CROSBIE V DISPUTES TRIBUNAL CHRISTCHURCH HC CHCH CIV-2008-409-001068

CROSBIE V DISPUTES TRIBUNAL CHRISTCHURCH HC CHCH CIV-2008-409-001068 24 November 2008IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2008-409-001068UNDER the Judicature Amendment Act 1972 IN THE MATTER OF the Disputes Tribunal Act 1988 BETWEEN JULIE CROSBIE Plaintiff AND DISPUTES TRIBUNAL CHRISTCHURCH Defendant Hearing: 4 November 2008 Appearances: HDP van Schreven for Plaintiff Judgment: 24 November 2008RESERVED JUDGMENT OF HON. JUSTICE FRENCH Introduction[1] The plaintiff seeks judicial review of a decision of the Disputes Tribunal. [2] The factual background is as follows. [3] In 2006 the plaintiff underwent laser treatment for a skin condition at a Christchurch clinic. She contended the treatment effected no improvement, and filed a claim in the Disputes Tribunal seeking a refund of the $4000 fee she had paid the clinic, as well as general and exemplary damages. [4] The claim was based on an alleged breach of the Consumer Guarantees Act 1993 and a pre-contractual representation allegedly made by the clinician that the plaintiff could expect at least a 50% improvement.[5] The clinician disputed the claim, and a hearing was duly held before the Disputes Tribunal referee. [6] In a written decision, the Tribunal dismissed the claim, having made the following findings: i) The correct respondent was not the doctor personally, but a limited liability company which the Tribunal ordered to be substituted as the respondent; ii) No such representation in the terms alleged by the plaintiff had been made; iii) There was insufficient proof of the failure of the treatment, there being no objective evidence of "no improvement" such as might have been provided by "before and after" photographs; iv) There was no evidence of any negligence on the part of the doctor other than the fact the plaintiff did not achieve the desired results. He was therefore not in breach of the guarantee under the Consumer Guarantees Act to carry out the services with care and skill. v) The Tribunal had no jurisdiction to award damages for pain and suffering because of the ban on personal injury claims under the accident compensation legislation. Further, no award of general damages could be made in the absence of a breach of contract and/or legislation. [7] The plaintiff now seeks to challenge those findings on the grounds of error of law, irrationality and bias. She seeks an order quashing the decision and directing a rehearing.[8] When these judicial review proceedings were first filed, the doctor, his company and the Disputes Tribunal were all joined as defendants. [9] Since then, the plaintiff has discontinued against the doctor and his company, leaving only the Disputes Tribunal. The Disputes Tribunal has elected to abide the decision of the Court. [10] The application for judicial review therefore proceeded on an undefended basis, and no order for costs has been requested by the plaintiff against any of the defendants.Are decisions of the Disputes Tribunal amenable to judicial review?[11] The first question to be determined is whether decisions of the Disputes Tribunal are amenable to judicial review. [12] The weight of authority suggests that decisions of the Disputes Tribunal are, at least in principle, reviewable (see the discussion of the caselaw in Bellis v Disputes Tribunal HC Christchurch, CIV-2007-409-000731, 5 September 2007, John Hansen J; and Cruickshank v Disputes Tribunal [2007] NZAR 602). [13] However, this Court generally views such proceedings with disfavour, because they are antithetical to the very purpose of the Disputes Tribunal which is to be a low-level, speedy, and economic means of determining minor disputes. The empowering statute specifically provides that the Tribunal is not bound to give effect to strict legal rights, obligations, legal forms, or technicalities but is to decide the dispute according to the substantial merits and justice of the case (s18 Disputes Tribunals Act 1988). Obviously, this makes quashing decisions on the ground of error of law highly problematic. As was noted in Cruickshank, the eligibility of non lawyers for appointment as referees and the exclusion of lawyers from the hearing also signifies a very different approach to that expected of professional Judges. Further, costs are generally not to be awarded (s43) and there are limited rights of appeal to the District Court. Judicial review is often seen as a backdoor method ofcircumventing the limited scope of the appeal rights. Another consideration is that the Tribunal's decisions have no authority as judicial precedent. [14] In short, judicial review proceedings against decisions of the Disputes Tribunal are to be discouraged. Very few have been successful. Mr van Schreven was only able to point me to two cases where a plaintiff has been successful, and one of those concerned a situation where the Tribunal had exceeded its monetary jurisdiction. As Mr van Schreven put it, a successful