H v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZCA 260

H v BAY OF PLENTY DISTRICT HEALTH BOARD [2022] NZCA 260 [22 June 2022]NOTE: ORDER OF EMPLOYMENT COURT IN [2018] NZEMPC 120PROHIBITING PUBLICATION OF THE NAMES AND ANY INFORMATIONLIKELY TO LEAD TO THE IDENTIFICATION OF H AND C REMAINSIN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA632/2021[2022] NZCA 260BETWEEN HApplicantAND BAY OF PLENTY DISTRICT HEALTHBOARDRespondentCourt: Clifford and Courtney JJCounsel: Applicant in personM B Beech for RespondentJudgment:(On the papers)22 June 2022 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time is declined.B The applicant must pay the respondent costs for a standard application ona band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] The applicant, H, seeks an extension of time to apply for leave to appeal adecision of the Employment Court.1Background[2] In 2015 Ms Shaw, an echocardiographer/cardiac technologist, was dismissedby her employer, the respondent Bay of Plenty District Health Board (the DHB). Shefiled a statement of problem in the Employment Relations Authority (the Authority),advancing disadvantage grievances on a number of grounds.[3] In March 2017, H commenced his representation of Ms Shaw. In the courseof that representation, H had (very much in summary) improperly contacted the DHBand publicly made a number of derogatory comments about it. In view of that conduct,the Authority made four sets of directions over the course of 2017 and 2018. The detailof that conduct is set out in the Employment Court decision and we need not repeatit here. The Authority made the following directions:(a) First, H was not to make contact with the DHB directly whilst it wasrepresented by counsel.2(b) Second, H was to comply with the first direction and, in addition, wasnot to make public comment regarding the DHB and its staff on hispersonal Facebook page whilst the Authority's investigationwas ongoing.3(c) Third, the parties were not to make public comment about the matter,which was to remain sub judice pending the Authority's determination.1 Bay of Plenty District Health Board v [C] [2020] NZEmpC 149, (2020) 17 NZELR 545[Employment Court decision].2 Shaw v Bay of Plenty District Health Board NZERA Auckland 5593008, 23 May 2017.3 Shaw v Bay of Plenty District Health Board NZERA Auckland 5593008, 23 March 2018.(d) The fourth set of directions, issued in the form of interim orderspursuant to s 160(1)(f) of the Employment Relations Act 2000(the Act), provided that:4(i) H was to comply with the Authority's three previous directions,as was Ms Shaw; and(ii) H was to take down from the website of his company, C, certainFacebook posts which had commented on the DHB's positionin respect of the Authority's current investigation intoMs Shaw's claim. Ms Shaw was also directed to take downposts on her Facebook page concerning the Authority'sinvestigation.[4] The application leading to the making of the fourth of those sets of directionshad originated on an ex parte basis for penalty, contempt and takedown orders. At thatstage only Ms Shaw was a party, but the DHB sought the orders on the basis theywould apply not only to Ms Shaw, but also to H and to C. The Authority recorded ina direction of 3 December 2018:5[9] The ex parte application made by the DHB has been made in respectof Ms Shaw, Ms Shaw's representative, [H] and [C]. Neither [H] or [C] areparties to the current matter before the Authority. The application has beenmade pursuant to ss. 133, 133A, 134A, 136(2) and 196 of the EmploymentRelations Act 2000 ("the Act").[11] The Authority considers it necessary for an application by the DHB tobe lodged under s. 158 of the Act,6 against each of the parties against whom itseeks orders and penalties. The application is to be on notice.[5] Notwithstanding that decision, the Authority made the interim orders referredto above as the fourth set of directions.4 Shaw v Bay of Plenty District Health Board NZERA Auckland 5593008, 3 December 2018 at[13]–[16].5 Shaw v Bay of Plenty District Health Board, above n 4 (footnote added).6 Section 158 provides "Proceedings before the Authority are to be commenced by the lodging ofan application in the prescribed form".[6] Shortly thereafter, on 7 December 2018, the Authority released itsdetermination, finding that Ms Shaw had not been unjustifiably dismissed bythe DHB.7[7] Further, and in accordance with the Authority's decision on the ex parteapplication, on 10 December 2018 the DHB filed a statement of problem in theAuthority seeking declarations, penalties and contempt orders. That statement ofproblem recorded C, H and Ms Shaw as the first, second and third respondentsrespectively.