Cooke v Real Estate Disciplinary Tribunal
[2014] NZHC 2254
•17 September 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV2014-404-204 [2014] NZHC 2254
UNDER THE Judicature Amendment Act 1974, ss 4(1)
and 4(5)
BETWEEN
KENNETH COOKE Plaintiff
AND
REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL First Defendant
AND
P HUMPHRIES Second Defendant
AND
B F ENGLAND Third Defendant
Hearing: 28 July 2014 Appearances:
Kenneth Cooke in person
D Perkins for Tribunal
T Rea for second and third defendantsJudgment:
17 September 2014
JUDGMENT OF THOMAS J
This judgment was delivered by me on 7 September 2014 at 2.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Crown Law, Wellington. Glaister Ennor, Auckland.
COOKE v REAL ESTATE AGENTS DISCIPLINARY TRIBUNAL [2014] NZHC 2254 [17 September 2014]
Introduction
[1] The plaintiff, Mr Cooke, has applied for judicial review of the Real Estate
Agents Disciplinary Tribunal’s decision dated 17 October 2011.
[2] In its decision the Tribunal dismissed an appeal made by Mr Cooke against the decision of the Complaints Assessment Committee to take no further action on his complaint.
[3] Mr Cooke’s complaint alleged that his property at 86A Kitchener Road, Milford, was sold at an undervalue in a mortgagee sale conducted by Barfoot & Thompson Ltd (Barfoot). This was, he alleges, due to the conduct of the second and third respondents, Mr Humphries and Mr England (agents of Barfoot).
Factual background
[4] In 2007 Mr Cooke and his wife built two houses at Kitchener Road. By late
2007 both houses were listed for sale with Barfoot for $2.595 million each. In March 2008 Mr and Mrs Cooke changed to Prestige Real Estate and the price was dropped to $2.49 million. The houses did not sell. An auction was held in November
2008 and the best offer received for either property was $1.2 million. In March 2009
ASB Bank Limited (ASB) commenced mortgagee sale proceedings. House 86A was sold for $1.26 million. Barfoot acted as agent and had appraised the property value at between $1.1 and $1.2 million. The other property sold privately some time later.
[5] Mr and Mrs Cooke considered that Barfoot’s appraisal for the property was too low. They felt that, in preparing such a low appraisal, Barfoot indicated to purchasers that the likely sale price was in the low $1 millions, when in fact a recent capital value of the property was $1.75 million. They also complained that the marketing for the property was perfunctory, there were errors in the sale material and that Mr Humphries did not honour his undertaking to obtain the best possible price. Furthermore, Barfoot took three months to respond to their initial complaint.
Complaint by Mr Cooke
[6] In his complaint to the Real Estate Agents Authority dated 3 September 2010, Mr Cooke made three principal allegations:
(a) that Mr Humphries misrepresented the “key conditions” for the
mortgagee sale to Mr and Mrs Cooke at a pre-sale briefing;
(b)that Mr England failed to market the property in a professional and responsible way, did not act on the advice of Mr Cooke and provided prospective purchasers with low price expectations;
(c) that Barfoot failed to respond to issues raised by Mr Cooke subsequent to the sale in a professional manner, providing factually incorrect answers and not attempting to answer the points raised by Mr Cooke.
Complaint Assessment Committee decision
[7] The Committee dismissed Mr Cooke’s complaint, finding that, on the balance of probabilities, both ASB and Barfoot discharged their obligations to obtain the best price at the time of sale.
[8] The Committee recorded that the sale price achieved at auction of $1.26 million exceeded:
(a) the mortgagee sale valuation of $1.1 million contained in the independent valuation supplied to ASB by a registered valuer, Albion Banks Valuation Limited (Albion); and
(b)an appraisal provided to ASB by Barfoot placing the mortgagee sale value at between $1.1 to $1.2 million.
[9] Pursuant to s 89(2)(c) of the Real Estate Agents Act 2008 (the Act) the Committee determined to take no further action regarding Mr Cooke’s complaint. Mr Cooke appealed to the Tribunal pursuant to s 111 of the Act.
Notice of appeal to the Tribunal
[10] The notice of appeal commenced with a statement that Mr Cooke was of the opinion that the validity of the Albion valuation and Barfoot’s appraisal figure supplied to ASB “has not been proved beyond reasonable doubt”.
