Board of Governors of Wesley College v Richardson

[2000] NZCA 88

IN THE COURT OF APPEAL OF NEW ZEALAND CA 256/99

BETWEEN	BOARD OF GOVERNORS OF WESLEY COLLEGE
Appellant

AND	ELLEN CATHERINE RICHARDSON
Respondent

Hearing:	19 June 2000
Coram:	Henry J Thomas J Keith J
Appearances:	J E Latimer for Appellant A M Fitzgibbon for Respondent
Judgment:	19 June 2000

JUDGMENT OF THE COURT DELIVERED BY THOMAS J

1. The appellant has applied for special leave to appeal against a judgment of the Employment Court dated 24 September 1999.

2. The respondent is a teacher who was dismissed by the appellant.  Her personal grievance claim was rejected by the Employment Tribunal but upheld in the Employment Court.  The appellant filed a notice of appeal on 21 October 1999.  It was filed within the 28 day limit.  See RR 5 and 6 Court of Appeal (Civil) Rules 1997. Under R 10, however, an appeal is treated as being abandoned if, among other things, the appellant does not apply for a fixture within six months after the appeal is brought.  The appellant filed a case on appeal and points on appeal on 20 April 2000, one day before the six-month period expired.  It did not, however, apply for a fixture at that time.  It remedied the omission on 1 May 2000.

3. The appeal is therefore deemed to be abandoned.  See Airwork (NZ) Ltd v Vertical Flight Management [1999] 1 NZLR 29, at 31. Although the Court has jurisdiction under R 10(2) to extend the time for applying for a fixture, this discretion can only be exercised during the six-month period, and not after that time.

4. The appellant has therefore applied to bring a separate appeal by special leave pursuant to R 5.  In the Airworks case this Court observed that, although this course is theoretically open, the Court is unlikely to grant leave “save in exceptional circumstances”.  The question is whether such circumstances exist in this case.

5. This Court considered this issue in Bullock & Co Ltd v Matthews (1998) 13 PRNZ 505, in which it granted special leave.  The test is essentially whether it is in the interests of justice for the appeal to proceed.  See Bullock’s case at 508.  A number of circumstances are discussed in that case which are relevant to the exercise of discretion under R 5 in a situation such as the present.  While these circumstances provide a good starting point, however, they do not limit the Court’s discretion.  And in this case it is sufficient to dispose of the application having regard to the overall interests of justice.

6. The appellant in this case was intending to prosecute its appeal.  The notice of appeal, a case on appeal and the points on appeal were all filed in time.  It was purely an oversight by the solicitors who act for the appellant that the fixture was not also applied for then.  The solicitors moved promptly on discovering their oversight.  Notwithstanding the interruption of the Easter break, they applied for a fixture 11 days later.

7. We are aware of the hardship to the respondent.  She was dismissed from her job and lost the use of favourable rental accommodation on 27 April 1998, the date of the Tribunal’s decision.  On 14 September1999 the appellant successfully applied to cancel her Teachers Registration.  Although she has remained employed throughout, the respondent has suffered a significant reduction in income in a different kind of work.  She has been forced to sell her home and has been left with a substantial debt from her mortgage and legal fees.

8. The matters relevant to this application, however, fall within a narrower compass.  The appellant was clearly intending to prosecute the appeal.  Its solicitors carried out a considerable amount of work relating to the appeal.  Their failure to apply for a fixture was obviously an oversight.  The lapse in time before an application was made was not great.  No prejudice to the respondent can be traced to the failure to apply for a fixture in time.  In these circumstances, the appellant should not be denied access to the Court.  The appeal will therefore proceed.  We make no comment on the merits of the appeal.  The appellant will be aware that in the circumstances it may carry a heavier burden of costs than might otherwise be the case should its appeal prove meritless.

9. The application is allowed.  As leave is an indulgence to the appellant, the respondent is entitled to costs.  There will be an award of costs in her favour of $1,500 together with disbursements, including any travelling and accommodation expenses which, failing agreement, are to be fixed by the Registrar.

Solicitors

Kensington Swan for Appellant, Auckland

Jackson Russell, Auckland for Respondent