By Anna Longdill

Application for waiver or postponement of Employment Court filing fee – Employment Court only court in New Zealand without express fee waiving, reduction, or postponement powers – does the registrar or a judge have the power to waive or postpone the payment of fees?

RDJ v SGF [2025] NZEmpC 146 per Chief Judge Inglis

An employee, RDJ, pursued a successful personal grievance in the Employment Relations Authority against their employer, SGF. The Authority made orders that the employer did not comply with. RDJ returned to the Authority and the Authority then made compliance orders.

RDJ contends that SGF has failed to comply with the Authority’s compliance orders. They wish to seek further orders from the Employment Court pursuant to s 140(6) of the Employment Relations Act 2000. The orders that the court may make under s 140 include a fine, sequestration of property and/or imprisonment.

RDJ is in receipt of legal aid. They are in a difficult financial position which appears to have been exacerbated by their ex-employer’s failure to comply with the Authority’s substantive and compliance orders. They applied for waiver of the $349 filing fee.

Section 237B Employment Relations Act 2000 provides that regulations may be made to empower the court’s registrar to waive, reduce or postpone the payment of a fee required in connection with a proceeding or intended proceeding. No such regulations have been made.

There is no express power in the Employment Court Regulations 2000 conferred on the registrar to waive, or postpone, the payment of fees. It appears that the Employment Court is the only court in New Zealand without express fee waiving, reduction or postponement powers.

Regulation 6 of the Employment Court Regulations relates to procedural matters. Regulation 6(2)(b) is a broad catch-all provision which empowers the court to dispose of a case “in such manner as the court considers will best promote the object of the Act and the ends of justice”. It applies in circumstances (such as the present), where there is no regulation, rule, similar regulation or a provision in the High Court Rules which is relevant.

The registrar referred RDJ’s application to the chief judge for decision.

Applicable principles: Employment Relations Act 2000, ss 3, 189, 237B; Employment Court Regulations 2000, regs 5, 6, 7, 75 and schedule 3; High Court Fees Regulations 2013, regs 18, 19 – Approach to be taken? (The court can apply the power to waive fees in reg 18 of the High Court Fees Regulations 2000 and its associated criteria in a way that best promotes (1) the objects of the Act; and (2) the ends of justice, as required by reg 6(2)(b)) – Is an ability to waive, reduce or postpone fees consistent with the underlying objectives of the Act? (Yes, it promotes effective enforcement of employment standards, good faith behaviour and addresses the inherent imbalance of bargaining power between employees and employers) – Is an ability to waive, reduce or postpone fees consistent with promoting the ends of justice? (Yes, an interpretation of legislation which supports the fundamental common law right of access to the courts is to be preferred. Section 189 of the Act and the court’s express jurisdiction is also pivotal) – Does s 237B of the Act support an inference that Parliament intended fee waiving powers to be conferred only by the regulation route? (No, s 237B contemplates a power for a registrar, this contrasts with the decision-maker in reg 6(2)(b) and s 189, which is a judge. While the registrar has no power to waive, reduce or postpone payment of fees, a judge does) – Should the filing fee be waived in this case? (Yes, RDJ is in receipt of legal aid. They are unable to pay the fee, and it is appropriate to waive it in all the circumstances. Even if they had not been in receipt of legal aid, it may well have been arguable that the fee should be waived having regard to the broader public interest of enabling proceedings of this sort to come to the court without impediment).

Held: The application for waiver of the filing fee is granted.

Note: The judge noted that an earlier decision of Judge Couch (from 2013) reached the opposite conclusion on waiver, but observed that this judgment did not deal with the broad procedural gateway provided by reg 6(2)(b), nor the distinction between the powers of a registrar and the powers of a judge.

RDJ-v-SGF-Interlocutory-Judgment-of-Chief-Judge-Inglis-16-July-2025