INFINITY AUTOMOTIVE LIMITED v LORIGAN [2019] NZCA 161

INFINITY AUTOMOTIVE LIMITED v LORIGAN [2019] NZCA 161 [15 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA749/2018[2019] NZCA 161BETWEEN INFINITY AUTOMOTIVE LIMITEDApplicantAND PETER D'ARCY LORIGANRespondentCA761/2018BETWEEN INFINITY AUTOMOTIVE LIMITEDApplicantAND PETER D'ARCY LORIGANRespondentCourt: Williams and Gilbert JJCounsel: E J Coats for ApplicantRespondent in personJudgment:(On the papers)15 May 2019 at 3.00 pmJUDGMENT OF THE COURTThe applications for leave to appeal are declined.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The parties to these applications are engaged in an employment dispute.The respondent has brought two personal grievance claims against the applicant inrelation to this dispute.[2] On 8 August 2018, as the case proceeded toward a December 2018 fixture inthe Employment Court, that Court issued an "unless order".1 It required thatthe respondent file all his evidence by 5 November 2018. The order was necessarybecause of the respondent's past timetabling non-compliances. The respondent filedevidence by that date as directed, but on 14, 19 and 20 November 2018 he sought tofile yet further evidence.[3] The applicant applied to the Employment Court to strike the proceeding outfor non-compliance with the unless order.[4] Judge Corkill in the Employment Court refused the application in a judgmentdated 3 December 2018.2[5] He reasoned that since he had already ruled in the judgment that the late filedevidence be excluded (for multiple reasons: lateness, relevance, admissibility andcredibility), the respondent was only entitled to adduce the evidence filed incompliance with the unless order.3 This the Judge considered, rendered the strikeoutapplication moot.4The applications[6] Leave is sought to appeal that ruling. The applicant also seeks leave to appealagainst a minute of Judge Corkill dated 5 December 2018, repeating the ruling'sconclusion. We have considered these applications together. The applicant argues thatthe Judge made the following errors of law in refusing to strike out the respondent'sproceedings:(a) an unless order is automatic on non-compliance, with relief from suchautomatic effect only available in extreme cases productive of seriousinjustice to the non-compliant party;1 Lorigan v Infinity Automotive Ltd [2018] NZEmpC 89.2 Lorigan v Infinity Automotive Ltd [2018] NZEmpC 143.3 At [39]–[40].4 At [40].(b) the Court should therefore have automatically struck out the challengeswhen the respondent sought to file further late evidence;(c) the Judge took into account irrelevant considerations (the respondent'ssubsequent application for special leave to admit the late evidence andthe Court's refusal of that application) and failed to take into accountrelevant considerations (the Court's ruling on 8 August 2018 thatnon-compliance with the filing deadline would result in the challengesbeing struck out).[7] Further, the applicant submits that the appeal raises issues of significancebeyond the narrow interests of the parties to the substantive proceeding.Assessment[8] It is not seriously arguable that the unless order had been breached as atthe imposed filing date. Whether the further evidence could or should be filed wasa separate matter to be dealt with on its own merits. There can have been no prejudiceto the applicant in the way in which the Judge dealt with what was a straightforwardsubsequent case management issue involving a lay litigant.[9] In any event, the grounds advanced are case specific and do not raise fordecision any matter of general or public importance.Result[10] The applications for leave to appeal are declined.Solicitors:Bell Gully, Auckland for Applicant