MACSMITH’S TIRES LIMITED v GEORGE STOCK AND COMPANY LIMITED [2022] NZHC 438

MACSMITH'S TIRES LIMITED v GEORGE STOCK AND COMPANY LIMITED [2022] NZHC 438 [11March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-001813[2022] NZHC 438BETWEEN MACSMITH'S TIRES LIMITEDAppellantAND GEORGE STOCK AND COMPANYLIMITEDRespondentHearing: 11 March 2022Appearances: Appellant in Person (by VMR)J Suyker for RespondentJudgment: 11 March 2022JUDGMENT OF VENNING JThis judgment was delivered by me on 11 March 2022 at 3.30 pm, pursuant to Rule 11.5 of the HighCourt Rules.Registrar/Deputy RegistrarDateSolicitors: SBM Legal, AucklandCounsel: S Lowery/J Suyker, AucklandCopy to: Appellant[1] Macsmith's Tires Limited (MTL) seeks leave to appeal a decision of theDistrict Court dismissing its appeal from a decision of the Disputes Tribunal.1[2] MTL carries on the business of a motor vehicle tyre repairs, upgrades andalignments from a workshop in Gordonton. George Stock and Company Limited(GSC) supplies automotive equipment parts and repair equipment. During 2018 MTLpurchased a Hunter Pro-Align laser wheel alignment machine from GSC. MTL saysit was delivered unpacked, and then later installed and commissioned by an employeeof GSC in September 2018. From 8 October 2018 MTL commenced using thealignment machine for its customers. MTL carried out a number of alignmentsbetween 8 October 2018 and 25 January 2019 which resulted in misalignment ofcustomers' wheels. The misalignment caused the tyres to wear excessively. MTL hadto replace them at its cost.[3] When MTL drew the problem to GSC's attention in late January 2019, arepresentative of GSC recalibrated the machine in early February. The machine hasworked satisfactorily since.[4] MTL refused to pay the balance of $9,000 owing to GSC for the alignmentmachine. It took proceedings against GSC in the Disputes Tribunal claiming $30,000for its losses. GSC cross-claimed for the balance of the purchase price of the machinefrom MTL.[5] In a decision delivered on 16 June 2020 the Disputes Tribunal dismissed MTL'sclaim and made an award in GSC's favour directing MTL to pay the balance of thepurchase price of $9,000.2[6] MTL successfully applied to have that decision set aside and was granted arehearing.[7] The rehearing was held on 2 April 2020. At that rehearing Mr Smith and hispartner Bridget represented MTL and attended by telephone. Tony Simpson and1 MacSmith's Tires Ltd v George Stock and Company Ltd [2021] NZDC 7188.2 MacSmith's Tires Ltd v George Stock and Company Ltd DC Auckland CIV-2020-094-000385, 16June 2020.Ayzaaz Ahamad appeared for GSC in person. The hearing lasted for some time.During the course of the hearing the Referee viewed a video Mr Smith had taken ofthe machine in operation. The transcript of the hearing runs to some 44 pages.[8] The Tribunal Referee concluded that the problem with MTL's claim was that,even if it was proved that GSC had breached the contract by not calibrating themachine MTL was aware of a possible problem with the machine from an early stagebut did nothing until late January. When GSC was contacted in late January and themachine was inspected in early February 2019, whatever the problem was, wasimmediately resolved. Had MTL contacted GSC when it was first aware of thepossible problem MTL's loss would have been mitigated immediately. By continuingto carry out alignments knowing of the issue MTL had contributed to its loss. TheReferee considered MTL's loss would have been minimal, if not non-existent, if MTLhad contacted GSC immediately.[9] For that reason, even if MTL proved the problem was because GSC had notinitially calibrated or set up the machine correctly, the Referee considered MTL'sclaim must fail because any loss to MTL suffered was most likely because of its owndecision not to act when it was aware of the potential problem. The Tribunal Refereerejected MTL's claim and confirmed the award in GSC's favour for the balance of thepurchase price of $9,000.[10] MTL then sought to appeal that decision to the District Court. Ultimately, andafter a number of procedural issues, the substantive appeal came before Judge G MHarrison on 14 April 2021. On 21 April 2021 Judge Harrison delivered a reservedjudgment declining the appeal.3 In his judgment Judge Harrison noted that there wasno general right of appeal to the District Court. The appeal right from a decision ofthe Disputes Tribunal under the Disputes Tribunal Act 1988 was limited. An appellanthad to show that:4the proceedings were conducted by the Referee in a manner that was unfairto the appellant and prejudicially affected the results of the proceedings.3 MacSmith's Tires Ltd v George Stock and Co Ltd [2021] NZDC 7188.4 At [5].