Patterson v District Court, Hutt Valley
[2020] NZHC 259
•25 February 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-727
[2020] NZHC 259
IN THE MATTER OF the Judicature Amendment Act 1972 BETWEEN
DONALD PATTERSON
Plaintiff
AND
DISTRICT COURT, HUTT VALLEY
First Respondent
DISPUTES TRIBUNAL, HUTT VALLEY
Second RespondentBEST BUILD CONSTRUCTION LIMITED
Third Respondent
Hearing: 10 February 2020 Appearances:
Dr Donald Patterson in person
P J Gunn for the first and second respondents No appearance by the third respondent
Judgment:
25 February 2020
JUDGMENT OF COOKE J
[1] In these proceedings Dr Patterson challenges certain decisions made by the Disputes Tribunal and the District Court in relation to a determination of the Tribunal about disputes with his builder, the third respondent. The matter has some history as it has already been before the Court in earlier judicial review proceedings. By judgment dated 1 June 2016 the Court found in Dr Patterson’s favour, quashing an earlier decision of the District Court dated 22 June 2015, and referred the matter back to the District Court.1
1 Patterson v Disputes Tribunal [2016] NZHC 1173, [2016] NZAR 676.
PATTERSON v DISTRICT COURT, HUTT VALLEY [2020] NZHC 259 [25 February 2020]
[2] When the District Court reconsidered its decision in accordance with this Court’s judgment it referred the matter back to the Tribunal. The Tribunal then conducted a further hearing and issued a new decision on 14 December 2017.2 Dr Patterson unsuccessfully appealed that decision to the District Court.3 He has now filed these further proceedings seeking judicial review of the District Court and Disputes Tribunal decisions.
Procedure followed
[3] The proceedings were called in the Chambers List on 10 February 2020. The first and second respondents had filed appearances reserving rights, and otherwise seeking leave to be excused. Mr Gunn appeared for those parties. Best Build Construction Ltd has played no role in the proceedings.
[4] As outlined in my minute of 10 February 2020, at the callover Dr Patterson advised that he wanted his substantive claim argued before me and that this would only take 10 minutes to do so. Mr Gunn for the first and second respondents was inclined to contend that any argument properly encompassing the matters addressed in the statement of claim may take half a day, even putting to one side that any submissions that he advanced would not go into the merits of the underlying dispute. Mr Gunn emphasised the potential costs implications for Dr Patterson if he continued with the claims. I determined that it would be better to give Dr Patterson the opportunity to advance his submissions on the substantive claims in the short period he sought, which could be supplemented by further written submissions by the first and second respondents and then by Dr Patterson in reply. I asked that those written submissions encompass the question of the jurisdiction of the High Court to grant judicial review of decisions of the Disputes Tribunal. I decided to proceed in this way partly because of the cost implications that Mr Gunn had mentioned, and given Dr Patterson was seeking his day in Court. I did not understand Mr Gunn to object.
[5] Dr Patterson then presented oral submissions in support of his substantive claims to me. They took a little longer than the 10 minutes that he had estimated but
2 Best Build Construction Limited v Patterson DC Hutt Valley CIV-2014-096-000007, 14 December 2017.
3 Patterson v Best Build Construction Limited [2018] NZDC 18932.
I nevertheless understood the essence of what he was contending. Dr Patterson passed up the decisions, and one or two supporting documents without objection in that process.
[6] Both the first and second respondents and Dr Patterson subsequently provided submissions in writing.
Dispute
[7] At its heart is a dispute about the amount Dr Patterson has paid his builders. That dispute initially went to the Disputes Tribunal in 2014. Dr Patterson then unsuccessfully appealed to the District Court. In the previous successful judicial review claim, Ellis J held that he had been deprived his rights of natural justice in that process and the decision of the District Court on appeal was set aside. Ultimately that led to the Tribunal rehearing the claim.
[8] One of Dr Patterson’s key complaints is that, contrary to the Tribunal’s original findings, particular items which had been subject to a claim for variations by the builder had in fact been included in the original contract price. Dr Patterson argued that he was therefore being charged twice for these items.
[9] In the reconsideration decision the Referee accepted that four items treated as variations had all been included in the original scope of work dated August 2011. Dr Patterson points out that this was inconsistent with the first decision. The Referee also accepted that it was “somewhat misleading” for the builder to describe these items as variations. But the referee ultimately concluded that the evidence did not suggest that Dr Patterson had been charged twice for these items. Ultimately the Referee reduced the amount found to be awarded in the builder’s favour. Given that Dr Patterson had paid what had previously been ordered, an order was made that the builder refund $827.10 to Dr Patterson. Dr Patterson is critical of the findings which he says make no sense.
