Fava v Zaghloul

[2006] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/06

BETWEENPHILIP JOSEPH FAVA

Applicant

ANDEKHLAS NASR ZAGHLOUL

Respondent

Hearing:18 September 2006

Court:William Young  P, Robertson and Arnold JJ

Appearances:  Applicant in person

S Judd for Respondent

Judgment:26 September 2006 

JUDGMENT OF THE COURT

A          The application for leave to appeal is dismissed. 

BThe applicant is to pay the respondent $750 costs together with usual disbursements.

REASONS OF THE COURT

(Given by William Young P)

[1]       In December 2004 the Residential Tenancy Tribunal decided a case which primarily concerned unpaid rent claimed by the respondent and counterclaims by the applicant associated generally with the condition of the premises.  On the last day of the proceedings, the Tribunal declined an application for an adjournment which would have permitted the applicant to obtain the attendance, by witness summons, of potential witnesses.  The applicant had earlier obtained witness summonses in relation to other witnesses.

[2]       The applicant appealed unsuccessfully to the District Court and again to the High Court.  This latter appeal was dismissed by Venning J on 28 April 2005.  The applicant now seeks leave to appeal to this Court.

[3]       The focus of the appeal is comparatively limited.  It arises in this way. 

[4]       Sections 97 and 98 of the Residential Tenancies Act 1986 relevantly provide:

97       Evidence

…

(6)       The Tribunal shall have power to refuse to accept any evidence or submission that is irrelevant or repetitious.

…

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.

…

(3)       A witness summons shall be served at least 5 working days before the date on which the attendance of the witness is required, unless in special circumstances the Tribunal directs otherwise.

[5]       In his judgment, the District Court Judge expressed the view that there is not an absolute obligation on the Tribunal to issue a witness summons if requested to do so under s 98 of the Act; this despite the use of the word “shall” in s 98(1).  He put the matter this way:

[21]     … The adjudicator clearly took the view that the additional evidence sought to be adduced by Mr Fava 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.

[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).  Indeed, this is why at the outset of this judgment I refer to the considerable volume of evidence that found its way to the adjudicator on 10 December and 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.

[6]       In the High Court Venning J took the contrary view of s 98(1) but he nonetheless dismissed the appeal.  He concluded that the applicant had not asked the Tribunal to issue further witness summonses under s 98 of the Act and thus there had not been a refusal by the Tribunal to do so.  What the applicant had sought was an adjournment of the hearing and the key decision in issue was that of the Tribunal to decline to grant the adjournment.  Venning J concluded that the Tribunal had been entitled to decline the application for the adjournment. 

[7]       The applicant’s appeal is on the basis that [22] of the judgment of the District Court Judge amounted to a finding that witness summonses had been requested and this “finding of fact” together with the conclusion of law by Venning J as to the requirement to issue witness summonses, necessarily meant that the appeal to the High Court should have been allowed.  In the course of the hearing before us, the applicant rightly described this very literal argument as coming down to the proposition that “what is written is written.”

[8]       We accept that [21] and [22] of the District Court judgment appear to proceed on the basis that the applicant’s conduct amounted to a request under s 98 of the Act for the issue of witness summonses although we have reservations whether this is what he meant.   But there was plainly not a finding to that effect.  All that was in issue on this aspect of the case was whether the Tribunal was wrong to refuse to adjourn the proceedings to permit the applicant to call further evidence.  Indeed, in [16] of his judgment, the District Court Judge made it clear that he realised that there had not been a specific request for the issue of further witness summonses. 

[9]       Likewise, while Venning J held that the Tribunal must issue a witness summons under s 98 if requested, he did not envisage that this encompasses a right to an adjournment in respect of a hearing which has already started when the request is made.  Indeed, it is implicit in s 98(3) that there is no need for the Tribunal to issue a summons if the five day service period specified in that subsection cannot be met (which was necessarily the case here if the Tribunal refused the request for an adjournment).

[10]     The application for leave to appeal is dismissed.  The applicant is to pay the respondent $750 costs together with usual disbursements. 

Solicitors:
Hornbrook MacDonald, Auckland for Respondent