[11] Mr Cooke said:
Crucial to our complaint is the question as to the validity of the valuations/appraisals prepared by Albion Banks Valuations Ltd (ABV) and Barfoot & Thompson Ltd (B&T) in relation to 86A Kitchener Road, Milford. If these cannot be relied upon then the whole process of the sale of the subject property is open to serious doubt. Our argument is that they cannot be relied upon. We are of the opinion that the validity of the ABV and B&T valuations has not been satisfactorily proved beyond reasonable doubt because they have not been subject to rigorous, open examination.
The Tribunal hearing
[12] The hearing took place on 22 September 2011. Messrs Humphries and England did not file briefs of evidence and were not called to give evidence. They filed written statements only which they had previously given to the Committee. No witnesses were summoned. The only witness briefs and oral evidence were from Mr and Mrs Cooke.
The Tribunal’s decision
[13] The Tribunal acknowledged that Barfoot was not aware when making its appraisal that the capital value of the property had risen from $1.4 to $1.75 million. While this may have constituted a lack of care on the part of Barfoot, the actual process of the appraisal was not clear as the Tribunal did not hear from Mr England or Mr Humphries. The Tribunal noted that the “obligation to prove” unsatisfactory conduct rested on Mr and Mrs Cooke. From the evidence presented to it, the Tribunal was unable to find that, on the balance of probabilities, the threshold in s 72 of the Act (unsatisfactory conduct) had been reached.
[14] The Tribunal found that there was insufficient evidence to show that Barfoot did not work appropriately to achieve the best possible price at auction. The Tribunal noted that Barfoot’s appraisal was similar to that of Albion.
[15] In response to Mr Cooke’s complaint that Mr England failed to market the property properly, the Tribunal accepted that the sale material could have been confusing (it showed a capital value of $1.4 million on one page and $1.75 million on another). This could have created lower expectations in the purchasers’ minds as to price. However, while careless, this also did not reach the threshold of unsatisfactory conduct.
[16] Finally, with regards to Barfoot’s slow response to Mr Cooke’s complaint, the Tribunal found that the delay was unacceptably long. However, given that it involved the Christmas period, it did not cross the threshold of seriousness to constitute unsatisfactory conduct.
[17] The Tribunal ended by noting the right of appeal to the High Court in s 116 of the Act.
Application for judicial review
[18] In his statement of claim and submissions, Mr Cooke separated his grounds of review into the “judicial process of the Tribunal” and “the Tribunal’s decision itself”.
The judicial process of the Tribunal
[19] Mr Cooke alleged that the Tribunal failed to follow its Practice Notes. In particular he complained that the Tribunal never settled a list of witnesses. Mr Cooke believed that Mr Humphries and Mr England would be at the hearing and that he would cross-examine them but they were not.
[20] Mr Cooke also complained that the Tribunal did not respond to his queries regarding the burden of proof at the hearing.
[21] Mr Cooke claimed that this amounted to a miscarriage of justice.
The decision of the Tribunal
[22] Mr Cooke submitted that the Tribunal did not address any of the facts he presented. He stated that he wished to “re-examine all the relevant matters that have been raised in evidence to date but which, in my opinion, have not been properly weighted, or in fact, appear not to have been considered at all”.
[23] Mr Cooke set out why he considered that the actions of Mr Humphries and Mr England did constitute misconduct and unsatisfactory conduct in terms of ss 72 and 73 of the Act.
[24] Mr Cooke attacked the Albion (or Mr Clapcott) valuation (which he considered the Tribunal used as evidence of the validity of Barfoot’s appraisal).1 Mr Cooke then criticised Barfoot’s appraisal and repeated his argument that the price received at auction was the result of skewed marketing. Mr Cooke restated his complaints about Mr Humphries’ pre-sale briefing (which he said lacked integrity), the on-site marketing and Barfoot’s slow or lack of response to Mr Cooke’s complaints.
[25] Finally Mr Cooke returned to his argument that the market value of the property was seriously undervalued by Barfoot.
Relief claimed
[26] Mr Cooke asked the Court to:
(a) find that the failure of the Tribunal to follow its procedures amounts to a miscarriage of justice;
(b) set aside the Tribunal’s decision;
(c) find Mr Humphries and Mr England guilty of misconduct or unsatisfactory conduct;
1Mr Cooke has unsuccessfully challenged the Albion valuation in the Valuers Registration Board. His judicial review of the Board’s decision was unsuccessful: Cooke v Valuers Registration Board [2014] NZHC 323. Mr Cooke has appealed that decision.
(d)find that the Albion valuation cannot be relied on as evidence as to value; and
(e) make such other orders as the Court sees fit.
