Huffman v G
[2025] NZHC 232
•20 February 2025
ORDER PROHIBITING PUBLICATION OF THE NAME AND PARTICULARS OF THE RESPONDENT PURSUANT TO S 95A OF THE
RESIDENTIAL TENANCIES ACT 1986
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-108
[2025] NZHC 232
BETWEEN ROBERT CAMPBELL HUFFMAN
Appellant
AND
G
Respondent
CIV-2024-409-192 BETWEEN
ROBERT CAMPBELL HUFFMAN
ApplicantAND
CHRISTCHURCH DISTRICT COURT
First Respondent
AND
G
Second Respondent
Hearing: 13 February 2024 Appearances:
Appellant in person
First Respondent – appearance excused Respondent/Second Respondent in person
Judgment:
20 February 2025
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 20 February 2025 at 3.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HUFFMAN v G [2025] NZHC 232 [20 February 2025]
[1] Mr Huffman brings two proceedings, both challenging the decision of the District Court declining his appeal of a Tenancy Tribunal decision.1
[2] The first proceeding is an appeal of the District Court decision brought under s 119 of the Residential Tenancies Act 1986 (the Act) (the appeal proceedings). The second is an application for judicial review of the District Court’s decision (the judicial review proceedings).
[3] Because the proceedings relate to the same decision, raise similar issues, and rely on the same evidence, it was directed by Associate Judge Lester that they should be heard together.
[4] As is usual, the first named respondent in the judicial proceedings, the Christchurch District Court, abides the decision of the Court, and counsel were excused from appearing. However, at the Court’s request, counsel for the first respondent has provided legal submissions on the jurisdictional issues that may arise for the Court’s consideration.
[5] At the substantive appeal hearing, both Mr Huffman and the respondent appeared in person, and presented submissions.
Background
[6] Before turning to the pleadings, and exactly what is alleged by Mr Huffman, it is necessary to set out some brief background to explain why the parties are before the Court.
[7] Mr Huffman lived in hostel-style accommodation in central Christchurch, which will be referred to as “the backpackers”, from 2 August 2020 until he was made to leave on 29 November 2021.
[8] The respondent is a director of [the company] which bought the backpackers in September 2021. The proceedings in the Tenancy Tribunal were brought against
1 Huffman v [Respondent] [2024] NZDC 2082.
the company as the alleged landlord. I have no explanation as to why the respondent is now named in his personal capacity but, as no objection is taken to that, either in the subsequent District Court decision or here, I take that no further.
The Tenancy Tribunal proceedings
[9] Mr Huffman took exception to being asked to leave the backpackers hostel. He filed proceedings in the Tenancy Tribunal wanting the Tribunal to find that he had a boarding house tenancy, as defined in the Act. Mr Huffman sought compensation and exemplary damages because the alleged landlord, the company, acted in breach of the Act when it terminated the stay and served a trespass notice.
[10]Before the Tenancy Tribunal, the adjudicator identified the issues as being:2
(a)Does Mr Huffman’s long term stay give him a boarding house tenancy?
(b)Was the backpackers providing temporary or transient accommodation which ordinarily lasted for less than 28 days?
(c)Does it make a difference if other people had boarding house tenancies at the backpackers at the same time?
(d)Does the Tribunal have jurisdiction to hear the claim?
[11] In the Tenancy Tribunal it was agreed that Mr Huffman had stayed at the backpackers hostel for 15 months and he considered this created a boarding house tenancy even though he never signed a boarding house tenancy agreement, and he did not pay a bond.
[12] The adjudicator recorded that it was agreed that the respondent’s accommodation met the definition of a “boarding house” in s 66B of the Act because it had rooms for sleeping at least six tenants at any one time, and communal facilities,
2 Huffman v [Respondent] [2023] NZTT 445432 at [2].
and Mr Huffman had stayed there for more than 28 days.3 However, she then observed “this does not mean Mr Huffman had a boarding house tenancy. This is because I have to take the exemption set out in s 5 of the [Act] into account.”4
[13] The adjudicator answered the second question in the negative, finding that the premises managed by the respondent were “intended to provide temporary or transient accommodation (such as that provided by hotels and motels)”.5 The adjudicator was fortified in that view by a copy of the check-ins record from 14 September to 29 November 2021 which was provided to her by the respondent at her request. It showed that most people stayed short term and there were only two people who were shown on those records as having stayed for more than 28 days in that period. Mr Huffman takes issue with the accuracy of this document as I discuss below.
