A B HOPKINS & ANOR V NEW LIFE UPHOLSTERY LIMITED HC WHA CIV 2010-488-000106

A B HOPKINS & ANOR V NEW LIFE UPHOLSTERY LIMITED HC WHA CIV 2010-488-000106 6 July 2011IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV 2010-488-000106BETWEEN ALAN BRETT HOPKINSSUZANNE HOPKINSAppellantsAND NEW LIFE UPHOLSTERY LIMITEDRespondentHearing: 6 July 2011Counsel: S Hopkins in PersonW McNeil as McKenzie Friend for the AppellantsG Ellis for the RespondentJudgment: 6 July 2011ORAL JUDGMENT OF WYLIE JDistribution:Mr AB and Mrs S Hopkins: Fax: 09 8136341Mr W McNeil: WayneM@hydrotechdrainage.co.nzMr G Ellis: graham.j.ellis@xtra.co.nzIntroduction[1] Mr and Mrs Hopkins seek to challenge a decision given by Judge KB de Ridder in the District Court at Whangarei on 29 January 2010.[2] Judge de Ridder was hearing an appeal from a decision given by the Disputes Tribunal on 2 September 2009. The Tribunal had ordered Mr and Mrs Hopkins topay the respondent, New Life Upholstery Limited ("New Life"), the sum of$4,127.25, and had dismissed the Hopkins' counterclaim against New Life.[3] The Hopkins have filed a notice of general appeal against Judge de Ridder'sdecision. The document on the Court file is undated, but it appears to have been received by the Registry on 23 February 2010. The notice records that it was filed under s 116 of the Summary Proceedings Act 1957. In the course of a telephone conference held before Gendall J on 16 March 2010, it was noted that the Hopkinscould not appeal Judge de Ridder's decision. His Honour recorded that s 23 of the Disputes Tribunals Act 1988 provides that all decisions of the Tribunal are final and binding on all parties, except as provided by s 50. Section 50 permits one appeal only, and that appeal is to the District Court. There is no further right of appeal to this Court. His Honour held however that the notice of appeal could be treated asseeking judicial review of Judge de Ridder's decision, and he directed that the mattershould proceed on that basis.[4] The proceedings were originally scheduled for a half-day hearing on Wednesday, 8 December 2010. The Hopkins requested an adjournment. In a minute issued on 30 June 2010, Priestley J declined that application. On 6 December 2010, the Hopkins again sought an adjournment. Their McKenzie friend, a Mr McNeil, advised that his aunt had died, and the Hopkins requested an adjournment so that Mr McNeil could attend her funeral. Woodhouse J granted an adjournment, but only on the condition that the Hopkins pay the amount in dispute, together with interest, into Court. That direction has been complied with.Representation[5] Mr McNeil filed a formal application seeking to appear as a McKenzie friend on behalf of the Hopkins. He assisted the Hopkins at the hearing before Judge de Ridder in January 2010.[6] Mr McNeil this morning sought leave to speak on behalf of the Hopkins. Mr Ellis on behalf of New Life opposed Mr McNeil's application, but himself soughtleave to appear on behalf of his company. Mr Ellis is a director of New Life. He is not a barrister or solicitor.[7] Normally, I would not have granted Mr McNeil leave to speak to the Court because he was a witness before the Disputes Tribunal and he is employed by the Hopkins. Further, I would normally expect that a company would be represented by a solicitor. However, in the circumstances of this case, I was prepared to accommodate the wishes of the Hopkins and allow Mr McNeil to address me. I was also prepared to grant leave to Mr Ellis to represent New Life. The amount in dispute does not justify retaining legal counsel.[8] Accordingly, I heard from both Mr McNeil and Mr Ellis.Application to Strike Out[9] On 12 March 2010, Mr Ellis sent an email to the Registry responding to the notice of general appeal filed by the Hopkins. That email goes through the notice of appeal and responds to various assertions made in that notice. It also asserts that the Hopkins in various respects have lied in the notice of appeal. The Hopkins haveapplied to strike out Mr Ellis' email.[10] Mr Ellis' document was not in the appropriate form. However, nor was theHopkins' notice of appeal. Both documents deal with various facts which are indispute between the parties.[11] In the circumstances, I am not prepared to strike out Mr Ellis' email. Neitherparty has complied with the High Court Rules, probably because neither is legally represented. I am not prepared to treat one party more harshly than the other.Factual Background[12] The Hopkins own a motor vessel known as "Tracker II". The vessel is usedfor charter work. They engaged the services of New Life to design and make squabs for the interior of the vessel. New Life gave a quote for this work. It seems that that quote was later amended by consent, because a different fabric was to be used.[13] While the work was underway, the parties entered into a further agreement whereby New Life was engaged to complete upholstered panels for the walls and ceiling of the vessel.[14] The squabs were completed and New Life invoiced the Hopkins for that work. They also invoiced the Hopkins for designing templates for the wall and ceiling panels.