The law
[27] As Mackenzie J recently stated:2
An application for judicial review is not an appeal against the challenged decision. The function of the Court is to review the lawfulness of the decision making process, not the merits of the decision itself.
[28] A judicial review application does not confer on the Court the power to readdress and reassess a decision that is within the power of the decision maker.3 A judicial review application assesses the decision-making process rather than the decision itself. A reviewing Court must not intervene on the merits of a decision it is reviewing as such action will itself be deemed a usurpation of power.4 If an appeal has resulted in certain findings being determined against a party, an attempt to re- litigate that finding in an application for judicial review may be dismissed as an abuse of process.5
[29] Much of the matters set out in Mr Cooke’s statement of claim and submissions relate to the substance of the Tribunal’s decision and cannot be considered on an application for review.
[30] Any issues as to the merits of Mr Cooke’s case should have been dealt with in an appeal. Under r 20.4(2)(b) of the Act, any appeal needed to be brought within 20 working days of the decision (in November 2011). Mr Cooke did not appeal.
[31] The Court cannot, on a judicial review application, reconsider whether or not
Messrs Humphries and England’s actions constituted unsatisfactory conduct
(including whether the property was sold at an undervalue) unless Mr Cooke shows
2 X v Bovey [2014] NZHC 1103 at [4].
3 Peters v Davison [1999] 2 NZLR 164 (CA) at 209.
4 Mohu v Attorney General (1983) 4 NZAR 168 (HC) at 174, citing Lord Brightman in Chief
Constable of the North Wales Police v Evans [1982] 1 WLR 1155 (HL).
5 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 218.
that the Tribunal’s decision was unreasonable, otherwise illegal, or made in a procedurally improper manner, for example in breach of natural justice.
Issues
[32] The issues, therefore, are:
a) Was there any procedural impropriety?
b) Was there an error of law?
Was there any procedural impropriety?
First respondent’s submissions
[33] The Tribunal filed a notice that it will abide by the Court’s decision. However Mr Perkins appeared and made submissions on the procedural matters raised by Mr Cooke regarding the Tribunal’s failure to settle a witness list in accordance with the Practice Notes and failure to offer advice as to the Tribunal’s process.
Witnesses and Practice Notes
[34] In Mr Perkins’ submission, the Practice Notes do not bind the Tribunal to observe a particular procedure. Furthermore cl 7 of Practice Note No. 1 explicitly sets out the Tribunal’s right to regulate its procedures as it sees fit. In any case, the Practice Notes do not require it to settle a list of witnesses in advance of the substantive hearing.
[35] In Mr Perkins’ submission, Mr Cooke’s right to natural justice was not breached by the Tribunal failing to summon witnesses. Schedule 1 of the Act provides that the Tribunal “may, of its own initiative, issue a summons”. Parties to the Tribunal have no ability to procure the issue of a summons as of right nor an express right to apply to the Tribunal to issue a summons.
Administrative advice
[36] The Tribunal acknowledged that, as a courtesy, the Registry should have replied to Mr Cooke’s requests for assistance, responding to the matters that were purely administrative and suggesting that he raise legal and strategic matters at the next teleconference or with a legal adviser. However, in Mr Perkins’ submission, it would be inappropriate for the Registry to provide parties with legal or strategic advice.
[37] Furthermore, four pre-hearing teleconferences took place in March, May and August 2011 and Mr Cooke could have raised any matters which were more than administrative at those conferences.
Second and third respondents’ submissions
[38] In Mr Rea’s submission the issue of witnesses and evidence were all addressed at the pre-hearing conferences. He referred to the conference in which Judge Hobbs explained the importance of Mr Cooke’s adducing expert evidence as to the valuation. Mr Rea said he made it clear at the teleconference on 25 May 2011 that his view was that “there would be no case to answer that would require any evidence to be filed” and that Mr Cooke appeared to want to make his case by cross- examining people who, “I think we probably won’t even call to give evidence”. He said Mr Cooke should have issued subpoenas for these people’s appearance but he
did not.6
[39] Mr Rea noted that, when under cross-examination at the Tribunal hearing, Mr Cooke said he had contacted three valuers. He did not call one of them as an expert witness because the valuer did not agree with Mr Cooke’s view. The other two could not assist him because of conflicts of interest. Mr Cooke did not ask for any extension of time to try and contact other valuers. Instead, he claimed he was qualified to give expert valuation evidence based on his experience and ability to use
logic.
