David McAlister v Air New Zealand

IN THE SUPREME COURT OF NEW ZEALAND
SC 49/2008
[2008] NZSC 76
BETWEENDAVID McALISTER

Appellant

ANDAIR NEW ZEALAND

Respondent

Court:Elias CJ, Tipping and McGrath JJ
Counsel:R E Harrison QC for Appellant

A H Waalkens QC and K M Thompson for Respondent

Judgment:7 October 2008

JUDGMENT OF THE COURT

AThe application for leave to appeal against the judgment of the Court of Appeal in Air New Zealand Ltd v McAlister [2008] NZCA 264 is granted.
BThe approved ground of appeal is:
Did the demotion of the appellant from his position as a B747-000 Flight Instructor to one of First Officer occur by reason of a prohibited ground of discrimination, namely his age, in terms of s 104(1)(a) or (b) of the Employment Relations Act?

CThe respondent should address its alternative argument in support of the Court of Appeal’s judgment in submissions that it files as respondent in the appeal. Any reply to those submissions by the appellant must be confined to that alternative argument.

REASONS

[1] The Court doubts that the respondent’s alternative argument will amount to another ground of appeal in terms of r 20(4). It appears to be an incidental argument of meaning based on purposive interpretation. We consider that counsel for the appellant may be able to anticipate the argument and adequately address it in his submissions on appeal, thereby obviating any need for a written reply to the respondent’s submissions. If, however, counsel for the appellant considers it necessary to file a written response, he may do so confining it to that point. In general the Court expects points of an appellant in reply to be made orally at the hearing of the appeal.
Solicitors:
Shanahans, Auckland for Appellant

CaseChat Overview and Summary

In David McAlister v Air New Zealand, the Supreme Court of New Zealand granted the appellant leave to appeal against the Court of Appeal’s decision. The appellant, David McAlister, a former B747-000 Flight Instructor for Air New Zealand, had his position demoted to that of First Officer, which he contested on the basis of age discrimination under the Employment Relations Act. The central issue before the Supreme Court was whether McAlister's demotion was a result of discrimination based on his age, specifically under sections 104(1)(a) or (b) of the Employment Relations Act. The Court considered the alternative argument presented by the respondent, Air New Zealand, which the Court anticipated might be addressed during the appeal submissions.

The Supreme Court expressed doubt about the respondent’s alternative argument amounting to another ground of appeal. The Court perceived it as an incidental argument related to the purposive interpretation of the law. The Court expected the appellant's counsel to adequately address this argument in oral submissions during the appeal hearing. Should the appellant's counsel decide to provide a written response, it would be limited to addressing this specific point. The Court emphasized that generally, points in reply to the respondent's submissions should be made orally during the appeal hearing.

The final orders of the Supreme Court instructed the respondent to address its alternative argument in its submissions as the respondent in the appeal. Any reply by the appellant to these submissions should be confined to the alternative argument. The Court anticipated that most points in reply would be made orally during the hearing of the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established