O'Neill v Disputes Tribunal
[2018] NZHC 3259
•11 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2018-404-947
[2018] NZHC 3259
UNDER the New Zealand Bill of Rights Act 1990 IN THE MATTER
of an application for judicial review
BETWEEN
CHRISTOPHER JOSEPH O’NEILL
Applicant
AND
THE DISPUTES TRIBUNAL
First Respondent
DISTRICT COURT AT AUCKLAND
Second RespondentSHARRON GAY MURDOCK and JAMES LEWIS DAN
Third Respondents
Hearing: 7 December 2018 Appearances:
Applicant in person
First and Second Respondents abide (appearances excused) Third Respondents in person
Judgment:
11 December 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 11 December 2018 at 3:00 pm pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Law (Wellington) for First and Second Respondents
O’NEILL v THE DISPUTES TRIBUNAL [2018] NZHC 3259 [11 December 2018]
Introduction
[1] Mr O’Neill has twice argued before the Disputes Tribunal that Ms Murdock and Mr Dan owe him $7,985. He claims this is the value of items of personal property they failed to return to him plus the diminution in value of items returned damaged.
[2] On his first attempt, the Disputes Tribunal refused jurisdiction. Eventually, Woodhouse J facilitated an agreement between the parties and then set out the issues arising which were to be determined by the Disputes Tribunal.1
[3] The Disputes Tribunal then heard Mr O’Neill’s claim in light of the issues and dismissed it.2 The District Court upheld the Disputes Tribunal.3 Mr O’Neill now seeks judicial review of the decisions of the Disputes Tribunal and the District Court.
Background
[4] Justice Woodhouse’s record of the agreement reached by the parties, and his posing of the issues arising therefrom, are central to Mr O’Neill’s case on review. I set out the relevant passages:
[10]The agreement is as follows:
(a)Attached to this judgment as appendix 1 is a list of chattels prepared by Mr O’Neill and which was attached to his submissions to the Tribunal as exhibit PP. Mr O’Neill expressly confirmed that this is a complete list of all chattels he says he had left at the property where he had lived with Ms Murdock.
(b)Ms Murdock and Mr Dan agree that no item in appendix 1 is owned by or claimed by Ms Murdock or Mr Dan. In particular, Ms Murdock acknowledges that she makes no claim of any sort to any of the chattels in that list pursuant to the Property (Relationships) Act 1976.
(c)The first issue arises from Ms Murdock’s and Mr Dan’s advice that everything in the appendix 1 list was returned to Mr O’Neill either by truck on 27 July 2014, or at a later date in three cartons that were given by Ms Murdock to a police officer for delivery to Mr O’Neill. Mr O’Neill in turn acknowledges that there was a delivery of chattels by truck on
1 O’Neill v Disputes Tribunal [2016] NZHC 2385.
2 O’Neill v Murdock & Dan DC Auckland CIV-2014-094-1781, 1 February 2017.
3 O’Neill v Murdock & Dan [2018] NZDC 5971.
27 July 2014 and that there was a delivery of three cartons containing chattels by police at a later date. One of Mr O’Neill’s claims that he was wanting to advance in the Disputes Tribunal was that, although there were these deliveries of chattels to him, not all of the chattels in appendix 1 were delivered. The chattels that Mr O’Neill contends were not delivered are recorded in a further list prepared by him and filed as exhibit A to an affidavit sworn by Mr O’Neill on 18 August 2016 and filed in this proceeding. That list – exhibit A – is reproduced as appendix 2 to this judgment.
(d)The first issue that arises from this is: Was everything in the list of chattels which is now appendix 1 to this judgment returned either by truck on 27 July or in the three cartons by police on a later date?
(e)The second issue is: If some of the chattels were not returned, is either Ms Murdock or Mr Dan responsible for the fact that they were not returned?
(f)If the answer to the preceding issue is “yes”, what is the amount of compensation payable to Mr O’Neill, if any, by the party responsible?
(g)The next issue is: Were any items that were returned damaged either by Ms Murdock or Mr Dan?
(h)If the answer to the preceding question is “yes”: What is the amount of compensation, if any, payable by the person responsible for the damage?
(i)The parties – and for the avoidance of doubt I mean Mr O’Neill, Ms Murdock and Mr Dan – consent to these issues being put before the Disputes Tribunal for resolution and agree that the definition of the issues above is the definition of all issues to be put before the Tribunal. And appendix 2 is the complete list of chattels which Mr O’Neill contends were not returned.
[5] The Disputes Tribunal addressed and answered each of the issues posed by Woodhouse J.
[6] On the first, and key, issue: “Was everything in the list of chattels which is now appendix 1 returned either by truck on 27 July or in the three cartons by Police later?”, the Disputes Tribunal concluded:
15. Having considered what all parties have said and presented to the Tribunal at this hearing I find that Mr O’Neill has not satisfied me that it is more likely than not that the items he says were left behind where (sic) left behind and where (sic) not returned to him.
