Chambers v Disputes Tribunal Rangiora Registry and Dodge

[2008] NZCA 394

IN THE COURT OF APPEAL OF NEW ZEALAND

CA485/2008
[2008] NZCA 394

BETWEENJOHN GARDINER CHAMBERS

Applicant

ANDDISPUTES TRIBUNAL RANGIORA REGISTRY

First Respondent

ANDSHIRLEY DODGE

Second Respondent

Hearing:9 September 2008

Court:Chambers, Arnold and Ellen France JJ

Counsel:Applicant in person

No appearance for Respondents

Judgment:26 September 2008 at 11.30 am 

JUDGMENT OF THE COURT

AThe applications for an extension of time in which to appeal and for a stay are declined.

BNo order as to costs.

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

[1]       This is an application for an extension of time in which to appeal against a decision of Panckhurst J delivered on 13 December 2007: HC CHCH 2006-409-000832.  The application is made under r 29A(4) of the Court of Appeal (Civil) Rules 2005.  Mr Chambers also seeks a stay under r 12 pending the determination of the appeal.

Background

[2]       The applicant, Mr Chambers, is the owner of a carpet cleaning business, Carpet-Care 2000 Limited.  In October 2004, his firm was engaged by Mrs Dodge to clean the carpet in the living area of her home.  Mrs Dodge complained that after the water-based cleaning process was used, the carpet remained very wet.  Mr Chambers came back and repeated the cleaning process.  He returned on a further occasion and sprayed a chemical onto the carpet.  Mr and Mrs Dodge said this caused a very unpleasant smell.

[3]       Mr and Mrs Dodge then made a claim under their house contents insurance policy.  Arrangements were made, after an assessment, to replace the carpet because of damage.  The damage was attributed to the actions of Carpet-Care 2000.  Mr and Mrs Dodge and their insurer, IAG New Zealand Limited, reached an accommodation over the claim.  Mrs Dodge, reflecting the insurer’s subrogation rights, then lodged a claim with the Disputes Tribunal on 19 February 2005.

[4]       After some delays, the matter was heard and a written decision delivered on 15 June 2005:  DT RANG 34/05.  The Referee found that there had been some pre-existing damage to the carpet.  This related to an area of the carpet next to a sliding exterior door.  A sum of $97.50 was deducted from the claim to reflect the strip adjacent to that door.  The value of the carpet was assessed on the basis that the carpet was not new and so a figure representing about one third of the replacement value was adopted.  The claim was otherwise upheld and Mr Chambers was ordered to pay IAG $3,149.45.

[5]       Mr Chambers sought and was granted a rehearing before the Tribunal on the basis of new evidence but did not meet the terms of the rehearing (payment of $2,159 into court and filing the new evidence).  The rehearing therefore did not proceed.

[6]       In the meantime, Mr Chambers filed an appeal to the District Court under s 50 of the Disputes Tribunals Act 1988 on the basis the hearing had been conducted in an unfair manner.  In a judgment delivered on 16 February 2006, Judge Doherty dismissed the appeal: DC RANG CIV-2005-061-000246.  The Judge concluded at [9] that nothing raised by the appellant “leads me to the view that there was any procedural unfairness and certainly nothing that prejudiced the result”.  A stay was apparently granted in the District Court on 11 May 2006.

[7]       Mr Chambers’ next step was to file judicial review proceedings in the High Court on the grounds that the hearing was procedurally unfair and the outcome affected by irrationality or error of law.  Neither of the defendants actively opposed the application for review but it was dismissed by Panckhurst J.

[8]       On 10 March 2008 Mr Chambers filed an application in the High Court for leave to appeal to this Court and sought a stay of the Disputes Tribunal’s order.  In a further judgment delivered on 1 April 2008, Panckhurst J confirmed his earlier indication to Mr Chambers that leave was not required but observed that the lapse of time meant an extension of time to appeal was required from this Court.

[9]       Panckhurst J concluded a stay was not appropriate, there being no issue about the insurer’s ability to repay the sum involved.

[10]     The application for an extension of time was not filed in this Court until 13 August 2008 so it is about six months late.

[11]     The application is opposed by the insurer who also points out that Mrs Dodge, although named as a respondent, has no financial interest in the matter.

Discussion

[12]     Mr Chambers says he has memory problems which, together with a lack of knowledge of the time limits, explain the delay in filing the application.  He has provided a psychiatric report which refers to his suffering from “mild, subjective” symptoms of cognitive decline.  Assuming for these purposes that these problems explain the delay, the matter still has to be considered in terms of the test for granting an extension of time.  The test is whether that would meet the overall interests of justice: Havanaco Ltd v Stewart (2005) 17 PRNZ 622 (CA).  It is well established that such an application may be declined if the proposed appeal has no chance of success:  State Insurance Ltd v Brooker (2001) 15 PRNZ 493 at [19] (CA) and Havanaco v Stewart at [11].

[13]     Mr Chambers’ primary point is that the carpet was already damaged and so he should not have to pay the full amount for its replacement.

[14]     In support of this submission, Mr Chambers would seek on appeal to rely on new evidence from Mr Gottermeyer.  Mr Gottermeyer has been in the used carpet business for over 37 years and has also acted as an assessor for these types of claims.  Mr Gottermeyer estimates the carpet would have had a salvage value of about $270.  He also says the indemnity value of $1,688.68 identified by IAG is excessively inflated.

[15]     Mr Chambers’ principal argument was squarely addressed by Panckhurst J. After considering the evidence adduced before the Disputes Tribunal, Panckhurst J observed that “generally” the Referee preferred the evidence derived from a number of witnesses called on behalf of the claimant: at [25]. The Judge concluded at [26]:

The dispute was characterised by a conflict of evidence.  That conflict was resolved in a fairly orthodox manner and on a basis which was well available to the decision maker, particularly after she had heard accounts from a number of witnesses.  It follows that that this ground of review is without merit.

[16]     That conclusion is unimpeachable.  Mr Chambers does not identify any error in it but simply maintains that it cannot be right. The proposed new evidence does not advance matters either.  As we have indicated, the Referee did not treat the carpet as new but rather worked on the assumption that it had five years life left in it.  She accordingly reduced its value by about two-thirds.  The Referee based her conclusions as to value on the insurer’s independent assessment and Mr Gottermeyer’s proposed evidence is simply another view on those values.

[17]     In any event, Mr Chambers does not explain why this evidence could not have been provided at the time of the hearing or, indeed, in the context of the judicial review proceedings.  In terms of where the overall interests of justice lie, this matter has been the subject of delays and the passage of time is such that the interests of finality assume greater importance particularly given the amount involved.

[18]     Mr Chambers advances other issues which are said to give rise to procedural unfairness.  Again, Panckhurst J addressed the alleged unfairness in the process in his judgment and we see no merit in the appellant’s points on these aspects.

[19]     Overall, given the lack of merit in the proposed appeal and the desirability of some finality, we consider that the interests of justice do not warrant an extension of time.  It follows that a stay is not appropriate.  In that respect, we agree with Panckhurst J that there was no basis for a stay.  Any appeal would not have been affected by payment of the outstanding sum to the insurer.

Solicitors:

Young, Hunter, Christchurch for IAG New Zealand Limited