SAWYER v VICE-CHANCELLOR OF VICTORIA UNIVERSITY OF WELLINGTON [2018] NZCA 533

SAWYER v VICE-CHANCELLOR OF VICTORIA UNIVERSITY OF WELLINGTON [2018] NZCA 533 [29November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA409/2018[2018] NZCA 533BETWEEN CAROLINE ANN SAWYERApplicantAND VICE-CHANCELLOR OF VICTORIAUNIVERSITY OF WELLINGTONRespondentCA410/2018BETWEEN CAROLINE ANN SAWYERApplicantAND VICE-CHANCELLOR OF VICTORIAUNIVERSITY OF WELLINGTONRespondentCourt: Asher and Clifford JJCounsel: Applicant in personM T Scholtens QC and G C Davenport for RespondentJudgment:(On the papers)29 November 2018 at 12.30 pmJUDGMENT OF THE COURTA The application for leave to appeal in CA409/2018 is declined.B The application for leave to appeal in CA410/2018 is declined.C The applicant must pay the respondent one set of costs for a standardapplication on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant, Ms Sawyer, is a former employee of Victoria University ofWellington. Ms Sawyer made a complaint about two colleagues who were seniormembers of the law faculty. The investigation resulted in mediation and ultimatelythe parties entered into a settlement agreement on 24 July 2014 under s 149 ofthe Employment Relations Act 2000 (the Settlement Agreement). Ms Sawyer thenissued proceedings in the Employment Relations Authority claiming she had beenconstructively dismissed. Those proceedings were dismissed on the basis that theSettlement Agreement was final and binding.1[2] The applicant then filed personal grievance proceedings in the EmploymentCourt, claiming she was unjustifiably disadvantaged and constructively dismissed.Prior to determining the substantive personal grievance proceedings, Judge Smithissued an interlocutory judgment determining that the Settlement Agreement wasvalid.2 Ms Sawyer now applies for leave to appeal that decision pursuant to s 214 ofthe Employment Relations Act.[3] Ms Sawyer also seeks leave to appeal to this Court against theEmployment Court's refusal to grant her an extension of time to appeal against acompliance order granted against her (the Compliance Order).3 We return to thecircumstances in which the Compliance Order was granted later in this judgment.[4] This Court must not grant leave unless the appeal raises a question of law that,due to its general or public importance or for any other reason, ought to be submittedto this Court for decision.41 Sawyer v Vice-Chancellor of Victoria University of Wellington [2016] NZERA Wellington 158.2 Sawyer v Vice-Chancellor of Victoria University of Wellington [2018] EmpC 71 (settlementagreement decision).3 Sawyer v Vice Chancellor of Victoria University of Wellington [2018] NZEmpC 72 (complianceorder decision).4 Employment Relations Act 2000, s 214(3).A valid settlement agreement? Leave to appealJudgment[5] In submitting that the Settlement Agreement was invalid, Ms Sawyer claimedshe was under duress when she signed it. Judge Smith set out the circumstances inwhich that agreement was signed and the relevant legal principles (the key one beingthat if there is illegitimate pressure, then duress will be established if it coerced a partyto enter into the contract).5 On the facts, however, the evidence simply did not supportMs Sawyer's claim that she was under illegitimate pressure or was coerced intosigning the Settlement Agreement.6[6] The Judge observed Ms Sawyer claimed she was left alone at times during themediation, but that was antithetical to illegitimate pressure being applied.7 As for thecomments her lawyer had made at the end of the mediation — that Victoria University"will mince you up" — there was no evidence that those remarks were made byVictoria University. They were instead likely a summary of the position taken byVictoria University or Ms Sawyer's lawyer's opinion of the relative strengths of theparties' positions.8 Similarly, the Judge found there was no link between any allegeddestruction of documents after the mediation and Ms Sawyer being pressured intosigning the Settlement Agreement.9 The other circumstances Ms Sawyer raised didnot assist her either, with the Judge emphasising that Ms Sawyer was advisedthroughout the process and did not dispute the validity of the Settlement Agreementuntil some 30 weeks after it was signed.[7] The Judge then considered whether the Settlement Agreement was illegal.He found that it was not. Ms Sawyer reliance on the conduct of Victoria Universityduring the investigation did not explain how the resulting Settlement Agreement wasillegal.10 It only showed Ms Sawyer's sense of dissatisfaction with the way in whichher complaint was dealt with. Ultimately, the terms of the Settlement Agreement were5 Settlement agreement decision, above n 2, at [31], citing McIntyre v Nemesis DBK Ltd [2009]NZCA 329, [2010] 1 NZLR 463 at [19].6 At [38].7 At [38].8 At [39].9 At [40].10 At [63].conventional — the employment relationship was ended by agreement, a period ofleave agreed, there were certain financial terms, the investigation into Ms Sawyer'scomplaint was brought to an end, a non-disparagement clause was included, and theSettlement Agreement was expressed as full and final. None of those terms wasillegal.