[8] As it happens, that statement of problem would not be determined bythe Authority; rather the proceeding was removed on the DHB's application tothe Employment Court on 25 February 2019.8[9] H and the other defendants opposed liability for any of the orders the DHBsought, principally on the basis the Authority lacked jurisdiction to make those orders.Whilst they had originally applied to strike out the DHB's application as disclosing noreasonably arguable cause of action, they subsequently discontinued that strikeout application. The parties agreed the Employment Court should determine thejurisdiction issues as preliminary questions on the basis of an agreed summaryof facts.9[10] The background does not, however, end there. Shortly before the EmploymentCourt released its decision on those jurisdiction issues, in August 2020 H filed inthis Court an application for judicial review of 16 directions of the Authority and sevendecisions of the Employment Court. Those decisions were made in the context ofthree separate employment disputes, including the present one. The respondents tothat application, including the DHB, jointly applied to strike out the proceeding.It would be some time before that proceeding was resolved.7 Shaw v Bay of Plenty District Health Board [2018] NZERA Auckland 390.8 Bay of Plenty District Health Board v [C] [2019] NZERA 101.9 At [5].Employment Court decision[11] In a comprehensive decision of 22 September 2020, Judge Corkill determinedthe preliminary issues.10 He held the Authority had jurisdiction to make the first three,but not the fourth, set of directions.11 In doing so, the Judge referred to:12(a) Section 160(1)(f) of the Act, which provides the Authority may, ininvestigating any matter, "follow whatever procedure the Authorityconsiders appropriate".(b) Section 173(1), which provides the Authority must, in exercising itspowers and functions, comply with the principles of natural justice andact in a manner that is reasonable, having regard to itsinvestigative role.(c) Regulation 4 of the Employment Relations Authority Regulations2000, which refers to the Authority's power to give "any directions thatare necessary or expedient in the circumstances of the case".(d) Finally, the Authority's "significant court-like powers of enforcementof its processes".13[12] The Judge concluded the Authority had broad jurisdiction to issue directionsfor the purposes of ensuring the fair conduct of proceedings before it. Such directionscould also be made against any person representing a party.14 The Authority waspermitted to balance any right to freedom of expression against natural justiceconsiderations.15 Against that background, the first three sets of directions wereproperly made.10 Employment Court decision, above n 1.11 At [170].12 At [47] and [49].13 At [52], referring to s 134A (penalties for obstructing or delaying investigation), ss 137 and 138(compliance orders) and s 196 (application of some provisions of the Contempt of Court Act2019).14 At [86].15 At [105].[13] As regards the fourth set of directions, however, the Authority had erred.The Judge referred to s 173(2) and (3) of the Act which provides that, whilst theAuthority may exercise its powers in the absence of one or more "parties", it mustprovide an absent party with any relevant material it has received and an opportunityto comment on that material.16 Whilst H and C were not parties, the Judge consideredit would have been preferable for the Authority to have directed "very urgent service"of the DHB's ex parte application on all the affected persons and to have providedthem with the opportunity of being heard.17 The Judge went on:[152] I conclude that the fourth direction should not have been made,notwithstanding the difficult circumstances which the Authority was requiredto consider. It is regrettable that the DHB did not when seeking substantiveorders issue fresh proceedings against each of Ms [Shaw], [H] and [C] in thefirst instance.