Bashiran v Totman DC Palmerston North CIV-2011-054-122 [2011] NZDC 601 (15 April 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CIV-2011-054-000122}

BETWEEN BIBI BASHIRAN Plaintiff

AND ANDREW JOHN TOTMAN Defendant

Hearing: 15 April 2011

Appearances: No appearance by or for the Plaintiff

Defendant appears in Person

Judgment: 15 April 2011

_{ORAL JUDGMENT OF JUDGE G M ROSS}

[1] I am dealing with an appeal which has been brought from the Referee of the Disputes Tribunal at Palmerston North. In relation to the appeal, it is brought by the vendor of a freezer which was purchased by the respondent Mr Totman on the Trade Me Internet site. That is the brief background. It is not necessary for me to go into the details of the transaction, or to take the head off the case in respect of the transaction itself.

[2] In relation to the appeal today there is no appearance of Mr Bashiran, but he has filed some written submissions which were received earlier this morning by the Registrar by fax, and these have now been carefully considered by me. Mr Totman appears for himself as the Respondent.

[3] I should just say here that I note that his (Respondent’s) address is a rural Taihape address. This is one of the factors which is raised in the appeal by Mr Bashiran that strictly, according to the Disputes Tribunals Act the application is to be filed, the proceedings are to be commenced by the lodging of the claim to the Court

_{nearest by the most practicable route to the place where the applicant resides.}

BASHIRAN V TOTMAN DC PMN CIV-2011-054-000122 15 April 2011

[4] In earlier submissions and in his opposition to the application for a re-hearing Mr Totman pointed out that Palmerston North was his business centre where his professional advisors resided, and in addition his claim to the Disputes Tribunal was accepted by the District Court at Palmerston North, and inferentially makes the submission that there can be no prejudice to the appellant by the matter being heard and proceeding in the Disputes Tribunal at Palmerston North. This seems to me to be correct. It has been dealt with by the Referee already.

[5] There could only be further delay and inconvenience for the appellant if the application had originally been filed in the Taihape District Court. There would be the likelihood of greater delay either in the hearing of the claim by a Referee there or the hearing of any subsequent appeal, as Mr Bashiran has now filed. There would also be additional inconvenience for him if he wished to travel to the Taihape Court for the hearing of either of those matters. That is if the matter went smoothly and there was no other application, for example an application for a re-hearing.

[6] So, though as the Referee says, that may be strictly correct, the Referee’s view was that this was directory and not mandatory, and my view about the matter is that as things have turned out, and in respect of the process, that it is not a material distinction in the present case and is inconsequential. It seems that the freezer was for sale on the Internet, but was for uplifting and inspection in Palmerston North in any event.

[7] So that deals with the first point which is raised, and that the document was not signed again has already been dealt with by the Referee and is not a material matter in terms of Mr Bashiran’s appeal.

[8] The second point that Mr Bashiran raises in his appeal notes are that here the decision of the Referee was that he, Mr Bashiran, was to pay into Court the sum of

$599 no later than 9 March 2011. This was a period of seven days after the later decision of the Referee, after the application for re-hearing was dismissed and effectively was to reinstate the earlier decision but to put a later payment time on the requirement made on the appellant.

[9] If I understand Mr Bashiran’s argument correctly, what it seems to me that he is arguing here is that the time for filing an application for a re-hearing or an appeal at 28 days following the release of the decision is long after the requirement to pay the $599 in seven days. In this instance it seems to me that the appellant has misdirected himself. Though the $599 has not been paid anyway, there cannot be any abuse of power by the Referee in allowing only seven days for the payment of the sum ordered to be paid. This is because the appeal, for which there is a period of

28 days to file, acts as a stay of the enforcement of the order in the ordinary course anyway. For that reason enforcement of the order made by the Referee would not be made within the appeal period, and the appeal has been filed and there can be no suggestion that allowing only seven days for payment was an illegal act, nor that it has prejudiced the appellant.

[10] My experience in appeals of this kind is that though the practice may differ from Referee to Referee, invariably where there is a smaller sum the subject of the order, and $599 is in that category, then usually a period of seven days is allowed to organise the payment of the amount of the order. So that ground is dismissed as an appeal ground.