6 Parties to the Tribunal, however, do not have the power to issue subpoenas: see [73] below.
[40] Furthermore, Mr Rea pointed out that cl 1.3 of Practice Note No. 1 says that the parties must ensure that any witness on whom they wish to rely is also present to give evidence on oath. Thus the onus is on the party who seeks to rely on witnesses, not the Tribunal. Mr Cooke did not request the Tribunal to arrange for various witnesses to attend, rather he sought advice as to the procedure for making them attend.
[41] In Mr Rea’s submission the Tribunal staff had no obligation to provide the type of legal advice Mr Cooke was seeking and it would have been inappropriate for such advice to be given by the Tribunal.
Analysis
Administrative role of the Tribunal Registry
[42] There is no doubt that the increase in numbers of self-represented litigants provides challenges for the courts and their administration.
[43] The Ministry of Justice is required, pursuant to s 103 of the Act, to “furnish such secretarial, recording, and clerical services as maybe necessary to enable the Tribunal to discharge its functions”. The Ministry does this through the provision of Tribunal Registry Services. The Registry therefore has a very limited role to play. I note that the role played by the Registry is considerably narrower than that played by the registries of some other Tribunals, for example, the Disputes Tribunal Registry is required pursuant to s 55 of the Disputes Tribunals Act 1988 to ensure assistance is readily available in respect of specified matters, including completing the forms required by the Act in relation to lodging of a claim and any appeal.
[44] While Judge Hobbs did suggest that Mr Cooke could contact the Tribunal
Registry for further assistance, the Registry could not of course exceed its powers.
[45] Mr Cooke emailed the Tribunal Registry on three occasions seeking what he described as purely administrative advice. On 2 February 2011 he sought advice concerning the attendance of Mr Clapcott of Albion, asking whether Mr Clapcott should be advised that Mr Cooke wanted him to be available for cross-examination
at the hearing. He also sought advice in respect of discovery issues and the process of filing a joint memorandum. On 3 March 2011 he asked to attend another Tribunal hearing so as to familiarise himself with the procedure and 16 August 2011 he asked for information regarding the procedural format of the upcoming substantive hearing.
[46] Unfortunately the Registry did not respond to these enquiries. As a matter of courtesy it would have been appropriate to do so. As the first defendant accepts, not only should an acknowledgement have been provided but also the Registry should have replied to the administrative matters and suggested raising the other issues with either the Tribunal at the next pre-hearing conference or an independent legal adviser.
[47] As it happens however, the discovery issues were dealt with and counsel for the second and third defendants provided Mr Cooke with the necessary information in respect of the joint memorandum.
[48] The real issue is that Mr Cooke’s enquiry as to Mr Clapcott of Albion being a
witness was not dealt with. I note however that this enquiry was raised on 2
February 2011. The pre-hearing telephone conferences were held on 17 March, 25
May, 30 May and 23 August 2011.
[49] Although it would have been preferable for it to have done so, the Registry was not obliged to reply to Mr Cooke’s queries. Given that there were four prehearing telephone conferences, Mr Cooke had a number of opportunities to raise matters. I do not consider that any failures on the part of the Registry were so material as to constitute a procedural impropriety.
Onus of proof and witnesses
[50] In his memorandum filed prior to the initial conference with the Tribunal on
17 March 2011, Mr Rea said:
It is apparent that the appellant has proceeded on the basis of a misunderstanding of both the onus and standard of proof that applied to the Committee in respect of its determination of his complaint. The appellant
seems to consider that it is up to the first and/or second respondents to provide evidence to justify, beyond a reasonable doubt, the independent valuation supplied by a registered valuer to the complainant’s bank, and Barfoot & Thompson’s mortgagee sale appraisal figure.
It was, of course, not a matter of the Committee needing to establish that it had been proven beyond a reasonable doubt that the valuation and appraisal were valid. Rather, the question for the Committee was whether, on the balance of probabilities, it was proved that the valuation and appraisal were invalid, and what, if anything, flowed from that in terms of unsatisfactory conduct by the salespeople named in the complaint.
No evidence was supplied to the Committee by the appellant in support of his complaint that would have been capable of sustaining a finding by the Committee, on the balance of probabilities, that the valuation and appraisal figures were incorrect, and it is not apparent what evidence the appellant would adduce on this issue before the Tribunal (if, in fact, he is to be given leave to produce any fresh evidence that was not before the Committee).
The only evidence supplied by the appellant to the Committee to counter the independent registered valuer’s valuation and Barfoot & Thompson appraisal figure was:
The appellant’s own unqualified opinion that the value of the property was
$2,100,000; and
A QV valuation from September 2008, seven months prior to the sale, placing the capital value of the property at $1,750,000, which was expressly addressed in the Albion Bank’s valuation and explained on the basis that this figure was the result of a mass appraisal exercise in which actual inspections of the property are no longer undertaken (and which, in any event, was not a mortgagee sale valuation).
