FIFIELD V ROTORUA DISTRICT COUNCIL & ANOR CA CA167/06

FIFIELD V ROTORUA DISTRICT COUNCIL & ANOR CA CA167/06 2 March 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA167/06 [2007] NZCA 36BETWEEN FRANK JOHN FIFIELD Applicant AND ROTORUA DISTRICT COUNCIL & ANOR Respondents Hearing: 19 February 2007 Court: Hammond, Chambers and Arnold JJ Counsel: Applicant in Person T P Cleary for Respondents Judgment: 2 March 2007 at 11 amJUDGMENT OF THE COURT A The application for special leave to appeal is dismissed. B No order for costs in this Court. REASONS OF THE COURT(Given by Hammond J)Introduction[1] Mr Fifield applies for special leave to appeal from a decision of the (former) Labour Court "dated 4 December 1989 against the council refusal to reinstate me".[2] The application is misconceived; and, it is hopelessly out of time.The application is misconceived[3] Mr Fifield was dismissed by his employer, the Rotorua District Council. He brought proceedings in the Labour Court. He said that his dismissal was unjustified. His claim was upheld by that Court in a judgment dated 8 August 1989 and reported in [1989] 2 NZILR 100. For present purposes it is sufficient to note that the dismissal was held to have been substantively unjustified as Mr Fifield's absence for the whole of the period which had given rise to the dismissal was caused by an injury to his head which had rendered him unfit for work. Secondly, the dismissal procedure had been unfair. The employer had good reason to believe Mr Fifield's injury claims to be true. The employer was not entitled to rely on other incidents, for which the worker had received no warnings, to justify the dismissal. The Labour Court referred the case back to the parties for a negotiated settlement. [4] The parties were unable to resolve the issue of remedy. The case came before the Labour Court again, on that issue. Mr Fifield sought reinstatement of his employment, reimbursement of lost wages, compensation for humiliation, loss of dignity and injury to feelings, and costs. In a judgment reported in [1989] 3 NZILR 495 and delivered on 11 December 1989, Mr Fifield was distinctly successful. The Court directed that he be reinstated by the employer in his former position or placed in the position that he would have been in if his dismissal had not occurred. He recovered past wages of $1,568.64, and a sum of $1,500 for his intangible injuries. He also was awarded a contribution to his costs, and his disbursements. [5] It is convenient to record at this point that all of these decisions were made by the Labour Court under the Labour Relations Act 1987. That labour relations regime has long since been overtaken by fresh legislation and the Labour Court no longer exists. However we note that s 312 of the Labour Relations Act provided for general appeals to this Court by way of case stated on a question of law only. Such an appeal had to be filed within 28 days of the relevant judgment. Thus there was in 1989 the ability to have recourse to this Court, although it is very difficult to seewhat Mr Fifield could have complained about; essentially, he had got what he had sought in his case. [6] It is difficult to ascertain exactly what happened thereafter. Mr Fifield did apparently go back to work with the council. And, it is clear enough that his employment shortly thereafter came to an end. He characterises what happened as a further "dismissal". But we have no evidence on the point. [7] What we do know, because it is a matter of judicial record, is that Mr Fifield turned again to the Labour Court. He sought what is intituled as a "rehearing" of his original personal grievance application. In practical terms, it seems that he was asking the Labour Court to again look into his situation in relation to the events that occurred after his earlier successful litigations. [8] That application came before the Labour Court. Mr Fifield was represented by experienced counsel. Judge Finnigan delivered an oral judgment on 23 July 1990 in ALC 88/90. The Judge took the view that it would be "unfair for the Court to reopen this matter even on a restricted basis. It would be unfair to the employer which was entitled to regard the Court as functus officio once judgment had been sealed". So Mr Fifield was left without remedy for what amounted to a grievance on his part that either he had not been properly reinstated, or that he had suffered a fresh dismissal. If the former, there were procedures available under the Labour Relations Act to which he could have resorted for the enforcement of the judgment. If the latter, he could have commenced fresh proceedings. But Mr Fifield took neither of those courses. Instead, he sought to "re-open" the original case, which the Labour Court, in the exercise of its discretion and for proper reasons, declined to countenance. [9] In these circumstances the present application is entirely misconceived. We have assumed, for the purposes of discussion, as did Mr Cleary, that Mr Fifield is seeking special leave to appeal out of time pursuant to r 29(4) of the Court of Appeal (Civil) Rules 2005. There is however nothing for Mr Fifield to appeal. He got the relief he had sought in the Labour Court. And what he is now seeking - years later -is a "review" (seemingly in this Court) and what he describes as an "order re- instating" him. This Court has no jurisdiction of that character.Lapse of time[10] Even if the manifest difficulties in Mr Fifield's way could have been overcome, an application for special leave has to be made in a timely way. An application made over a decade and a half after the events complained of is hopelessly out of time. It is difficult to conceive of any circumstances in which a delay of that magnitude could be entertained by this Court.Conclusion[11] The application for special leave is dismissed. [12] There will be no order for costs. This is a compassionate response by the Court; Mr Fifield was not entirely able to comprehend the course on which he had embarked.Solicitors: Employers & Manufacturers Association (Northern) Inc, for Respondents