O'Neill v Disputes Tribunal

[2016] NZHC 2385

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-326 [2016] NZHC 2385

UNDER

the New Zealand Bill of Rights Act

IN THE MATTER

of an application for judicial review

BETWEEN

CHRISTOPHER JOHN OʼNEILL
Plaintiff

AND

DISPUTES TRIBUNAL First Defendant

DISTRICT COURT AT AUCKLAND Second Defendant

SHARRON GAY MURDOCK and

JAMES LEWIS DAN Third Defendants

Hearing:	6 October 2016
Appearances:	Plaintiff in person First and Second Defendants abiding the Court decision Third Defendants in person
Judgment:	6 October 2016

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Parties: The Plaintiff

Mr P Gunn and Mr M McKillop, Crown Law, Wellington for the First and Second Defendants

The Third Defendants

OʼNEILL v DISPUTES TRIBUNAL [2016] NZHC 2385 [6 October 2016]

[1]      Mr O’Neill has brought an application for judicial review of two decisions:

(a)      A decision of the Disputes Tribunal declining a claim by Mr O’Neill against the third defendants, Ms Murdock and Mr Dan, on the grounds that the Tribunal lacked jurisdiction.1

(b)      A decision of Judge G M Harrison in the District Court dismissing an

appeal by Mr O’Neill against the Tribunal’s decision.2

[2]      Mr O’Neill contends that the decision on jurisdiction was wrong in law.

[3]      The first and second defendants filed a memorandum seeking leave to be excused further attendance having earlier filed an appearance abiding the decision on the  substantive  application  but  reserving  rights  to  be  heard  on  costs  and  other matters.  Ms Murdock and Mr Dan have appeared this morning.

The claim and the decision in the Tribunal

[4]      The Disputes Tribunal’s summary of Mr O’Neill’s claim and the Tribunal’s

decision on jurisdiction, were succinct and are conveniently reproduced verbatim:

[1]       Mr O’Neill says he ended a 30 year marriage with Ms Murdock in

2010.  He is suing her now in 2014 over personal property he says was left at the property where he lived with Ms Murdock prior to 2010.   Mr O’Neill says he was wrongfully trespassed from the property in 2010 which he says he has an ownership interest in.  He says he could not recover the property due to the trespass and now that it has been delivered to him in 2014 he has found that the property is damaged and some is missing.  He has provided a lengthy list of items, some of which are identified in photographs.  There is little in the way of evidence of the value of the items or the value of the damage; and some items he says are of sentimental value.

[2]       There are issues relevant to the determination of this claim that are beyond the jurisdiction or expertise of this Tribunal to deal with.  Was Mr O’Neill a joint owner of the property and therefore a) wrongly trespassed, and b) entitled to store his property there?  Was the property he is claiming all his property, or is Ms Murdock entitled to claim a part interest?  What are the obligations of a partner, following the ending of the relationship, to care for personal property?

1      O’Neill v Murdock Disputes Tribunal Auckland CIV-2014-094-1781, 3 December 2014.

2      O’Neill v Murdock [2015] NZDC 6568.

[3]      These are questions which the Family Court under the Property (Relationships) Act 1976 has the jurisdiction and expertise to answer.  The Disputes Tribunal is not the proper forum to deal with these issues.

[5]      The scope of the claim was further recorded in the decision of the District Court on appeal.  The Judge recorded that Mr O’Neill’s claim was for “$7,985 plus ongoing” for the chattels he alleged had been lost or damaged by actions of Ms Murdock and Mr Dan.  Judge Harrison also reproduced particulars provided by Mr O’Neill which were as follows:

Respondent Murdock and I, were in a de facto marriage for 30 years, such resulted in a jointly owned property, vehicles and finances, etc, which still awaits settlement in the courts.

Additional to the above was my personal property, i.e. that Murdock does

not count “joint property”, and also the tools of my trade (carpentry).