Significantly, the appellant does not appear to have obtained any evidence from any person who would be qualified to give such evidence as to the mortgagee sale value of the property as at the date of sale on 8 April 2009, and in particular that this was more than the $1,260,000 sale price achieved.
[51] Judge Hobbs presided at the teleconference on 17 March 2011. Mr Rea’s memorandum was discussed. Mr Rea explained that Mr Cooke should file his evidence and, at that point, a discussion should be held as to whether the evidence met the threshold of being capable of establishing unsatisfactory conduct on the balance of probabilities. Mr Rea said that, if the threshold were not met, then there was no point in the defendants’ spending money preparing evidence in reply. The Judge took pains to ensure that Mr Cooke understood the issue saying:
Mr Cooke you need to understand quite clearly that the onus of satisfying the Tribunal that the decision of the Committee is wrong rests with you and there is no onus on Mr Rea on behalf of either the agent or Barfoot & Thompson to satisfy the Tribunal that they were correct…I recognise that Sir
They’re entitled to sit on their hands and simply say to you look Mr Cooke
you need to persuade the Tribunal that the decision was wrong…yes
And I am bound to say that the obviously the most or the best way would be for you to adduce some evidence independent of yourself to the effect that their valuation and their proceeding on that basis was wrong…yes Sir
[52] Judge Hobbs sought confirmation that Mr Cooke accepted that position and he replied that he did. Both the Judge and Mr Rea explained to Mr Cooke that he needed to provide evidence in support of his contention that the valuation used in marketing the property was wrong. Judge Hobbs said, “you will need to call some independent evidence and I’m sorry to tell you this but your opinion with the greatest respect in the world isn’t going to be good enough”.
[53] Mr Rea carefully explained the position to Mr Cooke saying that, if he “can find a registered valuer who would swear, sign a brief of evidence to the effect that on 9 April 2009 a sale at $1.26 million was patently under value, then we get in my view to the next level assessing whether there was any unsatisfactory conduct that caused that result and that is what is required”.
[54] Judge Hobbs clearly told Mr Cooke that he was required to provide briefs of evidence and then a further telephone conference would be held to determine what, if anything, needed to be provided by the defendants. There was a discussion about the timing of the next conference and both the Judge and defence counsel strove to ensure that Mr Cooke had as much time as he required to obtain the evidence that Judge Hobbs told Mr Cooke he would need. The Judge checked that Mr Cooke understood what he was being asked to do.
[55] In his memorandum dated 16 May 2011 for the second telephone conference
Mr Cooke said:
In my memorandum dated 13 March 2011 I detailed a list of witnesses whom I thought should be available at a hearing and I wish to raise this matter again should the Tribunal decide to make a ruling in favour of a hearing. In addition to Mr Humphries and Mr England, I would wish the following to be made available for examination:
a. Mr Gary Clapcott;
b. The person who prepared the Barfoot & Thompson appraisal;
c.The person from the Barfoot & Thompson Milford office who prepared the local input for the appraisal.
[56] The next teleconference was held on the 25 May with Ms Davenport presiding. The teleconference was unsatisfactory because Ms Davenport had not received all the papers which had been filed in advance. There was some discussion however about the onus of proof, Mr Cooke saying:
I also made a plea that Mr Rea pointed out [at the] last conference that the onus of proof of [sic] this case was upon me and I presented written evidence that I feel has shifted the burden of proof and I was wanting the Tribunal to agree that.
[57] Mr Rea clarified that position, saying:
The issue of the burden of proof Ma’am arose at the initial conference before Judge Hobbs and the context for it was my suggestion that in my view it was likely that there would be no case to answer that would require any evidence to be filed by my client and I have made the point that the onus of proof lies with the appellant and the background to that was that it appeared the appellant wishes to make his case out by cross-examining certain people who I think we probably won’t even call to give evidence. Mr Cooke has filed some lengthy materials described as briefs of evidence which obviously as a litigant in person [sic] but they really are more in the nature of submissions.
[58] Mr Rea then referred to an earlier memorandum from Mr Cooke where he said that he believed the material he had filed had the effect of shifting the burden of proof and sought a ruling from Tribunal on that point. Mr Rea submitted that it was not a matter for the Tribunal to make any ruling and it was a matter for submission at the hearing.
