APOSTOLAKIS V WELLINGTON COMBINED TAXIS LIMITED HC WN CIV-2009-485-2152

APOSTOLAKIS V WELLINGTON COMBINED TAXIS LIMITED HC WN CIV-2009-485-2152 7 April 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-2152BETWEEN KATHY APOSTOLAKIS Applicant AND WELLINGTON COMBINED TAXIS LIMITED Respondent Hearing: 31 March 2010 Counsel: K Jefferies for Applicant B Shone for Respondent Judgment: 7 April 2010RESERVED JUDGMENT OF JOSEPH WILLIAMS JIn accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 7 th April 2010. [1] Mrs Apostolakis applies to set aside an arbitral award dated 28 September 2009. The award was made against her and in favour of Wellington Combined Taxis Limited for which she drives. It arose out of an incident that occurred at 8.00am on 5 February 2009 at Wellington airport. [2] A Dr Warman complained about treatment he said he received at the hands of Mrs Apostolakis. He set out his version of events in an email to Combined Taxis' Training and Compliance Manager, Mr Smith. Dr Warman sent it on 20 February, 15 days after the incident. It provided as follows:1. The Sleep Wake Research Centre (Massey University) in Adelaide Rd, Wellington organised and paid for my taxi.2. I was met by a polite man at the airport with my name on a placard. 3. I was shown to a taxi. The female driver initially verbally abused the man who showed me to the taxi saying 'it was not ### good enough' and she was 'not having it'. Not understanding what was going on I got into her taxi. 4. When I got into the taxi and said 'good morning' at which point the taxi driver started to verbally abuse me. Yelling and screaming and driving erratically. 5. I had very little confidence that this driver was competent and capable of getting me to my destination safely. 6. I ordered her to pull over and walked back to the taxi rank with her license plate number and complained. 7. I was put into another taxi and received very good treatment. The treatment I received from WCT375 was undoubtedly the worst and most unprofessional of any taxi I have taken in New Zealand.[3] An incident report was filed by Mr Ted Nicholls, Mr Peter Dickson (who, it appears, were "hosts" for the taxi company), and the Chief Airport Host, Mr Richard Collin. The report corroborated in broad terms the doctor's later email though with slightly more detail reflecting, it appears from the report itself, that it was prepared on the day of the incident. [4] Mr Smith subsequently upheld the complaint against Mrs Apostolakis and found that she had breached the following Wellington Combined Taxis rules:Rule 13.4: Conduct bringing the company into disrepute Rule 13.18: Threatening behaviour and abuse prohibited Rule 13.15: Courtesy and civility required.[5] He imposed a global penalty against the applicant for the breaches. The penalty was 21 days suspension of communications and 100 demerit points. [6] Mrs Apostolakis appealed under the rules to the Combined Taxis Appeal Board. In a decision dated 30 April 2009, the Appeal Board upheld Mr Smith's decision and made additional awards in respect of the costs of the Board and the company. Mrs Apostolakis then sought recourse to final appeal by way of arbitration under Rule 22.1.[7] The arbitration was heard before Helen Cull QC on 3 September 2009. Mr B Crowley appeared for Mrs Apostolakis but she chose not to attend. A full decision was prepared by the arbitrator running to 83 paragraphs and carefully assessing the conflicting versions of the facts. The substance of the complaint was once again upheld although the penalty was varied from 21 days suspension of communication to a $450 fine. In addition the costs awards before the Appeal Board were reduced. [8] It is a firm policy of the law that arbitral awards are final and beyond the purview of the ordinary courts except in exceptional circumstances. Before me, Mr Jefferies on behalf of Mrs Apostolakis argued that the arbitral award should be set aside pursuant to Article 34(2), Schedule 1 of the Arbitration Act 1996. Before Mrs Apostolakis instructed counsel to argue the application before me, she advanced a number of grounds in support of the application but it was clear that all but one were devoid of even theoretical merit. For example, she argued that she could not present her case in the arbitration because she was not there - an argument in reference to Article 34(2)(a)(ii) of the schedule. It was clear however that she chose not to attend and that she had Mr Crowley present and arguing the case for her. [9] In any event, Mr Jefferies in this court quite correctly acknowledged that the only possible