MENZIES v NORTH SHORE LASER AND SKIN CARE CENTRE LTD [2018] NZHC 1035

MENZIES v NORTH SHORE LASER AND SKIN CARE CENTRE LTD [2018] NZHC 1035 [11 May 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2017-404-2229[2018] NZHC 1035BETWEEN ANITA MENZIESAppellantAND NORTH SHORE LASER AND SKINCARE CENTRE LIMITEDRespondentHearing: 28 February 2018Appearances: Ms Menzies in PersonJ M Skinner for RespondentJudgment: 11 May 2018JUDGMENT OF DUFFY JThis judgment was delivered by me on 11 May 2018 at 2.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Skinners Law, Takapuna[1] The appellant, Anita Menzies, appeals against a refusal of the District Court togrant her leave to appeal against a decision of the Disputes Tribunal (the Tribunal).The questions in issue are: (a) whether this Court has jurisdiction to hear such anappeal; and (b) if there is jurisdiction, whether there is a proper basis on appeal forinterfering with the refusal.Is there jurisdiction to bring this appeal?[2] At the appeal hearing the parties proceeded on the basis there was jurisdictionto hear the appeal. After I raised concerns about jurisdiction with them they weregiven leave to file submissions on the topic for me to consider after the hearing. Theyhave done so. Ms Menzies maintains there is jurisdiction for this Court to hear herappeal. The respondent is now of the view there is not.[3] The scheme and purpose of the Disputes Tribunal Act 1988 (DTA) is to enablepersons with claims up to $15,000 to bring proceedings before a Disputes Referee.The jurisdictional limit can be extended by agreement, but not beyond $20,000. Theaim of this jurisdiction is to ensure a speedy and economically efficient means forpersons to pursue disputes themselves. Legal representation is not permitted. Thetype of causes of action that can be brought before the Tribunal are also limited.[4] One of the features of this jurisdiction is s 23 of the DTA which, amongst otherthings, provides that orders made by the Tribunal in determining a dispute before itshall be final and binding on all parties to the proceedings, and except as provided bythe legislation no appeal shall lie in respect of any such order.23 Decisions of Tribunal to be finalEvery agreed settlement approved by the Tribunal under section 18(3), andevery order made by the Tribunal under section 18(8) or section 46(2) orsection 47(3)(b), and every variation of a term of an agreed settlement undersection 47(3)(a), shall be final and binding on all parties to the proceedings inwhich that settlement is approved or the order or variation is made, as the casemay require, and, except as provided in section 50, no appeal shall lie inrespect of any such order or variation or approved settlement.[5] Section 50 of the DTA provides a right of appeal to the District Court againstany order made by the Tribunal in the exercise of the powers given to it under s 18(8)of that Act.[6] Here on 7 December 2015 the Tribunal ordered Ms Menzies to pay therespondent $8,900 for services provided to her and it dismissed her counterclaimagainst the respondent. Ms Menzies had failed to appear at the hearing. Shesubsequently on more than one occasion sought re-hearing of the dispute. However,she failed to appear at those hearings as well. Then on 17 August 2017 she soughtleave to appeal against the Tribunal's decision out of time. The prescribed time forfiling an appeal is 28 days from the making or giving of the subject order.1 By thistime in relation to the substantive determination the appeal was approximately 19months out of time; and in relation to the dismissal of the re-hearing the appeal wasapproximately eight months out of time.[7] Under s 50 of the DTA the District Court has discretionary authority to extendthe time for filing an appeal. However, in this case the District Court refused to extendtime, hence this appeal.[8] The DTA gives no right to bring a second appeal from a decision of the DistrictCourt. The absence of a second-tier appeal right coupled with the express languageof s 23 is a clear indication from Parliament that there is to be one level of appeal only,namely to the District Court.