Reekie v District Court at Auckland
[2015] NZHC 2045
•28 August 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-2342 [2015] NZHC 2045
BETWEEN NICHOLAS R A REEKIE
Applicant
AND
DISTRICT COURT AT AUCKLAND & ANOR
Respondents
Hearing: 18 May 2015 Appearances:
Applicant in person
MF McLelland QC and V Kemp for Second RespondentJudgment:
28 August 2015
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 28 August 2015 at
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
REEKIE v DISTRICT COURT [2015] NZHC 2045 [28 August 2015]
Table of Contents Paragraph
Number
Introduction [1] The central issue [3] Factual background [7]
The report [8]
Steps taken prior to the hearing of the Disputes
Tribunal
[14]
The conduct of the hearing [23] Decision of the Disputes Tribunal [24] Dr Duff’s appeal to the District Court [28] Decision of District Court [31] The outcome of the appeal [37]
Issues [39]
Judicial review principles [41]
Did Judge Harrison make an error of law in coming to the conclusion that the Tribunal proceedings were conducted in a procedurally unfair manner and that the result of the proceedings was prejudicially affected?
[44]
Mr Reekie’s submissions [44] Dr Duff’s response [46] Discussion [47] The first limb of s 50(1) – procedural unfairness [57]
The second limb of s 50(1) – prejudicial effect on the result
[60]
Conclusion [62]
Was it unreasonable for Judge Harrison to conclude that the decision to conduct the hearing in the absence of Dr Duff was procedurally unfair?
Did the Judge err in law by failing to give weight to s 42(1) of the Act, which concerns a referee’s power to decide a case on the evidence where a party’s case is not before the Tribunal?
Did Judge Harrison err in deciding to transfer the proceedings to the District Court?
[63] [76]
[79]
Summary of conclusions and disposition [84]
Costs [86]
Introduction
[1] The Disputes Tribunals are established by the Disputes Tribunals Act 1988 (the Act) as divisions of the District Courts1 which are intended to provide a low- level, informal forum for the resolution of disputes in contract, quasi-contract and tort where the sum in issue does not exceed $15,000.2 The members of the Tribunal are “referees” who are appointed because they are considered to be capable, by reason of their personal attributes, knowledge, and experience, of performing the functions of a referee.3 They are not required to be qualified lawyers and, except in very limited circumstances, the parties to proceedings before a Tribunal are not entitled to be represented by a barrister and solicitor or experienced advocate.4
[2] Any party to proceedings before a Tribunal may appeal to a District Court against an order made by the Tribunal on the limited grounds that the proceedings were conducted by the referee in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.5
The central issue
[3] The central issue in this judicial review proceeding is the extent to which a District Court Judge, hearing an appeal from a decision of a Disputes Tribunal referee under s 50 of the Act, may come to a different view from that of the referee on factual determinations related to whether the Tribunal’s proceedings were conducted fairly.
[4] It arises from a claim by the plaintiff, Mr Nicholas Reekie, against Kilpan & Associates (Kilpan), a group practice of psychiatrists, psychologists and counsellors, and a psychiatrist contracted by Kilpan, Dr Mhairi Duff, to recover fees totalling
$6,549.61 which had been paid for a psychiatric report.
1 Disputes Tribunals Act 1988, s 4.
2 Section 10(1).
3 Section 7(2)(a).
4 Section 38.
5 Section 50(1).
[5] In the course of the proceedings before the Disputes Tribunal, the referee refused to grant Dr Duff an adjournment of a scheduled hearing and determined Mr Reekie’s claim in her absence. The referee made a decision which included findings unfavourable to Dr Duff and an order that she must refund the fees paid to her for the report. Dr Duff appealed to the District Court. Allowing the appeal on the grounds that the proceedings were conducted by the referee in a manner that was
unfair to Dr Duff and that prejudicially affected the outcome,6 Judge Gary Harrison
held that the referee had made factual errors in refusing to grant the adjournment.7
[6] Mr Reekie has applied for judicial review of Judge Harrison’s decision on the
grounds:
(a) The Judge made an error of law in coming to the conclusion that the Tribunal proceedings were conducted in a procedurally unfair manner and that the result of the proceedings was prejudicially affected.
(b)It was unreasonable for Judge Harrison to conclude that the decision to conduct the hearing in the absence of Dr Duff was procedurally unfair.
(c) The Judge erred in law by failing to give weight to s 42(1) of the Act, which concerns a referee’s power to decide a case on the evidence where a party’s case is not before the Tribunal?
(d) The Judge erred in deciding to transfer proceedings to the District
Court.
Factual background
[7] Mr Reekie is presently serving a sentence of preventive detention with a minimum term of 25 years for a series of violent sexual offences. In December
2009, Mr Reekie’s agent, Ms Wood, asked Kilpan to provide a psychiatric report on
Mr Reekie (the report) for use in a proceeding he had brought against the
6 The only available grounds for an appeal: see Disputes Tribunals Act 1988, s 50(1).
7 Duff v Reekie DC Auckland CIV 2013-004-1776, 26 May 2014.
Department of Corrections for unlawful detention and for being subjected to inhumane treatment and conditions while imprisoned.8
The report
[8] In January 2010, Kilpan commissioned Dr Duff to prepare the report. In February 2010, Dr Duff sought further information from Ms Wood, who in turn agreed to contact Mr Reekie, to obtain a clearer understanding of the report’s purpose. Information filtered back to Dr Duff sporadically. No confirmation of the brief was received until 18 May 2010 when Ms Wood sent an email to Kilpan’s practice manager providing much of the clarification sought. The practice manager replied, but Dr Duff was only copied into the correspondence sent by the practice manager and did not see the brief. Given that the practice manager’s reply focussed on administrative matters, Dr Duff says she believed, mistakenly (she later discovered), that the whole chain of correspondence had no bearing on the scope of Mr Reekie’s brief.
[9] On 2 June 2010, Dr Duff conducted a three-hour interview with Mr Reekie at Auckland Prison, during which she informed him that she would prepare an independent report outlining her professional opinion on the relevant issues and that any issues of fact would be corrected. She said she would not revise her conclusions to suit what Mr Reekie wanted to hear. Mr Reekie indicated that he understood these conditions. Further documents were sent to Kilpan on 4 July 2010. Dr Duff finished her report on 2 August 2010.
