EDWARDS v THE PHOTO WAREHOUSE LIMITED [2016] NZHC 582

EDWARDS v THE PHOTO WAREHOUSE LIMITED [2016] NZHC 582 [6 April 2016]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2015-485-1043[2016] NZHC 582UNDER High Court Rule 20.4IN THE MATTER OF an interlocutory application on notice foran order allowing an extension of time forappealing against an oral judgment ofJudge Tuohy delivered in the DistrictCourt at Lower Hutt on 10 November2015BETWEEN JOHN ANTHONY EDWARDSApplicantAND THE PHOTO WAREHOUSE LIMITEDRespondentHearing: 4 April 2016Counsel: Applicant in personNo appearance for respondentJudgment: 6 April 2016JUDGMENT OF CLARK JI direct that the delivery time of thisjudgment is 4.00 pm on 6 April 2016Introduction[1] This matter originates with a decision of the Disputes Tribunal whichMr Edwards, the applicant, unsuccessfully appealed to the District Court.1Mr Edwards applies for leave to appeal out of time the decision of the District Court.[2] The matter came before me when it was called in the Chambers List on 4 April2016. The application has been the subject of previous minutes essentially directedtowards ensuring proper service on the respondent.[3] There was no appearance for the respondent. Instead Mr Stevenson, counselfor the respondent, filed a memorandum in advance of the call highlighting the absenceof jurisdiction to entertain the application and requesting that counsel be excused fromattending any call given the absence of formal service as well as the jurisdiction issue.[4] I discussed with Mr Edwards my provisional view that he could not appeal theDistrict Court Judge's decision to the High Court. Notwithstanding his obviousdisappointment at such an outcome Mr Edwards was gracious in his acceptance of theinevitable.[5] Section 23 of the Disputes Tribunals Act 1988 provides that every order of theTribunal —" shall be final and binding on all parties to the proceedingand, except asprovided in s 50 of this Act, no appeal shall lie in respect of any such order"[6] The right of appeal provided in s 50 is of limited scope. A party to proceedingsbefore a Tribunal may appeal to the District Court only on the grounds that theproceedings were conducted by the Referee, or an inquiry was carried out by aninvestigator, in a manner that was unfair to the appellant and prejudicially affected theresult. The limited nature of the appeal right reflects the Tribunal's function ofachieving speedy, inexpensive and effective resolution of disputes below a prescribedmonetary level.1 Edwards v The Photo Warehouse Limited [2015] NZDC 22921.[7] I observe that a party to a proceeding before a Tribunal may also apply underthe Disputes Tribunals Act for a rehearing. As well, judicial review is available. ButMr Edwards has not elected either of those options.[8] The applicant's appeal in the District Court was dismissed. I have no doubtthat Mr Edwards has exhausted the only appeal right available to him. Although theDistrict Courts Act 1947 confers a right to appeal decisions of a District Court thatright does not apply in the face of an enactment which expressly confers a right ofappeal or provides expressly that there is no right of appeal.[9] Section s 23 of the Disputes Tribunals Act is just such an enactment. Its effectis to make an order of a Tribunal such as was made in this case final and binding exceptto the limited extent the orders are amenable to the limited appeal available under s 50.Section 23 has been held to go beyond merely limiting recourse by way of appealfrom the Disputes Tribunal to the s 50 right but to state unequivocally:2that 'no appeal shall lie' except by that right and confirms that s 50confers not merely a single right of appeal, but a final right.[10] I accept as correct the analysis and approach of Keane J in Mellow v Tsang.This Court is unable to entertain a second appeal from the decision of the DisputesTribunal.[11] Consequently, the application for leave to appeal must be refused.____________________Karen Clark JSolicitors:Douglas Burgess, Auckland, for RespondentCopy to the Applicant2 Mellow v Tsang [2004] NZAR 537 (HC) at [24] applied in Business Continuity Services NZ Ltd vContact Energy Ltd HC Wellington CIV-2009-485-1531, 15 September 2010.