[9] In Mellow v Tsang Keane J thoroughly and helpfully analysed whether therewas jurisdiction for a second-tier appeal to this Court.2 At the time, there wereconflicting decisions of this Court on the topic.3 Keane J found there was no appealto this Court from a District Court appeal against a decision of the Tribunal becauses 23(1) (as it then was) of the DTA provided that the decision is final, subject to s 50.Keane J also found that to allow a further appeal under the general right of appeal the1 Section 50(3).2 Mellow v Tsang [2004] NZAR 537 (HC).3 In Graham v Disputes Tribunal at New Plymouth [1997] NZAR 407 (HC) Fisher J found s 50 ofthe Disputes Tribunal Act excluded a second- tier appeal whereas later in Bayley Investments Trustv Salkeld [2003] NZAR 344 (HC) Salmon J found there was jurisdiction for an appeal to thisCourt.District Courts Act 1947 then provided for appeals from the District Court to this Courtwould be inconsistent with s 23, as well as the scheme and purpose of the DTA.Accordingly, the appeal was dismissed for want of jurisdiction:4[23] In neither of these conflicting decisions is there any reference tos 23(1), which states that a decision of the Disputes Tribunal is 'final'; andwhich concludes 'except as provided in section 50 of this Act, no appeal shalllie in respect of any such order '.[24] Section 23(1) must be understood as s 5(1) of the Interpretation Act1999 requires, 'from its text and in the light of its purpose.' Understood in thatway, s 23(1) does more, I consider, than limit recourse by way of appeal fromthe Disputes Tribunal to the s 50 right. Section 23(1) states unequivocally that'no appeal shall lie' except by that right, and confirms, I consider, that s 50confers not merely a single right of appeal, but a final right.[25] The alternative, that decisions of the Disputes Tribunal are capable ofbeing appealed, not just under s 50, but from the District Court, and perhapsbeyond this Court, cannot, I consider, be reconciled with s 23(1) itself, whichdeems the Tribunal's decisions to be 'final'. Nor does it square with thereasons why that should be so. As many cases say, the Tribunal is a forum forswift, inexpensive, fair and substantial justice, where lawyers have no place.Successive appeal rights only make sense when the forum under appeal is ina quite literal sense a court of law. That is not what the Tribunal is expected tobe or can be.[10] Similar reasoning to that given in Mellow v Tsang was applied by Wylie J inHopkins v New Life Upholstery Limited.5 I agree with the reasoning in those decisions.[11] In the present case, the appeal is from a refusal to grant leave to appeal out oftime rather than against substantive appellate decisions of the District Court, whichwere of concern in Mellow v Tsang and the earlier decisions. And since those decisionswere delivered the general appeal rights from the District Court to this Court are nowto be found in Part 8 of the District Court Act 2016 (DCA). However, none of thisaffects the view that I have reached on the question of jurisdiction.[12] I am satisfied that s 23 of the DTA makes all decisions of the Tribunal final,save for those limited circumstances which qualify for appeal under s 50 of the DTA.Absent qualification under s 50, a decision of the Tribunal is beyond challenge,irrespective of any other legal complaint that might be made about it.4 See Mellow v Tsang at [29].5 Hopkins v New Life Upholstery Ltd HC Whangarei CIV 2010-488-106, 6 July 2011 at [3].[13] Appeals are creatures of statute.6 Here, because the right of appeal is foundedin the DTA the provisions of this Act frame the boundaries of the appeal right. Thepower to grant leave to appeal out of time is a discretionary power founded in s 50(3).Whilst Parliament has given the District Court the power to grant leave to appeal outof time, Parliament has not taken the further step of providing a right of appeal againsta refusal to grant leave, which is consistent with the limits Parliament has imposed onappeals against substantive decisions of the Tribunal. The absence of specificprovision to appeal against adverse decisions under s 50(3) means that the finalityprovision in s 23 must stand. Thus, the Judge's refusal to extend Ms Menzies time toappeal is beyond challenge.[14] For completeness, I note that the general right of appeal to this Court under s124 of the DCA is precluded by express provision in another enactment that there isno right of appeal, which is exactly what s 23 of the DTA does.