Patterson v Disputes Tribunal

[2016] NZHC 1173

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON  REGISTRY

CIV-2015-485-1056 [2016] NZHC 1173

IN THE MATTER OF

Judicature Amendment Act of 1972

BETWEEN

DONALD PATTERSON Plaintiff

AND

DISPUTES TRIBUNAL First Defendant

BEST BUILD CONSTRUCTION LIMITED

Second Defendant

Hearing:	4 April 2016
Counsel:	Plaintiff in person K G Stone and V McCall for First Defendant No appearance for Second Defendant
Judgment	1 June 2016

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

4.45 pm on the 1st day of June 2016

PATTERSON v DISPUTES TRIBUNAL [2016] NZHC 1173 [1 June 2016]

[1]      Dr Patterson seeks judicially to review a decision of the Disputes Tribunal (the Tribunal) in relation to a dispute between himself and Best Build Construction Ltd (Best Build).1   He unsuccessfully appealed the decision to the District Court.2

[2]      Although he has other complaints  arising from  his association with Best Build, Dr Patterson’s central position is that Best Build have charged him for six “variations” to a building contract which were not agreed in writing by him (as required by the contract) and which were, in any event, included in the original contract price.  He says that the evidence, and his submissions, on that point were ignored by the Tribunal.

[3]      Dr Patterson advised the Court that his concern now is not so much with the merits of his position regarding Best Build but with the process that was followed in the Tribunal and, subsequently, in the District Court when it heard his appeal from the Tribunal’s decision.  Although I had earlier suggested that Dr Patterson might wish to join the District Court as a party, he did not do so.  However in light of what follows, I grant Dr Patterson leave to amend his claim further in that respect.

[4]      The Tribunal abides the decision of the Court and Best Build has taken no steps.   At the last call of the matter (having been provided with a copy of the Tribunal’s record by Crown counsel) I indicated to Dr Patterson that I would attempt to resolve matters on the papers.

[5]      Although the absence of opposition suggests that the Court’s task should be a relatively easy one, the fact that Dr Patterson is self-represented has led to certain difficulties in terms of the content of his claim and its appropriate resolution.  I am conscious of the Court’s obligations to assist those who are self-represented and what follows is my best attempt to find some way forward for him.

[6]      As I explained to Dr Patterson, this Court on review is concerned principally with matters of process; I cannot engage with the merits of his dispute with Best

1      Best Build Construction Ltd v Patterson DC CIV-2014-096-000007, 18 August 2014.

2      Section 50 of the Disputes Tribunals Act 1988 confers only a limited right of appeal from Tribunal decisions.  Appeals may only be brought on the grounds that the proceedings were conducted by the Referee in a manner that was unfair to the appellant and which prejudicially affected the result.

Build.  In any event, that no longer appears to be his principal concern.  In my view there are two issues of process that appear genuinely to arise on the facts as I understand them.

[7]      The first such issue arises as a result of the following circumstances.

[8]      The hearing in the Tribunal appears to have proceeded on something of a stop-start basis.   The Tribunal adjourned the hearing three times to allow further evidence to be filed. As I understand it, Best Build failed to comply with some or all of the Tribunal’s directions in that respect, or at least to do so in a timely way.  On the occasion of the last of these three adjournments (10 June 2014) the Tribunal directed that Best Build was to file further evidence by 1 July 2014 and to serve it on Dr Patterson.    The  Tribunal’s  adjournment  order  recorded  that  the  next  hearing would be on 12 August 2014.  Dr Patterson indicated that he would not able to attend a hearing on that date and, indeed, neither he nor Best Build did attend.   The Tribunal issued its final decision on 18 August 2014.

[9]      It seems that Best Build filed its further evidence two days late, on 3 July

2014.  The difficulty arises because Dr Patterson was not served with that evidence. He says that if he had received it he would have wished to respond.  He assumed that no further evidence had in fact been filed.  In short, therefore, the Tribunal’s final decision was, accordingly, made without Dr Patterson being afforded an opportunity to be heard on matters which (he says) were germane to the decision.