ground available to Mrs Apostolakis was that contained in Article 34(2)(b)(ii) – that is that the award was in conflict with the public policy of New Zealand. [10] Mrs Apostolakis argued with the support of two of her own affidavits and some research she undertook, that a grave error had been made by the Appeal Board and in the arbitration. She said that, whatever did occur between her and her passenger at 8.00am on 5 February 2009, the person who sent the email complaint on 20 February 2009 to Mr Smith was not the person she carried. She said that in fact there are two Dr Warmans. She said that the doctor who got into her taxi was Dr PGR Warman, not the Guy Warman who made the complaint. To complicate matters it appears (according to Mrs Apostolakis) that both doctors are known as Guy but the complainant who sent the 20 February email is a senior lecturer in anaesthesiology at the Auckland University School of Medicine and is an expert insleep patterns. He is the young doctor Warman. Mrs Apostolakis was adamant that on the relevant day she carried the elder Dr PGR Warman not the young one. [11] I accept at once that if she could establish that this was the position, it would be quite inappropriate to allow the award to stand. It would raise the possibility that it had been obtained by fraud or deception. [12] This argument was not raised in any forum prior to it being raised in this court. Mrs Apostolakis says that was because she only discovered the problem after the arbitral award when doing some research on the complainant. She said she could not have discovered it at any time before then. Mrs Apostolakis argued that she knew it was the older Dr PGR Warman who got into her taxi on that day because she had dealings with him between 1967 and 1969 when she was employed at Medical Assurance, Kelvin Chambers, The Terrace in Wellington. [13] Neither Mr Nicholls nor Mr Dickson who were also at the taxi rank at the relevant time filed affidavit evidence on the question. Nor was the doctor himself called. Mrs Apostolakis' evidence is the only direct evidence on the point. Nonetheless, Ms Shone chose not to cross-examine her. Instead Ms Shone chose to rely on two documents: the terms of Dr Warman's email complaint of 20 February with its reference to the Sleep Wake Research Centre and the incident report from Messrs Nicholls, Dickson and Collin in which the doctor is referred to as "Dr Guy Warman". She also relied on the fact that Mrs Apostolakis had been researching Dr Warman with the Medical Council in March 2009 and, if she was genuinely concerned about a mistaken identity, she could reasonably have discovered the new evidence necessary to make out her case before the Appeal Board hearing. There was no basis in justice for allowing an entirely new line of argument to be pursued at this late stage. [14] Whether that is true or not, the real problem for Mrs Apostolakis is that her argument is so inherently implausible that it can be safely discounted in my view. In order to succeed on the balance of probabilities, she would have to explain the combined effect of the contemporaneous incident report identifying the complainant as Guy Warman, and the email of 20 February from Dr Warman apparentlyconfirming that he is the younger sleep specialist. Mrs Apostolakis would have to convince me on the balance of probabilities that the two doctors (if indeed there are two) conspired to replace the identity of the older Warman with that of the younger one in order to prosecute the complaint against her. In the absence of some cogent evidence of motive or malice, I cannot think why on earth either Dr Warman would do that. There was of course no such evidence. [15] I acknowledge that it would have more definitively and conclusively resolved matters if either of the airport hosts or the doctor himself gave direct evidence on the point or if Ms Shone had cross-examined Mrs Apostolakis. But I nonetheless conclude that Mrs Apostolakis' theory is so improbable that without further evidence she cannot establish on the balance of probabilities that the person she carried on 5 February 2009 and the person who emailed particulars of his complaint on 20 February 2009 were different people. [16] I conclude therefore that the award of 28 September 2009 is not in conflict with the public policy of New Zealand in terms of Article 34(2)(b)(ii) and the application to set aside the award is dismissed accordingly. [17] Costs are reserved. "Joseph Williams J"Solicitors: Jefferies Raizis, Barristers & Solicitors, PO Box 10641, Wellington Buddle Findlay, PO Box 2694, Wellington