outcome is "rare but not impossible". [15] In Cruickshank, Baragwanath J held that the Court retains discretion, if there is some truly significant issue at stake, to exercise its powers of review with such intensity as the nature of the case may warrant.The Court's findings[16] For reasons which will become apparent, it is not necessary for me to traverse all of the alleged errors advanced by the plaintiff. [17] As Mr van Schreven acknowledged, the plaintiff's claim turns on proving the alleged pre-contractual misrepresentation. If the Referee was entitled to make the finding of fact that she did about there being no such representation, then the claim automatically fails and issues about damages, production of photos and the correct identity of the respondent become immaterial. [18] In support of her assertion that the doctor had made the representation alleged, the plaintiff adduced the following evidence: (a) her own testimony; (b) the evidence of her partner, who testified he had heard the doctor make the representation and had written a note immediately afterwards recording the doctor's promise of at least a 50% improvement;(c) a promotional pamphlet about the treatment – this did not contain any statements about at least a 50% improvement but was of a generally positive nature, as were statements on a website; (d) the doctor's offer of some further treatment at no additional cost. [19] Against that was the following evidence: (a) The testimony of the doctor who said it was never his practice to make such a promise and that he was sure he had not done so in this case. He testified that the result of the particular treatment can never be guaranteed and that it differs from person to person. (b) A letter written by the doctor to the plaintiff's health insurer (unsuccessfully) seeking funding for the cost of the treatment. The letter (written after the consultation) stated that the type of treatment was relatively new, that the clinic had had some good results, that there was increasing evidence it can be of benefit but that it was still difficult to get the best outcome. (c) A patient consent form signed by the plaintiff prior to the treatment in which she acknowledged that the payments were non-refundable. The consent form also contained a statement that all patients will not necessarily react the same way to the laser treatment and the number of treatments will vary from patient to patient. [20] The plaintiff's complaint is that the Referee was too dismissive of the evidence the plaintiff adduced, and thereby demonstrated bias, predetermination and irrationality. [21] The plaintiff is especially critical of the Referee's treatment of the handwritten note. The note was only a few lines and given the consultation had lasted twenty minutes, the Referee considered the note was not a complete record.The Referee also considered that despite there being only a relatively short time span between the end of the consultation and the writing of the note, it was possible for there to be inaccuracies in the recalling of the doctor's exact words. The doctor had testified it was possible he might have said at best 50% improvement or at most 50% improvement. [22] I have closely considered the evidence adduced by both parties, and the decision. [23] The weight to be attached to evidence is a matter for the fact finder and I can find no justiciable fault with the Referee's analysis of the evidence and reasoning processes. In particular, in my view, the Referee was clearly entitled to have regard to the consent form and the letter written by the doctor to the insurance company. I also do not accept the submission the doctor's evidence was assumption only based on his usual practice. He testified he was "sure" he had not made such a statement. As for the offer of additional free treatment, the context in which the offer was made means that the inference the plaintiff sought to be drawn was not the only possible inference. [24] In my view, the Referee was entitled to prefer the evidence of the doctor over that of the plaintiff and her partner. [25] For the reasons mentioned above, this effectively disposes of the plaintiff's claim. However, in deference to the argument I heard, I also record my view that the fact there was no, or minimal, improvement could not in the circumstances of this case amount to a situation of res ipsa loquiter as the plaintiff argued. There was no evidence the doctor had in some way misapplied the treatment or been in any way negligent. It follows that the claim for breach of the obligation to carry out the services with reasonable care and skill was doomed to failure. [26] I am satisfied there has been no material error of law rendering the decision of the Tribunal unjust having regard to the substantial merits of the case.[27] There is no justification for this Court to intervene and the application for review is accordingly dismissed. [28] There will be no order as to costs.Solicitors: Clark Boyce, Christchurch