Boniface v Guthries Auto Care Limited DC Palmerston North CXIV-2011-054-10 [2011] NZDC 602 (15 April 2011)

Last Updated: 28 September 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CIV-2011-054-000010}

BETWEEN I BONIFACE C BONIFACE Appellants

AND GUTHRIES AUTO CARE LIMITED Respondent

Hearing: 15 April 2011

Appearances: Appellant Boniface I appears in Person

No appearance by or for the Appellant Boniface C J Waugh for the Respondent

Judgment: 15 April 2011

_{ORAL JUDGMENT OF JUDGE G M ROSS}

[1] This is an appeal today to the District Court from the Disputes Tribunal. Strictly and first off the appeal is one which is against a decision of the Referee in the Disputes Tribunal which was dated 7 December 2010. That decision was a decision of the Referee to decline an application by Mr and Mrs Boniface, the appellants, for a re-hearing of a claim in the Disputes Tribunal which had already been heard. The claim was heard as far back as 21 June 2010. Further, for reasons which I shall come to shortly, a decision was not given until 6 September 2010. The application for the re-hearing was dated 29 September 2010 and it was that application which was declined by the Referee.

[2] To deal with the matter in the strict sense then there is the preliminary point which the respondent, Guthries Auto Care Limited makes in respect of this notice of appeal and that is this. That an appeal does not lie against a decision of the Referee to decline to grant an application for a re-hearing. It is not one of the class of appeals which are contained in s 50(1) Disputes Tribunal Act of being orders or

_{decisions of the Referee which are albeit on a limited basis appealable to the}

BONIFACE V GUTHRIES AUTO CARE LIMITED DC PMN CIV-2011-054-000010 15 April 2011

District Court. As His Honour Judge Walker said in the authority which Mr Waugh has submitted to the Court today, Cassels v McMurdo Sounds Motordrome Ltd DC Blenheim NP 253/98, 14 January 1999. On page 4 His Honour said:

It is not every order of the Tribunal which may be the subject of appeal to this Court. The Disputes Tribunal Act 1988 specifies in s 50(1) what orders of the Tribunal may be the subject of an appeal and an order refusing a re-hearing is not included. In my view there is no right of appeal against a decision refusing an application for a re-hearing.

[3] With respect I entirely agree with Judge Walker in his assessment of that and whether or not to grant a re-hearing is a discretionary matter so far as the Referee is concerned. There are other like discretionary matters within the realm of the Referee alone which are not subject to appeals. One of those, for example and merely to cite something that crossed my desk this morning, was a decision of a Referee to transfer a case to the District Court. I do not think that would be an appealable decision of the Referee either for it is not in that class of case set out in s 51 of the Act in which an appeal is permissible.

[4] So in that strict sense then, if it was merely the appeal against the declinature of the application to re-hear the matter then the appeal should be dismissed and in some respects that would be the end of it.

[5] But in this case the appellant acts for himself and there is a peculiarly large amount of material on the Disputes Tribunal file and also the appeal file to this Court including the numerous different minutes which have been made by the Referee in an effort to have resolved this matter in the Disputes Tribunal. There is a substantial quantity of correspondence to and from and between the appellants and the registry of this Court and the Tribunal since the application was first filed in May of 2010. It is because of this extraordinary quantity of material and because of what I think I understand to be the appellant‟s position, that in as much as 7 December was the most recent decision of the Referee declining the application for re-hearing, it is as much the decision itself which was given on 6 September 2010 which they appeal against. Whilst there is no economy of words so far as the appellants are concerned, at least in written form, that has the advantage at this stage for them that given that there was no right of appeal against the refusal to grant the re-hearing they have the

option of asking the Court to amend the appeal to an appeal against that substantive decision.

[6] In respect of such an application normally the respondent would have the opportunity to be heard, and the point is well made by Mr Waugh on behalf of the respondent that for such an appeal stricto sensu, they are well out of time and that there are no, or it is claimed that there are no defined appeal grounds set out which could be addressed by the respondent and focused upon as to whether or not in the limited sense in which s 50 of the Act allows appeals against the decision of the Tribunal, whether those grounds actually exist.

[7] But in this case because it is the antithesis of the usual case in the Disputes Tribunal; where parties bring their own cases; where the legislation provides for an early hearing of the issues; where there are relaxed rules of evidence; where there is informality; where there is an absence of lawyers; where there is a requirement to take legal matters into account if they are raised; where there is a focus on the substantial merits and justice of the case; where there are often resolutions before a Referee is required to make a finding and where there is the absence of expense incurred by the parties it is desirable that these matters be brought to an end as quickly as possible.

