FAVA V ZAGHLOUL HC AK CIV 2005-404-006818

FAVA V ZAGHLOUL HC AK CIV 2005-404-006818 28 April 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-006818 PHILIP JOSEPH FAVAAppellant vEKHLAS NASR ZAGHLOULRespondent Hearing: 12 April 2006 Appearances: Mr Fava in Person Mr S R G Judd for Respondent Judgment: 28 April 2006JUDGMENT OF VENNING JSolicitors: Hornabrook MacDonald, Auckland Copy to: P J Fava, PO Box 37606, Parnell, Auckland S R G Judd, AucklandIntroduction[1] This appeal is from a decision of the District Court upholding a decision of the Residential Tenancy Tribunal. The appeal is pursuant to s 119 of the Residential Tenancies Act 1986 (the Act). As such it is an appeal on a point of law only. [2] The appellant represents himself. It is common ground, however, that only two points of law can arise on the present appeal. (1) Did the Residential Tenancy Tribunal have jurisdiction to consider the appellant's claim for misrepresentation under the Fair Trading Act 1986? (2) Does s 98 of the Act oblige the Tribunal to issue a witness summons whenever requested to do so by a party?Background[3] For present purposes the procedural background can be summarised from the appellant's chronology as follows:• 15 December 2002 the tenancy agreement between the appellant and respondent was signed.• 14 July 2004 the respondent landlord applied to the Tribunal seeking orders for: - termination of the tenancy; - vacant possession; - payment of rent arrears and other arrears.• On 23 July 2004 the appellant cross-applied for orders: - compelling the landlord to remedy property leaks and related orders; - for reimbursement for the cost of plumbing repairs;- directing the removal of a window frame; - for a declaration the landlord's application was a retaliatory notice;• The appellant also made an application for relief under the Fair Trading Act under s 43(2)(c) of the Fair Trading Act 1986 for $7,500.00 alleging that the landlord represented the premises had no history of leaking and were safe and dry and watertight.• On 12 August 2004 the Tribunal convened a first hearing. The Tribunal directed a report from an independent assessor under s 99 of the Act.• Following the first hearing the appellant requested the respondent for all details of insurance claims made in relation to the property.• On 22 September 2004 the Tribunal convened a second hearing. The report obtained from Astute Building Assessments Limited (Astute) under s 99 of the Act was circulated at the hearing. The appellant requested an adjournment to allow time to consider the Astute report and for the insurance assessors to be summonsed. The Tribunal declined the application for adjournment and reserved its decision.• 24 September 2004 the appellant applied to the Tribunal for a rehearing. That application was returned for the appellant on 27 September 2004. On 7 October 2004, however, the Tribunal granted an adjournment and directed the respondent to provide the appellant with the insurance details that had earlier been requested.• 20 October 2004 the respondent disclosed the name of an insurance person (Mr Faircloth) she had dealt with but did not advise the identity of the insurance company.• 22 November 2004 the appellant applied to the Tribunal for witness summonses for the local managers of three insurance companies (Tower, SIS and AMI). The Tribunal issued witness summonses accordingly.• 10 December 2004 the Tribunal convened a further hearing. The representatives of the three insurance companies (Tower, SIS and AMI) who had been summonsed attended and gave evidence. Neither Tower nor AMI had any relevant records. SIS did. Its manager produced its whole claim file.The Hearing on 10 December 2004 and decision[4] After the evidence of the SIS manager, the appellant sought an adjournment to allow the opportunity for Mr Faircloth and Mr Bartlett (who had also had some dealing with the file) to be brought before the Tribunal to give viva voce evidence. The Tribunal declined the application for adjournment. [5] The Tribunal issued a decision dated 10 December. In that decision it held that the appellant owed the landlord $3,505.04 calculated as follows: Rent owing to 20/12/04 $4,550.00 Water rates owing till 10/11/04 $1,412.59 Compensation for garage repairs and lawn damage $ 250.00 ________ Total $6,212.59 Less: Compensation for leak problems (four weeks rent equivalent) $2,600.00 Reimbursement of plumbing bill $ 107.55 ________ Balance: $3,505.04 ________ [6] The Tribunal dismissed the respondent's applications for orders for access to the premises and for compensation for unlawful acts. [7] The appellant's applications for work orders and for a declaration the notice to quit be held retaliatory and set aside were also dismissed. The Tribunal alsodismissed the appellant's