[10] Dr Duff received an email from Mr Reekie and Ms Wood on 17 August 2010 which raised several issues concerning the report. Dr Duff says that it was around this time that she became aware that the email correspondence of 18 May 2010, which she had not previously seen, also contained a number of clarifications about
the scope of Mr Reekie’s brief.
8 See Reekie v Chief Executive Officer of the Department of Corrections [2012] NZHC 1867, in which Wylie J found that certain aspects of Mr Reekie’s treatment during imprisonment had been in breach of his rights under the Bill of Rights Act 1990. Justice Wylie, however, did not award Mr Reekie compensation.
[11] Mr Lipanovic, the CEO of Kilpan, and Dr Duff agreed that Dr Duff would prepare an amended report, and that the amended report would be peer reviewed by a consultant. It was agreed between Dr Duff and Ms Wood that the amended report would be provided to Mr Reekie by 10 September 2010.
[12] The amended report was completed on 5 September 2010. The peer reviewer made a number of comments on the report, many of which were incorporated into the final report. Ms Duff posted the amended report to Ms Wood on 9 September
2010.
[13] Mr Reekie expressed several concerns about the content of the amended report shortly after receiving it and demanded a refund from Kilpan of the fees paid for the report. Dr Duff moved on to a role in the public sector in October or November 2010 around the time Mr Reekie made his complaints. Kilpan kept Dr Duff informed of on-going discussions over Mr Reekie’s concerns.
Steps taken prior to the hearing of the Disputes Tribunal
[14] On 4 June 2012, Mr Reekie lodged a formal complaint with the New Zealand Psychologists Board. The Board treated the complaint as having been made against Mr Lipanovic. It advised Mr Reekie that any complaint about Dr Duff ought to be referred to the Medical Council of New Zealand (the Council). The Council received a formal complaint from Mr Reekie on 2 October 2012. The Council considered that no further action was necessary. In a letter to Ms Wood and Mr Reekie dated 15 February 2013, the Council said:
[The Council’s complaints triage team] noted that while there may be confusion over the lack of the clarity of the instructions provided and Dr Duff not initially seeing the questions that she was asked to respond to, she did answer the questions when she was able to and her report is sensible, clinically sound and internally consistent.
[15] In October 2011, prior to filing a formal complaint with the Council, Mr Reekie lodged a claim in the Disputes Tribunal against Mr Lipanovic and Dr Duff in which he sought a refund of the report fee, compensation for consequential losses and costs.
[16] Dr Duff says she first became aware of the Disputes Tribunal claim against her on either 3 or 4 September 2013. It is her evidence that she became aware of the claim upon receiving a forwarded email that had been sent to the Department of Corrections stating that notices sent to the address for Dr Duff provided by Mr Reekie had been returned and that a new service address was required for Dr Duff. On 4 September 2013, Dr Duff contacted the case manager to provide her contact details and a service address. The case manager advised Dr Duff that a copy of Mr Reekie’s claim and a bundle of documents would be sent to Dr Duff and noted that the hearing was scheduled for 25 September 2013.
[17] Mr Reekie says that Dr Duff was aware of the claim well before this date.
[18] On 12 September 2013, Dr Duff received the claim and Mr Reekie’s bundle of related documents. The bundle consisted of 57 documents running to 142 pages in total. It was accompanied by a note from the Tribunal directing that the parties were to submit any further evidence immediately.
[19] Dr Duff emailed the case manager on 15 September 2013 advising that she would not be able to attend the proposed hearing date, which clashed with a scheduled meeting with the Ministry of Health. She also indicated that she would have difficulty responding to Mr Reekie’s sizeable bundle of documents in time.
[20] Counsel for Dr Duff wrote to the Tribunal on 18 September 2013 formally requesting an adjournment and providing alternative dates on which Dr Duff could attend a hearing. It transpired that Mr Lipanovic had also sought an adjournment, on
16 September 2013. His request was based on the fact that he was not scheduled to be in Auckland on the day of the hearing and did not have enough time to review the material provided by Mr Reekie.
[21] At around 1:30 pm on 24 September 2013, the day before the hearing, the case manager advised Dr Duff that her request for an adjournment had been declined by the referee. At around 3:30 pm that day, Dr Duff’s counsel emailed the Tribunal urgently requesting reasons for the referee’s decision.
[22] At around 9:00 am on the morning of the hearing, the case manager advised Dr Duff ’s counsel that the referee had indicated that he would address his reasons for refusing the adjournment at the hearing. Dr Duff ’s counsel provided evidence to the Tribunal and requested that the matter be adjourned part-heard following the hearing of Mr Reekie’s case.
The conduct of the hearing
[23] The hearing of Mr Reekie’s case commenced at 9:15 am in the absence of both Dr Duff and Mr Lipanovic. The Tribunal issued its decision the following day, ordering both Dr Duff and Mr Lipanovic to refund the report fee to Mr Reekie.
Decision of the Disputes Tribunal
[24] In his decision, the referee said:
[7] I have read the first report produced by Dr Duff in August 2010 and I agree with Mr Reekie’s submission that this report was not produced with reasonable care and skill and was not fit for presenting to the High Court. This finding is founded on the following:
(a) Dr Duff knew from the outset the purpose of the report was to comment on and support the allegations in Mr Reekie’s statement of claim. Dr Duff was provided a copy of what I understand was a very lengthy statement of claim.
(b) The statement of claim included the allegations summarized at
paragraph 3 of Justice Wylie’s decision on Mr Reekie’s claim dated
30 July 2012. Briefly, that was that Mr Reekie was unlawfully detained and subject to unlawful treatment by the Corrections
Department and was seeking damages for the detrimental effect
these actions had on him.
(c) There is little discussion in the report of the allegations by Mr Reekie. There is no analysis of the issue of detrimental effect on Mr Reekie arising from the conduct alleged. There is no express opinion as to whether a claim of detrimental effect might be established or not.
(d) Dr Duff submitted a statement in which she explained the difficulties she had in producing the report (including the volume of material she had to consider, the level of cooperation from Mr Reekie himself, and the time constraints). While I accept the report presented difficulties, I do not accept these are sufficient reasons for having produced a report which entirely fails to address the issues for which the report has been commissioned. I also do not accept
these factors can excuse the production of an inadequate report, when the appropriate response should have been to advise her client at an early stage that for whatever reason she would not be able to complete the task satisfactorily.
