Edwards v The Photo Warehouse Limited

[2016] NZHC 582

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2015-485-1043

[2016] NZHC 582

UNDER

High Court Rule 20.4

IN THE MATTER OF

an interlocutory application on notice for an order allowing an extension of time for appealing against an oral judgment of Judge Tuohy delivered in the District

Court at Lower Hutt on 10 November 2015

BETWEEN

JOHN ANTHONY EDWARDS

Applicant

AND

THE PHOTO WAREHOUSE LIMITED

Respondent

Hearing:

4 April 2016

Counsel:

Applicant in person

No appearance for respondent

Judgment:

6 April 2016

JUDGMENT OF CLARK J

I direct that the delivery time of this judgment is 4.00 pm on 6 April 2016

EDWARDS v THE PHOTO WAREHOUSE LIMITED [2016] NZHC 582 [6 April 2016]

Introduction

[1]                 This matter originates with  a  decision  of  the  Disputes  Tribunal  which  Mr Edwards,  the  applicant,  unsuccessfully  appealed   to   the   District   Court.1   Mr Edwards applies for leave to appeal out of time the decision of the District Court.

[2]                 The matter came before me when it was called in the Chambers List on 4 April 2016. The application has been the subject of previous minutes essentially directed towards ensuring proper service on the respondent.

[3]                 There was no appearance for the respondent. Instead Mr Stevenson, counsel for the respondent, filed a memorandum in advance of the call highlighting the absence of jurisdiction to entertain the application and requesting that counsel be excused from attending any call given the absence of formal service as well as the jurisdiction issue.

[4]                 I discussed with Mr Edwards my provisional view that he could not appeal the District Court Judge’s decision to the High Court. Notwithstanding his obvious disappointment at such an outcome Mr Edwards was gracious in his acceptance of the inevitable.

[5]                 Section 23 of the Disputes Tribunals Act 1988 provides that every order of the Tribunal —

“… shall be final and binding on all parties to the proceeding…and, except as provided in s 50 of this Act, no appeal shall lie in respect of any such order…”

[6]                 The right of appeal provided in s 50 is of limited scope. A party to proceedings before a Tribunal may appeal to the District Court only on the grounds that the proceedings were conducted by the Referee, or an inquiry was carried out by an investigator, in a manner that was unfair to the appellant and prejudicially affected the result. The limited nature of the appeal right reflects the Tribunal’s function of achieving speedy, inexpensive and effective resolution of disputes below a prescribed monetary level.

1      Edwards v The Photo Warehouse Limited [2015] NZDC 22921.

[7]                 I observe that a party to a proceeding before a Tribunal may also apply under the Disputes Tribunals Act for a rehearing. As well, judicial review is available. But Mr Edwards has not elected either of those options.

[8]                 The applicant’s appeal in the District Court was dismissed. I have no doubt that Mr Edwards has exhausted the only appeal right available to him. Although the District Courts Act 1947 confers a right to appeal decisions of a District Court that right does not apply in the face of an enactment which expressly confers a right of appeal or provides expressly that there is no right of appeal.

[9]                 Section s 23 of the Disputes Tribunals Act is just such an enactment. Its effect is to make an order of a Tribunal such as was made in this case final and binding except to the limited extent the orders are amenable to the limited appeal available under s 50. Section 23 has been held to go beyond merely limiting recourse by way of appeal from the Disputes Tribunal to the s 50 right but to state unequivocally:2

that ‘no appeal shall lie’ except by that right … and confirms that … s 50 confers not merely a single right of appeal, but a final right.

[10]             I accept as correct the analysis and approach of Keane J in Mellow v Tsang. This Court is unable to entertain a second appeal from the decision of the Disputes Tribunal.

[11]Consequently, the application for leave to appeal must be refused.

Karen Clark J

Solicitors:

Douglas Burgess, Auckland, for Respondent Copy to the Applicant

2      Mellow v Tsang [2004] NZAR 537 (HC) at [24] applied in Business Continuity Services NZ Ltd v Contact Energy Ltd HC Wellington CIV-2009-485-1531, 15 September 2010.