FAVA V ZAGHLOUL HC AK CIV 2005-404-006818

FAVA V ZAGHLOUL HC AK CIV 2005-404-006818 15 May 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-006818 PHILIP JOSEPH FAVAAppellant vEKHLAS NASR ZAGHLOULRespondent Hearing: 12 May 2006 Appearances: Mr Fava in Person Mr S R G Judd for Respondent Judgment: 15 May 2006JUDGMENT (NO. 2) OF VENNING JSolicitors: Hornabrook MacDonald, Auckland Copy to: P J Fava, PO Box 37606, Parnell, Auckland S R G Judd, AucklandIntroduction[1] This is an application for recall or in the alternative for leave to appeal from the decision delivered in this Court on 28 April 2006. [2] The decision delivered on 28 April was on appeal under s 119 of the Residential Tenancies Act 1986 (the Act) from a decision of the District Court upholding a decision of the Tribunal delivered on 10 December 2004. It was an appeal on two points of law. The Court determined the questions of law. On one question the Court took a different view as to the effect of s 98 of the Act to that of the District Court Judge but as that did not affect the outcome of the District Court judgment the Court confirmed the findings of the Tribunal.Recall application[3] Mr Fava seeks to recall the judgment under r 542(3). There may be an issue as to whether r 542(3) applies to decisions made on appeal under the Act. However, it is unnecessary for me to decide the point because Mr Judd conceded the Court would have inherent jurisdiction to recall any judgment or order: Lopdell v Deli Holdings Limited 16 PRNZ 551. [4] The principles to apply on a recall are well established. They are:Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise, there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.Horowhenua County v Nash (No 2) [1968] NZLR 632, 633, per Wild CJ.[5] In the present case Mr Fava relied on the third category, namely that for very special reasons justice required the judgment to be recalled. Mr Fava initially referred to a number of matters in his papers but only advanced two grounds in his submission. They were first that the Court was wrong to have gone on to confirm the decision of the Tenancy Tribunal once it had made a finding on the question of law and second, that in the decision of 28 April 2006 the Court had overlooked the applicant had requested the Tenancy Tribunal to issue summons to the insurance assessors.The effect of the finding[6] Mr Fava submitted that once the Court had concluded, as a matter of law, that the Tenancy Tribunal is obliged to issue a witness summons if a request is made of it to issue a summons under s 98 of the Act then this Court's role was at an end and that because the Court took a different view to the District Court Judge on that matter, the Court should have remitted the case to the Tribunal for a full rehearing. [7] The submission is fundamentally misconceived. The role and function of the Court is not at an end once the Court determines the question(s) of law. Once the Court has determined the question(s) of law on appeal the Court then has to determine what the effect of such determination is on the earlier decisions. The question of law is not resolved in a vacuum. Nor is the result to be applied without regard to the effect of the determination of the question of law on the earlier hearings. In doing so the Court necessarily has to consider the factual position and the effect the finding has on the factual position. [8] Mr Fava referred to the decision of the House of Lords in Edwards (Inspector of Taxes) v Bairstow & Anor [1955] 3 All ER 48 in support of his submission. He cited from the headnote which reads:Held – (i) although an appellate court may allow an appeal from the commissioners' determination only if it is erroneous in law, yet, where a Case Stated shows on the face of it no misconception of law, if it should appear to the appellate court that no person, ifproperly instructed in the law and acting judicially, could have reached that particular determination, the court may proceed on the assumption that a misconception of law has been responsible for the determination. (ii) the finding that the transaction was not an adventure in the nature of trade must be set aside because the commissioners had acted either without evidence or on a view of the facts that could not reasonably be entertained, and the assessments must be confirmed.[9] Mr Fava submitted the decision supported his submission. He acknowledged he had not read the decision in full. On a reading of the decision it does not support the submission Mr Fava makes. In fact, in that case the House of Lords looked at the primary facts, and concluded that they did not justify the inference or conclusion which the Commissioners had made even though the appeal was on a matter of law. [10] In its decision of 28 April this Court found that when a request is made under s 98 for the issue of a witness summons the Tribunal is obliged to issue a witness summons. The District Court had found that the Tribunal had a discretion and could decline to issue a summons. However, when the District Court decision is read as a whole and is taken with the Tenancy Tribunal decision the finding of this Court on the question of law does not affect the decision of the Tribunal. The reasons for that are discussed in more detail in the next section of this decision. For those reasons the decision of the Tribunal was confirmed by this Court.The request for issue of the witness summons[11] Mr Fava next submitted that the Court had overlooked the request he had made to the Tenancy Tribunal for summonses to issue to the insurance assessors. He referred to the passage concerning that in the common bundle at page 63. As advised to Mr Fava the Court did not overlook page 63 from the common bundle. It was not relevant to the determination of the question or the ultimate confirmation of the Tribunal's decision. The notes at page 63 were an extract of the evidence from the hearing on 22 September 2004. I accept that during the course of that hearing Mr Fava asked for witness summonses to be issued against the insurance assessors. However, that was not material to the ultimate decision for two reasons. First, s 98of the Residential Tenancies Act which provides for the issue of witness summons 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. (emphasis added)[12] The focus of the hearing before