[14] The Tenancy Tribunal adjudicator found that “[o]n the evidence produced, … the accommodation provided to Mr Huffman was intended to be temporary or transient accommodation.”6 Accordingly, this was an excluded tenancy under s 5(1)(k) of the Act and the Tribunal had no jurisdiction to consider Mr Huffman’s claim.
[15] For completeness, I also note that an application for a rehearing by Mr Huffman, advancing arguments that the hostel was a boarding house and the check-in report was inaccurate, was also dismissed.7
The District Court appeal
[16] Mr Huffman appealed the Tenancy Tribunal’s decision to the District Court. Mr Huffman wanted to prove that he had had exclusive occupation of a particular bed in a particular bunkroom, Room 12, for an extended period of time. To that end he
3 However, I note this conclusion is questionable. The definition requires the premises to be occupied, or intended to be occupied, by at least six “tenants”, not merely six or more occupants. It also requires the rooms to be “boarding rooms” which presupposes a tenancy agreement exists. There was no evidence to confirm other occupants were tenants. The difficulty arises from the circular nature of the definitions which defines a “boarding house” by the fact it offers boarding house tenancies and a “boarding house tenancy” by the fact it is granted in respect of a room in a boarding house.
4 At [4].
5 At [5].
6 At [12].
7 Although I was not provided with details of the rehearing, it was referred to at [23]–[27] of the District Court decision.
wanted to adduce further evidence which he considered countered the evidence of the “check-ins” record provided by the respondent to the adjudicator, which only covered the period from mid-September 2021 to late November 2021 when the respondent was operating the business.
[17] I have read this evidence. It comes from other individuals who were accommodated at the backpackers hostel. They essentially confirm their understanding that Mr Huffman stayed there long term, and he occupied a bed in Room 12. I discuss the utility or otherwise of this evidence when dealing with the grounds of appeal.
[18] When a conference was convened before Judge Neave in advance of the appeal hearing, Judge Neave noted that the points which Mr Huffman wanted to make were essentially “a fresh evidence issue”. He directed a timetable for filing submissions and noted the matter was “to be set down for hearing” and that the “issue will be whether Mr Huffman is able to provide evidence, not previously available, that the material provided to the Tribunal was incorrect”.
The District Court decision
[19] When the matter came before Judge Kellar for hearing, he noted that both Mr Huffman and the respondent sought to adduce further evidence at the appeal. The respondent wanted to produce an email which showed that Mr Huffman initially stayed in Room 4, and business records that showed that Mr Huffman then stayed in various rooms during the period from 2 August 2021 to 29 November 2021, whereas Mr Huffman wanted to admit affidavits from a Mr Nogare and a Mr Turner which described Mr Huffman as a “long term resident” at the backpackers hostel and, while they were there, Mr Huffman occupied a bed in Room 12.8
[20] The Judge noted there was no formal application by either party for leave to admit further evidence and observed that r 18.17(2) of the District Court Rules provided that further evidence could only be adduced with leave of the Court and then only if there were “special reasons” for hearing the evidence. However, he extended
8 There were also statements from other guests to similar effect but which were not in affidavit form.
latitude to the parties, noting they were both self-represented, and dealt with their respective requests to adduce fresh evidence as if an application for leave had been made.