[10] Dr Patterson is also critical of the fact that the counter-claim that he wanted to advance was not reconsidered. This appears to be because of the terms upon which the matter remitted to the District Court and the Tribunal. In the further decision of
the District Court on appeal, the Judge found that the Referee was right to proceed in this way, and that, in any event, Dr Patterson was not prevented from presenting evidence at the rehearing.4 Dr Patterson says that the District Court was wrong about this, and that he was again being deprived of a fair rehearing as required by this Court’s decision.
[11]In his decision on the appeal the District Court Judge concluded:
[27] There is no doubt that the rehearing cured the procedural unfairness which led to it being granted. Dr Patterson was given a full opportunity to respond to the evidence provided by Best Build on 3 July 2014. The Referee had to consider how his response affected her original decision. I am satisfied that she diligently undertook that task and reached her decision taking into account the whole of Dr Patterson’s response at the December 2017 hearing.
…
[30] Standing back from the detail of the numerous specific items dealt with by the Referee in her decision of December 2017, I am quite unable to discern any unfairness in the manner in which the proceeding was conducted. Dr Patterson was undoubtedly given the opportunity which he had not previously had to respond to the last tranche of Best Build’s evidence. In her subsequent decision, the Referee dealt with his response in considerable detail, making findings in respect of the items raised. Whether in doing so she made any error of fact or law, I am unable to say. If she did, there is no remedy on appeal. The appeal must be dismissed.
[12] Dr Patterson is also critical of the District Court adopting an holistic approach standing back from the detail. He says that if the detail of his claims were properly assessed as they should have been it can be seen that the Tribunal’s analysis is flawed. Similarly in his written submissions Dr Patterson invited the Court to consider the facts of the case in detail, and he is critical of the first and second respondents’ failure to do so in their submissions.
Judicial review of Disputes Tribunal
[13] I accept that the Court can grant judicial review of decisions of the Disputes Tribunal. In Wright v Wright Toogood J described the Court’s role in the following way:5
4 Patterson v Best Build Construction Ltd, above n 3, at [25]–[27].
5 Wright v Wright [2017] NZHC 3053.
[11] Judicial review of proceedings of the Disputes Tribunal is not lightly entertained. The Tribunal is intended to provide a low-level and relatively informal forum within which parties to disputes over issues or sums of money which do not justify a full hearing before a court may have their claims dealt with expeditiously and inexpensively. The informal nature of the proceeding is emphasised by the fact that non-lawyers may be appointed as referees and lawyers are excluded from appearing before the Tribunal. For those reasons, the Court hesitates to exercise its discretion to conduct judicial review and hold the Tribunal to the same standards that might be expected of a court.
[14] This approach is consistent with general principle. At its heart judicial review involves the Court exercising a supervisory jurisdiction to ensure that powers are exercised in accordance with law. Usually those powers will be contained in statute or delegated legislation, where the limits of the power are identified as a matter of statutory interpretation. But the legal limits of discretionary powers may also arise from other sources, such as common law requirements. An example is the rules of natural justice, albeit in the present case such requirements are also to be found in the statute. Most judicial review involves the Court assessing whether a decision is made in accordance with the express and implied requirements of the empowering instrument, both in terms of the substantive decision and the procedures followed to reach it. Here the primary function of the Court would be to ensure that the decisions were made in accordance with the provisions of the Disputes Tribunal Act 1988 (the Act).
[15] The first and second respondents’ written submissions referred to the view that judicial review concerns the procedure by which decisions are reached, rather than the substance of those decisions.6 Whilst I accept that judicial review can be described in this way, doing so can be misleading. In ensuring that a decision is made lawfully there can be substantive as well as procedural requirements.7 The substantive requirements of the law can also be closely related to the ultimate outcome of a decision such that, as a matter of law, the decision-maker cannot make the decision, or was obliged to make a different decision.8 The extent of the decision-making
6 With reliance on Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8]. See also Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at 397.
7 The main grounds of review, such as improper purpose, taking into account irrelevant considerations, failure to take into account relevant considerations and error of law all tend to turn on questions of interpretation.
8 To take but one example, the Supreme Court’s findings in Hawke’s Bay Regional Investment Company Ltd v Forest and Bird Protection Society of New Zealand Inc [2017] NZSC 106, [2017] 1 NZLR 1041 meant that the Minister of Conservation was not lawfully able to reclassify certain
freedom given by particular powers ultimately depends on how the statute, or other instrument bestows them. In some cases the legal limits can be quite restrictive, but in others they are not.