[8] I have read the second report produced in September 2010 and I do not consider this amended report met the above requirements any better than the first. There is simply no discussion or analysis of the issues at stake in Mr Reekie’s proceeding. The report attempts to deal with the short fall apparently by recounting a lot of Mr Reekie’s history in a disjointed and non-chronological fashion and then concludes with the somewhat pithy observation that “There is no clear evidence to support or refute these allegations within the documentation provided.” There does not appear to have been any genuine attempt in my view to provide a considered analysis of the various detrimental effects Mr Reekie was alleging to have suffered as a result of the conduct alleged in his claim.
[9] Dr Duff and Mr Lipanovic had two chances to produce a report that meet [sic] the legal requirements of the Consumer Guarantees Act. It should have been clear to both that this had not been done and that Mr Reekie was entitled to his money back as of September 2010.
[25] The referee, however, rejected Mr Reekie’s claim for consequential loss
relating to his unsuccessful proceeding. As to this, the referee said:
[12] In terms of evidence Mr Reekie has two difficulties:
(a) I do not have a report done in the way Mr Reekie says it should have been. I am not a psychiatrist and I cannot say whether an adequate report would support Mr Reekie or not; and
(b) Mr Reelie [sic] has not provided the full section of Justice Wylie’s decision where he discusses his finding on detriment. I cannot speculate as to whether there were further compelling reasons why his Honour would have declined to find there was detriment even in the light of a favourable report.
[26] The referee held, therefore, that the report breached the warranties in ss 28 and 29 of the Consumer Guarantees Act. He found that Mr Lipanovic was responsible for the refund as he was the named party to the contract. He held that Dr Duff was jointly responsible as the service provider under the provisions of the Consumer Guarantees Act. The referee awarded Mr Reekie $6,549.61, which included $854.30 worth of interest of five per cent per annum from the time the money was owed in September 2010.
[27] Finally, the referee commented on why the hearing proceeded without
Mr Lipanovic and Dr Duff. He explained:
[16] Mr Reekie filed this claim in October 2011. The Tribunal is intended to be a cost effective and timely avenue to justice. Mr Reekie is in prison. This and the fact that it was necessary to hold a jurisdictional hearing have delayed the matter being heard. The respondents have also previously requested and been granted adjournments.
[17] The Tribunal received a letter from Mr Lipanovic on 16
September 2013 stating that he was not scheduled to be in Auckland on
September 25 and did not consider that 7 days to consider new evidence was sufficient. On 18 September the Tribunal received an email from Dr Duff’s lawyer stating that she had received relevant information on 12 September, was scheduled to be in a meeting the day of the hearing, and requesting an adjournment. The case manager forwarded the requests to Mr Reekie for comment. This referee did not sit on the 19th or 20th so the requests could not be presented until Monday 23 September. I received the requests on Tuesday 24 September and asked the case manager to communicate that the requests for adjournment were denied. The requests did not present sufficient cause to adjourn the hearing.
[18] In considering adjournment requests the Tribunal must strike a balance between the interests of the parties to have the matter dealt with in a timely manner and consideration for other parties, who may need time to prepare, may be grossly inconvenienced by a hearing time, or in some cases unable to make a hearing.
[19] In my view this was not a case of two respondents who could not, with reasonable efforts, make the hearing time. It was a case of two respondents who had simply not scheduled attendance at the hearing into or above their other commitments. Dr Duff was sent a notice for the hearing and if this could not be done, she needed to notify the Tribunal immediately with an explanation why not.
[20] The Tribunal will frequently accommodate parties who are scheduled to be overseas, at exams, or at medical appointments on a first occasion the request is made. When second or third adjournment requests are made the imperative to have the matter dealt with acquires greater importance and the Tribunal is less inclined to accommodate schedule conflicts. This is at least the second time the respondents have sought an adjournment.
[21] I do not accept the information provided on 12 September was of a sufficiently novel or substantial nature that it required more time to prepare a response. This claim has been outstanding for some time. I am satisfied that Mr Reekie made his objections to the two reports quite clear as early as his communications in September and October of 2010. The respondents have had more than ample time to review the claim, ask questions of Mr Reekie if necessary, and get the information they need. There is unfortunately, a theme of conduct of the respondents of failing or refusing to confront the issues Mr Reekie raised with the reports.
[22] For the reasons stated here I did not consider it was fair to Mr Reekie or appropriate in terms of the goals of the Tribunal to adjourn the hearing again. It is regrettable the denial was not communicated until the day before the hearing, but the request was made late and a party is not
entitled to assume that because a request has been made, that it will be granted. The assumption is the opposite.
Dr Duff ’s appeal to the District Court
[28] On 22 October 2013, Dr Duff appealed to the District Court against the
Disputes Tribunal’s decision. There were three grounds of appeal:
(a) that Dr Duff had not been notified of the claim until a short time, and for the first time, prior to the hearing and that, as a consequence, she was wrongly refused an adjournment;
(b)that the Disputes Tribunal referee erred in stating that Dr Duff had received adjournments on previous occasions; and
(c) that the referee did not have jurisdiction to find that there was a breach of ss 28 and 29 of the Consumer Guarantees Act.
[29] On 11 November 2013, the referee issued an appeal report under s 51(1) of the Act in which he indicated that there was nothing in the notice of appeal which would cause him to change his decision. The appeal report reiterated the referee’s reasons for not granting an adjournment, which included these statements:
(a) A notice was sent to both Dr Duff and Mr Lipanovic on 19 June 2013 advising them that the substantive hearing would be held on 16 July
2013.
(b) An adjournment request to delay the hearing was granted when
Mr Lipanovic indicated that he was scheduled to see patients on
16 July 2013 and that he had checked with Dr Duff’s clinic which told
him that she would be away until the end of July.
(c) Dr Duff and Mr Lipanovic were advised by email and post on
18 August 2013 that the hearing was going to be held on 4 September. Mr Lipanovic immediately replied to the Tribunal which stated that he
was “not in Auckland that week” and he would not “travel 6 hours to
attend the hearing”.
(d)On 4 September the registrar of the Tribunal emailed and posted both respondents notice that the hearing was rescheduled to
25 September 2013. Both parties were also sent copies of the documents provided by Mr Reekie. On 16 September Mr Lipanovic wrote to the Tribunal stating that he was not scheduled to be in Auckland on 25 September 2013 and did not consider the 7 days to consider the evidence to be sufficient. Dr Duff’s lawyer emailed the Tribunal on 18 September saying that Dr Duff had only received the relevant information on 12 September, would be in a meeting that day and requested an adjournment.