[15] New Life's invoices were not paid, and subsequently New Life filed a claimin the Disputes Tribunal seeking payment of $2,710 for the squabs and $1,519 for the wall panels. The Hopkins counterclaimed for $1,509 on the ground that the templates prepared by New Life were incorrect and that new ones had to be made.[16] The hearing commenced in the Tribunal on 1 July 2009. It was adjourned part-heard to 22 July 2009. The hearing resumed on 2 September 2009 and wascompleted on that day. The referee's decision was released on the same day. As noted above, she gave judgment in favour of New Life, and dismissed the Hopkins'counterclaim.The District Court Appeal[17] The Hopkins appealed to the District Court. Judge de Ridder in his decision records that the notice of appeal listed 12 matters which the Hopkins asserted meantthat "the entire process was unfair, and because of that, the result was prejudiced".Judge de Ridder summarised the 12 points as falling into the following general categories:(a) The length of the hearing and the degree of conflict between the referee and Mr Ellis appearing for New Life.(b) The assertion that the Hopkins had received unsigned and unstamped correspondence from the Tribunal.(c) The assertion that the referee failed to communicate with one of theappellants' witnesses, which meant that Mr Hopkins had to "takeextensive steps to arrange to have his evidence heard from the site ofbusiness by teleconference".(d) The alleged failure on the part of the referee to alert the parties that the Consumer Guarantees Act 1993 applied and advise them to take legal advice.(e) The assertion that the evidence established that the Hopkins had rejected the goods in accordance with the Consumer Guarantees Act.(f) The assertion that the hearing was cut short because the room being used at the North Shore District Court for the Hopkins to attend by way of teleconference was required for another matter. Accordingly, the Hopkins felt that the hearing had been unnecessarily truncated.[18] In the course of their oral submissions before the Judge, the Hopkins also asserted that they were denied the right to be represented by a McKenzie friend, and argued that the provisions in the Disputes Tribunals Act 1988 (which stipulate that parties to disputes before the Tribunal are not entitled to legal representation when matters of law arise) are illegal.Judge de Ridder's Decision[19] Judge de Ridder heard from the Hopkins. He allowed them to be represented by Mr McNeil as their McKenzie friend. He referred to s 50 of the Disputes Tribunals Act. He noted that the sole ground on which an appeal may be advanced is that the proceedings were conducted by the referee in a manner that was unfair to the appellants and which prejudicially affected the result of the proceedings.[20] He then dealt with the submissions made for the Hopkins. He noted that they focussed principally on their assertions that(a) they had rejected the squabs;(b) that the referee failed to allow them to be represented at the resumed hearing on 2 September 2009, and(c) that the referee failed to advise the Hopkins to take legal advice.[21] His Honour dealt first with the alleged rejection of the squabs. He noted that the Hopkins in the course of the appeal pointed to various factors which they said clearly showed that they had rejected the squabs. His Honour observed that this matter was a finding of fact which the referee was required to consider and determine. He took the view that once the referee had done so, the Court had no power to reconsider the evidence, and determine whether or not the Hopkins did reject the goods. He reiterated that the Hopkins had to point to some procedural unfairness on the part of the referee in the way in which she dealt with the issue. He considered that the Hopkins were unable to do so. He took the view that theHopkins' submissions amounted to no more than a disagreement with the referee inrelation to her conclusion. He considered that there was nothing which amounted to procedural unfairness about the way in which the referee dealt with the issue.[22] Judge de Ridder then turned to the issue of representation. He referred to s 38(2) which provides that no party is entitled to be represented except in defined circumstances. He concluded that in order to be entitled to representation, theHopkins had to satisfy the Tribunal that they were under a disability as provided by s 38(3)(d), or that they were unable to appear in person or present their case adequately as provided by s 38(3)(e). The Judge observed that the referee had not expressly set out her reasons for not allowing representation. He noted that the Hopkins appeared at the hearing on 1 July 2009, and that no issue as to their disability, or of any inability to represent their case adequately, arose. He considered that if there had been such concern it would have been dealt with. He noted that the referee had made no comment about the issue at all in her interim decision given on that day. Judge de Ridder accepted that procedural unfairness might arise where a party could show, on the evidence, that the Tribunal must have been satisfied that a party was labouring under a disability, or was unable to present his or her case adequately. He considered that the Hopkins had not put forward any information before the Court to demonstrate that that was the case, and that there was no procedural unfairness on the part of the Tribunal in refusing representation.