCA 546 [20 October 2021]
The Court granted recall to correct a factual error about whether the repudiation argument had been raised but declined leave to appeal because the Employment Court made no findings on the repudiation issue and it is inappropriate to decide a pure question of law without such findings from the lower court.
Source-derived case information.
- Citation
- [2021] NZCA 546
- Parties
- Applicant: Brian Saipe; Respondent: Trude Jean Bethell (also known as Trude Jean Bethell-Paice)
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 20 October 2021
- Procedural Posture
- Leave to Appeal Under S 214 Employment Relations Act 2000 / Application for Recall of Court of Appeal Judgment (on the Papers)
- Outcome
- Application for recall granted; prior judgment Saipe v Bethell [2021] NZCA 429 recalled and reissued; application for leave to appeal declined.
- Legal Topics
- Termination of Employment, Repudiation, Leave to Appeal, Recall of Judgment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Brian Saipe
Applicant
Trude Jean Bethell (also known as Trude Jean Bethell-Paice)
Respondent
Procedural Posture
Leave to Appeal Under S 214 Employment Relations Act 2000 / Application for Recall of Court of Appeal Judgment (on the Papers)
Legal Issues
- 1 Whether the Employment Court applied the correct legal test to determine the date employment was terminated
- 2 Whether the repudiation argument was raised in the Employment Court
- 3 Whether the Court of Appeal may entertain a question of law in the abstract without findings by the lower court
Ratio Decidendi
The Court granted recall to correct a factual error about whether the repudiation argument had been raised but declined leave to appeal because the Employment Court made no findings on the repudiation issue and it is inappropriate to decide a pure question of law without such findings from the lower court.
Court Disposition
Application for recall granted; prior judgment Saipe v Bethell [2021] NZCA 429 recalled and reissued; application for leave to appeal declined.
Orders
- Recall and reissue [2021] NZCA 429 amended to reflect that the repudiation argument was raised in the Employment Court and the Court of Appeal's reasons at [3] of the recall judgment
- No order as to costs
Full Case Text
Judgment text and source record
1 paragraphs
SAIPE v BETHELL (ALSO KNOWN AS TRUDE JEAN BETHELL-PAICE) [2021] NZCA 546[20 October 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA211/2021[2021] NZCA 546BETWEEN BRIAN SAIPEApplicantAND TRUDE JEAN BETHELL (ALSO KNOWNAS TRUDE JEAN BETHELL-PAICE)RespondentCourt: Cooper and Brown JJCounsel: M C Donovan and S E Greening for ApplicantR J Hooker for RespondentJudgment:(On the papers)20 October 2021 at 10.30 amJUDGMENT OF THE COURTA The application for recall is granted.B [2021] NZCA 429 is recalled and reissued.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] On 3 September 2021 we delivered a judgment declining Mr Saipe'sapplication for leave to appeal a decision of the Employment Court under s 214(1) ofthe Employment Relations Act 2000.1 One of the proposed questions of law waswhether the Employment Court failed to apply the correct legal test to determine thecorrect date the employment was terminated. Mr Saipe argued that he did not accept1 Saipe v Bethell [2021] NZCA 429.Ms Bethell's repudiation of the employment contract, meaning the relevant date waslater than 23 August 2013.[2] In our judgment we stated that this repudiation argument was not advanced inthe Employment Court. Mr Saipe has now applied to recall the judgment on thegrounds that that statement was erroneous. The argument was in fact advanced inclosing submissions on 9 December 2020, confirmed by Mr Saipe in an affidavit.Ms Bethell opposes the recall application.[3] Having read the affidavit we accept that it was an error to say the repudiationargument had not been raised. However this does not change our decision to declinethe application for leave to appeal. The Employment Court made no findings of factor statement of conclusion on that line of argument. It is not appropriate for this Courtto entertain an appeal on a question of law in the abstract without such findings by thelower Court. If Mr Saipe wished to pursue the repudiation proposition, the avenue todo so was a request for a recall of the Employment Court's decision.[4] We grant the application in order to correct the factual mistake and recall[2021] NZCA 429. The judgment is amended and reissued with [17]–[19] nowreflecting (a) that the repudiation argument was raised in the Employment Court and(b) the reasoning at [3] above of this judgment.[5] There is no order to costs.Solicitors:Watermark Employment Lawyers, Auckland for ApplicantVallant Hooker & Partners, Auckland for Respondent