[30] The referee said:
I believe it was fair under the circumstances to deny the requests for adjournment. Both respondents had had ample opportunity to prepare for the hearing and to arrange their schedules around the hearing time. Both respondents made decisions not to prepare and not to arrange to be present. There is nothing in the notice of appeal that would cause me to change my decisions.
Decision of District Court
[31] In his judgment of 26 May 2014 allowing Dr Duff’s appeal,9 Judge Harrison found that the email dated 3 September 2013 from Amy Bell, the case officer, to Robert Beaton of the Corrections Department was crucial to resolving the issue as to whether an adjournment should be granted. In the email Ms Bell said:
A big bundle of documents has been submitted by the applicant which I have only received this morning, I note copies have not been sent to the respondents for their records. This will not allow the parties enough time to read through and prepare a defence to the submissions prior to the hearing.
[32] And:
A new address for the respondent Mhairi Duff is also required. The notices sent to the address for Ms Duff provided by the applicant have been
9 Duff v Reekie, above n 7.
returned. I have not received confirmation from Ms Duff that she has received my email. Please advise an updated address as soon as possible. Correspondence will then be sent via post and email.
[33] Judge Harrison accepted Dr Duff ’s evidence that the first time she had found out about the hearing was when she contacted the case officer on 4 September 2013. The Judge found, after having set out the relevant events between 4 September and
26 September 2013, that the refusal of the Disputes Tribunal Referee to grant Dr Duff an adjournment was procedurally unfair. I set out the relevant parts of his reasoning:
[16] In its decision the Tribunal Referee set out his reasons for not granting the adjournment. In summary these were:
(i) The respondents have previously requested and been granted adjournments (at para [16]). This statement is not correct. As will be clear from the email of Ms Bell, Dr Duff had not been previously notified of the claim and had never previously requested nor been granted an adjournment.
(ii) This is at least the second time the respondents have sought an adjournment (at para [20]). This is not correct again in respect of Dr Duff. It seems the Referee rejected Dr Duff’s first request for an adjournment on the misunderstanding that she had previously sought and been granted adjournments.
(iii) The respondents have had more than ample time to review the claim and ask questions of Mr Reekie if necessary and get the information they need (at para [21]). Again, this is not correct as Dr Duff did not become aware of the claim until 4 September and did not receive the relevant bundle of documents until 12 September. I note from the Disputes Tribunal Regulations that the minimum period of notice that must be given to the parties appearing before the Tribunal is
10 days. At para [19] the Referee says:
Dr Duff was sent a notice for the rehearing on 4 September 2013. This should have been adequate time to arrange her schedule around the hearing and if this could not be done, she needed to notify the Tribunal immediately with an explanation why not.
This appears to overlook that Dr Duff did not receive the significant bundle of documents until 12 days prior to the hearing. On receipt she did immediately notify the Tribunal with an explanation which was rejected.
(iv) The Referee also stated:
There is unfortunately a theme in the conduct of the respondents of failing or refusing to confront the issues Mr Reekie raised with the reports.
Again, this is not correct as Dr Duff was not involved in any of the issues raised by him subsequent to her second or supplementary report being provided in September 2010. There was nothing before the Referee to indicate that she had failed or refused to confront the issues.
[17] It seems clear that the Referee mistakenly proceeded on the basis that notices sent to Mr Lipanovic were also being sent to and received by Dr Duff when that was not the correct position. He appears to have treated each respondent to the claim as having the same interest and assumed that Dr Duff had received all notifications when, clearly, that is not so. On this ground alone I am satisfied that there has been procedural unfairness by the Referee declining the application by Dr Duff for an adjournment to enable her to prepare a proper response to Mr Reekie’s claim.
[34] Judge Harrison then considered whether the Disputes Tribunal actually had jurisdiction to decide the claim. He noted that an earlier hearing took place at the Disputes Tribunal on 11 June 2013, which had been called by the Registrar, to consider whether some or all of Mr Reekie’s claim was within the jurisdiction of the Tribunal to hear. The referee decided at that hearing that the claim under the Consumer Guarantees Act 1993 and the Fair Trading Act 1986 was within the Tribunal’s jurisdiction.
[35] Commenting on whether the Tribunal has jurisdiction under the Consumer
Guarantees Act, Judge Harrison said:
[20] While ss 28 and 29 of the Act require a service to be carried out with reasonable care and skill, and that service supplied will be reasonably fit for any particular purpose, there is no reference in the Act to considerations applying to an expert witness preparing a report that is to be presented to a Court in evidence. The Referee’s findings do not refer to the fact that Dr Duff’s overriding duty as an independent and objective expert is to the Court. She complied with that overriding duty but in doing so prepared a report and expressed an opinion of which Mr Reekie did not agree. Mr Reekie confirmed that the report was not submitted to Justice Wylie in the High Court hearing.
[21] In these circumstances it is distinctly arguable that the Consumer Guarantees Act has no application to the reports prepared by Dr Duff, and it seems the Referee has misunderstood Dr Duff’s role as an expert witness and has found her liable despite the fact that he acknowledged that he was not a psychiatrist, and he heard no expert evidence as to whether reports met the appropriate standard. To the contrary, there was before the Disputes Tribunal a decision of the Medical Council on a complaint by Mr Reekie in respect of the reports that were before the Disputes Tribunal which described the original report as being “sensible, clinically sound and internally consistent”. There is no indication that the Referee took this evidence into account. As part of her defence of the claim Dr Duff would wish to call
independent expert evidence to address the standard and appropriateness of her report.
[22] This leads to the possibility that the Disputes Tribunals Act itself deprives the Tribunal of jurisdiction to hear the claim.
[36] Judge Harrison then noted that the finding of the Medical Council that Dr Duff ’s report was sensible, clinically sound and internally consistent was the complete opposite of the finding of the referee. The Judge referred to s 17 of the Disputes Tribunals Act 1988 which states that a claim is not within the jurisdiction of the Tribunal where the issues in dispute in the claim are subject to proceedings before another Court or Tribunal commenced before the claim was lodged in the Tribunal. Judge Harrison said:
[25] It will be noted that the complaint to the Medical Council was brought after the claim was filed with the Disputes Tribunal. However, the decision of the Medical Council concerning Dr Duff’s reports was delivered in February 2013, well before the decision of the Disputes Tribunal in September 2013. It goes without saying that the complaint to the Medical Council and the claim before the Disputes Tribunal were both instigated by Mr Reekie.