[59] Ms Wilde, who appeared on behalf of the Committee, said the Committee’s view was that the onus remained with Mr Cooke to prove his complaint on the balance of probabilities and she could not see how that onus would shift.
[60] The Tribunal made no further comment on the issue, leaving the matter to be dealt with at the hearing.
[61] A minute was issued on 30 May 2011 ordering inter alia that the second respondent was to file and serve written submissions or documents or evidence by 19
August 2011.
[62] There are no transcripts available of the third and fourth pre-hearing teleconferences. A minute was issued after the telephone conference on 23 August
2011 which dealt with discovery issues and admissibility of evidence.
[63] At the hearing, one of the independent commissioners, Member Robson, expressed her surprise that the second and third defendants were not present, noting, however, that it was their choice. In his closing submissions to the Tribunal Mr Cooke said the first point he wanted to make was that he was staggered that the witnesses he said he requested at the first telephone conference and every conference since were not present. He described that as an “absolute denial” of his rights. In his closing submissions Mr Rea dealt with the lack of evidence from the two agents explaining that he made the decision not to call them as witnesses because, in his assessment, there was an insufficient evidential basis presented to provide a case to answer.
Discussion
[64] The essence of Mr Cooke’s claim is that he was not afforded natural justice. Potential witnesses he wanted to examine were not present at the substantive hearing and he says he was under a mistaken belief that at least some of them would be present.
[65] One of the applicable rules of natural justice is the right to be heard, that is,
the right to put one’s case.7
[66] Schedule 1 to the Act prescribes particular aspects of the Tribunal’s
procedures.8 It relevantly provides:
7 See, for example, Furnell v Whangarei High School Board [1973] 2 NZLR 705 (PC) at 720 and
Ngati Apa Ki Te Waipounamu Trust v Attorney-General [2004] 1 NZLR 462 (CA) at [18].
8 It has effect by virtue of s 104.
6 Witness summons
(1) For the purposes of any matter before the Tribunal, the Tribunal may, of its own initiative, issue a summons to any person requiring that person to attend before the Tribunal and give evidence.
(2) The summons must be in the prescribed form,[9] and may require the person to produce before the Tribunal any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter.
(3) The power to issue a summons under this clause may be exercised by the Tribunal or by an officer of the Tribunal purporting to act by the direction or with the authority of the Tribunal.
[67] The power to summon witnesses is exercisable on the Tribunal’s own initiative. As Mr Perkins correctly noted, parties to Tribunal proceedings have no ability to procure the issue of a summons as of right and do not even have an express right to apply to the Tribunal for the issue of a summons.10
[68] Mr Cooke acknowledged to the Court that at the first teleconference Mr Rea indicated it was unlikely that the second and third respondents would give evidence at the hearing. Mr Cooke admitted that he had assumed, once he had filed his documents, that Mr Rea would reconsider the position and conclude that it was necessary for the second and third defendants to give evidence. To some extent this question is bound up with Mr Cooke’s misapprehension as to the onus of proof.
[69] Mr Cooke explained to the Court that he assumed the onus of proof would have shifted to the defendants as a result of the material submitted by him prior to the hearing. He complained that he was not disabused of this assumption, although he had attempted to raise it on at least one occasion, that being the telephone conference with Deputy Chair Davenport on 25 May 2011.
[70] It is however clear that Mr Rea was consistent from the time of the first teleconference that he was unlikely to call his clients to give evidence at the substantive hearing. This was confirmed in writing by the memoranda dated
8 March 2011 and 24 May 2011. It was repeated in the teleconference before
9 The form prescribed for a summons is in the Schedule to the Real Estate Agents (Co mplaints and Discipline) Regulations 2009, which is given effect by reg 14.
10 Although an implied ability to request the Tribunal to issue a summons seems to have been assumed in Kumandan v Real Estate Agents Authority [2012] NZHC 2555 at [41].
Deputy Chair Ms Davenport on 25 May 2011. In Mr Rea’s synopsis of submissions dated 17 August 2011 he said that no further statements of evidence would be produced from the second and third defendants and repeated that the onus of proof had not shifted.
[71] The second and third defendants were entitled to choose not to present evidence and were not required to do so for Mr Cooke’s sake. As the Court of Appeal has stated:11
… there can be no obligation based on the rules of natural justice requiring a litigant in a civil proceeding, whether or not a public authority, to identify and make available witnesses considered by the opposing litigant to be the “correct ones”.
