Scarborough v Micron Security Products Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

CA209/2016
[2016] NZCA 372

BETWEEN	YASODHARA DE SILVEIRA SCARBOROUGH Applicant
AND	MICRON SECURITY PRODUCTS LTD Respondent

Hearing:	1 August 2016
Court:	Kós P, Winkelmann and Cooper JJ
Counsel:	Applicant in person D J France and S Worthy for Respondent
Judgment:	11 August 2016 at 10 am

JUDGMENT OF THE COURT

AThe application for extension of time is dismissed.
B Ms Scarborough must pay Micron costs for a standard application on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Kós P)

Mrs Scarborough applies for extension of time to seek leave to appeal against a decision of the Employment Court.[1] It is the second application made by Ms Scarborough in this Court in recent times. Our earlier decision, refusing leave to appeal two costs decisions of the Employment Court, sets out the background sufficiently.[2]
[1]Scarborough v Micron Security Products Ltd [2015] NZEmpC 39.
[2]Scarborough v Micron Security Products Ltd [2016] NZCA 54.
The basis for the present application for extension of time is that Ms Scarbrough, self-represented, mistakenly appealed the costs judgments, rather than the substantive judgment. And that the substantive judgment is unsatisfactory, giving rise to meritorious questions of law.
We are not satisfied that Ms Scarborough has adequately explained her lengthy delay. Her application was filed more than a year after the date of the substantive judgment below. We do not accept Ms Scarborough was confused as to which judgment to appeal. In any event, our judgment in refusing leave to appeal against the costs decisions was delivered on 9 March 2016, yet the present application still was not filed for another two months.
Furthermore, we do not consider that the questions of law proposed are ones which are of reason of general or public importance for other reason ought to be submitted to this Court. In short, they are either factual in nature or devoid of merit.
The first question proposed is whether Micron erred in not fulfilling its statutory good faith obligations. That was however the conclusion in both the Employment Relations Authority and the Employment Court. The question is now moot.
The second suggested question is whether Micron breached a WINZ employment subsidy agreement. We do not consider that question relevant to the ultimate issues before the Authority and Court below. These were whether the redundancy was substantively justified (it being found that it was) and whether Micron had complied with its procedural obligations (it being found that it had not). In any event, we consider it to be fundamentally a question of fact rather than law.
The third question proposed is whether Micron erred in not reinstating Ms Scarborough or paying her lost remuneration. This is an intensely factual question. Ms Scarborough was invited by the Authority to produce evidence of financial loss, but did not. And any prospect of reinstatement was impossible given allegations Ms Scarborough had made against the managing director of Micron.

Result

The application for extension of time is dismissed.
Ms Scarborough must pay Micron costs for a standard application on a band A basis together with usual disbursements.

Solicitors:
Kiely Thompson Caisley, Auckland for Respondents

In the Court of Appeal of New Zealand, Yasodhara De Silveira Scarborough, the applicant, sought an extension of time to appeal a decision made by the Employment Court. The respondent in this case is Micron Security Products Limited. The crux of the dispute revolves around the applicant's contention that she had mistakenly appealed the wrong judgment and that the substantive judgment contained meritorious questions of law. The Court of Appeal was tasked with determining whether the application for an extension of time should be granted and whether the proposed questions of law warranted further consideration.

The legal issues before the Court were twofold. Firstly, whether the applicant had adequately justified the significant delay in filing the application for an extension of time. Secondly, whether the proposed questions of law had merit and were of general or public importance. The Court scrutinized the applicant's reasons for the delay, the factual versus legal nature of the proposed questions, and the relevance of these questions to the employment dispute.

In its judgment, the Court found that the applicant had not satisfactorily explained her delay in filing the application. Despite the applicant's claim of confusion over which judgment to appeal, the Court noted that the applicant had ample time to correct her error after the Court's earlier judgment on 9 March 2016. Furthermore, the questions of law proposed were either factual in nature, irrelevant to the issues before the lower courts, or devoid of merit. Consequently, the Court dismissed the application for an extension of time. The applicant was also ordered to pay the respondent's costs for the application.

The Court concluded that the application for an extension of time was dismissed and that the applicant must pay the respondent's costs for a standard application on a band A basis, along with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established