claim for compensation under the Fair Trading Act. The adjudicator was not satisfied that the respondent or her agent, Mr Niazi had falsely represented the premises to the appellant.District Court decision[8] The appellant appealed to the District Court. Inter alia, he alleged the respondent had perpetrated a fraud on the Tribunal by failing to disclose the information regarding the leaks as disclosed by the insurance claim. [9] In the course of dismissing the appeal the District Court Judge found that he was not satisfied a fraud had been perpetrated on the Tenancy Tribunal Adjudicator. He considered that:Significantly, the adjudicator considered the same evidence placed before me at the rehearing and came to the conclusion that she had not been misled. With respect it seems to me that the adjudicator, having reviewed the contentious material placed before her, is in a far better position than I to say whether the disputed evidence led or may have led her to make an incorrect decision.[10] In dealing with the refusal to adjourn the third hearing on 10 December to allow the appellant to issue further witness summonses, the Judge referred to the provisions of s 85(2) of the Act:The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.and ss 97(4) and 97(6) before concluding that:[21] The adjudicator clearly took the view that the additional evidence sought to be adduced by [the appellant] would be unduly repetitive or repetitious of information already before it. She was aware of the general nature of the evidence that would be likely, in the event that the additional evidence was called, and regarded it as being unduly repetitive.[11] On the appellant's argument the Tribunal was obliged to issue witness summonses at the appellant's request, the District Court Judge held:[22] I do not believe there was an absolute obligation on the adjudicator to issue the summonses requested pursuant to s 98 of the Act. The refusal to issue witness summons, pursuant to s 98 of the Act, must be read in the light of the power conferred by s 97(6).[12] He accordingly dismissed the appeal.The appellant's concerns[13] The appellant's complaint that the premises were not watertight and leaked was upheld, at least in part by the Tribunal. The appellant received compensation for that from the Tribunal in its decision of 10 December 2004. More importantly, however, from the appellant's point of view, he says that the respondent was aware the building had leaks prior to the tenancy and the respondent misrepresented the position about that to him. He says that he has been denied the opportunity to establish that by the Tribunal's refusal to issue witness summonses to the individual assessors.The questions of law[14] The questions of law can be answered relatively shortly. The first is the jurisdiction of the Tribunal under the Fair Trading Act. The Tribunal has no jurisdiction under the Fair Trading Act. The jurisdiction of the Courts and Tribunals under the Fair Trading Act is covered by ss 37, 38 and 39 of the Fair Trading Act. Section 39 provides for the jurisdiction of the Disputes Tribunal. That is the Tribunal established under the Disputes Tribunal Act 1988. The Fair Trading Act does not however provide any jurisdiction to Tribunals under the Residential Tenancies Act to deal with claims under the Fair Trading Act. [15] While s 77 of the Residential Tenancies Act provides a very broad jurisdiction to the Tribunal it does not provide for any jurisdiction under the Fair Trading Act. [16] The Tribunal has no jurisdiction under the Fair Trading Act and is not able to grant relief under that Act.[17] The next issue of law is perhaps the more difficult issue of whether s 98 of the Act obliges the Tribunal to issue a witness summons if requested to do so. Section 98 (as relevant) reads:98 Witness summons(1) For the purposes of a hearing before the Tribunal, the Tribunal may of its own motion, and shall on the application of any party to the proceedings, issue in writing a witness summons requiring the person named in the witness summons to attend before the Tribunal and to give evidence, or to produce any document or thing in that person's possession or under that person's control, relevant to the proceedings. (6) A witness summons may be set aside by the Tribunal or by the Principal Tenancy Adjudicator if the Tribunal or the Principal Tenancy Adjudicator considers that the summons relates to documents in respect of which any person may have a claim of privilege against disclosure, or that the summons is oppressive, whether because it is too wide or too uncertain or because of lack of time for the person served with the summons to have a reasonable opportunity to comply with it, or for any other reason. (7) Every witness summons shall include a statement