[72] Practice Note No. 2, effective 15 February 2010, which Mr Cooke says was sent to him, provides that, if there is an issues and setting-down conference, the Tribunal may discuss who may be giving evidence and be available for cross- examination and whether any witness summons may be sought. There is however nothing in the Practice Notes requiring the Tribunal to settle a list of witnesses. The Tribunal is in any case not bound to act in accordance with the Practice Notes.
[73] Whether there was in fact an issues conference in this case is not the point. The point is that at no stage in any pre-hearing telephone conferences or any material filed in connection with them did the second and third defendants indicate they would be attending the hearing and available for cross-examination. The contrary was the case. No briefs of evidence were filed and any such briefs should have been filed in accordance the pre-hearing directions. It should, therefore, have been clear that Mr Humphries and Mr England would not be attending. Parties to a hearing cannot subpoena a witness, only the Tribunal can. Although he indicated his desire for them to be present, Mr Cooke did not formally request any such subpoena either before or at the hearing. The Tribunal plainly did not consider any such subpoena was required either before or at the hearing. Given that there was no indication that Mr Cooke would be providing evidence by way of an expert witness, the Tribunal’s failure to issue subpoenas on Messrs Humphries and England of its own accord
cannot be criticised.
11 Russell v Taxation Review Authority (2003) 21 NZTC 18,255 (CA) at [31].
[74] The essence of Mr Cooke’s complaints in the context of a judicial review is that he was not disabused of his assumption that Mr Humphries and Mr England would attend the hearing. That is notwithstanding that, from the very outset, Mr Rea had indicated that it was unlikely they would call evidence. As already traversed, Mr Cooke’s assumption was closely allied to his misunderstanding of the onus of proof.
[75] These issues highlight the difficulty experienced by Mr Cooke as a litigant in person. Any decision maker must be scrupulous in ensuring not only his or her impartiality but also that he or she is seen as impartial. It is a difficult balance to strike when the decision maker is seeking to ensure a litigant in person properly understands procedure and what is expected of him or her. It is clear that both Judge Hobbs and Deputy Chair Davenport did their very best to give such guidance to Mr Cooke to the extent that it was proper to do so. Deputy Chair Davenport encouraged Mr Cooke to take legal advice and to investigate his eligibility for legal aid. Subsequent to that conversation, Mr Cooke advised the Tribunal that he intended to continue acting for himself as, of course, was his right.
[76] It may be advisable for the Tribunal to update the materials available for litigants in person explaining the process to reflect some of the difficulties and misapprehensions under which Mr Cooke laboured in this case. It might have been courteous and even appropriate for Mr Cooke to have been disabused of his assumptions but there was no obligation on the second and third defendants to do so. In any event, there was ample information before Mr Cooke to indicate that the witnesses would not be in attendance at the Tribunal.
[77] In the circumstances there was no obligation on the second and third defendants to give evidence before the Tribunal. Mr Cooke was on notice they would not be present. That Mr Cooke misunderstood the position as to witnesses and the onus of proof cannot be considered in some way the “fault” of the Tribunal or a breach of natural justice. There was no procedural impropriety to any material degree.
Was there any error of law?
[78] Mr Rea submitted that there was no evidence of any error of law and, in any case, the Tribunal’s decision was correct. The property ultimately sold for a higher price than the figure contemplated by the Albion valuation ($1.1 million). The highest offer Mr Cooke was able to obtain when he was marketing the property himself was $1.2 million. Mr Cooke is unable, in Mr Rea’s submission, to distinguish between his expected value and the actual value of the property.
[79] Mr Cooke sought review of the Tribunal’s decision on the grounds that the Tribunal did not address any of the facts he presented and that the market value of the property was undervalued. It is difficult to see this as anything other than a challenge to the substance of the decision and as such, outside the ambit of judicial review. There were however, two matters raised by the Mr Cooke which I will address as they are obviously of real concern to Mr Cooke.
The reasonable member of the public test
[80] Sections 72 and 73 of the Act both make reference to an objective test of a reasonable member of the public. Mr Cooke’s written submissions suggested that he qualified as a reasonable member of the public and therefore that his opinion as to the conduct of the second and third defendants should somehow carry weight in interpreting whether the agents’ conduct constituted unsatisfactory conduct or misconduct under those sections. After some discussion, Mr Cooke accepted that the test under ss 72 and 73 is an objective one and that his opinion is therefore irrelevant.