[26] In my view it is distinctly arguable that the decision of the Medical Council, on the same issue in dispute in the claim before the Disputes Tribunal, resolved that issue and accordingly deprived the Disputes Tribunal of jurisdiction to proceed and determine the same issue, and reach a completely contrary conclusion. Whether the respective filing dates of each proceeding affect that tentative conclusion remains to be resolved at the forthcoming hearing.
The outcome of the appeal
[37] Judge Harrison set aside the Tribunal’s decision. By reason of the complexities of the case, particularly the jurisdictional issues, the Judge held that the claim was more appropriately heard in the District Court and directed that the Disputes Tribunal proceedings be transferred to the District Court at Auckland for
hearing.10
[38] Following the decision, Mr Reekie made an application to have the District
Court’s judgment recalled. This was declined on the basis that the decision did not
amount to a final judgment and, consequently, there was no judgment to recall. So
Mr Reekie initiated the present proceedings for judicial review.
Issues
[39] The issues posed by Mr Reekie’s submissions are:
(a) Did Judge Harrison make an error of law in coming to the conclusion that the Tribunal proceedings were conducted in a procedurally unfair manner and that the result of the proceedings was prejudicially affected?
(b)Was it unreasonable for Judge Harrison to conclude that the decision to conduct the hearing in the absence of Dr Duff was procedurally unfair?
(c) Did Judge Harrison err in law by failing to give weight to s 42(1) of the Act, which concerns a referee’s power to decide a case on the evidence where a party’s case is not before the Tribunal?
(d) Did Judge Harrison err in deciding to transfer proceedings to the
District Court?
[40] I address below whether all of those issues are properly for determination in this Court on judicial review of a decision of the District Court. It is necessary, for that reason, to state the applicable principles.
Judicial review principles
[41] In Stevenson v Office of Police Commissioner,11 Brewer J explained the concept of judicial review in these terms, which I respectfully adopt:12
Judicial review is a remedy invented by judges to restrain the excess or abuse of public power. The remedy allows judges to oversee the decision-
11 Stevenson v Office of Police Commissioner [2015] NZHC 1408.
making actions of administrative agencies in order to determine whether their decisions are lawful and to award relief where appropriate. Judges will intervene where decision-makers misconstrue their statutory powers, commit procedural errors, act unreasonably or contravene fundamental rights and values that underpin the rule of law. The remedy is discretionary: the determination by the Court whether to set a decision aside or not depends on an overall evaluation of the circumstances rather than clear and absolute rules.
[Footnotes omitted]
[42] The High Court has inherent jurisdiction to judicially review decisions of the District Court. But in considering an application for review, the Court must be alive to the fundamental distinction between this Court’s review jurisdiction and its appeal jurisdiction in respect of decisions of the lower courts. In N R v District Court at Auckland,13 Katz J explained, in terms with which I respectfully agree, the principles to be applied in the judicial review of a District Court judge’s decision:
[7] It is well established that the High Court has an inherent jurisdiction to review decisions of the District Court, including procedural, pre-trial and substantive determinations. There is, however, a fundamental distinction between the review jurisdiction and appeals from decisions of lower courts. A reviewing court examines the correctness of the decision-making process applied by the inferior court, whereas an appeal court examines the correctness of the decision itself. A reviewing court that intervenes on the merits of the decision in question “under the guise of preventing the abuse of power, [will] be itself guilty of usurping power”. The overriding consideration on review is whether there has been some impropriety or fundamental irregularity in the decision making process, so that the decision cannot stand.
[8] It is also well established that for policy reasons the power to review decisions of inferior Courts is to be exercised sparingly. It should be reserved for rare cases involving clear errors of law of a jurisdictional nature where the intervention of the High Court is imperative. Accordingly, a reviewing court ought to exercise restraint when considering the reasonableness or fairness of an inferior court's decisions; the focus is whether the decision was one that was open to be reached, rather than whether it was the most reasonable approach and decision in the circumstances.
[Footnotes omitted but emphasis added]
[43] The principle emphasised in the paragraph just quoted was stated by the Court of Appeal in Auckland District Court v Attorney-General14 and it is important in this case. I will return to it.
Did Judge Harrison make an error of law in coming to the conclusion that the Tribunal proceedings were conducted in a procedurally unfair manner and that the result of the proceedings was prejudicially affected?
Mr Reekie’s submissions
[44] Relying on the decision of Smellie J in Inland Holdings Ltd v District Court at Whangarei,15 Mr Reekie submitted it was not open to the District Court Judge to interfere with findings of fact the referee was required to make in deciding whether to grant an adjournment. The referee’s findings which Mr Reekie says the District Court could not reject were:
(a) This was at least the second time the respondents (Mr Lipanovic and
Dr Duff) had sought an adjournment.
(b)The respondents had had more than ample time to review the claim and ask questions of Mr Reekie if necessary to get the information they need.
(c) There was an unfortunate theme in the conduct of the respondents of failing or refusing to confront the issues Mr Reekie raised with the reports.
[45] Mr Reekie submitted that Judge Harrison made an error of law in departing from those findings.
Dr Duff ’s response
[46] Mr McClelland QC accepted that, on the authority of Inland Holdings, the
District Court should not interfere with findings of fact essential to the resolution of
14 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.
a substantive dispute. In counsel’s submission, however, the District Court must be able to interfere with factual findings relevant to the Tribunal’s procedure in an appeal confined to issues of procedural fairness. Otherwise, the right of appeal under s 50(1) of the Disputes Tribunals Act would be meaningless.
Discussion
[47] It is helpful to repeat the observations of Smellie J in Inland Holdings that there is an implicit tension in the Disputes Tribunals Act “between two socially desirable, although competing, considerations of quick and cheap dispute resolution on the one hand and uniform application of legal principle on the other”.16 The undoubted intention of Parliament was that the Tribunal would “provide a means whereby disputes could be resolved without the involvement of lawyers and on a fair and reasonable basis irrespective of legal technicalities”.17
[48] Section 50(1) of the Act provides:
(1) Any party to proceedings before a Tribunal may appeal to a 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.