[16] Whilst some commentators, and some decisions refer to the intensity of judicial review, or variable standard review, these can also be misleading concepts.9 In every judicial review case the Court’s role is to review whether a decision is made in accordance with law. In all cases it does so in the same dispassionate way. The intensity with which it performs that task does not change. But the extent to which powers are substantively or procedurally controlled by legal limits varies considerably. It is the nature and extent of the legal controls that vary between cases, not the intensity with which the Court assesses compliance with them.
[17] Here we are dealing with the Disputes Tribunal which is given powers that are not tightly controlled by legal requirements. In terms of its substantive function s 18(6) of the Act provides:
18 Functions of Tribunal
…
(6) The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
…
[18] The Act also provides for an untechnical procedure. The right to be represented at hearings is limited by s 38, the proceedings are held in private under s 39, what the Tribunal may receive by way of evidence is broad under s 40, and in terms of procedure generally the Act provides:
44 Procedure where no provision made
Subject to this Act and to any rules made under this Act and any practice notes issued under section 6C(1)(ha), the Tribunal shall adopt such procedure as it thinks best suited to the ends of justice.
conservation land, and then swap it to enable the Ruataniwha Dam Scheme to proceed. It did not proceed as a result.
9 See Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers Ltd, Wellington, 2014) at [22.8.4].
[19] Under s 23 decisions of the Tribunal are to be final and binding subject to rights of appeal under s 50. The grounds of appeal set out in this section are limited to the following:
50 Appeals
(1)Any party to proceedings before the Tribunal may appeal to the District Court … on the grounds that—
(a)the proceedings were conducted by the Referee; or
(b)an inquiry was carried out by an Investigator—
in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.
…
[20] There is no further right of appeal to this Court. By way of summary the statute accordingly establishes a body that seeks to do justice in relation to small claims without legal formalism, or other legal requirements. One of the key reasons for this is to attempt to minimise the cost of resolving disputes for the parties. Part of that involves limited rights of appeal to the Courts.
[21] A number of decisions have nevertheless recognised that judicial review of the Tribunal (or the District Court on appeal) may still be available, but only with some degree of qualification. In particular:
(a)In Kim v Butterfield Hammond J questioned whether judicial review was available at all.10
(b)In NZI Insurance New Zealand Ltd v Auckland District Court Thorpe J indicated that such review was limited to when the Tribunal acted outside its jurisdiction.11
10 Kim v Butterfield (1994) 7 PRNZ 461 at 463.
11 NZI Insurance New Zealand Ltd v Auckland District Court [1993] 3 NZLR 453 at 464 (HC) approved by Greig J in Hertz New Zealand Ltd v Disputes Tribunal (1994) 8 PRNZ 145 (HC) at 150.
(c)In Evans v Disputes Tribunal at New Plymouth Anderson J held that judicial review was not to be encouraged.12
(d)In McFarland v Disputes Tribunal MacKenzie J said such review was limited and that a compelling case was required.13
(e)And as indicated above, in Wright v Wright Toogood J said it was not lightly entertained.14
[22] Notwithstanding the different language used to describe the limited nature of judicial review of the Tribunal, each of these cases is ultimately making the same substantive point. The Court’s role in judicial review is confined to ensuring a decision is made lawfully. Given the jurisdiction established by Parliament, the approach the Tribunal is obliged to follow, and the limited right of appeal to the District Court the Tribunal is given a wide latitude to address cases. The requirements for lawful decision-making, enforceable by way of judicial review, are not stringent.
[23] This is reflected in the cases where judicial review of the Tribunal has succeeded. There are cases where the High Court has concluded that the Tribunal did not have jurisdiction: in Air New Zealand Limited v Disputes Tribunal the category of compensation involved was excluded by other statutory provisions;15 in Earthquake Commission v Disputes Tribunal the Tribunal did not have jurisdiction to award statutory compensation;16 in Southern Cross Building Society v Disputes Tribunal the amounts in issue exceeded the statutory limit;17 and in Graham v Disputes Tribunal the Tribunal had no jurisdiction because it had transferred the proceedings to the District Court.18 There are then cases of a failure to follow a fair procedure in breach of the requirements of the Act: in Moeke v Drinkwater the applicant had not appeared at the hearing before the Tribunal because of illness but an application for rehearing
12 Evans v Disputes Tribunal at New Plymouth (2000) 14 PRNZ 183 (HC) at 184. See also his earlier decision in Director-General of Social Welfare v The Disputes Tribunal (1999) 12 PRNZ 642 (HC) emphasising that judicial review is a discretionary remedy.
