Murray v The Disputes Tribunal

[2012] NZHC 2206

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-500 [2012] NZHC 2206

IN THE MATTER OF     the Disputes Tribunal Act

BETWEEN  ROBERT MURRAY Applicant

ANDTHE DISPUTES TRIBUNAL First Respondent

ANDAMI INSURANCE LTD Second Respondent

ANDSTEVEN BLOM Third Respondent

Hearing:         29 August 2012

Counsel:         Appellant in person

D Consedine for Respondent

Judgment:      30 August 2012

JUDGMENT OF MILLER J

[1]      On 22 February 2011 a motorcycle ridden by the applicant, Mr Murray, collided with a car driven by the third respondent, Mr Blom.  The bare facts as found by the referee in the Disputes Tribunal were that:

This accident occurred in February 2011 on Hornsey Road on a narrow stretch of road with cars parked along the left side of the road heading downhill  with  yellow  lines  along  the  opposite  side  of  the  road.    The applicant was driving downhill with cars parked to his left.  The respondent was  riding his  motorcycle in  the  opposite  direction heading uphill  after coming around a corner.   When the two vehicles collided, the respondent was injured and the applicant’s car was damaged on the front right hand side. The Police, who attended the accident later charged the respondent with failing to keep left.   This charge was upheld in the District Court in November. The applicant claims $7,429.66 for the loss of the car.

ROBERT MURRAY V THE DISPUTES TRIBUNAL HC WN CIV-2012-485-500 [30 August 2012]

[2]      Proceedings were brought by Mr Blom and his insurer, AMI.  In a decision dated 1 December 2011 the referee found for them, holding that Mr Murray, who was uninsured, had been negligent.  Mr Murray was ordered to pay $7,429.66 plus a valuation fee of $97.75.  He sought a rehearing, which was refused on 9 February

2012.

[3]      Mr Murray did not exercise his right of appeal to the District Court.  Rather, he has brought this application for judicial review, challenging both the original decision and the refusal to order a rehearing.

[4]      All respondents have chosen to abide the Court’s decision, but given that neither of the other respondents has played a part in this application the Tribunal has appeared through Ms Consedine to assist the Court, for which I am grateful.

The Tribunal’s decision

[5]      Proceedings were filed on 10 May 2011.  Mr Murray took objection, arguing that AMI should not be heard, objecting to the use of hearsay evidence, and requesting a transfer to the District Court.  None of these objections succeeded.  It is apparent that the evidence to which he objected included a Police Traffic Crash Report, in which the Police opined that Mr Murray caused the accident through inattention and was riding in the middle of the road after rounding the corner.  He also said that he had a counterclaim which he had not yet been able to quantify.  He asked that the case be transferred to the District Court.  That application was refused, and it appears that he was given three days in which to file his counterclaim.  He did not do so, but he did detail his losses in a statement dated 7 June 2011.

[6]      The hearing was then adjourned because Mr Murray was being prosecuted by the Police.   It is common ground that he was charged with a traffic infringement, failing to keep left, which was found proved on 2 November 2011, with no penalty being imposed. There is no reasoned decision available.

[7]      The hearing in the Tribunal then resumed on 29 November 2011.  Mr Murray filed an affidavit.  His position was that he pulled out to pass an illegally parked car

on his side of the road.  He checked first and saw no oncoming traffic.  As he went around the car he saw Mr Blom’s car and, realizing that he could not stop in time, he changed direction, aiming for a gap to the right of Mr Blom’s car.

[8]      The referee accepted Mr Blom’s evidence that he braked when he saw the motorcycle and was stationary when Mr Murray rode into him. The referee reasoned that Mr Blom’s evidence was supported by the Traffic Crash Report and the successful   prosecution,   which   had   been   proved   to   the   criminal   standard. Mr Murray’s explanation was rejected;  even if there was an illegally parked car, he had a responsibility to pass only if it was safe to do so.   He made an error of judgment by not stopping but heading for the gap.

[9]      The referee was satisfied that the damage to Mr Blom’s car resulted from the accident, and an argument that AMI could not claim where it had paid Mr Murray was rejected, the referee noting that the Disputes Tribunals Act 1988 allows an insurer to become a party, exercising its right of subrogation.

The rehearing decision

[10]     Mr Murray moved for a rehearing, contending principally that the amount claimed exceeded the agreed value of the car, that the referee exhibited bias by proceeding before Mr Murray had proved his own loss, that too much weight was given to the Traffic Crash Report, which had been compiled with no reference to him, that the referee failed to address all the evidence or misinterpreted it, and that because the incident was accidental and unforeseeable he was not liable in law.

[11]     The same referee dealt with the rehearing application.   It was held that the sum claimed had included some insured losses, and that there was no substance to the allegation of bias; Mr Murray had been given adequate time to quantify his losses.  Most of the points taken by Mr Murray were an attempt to revisit findings of fact.

[12]     The application for judicial review raises the same issues.

[13]     Disputes Tribunals are statutory bodies but they are not fertile ground for judicial review, for several reasons: their criteria for decision are the substantial merits and justice of the case;1  they enjoy a wide discretion about evidence;2  their decisions are appealable to the District Court;3  and appeals will succeed only if the appellant shows that the proceeding was conducted in a manner that was unfair and prejudicially affected the result.4     The legislature has chosen to compromise procedural and substantive protections which apply in other tribunals and courts, in the interests of access to justice for small claims.