[49] NZI Insurance NZ Ltd v Auckland District Court18 concerned the scope of the appeal right conferred upon a losing party to a decision of a Disputes Tribunal. It was held that s 50(1), on its ordinary grammatical construction, provides only a limited right of appeal, and requires any intending appellant to direct the District
Court to some unfairness in the form, and not simply the result, of the Tribunal's
16 At 664.
17 Above.
18 NZI Insurance NZ Ltd v Auckland District Court [1993] 3 NZLR 453 (HC).
hearing.19 Determinations made within the jurisdiction of the Tribunal are free from review, by the District Court or otherwise, unless tainted by procedural unfairness coming within the ambit of s 50.20
[50] Justice Smellie drew upon these principles in Inland Holdings.21 In that case the Tribunal had struck out a claim on the basis that it breached s 15 of the Disputes Tribunals Act, which provides that a cause of action shall not be divided into two or more claims “for the purpose of bringing it within the jurisdiction of a Tribunal”. The referee found, as a matter of fact, that the defendants had divided their claim with the intention of bringing it within the Tribunal’s jurisdiction. On appeal, the District Court Judge disagreed and held that the defendants did not have that intention.
[51] The facts of the case are important to an understanding of the decisions in the Tribunal, the District Court and the High Court. In February 1996, the Bellamys entered into an agreement to purchase a dairy farm from Inland Holdings Limited (“IHL”). The agreement included the transfer of all dairy company shares but the agreement did not specify whether the shares to be transferred had to be fully paid up. The shares had not been fully paid up and the dairy company deducted from the Bellamys’ milk cheques instalments of $3,563 and $2,520 in July 1997 and July
1998 respectively. In December 1997, the Bellamys filed proceedings in the Disputes Tribunal seeking recovery from IHL of the first instalment of $3000 (having agreed to abandon the additional $563 so as to remain within what was then the jurisdiction of the Disputes Tribunal). The Disputes Tribunal held IHL liable and ordered it to pay $3000 to the Bellamys. However, when the Bellamys lodged a second proceeding with the Disputes Tribunal seeking to recover the second instalment, the referee struck out the claim on the basis that it breached s 15 of the Act because the Bellamys had divided their claim with the intention of bringing it within the jurisdiction of the Tribunal. The Bellamys appealed and the District Court
judge overturned the Tribunal’s decision, holding that the reason the Bellamys
19 At 458.
20 At 484.
21 Inland Holdings Ltd v District Court at Whangarei, above n 15.
divided their claims was because the second debt was not due until a year after the first claim.
[52] IHL applied to the High Court for judicial review of the District Court’s decision. Justice Smellie accepted that the responsibility for the finding of facts is with the referee and that the very limited right of appeal by the Act under s 50 precludes any conclusion that a District Court Judge on appeal should be performing that function.22 The Judge prefaced his conclusion by observing that he had little doubt that pursuant to the provisions of s 50(2)(a) a referee who failed to have regard to s 15 could properly be overturned; in such a situation the issue would be one of jurisdiction, not procedural fairness or error of law.23 He continued:24
In this case, however, it is patently clear that the referee had s 15 very much in mind. It is also clear, in my view, that whether or not s 15 acts as a bar to the second claim depends upon the view of the facts taken by the fact finder. The referee's finding was that the shares should have been transferred fully paid up and that as a consequence there was a breach of contract at that point of time giving rise to one cause of action.
On appeal, however, as earlier demonstrated, a different view of the facts was taken which led to the conclusion that s 15 did not apply. By wrongly substituting his own view of the facts for those of the fact finder the Judge exceeded his jurisdiction and purported to uphold the appeal for error of law.
[53] At first sight, the issue addressed by Smellie J in Inland Holdings was similar to that which arises in this review. Although Smellie J distinguished between matters of jurisdiction and procedural fairness or errors of law, I do not think it would be straining the wording of the appeal right under s 50(1) or Parliament’s intention to hold that a proceeding conducted by a referee who had no jurisdiction to hear it would be one that could be addressed on appeal as having been conducted “in a manner that was unfair” and which would have a prejudicial effect on “the result of the proceedings”. I do not have to decide that issue, however. The point of Smellie J’s finding was that the decision on whether the bar to the division of claims provided by s 15 applied was one which turned on the substantive facts of the claim by the Bellamys for compensation from IHL for the 1997 and 1998 deductions from
their milk cheques. Whether there was breach of contract at the time the part paid
22 At 669-670.
23 At 670.
24 Above.
shares were transferred, or two breaches at the time the deductions were made from the milk cheques, was a substantive factual issue over which the Disputes Tribunal had exclusive jurisdiction.
[54] In Insight Holdings, the jurisdiction question before the District Court was one which the Tribunal had resolved by making findings of fact going to substantive matters which were central to the issue between the parties: the nature of the contract and the nature of the breach. The High Court held that the District Court had no power to address those issues.
[55] In contrast, the factual background to the refusal of the adjournment by the referee in this case did not relate to the substance of Mr Reekie’s complaints about the standard or quality of Dr Duff’s report but to the central question of whether a refusal of the adjournment resulted in the Tribunal adopting a procedure for the hearing of Mr Reekie’s complaint which was unfair.
[56] In the present case, Judge Harrison was required to consider the two limbs of s 50(1); namely, whether the manner in which the proceedings were conducted by the referee:
(a) was unfair to Dr Duff; and
(b) prejudicially affected the result of the proceedings.
The first limb of s 50(1) – procedural unfairness
[57] As to the first limb, Dr Duff’s application for an adjournment on the grounds of the inadequacy of the time allowed for preparation and a conflict between the proposed hearing and another matter related to her professional duties touched directly on the issue of procedural fairness. It is a fundamental principle of natural justice that a person be given adequate notice and an opportunity to be heard before a decision is made which detrimentally affects their interests.25 That right is
recognised by s 38(1) of the Act which provides that at the hearing of a claim every
25 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009]
2 NZLR 56 at [11].
party shall be entitled to attend and be heard. In considering the first limb, it was not necessary for the District Court Judge to address any of the referee’s findings on the substance of Mr Reekie’s claims for a refund of the fees and compensation.
