GEORGINA RACHELLE v AIR NEW ZEALAND LIMITED [2020] NZSC 130

GEORGINA RACHELLE v AIR NEW ZEALAND LIMITED [2020] NZSC 130 [20 November 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 78/2020[2020] NZSC 130BETWEEN GEORGINA RACHELLEApplicantAND AIR NEW ZEALAND LIMITEDRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: Applicant in personP A Caisley and S R Worthy for RespondentJudgment: 20 November 2020JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application for leave to appeal is dismissed.C The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONS[1] The applicant, Ms Rachelle, commenced proceedings against Air New ZealandLtd in the Employment Relations Authority claiming unjustifiable dismissal and othergrievances. The claim was dismissed.11 Rachelle v Air New Zealand Ltd [2017] NZERA Christchurch 140.[2] The applicant then pursued the claim in the Employment Court. There wereeight causes of action but five of these were struck out2 and the remainder weredismissed.3[3] Ms Rachelle then sought leave to appeal to the Court of Appeal against thedecision of the Employment Court. Leave to appeal was declined.4[4] After the Court of Appeal decision was delivered, the Employment Courtdelivered a decision dealing with costs for the proceeding in that Court.5 Costs of$44,000 were awarded to Air New Zealand.6[5] The applicant filed an application for leave to appeal to this Court against thedecision of the Court of Appeal refusing leave and the Employment Court's costsjudgment.[6] There was no right of appeal to this Court against a decision of the Court ofAppeal declining leave to appeal to that Court.7 We understand that this was madeclear to the applicant by the case officer and that he advised her that the applicationfor leave was accepted for filing on the basis that it was limited to the application forleave to appeal against the Employment Court's costs judgment.[7] The application was made out of time. We treat it as including an applicationfor an extension of time. The respondent opposes an extension but does not point toany prejudice arising from the failure to apply for leave within time. In thecircumstances, we are prepared to grant an extension of time.[8] Normally, an application for leave to appeal against a decision of theEmployment Court would be made to the Court of Appeal, not the Supreme Court.While s 214A of the Employment Relations Act 2000 provides for a direct appeal from2 Rachelle v Air New Zealand Ltd [2018] NZEmpC 75 (Judge Smith); and Rachelle v Air NewZealand Ltd [2019] NZEmpC 23 (Judge Smith).3 Rachelle v Air New Zealand Ltd [2019] NZEmpC 191 (Judge Smith).4 Rachelle v Air New Zealand Ltd [2020] NZCA 266 (French and Clifford JJ).5 Rachelle v Air New Zealand Ltd [2020] NZEmpC 95 (Judge Smith).6 At [10].7 Senior Courts Act 2016, s 68(b).the Employment Court to the Supreme Court, such an appeal is available only "inexceptional circumstances". This is because s 214A is subject to s 75 of the SeniorCourts Act 2016,8 which provides that this Court must not give leave to appeal directlyto it against a decision made in a court other than the Court of Appeal unless it issatisfied that there are exceptional circumstances that justify taking the proposedappeal directly to the Supreme Court.[9] The costs decision was an orthodox application of the Employment Court'sGuideline Scale to the facts of the case.9 There is nothing in the material provided tothis Court by the applicant that indicates that the decision of the Employment Court iswrong in law10 and there is certainly nothing to indicate that there are exceptionalcircumstances justifying a direct appeal from the Employment Court to this Court.[10] Accordingly, the criteria for the grant of leave to appeal are not met.[11] The application for leave to appeal is dismissed. The applicant must pay therespondent costs of $2,500.Solicitors:Kiely Thompson Caisley, Auckland for Respondent8 Employment Relations Act 2000, s 214A(4).9 Employment Court "Employment Court of New Zealand Practice Directions"<www.employmentcourt.govt.nz> at 18–22.10 Employment Relations Act, s 214A(1).