Menzies v North Shore Laser and Skin Care Centre Ltd
[2018] NZHC 1035
•11 May 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-2229
[2018] NZHC 1035
BETWEEN ANITA MENZIES
Appellant
AND
NORTH SHORE LASER AND SKIN CARE CENTRE LIMITED
Respondent
Hearing: 28 February 2018 Appearances:
Ms Menzies in Person
J M Skinner for Respondent
Judgment:
11 May 2018
JUDGMENT OF DUFFY J
This judgment was delivered by me on 11 May 2018 at 2.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
Skinners Law, Takapuna
MENZIES v NORTH SHORE LASER AND SKIN CARE CENTRE LTD [2018] NZHC 1035 [11 May 2018]
[1] The appellant, Anita Menzies, appeals against a refusal of the District Court to grant her leave to appeal against a decision of the Disputes Tribunal (the Tribunal). The questions in issue are: (a) whether this Court has jurisdiction to hear such an appeal; and (b) if there is jurisdiction, whether there is a proper basis on appeal for interfering with the refusal.
Is there jurisdiction to bring this appeal?
[2] At the appeal hearing the parties proceeded on the basis there was jurisdiction to hear the appeal. After I raised concerns about jurisdiction with them they were given leave to file submissions on the topic for me to consider after the hearing. They have done so. Ms Menzies maintains there is jurisdiction for this Court to hear her appeal. The respondent is now of the view there is not.
[3] The scheme and purpose of the Disputes Tribunal Act 1988 (DTA) is to enable persons with claims up to $15,000 to bring proceedings before a Disputes Referee. The jurisdictional limit can be extended by agreement, but not beyond $20,000. The aim of this jurisdiction is to ensure a speedy and economically efficient means for persons to pursue disputes themselves. Legal representation is not permitted. The type of causes of action that can be brought before the Tribunal are also limited.
[4] One of the features of this jurisdiction is s 23 of the DTA which, amongst other things, provides that orders made by the Tribunal in determining a dispute before it shall be final and binding on all parties to the proceedings, and except as provided by the legislation no appeal shall lie in respect of any such order.
23 Decisions of Tribunal to be final
Every agreed settlement approved by the Tribunal under section 18(3), and every order made by the Tribunal under section 18(8) or section 46(2) or section 47(3)(b), and every variation of a term of an agreed settlement under section 47(3)(a), shall be final and binding on all parties to the proceedings in which that settlement is approved or the order or variation is made, as the case may require, and, except as provided in section 50, no appeal shall lie in respect of any such order or variation or approved settlement.
[5] Section 50 of the DTA provides a right of appeal to the District Court against any order made by the Tribunal in the exercise of the powers given to it under s 18(8) of that Act.
[6] Here on 7 December 2015 the Tribunal ordered Ms Menzies to pay the respondent $8,900 for services provided to her and it dismissed her counterclaim against the respondent. Ms Menzies had failed to appear at the hearing. She subsequently on more than one occasion sought re-hearing of the dispute. However, she failed to appear at those hearings as well. Then on 17 August 2017 she sought leave to appeal against the Tribunal’s decision out of time. The prescribed time for filing an appeal is 28 days from the making or giving of the subject order.1 By this time in relation to the substantive determination the appeal was approximately 19 months out of time; and in relation to the dismissal of the re-hearing the appeal was approximately eight months out of time.
[7] Under s 50 of the DTA the District Court has discretionary authority to extend the time for filing an appeal. However, in this case the District Court refused to extend time, hence this appeal.
[8] The DTA gives no right to bring a second appeal from a decision of the District Court. The absence of a second-tier appeal right coupled with the express language of s 23 is a clear indication from Parliament that there is to be one level of appeal only, namely to the District Court.
