Wright v Wright

[2017] NZHC 3053

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-1838 [2017] NZHC 3053

IN THE MATTER	of the Judicature Amendment Act 1972
IN THE MATTER	of a decision by the Disputes Tribunal dated March 25, 2010
BETWEEN	STUART LINDSEY WRIGHT Applicant
AND	DAVID STEPHEN WRIGHT First Respondent
AND	THE REGISTRAR DISPUTES TRIBUNAL AUCKLAND Second Respondent

Hearing:	8 December 2017
Appearances:	MB Meyrick for Applicant MJ Robinson for First Respondent The Second Respondent abides the decision of the Court
Judgment:	8 December 2017

ORAL JUDGMENT OF TOOGOOD J

Wright v Wright [2017] NZHC 3053 [8 December 2017]

Introduction

[1]      On 16 August 2009, Stuart Lindsey Wright (Stuart), lodged a claim in the Disputes Tribunal to recover the sum of $17,500 which he said was owed by his brother, David Stephen Wright (David), from their joint involvement in property transactions.

[2]      In January 2010, David lodged a counterclaim and/or set-off in the Tribunal, claiming the sum of $20,000.  The claim form was accepted and date-stamped by the District Court at Manukau on 25 January 2010, although it appears a filing fee was not paid.

[3]      On 4 February 2010, the Disputes Tribunal conducted a preliminary hearing in which a direction was made by consent extending the jurisdiction of the Tribunal to

$20,000.  The referee recorded both Stuart’s claim and David’s counterclaim and the matter was adjourned for a two-hour hearing to which witnesses were to be summoned.

[4]      On 25 March 2010, the referee heard the matter and determined that both the claim and counterclaim should be dismissed, relying on s 18(6) of the Disputes Tribunal Act 1988 requiring the referee to

... determine the dispute according to the substantial merits and justice of the case, and in doing so [to] have regard to the law but ... not be bound to give effect to strict rights or obligations or to legal forms or technicalities.

[5]      Stuart appealed to the District Court.  He claimed not to have received details of David’s counterclaim but a report from the referee to the District Court confirmed that Stuart had in fact received all relevant documents. Moreover, the referee said that he had confirmed with both parties that they had had adequate time to put their respective cases, and that he had carefully considered the position before making his determination.

[6]      The appeal was heard before Judge B Gibson in the District Court.  Stuart appeared at the appeal but David did not.  In a reserved judgment dated 16 June 2010 dismissing the appeal, Judge Gibson considered Stuart’s allegation that a counterclaim

had not been filed and that, if it was filed, it was late and outside the timetable directed by the referee.  The Judge determined there was no element of procedural unfairness and that Stuart had been well aware of the scope of the counterclaim from the pre- hearing discussions and the timetabling orders.

[7]      Stuart took no action following the dismissal of his appeal until August 2016 when the current proceeding was filed in this Court. The statement of claim and other papers were not served on David for a further seven months.

Submissions

[8]      Mr Meyrick frankly acknowledges that the issue before the Court is simply whether the Disputes Tribunal was entitled to make a finding on the counterclaim by David when, it is argued, the counterclaim was never filed and was never properly before the Tribunal.  The basis for that proposition is that a case officer employed in the Registry of the Disputes Tribunal confirmed that no filing fee had been paid and that the counterclaim was accordingly not formally served on Stuart.  Moreover, it is argued that the counterclaim exceeded the monetary jurisdiction of the Tribunal.

[9]      Opposing the application, Mr Robinson submits on David’s behalf, first, that the Court should dismiss the application because of inordinate delay amounting to an abuse of the Court’s process.  Second, he argues on the merits that the counterclaim, having been stamped by the District Court at Manukau, had been effectively filed and that any failure to pay a filing fee did not invalidate the counterclaim, relying on s 133(2A) of the District Courts Act 1947, in force at the time of the hearing in the Disputes Tribunal, which reads:

An act for which a fee is payable is not invalid simply because the fee has not been paid.

[10]     Moreover, counsel points to s 54 of the Disputes Tribunal Act which provides that no proceeding of the Tribunal, or order or other document of the Tribunal, shall be set aside or quashed for want of form.  Still further, counsel refers to s 11(1)(b)(ii) of the Act which grants the Tribunal the power to determine a claim that is in the nature

of a counterclaim in circumstances where the claim was not lodged or attempted to be lodged.

Discussion

[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.

[12]     I propose to dismiss the application for three reasons:

(a)       The substance of Stuart’s complaint has already been dealt with by the

District Court in the appeal and the principle of res judicata applies.1

The same point cannot be re-litigated now.

(b)The counterclaim was properly before the Tribunal, having been filed and fully argued, and Judge Gibson was right to dismiss the appeal on that basis.

(c)      The delay in bringing the proceeding has been inordinate and the Court should not countenance such unexplained lethargy.  The proceeding is an abuse of the Court’s process and I exercise the Court’s inherent jurisdiction to prevent such abuses.

Decision

[13]     I dismiss the application accordingly.

1      Shephard v Disputes Tribunal [2004] NZAR 319 (HC) at [37]-[38].

[14]     David is entitled to costs which shall be assessed on a category 2B basis.  If the parties cannot agree, then any application for costs shall be made by memorandum filed and served not later than 18 December 2017. Stuart shall have until 19 January

2018 to file and serve any memorandum in response. Costs will then be dealt with on the papers.

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Toogood J