Graeme Martin Contracting Limited v Disputes Tribunal
[2017] NZHC 2636
•27 October 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-000436 [2017] NZHC 2636
IN THE MATTER of the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for Judicial Review
BETWEEN
GRAEME MARTIN CONTRACTING LIMITED
Applicant
AND
DISPUTES TRIBUNAL First Respondent
DISTRICT COURT AT WELLINGTON Second Respondent
CHORUS NEW ZEALAND LIMITED Third Respondent
Hearing: 25 October 2017 Counsel:
E J Tait for Applicant
No appearance for First and Second Respondents
R L Goss for Third RespondentJudgment:
27 October 2017
JUDGMENT OF COLLINS J
Introduction
[1] On 16 January 2015 Graeme Martin Contracting Ltd (GMCL) severed a fibre optic cable owned by Chorus New Zealand Ltd (Chorus). The incident occurred on McCormacks Bay Road in Christchurch whilst GMCL was excavating a deep trench to install replacement sewer mains that had been damaged in the Christchurch
earthquakes.
GRAEME MARTIN CONTRACTING LIMITED v DISPUTES TRIBUNAL [2017] NZHC 2636 [27 October
2017]
[2] Chorus incurred costs of $17,172.91 for the repair of the cable and commenced proceedings in the Disputes Tribunal (the Tribunal) in March 2016 to recover $15,000, being the maximum sum that can be recovered in that jurisdiction.
[3] The Tribunal ordered GMCL to pay Chorus $15,000.1 That decision was upheld by the District Court.2 A subsequent application for a rehearing of the Disputes Tribunal’s decision was declined.3 GMCL has now applied to judicially review both the Tribunal and District Court decisions alleging that the processes followed by the Tribunal were procedurally unfair and that the decisions of the Tribunal and the District Court were unreasonable.
[4] This judgment explains why none of the grounds for judicial review have been established.
Background
[5] GMCL is a well established contractor in Christchurch that at the relevant time was carrying out a sub-contract for Fulton Hogan. Before excavating the trench on McCormacks Bay Road, GMCL obtained plans of the area from Fulton Hogan that had in turn been supplied by Chorus (the Chorus plans). Those working on the site comprised three employees of GMCL and one from Fulton Hogan. The workers excavated by hand to a depth of about 0.5 metres and located two cable ducts. Because the land in the area was just above the high tide level and the soil very unstable, GMCL had to protect the edges of the trench with sheet piles to stop the trenches collapsing.
[6] After exposing the two ducts at about 0.5 metres, GMCL used mechanical devices to dig the rest of the trench but in doing so severed a third cable lying at a
depth of about 2.5 metres.
1 Chorus New Zealand Ltd v Graeme Martin Contracting Ltd DT Wellington CIV-2016-085-176,
24 June 2016.
2 Graeme Martin Contracting Ltd v Chorus New Zealand Ltd [2017] NZDC 1622.
3 Chorus New Zealand Ltd v Graeme Martin Contracting Ltd DT Wellington CIV-2016-085-176,
12 April 2017.
[7] The key factual issue was whether the Chorus plans disclosed the existence of two or three ducts. If three ducts were shown on the plans then GMCL failed to take appropriate steps to locate the third cable and were liable in negligence for the amount claimed.4
[8] Before examining the evidence it is appropriate to first lay the foundations for my discussion about the application for judicial review by setting out the procedural history to this case and the evidence obtained by GMCL after the substantive Tribunal decision.
[9] The following chronology explains the procedural history of this case:
11 March 2016: Chorus filed its claim with the Disputes Tribunal in
Wellington. A hearing date was set for 5 May 2016.
23 March 2016: GMCL’s solicitors requested the hearing be conducted
in Christchurch.
29 March 2016: A Tribunal registrar declined the change of venue application.
19 April 2016: Mr Martin travelled on business to the United States.
Before leaving he instructed the solicitors for GMCL
to again apply for a change of venue and adjournment.
26 April 2016: A Tribunal referee granted GMCL’s application for an
adjournment setting a new hearing date for 3 June
2016. The application for a change of venue was, however, declined.
18 May 2016: Mr Martin returned from overseas.
4 See Chorus New Zealand Ltd v Graeme Martin Contracting Ltd, above n 1, at [3]-[7] and Graeme Martin Contracting Ltd v Chorus New Zealand Ltd, above n 2, at [13]-[14], explaining the basis of the negligence claim.
19 May 2016: Mr Martin applied again for a change of venue to Christchurch, explaining he was having difficulties contacting witnesses and arguing it was prejudicial to GMCL for the case not to be heard in Christchurch.