[9] In Mellow v Tsang Keane J thoroughly and helpfully analysed whether there was jurisdiction for a second-tier appeal to this Court.2 At the time, there were conflicting decisions of this Court on the topic.3 Keane J found there was no appeal to this Court from a District Court appeal against a decision of the Tribunal because s 23(1) (as it then was) of the DTA provided that the decision is final, subject to s 50. Keane J also found that to allow a further appeal under the general right of appeal the
1 Section 50(3).
2 Mellow v Tsang [2004] NZAR 537 (HC).
3 In Graham v Disputes Tribunal at New Plymouth [1997] NZAR 407 (HC) Fisher J found s 50 of the Disputes Tribunal Act excluded a second- tier appeal whereas later in Bayley Investments Trust v Salkeld [2003] NZAR 344 (HC) Salmon J found there was jurisdiction for an appeal to this Court.
District Courts Act 1947 then provided for appeals from the District Court to this Court would be inconsistent with s 23, as well as the scheme and purpose of the DTA.
Accordingly, the appeal was dismissed for want of jurisdiction:4
[23] In neither of these conflicting decisions is there any reference to s 23(1), which states that a decision of the Disputes Tribunal is ‘final’; and which concludes ‘except as provided in section 50 of this Act, no appeal shall lie in respect of any such order …’.
[24] Section 23(1) must be understood as s 5(1) of the Interpretation Act 1999 requires, ‘from its text and in the light of its purpose.’ Understood in that way, s 23(1) does more, I consider, than limit recourse by way of appeal from the Disputes Tribunal to the s 50 right. Section 23(1) states unequivocally that ‘no appeal shall lie’ except by that right, and confirms, I consider, that s 50 confers not merely a single right of appeal, but a final right.
[25] The alternative, that decisions of the Disputes Tribunal are capable of being appealed, not just under s 50, but from the District Court, and perhaps beyond this Court, cannot, I consider, be reconciled with s 23(1) itself, which deems the Tribunal’s decisions to be ‘final’. Nor does it square with the reasons why that should be so. As many cases say, the Tribunal is a forum for swift, inexpensive, fair and substantial justice, where lawyers have no place. Successive appeal rights only make sense when the forum under appeal is in a quite literal sense a court of law. That is not what the Tribunal is expected to be or can be.
[10]Similar reasoning to that given in Mellow v Tsang was applied by Wylie J in
Hopkins v New Life Upholstery Limited.5 I agree with the reasoning in those decisions.
[11] In the present case, the appeal is from a refusal to grant leave to appeal out of time rather than against substantive appellate decisions of the District Court, which were of concern in Mellow v Tsang and the earlier decisions. And since those decisions were delivered the general appeal rights from the District Court to this Court are now to be found in Part 8 of the District Court Act 2016 (DCA). However, none of this affects the view that I have reached on the question of jurisdiction.
[12] I am satisfied that s 23 of the DTA makes all decisions of the Tribunal final, save for those limited circumstances which qualify for appeal under s 50 of the DTA. Absent qualification under s 50, a decision of the Tribunal is beyond challenge, irrespective of any other legal complaint that might be made about it.
4 See Mellow v Tsang at [29].
5 Hopkins v New Life Upholstery Ltd HC Whangarei CIV 2010-488-106, 6 July 2011 at [3].
[13] Appeals are creatures of statute.6 Here, because the right of appeal is founded in the DTA the provisions of this Act frame the boundaries of the appeal right. The power to grant leave to appeal out of time is a discretionary power founded in s 50(3). Whilst Parliament has given the District Court the power to grant leave to appeal out of time, Parliament has not taken the further step of providing a right of appeal against a refusal to grant leave, which is consistent with the limits Parliament has imposed on appeals against substantive decisions of the Tribunal. The absence of specific provision to appeal against adverse decisions under s 50(3) means that the finality provision in s 23 must stand. Thus, the Judge’s refusal to extend Ms Menzies time to appeal is beyond challenge.
[14] For completeness, I note that the general right of appeal to this Court under s 124 of the DCA is precluded by express provision in another enactment that there is no right of appeal, which is exactly what s 23 of the DTA does.