[11] The Judge did not consider the evidence established the proceedings had beenconducted in an unfair manner. He reviewed the record of the hearing and the issuesraised before the Tribunal. He noted that MTL's principal submission was that thegoods supplied were not fit for purpose and the Referee had failed to take into accountthat proposition. However, the Judge concluded that the Referee did take that intoaccount but decided that, essentially because MTL brought its losses on itself, therewas no need to determine the question of whether the machine as supplied was not fitfor purpose because MTL's loss arose from its failure to take steps to address the issuewhen it became aware of it. It had caused its own loss.[12] Even if the Referee had made an error in his findings of fact or law, as theJudge noted, there could be no appeal to the District Court on that basis, citing NZIInsurance v Auckland District Court and Inland Holdings Ltd v District Court atWhangarei.5 For those reasons Judge Harrison dismissed the appeal.[13] This application for leave/appeal was originally scheduled for hearing onTuesday, 8 March 2022. However, Mr Smith suffered an injury that morning and wasunable to attend. The hearing was rescheduled to 10.00 am, Friday, 11 March 2022.[14] As the Court has advised Mr Smith in the past, there are a number of issues forMTL with its purported appeal to this Court. First, the appellant, MTL, is a company.It is not represented by counsel. When the matter was first before this Court in calloverlast year Gault J drew Mr Smith's attention to the general rule, which is only departedfrom in exceptional circumstances, that a company can only present a case in the HighCourt through a lawyer. Exceptional circumstances are primarily reserved foremergency situations where counsel is not available or in straightforward matterswhere the assistance of counsel is not needed by the Court or where it would be undulytechnical or burdensome to insist on counsel. As Gault J observed this is not such acase.65 NZI Insurance v Auckland District Court [1993] 3 NZLR 453; and Inland Holdings Ltd v DistrictCourt at Whangarei (1999) 13 PRNZ 661.6 Minute of Gault J, dated 19 October 2021.[15] Next, the purported appeal is out of time. Leave is required. The judgment ofJudge Harrison was delivered on 21 April 2021. The first document filed in this Courtwas a notice of general appeal which, although dated 8 June 2021 was not emailed andreceived by the Court on 17 June 2021 at 1.00 pm. The appeal is approximately sixweeks out of time.[16] An extension of time is an indulgence. The Court will consider the length ofthe delay, the reasons for it, the parties' conduct, the extent of the prejudice caused bydelay, the prospective merits of the appeal and whether the appeal raises any issues ofpublic importance. Mr Smith explained the delay in lodging the appeal on the basisthat he had been suffering from mental health issues.[17] In the present case the appeal does not raise any issue of public importance.The prospective merits of the appeal do no support grant of leave, even taking accountof Mr Smith's explanation for the delay.[18] However, even putting that issue to one side, there is a further and fundamentalbarrier to MTL's purported appeal in this case as the Court advised Mr Smith. ThisCourt does not have jurisdiction to consider the appeal even if otherwise it would havebeen appropriate to grant leave to bring the appeal.[19] Rights to appeal are created by statute.7 The right to appeal from a decision ofthe District Court to this Court is provided for in s 124 of the District Court Act 2016:124 General right of appeal(1) This Part applies to a decision of the court, other than a decision of akind in respect of which an enactment other than this Act—(a) expressly confers a right of appeal; or(b) expressly provides that there is no right of appeal.(2) A party to a proceeding in the District Court may appeal to the HighCourt against the whole or a part of a decision made by the DistrictCourt in or in relation to the proceeding.7 Attorney-General v Sillem (1864) 11 ER 1200 (HL).[20] Section 124(1) excludes from the general right of appeal to this Court wherean enactment other than the District Court Act expressly provides for a right of appeal.[21] The Disputes Tribunal Act 1988 provides for a right of appeal from decisionsof that Tribunal.