[23] The Judge then referred to s 38(7) of the Act, which places a bar on any person appearing as a representative who is or has been enrolled as a barrister or solicitor. He noted that the Hopkins had referred to Drew v Attorney-General,1 but considered that they had misunderstood the case. He noted that the Disputes Tribunals Act expressly precludes representation by lawyers.[24] His Honour then turned to the Hopkins' claim that the Tribunal had failed toadvise them to obtain legal advice. He noted that there is no statutory obligation on a referee to consider whether or not parties should obtain legal advice. He accepted that there could well be cases from time to time where, as a matter of procedural fairness, a referee might consider adjourning a hearing to allow the parties to seek legal advice, but he considered that such cases were likely to be infrequent. He noted the whole purpose of the Disputes Tribunal is to provide a forum for the speedy resolution of disputes without undue emphasis on legal matters. He considered that the referee clearly identified the issues and the applicable law when the hearing commenced on 1 July 2009, and that she had recorded those matters in writing with an interim decision released on that day. He noted that the hearing was then adjourned, and that if the Hopkins had any concerns, they were free to take1 Drew v Attorney-General [2001] NZCA 2007.whatever legal advice that they considered appropriate before the hearing recommenced. His Honour considered that the case did not involve complex legal issues, and that it was a simple case involving the application of straightforward and easily understood provisions in the Consumer Guarantees Act.[25] His Honour then considered the other grounds of appeal including theHopkins' assertion that further time should have been taken to deal with the matter.The Judge did not expressly refer to the assertion made by the Hopkins that the hearing was brought to a premature end because a hearing room in the North Shore District Court was required for other purposes.[26] In conclusion, the Judge considered that the Hopkins had been unable to establish that there had been any procedural unfairness and he dismissed the appeal.The Application for Review[27] The Hopkins in their notice challenging Judge de Ridder's decision raised alarge number of matters. I summarise them as follows:(a) That there was "a substantial travesty of justice" because the Tribunalfound in favour of New Life.(b) That Judge de Ridder had the authority to review the evidence to establish whether the findings of the Tribunal were consistent with the facts and/or the law.(c) That Judge de Ridder should have "reviewed the formula the Tribunal used to form" its opinion as to what constituted "rejection of the goods" and determine if that was a fair and just formula.(d) That the Tribunal erred in law in reaching its view as to what amounted to a rejection of the goods.(e) That they are entitled to a determination as to what constitutes "a rejection of goods" under the provisions of the Consumer GuaranteesAct.(f) That they told New Life they did not want the squabs because of poor workmanship.(g) That the Tribunal did not deal with evidence they called that suggested the squabs were flawed.(h) That there should be an absolute requirement that proceedings before the Tribunal should be electronically recorded.(i) That if the Tribunal is going to refer to the "law in a pedantic andclinical manner" it should advise the participants to seek legal advice.(j) That the Tribunal placed undue emphasis on legal matters, and that the appellants were out of their depth placing them at a disadvantage.(k) That they were confused as to "what constituted rejection of goods"and did not know how to articulate information that would have satisfied the Tribunal.(l) The Tribunal should have enquired as to their reasons for seeking to be represented by Mr McNeil as a McKenzie friend.(m) That the procedure followed by the Tribunal was dysfunctional, and that it was prejudicial to them.(n) That there were a number of incidents that meant they were subjected to a dysfunctional process causing confusion, and that they were distanced from the proceedings.[28] In written submissions filed in support of the application on 12 November 2010, the Hopkins asserted that Judge de Ridder did not in his determination"investigate the procedures undertaken in the Disputes Tribunal with sufficientvigour in order to determine if there was unfairness". They submitted that thereferee in the Disputes Tribunal was pedantic in her findings and that she applied"extensive applications to the law" and that these were not canvassed by Judgede Ridder in his decision. They also submitted that the hearing before the Tribunalwas "dysfunctional" and that "it went beyond being robust". The Hopkins asserted that Judge de Ridder "did not properly consider what constituted rejection of goods",and that he did not review the conclusions of the Disputes Tribunal with the thoroughness that was required.