[15] Ms Menzies has essentially attempted to resurrect the argument rejected in Mellow v Tsang by arguing that the refusal to extend time under s 50(3) of the DTA can be appealed as if it were an original decision of the District court exercising its civil jurisdiction, and therefore subject to general appeal under s 124 of the DCA. However, this view of the refusal to grant leave overlooks the jurisdictional source of the refusal, which emanates from s 50(3) of the DTA, and not from the District Court’s general jurisdiction. This view also subverts Parliament’s express intent and purpose to limit appeals from the Tribunal, as well as the overall scheme and purpose of the DTA.
[16] Moreover, from a technical reading of s 124 and other relevant provisions of the DCA, I am uncertain as to whether this Court would have jurisdiction to hear Ms Menzies’ claim even in the absence of s 23.
[17] Section 124(2) of the DCA provides that the general right to appeal decisions of the District Court applies to parties to proceedings within that Court. Proceedings are explicitly defined as excluding interlocutory applications.7
6 See Attorney-General v Sillem (1864) 11 ER 1200 (HL).
7 Section 2.
[18] Ms Menzies’ application to the District Court for leave to appeal out of time is an interlocutory application.8 It follows that she is not party to a proceeding in the District Court in terms of the definition laid down by the DCA. It is therefore highly questionable as to whether her attempt to engage the District Court’s general right of appeal would succeed even if were not for the findings I have already made in this regard.
[19] For support, Ms Menzies relies on decisions of this Court, including Bayley Investments Trust v Salkeld, but apart from that decision the others were decided on other bases and are therefore not helpful to her argument.9 As mentioned earlier, Bayley Investments Trust v Salkeld is the occasion where this Court entertained an appeal against a decision from the Tribunal after an appeal to the District Court was substantively heard and determined.10 Salmon J found he had jurisdiction to hear and determine the appeal under s 71A of the District Courts Act 1947. Like Keane J in Mellow v Tsang, I find that I must respectfully disagree with the reasoning in Bayley Investments Ltd v Salkeld, which in my view is based upon misinterpretation of s 50 and failure to consider s 23 of the DTA.
[20] Furthermore, once an appeal is understood to be brought to this Court under the general appeal rights that are now to be found in s 124 of the DCA, this Court must then necessarily approach the appeal on the broad basis which s 124 allows.11 When taken to its logical conclusion this would result in a broader right of appeal against the Tribunal’s decisions being available at a second tier of the appellate process, which is contrary to all examples of other appellate pathways. Typically, the scope of appeals narrows as they advance along their appellate pathways. This is another reason why I
8 See Ireland v Ireland [2017] NZHC 3115 at [3] where this Court considered that an application for leave to appeal a decision of the Family Court out of time was an interlocutory application.
9 Ms Menzies relies on Hopkins v New Life Upholstery Ltd when Wylie J rejected the existence of an appeal to this Court but did proceed to hear an application for judicial review against the same decision of the Disputes Tribunal; Ms Menzies also relies on Thomas v Morrhall [2016] NZHC 2853, [2017] NZAR 1 and Mehta v Habitat Builders Ltd [2017] NZHC 2075; however, in those cases this Court was hearing appeals against decisions of the District Court on proceedings that had been commenced in the Disputes Tribunal but which were later transferred to the District Court for hearing. Once transferred the proceedings were heard in the District Court’s original jurisdiction and not under the appellate jurisdiction given to it by s 50 of the Disputes Tribunal Act.
10 I have found no other decision to this effect.
11 It is difficult to see how s 50 of the Disputes Tribunal Act (which is silent on appeal to this Court) could be applied to read down an appeal right founded on s 124 of the District Court Act.
prefer the interpretation of ss 23 and 50 of the DTA that was taken in Mellow v Tsang, Hopkins v New Life Upholstery Ltd and Graham v Disputes Tribunal at New Plymouth.
