| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 359 |
| Determination date | 16 August 2011 |
| Member | R Larmer |
| Representation | T Drake ; M Lawlor, A Weal |
| Location | Auckland |
| Parties | Broughton v Microsoft New Zealand Ltd |
| Summary | COSTS – Unsuccessful personal grievance – Three and a half day investigation meeting – Respondent sought number of alternative levels of contribution to $130,254 total costs – Respondent claimed Authority should adopt $8,000 daily tariff applied to six and a half days calculated on basis of three and a half day investigation meeting, two days preparation and one day for submissions – Respondent claimed made two reasonable Calderbank offers which applicant rejected – Applicant claimed no Calderbank offer made – Applicant claimed letter received after applicant had left country for holiday and timing meant had no opportunity to consider offer so Authority should not consider it – Applicant claimed second letter did not meet Calderbank requirements – Applicant claimed $2,500 daily tariff should be applied to just over three days of investigation meeting time – Applicant claimed large costs award would cause undue hardship – Applicant submitted daily tariff should be decreased to $1,500 due to applicant’s financial circumstances – Applicant claimed timetabling of investigation meeting shortly after applicant’s return from overseas did not allow sufficient preparation time – Applicant challenged respondent’s travel disbursements – Applicant claimed cheaper travel alternatives available for respondent and video or telephone conference could have been used – Authority found applicant selected investigation dates from dates available – Found neither party queried timetabling – Found adjournment granted to give applicant more time to provide evidence – Found applicant failed to address important issues in statement – Found had applicant properly complied with agreed timetable directions hearing would not have been adjourned – Found manner in which applicant introduced extensive new documentation unacceptable – Found respondent successful party and entitled to contribution to costs – Found indemnity costs not appropriate – Found daily tariff should not be reduced to avoid potential hardship to applicant – Found applicant was in senior role and received payment including redundancy compensation upon termination and although had no new employment had set up business – Found applicant’s absence overseas did not prevent Authority from considering settlement offer – Found both offers properly made and in timely fashion – Found manner in which applicant’s case presented was inefficient and significantly and unnecessarily increased respondent’s costs – Found matter called for substantial increase to daily tariff – Found $8,000 daily tariff appropriate as claimed by respondent – Found extensive submissions and preparation required – Found appropriate to apply daily tariff for one day for submissions and one and a half days for preparation – Found daily tariff should be applied to six days – Applicant to contribute $48,000 towards respondent’s costs – Found travel disbursements claimed appropriate – Applicant sought contribution to costs in respect of successful interlocutory application for disclosure of documents – Applicant sought costs for half day – Found half day excessive – Found $750 contribution to costs appropriate |
| Result | Costs in favour of respondent ($48,000) ; Disbursements in favour of respondent ($4,538.16)(Travel) ; Costs in favour of applicant ($750) |
| Main Category | Costs |
| Statutes | ERA s157;ERA Second Schedule cl15 |
| Cases Cited | Aoraki Corporation Ltd v McGavin [1998] ERNZ 601;Autagavia v Tinytown Learning Centres Limited unreported, R Larmer, 20 Dec 2010, AA 478A/10;Bluestar Print Group (NZ) Ltd v Mitchell [2010] ERNZ 446;Broughton v Microsoft New Zealand Limited [2011] NZERA Auckland 73;Carter Holt Harvey v Eastern Bays Independent Industrial Workers Union & Ors [2011] NZEMPC 13;Chief Executive of Department of Corrections v Tawhiwhirangi (No 2) [2008] ERNZ 73;Ellis v Oaks Hotels & Resorts NZ Limited unreported, H Doyle, 5 May 2010, CA 49A/10;Faulkner v Secretary for Justice [2011] NZERA Auckland 324;Filta Vacuum Products Limited v Dolan unreported, Travis J, 9 July 2009, AC 28/09;Gates v Air New Zealand Limited [2010] NZEMPC 26;Health Waikato Ltd v Van der Sluis [1997] ERNZ 236;Hira Bhana & Co Ltd v PGG Wrightson Ltd [2007] NZCA 342;Idea Services Ltd v Collins (2009) 6 NZELR 495;John v Airways Corporation of New Zealand Limited unreported, J Crichton, 2 Dec 2009, CA 95A/09;Keightley (Labour Inspector) v Hon Ly t/a Taumaranui Bakery [2011] NZERA Auckland 77;Lloyd-Barker v The Society for the Prevention of Cruelty to Animals Auckland Inc unreported, K Anderson, 26 May, 2010, AA 12A/10;Order of St John Midland Regional Trust Board v Greig [2004] 2 ERNZ 137;Pauanui Publishing Limited v Loh unreported, Goddard CJ, 20 Dec 2001, WC 43B/01;PBO Ltd (formerly Rush Security) v Da Cruz [2005] ERNZ 808;Postles v Airways Corporation of New Zealand Limited (No 2) [2002] 2 ERNZ 817;Whitten v Ogilvy New Zealand Ltd unreported, M Urlich, 21 June 2010, AA 200A/10;Wood v Board of Trustees of Woodford House School [2011] NZERA Wellington 87 |
| Number of Pages | 25 |
| PDF File Link: | 2011_NZERA_Auckland_359.pdf [pdf 66 KB] |