[21] The Judge declined the applications noting the evidence sought to be adduced was “reasonably available” at the time of the Tenancy Tribunal hearing. The Judge also noted that there was conflicting evidence as to whether Mr Huffman was moved to different rooms, as the respondent said, or whether he stayed almost exclusively in one of the bunks in Room 12, as Mr Huffman said. The Judge noted that the dispute between the witnesses could not be determined without a further hearing in which parties had an opportunity cross-examine each other. For these reasons, the Judge declined the application. Instead, the Judge decided he would determine the appeal on the basis that:
(a)Mr Huffman occupied Room 12 for most of his stay at the hostel, aside from brief stints in other rooms and when he was absent from the hostel; and
(b)Mr Huffman would pay in advance for the right to occupy the room for a week or a fortnight at a time (which was uncontroversial).
[22] In dismissing the substantive appeal, the Judge did not accept that Mr Huffman had been granted an exclusive right to occupy a particular bedroom, whether that occupancy was for single or shared use. The Judge found that while Mr Huffman:9
…may have had an understanding with the previous owner of the premises that he would occupy Room 12 … there is no evidence that he was granted an exclusive right to occupy that room. The owner of the premises could have asked Mr Huffman to move to another room at any time and Mr Huffman would have been powerless to object.
[23] In addition, the Judge considered the question of whether the hostel fell within the exception in s 5(1)(k) of the Act, being premises “intended to provide temporary or transient accommodation … being accommodation that is ordinarily provided for periods of less than 28 days at a time”. He considered it did, noting that the respondent
9 At [36].
was using online reservation companies to manage bookings and the check-in records provided by the respondent showed that most guests stayed for only around two nights. The fact that Mr Huffman and others stayed for periods of longer than 28 days did not detract from the fact the premises were intended to provide accommodation that is ordinarily provided for less than that period of time. That said, he acknowledged premises such as motels could have mixed uses and the Act would apply to units that were rented for longer term residential use. However, for the reasons already discussed, Mr Huffman was not a party to a boarding house tenancy.
[24]The appeal was accordingly, dismissed.
The proceedings
[25] Unusually, Mr Huffman brings both an appeal proceeding and a judicial review proceeding. However, as is outlined in the memorandum of counsel for the first respondent in the judicial review proceedings on jurisdictional issues, the Court is not precluded from hearing an application for judicial review where an appeal is also being brought against the same decision.10 However, where judicial review and an appeal are pursued simultaneously, and there is duplication between the two proceedings, the judicial review claim would normally be dismissed or relief refused.11
The grounds of appeal
[26] Mr Huffman’s grounds of appeal in the notice of appeal were expressed, in summary, as follows:
(a)In dismissing the appeal … the learned Judge accepted the applicant had lived at the premises for a period of almost 16 months, … but erred in not accepting the fact that the applicant lived continuously in Room 12 except the odd day he was away from Christchurch. … This error contributed to … the dismissal of the appeal.
10 Minister of Immigration v Vilceanu HC Wellington CIV-2007-485-377, 11 December 2007.
11 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at 583.
(b)In his minute of 11 September 2023, Judge Neave, … stated that “essentially this a fresh evidence issue.” [The parties filed fresh affidavits but ] … the Judge erred in not allowing this material to be properly traversed and examined during the appeal.
(c)The affidavit lodged by the respondent contained a large number of inaccuracies where the Judge should have allowed this detail to be challenged and examined but this did not happen. …
[27] In a separate document, Mr Huffman purported to file “points of law for the appeal”. However, the first “point of law” simply refers to the transcript of the Tenancy Tribunal hearing and tentative observations made by the adjudicator during the course of the hearing. Mr Huffman makes no assertion as to how this links to an error in the District Court Judge’s decision and so I consider this no further.
[28] The second “point of law” relates to the adjudicator’s request for the respondent to provide the “check-ins” report which Mr Huffman asserts had been “fabricated and falsified”. He says his second “point of law” is “in relation to this falsification of business records.” It is unclear, however, what error the District Court Judge is asserted to have made except as is articulated in Mr Huffman’s third “point of law”.
[29] His third “point of law” is that “the District Court Judge had a judicial duty to make an effort to discern and determine the facts of this case” and failed to do so. In particular, Mr Huffman is critical of the District Court Judge not enquiring into his assertion that the business records were falsified.
