HE V BAI CA420/2014 [2014] NZCA 533

HE V BAI CA420/2014 [2014] NZCA 533 [6 November 2014]IN THE COURT OF APPEAL OF NEW ZEALANDCA420/2014[2014] NZCA 533BETWEEN JUN HEApplicantAND CYNTHIA BAIRespondentHearing: 3 November 2014Court: Wild, White and Cooper JJCounsel: Applicant in personNo appearance for respondentJudgment: 6 November 2014 at 12:30 amJUDGMENT OF THE COURTThe application for special leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] Mr He has made an application under s 120 of the Residential Tenancies Act 1986 (the Act) for special leave to appeal to this Court against a determination of the High Court. In the High Court, Courtney J1 dismissed an appeal made by Mr He against a decision of Judge Wilson QC sitting in the District Court at Waitakere.21 He v Bai [2014] NZHC 627 [High Court judgment].2 He v Bai DC Waitakere CIV-2013-090-455, 23 October 2013.Subsequently, Courtney J refused leave to appeal to this Court in a judgment delivered on 18 June 2014.3The District Court decision[2] Mr He's original appeal to the District Court was against a decision of theTenancy Tribunal that it did not have jurisdiction to hear an application by Mr He in which he sought the return of a bond in the amount of $180, and compensation in the sum of $518 for the failure by Ms Bai to provide Broadband services in the first two weeks of his tenancy. The approach taken by the Tribunal turned on credibility findings made against Mr He and in favour of Ms Bai. Judge Wilson took the view that the decision of the Tribunal was reached after evidence that was directly relevanthad been wrongly excluded. He quashed the Tribunal's substantive ruling, and also its order declining a rehearing.[3] He then directed a rehearing before a differently constituted Tribunal. It wasonly this direction that was the subject of Mr He's appeal to the High Court.The High Court decisions[4] Under s 119 of the Act, the appeal to the High Court was confined to questions of law. In her judgment of 1 April 2014, Courtney J noted that the Judge'sdirection that the hearing take place before a differently constituted Tenancy Tribunal was the exercise of a discretionary power he had under s 118(1)(a) of the Act.4That section provides that on the hearing of an appeal, a District Court judge mayquash the order of the Tribunal and order a rehearing of the claim "on such terms as the Judge thinks fit". In the circumstances, it was necessary for Mr He to show thatthe Judge's direction was affected by legal error. Courtney J was satisfied that Mr He had not done so.3 He v Bai [2014] NZHC 1369.4 High Court judgment, above n 1, at [2].[5] Leave was required to bring a further appeal in this Court, and it was necessary for Mr He to demonstrate the proposed further appeal involved a question of law that:5because of its general or public importance or for any other reasons, oughtto be submitted to the Court of Appeal for decision.[6] In declining Mr He's application for leave to appeal to this Court, Courtney J stated she was satisfied that the issues he raised did not involve a question of law, let alone a question of law that is of general or public importance. No other consideration justified a second appeal.6Evaluation[7] Mr He has similarly not been able to identify a question of law for the consideration of this Court, despite being afforded ample opportunity at the hearing to do so. The same statutory test applies when this Court is approached for special leave to appeal, under s 120(3) of the Act.[8] Mr He complained generally that the Tenancy Tribunal lacks any effective ability to ensure that persons giving evidence before it tell the truth. It is a situation that he asserts must be stopped. He claims that while the processes before the Tribunal are designed to be easy to follow, that can result in unfairness unless there is an effective sanction. He asserts that the system should be reformed, to improvethe Tribunal's performance. These are not matters that are relevant for this Court in considering an application for special leave to appeal under s 120(3) of the Act.[9] We infer from the written material he has provided that Mr He thinks it would be easier to establish that Ms Bai had not told the truth if the same Tribunal were to deal with the matter again, but we are not persuaded that there is any basis for thatview. Mr He also claims that it is the "simple convention" that the same Tribunalshould rehear the matter. However, a decision to order a re-hearing before a differently constituted Tribunal may be appropriate where there have been adverse credibility findings against a successful appellant, and that is the situation here.5 Section 120(2) of the Residential Tenancies Act 1986.6 He v Bai, above n 3, at [4].[10] None of the matters raised by Mr He comes close to identifying a question of law arising from the proceedings in the District Court. In this case, any suchquestion would have to be based on some alleged error affecting the Judge's decisionthat the matter be reheard by a differently constituted Tribunal. Mr He has not identified such an error.[11] Consequently, the application is dismissed.Costs[12] The respondent took no steps and did not appear, so there is no issue as to costs.