[22] Section 50 of the Act provides:50 Appeals(1) Any party to proceedings before the Tribunal may appeal to theDistrict Court against an order made by the Tribunal under section18(8) or section 46(2) or section 47(3)(b), or against the approval bythe Tribunal of an agreed settlement under section 18(3), or againstthe variation of a term of an agreed settlement under section 47(3)(a),on the grounds that—(a) the proceedings were conducted by the Referee; or(b) an inquiry was carried out by an Investigator—in a manner that was unfair to the appellant and prejudicially affectedthe result of the proceedings.(2) Without limiting the generality of subsection (1), a Referee shall bedeemed to have conducted the proceedings in a manner that was unfairto the appellant and prejudicially affected the result if—(a) the Referee fails to have regard to any provision of anyenactment that is brought to the attention of the Referee at thehearing; and(b) as a result of that failure, the result of the proceedings is unfairto the appellant.[23] However, importantly, s 23 expressly provides:23 Decisions of Tribunal to be finalEvery order made by the Tribunal under section 18(8) or section 46(2) orsection 47(3)(b), shall be final and binding on all parties to the proceedingsin which the order is made, and, except as provided in section 50, noappeal shall lie in respect of any such order .[24] As Keane J held in Mellow v Tsang:8[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.[25] To similar effect are the decisions of Menzies v North Shore Laser and SkinCare Centre Ltd and Edwards v The Photo Warehouse Ltd.9[26] The rationale behind limiting the right of appeal (and review) was set out byFogarty J in Shepherd v Disputes Tribunal and Stuart Hendry Builders Ltd:10[37] It is even more appropriate that this aspect of the law of res judicatashould be applied to proceedings under the Disputes Tribunals Act 1988. Thegoal of that statute is to provide for low cost speedy and final resolution ofsmall disputes. To achieve that end Parliament was not interested in providingappeals on the merits of decisions.[38] That may result in what might be described as rough justice from timeto time. That has to be balanced against the overall goal of the Act to enablepersons who could not possibly afford the very expensive litigation costs inthe District and High Courts, the opportunity of taking claims before refereesand getting justice. Taking into account the goals of the Disputes TribunalsAct 1988 I am reinforced in my mind that it is entirely appropriate to applythe law of res judicata in all its rigour against the applicant in this case.[27] Those comments were made in the context of the applicant seeking to raiseissues for the first time before the High Court. The Judge was not prepared to allowthat, noting that:8 Mellow v Tsang [2004] NZAR 537.9 Menzies v North Shore Laser and Skin Care Centre Ltd [2018] NZHC 1035 and Edwards v ThePhoto Warehouse Ltd [2016] NZHC 582.10 Shepherd v Disputes Tribunal [2004] NZAR 319 (HC).[36] This may seem hard on litigants. But the reason for the law taking thisapproach is that there is a greater public interest in decisions being final.Otherwise litigation could go on and on and on. [28] I agree with and adopt the reasoning of the above authorities. The short pointis that the Disputes Tribunal Act does not provide a second appeal from a decision ofthe District Court on appeal. The absence of such a right, when read with ss 23 and50, confirms Parliament's clear intention was that there was to be only one level ofappeal, namely to the District Court, and even that appeal was to be constrained.[29] For that reason, I find that this Court has no jurisdiction to hear an appeal froma decision of the District Court on appeal from an order of the Disputes Tribunal. TheCourt has no jurisdiction to consider MTL's appeal.[30] Even if this Court had jurisdiction to engage with the appeal it would be on thebasis of the record before the Disputes Tribunal and could only be on the sameconfined basis that the District Court approached the matter. I have considered therecord of the hearing conducted by the Disputes Tribunal in this case at the rehearing.There is nothing unfair in the process the Referee adopted at the hearing.[31] Even if there was jurisdiction the appeal would have to be dismissed on itsmerits.Result[32] For those reasons MTL's purported appeal and application for leave to appealto this Court are dismissed.Costs[33] The respondent is entitled to costs.[34] Mr Suyker suggested that in the circumstances costs could be reserved. Orderaccordingly.__________________________Venning J