THE ORDER OF ST JOHN MIDLAND REGIONAL TRUST V PHILIP GREIG CA CA70/03

THE ORDER OF ST JOHN MIDLAND REGIONAL TRUST V PHILIP GREIG CA CA70/03 14 July 2003IN THE COURT OF APPEAL OF NEW ZEALAND CA70/03BETWEEN THE ORDER OF ST JOHN MIDLAND REGIONAL TRUST Applicant AND PHILIP GREIG Respondent Coram: Blanchard J Tipping J Anderson J Appearances: G H J Brant for Applicant J Peebles, Advocate, for Respondent Judgment (On the papers): 14 July 2003JUDGMENT OF COURT DELIVERED BY BLANCHARD J[1] This is an application for leave to appeal to this Court on a question of law under s214 of the Employment Relations Act 2000. We have been requested by the parties to deal with the matter on the basis of their written submissions. [2] Mr Greig was employed by the Order of St John but was summarily dismissed for serious misconduct on 29 August 2001. He believed that his dismissal was unjustified and took the matter to the Employment Relations Authority. He was represented before the Authority by Mr Peebles, an industrial relations consultant, acting as an Advocate. Mr Greig lost. The Order of St John then sought costs. On the basis of actual legal costs incurred of $20,153, it sought an order for costs between $10,000 and $13,400 but the Authority limited the award of costs to $1,500. [3] Dissatisfied with the costs award, the Order of St John has sought a de novo hearing on costs alone in the Employment Court. It believes that it is relevant to thatproceeding that there may have been a contingent fee arrangement between Mr Greig and Mr Peebles. The Order wishes to argue that where such an arrangement exists and the plaintiff who is a party to it ought properly to pay costs, then those costs should be awarded more generously as an economic incentive against the bringing of unmeritorious claims under an arrangement which is relatively risk free. [4] The Order therefore served a notice requiring disclosure and, upon discovery being refused, Judge Colgan was asked to give a ruling which he did in an interlocutory judgment on 25 March 2003. The Judge declined to order discovery and the present application for leave to appeal concerns that decision. [5] For the Order of St John, Mr Brant submits that the issues of law of general or public importance are whether the fact that an unsuccessful plaintiff had the benefit of a contingency fee arrangement (and the terms of that arrangement) is a relevant factor when determining costs; and, if it is a relevant factor, whether a successful defendant is entitled to discovery of the documentation concerning the arrangement and whether such documents are privileged. [6] Those may be interesting questions, but it is not appropriate that leave be granted in this case because effectively there is a prior issue of fact which has been determined against the Order of St John. Mr Peebles gave his personal assurance to the Employment Court that neither he nor Mr Greig had any documents relating to fees or fee arrangements because the arrangements between them were conducted orally. The Judge recorded that Mr Greig had made an unsworn statement (albeit signed in the presence of a District Court Deputy Registrar) that Mr Brant accepted for the purposes of the application as the equivalent of a statement on oath. Mr Greig had said that the costs were a matter between himself and his Advocate and that they had decided a price between them. "There was a monetary value to me and this was paid". [7] Judge Colgan considered that Mr Peebles' assurance to the Court that there were no documents of the sort the plaintiff wished to have, together with Mr Greig's unsworn statement, were determinative of the issue concerning the objection to disclosure. In other words, he made a finding that there was as a matter of fact nodocumentation to be discovered. That is a factual finding which is not susceptible of challenge in this Court by appeal under s214 and renders moot the question of law. [8] Leave to appeal is accordingly refused.Solicitors: Stace Hammond, Hamilton for Applicant