Employment Court of New Zealand Te Kōti Take Mahi o Aotearoa

[2020] NZEmpC 124 Southern Taxis Ltd v A Labour Inspector (Costs Judgment of Judge B A Corkill, 17 August 2020) COSTS – company was partially successful in defending claim of Labour Inspector – costs calculated were reduced by 33%.

Contract / Property / Applicants claimed $4063.74 for balance of rental they argued was owing at Covid-19 Level 3 as well as valuation and legal costs / Whether Tribunal had jurisdiction to hear claim / Whether there was a settlement as to rent to be paid / Whether the Trust could recover valuation and legal costs / Held: dispute over settlement meant Tribunal had jurisdiction to hear the claim / there was settlement as to the rent / Therefore the Applicants cannot recover for the balance of the rent / Reduction of rent during Covid-19 not an enforcement matter / Applicants cannot recover the valuation and legal costs / claim dismissed.

[2020] NZEmpC 122 HST v KAG (Judgment of Judge K G Smith, 10 August 2020) APPLICATION FOR EXTENSION OF TIME TO FILE A CHALLENGE – employer challenged decision, prompting employee to also want to challenge – employer received extension of time to challenge costs – inconsistent with equity and good conscience to deny application.

Penalty / misconduct and unsatisfactory conduct / practitioner made arrangements to permit a struck-off practitioner to practise / what is the appropriate penalty and should practitioner be granted name suppression / HELD / ordinarily, permitting another practitioner to circumvent penalty would result in suspension or strike-off / practitioner’s specific circumstances allow a compassionate and proportionate response / unblemished record, health concerns, and has ceased practice / threshold for name suppression not met / Tribunal ordered censure and $10,000 fine / practitioner to pay reasonable contribution to Standards Committee’s costs and Tribunal’s costs

Liability and penalty / unsatisfactory conduct / trust account inspection orders / failure to comply with inspection order and education order / failure to note deadlines and prioritise tasks to comply with order / practitioner has since complied with orders / Lawyers and Conveyancers Act 2006, section 241(c) / HELD / conduct not disgraceful or dishonourable / by a fine margin, did not disregard professional obligations / partially complied with order as to fine and costs / conduct not negligent or incompetent per s 241(c) as conduct did not occur so frequently and was not so serious as to bring profession into disrepute / unsatisfactory conduct found / Tribunal ordered censure and $3,750 fine / practitioner to pay Standards Committee’s and Tribunal’s costs / ceased operating trust account on agreed basis

[2020] NZEmpC 115 Kohli v Brahmbhatt (Judgment of Judge J C Holden, 4 August 2020) APPLICATION TO STRIKE OUT PROCEEDINGS – security for costs were ordered but not paid – delay is relatively short so far – final opportunity granted for security to be paid.

Trespass / Applicants were trustees occupying land within city boundary / Applicants cropped part of the land with lucerne / Stock owned by Second Respondent on adjoining paddock accessed the paddock growing lucerne / Applicants sought damages / Whether the stock was owned by the Second Respondent / Whether the land was situated within the city boundary / If not, whether the fence was adequate / Whether the costs claimed reasonable / Held: Accepted that the stock was owned by the Second Respondent / All parties agreed the land was within the city boundary / Trust entitled to demand damages from the Second Respondent / Damages related to unharvested lucerne / Trust did not mitigate its loss by harvesting promptly after the stock trespass / Parties agreed $135.00 was fair amount for a bale of lucerne / Second Respondent ordered to pay Applicants $8505.00 for 63 bales by specified date / claim allowed.

Date of Decision 27 July 2020. Privacy Act 1993.

Sanctions decision / negligence / dishonest or misleading conduct / adviser failed to inform complainant he was not eligible for citizenship & accepted money for application without undertaking any work / lack of proper file documentation / adviser failed to respond to INZ’s letter of concern & inform complainant visa declined / Immigration Advisers Licensing Act 2007, s50, s51 / misconduct serious / adviser found to be dishonest & negligent / dishonesty for personal gain / adviser gave no explanation or apology & showed no remorse / adviser censured & prevented from reapplying for licence for 2 years / adviser ordered to pay penalty of $7,000 & refund fees of $5,150.

Negligence / appeal against decision of Registrar rejecting negligence complaint / work visa / INZ requested further information / adviser failed to provide information by due date due to a clerical error / work visa declined & appellant became unlawful in New Zealand / Immigration Advisers Licensing Act 2007, s442 / Code of Conduct 2014, cl1 / adviser accepted responsibility for mistake, offered two remedial options & refunded fees / breach of cl 1 but adviser’s professional response meant complaint did not meet disciplinary threshold/ appeal rejected.

Penalty / practitioner’s plan to manage alcohol addiction, which was connected to offending / arrangements in place for regular support, counselling, monitoring and mentoring / HELD / Tribunal endorsed practitioner’s support arrangements and undertakings / goals of rehabilitation and safeguards met by arrangements / further matters considered include nature of offending, low probability of similar difficulties occurring in future, time since offending, previous disciplinary history, willingness to rehabilitate, and the area’s need for competent criminal barristers with practitioner’s enthusiasm / Tribunal ordered censure including final warning / practitioner to pay $20,000 of Standards Committee costs as agreed with the Committee and to pay 75 per cent of the Tribunal’s costs

Complaint / Committee determined to take no further action on complaint / breaches of franchise agreement / complaint lawyers’ advice was negligent and that fees were excessive and no estimate was provided/ fee complaint / Auckland Standards Committee No 3 v Castles [2013] NZLCDT 53 / Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rule 3 / rule 9 / rule 9.1 / rule 9.4 / HELD / complainant defaulted on various obligations when instructing lawyers / no right or wrong approach to litigation strategy / test for unsatisfactory conduct involves competence and diligence / no evidence of professional standards issue regarding advice / complainant did not request an estimate / although Committee did not appoint a costs assessor, it would have been reasonable for lawyers to consider an uplift in the circumstances of the retainer / this mitigates complaint that fees rendered were excessive / Committee’s decision confirmed / section 211(1)(a)