Expert evidence
[81] Although Mr Cooke submitted that he was not giving expert valuation evidence at the Tribunal but rather an analysis of the valuations based on logic, his complaint is centred on the alleged inadequacy of the valuations of the property both by Albion and Barfoot. As was made plain to him by Judge Hobbs at the first telephone conference, the Tribunal required expert valuation evidence in support of the complaint and Mr Cooke was not qualified to give valuation evidence. Mr Rea
made it clear that, without such evidence, he proposed to proceed on the basis that there was no case to answer.
[82] In his submissions to the Court, Mr Cooke criticised Mr Rea for not having identified those parts of his evidence “which are unqualified opinion”. Mr Cooke however confirmed that he is not a valuer by profession. While the Tribunal is able to consider evidence that would be inadmissible in a court of law, the weight to be attached to any such evidence is a matter for the Tribunal to determine.
[83] Mr Rea had challenged the admissibility of a large volume of the material on which Mr Cooke proposed to rely at the Tribunal hearing. This issue was discussed at one of the pre-hearing telephone conferences. Deputy Chair Davenport decided to allow the material to be admitted in evidence, giving Mr Cooke latitude as a lay litigant. It would appear that, although inadvertently, this gave Mr Cooke some reassurance that weight would be placed on his evidence.
[84] Notwithstanding that, however, it had always been made clear to Mr Cooke that expert valuation evidence would be required. An expert and expert evidence are defined terms in s 4 of the Evidence Act 2006 as follows:
expert means a person who has specialised knowledge or skill based on training, study, or experience.
expert evidence means the evidence of an expert based on the specialised knowledge or skill of that expert and includes evidence given in the form of an opinion.
[85] Sections 23-25 of the Evidence Act contain provisions regarding opinion and expert evidence. Section 23 provides that a statement of opinion is not admissible except as specifically provided. Section 26 contains provisions concerning the conduct of experts in civil proceedings and in particular that, when giving such evidence, they must comply with the applicable rules of the Court relating to the conduct of experts.
[86] The relevance of those provisions and the purpose in referring to them is to indicate to Mr Cooke the difference between his opinion on the valuations of the property, including his criticisms based on his logical analysis, and what constitutes
expert evidence. Without any such expert evidence providing the foundation for a challenge to the valuations of the property, there was no real prospect that Mr Cooke’s appeal to the Tribunal would succeed.
Discretion
[87] Finally the delay in commencing these proceedings is a further bar to Mr
Cooke’s claim.
[88] Wild J has called delay “the primary reason which influences Courts to exercise their discretion not to grant relief in applications for judicial review.”12
Cooke J stated that:13
It is clear that undue delay by a plaintiff may be fatal, just as it was under the old certiorari procedure… I add only that the more liberal allowance of standing in administrative law, accorded in recent years and exemplified in the present case, carries with it an obligation to proceed promptly.
[89] Delay will be more likely to prevent the granting of relief if the other party or third parties have relied on the decision in question.14
[90] In Hauraki Catchment Board v Andrews, the Court of Appeal stated:15
It must be remembered that in exercising a discretion in such a situation it is not just a matter of weighing the respective prejudicial factors, but a matter also of assessing the overall justice. If a respondent in an application for review is prejudiced to a significant degree, then it may well be that other factors, including delay, have themselves so much weight to make it inequitable to grant relief…
(emphasis added)
[91] Mr Cooke has said that the delay was due to him and his wife finding the litigation process overwhelming. While litigation is undoubtedly overwhelming for
lay-people, two years is well over the time needed to either proceed or seek legal
12 New Era Energy Inc v Electricity Commission [2010] NZRMA 63 at [64].
13 West Coast Province of Federated Farmers of New Zealand (Inc) v Birch CA25/82, 16
December 1983.
14 Sanford Ltd v Chief Executive of the Ministry of Fisheries HC Wellington CIV-2009-485-379, 12
October 2009 at [115].
15 Hauraki Catchment Board v Andrews [1987] 1 NZLR 445 (CA).
advice. Therefore, even if either grounds of review were established, the Court would be unlikely to exercise its discretion to grant relief.
Decision
[92] I am satisfied that there was no procedural impropriety to the extent necessary for the judicial review application to succeed.
[93] Mr Cooke described his complaint as being based on ethical behaviour and the influences that had on the price at auction rather than the property selling at undervalue per se. It is plain that the Tribunal was aware of this and it analysed the issues under the headings identified by Mr Cooke. The Tribunal gave serious consideration to Mr Cooke’s complaints, and, given the lack of any expert evidence before the Tribunal supporting Mr Cooke’s view as to the value of the property, its decision was not unreasonable.
[94] For the reasons given the application for judicial review is dismissed.
Thomas J
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