[58] Judge Harrison was required, however, to address and come to a view on the factual basis for Dr Duff ’s assertion that the manner in which the proceedings had been conducted was unfair. It was open to the Judge, and indeed necessary for him, to consider whether the referee was right to conclude that Dr Duff had previously sought an adjournment; that she had had more than ample time to prepare for the hearing; and that there was a theme in the conduct of Dr Duff in failing or refusing to confront the issues Mr Reekie raised with the reports.
[59] I see no error in the District Court Judge’s approach to the issue of
procedural unfairness.
The second limb of s 50(1) – prejudicial effect on the result
[60] As to the second limb of s 50(1), it might be thought that, in any case where a party is deprived of their right to be heard by the unfair refusal of an adjournment, it is inevitable that the result of the proceedings would be prejudicially affected. But there may be cases in which an adjournment is unfairly refused to a claimant whose case cannot in any event succeed as a matter of law, or to a defendant who, on analysis, had no defence to the claim. It is necessary, therefore, for the District Court on an appeal under s 50(1) to consider the merits of the parties’ positions to the extent of determining whether any unfairness in the manner of the conduct of the proceedings had a materially prejudicial effect on the outcome.
[61] That is the approach Judge Harrison took in this case in considering the relevance of the Medical Council’s views and the issues concerning the Consumer Guarantees Act, among other things. If those matters and other factors going to the merits of Mr Reekie’s claim would inevitably have been determined against Dr Duff, the second limb of the test under s 50(1) may not have been made out.
Conclusion
[62] If a District Court Judge were to be bound by the factual findings that a referee of the Disputes Tribunal makes in directing how a proceeding is to be conducted, such as whether a hearing should be adjourned, the ability of the District Court to address procedural injustice would be seriously and inappropriately curtailed. That cannot have been Parliament’s intention in enacting s 50(1) and it is not the law. Judge Harrison had jurisdiction to inquire into the facts concerning the refusal of the adjournment. He made no error of law in deciding questions of fact in the course of determining whether the Tribunal proceedings were conducted in a procedurally unfair manner and whether the result of the proceedings was prejudicially affected.
Was it unreasonable for Judge Harrison to conclude that the decision to conduct the hearing in the absence of Dr Duff was procedurally unfair?
[63] Mr Reekie’s case is that the decision of the District Court to overturn the referee’s decision to refuse the adjournment was based on a serious misunderstanding of the facts and was made without apparent reference to the available evidence.
[64] Having held that Judge Harrison was required to address the factual issues concerning the adjournment, and for the reasons given by the Court of Appeal in Auckland District Court v Attorney-General,26 I do not consider it is open to the High Court in this review proceeding to address the question of whether Judge Harrison adopted a reasonable approach to the evidence.
[65] In case I should be wrong in that view, however, and out of deference to Mr Reekie’s detailed submissions, I refer to the matters raised, and Mr McClelland’s responses, briefly.
[66] The essence of Mr Reekie’s case is that he put evidence before Judge
Harrison demonstrating that Dr Duff had been given sufficient notice of his claim against her, and so he erred in finding that an adjournment should have been granted.
26 Auckland District Court v Attorney-General, above n 14.
Mr Reekie pointed to a number of pieces of evidence placed before the Judge which, he submitted, demonstrate that the Judge’s conclusion is unreasonable. Mr Reekie’s submissions are lengthy and occasionally repetitive and it is unnecessary to set them out in full; a brief summary of each of the main points will suffice.
[67] First, Mr Reekie says that no notice of proceedings sent to Dr Duff was ever returned until 3 September 2013, despite the fact that notices and other related documents of the Disputes Tribunal had been sent to her since 5 December 2011. Mr Reekie relies on r 10 of the Dispute Tribunal Rules which gives rise to a rebuttable presumption that service is deemed to be effected at the time when the documents would have arrived by post. Mr McClelland QC responds that proof that the documents were not returned to their respective senders would not prove that the documents were actually delivered to Dr Duff. But, in any event, the Tribunal’s case
officer Ms Bell accepted that the documents sent to Dr Duff had been returned.27
Judge Harrison was entitled to accept Dr Duff ’s evidence that she did not receive any of the documents allegedly sent to her before she became aware of the claim in early September 2013, and to regard it as sufficient to rebut any presumption.
[68] On the important issue of whether Dr Duff had been given adequate time to prepare for the hearing, the referee was required to make an assessment based on his knowledge of the issues and the substantial quantity of material provided by Mr Reekie only three weeks prior to the proposed hearing date. But in coming to the view that the referee had erred in his findings and conclusions, Judge Harrison was entitled to give weight to the opinion of the case officer, that the late provision of a “big bundle of documents”, which Dr Duff did not receive until less than two weeks prior to the hearing date, did not allow the parties enough time to read through and
prepare a defence to the submissions prior to the hearing.28
[69] Second, Mr Reekie says that although Dr Duff left work at Kilpan in October or November 2010, Mr Lipanovic signed an affidavit in which he said that he forwarded all correspondence addressed to Dr Duff via email or postal services to
her residential address. Mr McClelland’s response is that none of the
27 See [31] of this judgment.
28 Above.
correspondence produced showed that there was an interaction between Mr Lipanovic and Dr Duff establishing that she was notified of the Disputes Tribunal proceeding or that it was brought to her attention. Furthermore, Mr McClelland suggests that little weight should be given to Mr Lipanovic’s evidence. This is because in exchange for an affidavit, Mr Reekie told Mr Lipanovic that he would no longer pursue an action against him. Judge Harrison was entitled to take those responses to Mr Reekie’s second point into account as being material to the issue of Dr Duff’s denial that she had been notified of the Disputes Tribunal hearing prior to
4 September 2013.
[70] Third, Mr Reekie submits that, on 12 December 2012, the Medical Council sent Dr Duff a copy of his complaint about the report. But Mr McClelland QC referred to evidence from which the District Court Judge was entitled to conclude that Dr Duff was not fully informed of all correspondence from Mr Reekie after having left Kilpan to work in the public sector and that she concluded that the documents and complaints arose in the context of Mr Reekie’s attempts to obtain a refund directly from Mr Lipanovic or Kilpan.
[71] Fourth, Mr Reekie relies on Mr Lipanovic’s statement that he contacted
Dr Duff to see if she was going to be available for the hearing before the Tribunal on
16 July 2013 and then informed the Tribunal that she would not. Mr McClelland, in response, directed me to evidence in Dr Duff’s affidavit which the District Court Judge was entitled to accept as supporting Dr Duff’s position.
