SAWYER v EMPLOYMENT RELATIONS AUTHORITY [2020] NZCA 237

SAWYER v EMPLOYMENT RELATIONS AUTHORITY [2020] NZCA 237 [15 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA599/2019[2020] NZCA 237BETWEEN CAROLINE ANN SAWYERApplicantAND EMPLOYMENT RELATIONSAUTHORITYFirst RespondentEMPLOYMENT COURTSecond RespondentVICE-CHANCELLOR OF VICTORIAUNIVERSITY OF WELLINGTONThird RespondentCourt: Kós P and Gilbert JCounsel: Applicant in personM T Scholtens QC for Third RespondentJudgment:(On the papers)15 June 2020 at 2 pmJUDGMENT OF THE COURTA The application for judicial review dated 13 November 2019 is struck out.B The application to debar the third respondent's solicitor and counsel fromcontinuing to act in the proceeding is accordingly declined.C The applicant is to pay costs to the third respondent on both applications ona standard band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] There are two interlocutory applications before us for determination onthe papers. The first is an application by the third respondent to strike out thisproceeding — an omnibus application for judicial review of 10 determinations ofthe Employment Relations Authority and two decisions of the Employment Court.These decisions all stemmed from an employment dispute that was fully and finallysettled at a mediation in 2014. The second interlocutory application, brought bythe applicant, Caroline Sawyer, is for an order preventing the Vice-Chancellor'ssolicitor and counsel from continuing to act in this proceeding. Strictly speaking, thisapplication need only be dealt with if the proceeding is not struck out.[2] Dr Sawyer was employed by Victoria University of Wellington as a lawlecturer from January 2010 until February 2015. In 2014, she made a complaint aboutthe conduct of two senior staff members in her faculty. Following investigation,a mediation was held on 24 July 2014 at which the parties were legally represented.The parties reached agreement and signed a record of settlement agreement(the settlement agreement) pursuant to s 149 of the Employment Relations Act 2000(the Act). The terms of the settlement agreement are confidential and are the subjectof a permanent non-publication order made by the Employment Court.1[3] On 8 August 2016, Dr Sawyer filed a claim in the Employment RelationsAuthority for constructive dismissal. She submitted that the settlement agreement wasnot an obstacle to her claim because she alleged it had been procured by fraud, duressor improper pressure. The Employment Relations Authority rejected this claim,finding that the settlement agreement was final and binding.2 Dr Sawyer appealed tothe Employment Court against this determination, but her appeal was dismissed.3She then applied for leave to appeal to this Court pursuant to s 214 of the Act.This Court declined leave for the proposed appeal in a judgment delivered on29 November 2018.4 That should have been the end of the dispute.1 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZEmpC 71 at [4]–[5].2 Sawyer v Vice-Chancellor of Victoria University of Wellington [2016] NZERA Wellington 158.3 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 1.4 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] NZCA 533, [2018] ERNZ[4] However, undeterred, Dr Sawyer pursued proceedings in the High Courtagainst the Vice-Chancellor, his lawyer and several other parties. Dr Sawyer claimed,amongst other things, that the settlement agreement should be set aside as beingthe product of blackmail, fraudulent misrepresentation and deceit. All claims againstthe Vice-Chancellor and his lawyer were struck out in a judgment delivered by Grice Jon 29 August 2019.5 The Judge found that the validity of the settlement agreementhad been finally determined and could not be challenged.6 The claims thereforeconstituted an abuse of process of the Court.7[5] In the meantime, the Employment Relations Authority made various otherorders which Dr Sawyer also seeks to review in the present proceeding. These includecompliance orders, costs orders and penalties imposed for breaches of the settlementagreement.[6] Dr Sawyers' substantive application in this proceeding seeks judicial reviewby this Court pursuant to s 213 of the Act of the following 12 decisions:(a) The substantive determination of the Employment Relations Authoritydated 21 December 2016 finding that the settlement agreement is valid,final and binding ([2016] NZERA Wellington 158).(b) A further determination of the Employment Relations Authorityreferred to by Dr Sawyer as [2016] NZERA 590. However, there is nosuch decision.(c) A costs determination (consequent on (a) above) dated 1 February 2017([2017] NZERA 5).(d) A consent determination dated 3 March 2017 that Dr Sawyer hadbreached the settlement agreement and ordering her to comply with it([2017] NZERA Wellington 14).418.5 Sawyer v Vice-Chancellor of Victoria University of Wellington [2019] NZHC 2149.6 At [100(a)].7 At [99].(e) A determination dated 1 November 2017 ordering Dr Sawyer to pay apenalty of $8,500 for breaching the settlement agreement ([2017]NZERA Wellington 106).