the Court on the appeal was on the first part of s 98(1), namely whether there was an absolute obligation on the Tribunal to issue the summons when requested. The Court ruled on that issue. However it is implicit from the emphasised words in s 98(1) that the summons must issue to a named witness. That is essential if the summons is to be effective and if there is to be any sanction if the witness does not appear. Under s 98 the summons must be directed to a particular person. When requesting the summons the party to the Tribunal must identify the name of the person it is sought to have summonsed. Mr Fava accepted that he did not do that. He of course says that he did not have that information at that time. I have to note, and Mr Fava accepted, that nor did he ever request a summons to issue to Mr Faircloth before or at the hearing on 10 December even though he learnt of his name before that hearing. [13] At the time of the second hearing, 22 September, Mr Fava did not know the names of the insurance assessors. He sought an adjournment to gather that and other information. The adjournment was initially declined. On 24 September Mr Fava sought a rehearing. That was declined on 27 September but then subsequently, on 7 October the application for adjournment was granted. Mr Fava then had the opportunity to seek the witness summons as he was supplied the name of the insurance assessor Mr Faircloth by the respondent on 20 October. However Mr Fava did not seek a witness summons to be directed to Mr Faircloth, despite the fact he knew Mr Faircloth was one of the insurance assessors. On 22 November Mr Fava sought and obtained summonses to the local managers of three insurance companies.[14] The point is that matters moved on from the 22 nd September. By the hearing on 10 December there was no outstanding and unmet request for the issue of a witness summons to a named witness. Mr Fava is simply wrong to suggest otherwise. [15] By the hearing on 10 December the position was, as stated in the judgment at para [32]:[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.This Court's finding that on 10 December 2004 the Tribunal declined Mr Fava's further application for an adjournment follows from the Tribunal's decision itself and is also consistent with the findings of the District Court Judge, namely that:[16] If he had wanted Mr Faircloth summonsed, he could have done so for that hearing and even if there had been difficulty in summonsing either of these people from the available information, the reports were available and were addressed at the hearing on 10 December 2004. If summonsed, their evidence would be likely to be consistent with those reports and the adjudicator took the view that little, if anything, would now be gained from hearing their evidence in person. And:[22] In my view, the adjudicator was completely justified in regarding any further evidence as unduly repetitious or irrelevant. To allow proceedings to be further extended in the manner proposed by Mr Fava would, in my view, have been a breach of the obligation to determine the dispute expeditiously.[16] As the Court noted in its decision what Mr Fava sought at the hearing of 10 December was an adjournment to consider his position further. That adjournment was declined. The District Court Judge upheld the decision of the Tribunal in that regard and with respect rightly so.[17] There is no basis upon which the judgment should be recalled. There are simply no reasons, let alone any special reasons, that would require the recall of the judgment. [18] The application for recall is declined.Application for leave[19] Mr Fava then sought in the alternative leave to appeal to the Court of Appeal pursuant to s 120(2) of the Residential Tenancies Act 1986. That section provides:(2) An application to the High Court for leave to appeal to the Court of Appeal under this section shall be brought, in accordance with the rules of Court, within 15 working days after the determination of the High Court, or within such further time as the High Court may allow; and the High Court may grant leave accordingly if, in its opinion, the appeal involves a question of law that, because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision.[20] The Court may grant leave if the appeal involves a question of law that because of its general or public importance or for any other reasons, ought to be submitted to the Court of Appeal for decision. [21] Mr Fava suggested that the question of law that he wished to raise was, whether on an appeal concerning a question of law the High Court could revisit issues of fact. With respect to Mr Fava that misunderstands the effect of the decision for the reasons set out above. The decision did not revisit issues of fact. It confirmed that notwithstanding the determination of the question of law that did not affect the decision of the Tribunal of 10 December. It followed that the District Court was right to dismiss the original appeal. [22] However Mr Fava attempts to dress his submissions, the situation is that he simply refuses to accept the decision of the Tenancy Tribunal and wishes to continue to challenge it in any way he can. That is apparent from his memorandum following the decision of this Court of 28 April where he said:It is to be expected that there will be a very much different outcome if the proceeding is referred back to the Tribunal for the summonses to be issued And in his grounds in support of the application: referral of the proceeding back to the Tenancy Tribunal and issuing of the summonses on the two insurance persons Mr Faircloth and Mr Bartlett will give rise to a very much different judgment from the Tenancy Tribunal to that which it delivered 10 December 2004 and will give rise to a significant award of damages in favour of the appellant.[23] I do not accept that Mr Fava has identified a question of law worthy of argument at all, but even if there were a question of law that he could identify I do not accept that it would be a question that, because of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision. The application for leave to appeal to the Court of Appeal is declined also.Costs[24] The respondent has been put to further costs. Costs to the respondent on a 2B basis together with disbursements as fixed by the Registrar. __________________________ Venning J