[30] His fourth “point of law” refers to the respondent lodging an inaccurate affidavit which was not “judicially examined” in the hearing. However, as this affidavit was not admitted in evidence, so the Judge could not consider it, I do not deal with that issue further.
[31]Looked at in totality, I discern the errors alleged are:
(a)The Judge erred in law because he did not accept that Mr Huffman “lived continuously” in Room 12.
(b)The Judge erred in law by not allowing Mr Huffman to adduce further evidence on appeal.
(c)The Judge failed to inquire into whether the record of check-ins provided by the respondent to the Tenancy Tribunal was false.
Jurisdiction on appeal
[32]On appeal I can only enquire into a question of law. As s 119 of the Act states:
(1) any party to an appeal under s 117 who is dissatisfied with the decision of the District Court Judge as being erroneous in point of law may appeal to the High Court on that question of law.
[33] This is not a general appeal and it is not my role to rehear the case or to undertake an “on the merits” consideration of whether the District Court’s decision was correct.12 The more limited role of a Court when considering an appeal on a question of law was explained by the Supreme Court in Bryson v Three Foot Six Ltd as follows:13
[24] Appealable questions of law may nevertheless arise from the reasoning of the Court on the way to its ultimate conclusion. If the Court were, for example, to misinterpret the requirements of s 6 – to misdirect itself on the section, … that would certainly be an error of law which could be corrected on appeal, …
[25] An appeal cannot however be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in the light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.
[26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of
12 As is my role on a general appeal. See Austin Nichols & Co Inc v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
13 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”. …
[34] In other words, my task on appeal is to consider whether the District Court decision has misinterpreted or misapplied the statutory provisions relied on to reach its decision under the Act and, if not, whether what has been decided is so misconceived that it amounts to an unlawful decision.
The legislative framework
[35] Before I turn to consider Mr Huffman’s grounds of appeal, I briefly summarise the statutory provisions which are relevant to this case, where Mr Huffman is asserting he had the benefit of a “boarding house tenancy” under the Act.
[36] As Judge Kellar noted, s 66B of the Act contains definitions of the key terms in Part 2A of the Act as follows:
Interpretation
In this part, unless the context other requires,—
boarding house means residential premises—
(a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and
(b)occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time
boarding house tenancy means a residential tenancy in a boarding house—
(a)that is intended to, or that does in fact, last for 28 days or more; and
(b)under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house
boarding house tenancy agreement means a tenancy agreement (as defined in s 2(1)) relating to a boarding house tenancy
boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room
[37] As van Bohemen J noted in Kamarkar v Pandem, one of the difficulties in determining whether a tenancy is or is not a boarding house tenancy, lies in the “circularity in the drafting of the definitions of “boarding house”, “boarding house tenancy” and “boarding room” which refer back to each other”.14
[38] After considering how other Judges in the District Court had analysed the steps which needed to be taken to determine whether a boarding house tenancy existed, van Bohemen J came up with the following approach to determining whether there was a boarding house tenancy, by asking the following questions:
(a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants?
(b)Is the house occupied or intended to be occupied by six or more tenants?
(c)Is the tenancy intended to, or does in fact, last for 28 days or more?
(d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use?
(e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord, rather than from a collective decision of the tenants?
[39] Mr Huffman placed reliance on these questions to assist in the present case. However, I am unpersuaded by that. The issues in Kamarkar were quite different from those that arise here. First, unlike in Kamarkar, there is no written tenancy agreement (indeed, as Mr Huffman confirmed, there was no agreement at all), and second, the respondent argues here that the hostel should fall within the exception under s 5(k)(i) to the Act, a matter which did not arise for consideration in Kamarkar. That exception reads as follows:
14 Kamarkar v Pandem [2018] NZHC 693 at [27] citing Saunders v Chou DC Christchurch CIV-2014-009-733, 19 November 2014 at [16].