13 McFarland v Disputes Tribunal [2013] NZHC 2885 at [9].
14 Wright v Wright, above n 5, at [11].
15 Air New Zealand Limited v Disputes Tribunal [2016] NZHC 393, [2016] 2 NZLR 713.
16 Earthquake Commission v Disputes Tribunal (1996) 10 PRNZ 316 (HC).
17 Southern Cross Building Society v Disputes Tribunal HC Auckland, M1685-SW99, 13 September 2001.
18 Graham v Disputes Tribunal New Plymouth, (1997) 10 PRNZ 546.
was declined;19 in Waitoto Developments v Disputes Tribunal there were a series of procedural errors including a failure to consider a counterclaim and the breaking the of separate claims to bring them within jurisdiction in an unfair way;20 in Double Eight Limited v Disputes Tribunal at Manukau the Court held that the Tribunal had followed an unfair and unreasonable approach;21 and similarly in Dr Patterson’s earlier case before this Court the Tribunal had proceeded unfairly, and in breach of the principles of natural justice.22 Those cases involve a failure to comply with the requirements set out in the Act.23 In all of these cases the Tribunal has failed to act legally.
Application to the present case
[24] In the present case the points Dr Patterson advances do not reach the point of demonstrating that the Tribunal or District Court acted inconsistently with the Act, or otherwise unlawfully.
[25] Dr Patterson argues that the District Court was wrong to adopt a holistic approach rather than going into the detail of his claim on appeal. But given the nature of the right of appeal established by s 50 of the Act, that is the approach that the District Court was obliged to follow. Section 50 focuses on the fairness of the manner that the enquiry by the Referee was undertaken, and any prejudicial effect. It was not appropriate for an appeal to the District Court to involve a rearguing of the detailed matters concerning the building dispute that had been in issue. As Fogarty J held in Shepherd v The Disputes Tribunal:24
[37] … The goal of [the Act] is to provide for low cost speedy and final resolution of small disputes. To achieve that end Parliament was not interested in providing appeals on the merits of decisions.
[38] That may result in what might be described as rough justice from time to time. That has to be balanced against the overall goal of the Act to enable persons who could not possibly afford the very expensive litigation costs in the District and High Courts, the opportunity of taking claims before referees and getting justice. …
19 Moeke v Drinkwater (1991) 5 PRNZ 28 (HC).
20 Waitoto Developments v Disputes Tribunal HC Whangarei, CIV-2007-48819, 15 August 2007.
21 Double Eight Limited v Disputes Tribunal at Manukau [2014] NZHC 1862.
22 Patterson v Disputes Tribunal, above n 1.
23 Such errors might also be required to be corrected by the District Court under appeal under s 50.
24 Shepherd v The Disputes Tribunal [2004] NZAR 319 (HC).
[26] For the same reasons Dr Patterson’s other complaints should also be dismissed. He argues the Referee was quite wrong to find that the amounts claimed were duly payable notwithstanding recognition of her error in relation to the items included as variations. But that is to reopen the factual dispute that arose for final resolution before the Tribunal. That is not appropriate either on appeal, or in a judicial review challenge. In terms of the counterclaim, to the extent that the counterclaim included Dr Patterson’s claims about the quality of the building work it was not subject to the rehearing ordered by the Court, and to the extent that it was relevant to the claim the District Court found that Dr Patterson was able to make his arguments before the Tribunal. I am not satisfied that either the Tribunal or District Court acted inconsistently with the requirements of the Act in reaching these conclusions.
[27] In terms of the other claims advanced in Dr Patterson’s statement of claim, including any claims for compensation (or a procedure for compensation), there is no basis to do so in a judicial review claim, and no basis to advance any other claim.
[28]In his written submissions Dr Patterson says:
I asked the Honourable Justice Cooke and the Crown to examine the facts of this case and determine if the decision-maker was mistaken about the facts, if relevant factors were ignored or if the rules of Natural Justice were not followed.
[29] The Court’s primary function is to ensure that the decision was made in accordance with the law, however. A breach of the rules of natural justice could potentially do so. But I am not satisfied that there is any such breach. It seems to me that Dr Patterson’s real complaint is not that the Tribunal failed to hear him on particular matters. Rather he complains that the Tribunal made a wrong decision after it did so.
Conclusion
[30] Dr Patterson complains that he has been treated unjustly. He emphasised that his primary reason for bringing the further challenge was to redress that situation. But considering the merits of his underlying claims is not the role of this Court in judicial review. This may be one of the cases that involves the “rough justice” referred to by Fogarty J. I cannot reach a conclusion about that because it is not this Court’s role to
reconsider the disputes. I accept that the unfortunate history of this case, including the previous successful judicial review, may demonstrate that this particular claim has not been well handled. Nevertheless the further judicial review challenge must be dismissed.
[31] The proceedings are dismissed accordingly. In the circumstances there will be no award of costs.
Cooke J
Solicitors:
Crown Solicitors, Wellington
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