[29] This morning, Mr McNeil on behalf of the Hopkins, has amplified those submissions. He has referred specifically to s 18(6) of the Act. He submitted that Judge de Ridder did not properly consider the appeal against the requirements of that provision. He emphasised that the Hopkins are seeking a determination of whatconstitutes "rejection of the goods". He argued that they were at a loss to understandwhat was required of them in relation to that issue, and that they should have been forewarned by the Tribunal in that regard and given the opportunity to seek representation. He also argued that the hearing was unduly truncated because the hearing room in the North Shore District Court was required for another purpose pressuring the Hopkins to bring the matter to an inappropriately speedy conclusion.[30] Mr Ellis on behalf of New Life took issue with a number of the factual assertions made by Mr McNeil on behalf of the Hopkins. He submitted that the version of events advanced on behalf of the Hopkins was inaccurate, that both parties were aware of what was in issue and that there was ample time for both to seek legal advice if they required it. He also denied that there was any"dysfunctionalism" before the referee.Analysis[31] As I have already noted, these proceedings must be treated as being an application for review.[32] As I emphasised to Mr McNeil this morning, judicial review is not an appeal. A Court reviewing a decision does not consider the merits afresh and come to its own views. Rather, judicial review is concerned with legality and process. It is primarily limited to an examination of the process that was followed. If successful, it usually results in the decision maker being required to start afresh, as opposed to permanently quashing the decision. Judicial review is concerned not so much with the decision, but rather with the decision making process.[33] Here, the decision being reviewed is not the Disputes Tribunal's decision, butrather the decision of Judge de Ridder. In my view, the Hopkins have failed toappreciate this. Most of the matters they raise in their notice challenging the Judge's decision are criticisms of the Disputes Tribunal's decision. Those criticisms areirrelevant in the context of an application for review, and I have not given them any detailed consideration.[34] To succeed in an application for review, an applicant must show that the decision-maker, in this case Judge de Ridder, acted contrary to law, and outside the terms of his or her jurisdiction. This could occur, for example, where the decision maker has breached the rules of natural justice, has had regard to irrelevant considerations or failed to have regard to relevant considerations, or has failed to properly apply the law. Judicial review is also available where a decision maker acts irrationally or unreasonably, although the threshold for the Court to intervene in such cases is very high.[35] Here, it cannot be asserted that Judge de Ridder breached the rules of natural justice. He gave the Hopkins every opportunity to be heard. He allowed them to be represented by Mr McNeil as a McKenzie friend.[36] Nor can it be responsibly asserted that something went wrong with theJudge's deliberative process.[37] The Hopkins criticise the way in which Judge de Ridder approached the appeal to the District Court. With respect to them, they fail to appreciate the limited nature of the appeal to the District Court.[38] As noted above, the right of appeal to the District Court from the Disputes Tribunal is severely constrained. Section 50 of the Disputes Tribunal Act 1988 provides as follows:50 Appeals(1) Any party to proceedings before a Tribunal may appeal to a District Court against an order made by the Tribunal... on the grounds that—(a) the proceedings were conducted by the Referee...(2) Without limiting the generality of subsection (1), a Referee shall be deemed to have conducted the proceedings in a manner that was unfair to the appellant and prejudicially affected the result if—(a) the Referee fails to have regard to any provision of any enactment that is brought to the attention of the Referee at the hearing; and(b) as a result of that failure, the result of the proceedings is unfair to the appellant....[39] The Judge in his decision expressly addressed his limited jurisdiction. He applied the correct legal test. There is nothing to suggest that he misconstrued, or misunderstood the applicable law. The Judge dealt with each of the principal submissions made on behalf of Mr and Mrs Hopkins. He did not take into account any irrelevant considerations. Nor did he fail to take into account relevant considerations.