(k)where the premises—
(i)are intended to provide temporary or transient accommodation (such as that provided by hotels and motels), being accommodation that is ordinarily provided for periods of less than 28 days at a time; and
(ii)are subject to an agreement that has been entered into for the purpose of providing temporary or transient accommodation that continues to be provided under the agreement:
[40] In the present case Mr Huffman does not appear to challenge the fact that the hostel is generally intended to provide temporary or transient accommodation. Rather, he seeks to distinguish his own position as an exception, and qualifying as a boarding house tenancy, notwithstanding he accepts there was no agreement to this effect.
[41]Turning to the identified points on appeal, I address each as follows.
Did the Judge err in law by not accepting that Mr Huffman lived continuously in room 12?
[42] As already noted, there was a dispute between the respondent and Mr Huffman as to whether he was shifted to different rooms or exclusively occupied the same bunk in a shared bunkroom in Room 12 in the period from August 2020 to November 2021. Mr Huffman sees this as central to his claim to have been given “exclusive rights to occupy that bunk bed in Room 12”, thus supporting his claim to have a boarding house tenancy.
[43] However, this issue clearly falls into the arena of a factual finding by the Tenancy Tribunal and the District Court. In the Tenancy Tribunal it was discussed whether Mr Huffman had exclusive use of a bunk in Room 12. Mr Huffman acknowledged he was initially accommodated in Room 4, but said he was then moved to Room 12 at his request. He also acknowledged in evidence that the respondent had asked him to shift rooms, and this was one of the issues that created tensions leading to Mr Huffman being asked to leave. No specific finding was made as to what room he occupied and when, but the Tribunal did reach the following conclusions:15
15 At [10].
I note that sometimes a manager would tell Mr Huffman in advance if there were events coming up, so he could book and pay for his bunk in advance and not have to move. While I do not know if this happened when the respondent was running the backpackers, I mention it because this is completely different from a boarding house situation, where the tenant had exclusive use of a room or a bed until either party gives notice to terminate the tenancy.
In short, this was a finding by the Tenancy Tribunal that Mr Huffman was not granted exclusive occupation of the bunk in Room 12.
[44] In the District Court, Mr Huffman placed much more weight on the fact he occupied the same bunk in Room 12 continuously in the period between August 2020 and November 2022 to support him having “exclusive occupation” for the purpose of the definition of “boarding house tenancy” in the Act. That was a disputed fact, with both parties seeking to adduce new evidence on that issue before the District Court. As already discussed, the District Court Judge declined to introduce this further evidence but said he would proceed on the basis that Mr Huffman occupied Room 12 for “most of his stay at the premises”.16
[45] Assuming the decision not to admit further evidence on this issue was open to the Judge (which I discuss below), there was no error in the Judge relying on the respective evidence which had been given by the parties in the Tenancy Tribunal (where Mr Huffman acknowledged he was initially allocated to Room 4) and assuming Mr Huffman primarily occupied Room 12. After reviewing that evidence, the Judge reached the same conclusion as the Tenancy Tribunal which was that Mr Huffman was not granted exclusive use of that room.
[46] This Court will not intervene in this finding of fact, which was reasonably open to it on the available evidence. This ground of appeal is dismissed.
Did the Court err in not allowing further evidence to be admitted on appeal?
[47] Mr Huffman’s first submission on this issue was that he understood Judge Neave had directed that this evidence was to be adduced on appeal and therefore Judge Kellar was wrong to decline to hear it. However, that is to misunderstand the
16 At [35].
effect of Judge Neave’s minute. The minute recorded that there was a “fresh evidence issue” and recorded that it would be an issue for hearing as to whether Mr Huffman would be able to adduce evidence in the District Court hearing that was not made available in the Tribunal hearing.
[48] As already noted, Judge Kellar declined to admit the further evidence sought to be adduced by both Mr Huffman and the respondent, because the parties could have adduced this evidence in the Tenancy Tribunal, and because witnesses would need to be called and there would need to be cross-examination, in order to resolve the factual disputes in the new evidence.