informing the person summoned of the right to apply to the Tribunal under subsection (6) of this section to have the summons set aside on the ground that it relates to privileged documents or that compliance with it would be oppressive to that person. (emphasis added)[18] The District Court Judge found that there was no absolute obligation on the Adjudicator to issue summonses requested pursuant to s 98 of the Act. He considered that the request to issue the witness summons must be read in the light of the power in s 97(6) to refuse to accept any evidence or submission that is irrelevant or repetitious. He concluded the Tribunal retained a discretion as to whether to issue a summons or not. Mr Judd adopted the reasoning of the District Court Judge. [19] With respect I am not able to agree. The wording of s 98 is clear. Parliament has made a deliberate distinction within s 98 itself between the discretion the Tribunal has to issue a summons of its own account and the mandatory requirement for it to issue a summons if requested to do so by a party. [20] The words of the section are clear. The natural and proper meaning of "shall" is the peremptory mandate. There is no need to read the words of the section down.[21] On my research the "may" and "shall" combination under s 98(1) of the Act is unique and can be contrasted with, for instance, the following provisions relating to the issue of summonses by other tribunals:• Social Workers Complaints and Disciplinary Tribunal, Social Workers Registration Act 2003, Second Schedule, cl 8(1):The Tribunal may, of its own motion or on the application of a party to any proceedings, issue to any person a witness summons • Employment Relations Authority, Employment Relations Act 2000, Schedule 2, cl 5(1): the Authority may, on the application of any party to the matter, or of its own volition, issue a summons • Trans-Tasman Occupations Tribunal, Trans-Tasman Mutual Recognition Act 1997, s 64(1):The Tribunal may of its own motion, or on the application of any party to the review, issue a witness summons • Human Rights Review Tribunal, Human Rights Act 1993, s 109(1):The Tribunal may, if it considers it necessary, of its own motion, or on the application of any party to the proceedings, issue a witness summons • Copyright Tribunal, Copyright Act 1994, s 216(1):The Tribunal may of its own motion, or on the application of any party to the proceedings, issue a witness summons • Health Practitioners Disciplinary Tribunal, Health Practitioners Competence Assurance Act 2003 Schedule 1, cl 8(1):The Tribunal may, on its own initiative or on the application of any party to the proceedings, issue a witness summons [22] The only example of a "shall" provision that I have found in the time available is in the Land Valuation Tribunal under Land Valuation Tribunal Rules 1977, r 23:At the request of any party or by direction of the Tribunal, the Registrar shall issue a witness summons [23] The scheme of the Act appears to be that the Tribunal has no discretion at the stage that a party requests the Tribunal to issue a witness summons. The issue of the witness summons is effectively an administrative act with the summons following the request. [24] Mr Judd submitted that that interpretation could lead to a vexatious litigant requiring numerous witness summonses to be issued. The answer to that submission is that both the witness and the Tribunal have a degree of control over the process being abused in that way. The summons may be set aside in the circumstances outlined by s 98(6). Section 98(6) provides:A witness summons may be set aside by the Tribunal or by the Principal Tenancy Adjudicator if the Tribunal or the Principal Tenancy Adjudicator considers that the summons relates to documents in respect of which any person may have a claim of privilege against disclosure, or that the summons is oppressive, whether because it is too wide or too uncertain or because of lack of time for the person served with the summons to have a reasonable opportunity to comply with it, or for any other reason.Unfortunately s 98(6) is ambiguous. On one interpretation a summons can be set aside on only two grounds, privilege or oppression. Alternatively s 98(6) can be read so that the summons can be set aside on the grounds of privilege, oppression or a third catch all ground, "for any other reason". The better interpretation in my judgment is that the witness summons can only be set aside on either the ground of privilege or that the summons is oppressive. The wording following the comma after oppressive merely defines in what way the summons may be oppressive, namely:• because it is too wide; or• too uncertain; or• lack of time; or• any other reason. The "or any other reason" is any other reason that makes the summons oppressive. That