JOANNE LOUISE SKINNER AND WARREN GREGORY TOBIN V STAYINFRONT INC AND ORS. CA CA18/07

JOANNE LOUISE SKINNER AND WARREN GREGORY TOBIN V STAYINFRONT INC AND ORS. CA CA18/07 24 April 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA18/07 [2007] NZCA 154BETWEEN JOANNE LOUISE SKINNER AND WARREN GREGORY TOBIN Applicants AND STAYINFRONT INC AND ORS. Respondents Hearing: 16 April 2007 Court: O'Regan, Robertson and Wilson JJ Counsel: R D Wallis for Applicants R L Towner for Respondents Judgment: 24 April 2007 at 3 pmJUDGMENT OF THE COURT A Leave to appeal is refused. B The applicants are ordered to pay the respondent costs of $1,500, together with usual disbursements. REASONS OF THE COURT(Given by Wilson J)Introduction[1] The applicants seek leave to appeal against a judgment of the Employment Court delivered at Auckland on 8 December 2006 in which that Court held that itwould determine as a preliminary question whether the applicants were precluded from raising personal grievances with the respondents because of earlier settlement agreements between the parties. [2] The respondents oppose the application on a number of alternative grounds, including that the Employment Court was correct in holding that only the preliminary matter had been determined by the Employment Relations Authority, the appeal did not raise a question at law and had no prospect of success because the applicants had affirmed the settlement agreements and the applicants did not obtain the leave of the Authority to raise their personal grievances out of time.Background[3] The applicants entered into settlement agreements with the respondents in 2002, pursuant to which they resigned from their employment in consideration of receiving substantial payments. These agreements contained comprehensive mutual releases of liability and were entered into after the applicants had obtained legal advice. [4] For more than two years after receiving payments, the applicants did not raise any claim that the settlement agreements were invalid. Moreover Mr Tobin in October 2003 sued on his settlement agreement in the Superior Court of New Jersey to recover the final amount payable to him, over which a dispute had arisen. He then entered into a further settlement agreement in August 2004 which referred to the 2002 settlement agreement and confirmed that the New Jersey claim was based on that agreement. [5] At the request of the respondents, the Authority accepted that the claim of the respondents that the applicants' personal grievance claims were precluded by the settlement agreements should be determined as a preliminary issue. [6] The Authority heard this point and upheld the position of the respondents that the claims were defeated by the earlier agreements, and in doing so rejected thecontention of the applicants that the agreements were invalid because they had been entered into under duress. [7] The applicants appealed to the Employment Court which, under the relevant legislation (s 187(1)(a) of the Employment Relations Act 2000) had jurisdiction to determine "a matter" previously determined by the Authority. [8] The Authority and the Employment Court both took the view that, in this case, the "matter" was the determination of the preliminary issue, and not the personal grievances as a whole. [9] In an attempt to overcome the statutory requirement that any appeal from the Employment Court to this Court must be on a matter of law, Mr Wallis argued that the proposed appeal would raise a question of law, of general importance, of whether, in a situation where the Authority had determined a preliminary question, the "matter" before the Employment Court on appeal was that preliminary determination or the substantive claim.Discussion[10] We would have thought it self evident that it was logical and sensible for the Authority, and the Employment Court on appeal, to determine as a preliminary question whether the personal grievances of the applicants were precluded by the settlement agreements into which they had previously entered with the respondents. Such an issue is often determined as a preliminary question, because if resolved in favour of the party relying upon the earlier agreement the litigation is brought to an end without putting the parties to the expense of a full hearing. [11] Mr Wallis sought to overcome this approach by arguing that, on the present facts, the use of the preliminary question procedure could put his clients to unreasonable expense by requiring them to make additional trips to this country from the United States. That argument, apart from being irrelevant to any possible question of law, is we think answered by the submission of Mr Towner that their evidence could be taken by a video link (as, Mr Towner told us, the evidence of arepresentative of his clients had been taken before the Authority) or by orders that evidence in one proceeding be admitted as evidence in another. [12] It can scarcely be said, on the present facts, that there is no realistic prospect of the litigation being resolved by the outcome of the argument on the preliminary question. The Authority has already upheld the position of the respondents and, quite apart from any other issues which might arise, the applicants will obviously have to surmount the difficulty of establishing that their acceptance of the payments under the settlement agreements, their delay in challenging them and (in the case of Mr Tobin) his action in suing upon the agreement did not amount to affirmation of them. [13] If the High Court on similar facts and in the exercise of its case management responsibility had directed the hearing of a preliminary question, this Court would not entertain an appeal against that decision. There can be even less justification for an appeal in the present case, given the statutory limitations on the right of appeal against judgments of the Employment Court. [14] We do not read the judgment in respect of which leave to appeal is sought as laying down any inflexible rule as to how the Court should determine matters coming to it from the Authority. On the contrary, the decision of the Court was no more than a decision as to how the present litigation was to be managed before it. As such, it cannot be said to raise any question of law.Decision[15] For these reasons, the application for leave to appeal is refused. [16] It goes without saying that, at the conclusion of the litigation in the Employment Court, the applicants will have the right to appeal by leave to this Court on any issue if they can satisfy the statutory requirements for the grant of leave.[17] The applicants must pay to the respondents costs in the total sum of $1,500 together with usual disbursements.Solicitors: D B Hickson, Auckland, for Applicants Bell Gully, Auckland, for Respondents