[49] The general test for the admission of fresh evidence is that it must be “cogent, likely to be material and that it could not reasonably have been discovered at an earlier stage”.17 That said, the Court may receive further evidence if it thinks that the interests of justice require it to do so.18 However, admitting further evidence on appeal is exceptional rather than routine. Where, as here, the evidence sought to be adduced is challenged, there must be a question mark over its cogency. Furthermore, the Court can properly take into account the fact that the evidence was disputed and would require cross-examination of witnesses to resolve that dispute. In W v Y, the Court refused to admit fresh evidence on appeal on grounds which included the fact that the evidence was disputed, it would require evidence to be filed in response (as was proposed here), and it would create the potential for requests to cross-examine witnesses, meaning the hearing “would cease to have the features of an appeal”.19 The same problems arose here.
[50] On appeal under s 119, the only question for me is whether the Judge’s decision to decline to admit the further evidence was available to him in law. Here, I am satisfied, by some margin, that it was. The Judge appropriately directed himself to the requirements that the evidence be fresh, cogent and likely to be material.20 Given the evidence was not fresh and was controversial, it was entirely open to the Judge to decline to hear it.
17 Neumann v Sons of the Desert, S. L. HC Auckland CIV-2007-485-212, 12 October 2007 at [2].
18 B v A [2020] NZHC 580.
19 W v Y [2008] NZFLR 499 at [64].
20 Comalco New Zealand Ltd v Television New Zealand Ltd (1996) 10 PRNZ 573 (HC).
[51] Furthermore, I note that whether (as the Judge assumed), Mr Huffman occupied Room 12 for most of his stay, or whether as Mr Huffman says, he was there for the entirety of the stay, except when he first arrived in August 2020 when he admits he was initially allocated Room 4, it would have made no material difference to the outcome. What was at issue was whether he was in fact granted exclusive rights to occupy Room 12 by the respondent, rather than a short term stay which could be renewed and where he could not expect to have an ongoing right to occupy a particular sleeping quarter. That did not turn on whether Mr Huffman had occupied Room 12 for most of the time (as the Judge assumed) or almost all of the time (as Mr Huffman asserted).
[52]This ground of appeal is dismissed.
Did the Judge err in law by failing to enquire whether the check-ins record was false?
[53] Mr Huffman has repeatedly asserted that the check-ins record the respondent provided to the Tenancy Tribunal was false.
[54] To understand this assertion, it is necessary to explain what the check-in records show. The respondent provided the Tenancy Tribunal with the records of guests who had checked in from mid-September onwards, along with the dates that they checked out and the rooms they occupied. However, the guests names were blanked out, except for the first initial letter of the guest’s name.
[55] Mr Huffman is shown on this record as checking in on 22 October 2021 and out on 24 October 2021 and then back in on 3 November 2021 and out on 29 November 2021 (which is when he was required to leave). One of Mr Huffman’s complaints is that this does not show the extensive period that he occupied his room prior to 22 October 2021. However, it is obvious why that is the case. The records are organised by date range of when the person arrived, so as long as he checked in prior to 14 September 2021, his period of occupation would not show up even if he did not check out until after that date.
[56] Mr Huffman also argues that he had neither a “check in” nor a “check out” during the period that it covers even though that is what the document shows, and
Mr Huffman acknowledged at least one short term absence from the hostel. However, the document was not relied on to prove that Mr Huffman did not stay there long term. In the Tenancy Tribunal hearing it was relied on simply to show the usual pattern of guests stays in the hostel. In any event, no evidence was adduced to prove the document was fraudulent. That allegation was simply raised in submissions by Mr Huffman. Furthermore, none of the evidence he sought to adduce would have assisted in proving his claim that the document was fraudulent.
[57] For all these reasons, I find there was no error in law in the Judge failing to inquire into whether the check-ins record was fraudulent.
