Rafiee v Daruwalla

[2023] NZHC 1554

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV2023-404-471

[2023] NZHC 1554

BETWEEN

MAHBOOBEH RAFIEE

Appellant

AND

ZENOBIA DARUWALLA

First Respondent

AND

AA INSURANCE LIMITED

Second Respondent

Hearing:

23 May 2023

Appearances:

Further Submissions completed:

The Appellant in person

J E McLennan for First and Second Respondents

26 May 2023

Judgment:

21 June 2023

JUDGMENT OF POWELL J

[Jurisdiction for Appeal]

This judgment was delivered by me on 21 June 2023 at 4.00 pm pursuant to

R 11.5 of the High Court Rules

…………………..

Registrar/Deputy Registrar

Solicitors:

M Rafiee – Self Represented

Holmden Horrocks Solicitors – Auckland

MAHBOOBEH RAFIEE v ZENOBIA DARUWALLA [2023] NZHC 1554 [21 June 2023]

[1]    Mahboobeh Rafiee seeks to appeal, in this Court, a decision of Judge D J Clark.1 In his decision Judge Clark dismissed an appeal by Ms Rafiee against a decision of the Disputes Tribunal that had found her liable in the sum of $2,787.65 for vehicular repairs following a traffic accident.

[2]    Ms Rafiee contends that the Disputes Tribunal did not consider all relevant evidence at the time it made its decision, and when she appealed she was not notified of the hearing date in the District Court which meant she did not appear before Judge Clark at the hearing of her appeal.

[3]    At first call of Ms Rafiee’s appeal in this Court Mr McLennan, as counsel for the respondents, raised as a preliminary issue that there was no jurisdiction for this Court to entertain a second appeal, regardless of its merits. As a result, the respondents requested that the appeal be dismissed, and costs awarded on a category 1A basis.

[4]    Following discussion with Mr McLennan and Ms  Rafiee  I therefore gave Ms Rafiee the opportunity to file submissions in response whereupon it was agreed I would determine the issue on the papers. My determination of the jurisdiction issue now follows.

Appeals of Disputes Tribunal Decisions

[5]    As Mr McLennan pointed out the right to appeal a Disputes Tribunal decision is restricted. Section 23 of the Disputes Tribunal Act 1988 provides:

23 Decisions of Tribunal to be final

Every agreed settlement approved by the Tribunal under section 18(3), and every order made by the Tribunal under section 18(8) or section 46(2) or section 47(3)(b), and every variation of a term of an agreed settlement under section 47(3)(a), shall be final and binding on all parties to the proceedings in which that settlement is approved or the order or variation is made, as the case may require, and, except as provided in section 50, no appeal shall lie in respect of any such order or variation or approved settlement. (Emphasis added).

1      Rafiee v Daruwalla [2022] NZDC 10653.

[6]    The exception to the finality of Disputes Tribunal decisions, s 50, provides for only a limited right of appeal as detailed in s 50(1):

(1)Any party to proceedings before the Tribunal may appeal to the District Court against an order made by the Tribunal under section 18(8) or section 46(2) or section 47(3)(b), or against the approval by the Tribunal of an agreed settlement under section 18(3), or against the variation of a term of an agreed settlement under section 47(3)(a), 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.

[7]    This was the provision that allowed the Disputes Tribunal decision in this case to be appealed to the District Court. No further right of appeal is provided for under the Disputes Tribunal Act. A general right of appeal from the District Court to the High Court is contained in s 124 of the District Courts Act 2016, but this does not apply if another Act:

(a)expressly confers a right of appeal; or

(b)expressly provides that there is no right of appeal.

[8]    As Mr McLennan has submitted the only right of appeal provided for is from the Disputes Tribunal to the District Court in terms of s 50(1), otherwise the decision of the District Court is final. As Keane J noted in Mellow v Tsang:2

Understood in that way, [s 23] does more, I consider, than limit recourse by way of appeal from the Disputes Tribunal to the s 50 right. Section 23(1) states unequivocally that “no appeal shall lie” except by that right, and confirms, I consider, that s 50 confers not merely a single right of appeal but a final right.3

2      Mellow v Tsang (2004) 17 PRNZ 343 (HC), at [24]. This decision has been subsequently in Menzies v North Shore Laser and Skin Care Centre Ltd [2018] NZHC 1035, [2018] NZAR 902 and MacSmith’s Tyres Ltd v George Stock and Company Ltd [2022] NZHC 438.

3      In the decision Keane J referred to s 23(1) and this was clearly a typographical error. There was and is no s 23(1). Section 23 of the Disputes Tribunal Act 1988 (previously, Disputes Tribunals Act 1988) in force at that time was substantially similar to the current s 23 and provided as follows: “Every agreed settlement approved by a Tribunal under section 18(3) of this Act, and every order made by a Tribunal under section 18(8) or section 46(2) or section 47(3)(b) of this Act, and every variation of a term of an agreed settlement under section 47(3)(a) of this Act, shall be final and binding on all parties to the proceedings in which that settlement is approved or the order or variation is made, as the case may require, and, except as provided in section 50 of this Act, no

[9]    Ms Rafiee made no submissions in answer to these points. Instead the focus of her submissions was on the injustice she feels with regard to the process in both the Disputes Tribunal and in the District Court. While I understand her concerns and have some sympathy for her position, I agree with Mr McLennan that given the effect of ss 23 and 50(1) is there is no jurisdiction to entertain an appeal of Judge Clark’s decision in the High Court. As a result, Ms Rafiee’s appeal must be dismissed for want of jurisdiction.

Decision

[10]The appeal is dismissed.

[11]   As the respondents have succeeded in striking out the appeal I agree that costs on a 1A basis are appropriate. Mr McLennan will have until 30 June 2023 to file and serve a calculation of the costs claimed. Ms Rafiee will then have until 7 July 2023 to respond on any issues with regard to the amount of costs claimed. I will then determine the issue on the papers.

Powell J

appeal shall lie in respect of any such order or variation or approved settlement.” Section 23 was amended by the District Court Act 2016.