[40] The Judge did not expressly deal with the Hopkins' assertion that the hearingwas brought to a premature end when the room being used for the teleconference was required for other purposes.[41] The difficulty for present purposes is that there is no evidence before me in relation to this issue. The Hopkins have both filed affidavits, but neither of those affidavits addresses this matter. Assertions were made by Mr McNeil on their behalf, but I cannot accept material presented in this way. In any event, such information as was relayed to me by Mr McNeil does not suggest that there was any significant difficulty. As I understand it, the Hopkins were appearing before the referee by way of a teleconference. At some stage during the teleconference, a CourtOfficer came into the room and advised the Hopkins that the room was required for another purpose. Nevertheless, the teleconference continued, at least for a short time. The Court Officer remained in the room. At some stage, as the hearing was drawing to an end, the referee asked the Hopkins whether or not they had anything further they wished to say. Mr McNeil tells me that the Hopkins replied in the negative and that as a consequence, the hearing came to a close. There is nothing in my mind which suggests that this part of the proceedings was conducted in a manner that was unfair to the Hopkins. If they felt under pressure, they could readily have conveyed that to the referee. The hearing had already been adjourned part-heard on previous occasions and no doubt the referee would have adjourned it further if she felt the need to do so. There is no suggestion that the referee was requested to adjourn the hearing and that she refused to do so. Rather, the Hopkins acquiesced in what occurred. I cannot see that the fact that Judge de Ridder did not deal expressly with this point, affects his decision or ultimate conclusion.[42] The Hopkins assert that Judge de Ridder had the authority to review the evidence to establish whether the findings of the Disputes Tribunal were consistent with the facts and/or the law. They suggest that the Judge should have paid more attention to s 18(6) of Act. That submission ignores s 50. The Judge was not entitled to undertake a general merits based appeal. Still less, am I in a position to do so.[43] The Hopkins assert that the Judge should have reviewed the formula the Tribunal used to form its opinion as to what constitutes rejection of goods. Again, that submission ignores the limited right of appeal which is available. It was notJudge de Ridder's role to re-open the proceedings before the Disputes Tribunal. Rather, he was confined by s 50 to considering whether or not the proceedings were conducted by the referee in a manner that was unfair to the Hopkins and prejudicially affected the result of the proceedings. The Judge considered each ofthe Hopkins' arguments in this regard carefully and rejected them. In my judgment, he cannot be criticised for doing so.[44] It cannot be asserted that there was no evidence on which the Judge couldproperly base his decision. He considered the Disputes Tribunal's decision, and therelevant submissions made by the parties. The Judge did not act in a manner thatwas substantively unfair. Nor was his decision manifestly unreasonable. He gave afully reasoned decision, explaining why the Hopkins' appeal was dismissed.[45] Mr McNeil did assert this morning that the Judge did not take sufficient time to consider the matter properly. That is an inappropriate and improper submission. The decision was a reserved decision. The Judge delivered the decision on 29 January 2010, some eight days after the hearing. It is clearly a considered decision.[46] The Hopkins' application for review does no more than assert that theDisputes Tribunal erred in its original decision. It is clear that the Hopkins disagree with that decision, and that they think it was wrong. The Hopkins refuse to acknowledge that there was evidence before the Tribunal which went both ways. They fail to appreciate that it is not a mistake of law to prefer one of two or more differing points of view. The Tribunal heard the parties over the course of what is,for the Disputes Tribunal, a very lengthy hearing. It rejected the Hopkins' version ofevents. Judge de Ridder concluded, after considering all of the relevant materials put before him, that the procedure followed by the Tribunal was fair and that there was nothing which prejudicially affected the result of the proceedings. The Hopkins are unable to establish that there was any reviewable error made by Judge de Ridder inreaching that conclusion. It was not Judge de Ridder's function to reconsider thecase on its merits. Nor is it this Court's function to re-examine the merits in the context of the present proceedings.[47] The Hopkins' application for review is dismissed. The Registrar is directedto pay the funds which were paid into Court to New Life, together with interest which has accumulated thereon.[48] No order for costs is required. Mr Ellis has represented the company and he is not entitled to costs. Nor is any order for disbursements appropriate._________________________Wylie J