[21] Accordingly, I am satisfied that on a plain reading of the DTA once the time for appeal has expired, unless a District Court judge can be persuaded to extend time to appeal, the Tribunal’s decision is final and therefore beyond appellate challenge.
Assessment of the merits of the appeal
[22] In the alternative and in case I am wrong on the question of jurisdiction and it is possible to bring this appeal under s 124 of the DCA I have also considered the merits of the appeal. For those purposes, it is not necessary to discuss the factual background of the Tribunal’s decision in detail. However, a brief chronology of the material events is relevant.
(a)7 December 2015: the Tribunal’s order was issued against Ms Menzies;
(b)22 December 2015: Ms Menzies filed for rehearing;
(c)20 April 2016: Ms Menzies’ application for rehearing was refused (she failed to attend the rehearing, sending an email on the same day citing poor health and attaching a medical certificate);
(d)27 May 2016: Ms Menzies filed for rehearing a second time;
(e)3 October 2016: a second rehearing was scheduled for 29 November 2016;
(f)28 November 2016: Ms Menzies requested an adjournment of the second rehearing, citing an emergency dermatological condition and stating that she may be able to provide the Tribunal with a medical certificate by noon the next day;
(g)29 November 2016: the second application for rehearing was refused;
(h)1 December 2016: Ms Menzies sent the Tribunal the aforementioned medical certificate;
(i)14 August 2017; Ms Menzies requested her case file from the Tribunal;
(j)17 August 2017: Ms Menzies filed an application to be granted leave to appeal out of time;
(k)6 December 2017; Judge Harrison dismissed the application.
Approach to appeal
[23] Section 124 of the DCA refers to a general appeal and s 127 stipulates that such appeals must be by way of re-hearing. This part of the judgment provides an alternative view that is only applicable if I have erred on the question of jurisdiction. In such a context, I do not propose to consider whether an appeal under s 124 of the DCA is to be approached as a general appeal or an appeal against the exercise of a discretion.
[24] Whether an appeal is a general appeal or an appeal against the exercise of a direction is usually influenced by an analysis of the statutory provision that enables the decision to be made, as well as other factors relating to the decision-making process.12 Clearly s 50(3) of the DTA gives the District Court discretion to decide whether to extend time for appeal. Typically, when a provision like this is subject to appeal it is approached as an appeal against the exercise of a discretion, which requires the appellate court to take a narrower view of the appeal than would be the case with a general appeal.13
[25] Here the language which Parliament has used in ss 124 and 127 of the DCA is consistent with a general right of appeal, which requires the appellate court to consider the merits of the appeal afresh. However, it is not clear to me that by enacting ss 124 and 127 of the DCA Parliament intended that all District Court appeals to this Court
12 See discussion in Financial Marketing Authority v Vivier & Company Ltd [2016] NZCA 197, [2016] 3 NZLR 70 at [42]-[43].
13 See discussion about the different approach each type of appeal requires in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].
would proceed as general appeals, thus doing away with the concept of an appeal against the exercise of a discretion for appeals from that Court.
[26] For present purposes, I intend to adopt the broader appellate standard that is taken with general appeals.14 This is because the outcome here would be the same irrespective of the approach taken to the appeal. Even on this broader approach, for the reasons set out below, I can see no basis for interfering with the decision to refuse leave to appeal out of time.
District Court decision
[27]Judge Harrison declined the appellant’s application in the following minute:
The application for leave to appeal a decision of the DT made 19 months ago is declined.
[28]It seems that no other reasons were provided by the Judge.
Appellant’s submissions
[29]Ms Menzies’ submissions are, in essence:
(a)That Judge Harrison did not take into account various delays caused by the Disputes Tribunal Registry, adjournments to the appellant’s rehearing application caused by her ill health, and the unavailability of the appellant’s full Disputes Tribunal case file;
(b)That these delays were compounded by the Disputes Tribunal posting documentation to an address in Nelson where the appellant did not live; and
(c)That Judge Harrison delivered a determination without a hearing and without reasons.