The claim on judicial review
The grounds of judicial review
[58] While Mr Huffman’s pleadings in his application for judicial review referred to two causes of action, I clarified with him that, in fact, the first cause of action was no more than a recitation of the factual background to his claim. What is described as his “second cause of action” is the ground on which he advances his application and it echoes the concerns raised in his appeal saying:
Judge Kellar had a duty to act judicially at the hearing in the District Court, and to examine the issues in dispute in relation to the facts, and make findings of fact, particularly in relation to my occupancy of room 12 … he did not take into consideration the [affidavits and statements which Mr Huffman sought to file] … all of which directly contradicted the evidence given by [the respondent].
[59] There is considerable overlap between this ground of review and grounds raised in the notice of appeal. Essentially, he says the Judge was obliged to take into account the further evidence Mr Huffman proposed to adduce and he failed to do so, thus he did not take account of relevant evidence.
Principles applying to judicial review
[60] Just as an appeal on a point of law can be distinguished from a general appeal, so can judicial review be distinguished from such appeals. Neither process allows this Court to revisit the factual findings of the lower Court unless they were made
unlawfully. As French J said in Aorangi School Board of Trustees v Ministry of Education:21
[Judicial review] is not about the court considering the information afresh and coming to its views. Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision maker being required to start afresh, as opposed to quashing the decision for all time. Thus, in this case it is not my task to assess the wisdom or merits of this decision, to decide whether it is the right or wrong thing to close the school. That is not my job. My focus must be on process … and even then, that inquiry is limited to reasonableness.
[61] A succinct description of the scope of the judicial review was given in Butler v Removal Review Authority as follows:22
Judicial review would be available in this proceeding if the Authority exceeded its powers, made an error of law, proceeded in breach of natural justice, reached a decision which no reasonable authority could have reached, or abused its powers.
Discussion
[62] Applying those principles to the present situation, there can be no doubt that the Judge had a duty to act judicially at the hearing and to examine the issues in dispute in relation to the facts and make findings of fact. However, he could only do so on the evidence which was properly admitted.
[63] I have already concluded that the Judge acted lawfully in dismissing the application to adduce fresh evidence and it is that which is really at the heart of Mr Huffman’s complaint. He asserts that that evidence should have been admitted to contradict the evidence of the respondent. However, it must be remembered that the respondent was also not allowed to adduce his further evidence either being the records of the previous owners of the business which apparently showed that Mr Huffman had occupied other rooms than Room 12. Furthermore, as Mr Huffman himself acknowledged, he had occupied Room 4 at least briefly, at the beginning of his stay, it is difficult to see how he was prejudiced by the Judge assuming that he had occupied Room 12 for the majority of his stay but not the entirety.
21 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 at [8].
22 Butler v Removal Review Authority [1999] NZAR 68 (HC) at 71 by Wild J.
[64] Because the Judge acted lawfully in excluding Mr Huffman’s further evidence (along with the respondent’s further evidence), I do not consider that he failed to act judicially. He was entitled to proceed on the basis that Mr Huffman occupied Room 12 for most of the time period in question, and not enquire further when there was no other evidence on that issue apart from the oral evidence of the parties.
[65] In any event, contrary to Mr Huffman’s belief, the Judge did not decide against Mr Huffman on the basis of how much time he had occupied Room 12. He based it on the lack of evidence that Mr Huffman was granted an exclusive right to occupy that room. The Judge noted that there was no agreement to that effect and Mr Huffman confirmed to me that was the case in this hearing. Thus, whether or not he had always been allocated Room 12 (apart from the first day or so, when he was allocated room 4), Mr Huffman would still not be a tenant, pursuant to a boarding house tenancy. Where the same outcome was inevitable, even if an error has been established, relief would normally be declined.23
[66]Accordingly, the application for judicial review is dismissed.
Result
[67]The appeal is dismissed.
[68]The application for judicial review is dismissed.
[69]Costs are reserved, but an application is not encouraged.
Copy to:
Mr Huffman The respondent
23 Wislang v Medical Practitioners Disciplinary Committee [1974] 1 NZLR 29 (SC) at 42;
Attorney-General v District Court at New Plymouth [2002] 1 NZLR 414 (HC).
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