[8] Finally, the Judge rejected Ms Sawyer's arguments that the entity described asthe employer on the Settlement Agreement was not her actual employer, and that theperson who signed the agreement (a Mr Miller) did not have authority to do so.11Submissions[9] Ms Sawyer has filed lengthy submissions in support of the application for leaveto appeal. She says that the Employment Court erred in finding the SettlementAgreement was valid and in reversing the burden of proof. The burden of proof laywith Victoria University. However, Victoria University adduced no evidence andmade no submissions in support. In those circumstances, the facts of the case fell tobe determined by Ms Sawyer's uncontested evidence, which clearly establishedduress. Ms Sawyer points to the narrative of the employment dispute andVictoria University's conduct throughout.[10] Ms Sawyer also maintains that the Settlement Agreement was illegal and thatMr Miller did not have authority to sign it. As regards the former, she says that theEmployment Court failed to have regard to s 66 of the Employment Relations Act(which relates to fixed term agreements) in determining the legality of theSettlement Agreement. As regards the latter, she says it was not open to the Court tofind the signature of [Mr] Miller valid on the facts". Finally, Ms Sawyer also raisesconcerns about the process in the Employment Court, including that there were "nodirections other than interlocutory orders refusing all of [the applications for]disclosure and witness summonses".11 At [70] and [73].Analysis[11] We are satisfied that the proposed appeal is not one that, due to its general orpublic importance or for any other reason, ought to be submitted to this Court fordecision.[12] First, we note that — as counsel for Victoria University submitted — theEmployment Court came to its conclusion as to the validity of the SettlementAgreement on the evidence before it. In those circumstances, there is no room to arguethat the Employment Court reversed the burden of proof. Further, to challenge theEmployment Court's finding on the validity of the Settlement Agreement is ultimatelyto challenge the Employment Court's factual conclusions regarding Ms Sawyer'sallegations of blackmail, collusion, duress and threatening conduct. As is reasonablyevident, that does not amount to a question of law for the purposes of s 214 ofthe Employment Relations Act.[13] Secondly, and as regards Ms Sawyer's submission that Mr Miller did not haveauthority to sign the Settlement Agreement, the submission is that "it was not open tothe Court to find the signature of [Mr] Miller valid on the facts". Again, this does notamount to a question of law for the purposes of s 214 of the Employment RelationsAct.[14] Thirdly, we accept that questions about the legality of settlement agreementsmay give rise to questions of law of general or public importance. However, we aresatisfied that is not the case here. Ms Sawyer maintains that the contract was createdillegally because it was procured following victimisation and blackmail. That is thevery factual basis upon which the Employment Court declined to set aside theSettlement Agreement for duress — a factual basis which, as we noted above, is notamendable to a grant of leave pursuant to s 214 of the Employment Relations Act.Insofar as Ms Sawyer says the terms of the settlement agreement are illegal, we agreewith the Judge that the terms of the settlement agreement were conventional.[15] Finally, and as regards the concerns about the process in theEmployment Court, we note that the questions of disclosure and witness summonseswere determined in separate judgments to the judgment Ms Sawyer now seeks leaveto appeal.12 Ms Sawyer cannot use the present application for leave to appeal toimpugn those judgments.The Compliance Order — leave to appeal against the refusal to grant anextension of timeJudgment[16] As noted above, the Settlement Agreement required Ms Sawyer not to makedisparaging remarks about Victoria University and its staff. After the SettlementAgreement was entered into, Victoria University became aware that Ms Sawyer hadin fact made certain disparaging remarks. Victoria University sought a complianceorder in the Employment Relations Authority. Ms Sawyer's consent was conveyed tothe Employment Relations Authority by her lawyer by email on 3 March 2017.The Compliance Order was subsequently entered by consent, with the claim forpenalties to be defended.[17] Ms Sawyer later claimed she never consented to the Compliance Order. Shesought to challenge it. By this time, she was some 91 days out of time. She sought anextension of time from the Employment Court to appeal to that Court under s 219 ofthe Employment Relations Act. A hearing was convened to receive evidence on theissue of Ms Sawyer's consent from Ms Sawyer and her lawyer. Her lawyer was ableto give evidence because of an interlocutory judgment finding that Ms Sawyer hadwaived privilege until 3 March 2017.13 Following that hearing, the Employment Courtdeclined to grant Ms Sawyer an extension of time.