Lawyer Anjela Sharma has been dealt another blow in her efforts to argue her case after she was sued by clients she represented on an employment matter.
The Court of Appeal has now dismissed Sharma’s application for leave to appeal an earlier District Court decision that arose as a result of her late filing of the clients’ personal grievance claims, and for which she was penalised.
Sharma’s appeal bid has been turned down twice by the High Court and now the Appeal Court.
Gail Foster-Bohm and Andrew Corbin engaged Sharma to advise and represent them on the employment restructuring proposed by IHC New Zealand in 2015, in which they lost their jobs.
She raised personal grievances on their behalf with IHC on November 25, 2015, but IHC objected on the basis that they were raised outside the 90-day period.
Foster-Bohm and Corbin subsequently sued Sharma for negligence in representing them.
Sharma counter-sued the pair for nonpayment of legal fees but the District Court found in favour of Foster-Bohm and Corbin.
Sharma believed she had filed within the statutory 90-day timeframe based on the date on which she understood the pair’s employment had ended.
She said she was instructed by the plaintiffs that the employment relationship ended on four weeks’ notice from August 6, 2015, concluding on September 7, and was provided with a copy of correspondence from the employer dated August 4, 2015, to that effect.
She was not immediately provided with the letter dated two days later that stipulated that the plaintiffs’ employment was terminated with payment in lieu of notice.
Corbin had tried to send this letter to Sharma but was unsuccessful because his work email had by then been disestablished.
Sharma was made aware of the problem of the late filing in January the following year, and in October the Employment Relations Authority determined that a claim for unjustifiable dismissal was not actionable as it was outside the 90-day period.
Matters were referred to mediation but no agreement was reached, and Corbin and Foster-Bohm then brought a claim against Sharma for negligence, breach of contract and breach of a fiduciary duty.
The District Court found that Sharma owed a duty of care to act competently and in a timely way under her retainer and in negligence, and ordered her to pay $37,500 in damages plus interest.
The court also determined that Corbin and Foster-Bohm did not have to pay Sharma’s legal fees charged prior to them cancelling the contract of retainer, because the work was “substantially wasted because it was carried out negligently”.
Sharma then appealed on six grounds which were dismissed by the High Court in November last year.
It found that the District Court did not err in holding that the employment claim was statute-barred; and that Sharma was negligent in failing to lodge the personal grievance in time, in that she failed to advise Foster-Bohm and Corbin to seek independent advice and to apply for an extension once she realised the situation.
The judge said Sharma ought to have done this on the basis that the mistake was hers rather than her clients’ and that given past similar situations, it most likely would have been granted.
In March this year, Sharma sought leave for a second appeal, to apply for a stay of execution of the High Court judgment, but that application was also dismissed.
The High Court said the case turned largely on its facts and the arguments raised were considered in the first appeal, which upheld the findings of the District Court.
Sharma then went to the Court of Appeal, and said leave was justified because of the “serious consequences to her of being held to be negligent”.
She also says that there was a public interest in an authoritative decision on matters she had raised.
The Court of Appeal was satisfied that leave should not be granted on either Sharma’s breach of duty, and that her claim for her legal fees for “work performed negligently” was properly denied.
Sharma, who has been embroiled in a dispute with Air New Zealand after it barred her from its services, told NZME she couldn’t comment on the decision now but would consider doing so at some point in the future.
Corbin, who is currently overseas, told NZME that it’s been a long and exhausting process they’re pleased is now mostly over. He said they were yet to receive the funds from the damages award but “things were in motion” over that.
“It’s been sad for us. We raised this whole issue because we were unhappy with how IHC had handled the process, we didn’t get a hearing and we needed to have our voices heard.”
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
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