[15] Ms Menzies has essentially attempted to resurrect the argument rejected inMellow v Tsang by arguing that the refusal to extend time under s 50(3) of the DTAcan be appealed as if it were an original decision of the District court exercising itscivil jurisdiction, and therefore subject to general appeal under s 124 of the DCA.However, this view of the refusal to grant leave overlooks the jurisdictional source ofthe refusal, which emanates from s 50(3) of the DTA, and not from the District Court'sgeneral jurisdiction. This view also subverts Parliament's express intent and purposeto limit appeals from the Tribunal, as well as the overall scheme and purpose of theDTA.[16] Moreover, from a technical reading of s 124 and other relevant provisions ofthe DCA, I am uncertain as to whether this Court would have jurisdiction to hearMs Menzies' claim even in the absence of s 23.[17] Section 124(2) of the DCA provides that the general right to appeal decisionsof the District Court applies to parties to proceedings within that Court. Proceedingsare explicitly defined as excluding interlocutory applications.76 See Attorney-General v Sillem (1864) 11 ER 1200 (HL).7 Section 2.[18] Ms Menzies' application to the District Court for leave to appeal out of time isan interlocutory application.8 It follows that she is not party to a proceeding in theDistrict Court in terms of the definition laid down by the DCA. It is therefore highlyquestionable as to whether her attempt to engage the District Court's general right ofappeal would succeed even if were not for the findings I have already made in thisregard.[19] For support, Ms Menzies relies on decisions of this Court, including BayleyInvestments Trust v Salkeld, but apart from that decision the others were decided onother bases and are therefore not helpful to her argument.9 As mentioned earlier,Bayley Investments Trust v Salkeld is the occasion where this Court entertained anappeal against a decision from the Tribunal after an appeal to the District Court wassubstantively heard and determined.10 Salmon J found he had jurisdiction to hear anddetermine the appeal under s 71A of the District Courts Act 1947. Like Keane J inMellow v Tsang, I find that I must respectfully disagree with the reasoning in BayleyInvestments Ltd v Salkeld, which in my view is based upon misinterpretation of s 50and failure to consider s 23 of the DTA.[20] Furthermore, once an appeal is understood to be brought to this Court underthe general appeal rights that are now to be found in s 124 of the DCA, this Court mustthen necessarily approach the appeal on the broad basis which s 124 allows.11 Whentaken to its logical conclusion this would result in a broader right of appeal against theTribunal's decisions being available at a second tier of the appellate process, which iscontrary to all examples of other appellate pathways. Typically, the scope of appealsnarrows as they advance along their appellate pathways. This is another reason why I8 See Ireland v Ireland [2017] NZHC 3115 at [3] where this Court considered that an applicationfor leave to appeal a decision of the Family Court out of time was an interlocutory application.9 Ms Menzies relies on Hopkins v New Life Upholstery Ltd when Wylie J rejected the existence ofan appeal to this Court but did proceed to hear an application for judicial review against the samedecision of the Disputes Tribunal; Ms Menzies also relies on Thomas v Morrhall [2016] NZHC2853, [2017] NZAR 1 and Mehta v Habitat Builders Ltd [2017] NZHC 2075; however, in thosecases this Court was hearing appeals against decisions of the District Court on proceedings thathad been commenced in the Disputes Tribunal but which were later transferred to the DistrictCourt for hearing. Once transferred the proceedings were heard in the District Court's originaljurisdiction and not under the appellate jurisdiction given to it by s 50 of the Disputes TribunalAct.10 I have found no other decision to this effect.11 It is difficult to see how s 50 of the Disputes Tribunal Act (which is silent on appeal to this Court)could be applied to read down an appeal right founded on s 124 of the District Court Act.prefer the interpretation of ss 23 and 50 of the DTA that was taken in Mellow v Tsang,Hopkins v New Life Upholstery Ltd and Graham v Disputes Tribunal at New Plymouth.