[18] As regards the reasons why Ms Sawyer had failed to appeal in time, theEmployment Court preferred the evidence of Ms Sawyer's lawyer over Ms Sawyer. Itgenerally considered Ms Sawyer untruthful.14 There was no substance to hercontention that she was unaware of her lawyer's communication with the EmploymentRelations Authority or the subsequent issuing of the Compliance Order by consent.1512 Sawyer v Vice Chancellor of Victoria University of Wellington [2018] NZEmpC 29; and Sawyer vVice Chancellor of Victoria University of Wellington [2018] NZEmpC 25.13 Sawyer v Vice-Chancellor of Victoria University of Wellington [2017] NZEmpC 154 at [46].14 Compliance order decision, above n 3, at [26].15 At [41].The Judge also considered the other relevant considerations when an application foran extension of time to appeal is sought — the length of the delay, prejudice and thesubstantive merits of the proposed appeal. These all pointed away from the grant ofan extension of time. First, the length of the delay — some 91 days — was so great,the Judge reasoned, that the application for an extension of time would have beenunsuccessful on that ground alone.16 Second, Victoria University would also beprejudiced if the Compliance Order were to be re-opened.17 Finally, the substantivemerits of the proposed appeal were weak — the evidence established that Ms Sawyermade a tactical decision in consenting to the Compliance Order.18[19] Ms Sawyer now seeks leave to appeal to this Court the Employment Court'srefusal to grant an extension of time to appeal.Submissions[20] Ms Sawyer firstly submits that the Employment Court erred in assessing hercredibility and making other factual findings regarding her knowledge of other mattersbefore the Employment Relations Authority. For example, Ms Sawyer says theEmployment Court erred in finding that the Employment Relations Authority wascorrect to find that she had been served in time, and that she knew a determination wasmade in March 2017.[21] Ms Sawyer secondly submits that the Employment Court erred in law inadmitting documents and oral evidence in breach of privilege. This ground stems fromthe decision of the Employment Court restricting the waiver of privilege to3 March 2017.19 Ms Sawyer says the Employment Court — in declining to grant theextension of time — considered evidence that came into being after that date and hencein breach of privilege.16 At [43].17 At [46].18 At [48].19 Sawyer v Vice-Chancellor of Victoria University of Wellington [2017] NZEmpC 154 at [46].Analysis[22] We are satisfied that the proposed appeal is not one that, due to its general orpublic importance or for any other reason, ought to be submitted to this Court fordecision.[23] As regards the first grounds of appeal, we are satisfied that these involvequestions of fact, rather than law. Ms Sawyer is ultimately trying to challenge theJudge's findings of credibility. This is not amenable to a grant of leave to appealagainst the refusal of an extension of time.[24] The second ground of appeal — that the Judge erred in admitting documentsand oral evidence in breach of privilege — may involve a question of law. The earlierjudgment limited waiver of privilege until 3 March 2017. Ms Sawyer points to theevidence her lawyer gave during the hearing about an email sent to Ms Sawyer on7 March 2017 (being some four days after the waiver of privilege). The email wouldappear to disclose Ms Sawyer's lawyer sending her a copy of the judgment grantingthe Compliance Order. We accept that material may have been privileged and oughtnot to have been admitted. We also note that the Judge would have appeared toconsider the email of 7 March 2017 when considering why the application for anextension of time was not made in time.20 However, it was not the only factor theJudge considered here.[25] The Judge also emphasised Ms Sawyer's deliberate decision to consent to theCompliance Order, and her knowledge that strict timeframes exist when seeking tochallenge orders made by the Employment Relations Authority. Moreover, and as theJudge pointed out, Ms Sawyer failed to adequately explain why, despite thatknowledge, she did not act. We also note that, when considering an application for anextension of time, the reason for the failure to bring the challenge in time is not theonly consideration. There are other factors at play such as the lengthy of the delay,the merits of the proposed appeal, and any resulting prejudice to other parties. TheJudge expressly considered all of these factors when declining to grant the extension20 Compliance order decision, above n 3, at [39].of time. We agree with his conclusion that these all point away from the grant of anextension of time. In doing so, we emphasise the lack of merit in the proposed appeal.Result[26] The application for leave to appeal in CA409/2018 is declined.[27] The application for leave to appeal in CA410/2018 is declined.[28] The applicant must pay the respondent one set of costs for a standardapplication on a band A basis and usual disbursements.Solicitors:McBride Davenport James, Wellington for Respondent