[10]     Dr Patterson unsuccessfully sought a review by way of rehearing of the final decision by the Tribunal.  Then he appealed.  The referee provided a report to the District Court as she was obliged to do by s 51 of the Act.  The report essentially confirms the matters I have set out above but says the referee was not aware of the fact that Dr Patterson had not received the further evidence when she made her decision.  There is no reason to doubt that.  It seems to me that a natural justice issue nonetheless arises.

[11]     Judge  Tompkins  dismissed  the  appeal.    His  decision  was  expressed  as follows:3

On the basis of the original decision dated 18/8/14, and the Referee’s Report,

& the oral submissions made at today’s hearing by Dr Patterson, I find no

procedural error sufficient to grant the appeal.  Decision dictated.

[12]     Accordingly the second process issue that arises in Dr Patterson’s case relates

to the absence of reasons for that decision.

[13]     In Lewis v Wilson & Horton Ltd, Elias CJ (speaking for the Court of Appeal) referred to the three important policy reasons why the giving of reasons by Judges is desirable.4   They are indisputable and I do not repeat them here. That said, however, the  Chief  Justice  acknowledged  that  there  was  (as  yet)  no  “inflexible  rule  of universal application” in New Zealand that reasons must, in all cases, be given.5

[14]     More recently, in Xu v District Court at Manukau, Priestley J said:6

[16]     It  is  fundamental  law,  particularly  in  the  context  of  judicial decisions, that reasons should be given. (Lewis v Wilson & Horton).

[17]     Mr Deliu, in his submissions, also stressed the fact he had not been given the opportunity to amplify his submissions despite his request. I put lesser weight on this criticism given that the memoranda filed by both counsel, which one can only assume were read by a District Court Judge, were comprehensive. It is unlikely that much could be added.

[18] However, the failure to give reasons is clearly a reviewable matter. This Court understands, and indeed has personal experience of the constant tensions which arise between case management requirements, the administration of busy criminal lists, and the need to reach considered decisions (albeit briefly) on all cases before it. Hypothetically, for instance, if this judicial review application had not been made, and if in some shape or form the trial had proceeded next week and there had been a conviction, an appellate court would have no indication whatsoever as to what reasons there were for not granting the adjournment application in the previous week.

3      Patterson v Best Build Construction Limited DC Hutt Valley CIV 2014-096-000717, 22 June

2015.

4      Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [74] – [87].

5 At [83].

6      Xu v District Court Manukau [2013] NZHC 739. In that case, an adjournment decision had been conveyed to counsel by an email from the Registry stating “Good afternoon counsel, please be advised that Judge [sic] has declined the application to adjourn the above trial.”

[15]     Without further substantive analysis His Honour quashed the adjournment decision and referred it back to the District Court.   I followed a similar course in PJM v Family Court at Auckland.7

[16]     In the present case I acknowledge that s 53 of the Disputes Tribunal Act 1988 permits a District Court Judge sitting on an appeal under s 50 to determine his or her own procedure.  But that does not appear to me to obviate the need to give reasons. Indeed  where the  sole  ground  of  appeal  is  that  a breach  of  natural  justice has occurred,  reasons  (however  brief)  might  be  thought  to  be  particularly  required. Given my finding that in the present case Dr Patterson had raised (and the referee had, in her report, addressed) a natural justice concern about the hearing in the Tribunal that was at least arguable, I consider that the Judge was required to explain either:

(a)       why he did not consider what had occurred to be unfair; and/or

(b)      why any such unfairness did not prejudicially affect the result of the

Tribunal proceedings.

[17]     The latter issue would appear to require the Judge to assess the relevance of the evidence provided by Best Build on 3 July 2014 and whether Dr Patterson’s response to it might have affected the outcome before the Tribunal.

[18]     In the circumstances outlined above I make the following orders:

(a)       leave is granted to Dr Patterson to join the District Court as a party; (b)        the decision of the District Court dated 22 June 2015 is quashed; and

7      PJM v Family Court at Auckland [2013] NZHC 1143.

(c)      the matter is to be referred back to the District Court  in order that it can reconsider Dr Patterson’s appeal, in light of what I have said in this judgment.

“Rebecca Ellis J”

Solicitors:           Crown Law, Wellington, for First Defendant

Copy to:            Dr Patterson, Wellington. Email:  [email protected]