[11] Then the appellant raises in his appeal notes that the Tribunal failed to apply the auction principles, or legal principle applicable to either an auction or a Trade Me auction. It is not necessary for me to go over the matters which he sets out in his appeal memorandum because it is, as I pointed out earlier, not necessary for me to take the head off the case and go into the details. There are limited appeal grounds under the Disputes Tribunals Act, and the only appeal is a procedural appeal. The only grounds are that the manner in which the Referee conducted the hearing was unfair to the appellant and that unfairness had prejudicially affected the result of the proceedings. Of course it respect of these matters the Referee is obliged to comply with the law, but in this respect the Act provides, under s 18(6) that:

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.

[12] In the present case, though, it seems to me that the Referee having been referred to the appropriate legislation has done rather better than that and has marked it against the legislation which has been drawn to his attention. In this respect I do not consider that the law which he has adopted and which is set out in the appeal notes and the order of the Disputes Tribunal and the reference to and application of the Contractual Remedies Act is anything other than appropriate.

[13] There is another ground of appeal which the appellant places no emphasis in his appeal notes today, but which was a part of his original notice of appeal to the District Court from the Referee’s decision, that was that at both the hearing and the re-hearing, which as we have seen the appellant did not attend, the Tribunal did not notify to the respondent his entitlement to have a translator provided. This had not been arranged for either hearings and this is now claimed to be unfair and prejudicial to the appellant in as much as this was scarcely required in the sense that the appellant did not attend either hearing, but was represented through written submissions.

[14] I do not understand fully the significance of this, however it is one of those cases where there is, if the parties appear in person before the Referee, a protocol for interpreters or translators which is generally complied with in judicial proceedings and even if this was sought in the present case because of the appellant’s intention to attend at either the original hearing or the application for re-hearing which was dismissed then advice should have been given prior to either of those hearings to enable the protocol to be put in place. In the event, the absence of a translator or interpreter seems to me to be neither here nor there, and only after the event has the appellant made an issue out of this. So for those reasons I cannot uphold a claim that the process has been unfair on that account.

[15] There are, finally, other references in the appellant’s appeal notice in respect of the claim of prejudice and personalities so far as the Referee is concerned and the appellant’s claim that it was difficult for an ethnic party such as himself to get justice from the Referee in relation to the application for re-hearing. The Referee having already in his earlier decision favoured the local-born applicant, and the claim was made that on the application for re-hearing, instead of sticking to the legal principles

the Referee decided the case on the basis of personalities and not on the basis of the law.

[16] So far as the application for re-hearing is concerned, these are often dealt with by the Referee who dealt with the original hearing and of course it is more likely that any application for re-hearing is made by the losing party, that is to say one against who an order has been made in the Disputes Tribunal at the actual hearing. So it is in the present case, but the claim of prejudice towards him was made in the submission which was received by the Disputes Tribunal on the morning of the application for the re-hearing. That was made without more. It is today made without any details which might support the claim which the appellant makes of prejudice or racial bias. Without more this cannot be substantiated in the present case and there of course is no presumption of prejudice or racial bias, merely because an order has been made against a party at a hearing of the Disputes Tribunal, that of course would be an absurd result, but the claim that is made here is in no way supported with any details of any kind.

[17] On the application for a re-hearing one has the impression in the present case that the losing party has sought to have another bite of the cherry, and this of course is what the whole purpose and intent of the Disputes Tribunals Act is designed to avoid, either by way of re-hearing in limited circumstances, or by the provision of only limited appeal grounds to the District Court against the decision of the Referee. So I see nothing in that last appeal ground in respect of the ethnicity of the appellant resulting in an unfairness towards him either at the earlier stage when the hearing was conducted, or at the application for the re-hearing which was dismissed.

[18] So for these reasons then the appeal cannot succeed. It is filed by Mr Bashiran, in that respect I note that Mr Totman the respondent in the appeal advises that his dealings were with Mr Bashiran whom he believed to be a male person though the submissions today indicate that the appellant is a female. Either way the appeal cannot succeed. The appellant cannot raise in the future the claim that the argument today was to have been presented by a support person but who was unable to attend Court today because this person could not attend Court on a Friday on account of his obligations to prepare for Friday Prayers. No application has been

made to change the Court date for the hearing of the appeal from Friday to any other day to facilitate the prosecution of the appeal by the appellant or his or her representative.

[19] The result then is that the appeal is and must be dismissed. The upshot is that the order which was made by the Referee on 2 March 2011 is upheld. That the appellant is to pay the sum of $599 to the respondent. That payment is to be made within a fortnight of today’s date, that is not later than 29 April 2011. Within seven days from the making of the payment the freezer is to be made available for uplifting by the appellant, by the respondent.

G M Ross

District Court Judge