[7] On the issue: “Were any items that were returned damaged by either Ms Murdock or Mr Dan?”, the Disputes Tribunal said:
18.Mr O’Neill’s claim under this head suffers from the same problems of proof as that above.
19.There (sic) parties (sic) evidence was in conflict on this point as well. I find that there was insufficient evidence presented by Mr O’Neill to convince me that it was more likely than not that:
a.any of the damage complained of was not present when the articles were left behind in 2010, or
b.any damage was caused over the period they were not with him, or
c.any such damage if it existed was caused by Mr (sic) Murdock or Mr Dan.
20.Accordingly the answer to this question is no.
[8] In the District Court, Judge BA Gibson was cognisant of the limited basis on which appeals could be brought against decisions of a Disputes Tribunal. Essentially, he was limited to considering whether there was procedural unfairness. Judge Gibson found there was no procedural unfairness.
Discussion
[9] Mr O’Neill, in his application to this Court for judicial review, really just repeats the criticisms of the Disputes Tribunal decision he made to Judge Gibson. The judicial review jurisdiction is focused on process and not the merits of a decision. I will consider Mr O’Neill’s criticisms of the Disputes Tribunal myself bearing in mind the nature of my jurisdiction.
[10] Mr O’Neill represents himself. His (amended) statement of claim4 has the following relevant pleadings:
(v)In his order, the Tribunal Referee at his 10 claims no evidence was presented of the existence of that listed in appendix (2 exhibit (A)).
(vi)Given the ruling of Woodhouse J produced by agreement before him by all parties, I was not required to prove to the Tribunal the existence of the chattels of appendix 2 as their existence, and my sole ownership of such, had been agreed so, before a Judge of a Superior Court.
4 Filed on 28 August 2018.
(vii)In his at 10 the Tribunal Referee “overrules” a Superior Court Judge. He does not have the legal right to do so, nor ignore the edict, and agreement.
(viii)Following the directive of Woodhouse J, the starting point for the Referee was: “Were the chattels returned or not?” (not did they exist which has already been established).
(ix)In ruling the chattels did not exist he rules them not returned. As all parties and a High Court Judge accept they did exist, then the Referee has ruled in my favour under the edict of Woodhouse J.
[11] In his written submissions, Mr O’Neill largely addresses the merits of his claim. But he also emphasises the pleaded points I have just quoted.
[12] I find that Mr O’Neill’s criticism of the Disputes Tribunal’s decision is not accurate. The Disputes Tribunal did not require Mr O’Neill to prove the existence of the chattels:
9.Mr O’Neill’s evidence of what goods were not returned can be summarised as:
a.Being from his memory of what he left behind in 2010 as he noted down on the above 2 lists, which he drew up many years later when the property was returned to him.
b.He sought to confirm the veracity of his recollection and the this (sic) list by way of the fact of his swearing to its truth on many occasions since its collation in the Tribunal, the District Court and the High Court and again today before this Tribunal.
10.There was no other evidence presented to me today as to what he left behind, when he left the house they shared such as:
a.a contemporaneous note or record
b.photos of the items when he left them
c.photos of some or all of the items listed for insurance purposes or such like.
11.Ms Murdock also made no contemporaneous list of the items Mr O’Neill left behind but adamantly says that all the property Mr O’Neill left behind in 2010 was:
a.returned to him
b.and returned in the condition it was left in the house (except for normal wear and tear of being in storage for many years).
[13] The Disputes Tribunal’s decision was not that the chattels never existed but that Mr O’Neill could not prove they were not returned to him.
[14] Mr O’Neill contends there was evidence which should have caused the Disputes Tribunal to find differently. But, that goes to the merits and, as Judge Gibson recognised, the ability to interfere with a Disputes Tribunal’s decision on the merits is limited. Certainly, it is not an inquiry for me on judicial review.
[15] Mr O’Neill criticises also the Disputes Tribunal’s findings on the respective credibility of the parties. His submission is that Ms Murdock and Mr Dan should have been found to have no credibility. Hence, Mr O’Neill’s evidence should have been preferred.
[16] Again, this is not a matter of process for judicial review against the low intensity of review called for when examining a decision of a Disputes Tribunal. In any event, the issue of credibility, insofar as process is concerned, was dealt with properly:
13.Mr O’Neill also sought to convince me that Ms Murdock and/or Mr Dan were not credible witnesses due to various events which he characterised in some instances as fraudulent. He was unsuccessful in that attempt. I found them both credible witnesses as I did to a large degree Mr O’Neill. Certain recollections from all were not exact as would be normal and expected with the passing of so many years and the stress of the situation at that time as it unfolded.
14.Standing back from the matter the evidence is in direct conflict as one party says property has not been returned and the other says all it had has (sic) been.
Decision
[17] Mr O’Neill’s application for judicial review is dismissed.
Brewer J
0