[21] Accordingly, I am satisfied that on a plain reading of the DTA once the timefor appeal has expired, unless a District Court judge can be persuaded to extend timeto appeal, the Tribunal's decision is final and therefore beyond appellate challenge.Assessment of the merits of the appeal[22] In the alternative and in case I am wrong on the question of jurisdiction and itis possible to bring this appeal under s 124 of the DCA I have also considered themerits of the appeal. For those purposes, it is not necessary to discuss the factualbackground of the Tribunal's decision in detail. However, a brief chronology of thematerial events is relevant.(a) 7 December 2015: the Tribunal's order was issued against Ms Menzies;(b) 22 December 2015: Ms Menzies filed for rehearing;(c) 20 April 2016: Ms Menzies' application for rehearing was refused (shefailed to attend the rehearing, sending an email on the same day citingpoor health and attaching a medical certificate);(d) 27 May 2016: Ms Menzies filed for rehearing a second time;(e) 3 October 2016: a second rehearing was scheduled for 29 November2016;(f) 28 November 2016: Ms Menzies requested an adjournment of thesecond rehearing, citing an emergency dermatological condition andstating that she may be able to provide the Tribunal with a medicalcertificate by noon the next day;(g) 29 November 2016: the second application for rehearing was refused;(h) 1 December 2016: Ms Menzies sent the Tribunal the aforementionedmedical certificate;(i) 14 August 2017; Ms Menzies requested her case file from the Tribunal;(j) 17 August 2017: Ms Menzies filed an application to be granted leave toappeal out of time;(k) 6 December 2017; Judge Harrison dismissed the application.Approach to appeal[23] Section 124 of the DCA refers to a general appeal and s 127 stipulates that suchappeals must be by way of re-hearing. This part of the judgment provides analternative view that is only applicable if I have erred on the question of jurisdiction.In such a context, I do not propose to consider whether an appeal under s 124 of theDCA is to be approached as a general appeal or an appeal against the exercise of adiscretion.[24] Whether an appeal is a general appeal or an appeal against the exercise of adirection is usually influenced by an analysis of the statutory provision that enablesthe decision to be made, as well as other factors relating to the decision-makingprocess.12 Clearly s 50(3) of the DTA gives the District Court discretion to decidewhether to extend time for appeal. Typically, when a provision like this is subject toappeal it is approached as an appeal against the exercise of a discretion, which requiresthe appellate court to take a narrower view of the appeal than would be the case witha general appeal.13[25] Here the language which Parliament has used in ss 124 and 127 of the DCA isconsistent with a general right of appeal, which requires the appellate court to considerthe merits of the appeal afresh. However, it is not clear to me that by enacting ss 124and 127 of the DCA Parliament intended that all District Court appeals to this Court12 See discussion in Financial Marketing Authority v Vivier & Company Ltd [2016] NZCA 197,[2016] 3 NZLR 70 at [42]-[43].13 See discussion about the different approach each type of appeal requires in Kacem v Bashir [2010]NZSC 112, [2011] 2 NZLR 1 at [31]-[32].would proceed as general appeals, thus doing away with the concept of an appealagainst the exercise of a discretion for appeals from that Court.[26] For present purposes, I intend to adopt the broader appellate standard that istaken with general appeals.14 This is because the outcome here would be the sameirrespective of the approach taken to the appeal. Even on this broader approach, forthe reasons set out below, I can see no basis for interfering with the decision to refuseleave to appeal out of time.District Court decision[27] Judge Harrison declined the appellant's application in the following minute:The application for leave to appeal a decision of the DT made 19 months agois declined.