Nisha v LSG Sky Chefs New Zealand Ltd [2018] NZEmpC 33 

Employment Court - Costs on costs judgement

The employer, LSG, had successfully defended a personal grievance claim brought by a former employee. The employee’s claim had been financed by PRI, one of LSG’s competitors, and co-ordinated by Mr Hay, a former director of PRI. 

The employee’s claim had been advanced aggressively and involved many interlocutory applications to the point the Employment Court described it as vexatious. In a costs judgement, the Court awarded substantial costs in favour of LSG. The responsibility for the costs was split between the employee, PRI and Mr Hay. LSG sought a contribution to costs incurred in relation to the costs judgment. 

The Employment Court noted that it had the ability to award costs on costs. This was to be done in accordance with the costs principles which normally apply to interlocutory applications: para [13]-[17]. The Court found it was appropriate to award costs in this case. The successful party had gone to extraordinary lengths to pursue costs and a three day hearing had to be devoted to the issue: para [18]. 

The Court went on to apply the established principles relating to costs. The employer had made a Calderbank offer which included an amount for costs in the Court and Authority. The consequences of the employee’s unreasonable refusal of the Calderbank offer were held to extend to PRI and Mr Hay given their integral involvement in the litigation: para [26]. A scale approach was not appropriate given the complexity of the case: para [34]. LSG reported that it incurred a total of $47,315 in legal fees for the matter of costs. The Court held this amount was a fair and reasonable starting point for assessing costs: para [35]. 

In many respects, the case advanced for PRI was different from that advanced for Mr Hay. Accordingly, it was not appropriate to make a joint and several order: para [52]. Due to the unusual circumstances of the case it was appropriate to depart from the usual approach of modest orders for costs on costs. PRI and Mr Hay were liable for 80 per cent of costs for which they were responsible. In light of the employee’s impecuniosity, a nominal amount of $1,000 costs was awarded against her: para [48]. 

Link to case [PDF 290 KB] (external link)  

South Canterbury District Health Board v Sanderson [2018] NZCA 82 

Court of Appeal – Application for leave to appeal on questions of law 

The Employment Court previously held that anaesthetic technicians were working for the purposes of the Minimum Wage Act 1983 while they were on call. The employer sought leave to appeal this decision on the grounds that there were important questions of law. 

The Court of Appeal held that three of the five the questions posed by the employer were simply matters of factual evaluation undertaken in the course of applying the relevant legal test: para [8]. 

The employer argued that the Employment Court erred in failing to consider the effects of s 56 of the Holidays Act 2003 or s 67D of the Employment Relations Act 2000 when applying s 6 of the Minimum Wage Act 1983. The Court held that the interplay between different statutory provisions could potentially constitute a question of law.

However, the significance of other provisions depends of the degree of relatedness: para [9]. It concluded that the Holidays Act 2003 is quite different legislation form the Minimum Wage Act 1983 and was not intended to impact the interpretation or application of s 6: para [9]. Similarly, it was not apparent why s 67D of the Employment Relations Act 2000 was significant in the context of the intensely practical inquiry that is required when deciding whether a person is working for the purposes of s 6 of the Minimum Wage Act 1986: para [10]. 

Leave to appeal was declined. 

Link to case [PDF 154 KB] (external link)

Page last revised: 31 May 2018