[72] Fifth, Mr Reekie says he made further submissions to Judge Harrison on the untrustworthy nature of the appellant’s affidavit and indeed her integrity. Mr McClelland said that the Judge could, and did, reach different conclusions as to Dr Duff ’s character. I agree.
[73] Sixth, Mr Reekie submits that Judge Harrison did not have due regard to another piece of evidence, namely the referee’s s 51(1) appeal report. I agree with Mr McClelland, however, that provided there was some logically probative evidence before Judge Harrison supporting the views he adopted, it was within the Judge’s
power to accept the evidence even if the Court on judicial review might itself have come to a different view of the evidence.
[74] In these circumstances, and bearing in mind that it is not the function of this Court to address the merits of the District Court Judge’s views, it is not necessary for me to consider the evidence upon which Dr Duff ’s account is based to see whether the Judge acted reasonably in accepting it.
[75] I am satisfied on the basis of Mr McClelland’s responses to the matters on which Mr Reekie relies that Judge Harrison’s decision on the merits contains no obvious defect. It is a decision that a reasonable judge could have made in the circumstances.
Did the Judge err in law by failing to give weight to s 42(1) of the Act, which concerns a referee’s power to decide a case on the evidence where a party’s case is not before the Tribunal?
[76] Section 42(1) of the Act provides that where the case of any party is not presented to the Tribunal, after reasonable opportunity has been given to that party to do so, the issues in dispute in the proceedings may be resolved by the Tribunal on such evidence or information as is before it. Mr Reekie argues that the Judge failed to give due weight to this provision in determining whether the referee was right to reject Dr Duff ’s claims that she had not been notified on the hearing in time to prepare adequately.
[77] Although posed as an issue concerning a possible error of law by the District Court Judge, this question goes directly to the issue of whether there was sufficient evidence before Judge Harrison to conclude that Dr Duff’s evidence could be accepted and that it was unfair for the referee to refuse to make an allowance for her inability to prepare for and attend the hearing.
[78] Because I have held that Judge Harrison was entitled to examine and weigh the facts leading to that conclusion, the question raised by Mr Reekie regarding s 42 of the Act does not require an answer in this proceeding.
Did Judge Harrison err in deciding to transfer the proceedings to the District
Court?
[79] Since it has been established that the Judge was entitled to come to his own view that it was unfair for the adjournment to have been refused, and that the unfairness prejudicially affected the outcome, he was required to consider how to dispose of the appeal. Transfer to the District Court was one of the available options.
[80] Section 53(1) of the Act provides:
53 Powers of District Court Judge on appeal
(1) On the hearing of the appeal a District Court Judge may—
(a) quash the order or the approval or the variation, as the case may be, and order a rehearing of the claim in the Tribunal on such terms as the Judge thinks fit; or
(b) quash the order or the approval or the variation, as the case may be, and transfer the proceedings to a District Court for hearing; or
(c) dismiss the appeal.
[81] Applying the limited jurisdiction of this Court on review, I am satisfied that the Judge had clear statutory authority to direct the transfer of the proceedings to the District Court. Whether Judge Harrison was right to direct that the Tribunal proceedings should be transferred to the District Court for hearing does not properly arise in this proceeding.
[82] Again out of deference to Mr Reekie’s arguments as a self-represented litigant, however, I note the following:
(a) It will typically be appropriate to transfer proceedings to the District Court where issues that are better suited to the District Court jurisdiction have arisen on the appeal.29 That is because the Tribunal is not bound to give effect to strict legal rights or obligations or to
legal forms or technicalities.
29 See for example, State Insurance Office v Watkins [1991] DCR 433 at 442 and Parkin v
Marshall [1995] DCR 140.
(b)Judge Harrison identified that the matter gives rise to complex issues involving the Consumer Guarantees Act 1993. The Judge also recognised that there is an issue about whether it is arguable that the decision of the Medical Council resolved the issues surrounding the adequacy of the report, depriving the Tribunal of jurisdiction. These are legal issues which are best considered by a District Court.
(c) Cross-examination is available in the District Court. This is important because a live issue at trial will be whether the Dr Duff ’s report was adequate, requiring expert evidence to be called and tested. The Disputes Tribunals Rules do not provide for cross-examination.
[83] The decision to direct that the proceedings be transferred to the District Court at Auckland for hearing was one clearly open to the Judge to make.
Summary of conclusions and disposition
[84] I have held:
(a) Judge Harrison had jurisdiction to inquire into the facts concerning the refusal of the adjournment. He made no error of law in deciding questions of fact in the course of determining whether the Tribunal proceedings were conducted in a procedurally unfair manner and whether the result of the proceedings was prejudicially affected: see [47]–[62].
(b)For the reasons given by the Court of Appeal in Auckland District Court v Attorney-General,30 it is not open to the High Court in this review proceeding to address the question of whether Judge Harrison adopted a reasonable approach to the evidence: see [41]–[43] and
[63]–[64].
30 Auckland District Court v Attorney-General, above n 14.
(c) In any event, however, I am satisfied that Judge Harrison’s decision on the merits contains no obvious defect. It is a decision that a reasonable judge could have made in the circumstances: see [65]– [75].
(d)The question raised by Mr Reekie regarding s 42 of the Act goes directly to the issue of whether there was sufficient evidence before Judge Harrison to conclude that Dr Duff ’s evidence could be accepted and that it was unfair for the referee to refuse to make an allowance for her inability to prepare for and attend the hearing. Because I have held that Judge Harrison was entitled to examine and weigh the facts leading to that conclusion, the question does not require an answer in this proceeding: see [76]–[78].
(e) Whether Judge Harrison was right to direct that the Tribunal proceedings should be transferred to the District Court for hearing does not properly arise in this proceeding. In any event, however, the decision to direct that the proceedings be transferred to the District Court at Auckland for hearing was one clearly open to the Judge to make: [79]–[83].
[85] For the reasons given, Mr Reekie’s application for relief in this proceeding is
dismissed.
Costs
[86] The second defendant is entitled to costs although, given Mr Reekie’s present circumstances, any attempt to recover costs may be futile. Nevertheless, I order the plaintiff to pay costs on a category 2B basis, with disbursements as fixed by the Registrar. Although Ms Kemp undoubtedly provided valuable assistance to Mr McClelland QC, I do not certify for two counsel.
…………………………..
Toogood J
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