31 May 2016: Mr Martin again applied for a change of venue to
Christchurch and a further adjournment.
3 June 2016: Referee Vernon heard the claim. Mr Martin attended by telephone conference as did Mr Johnson, a Chorus employee in Christchurch. Chorus was represented by Mr Mills in Wellington, an employee of Chorus whose roles include representing Chorus before the Tribunal.
10 June 2016: The Tribunal released its substantive decision.
10 November 2016: GMCL’s appeal to the District Court was heard by
Judge W K Hastings.
30 January 2017: Judge Hastings dismissed the appeal by GMCL.
23 March 2017: GMCL applied to the Tribunal for leave to apply for a rehearing out of time.
12 April 2017: Referee Vernon dismissed GMCL’s application for an
extension of time to apply for a rehearing.
19 May 2017: GMCL commenced its application for judicial review.
New evidence
[10] On 16 October 2016, Mr Forest, a former employer of GMCL, signed a brief witness statement explaining he was working on the excavation on the day in question. He refers in his statement to the Chorus plan and says:
This plan showed there were duct cables of Chorus at a depth of 0.5 of a metre. We carefully dug out the earth above that. There was nothing on the plan indicating any duct cable at any greater depth.
Mr Bergerson, another former employee of GMCL who was working on the excavation, signed a witness statement on 19 October 2016, which contains a passage identical to the statement from Mr Forest that I have set out in this paragraph.
[11] Mr Harrison, a quantity surveyor, has sworn an affidavit dated 23 March
2017 in which he says that the Chorus plan “shows two (2) cable ducts only”.
[12] While not strictly “new” evidence, Mr Tait, counsel for GMCL has also relied on an email from Mr Mills to Mr Martin dated 12 October 2015 in which he said:
My investigations have shown me that there is indeed two ducts on
McCormacks Bay Rd and our plans show this clearly.
Alleged procedural unfairness
[13] Mr Tait has argued that the Tribunal’s decisions not to grant GMCL’s change of venue application and its second adjournment application was unfair and resulted in GMCL being denied its right to present its case.
[14] There are two strands to this aspect of GMCL’s application for judicial review. Those strands are:
(1)As a lay litigant Mr Martin did not have the time and resources to properly prepare for the hearing on 3 June 2016 because of his commitments overseas and the pressures he was facing from a work crisis.
(2) Witnesses who could have given evidence were unable to attend to a
Tribunal hearing in Wellington.
[15] The Tribunal’s reasons for not transferring the hearing to Christchurch appear
to have been based upon the following considerations:
(1)Section 24(2) of the Disputes Tribunal Act 1988 provides that proceedings before the Tribunal are to be commenced in the nearest Tribunal to where the applicant resides. The Head Office of Chorus is in Wellington and therefore Chorus commenced its proceeding in the Tribunal at Wellington.5
(2)The Tribunal was satisfied that Mr Martin could give his evidence and attend the hearing by telephone.
(3)At the hearing on 3 June 2016 Mr Martin could not name, or provide briefs of evidence of witnesses whom he wished to call on behalf of GMCL. When pressed on this issue Mr Martin said one witness was in Australia, one was in England and one could not, at that stage, be located.
[16] The Tribunal’s reasons for not adjourning the proceedings were:
(1) There had already been an adjournment.
(2)There was an absence of evidence about which, if any witnesses were unable to attend the hearing on 3 June 2016.
[17] The Tribunal’s reasons for not granting leave to apply for a rehearing out of time primarily rested upon the Tribunal’s view that the “new” evidence advanced by GMCL was either not new or could have been obtained earlier.
Substantive decision
[18] The Tribunal’s decision that the plan showed three ducts was based on the evidence of Mr Johnson, an employee of Chorus who attended the scene of the incident later on 16 January 2015. He explained that the Chorus plan showed three
ducts at the site of the excavation.
5 Section 24(3) of the Disputes Tribunal Act 1988 enables a proceeding to be transferred to another venue where it is convenient and fair to do so.
