Bowen v Bank of New Zealand

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA324/2021
[2021] NZCA 598

BETWEEN	MELISSA JANE BOWEN Applicant
AND	BANK OF NEW ZEALAND Respondent

Court:	Kós P and Cooper J
Counsel:	M W O’Brien for Applicant R M Rendle and M G Bolwell for Respondent
Judgment: (On the papers)	12 November 2021 at 9 am

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.
B The application for stay is declined.

CThe applicant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Ms Bowen sought, but failed, to persuade the Employment Court to grant special leave for removal of her proceeding for personal grievance from the Employment Relations Authority to the Court.[1] She seeks leave to appeal to this Court.[2] She seeks also an order for stay of the proceeding in the Authority pending determination of that appeal.
[1]Bowen v Bank of New Zealand [2021] NZEmpC 71. Ms Bowen argued an important question of law was likely to arise in her matter other than incidentally: Employment Relations Act 2000, s 178(2)(a).
[2]Employment Relations Act, s 214(1).
Such an appeal requires identification of a question of law that, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.[3]
[3]Section 214(3).
We will assume for present purposes, but without deciding the point, that the statutory provision is broad enough to encompass an appeal against non-removal.[4] However, such an appeal raises no intrinsic question of law, let alone one that calls for decision by this Court because of general, public or other importance. That the underlying proceeding may possibly involve an important question of law does not mean that the decision where to hear that question is itself important and one needing this Court’s opinion.
[4]Cf Lane v Esdaile [1891] AC 210 (HL); Collier v Elders Pastoral Ltd (No 2) (1991) 3 PRNZ 478 (CA); Simes v Tennant (2005) 17 PRNZ 684 (CA); and Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274 (CA).
It follows also that the application in this Court for stay should be declined.

Result

The application for leave to appeal is declined.
The application for stay is declined.
The applicant must pay the respondent costs for a standard application on a band A basis with usual disbursements.

Solicitors:
Just Lawyers (NZ) Ltd, Auckland for Applicant
Simpson Grierson, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand was presented with an application from Melissa Jane Bowen, who sought leave to appeal a decision made by the Employment Court. The Employment Court had declined Bowen's request for special leave to transfer her personal grievance proceeding from the Employment Relations Authority to the Court. Bowen's application to the Court of Appeal sought not only leave to appeal but also a stay of the proceeding in the Authority pending the determination of the appeal. The Bank of New Zealand was the respondent in both the Employment Court and the Court of Appeal proceedings.

The legal issues before the Court of Appeal included whether the statutory provision for leave to appeal was broad enough to encompass an appeal against a non-removal decision and, if so, whether such an appeal raised an intrinsic question of law that warranted the Court's attention. The Court considered if the underlying proceeding involved an important question of law that would make the decision on where to hear it a matter of general or public importance, deserving of the Court's opinion.

In its judgment, the Court of Appeal, presided over by Kós P, declined to grant leave to appeal. The Court reasoned that while the statutory provision could be interpreted to allow for an appeal against a non-removal decision, such an appeal did not present an intrinsic question of law that required the Court's decision. The Court further noted that the potential importance of the underlying proceeding did not necessarily translate to the importance of the decision on where to hear the question. Consequently, the application for a stay was also declined. The Court ordered that Bowen must pay the Bank of New Zealand's costs for a standard application on a band A basis, along with usual disbursements.

The Court of Appeal dismissed Bowen's application for leave to appeal and her request for a stay of the proceeding in the Authority. Bowen was also required to pay the Bank of New Zealand's costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established