Seymour v Spark New Zealand Trading Limited

[2023] NZHC 3193

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-067

[2023] NZHC 3193

UNDER

the Disputes Tribunal Act 1988

IN THE MATTER

of an appeal from a District Court decision

BETWEEN

GREGORY CHARLES SEYMOUR

Appellant

AND

SPARK NEW ZEALAND TRADING LIMITED

Respondent

Hearing:

13 November 2023

Counsel:

Appellant in person

N J C Wilson for Respondent

Judgment:

13 November 2023

ORAL JUDGMENT OF RADICH J

[1]                 The appellant, Mr Gregory Charles Seymour, seeks to appeal a decision of the District Court in which his Honour Judge Collins rejected Mr Seymour’s appeal from a decision of the Disputes Tribunal. The Disputes Tribunal had rejected the claim by Mr Seymour that a payment he made to the respondent, Spark New Zealand Trading Ltd, of $604.98 was an overpayment.

[2]                 I agree, as I am compelled to, with counsel for Spark that no right of appeal to this Court exists. Therefore the Court does not have jurisdiction to hear the appeal and I cannot grant Mr Seymour leave to appeal. I go on now to explain the basis for me having to reach that conclusion.

SEYMOUR v SPARK NEW ZEALAND TRADING LIMITED [2023] NZHC 3193 [13 November 2023]

[3]                 Mr Seymour has applied for leave to appeal to the Court in reliance on, first, s 124(1) of the District Court Act 2016 and, secondly, ss 24, 28 and 31 of the Contract and Commercial Law Act 2017.

[4]                 Section 124 of the District Court Act sets out a general right of parties to District Court proceedings to appeal to the High Court. Section 124(1) provides:

124     General right of appeal

(1)This Part applies to a decision of the court, other than a decision of a kind in respect of which an enactment other than this Act—

(a)expressly confers a right of appeal; or

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

[5]                 The Disputes Tribunal Act 1988 makes it clear that there is no right of appeal for a decision originating in the Disputes Tribunal to the High Court. Section 23 of that Act provides that “every order made by the Tribunal under s 18(8)” – and that is a section that provides that orders made to give effect to the Tribunal’s determination of a dispute – “are final and binding on all parties” and “no appeal shall lie in respect of such an order” except as provided in s 50.

[6]                 Section 50, in turn, provides that a party to proceedings before the Tribunal may appeal an order made by the Tribunal to the District Court on the ground that the proceedings were conducted in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings.

[7]                 The words in s 23 of the Disputes Tribunal Act, “except as provided in section 50, no appeal shall lie”, make it clear that s 50 confers a single and final right of appeal to the District Court and not beyond that Court. There is no provision in the Disputes Tribunal Act, the District Court Act or in the High Court Rules that would enable a further appeal to this Court. The provisions I have mentioned give effect to the Tribunal’s intended role as a forum for swift, inexpensive, fair and substantial justice where lawyers have no place, and I am referring there to a case called Mellow v Tsang.1 The Tribunal could not fulfil that role if parties to proceedings face the

1      Mellow v Tsang [2004] NZAR 537 (HC) at [24]. See also Macsmith’s Tires Limited v George Stock and Company Limited [2022] NZHC 438 at [38] and Rafiee v Daruwalla [2023] NZHC 1554 at [8].

prospect of more than one appeal from the Tribunal’s decision. As I have mentioned, the right of appeal that does exist, to the District Court, is limited to procedurally based errors.

[8]                 In the District Court, his Honour Judge Collins addressed the procedurally based errors that were put to him. He found there to be no procedural error as alleged and dismissed the appeal for the reasons that he gave in his decision. As I say, there was no further right of appeal beyond his decision.

[9]                 Therefore, in terms of s 124(1) of the District Court Act, the general right of appeal of District Court decisions does not apply here because ss 23 and 50 of the Disputes Tribunal Act preclude it from doing so.

[10]             Furthermore, it is not possible for Mr Seymour to rely on the Contract and Commercial Law Act 2017 as providing authority for a right of appeal to this court. The provisions that I have just mentioned mean that it cannot be relevant to this inquiry. Section 24 of the Contract and Commercial Law Act provides, at an initial level and not on appeal, a right to claim that a party entered into a contract as a result of a mistake. The provisions could only ever have applied in relation to Mr Seymour’s entry into his contract with Spark at the very outset. Further, it could not be raised for the first time on appeal. And, in any event, for the reasons given, there is no right of appeal on any basis to this Court.

[11]             Mr Seymour has, in documents filed, raised a number of concerns stemming from his views on the basis for Spark saying that the sum of $604.98 was an overpayment. However, for the reasons that I have given, there is no ability for this Court to address those particular concerns and there is no ability to bring an appeal in this Court in order to have those views addressed.

[12]             Accordingly, I do not grant Mr Seymour leave to appeal because, for the reasons that I have explained, there is no right of appeal to this Court. Accordingly, it is not possible for me to go on to consider the merits of the claims, including the claims now raised under the Contract and Commercial Law Act 2017.

[13]             So, Mr Seymour, they are the reasons for my decision and for those reasons I am afraid that this Court is unable to take any further steps.

[14]             The question of costs was not addressed at the hearing. The respondent is entitled to costs on a 1A basis. If it  wishes  to  claim  costs, it  should  liaise with  Mr Seymour in the first instance. If need be, a memorandum may be filed with the Court within 15 working days of the date of this decision. If the respondent does file a memorandum, then Mr Seymour may file any memorandum in response within    15 working days of the day on which he receives the respondent’s memorandum. I will then deal with any issues arising on the papers. Any memoranda on costs are to be limited to three pages in length.

Radich J

Solicitors:

Russell McVeagh, Auckland for Respondent