| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 131/09 |
| Hearing date | 28 Jan 2009 |
| Determination date | 24 April 2009 |
| Member | A Dumbleton |
| Representation | D Neilsen ; S Cook |
| Location | Auckland |
| Parties | A v Y Ltd & Anor |
| Summary | PENALTY – Applicant claimed respondents breached terms of mediated settlement agreement (“SA”) – Applicant sought penalty against both respondents and claimed director of respondents (“D”) caused breach – SA contained full and final settlement clause (“Clause 1”) and clause that no legal action to be taken against applicant (“Clause 2”) – Private investigation firm engaged by association (“X”) representing interests of particular industry in which applicant employed by respondents – X concerned possible criminal conduct by applicant while employed by second respondent (“Z”) – Applicant argued private investigator (“M”) approached D and D disclosed information to M in breach of SA – Respondents argued despite SA information disclosed by D remained discoverable and admissible by others – D also argued entitled to witness immunity arising from forthcoming criminal trial against applicant – M met with D, and subsequently search warrant executed permitting search of applicant home and business – Subsequently private prosecution brought against applicant by individual (“P”) with interest in respondents – Applicant claimed commencement of prosecution breached clause 2 in SA – Respondents argued no breach as proceedings not commenced by them and P not party to SA – Authority found largely inference by applicant as to what happened when D met M – Authority found first breach of SA by D as agent of respondents when supplied statement of problem to M – Authority rejected respondent’s argument that s148(6) Employment Relations Act 2000 preserved discovery of evidence which existed independently of mediation process – Authority found evidence suggested M accessed statement of problem before search warrant obtained and executed – Authority found second breach by D when emailed M repeating allegations in statement of problem – Authority found third breach when D initialled witness deposition intended for trial containing communication of matters discussed at mediation – Authority found D could be subpoenaed to give evidence if required by the court – Authority found witness immunity should not be used to sever contractual undertakings before judicial proceedings commenced – Found witness immunity had no application to disclosure of statement of problem made by D to M – However, witness immunity covered third breach because private prosecution already commenced – Authority satisfied no breach of clause not to take legal action – Remedies – Authority satisfied penalty recoverable for first and second breaches – Authority considered level of penalty should serve as message that SA to be observed and respected by parties – Authority declined claim for compensatory damages as no real harm suffered by applicant through respondents’ breaches – Authority ordered respondents to pay $3000 penalty with half payable to applicant and half payable to Crown |
| Result | Application granted ; Costs reserved |
| Main Category | Penalty |
| Statutes | ERA Clause 10 of schedule 2;ERA s136(2);ERA s148;ERA s148(1);ERA s148(6);ERA s149;ERA s149(4);ERA s135;ERA s159;Summary Proceedings Act 1957;Crimes Act 1961 |
| Cases Cited | Dentice v Valuers Registration Board [1992] 1 NZLR 720;Balfour v The Chief Executive, Department of Corrections [2007] ERNZ 808;Director of Proceedings v O'Malley unreported, 19 September 2008, HRRT81/07 |
| Number of Pages | 14 |
| PDF File Link: | aa 131_09.pdf [pdf 42 KB] |