EMPLOYMENT RELATIONS AUTHORITY V KENNETH BENJAMIN RAWLINGS CA CA204/06

EMPLOYMENT RELATIONS AUTHORITY V KENNETH BENJAMIN RAWLINGS CA CA204/06 7 May 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA204/06 [2007] NZCA 178BETWEEN EMPLOYMENT RELATIONS AUTHORITY Applicant AND KENNETH BENJAMIN RAWLINGS Respondent Court: Robertson, Arnold and Ellen France JJ Counsel: C Inglis for Crown Respondent in Person Judgment: 7 May 2007 at 11 am (on the papers)JUDGMENT OF THE COURT Leave to appeal in respect of the questions set out in [1] below is granted. REASONS OF THE COURT(Given by Arnold J) [1] On 20 September 2006 the applicant applied for leave to appeal against a decision of Judge Couch of the Employment Court: CC8/06 23 August 2006. The applicant seeks leave to appeal on two questions of law, namely: (a) If a right of appeal exists against a determination of the Employment Relations Authority but is not exercised, does theexistence of that right operate as a bar to an application for judicial review under s 194 of the Employment Relations Act? (b) Did s 184(1A) of the Employment Relations Act preclude the respondent from seeking judicial review of a direction given by the Employment Relations Authority on 9 May 2005. [2] The respondent filed a memorandum dated 29 September 2006 in which he said that he formally consented to leave being granted. The respondent relied on r 26 of the Court of Appeal (Civil) Rules 2005. [3] The respondent also said that he would concede the first of the questions of law identified by the applicant. In the light of that concession, and because, he said, the second question was simply a matter of statutory interpretation, the respondent asked that the appeal be dealt with on the papers. [4] Soon after that, the Court received a letter from Mr F J Wall, who is a retired legal practitioner from the United Kingdom and a friend of the respondent, seeking special dispensation to enable him to represent the respondent, or, at least, to act as his "McKenzie friend". [5] A direction was made that the application for leave to appeal be dealt with on the papers. Having considered the file, we are satisfied that the questions of law proposed are questions which by reason of their general or public importance should be submitted to this Court for decision: s 214 Employment Relations Act 2000. [6] Accordingly we grant leave to appeal in relation to the two questions identified in [1] above. [7] We consider that there should be an oral hearing of the appeal itself. In the circumstances we grant Mr Wall leave to appear as Mr Rawlings "McKenzie friend". We also propose to appoint an amicus to assist the Court. There will be no order as to costs.Solicitors: Crown Law Office, Wellington