[28] It seems that no other reasons were provided by the Judge.Appellant's submissions[29] Ms Menzies' submissions are, in essence:(a) That Judge Harrison did not take into account various delays caused bythe Disputes Tribunal Registry, adjournments to the appellant'srehearing application caused by her ill health, and the unavailability ofthe appellant's full Disputes Tribunal case file;(b) That these delays were compounded by the Disputes Tribunal postingdocumentation to an address in Nelson where the appellant did not live;and(c) That Judge Harrison delivered a determination without a hearing andwithout reasons.14 Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.Respondent's submissions[30] The respondents submit that the Judge was correct in his decision not to grantleave for the following reasons:(a) Any appeal of the Disputes Tribunal's decision would essentially mirrorthe original proceeding, which was decided over two years ago. Thisin turn would go against the principle of finality contemplated by theDisputes Tribunal; and(b) Ms Menzies has not provided any grounds for appeal because noneexists.Discussion[31] The District Court will only exercise its power to extend the 28-day periodunder s 50(3) if the applicant shows "good reason" for an extension to be granted.15Factors influencing whether there is good reason for an extension may include:16(a) Any reasons for the delay;(b) The length of the delay;(c) Whether the delay has been adequately explained;(d) The likelihood of the appeal being allowed;(e) The principle that technical barriers should not be placed in the way ofunrepresented litigants; and(f) The desirability of providing parties in the Disputes Tribunal with non-technical and efficient means of bringing proceedings to finality.15 Elliott v Price DC Blenheim CIV-2012-006-138, 30 August 2012 at [6].16 Park v Emm-Jay Trust DC Hamilton CIV-2004-019-1446, 17 February 2006 at [12].[32] The sole stated reason which influenced Judge Harrison's decision was thelength of the delay. The Judge dismissed the application on the basis that it was made19 months after the Tribunal's determination was made.[33] In reaching this conclusion, the Judge apparently was not convinced by any ofthe various reasons Ms Menzies gave as the cause of the delay in her lodging anapplication. I do not think it is necessary to engage in a piecemeal analysis of theadequacy of each of these reasons. I consider that the decision reached by JudgeHarrison in declining the appellant's application was correct. This is why:(a) Irrespective of the alleged causes of the delays, the length of timebetween the determination of the Tribunal and Ms Menzies' applicationfor leave is considerable;(b) A significant portion of the delays appears to have been caused byMs Menzies' own confusion and failure to communicate efficientlywith the Tribunal; of note are her requests to adjourn the two Tribunalrehearings, which were lodged on the day of and the day prior to therehearings respectively;(c) One of the primary purposes of the Disputes Tribunal is to provide asimple and efficient mechanism of dispute resolution; to allow this caseto progress would be to undermine this principle even further than hasalready been done; and(d) Ms Menzies has failed to demonstrate that she would have a strong caseon appeal, or that an appeal would not just mirror the originalproceeding.[34] From my examination of the material Ms Menzies has filed there is nothingthat has convinced me her case would be successful on appeal. The variousproceedings, communications and litigation involved in this case have been incrediblyprotracted, no doubt much to the frustration of all parties involved.[35] Given the length of the delay between the Tribunal's decision to refuse a re-hearing (on 29 November 2016) and Ms Menzies' application for leave (17 August2017) I do not consider the application should be granted. Furthermore, the re-hearingapplication was made in relation to a substantive decision on her claim that was madeon 7 December 2015. In short, Ms Menzies wants to challenge an outcome thatoccurred almost two years before her application for leave. Regarding the lack ofreasons for the refusal, I consider the length of the delay speaks for itself.[36] Regarding Ms Menzies' submission that Judge Harrison refused leave withouta hearing, I note that Ms Menzies was informed on 31 August 2017 that her applicationwould be heard on a without notice basis, which lends itself to a determination on thepapers. Moreover, I consider this to have been an appropriate approach for the Judgeto have taken.[37] To obtain leave to appeal out of time in circumstances such as theseMs Menzies would need to show a compelling reason for the delay and a strong caseon the merits; neither of which is apparent to me.Result[38] The appeal is dismissed.[39] If the parties are unable to agree costs leave is reserved to them to filememoranda on costs. My preliminary view is that it is a standard type of appeal towhich the usual rules apply, and which is suited to an award of scale costs.