CHRISTOPHER JOHN GILBERT V THE ATTORNEY GENERAL CA CA254/04

CHRISTOPHER JOHN GILBERT V THE ATTORNEY GENERAL CA CA254/04 7 February 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA254/04BETWEEN CHRISTOPHER JOHN GILBERT Applicant AND THE ATTORNEY GENERAL IN RESPECT OF THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent Hearing: 12 December 2005 Court: Anderson P, W Young and Robertson JJ Counsel: H B Rennie QC for the Appellant R B Chan for the Respondent Judgment: 7 February 2006INTERIM JUDGMENT OF THE COURT The appeal is adjourned for consideration at 9am on Monday 6 March 2006.____________________________________________________________________REASONS(Given by Robertson J) [1] This is an application for special leave to extend the time for appealing by the applicant. [2] The intended appeal relates to a decision of Judge Colgan in the Employment Court delivered on 4 December 2003. The Judge calculated the amount of compensation to be paid by the Department of Corrections to Mr Gilbert for lost remuneration after he was constructively dismissed. The judgment contained a summary of awards of compensation and costs in the following terms:(i) For the period to 14 October 2002(a) Loss of unit manager's salary (including loss of change to earn service manager's salary) $297,966.00 (b) Interest on salary loss to 14.10.02 $102,974.00 (c) Accumulating interest on salary loss to date of payment at the rate of $61 per day from 14.10.02 to date of payment to applicant Tbc* (d) Total of above less 5 percent for contingencies TbcTotal Tbc* to be calculated(ii) For period 14 October 2002 to end of working life(a) A sum representing $42,447 per annum plus 35 percent of the difference between $42,447 and a service manager's annual salary at the date of this judgment for the period 14.10.02 to the date of this judgment but reduced by 5 percent for contingencies. Tbc (b) A sum calculated by adding to the annual equivalent of the total sum in (a) above a factor of 1 percent per annum to March 2010 and multiplying this by 6 years and 5 months Tbc (c) The above sums under (a) and (b) to be reduced by 60 percent Tbc (d) The sum in (c) above to be reduced by 4.7 percent for net interest to be earned. TbcTotal Tbc[3] On 23 January 2004 the Crown appealed from the whole of the decision. [4] On 29 January 2004 Mr Gilbert cross-appealed against the whole judgment except on the question of interest and costs. [5] The six month period for lodging the original case on appeal expired on 23 July 2004. Up until July, there were communications from the Crown about preparation of the Case on Appeal and counsel availability for a date of hearing for the appeal.[6] In August 2004 Mr Gilbert received notice of the abandonment of the initial appeal by the Crown from the Registrar of the Court (the Crown not having notified Mr Gilbert or his advisers). Mr Gilbert's advisers immediately purported to file an application for an extension of time for applying for a fixture and filing the case on appeal. The Registrar of this Court advised the solicitors that he would have to seek special leave and there then developed a long running dispute between Mr Gilbert's advisers on the one hand and Court staff on the other as to the meaning and effect of r 10 of the Court of Appeal (Civil) Rules 1997 which was then relevant:10 Appeal abandoned if not pursued (Revoked)(1) An appeal is to be treated as having been abandoned if the appellant does not, within 6 months after the appeal is brought, either— (a) Apply for a fixture and file the case on appeal; or (b) Apply for an extension of time for applying for a fixture and filing the case on appeal. (2) On an application under subclause (1)(b), the Court may extend, by such period as it thinks fit, the time for applying for a fixture and filing the case on appeal, and may from time to time further extend that period while the proceeding is pending. (3) This rule applies only to appeals brought on or after the date of commencement of these rules.[7] This and other parts of the 1997 and 2005 Rules may require consideration.Discussion[8] There are a variety of complications about the existing judgment. [9] We were advised by Ms Chan that, on 17 December 2004, there was a request by the Crown, pursuant to reg 6(2)(a)(ii) of the Employment Court Regulations 2000 and r 12 of the High Court Rules, to the Employment Court Judge to correct some errors in the judgment. Subsequent to the hearing before us, counsel provided a minute from the Employment Court Judge of the same date which recorded:If the plaintiff agrees that these are errors, the slips may be corrected accordingly. It there is any disagreement, the matter should be referred to me again.[10] We have no clear information as to what the response to this was and therefore what form the judgment is now in. [11] We were provided by Mr Rennie with a memorandum from the Employment Court Judge dated 2 December 2005 dealing with outstanding issues in these terms:(1) Mr Neutze's memorandum of 1 December has been referred to me. Paragraph 4 refers to an application having been made by the defendant almost a year ago and which has not yet been heard by the Court. I have to say that I was not aware that there was such an outstanding application or, if I had been, I must have forgotten about this. None of the systems that exist to remind Judges of such matters has disclosed the existence of this application. (2) Clearly, the defendant should now have an opportunity to respond to Mr Neutze's memorandum and I imagine that it will have been served on Roanna Chan at the Crown Law Office. Given the complexity of the issues raised by Mr Neutze's memorandum, the time of year, and the desirability, even now, of narrowing to the greatest possible extent the outstanding issues, the defendant may have until 9am on Wednesday 21 December 2005 to file and serve any submission that he wish (sic) to in response. (3) Mr Neutze has asked for an "early" Chambers hearing. The best that can be achieved will be on Thursday 22 December at 10am. Counsel may attend by telephone conference call if they indicate that wish to the Registrar in sufficient time beforehand. Counsel are, of course, very welcome to attend in person. (4) The prospect of a fixture in the new year to argue these points is not promising, certainly early in the new year. It may be possible for me to do so on Friday 24 February and counsel may care to confirm their availability for this date. (5) Copies of this minute should be sent to Mr Neutze and to Mrs Chan at the Crown Law Office by fax.Counsel advised that a possible outcome was that the judgment may be recalled and reissued. If that occurred, the time to appeal would begin to run again. [12] It appears to us that the issues outstanding in the Employment Court need to be clarified and certainty exist around them before this Court can determine any further issues.[13] We have insufficient information as to what happened with regard to the slip rule application in December 2004. [14] There are questions as to whether the decision of 4 December 2003 is a final judgment or even if it is whether there is serious likelihood of an application for recall. [15] It is inappropriate for us to pursue the matters which might require our consideration until the foundations are firmly and unequivocally determined.Conclusion[16] Accordingly the matter will be adjourned for further consideration at a Conference before Robertson J at 9am on 6 March 2006.Solicitors: Brookfields, Auckland, for Appellant Crown Law Office, Wellington, for Respondent