| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 64/07 |
| Hearing date | 8 Mar 2007 |
| Determination date | 08 March 2007 |
| Member | R A Monaghan |
| Representation | J Burt ; A Sharp |
| Location | Auckland |
| Parties | McKelvie v Spacific Yearbooks Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE – Whether letter marked “without prejudice” could raise personal grievance – On any reading, letter to respondent’s counsel raised grievances – Whether privilege meant letter could not be produced or relied on in evidence – Authority considered contents of letter with reference to bearing on settlement negotiations – Due to nature of letter, Authority did not accept approach offended against judicial disapproval of “dissecting out” admissions from rest of without prejudice communication – Privilege properly invoked in respect of “remedies sought” section as had bearing on, or reasonably incidental to, any attempt to settle – Authority had difficulty accepting “background facts” section had that kind of relevance to negotiations – Investigation and determination of grievances would be impeded if correspondence withheld because without prejudice written at start – Section of letter raising grievances had nothing else to do with settlement negotiations – Authority did not believe it could be anything but misled if nothing in evidence to show grievances raised by letter when that was exactly what happened and both parties knew it – If applicant forced to apply for leave to raise grievance out of time the process involved in determining application would compound the misleading of the Authority – Not in interests of justice to permit withholding in entirety a letter raising a personal grievance, particularly if resulted in absence of evidence grievances raised at relevant time – Injustice would be exacerbated by forcing grievant into further litigation to seek leave – Without prejudice letter could raise grievance, but if matter proceeded to litigation and admissibility of letter in issue, question was whether legal tests for attracting without prejudice privilege were met – Authority did not believe they were met in respect of part of letter which raised applicant’s grievances |
| Result | Question answered in favour of applicant ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s114;Labour Relations Act 1987 |
| Cases Cited | Cedenco Foods Ltd v State Insurance Ltd (1996) 10 PRNZ 142;Covington Group Holdings Ltd v Zhong (2004) 17 PRNZ 819;D F Hammond Land Holdings Ltd v Elders Pastoral Ltd (1989) 2 PRNZ 232;Rush & Tompkins Ltd v Greater London Council [1988] 3 All ER 737, [1989] 1 AC 1280;Westgate Transport Ltd v Methanex New Zealand Ltd (2000) 14 PRNZ 81 |
| Number of Pages | 4 |
| PDF File Link: | aa 64_07.pdf [pdf 28 KB] |