[19] Mr Mills was questioned about his reference in his email of 12 October 2015 to the Chorus plan showing two ducts and said that was a mistake on his part and that “clearly there is a third [duct] because it’s shown on the plan”.6
[20] Judge Hastings also looked at the plans and was satisfied they showed three ducts.7
Analysis
Scope for judicial review
[21] The functions of the Tribunal include the determination of disputes within its jurisdiction “according to the substantial merits and justice of the case” without being “… bound to give effect to strict legal rights or obligations or to legal forms or technicalities”.8 To fulfil its functions the “Tribunal shall adopt such procedure as it thinks best suited to the ends of justice”.9 Consistent with these broad functions and powers, appeals to the District Court may be brought where “the proceedings were
conducted by [a] referee … in a manner that was unfair to the appellant and
prejudicially affected the result of the proceedings”.10
[22] The statutory limits on the rights of appeal to the District Court from decisions of the Tribunal reinforces the limited scope for judicial review. “An application for judicial review cannot be used as a mechanism to bypass the limited rights of appeal from Tribunal decisions which the legislature has prescribed.”11
[23] When it created the Tribunal, Parliament’s intention was to establish a fast and inexpensive mechanism for resolution of claims that would otherwise not be able to be pursued on an economic basis in the District Court. Notwithstanding the broad powers of the Tribunal and the limited grounds of appeal, where an applicant
demonstrates that an injustice has been caused through failure to observe the
6 Disputes Tribunal, Notes of Evidence at 30, line 26.
7 Graeme Martin Contracting Ltd v Chorus New Zealand Ltd, above n 2, at [15].
8 Disputes Tribunal Act 1988, s 18(6).
9 Section 44.
10 Section 50(1).
11 McFarland v Disputes Tribunal [2013] NZHC 2885 at [8]; Shepherd v Disputes Tribunal [2004] NZAR 319 (HC) and Evans v Disputes Tribunal at New Plymouth (2000) 14 PRNZ 183 (HC).
principles of natural justice then this Court may remedy that injustice through its powers of judicial review.
Procedural irregularities
[24] I am satisfied there were no procedural irregularities that justify this Court granting judicial review. My reasons for this conclusion can be distilled to the following five points.
[25] First, the Tribunal granted GMCL an adjournment on 26 April 2016.
[26] Second, although Mr Martin was a novice in the Tribunal, he had the benefit of access to legal advice and had 11 weeks to gain statements from prospective witnesses. That was ample time in a case such as this where the witness statements that have been obtained are five and seven paragraphs long.
[27] Third, while it would have been more convenient and fair for the hearing to take place in Christchurch12 at the time the decision was made to proceed with the hearing in Wellington, Mr Martin could not clearly identify what witnesses GMCL wished to call and what they would say.
[28] Fourth, Judge Hastings had before him the witness statements from Mr Forest and Mr Bergerson and was satisfied they did not advance GMCL’s case. That was the correct decision because of the equivocal nature of their evidence about exactly how many ducts are shown on the Chorus plans.
[29] Fifth, evidence from Mr Harrison, could with reasonable diligence, have been obtained before the Tribunal hearing.
[30] There were no procedural irregularities that could be properly considered as
breaches of GMCL’s rights to natural justice.13 This was not a case in which GMCL
was denied its right to be heard. It was heard.
12 Disputes Tribunal Act 1988, s 24(3).
13 New Zealand Bill of Rights Act 1990, s 27.
Unreasonableness
[31] I am also satisfied that this is not a case which would justify me taking the very unusual step of impeaching the factual findings made by the Tribunal and upheld by Judge Hastings.14 The essential reason why I have reached this conclusion is that I am not satisfied that the Tribunal or District Court decisions were unreasonable.
[32] The Tribunal had before it the evidence of Mr Johnson and Mr Mills explaining that there are three ducts on the Chorus plans. There was no clear evidence to the contrary. In examining the Chorus plans it is easy to see why the Tribunal and the District Court were convinced there are three ducts marked on the plans. One duct is marked on the plan Y18 as a O “100 mm” duct and the other reference is to “2/100 mm” in the vicinity of where the excavation occurred. Each O refers to a duct. The plans appear therefore to refer to three ducts, not two.
[33] This is not a case in which an error of fact was so clearly and obviously made by the Tribunal or the District Court that it is necessary for this Court to exercise its power of judicial review to interfere with the decisions made by the Tribunal and District Court.
[34] While Mr Martin undoubtedly feels he was rushed into a hearing before the Tribunal and that the Tribunal was not appraised of all relevant evidence, his concerns are not sufficient to pass the high bar required for this Court to exercise its power of judicial review.
Conclusion
[35] The application for judicial review is dismissed.
[36] Chorus is entitled to costs on a 2B basis.
14 Kim v Butterfield (1994) 7 PRNZ 461 (HC) at 464 and Inland Holdings Ltd v District Council at
Whangarei (1999) 13 PRNZ 661 (HC) at 670.
D B Collins J
Solicitors:
Malley & Co Lawyers incorporating MacKintosh Bradley & Price, Christchurch for Applicant
Chapman Tripp – Wellington for Third Respondent