(f) A costs determination (consequent on (e) above) dated 7 December2017 ([2017] NZERA Wellington 125).(g) Four other consequential orders of the Employment RelationsAuthority which Dr Sawyer describes in her application for review asdecisions which "enforced the document of 24 July 2014[the settlement agreement] against [the applicant]". The referencesgiven by Dr Sawyer in her application are erroneously stated to be[2017] NZERA 2005, 2014, 2016 and 2125. There are no suchdecisions.(h) The judgment of the Employment Court dated 22 June 2018 confirmingthe substantive decision of the Employment Relations Authority(referred to at (a) above) that the settlement agreement is valid, bindingand enforceable ([2018] NZEmpC 71).(i) A judgment of the Employment Court dated 22 June 2018 decliningDr Sawyers' application for an extension of time to challengethe compliance order made by consent (referred to at (d) above) ([2018]NZEmpC 72).[7] Dr Sawyer's application for review to this Court is yet another attempt by herto challenge the enforceability of the settlement agreement. She poses the followingquestions for review:(a) The question for the review is whether Parliament intended to giveparties jurisdiction to make illegal arrangements unquestionable andenforceable and if not then what is the remedy for an illegalarrangement that has become enforceable and unquestionable inthe employment area.(b) The determinations and decisions concern the contents of a documentdated 24 July 2014 [the settlement agreement] which purports to bea contract in relation to employment matters and which inthe employment area has been determined and decided to be valid andhas been enforced, but which is an arrangement that is void in law andillegal in law and equity in both its creation and its performance.[8] We are satisfied that the proceeding must be struck out for two reasons. First, itis clearly an abuse of process of the Court in that it is a collateral attack on the finaldetermination of the Employment Court that the settlement agreement is valid andbinding. That issue was finally determined when this Court declined leave to appealagainst the decision of the Employment Court on 29 November 2018.8 Dr Sawyer isno longer able to challenge the validity of the settlement agreement. Secondly, theproceeding is in any event misconceived because it falls outside the limited scope ofthis Court's jurisdiction under s 213 of the Act.[9] Section 213 of the Act relevantly reads:213 Review of proceedings before court(1) If, in relation to any proceedings before the court, any person wishesto apply for a review under the Judicial Review Procedure Act 2016or bring proceedings seeking a writ or order of, or in the nature of,mandamus, prohibition, or certiorari, or a declaration or an injunction,the provisions of subsections (2) to (4) apply.(2) Despite anything in any other Act or rule of law, the application orproceedings referred to in subsection (1) must be made to or broughtin the Court of Appeal.[10] In Moodie v Employment Court, this Court confirmed that the Court ofAppeal's jurisdiction on judicial review of an employment tribunal is limited to:9(a) a decision made in circumstances where the tribunal (herethe Employment Relations Authority or the Employment Court) did not8 Sawyer v Vice-Chancellor of Victoria University of Wellington, above n 4.9 Moodie v Employment Court [2012] NZCA 508, [2012] ERNZ 201 at [15], applying Parker vSilver Fern Farms Ltd [2011] NZCA 564, [2012] 1 NZLR 256.have jurisdiction in the narrow sense of not having been entitled to enteron the enquiry in question;(b) a decision that the tribunal had no power to make; or(c) a decision made in bad faith.[11] None of these grounds are relied on here. Dr Sawyer does not suggest, norcould she, that the Employment Relations Authority and the Employment Courtlacked jurisdiction to determine the validity of the settlement agreement and makethe orders they did. Dr Sawyer, quite properly, invoked the jurisdiction herself.Moreover, none of the orders contemplated by s 213(1) — mandamus, prohibition,certiorari, et cetera — are sought. The review application is misconceived anddiscloses no reasonably arguable cause of action.[12] Given that the proceeding must be struck out, it is not strictly necessary toconsider Dr Sawyer's application for an order debarring the Vice-Chancellor'ssolicitor and counsel from continuing to act in the proceeding. However, forcompleteness, we formally decline that application. This is to avoid any doubt thatthis proceeding is now at an end.Result[13] The applicant's application for judicial review dated 13 November 2019 isstruck out.[14] The application to debar the third respondent's solicitor and counsel fromcontinuing to act in the proceeding is accordingly declined.[15] The applicant is to pay costs to the third respondent on both applications ona standard band A basis and usual disbursements.Solicitors:Simon Johnson, Victoria University of Wellington for Third Respondent