Unless orders in NZ employment cases: meaning, deadlines, and consequences

Unless orders and strikeout - Employment Court procedure that can end a case

An unless order is a procedural order that gives a party a final opportunity to comply. If they do not, their claim or defence can be struck out. Unless orders are most common in Court-level litigation (including Employment Court matters), where deadlines and compliance are critical.

The principles applying to a strikeout application can be summarised in this way:

1. The facts pleaded in the statement of claim are assumed to be true.
2. The proceeding must be clearly untenable before it can be struck out.
3. The jurisdiction to strike out is used sparingly and only in clear cases.
4. The jurisdiction to strike out is not displaced by the need to decide difficult questions of law.

Evidence considered in a strikeout application is also limited to what is undisputed. This is because the strikeout application is dealt with on the basis that the plaintiff is able to prove its pleaded facts. The Court of Appeal has acknowledged that there may be cases where a factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further.

If this is done by way of an Unless order then the statement of claim will be struck out if a party does not comply with the order. This often involves cases where there has been a history of failure to comply with Court orders for no good reason. An Unless order, if granted, gives a party one last opportunity to remedy their breach. They are "sparingly used" and only where there has been a "history of failure" to comply with orders.

Principles commonly applied

• Proceedings should not be struck out unless it is clear the Court can do nothing about them.
• When a strike out is being sought, everything should be done to ensure a trial is not denied.
• The Court must be certain that a claim cannot succeed.
• The Court should be slow to strike out a claim where there is some chance of establishing a cause of action. (If the facts could be better pleaded, the Court should allow amendment.)