interpretation of s 98(6) is confirmed by reference to s 98(7) which onlysuggests two grounds for the summons being set aside, namely privilege or oppression. [25] Further, and importantly, even though it is obliged to issue the summons the Tribunal also retains control over its proceedings. As the Judge correctly noted the Tribunal is entitled, under s 97, to restrict the evidence before it by refusing to accept evidence or submissions that are irrelevant or repetitious. Under that section the Tribunal would be entitled to decline to receive the evidence of a witness even though the witness had been summonsed by a party. [26] I conclude that in relation to an application under s 98(1) the Tribunal has no discretion and must issue the summons. If a person so summonsed applies to have the summons set aside under s 98(6) the Tribunal may grant that application if the Tribunal considers the summons relates to a privileged document(s) or is otherwise oppressive. The "for any reason" ground in s 98(6) is not a general catchall but relates only to oppression. Under s 97(6) the Tribunal may also decline to receive evidence when the summonsed witness appears at the hearing.Result[27] The questions of law then are answered in the following way: (1) The Tribunal has no jurisdiction under the Fair Trading Act. (2) The Tribunal is obliged to issue a witness summons if a request is made of it to issue such summons under s 98 of the Act. [28] On the second issue the determination of this Court as to the law is different to the District Court Judge. However, that does not affect the validity of the findings in the Disputes Tribunal for the following reasons. [29] By his written request of 22 November 2004 the appellant sought from the Tribunal:3. The [appellant] applies for a witness summons for the local Administration Manager of each of the insurers [Tower Insurance, SIS Insurance and AMI Insurance] to appear before the Tribunal and produce copies of all documents in their possession relevant to all insurance claims subsequent to 16 December 2002 by [the respondent]/M Niazi for 5A Komaru Street Remuera Auckland UPON THE GROUNDS 4. The tenant may need to apply for further witness summons in regard to the two relevant insurance assessors but cannot presently do so because both of their names are not presently known to the tenant.[30] The request at para 3 of the 22 November 2004 document was the only formal request for the issue of witness summonses made by the appellant. The Tribunal issued the witness summonses to the managers accordingly. [31] At the hearing on 10 December, when the three insurance witnesses gave evidence, the appellant's discussion with the Tribunal on the point of further witness summonses was to the following effect:As a result of this evidence it is my position that it is likely that I will amend the quantum of my claim, I don't feel that I'm able to do that now, I have served adequate notice upon the Tribunal in my application date of 22ndNovember, I made it very plain that if I succeeded in securing the evidence from the insurance company that there may be a requirement for further witness summons, now I'm not saying that I need, in fact, upon a blush with this information it is unlikely that I will need but it is certainly likely that I will amend the quantum of the claim and I think I ought to be awarded the opportunity to put the evidence before you. I do not see how the Tribunal can decide on the quantum of my claim without me putting independent evidence before it, I haven't had that opportunity, if you're not going to award an adjournment to put that evidence before the Tribunal so it can properly consider my claim, I can't have anything further to say.[32] The short point is that the appellant did not formally ask the Tribunal to issue further witness summonses under s 98 of the Act. What the appellant sought to do was to have the hearing adjourned so that he could consider his position which might have involved considering what further evidence could be led. The Tribunal declined to grant the adjournment. It made a determination of the substantive claim. The Adjudicator was quite entitled to decline the application for adjournment bearing in mind the other sections referred to by the District Court Judge, namely ss 85(2) and 97(4) of the Act.[33] Nor is there anything in the Fair Trading Act point. The Tribunal had no jurisdiction to deal with the matter. It should not have considered the claim under the Fair Trading Act but it declined the relief in any event and further, it was the appellant who sought the relief in the first place. [34] The questions are answered as above. The decision of the Tenancy Tribunal is confirmed.Costs[35] Costs to the respondent on a 2B basis. __________________________ Venning J