Ngata v Cotter

[2024] NZHC 2106

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2024-416-011

[2024] NZHC 2106

BETWEEN

HELEN NGATA

Appellant

AND

ISAAC COTTER

Respondent

Teleconference:	29 July 2024
Appearances:	Appellant in person Respondent in person
Judgment:	31 July 2024

JUDGMENT OF GRAU J

[Appeal against dismissal of appeal for want of prosecution]

[1]                 In November 2023, the Disputes Tribunal in Gisborne dismissed Ms Ngata’s claim against Mr Cotter in trespass and nuisance. Her claim for consequential loss of rent was also dismissed.1

[2]                 In December 2023, Ms Ngata filed an application to the Disputes Tribunal for a rehearing. A rehearing was refused.2

[3]                 Ms Ngata appealed to the District Court. An appeals conference was set down for 6 May 2024. Mr Cotter appeared but Ms Ngata did not. The District Court Judge dismissed Ms Ngata’s appeal for want of prosecution.3

1      Ngata v Cotter Disputes Tribunal Gisborne CIV-2023-016-000134, 27 November 2023 (Decision of Referee C Price).

2      Ngata v Cotter Disputes Tribunal Gisborne CIV-2023-016-000134, 28 February 2024 (Decision of Referee C Price).

3      Ngata v Cotter [2024] NZDC 9999.

NGATA v COTTER [2024] NZHC 2106 [31 July 2024]

[4]                 Ms Ngata has appealed to this Court by notice of appeal dated 4 June 2024. Ms Ngata says she did not appear because she was not notified of the hearing. She has provided a letter sent to her by the Court that is dated 2 April 2024 but was not franked until 23 April, a delay of three weeks. Ms Ngata points out that, given the holiday on 25 April and transfers between DX Mail and New Zealand Post mail systems, it was impossible for her to have received the notice in time. She also says she had given her email address as her address for service, and every prior communication from the Disputes Tribunal or District Court in this matter was by email, except for this important first hearing notice.

[5]                 A telephone conference was convened yesterday, and I heard from Ms Ngata and from Mr Cotter. Mr Cotter does not accept that Ms Ngata was not served. He pointed out that he was served via email.

[6]                 After hearing from both parties and examining the copy of the envelope that Ms Ngata provided, I accept that she would not have received this notice in time. I have also accepted her explanation that she was not sent the notice by email either, despite that she appears to have provided an email address for service.

[7]                 An appeal may be dismissed for want of prosecution, and I have some sympathy for Mr Cotter’s position when he did attend the appeals conference at some inconvenience to himself. However, it is my view that Ms Ngata’s access to justice should not be curtailed due to a failure to appear, which appears to be due to no fault of her own.

[8]                 Although the jurisdiction for a second appeal to this Court against a decision of the District Court is not entirely clear (there being decisions of this Court going either way),4 this Court has a general supervisory jurisdiction over the proceedings of inferior courts and tribunals, exercisable in circumstances including where there has been a denial of natural justice.5 While the procedure for giving effect to that supervisory jurisdiction will usually be by way of an application for judicial review,

4      See, for example, Bayley Investments Trust v Salkeld [2003] NZAR 344 (HC); Menzies v North Shore Laser and Skin Care Centre Ltd [2018] NZHC 1035, [2018] NZAR 902; and Mellow v Tsang [2004] NZAR 537 (HC).

5      Attorney-General v District Court at Christchurch [2017] NZHC 1873, [2018] DCR 230 at [49].

there is simply no point in making Ms Ngata replead her case, to which Mr Cotter would be more inconvenienced by having to respond to, when the most just, speedy, and inexpensive alternative is to remit the decision back to the District Court.

Result

[9]                 On that basis, I remit the matter back to the District Court so that Ms Ngata’s appeal may continue to progress as intended prior to the decision of Judge Cathcart.

[10]             As I explained to Ms Ngata, she will need to take care to ensure that she proceeds to advance her appeal to hearing. The District Court should ensure it serves any notices of hearing on Ms Ngata, both by email and via mail.

Grau J