The District Court decision

[6]      The   Judge   cited   the   definition   of   family   chattels   in   the   Property (Relationships) Act 1976 (the Act) and ss 4 and 8 of the Act.   He then addressed specific contentions on appeal of Mr O’Neill and held that none demonstrated that the Act  did  not  apply,  or would  not  require consideration  having  regard to  the apparent scope of Mr O’Neill’s claim. The Judge concluded:

[16]      Mr O’Neill indicated that relationship property issues remained to be finalised between him and Ms Murdock.  His claim in respect of the missing items may therefore become part of the resolution of all outstanding relationship issues between the parties.

[17]     For these reasons, the appeal must be dismissed and the lack of jurisdiction of the Disputes Tribunal confirmed.

Evaluation and decision

[7]      In  terms  of  the  way  in  which  the  scope  of  Mr  O’Neill’s  claim  was characterised by the Tribunal, and in consequence by Judge Harrison, I am not persuaded that the Tribunal was necessarily wrong in its approach to jurisdiction. The broad background to the issues, directed to chattels claimed by Mr O’Neill, was a de facto relationship between Mr O’Neill and Ms Murdock.   As the Tribunal recorded, the chattels in question had been left at the property in which the couple had been living.  There are more refined issues that might be addressed to indicate

that there were possible issues arising under the Act.  One that I should mention is Mr O’Neill’s submission that some of the chattels he was claiming were his tools of trade and that, as a consequence of the definition of family chattels in the Act, those could not be subject to the Act.  Mr O’Neill’s submission is correct as a matter of law, and I note that this provision is one that was expressly referred to by Judge Harrison.  But at this general level of analysis a claim by one person that particular chattels are not family chattels does not remove the dispute from the broad ambit of the Act.

[8]      Notwithstanding those general observations, having discussed the real issues with Mr O’Neill on the one hand, and Ms Murdock and Mr Dan on the other, it seemed to me that more careful definition of the real issues between them would mean that the Tribunal did in fact have jurisdiction.  Whether there was an error by the Tribunal in not properly identifying the issues, or whether the way in which the matter had been presented to the Tribunal led to the decision on jurisdiction, does not now have to be resolved.  The parties have reached an agreement in the course of detailed discussions with me, and in which I was concerned to ensure that the issues were defined with sufficient clarity to remove any shadow of the Property (Relationships) Act.

[9]      What was agreed between the parties, I am now about to dictate in their presence for the purpose of this judgment.  I interpolate here an observation which was not dictated in the presence of the parties, but adverted to when I had finished dictating the judgment.  There was some confusion about documents that Mr O’Neill had produced, being lists of chattels, as to what each list represented.   This was clarified at the end of the hearing and I advised the parties that I would insert the necessary detail in the record of what they agreed.  This necessarily has resulted in some  amendment  of  what  I  initially  dictated,  but  I  am  fully  satisfied  that  the additions record what was expressly agreed in the subsequent clarification.

[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 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.

[11]     Given the parties’ agreement, as recorded, it does seem apparent that the Tribunal did have jurisdiction and that it now does have jurisdiction.  Accordingly, there are the following orders. These are directed solely to the Disputes Tribunal and not to the District Court.  The application before me is in substance not a challenge to the decision of the District Court on the appeal but to the original decision of the Tribunal. The orders directed to the Tribunal are:

(a)      The decision of the Tribunal made on 3 December 2014, declining jurisdiction, is set aside.

(b)Mr O’Neill’s claim against Ms Murdock and Mr Dan is to be reheard by  the  Tribunal,  but  strictly  within  the  limits  of  the  agreement between the parties, and the precise definition of issues, recorded above.

Costs

[12]     Mr O’Neill applied for an order for costs against either the District Court or the Tribunal or both.  I am not persuaded at all that there should be an order for costs against either party and that application is dismissed.

[13]     There is no question of an order for costs against Ms Murdock and Mr Dan.

Woodhouse J