14 Austin, Nicholas & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Respondent’s submissions
[30] The respondents submit that the Judge was correct in his decision not to grant leave for the following reasons:
(a)Any appeal of the Disputes Tribunal’s decision would essentially mirror the original proceeding, which was decided over two years ago. This in turn would go against the principle of finality contemplated by the Disputes Tribunal; and
(b)Ms Menzies has not provided any grounds for appeal because none exists.
Discussion
[31] The District Court will only exercise its power to extend the 28-day period under s 50(3) if the applicant shows “good reason” for an extension to be granted.15 Factors influencing whether there is good reason for an extension may include:16
(a)Any reasons for the delay;
(b)The length of the delay;
(c)Whether the delay has been adequately explained;
(d)The likelihood of the appeal being allowed;
(e)The principle that technical barriers should not be placed in the way of unrepresented litigants; and
(f)The desirability of providing parties in the Disputes Tribunal with non- technical and efficient means of bringing proceedings to finality.
15 Elliott v Price DC Blenheim CIV-2012-006-138, 30 August 2012 at [6].
16 Park v Emm-Jay Trust DC Hamilton CIV-2004-019-1446, 17 February 2006 at [12].
[32] The sole stated reason which influenced Judge Harrison’s decision was the length of the delay. The Judge dismissed the application on the basis that it was made 19 months after the Tribunal’s determination was made.
[33] In reaching this conclusion, the Judge apparently was not convinced by any of the various reasons Ms Menzies gave as the cause of the delay in her lodging an application. I do not think it is necessary to engage in a piecemeal analysis of the adequacy of each of these reasons. I consider that the decision reached by Judge Harrison in declining the appellant’s application was correct. This is why:
(a)Irrespective of the alleged causes of the delays, the length of time between the determination of the Tribunal and Ms Menzies’ application for leave is considerable;
(b)A significant portion of the delays appears to have been caused by Ms Menzies’ own confusion and failure to communicate efficiently with the Tribunal; of note are her requests to adjourn the two Tribunal rehearings, which were lodged on the day of and the day prior to the rehearings respectively;
(c)One of the primary purposes of the Disputes Tribunal is to provide a simple and efficient mechanism of dispute resolution; to allow this case to progress would be to undermine this principle even further than has already been done; and
(d)Ms Menzies has failed to demonstrate that she would have a strong case on appeal, or that an appeal would not just mirror the original proceeding.
[34] From my examination of the material Ms Menzies has filed there is nothing that has convinced me her case would be successful on appeal. The various proceedings, communications and litigation involved in this case have been incredibly protracted, no doubt much to the frustration of all parties involved.
[35] Given the length of the delay between the Tribunal’s decision to refuse a re- hearing (on 29 November 2016) and Ms Menzies’ application for leave (17 August 2017) I do not consider the application should be granted. Furthermore, the re-hearing application was made in relation to a substantive decision on her claim that was made on 7 December 2015. In short, Ms Menzies wants to challenge an outcome that occurred almost two years before her application for leave. Regarding the lack of reasons for the refusal, I consider the length of the delay speaks for itself.
[36] Regarding Ms Menzies’ submission that Judge Harrison refused leave without a hearing, I note that Ms Menzies was informed on 31 August 2017 that her application would be heard on a without notice basis, which lends itself to a determination on the papers. Moreover, I consider this to have been an appropriate approach for the Judge to have taken.
[37] To obtain leave to appeal out of time in circumstances such as these Ms Menzies would need to show a compelling reason for the delay and a strong case on the merits; neither of which is apparent to me.
Result
[38]The appeal is dismissed.
[39] If the parties are unable to agree costs leave is reserved to them to file memoranda on costs. My preliminary view is that it is a standard type of appeal to which the usual rules apply, and which is suited to an award of scale costs.
5
4
0