[14] H did not bring his application for leave to appeal Judge Corkill's decisionunder s 214 of the Act within the 28-day time limit.Subsequent events[15] A year or so after the Employment Court decision, this Court struck out H'sjudicial review proceeding in a decision of 4 October 2021.18[16] In that same month, H:(a) applied for leave to appeal this Court's decision to the Supreme Court,which was later declined;19(b) filed an application in the Employment Court for judicial review ofthe directions;20 and(c) filed the present application for an extension of time, approximatelya year out of time, to appeal Judge Corkill's September 2020 decision.16 At [145].17 At [151].18 H v Employment Relations Authority [2021] NZCA 507.19 H v Employment Relations Authority [2021] NZSC 188.20 The DHB has applied to strike out this application and is, as we understand matters, awaitingjudgment.This application[17] Rule 16A of the Court of Appeal (Civil) Rules 2005 provides that an applicantmay apply to this Court to extend the time to apply for leave to appeal under s 214 ofthe Act. Under s 214(3) of the Act leave may be granted if, in the opinion of this Court,the proposed question of law is one that by reason of its general or public importanceor for any other reason ought to be submitted for determination.[18] The well-known principles of Almond v Read apply to the exercise of thediscretion to grant an extension.21 The ultimate question is what the interests of justicerequire.22 The factors relevant to that inquiry include the length of the delay andthe reasons for it; the parties' conduct, particularly of the applicant; the extent of anyprejudice to the respondent; and the significance of the issues raised by the parties andmore generally.23[19] The merits of the proposed appeal may also be relevant, but any considerationof the merits is necessarily relatively superficial.24 The Supreme Court observed thata court should only reach a view about the merits where they are "obviously verystrong or very weak".25 We recognise, at least at a superficial level, the scope of theAuthority's statutory powers to issue directions such as those made in the present caseis an issue capable of argument. The Employment Court's extensive analysis may beseen as reflecting that. However, balanced against that consideration are the otherarguments as to errors about which H complains which are clearly hopeless.In particular:(a) The Authority plainly has the power to remove proceedings tothe Employment Court. In striking out H's judicial review proceeding,this Court observed:26 [I]t is apparent from the statutory scheme that theEmployment Court is the appropriate forum for challenges to21 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801; and B v ALA [2021] NZCA 229 at [8].22 Almond v Read at [38].23 At [38].24 At [39(c)].25 At [39(c)], referring to R (Hysaj) v Secretary, State for the Home Department [2014] EWCA Civ1633, [2015] 1 WLR 2472.26 H v Employment Relations Authority, above n 18, at [37].orders and determinations of the Authority, whether by appealor review. The Employment Court was considering within itsjurisdiction challenges to determinations of the Authority. (b) H identifies some 14 errors of law made by the Employment Courtconsisting of "exaggerations and misquotation[s]". In our view theyare neither and are also not issues of public importance.(c) Finally, H submits what he describes as the "layering of baselessprocedure over the baseless origin" presents a serious reputational riskfor the employment jurisdiction and for the DHB's governance.That may be H's view, but it is not a ground of appeal.[20] Here, we are of the view that, notwithstanding any potential for argument to beraised as to the scope of the Authority's powers, other factors point strongly againstthe grant of an extension.[21] The first is that H's application follows a significant, year-long, delay.H explains that delay in making this application by reference to the fact thatthe judicial review proceedings were already on foot. However, we note that inMoodie v Employment Court, the applicant's "deliberate decision to seek judicialreview rather than to appeal" was part of the reason this Court declined an extensionof time.27 Whilst H is not legally trained like the applicant in Moodie and allowingfor the fact he is self-represented, the delay here is also ten months longer thanin Moodie.[22] Secondly, H has filed multiple other applications concerning the same matterthe proposed appeal would raise. H submits an extension is "appropriate because thismatter has been heavily contested from the outset". However, we agree with the DHBthat there is clear prejudice to it having to continue to defend proceedings in whichH has been largely unsuccessful.[23] We are therefore satisfied H's application does not satisfy the Almond v Readcriteria for an extension being granted in these circumstances.27 Moodie v Employment Court [2012] NZCA 508, [2012] ERNZ 201 at [49].Result[24] The application for an extension of time is declined.[25] The applicant must pay the respondent costs for a standard application on aband A basis and usual disbursements.Solicitors:Holland Beckett Law, Tauranga for Respondent