[14]     Judicial review cannot be used as a substitute for a right of general appeal which the legislature has chosen not to confer.   As Anderson J put it in Evans v Disputes Tribunal at New Plymouth:5

It must be emphasised that this proceeding is not by way of appeal, either on fact or law, but an application for review of a Tribunal which is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities.  If a plaintiff cannot come within the limited scope of appeal provided by s 50 of the Act, the prospects of inducing this Court to intervene by way of review are slight.

[15]     That said, the Tribunal has been reviewed successfully for acting beyond its jurisdiction,6 and review may be granted for a material error of law that has resulted in a plainly unjust result.7

[16]     I turn to Mr Murray’s grounds.

1      Disputes Tribunal Act 1998, s 18(6).

2      Disputes Tribunal Act 1988, s 40.

3      Disputes Tribunal Act 1988, s 50.

4      Disputes Tribunal Act 1988, s 50(1).

5      Evans v Disputes Tribunal at New Plymouth (2000) 14 PRNZ 183 at [17].

6      Earthquake Commission v Disputes Tribunal (1996) 10 PRNZ 317.

7      DGSW v Disputes Tribunal (1999) 12 PRNZ 642 at 645; and Evans v Disputes Tribunal at New

Plymouth (2000) 14 PRNZ 183 at [23].

[17]     Mr Murray now concedes that an insurer is allowed to appear, but he alleges that the Act allows it to prove only the amount it has paid to the insured, not the total loss. This is incorrect. The applicant in the Tribunal was Mr Blom, who was entitled to prove for his loss, just as the insurer was entitled under s 32 to prove for what it had paid Mr Blom.  Section 33 contemplates the case in which the award includes a sum for which the applicant was uninsured; in that case the applicant has priority over the insurer for that sum.  Mr Murray’s real complaint is that the valuation relied upon was too high because it exceeded the sum that AMI paid Mr Blom for the car, but Mr Blom was entitled to claim for market value.

Error of substantive law

[18]     Mr  Murray  argues  that  the  referee  ignored  an  authority  which  he  cited, Mayfair v Pears,8 the effect of which is that losses ought to have lain where they fell. This point is misconceived.  That case dealt with liability in negligence for damage to a building following fire in a car parked there unlawfully.  The cause of the fire was never proved.  The judgment of the Court of Appeal was a policy decision about whether liability should extend so far.  What attracts Mr Murray to the case is the observation that one would not expect car owners to insure against such risk. Manifestly that proposition has no application to this case.   Mr Murray could and

ought to have insured his own vehicle for third party losses.

Procedural impropriety

[19]     Mr Murray alleges that the referee acted improperly by allowing him only three days to file his counterclaim.  However, s 44 of the Act allows the Tribunal to adopt such procedure as it thinks suited to the ends of justice, and in this case three days was long enough having regard to the notice Mr Murray had had of the hearing. In any event the point is academic; Mr Murray having been found negligent, he was

never going to recover his loss.

8      Mayfair Ltd v Pears [1987] 1 NZLR 459 (CA).

[20]     Mr Murray next contends that the referee ought not to have relied on the Traffic Crash Report, which Mr Murray had no opportunity to comment on.   His concern is that the report was prepared without significant input from him, as he was in hospital at the time.  However, the report was in evidence from the outset, when Mr Murray objected to its hearsay nature.  The referee nonetheless received it, as the Act permits, and Mr Murray had ample opportunity to respond to it before the hearing resumed in November. That is all he could expect.

Allowing the insurer to conduct Mr Blom’s case

[21]     Mr Murray argues that Mr Blom must control the conduct of the case under s 31 of the Act, but the insurer was allowed to do so and Mr Blom appeared as a mere witness.   In argument before me Mr Murray conceded that Mr Blom was entitled to control the conduct of his case, but not obliged to do so.

Pace of the hearing

[22]     Mr Murray feels that the hearing proceeded too quickly for him.  The insurer and the referee moved quickly through the case.   When he said that he could not keep up he was told by Mr Blom, the referee agreeing, that he ought to have got insurance.  He complains that procedures ought to be informal and it is the Tribunal’s duty to correct power imbalances.

[23]     The reported comment is discourteous if it was intended to justify haste. However, the insurer had a right to present its case as it saw fit, and the referee was entitled to conduct the hearing informally and efficiently.  This claim cannot meet the standard required for judicial review.

Evidential issues

[24]     Mr Murray raises a variety of evidential issues: notably, the referee did not comment on his sworn affidavit but accepted the unsworn account of Mr Blom, and the decision was irrational because Mr Murray could not have kept further left given the presence of a parked car.   Much of this material, which he supported by an

affidavit  filed  in  this  Court,  was  an  attempt  to  challenge  the  referee’s  factual findings.  As to the point about sworn evidence, s 40(1) provides that evidence need not be given on oath and there is no principle that sworn evidence must receive more weight.   It is implicit in the Act’s requirement for reasons that a referee should identify the substantive considerations on which the decision rests, but reasons need not address  every point  and  they need  descend  only to  such detail  as  the case requires.    In  this  case  the  decision  turned  on  factual  considerations  that  were identified and adequately justified the referee’s conclusions.

Apparent bias.

[25]     Finally, Mr Murray asserts apparent bias in that the same referee dealt with the rehearing application.  There is nothing in this point.  Contrary to his submission, this is not a case of a decisionmaker hearing an appeal from her own decision.  Only rarely are a Judge’s previous rulings in a given case capable of establishing apparent bias.9

Decision

[26]     The application for review is dismissed. There will be no order as to costs.

Miller J

Solicitors:

Crown Law, Wellington for Respondent

9      Muir v Commissioner of Inland Revenue [2007] 2 NZLR 495 (CA); and Jessop v R [2007] NZSC 96.