[8] The Disputes Tribunal used to be called the Small Claims Court for that is really what it is. It is a Court of small claims and it is designed by Parliament to be dealt with, with the objectives to which I have just referred in mind. As I say by now, in April 2011, this case is the antithesis of that. But it is because it has gone on so long and because there is such a welter of material on the Tribunal file together with the District Court file and because the pleadings of the appellants are so wordy that I think I can claim to have an understanding of exactly what this matter is about.

[9] So notwithstanding my observation that in the strict sense the appeal should be dismissed I am, in this case, going to grant leave to the appellants to appeal against the decision of 6 September 2010, there is nothing more they can add to what they have already set out and the grounds of their appeal against the decision to refuse the re-hearing are really much the same as the grounds of any general appeal,

if you will, in terms of the manner in which the Referee conducted the hearing which they claim were unfair to them and which unfairness they claim prejudicially affected the result of the proceedings. By prejudicially affecting the result of the proceedings I mean, effectively, they lost the case. They did not get the order that they sought. There was a very limited order made that they were to pay back the cost of some repairs which the respondent had performed to their vehicle after it was overheating. The case then went on from there because after that initial overheat and repair and within, it said, a short period of time there was what was described as “a catastrophic failure” of the engine incurring further loss for the appellants. Hence the claim that the respondent, as first repairer, had not done the job properly.

[10] But as I pointed out to Mr Boniface who represents the appellants at the appeal today, it is not my job to go into the details of all of that but only to look carefully at the procedures which were adopted to reach the conclusion which the Referee came to and to ascertain whether those procedures were unfair to the Bonifaces and that unfairness has prejudicially affected the result of the proceedings.

[11] It may seem immediately that the step which I have taken in this case is unfair to the respondent. After all as Mr Waugh has pointed out if I was to take this step one option would be to adjourn the matter now to a later date so that there could be a refinement of the appeal notice so that there would be no reference to the dismissed application for re-hearing and that there would be a focus on the decision of 6 September 2010. But in my view that further delay would be caused by that step and amongst such further delays; I take into account that Mr Boniface has explained that he has himself come back to Palmerston North today from his Australian address to argue this appeal himself. Of course if the appeal was adjourned it would be a financial cost to him, unless he instructed counsel, to come back to Palmerston North for any adjourned appeal on the basis of revised pleadings.

[12] As I have pointed out, in my view, the particular issues which are said to be the subject of the claim of unfairness on the part of the Referee can be distinctly distilled and narrowed down and it is now that which I wish to focus on.

[13] Even before the matter was heard by the Referee on 21 June 2010 there had been a plethora of emails between the Tribunal registry and Mr and Mrs Boniface in particular. In addition there appears to have been contact between the Bonifaces and the respondent with a view to trying to agree some details or otherwise resolve the matter. That is commendable. As a result, however, of them not doing so it is clear from my review of the file and from Mr Boniface‟s submissions this afternoon, that two days before the hearing on 18 June 2010 in an email communication with a member of the registry staff he laid clear his expectation that a person or persons had been or was to be summonsed to give evidence at the hearing the following Monday or were to be available for a conference call for evidence purposes.

[14] However, and the explanation for this is not known to me and in one sense does not matter, it apparently was later explained that there might have been another case involving not the AA but a firm called Palmfield Motors from which another witness was thought to have been summonsed to give evidence. The vehicle was a Subaru and they are the Subaru agents in Palmerston North and that was a Mr Bills.

[15] But neither the AA people or person or Mr Bills were at the hearing on

21 June 2010 and the Referee obviously, from the remarks that he has made in his decision and in his minutes preceding the decision as a result of advice given to him by the parties including Mr and Mrs Boniface, was ignorant of the emails of 18 June, made no reference to them and was advised that there were no witnesses in person to give evidence for and against the Boniface claim that he dealt with that day. He makes that clear in his minutes and in the decision and he proceeded on that basis. In light of the weight of the paper before him that is understandable. For given the manner in which matters can be placed before the Tribunal for consideration, it is often the case that there are statements placed before the Tribunal to be balanced against each other and the arguments of the parties and not necessarily the requirement of cross-examination by and between the parties or questioning by the Referee himself.

[16] So at the end of the hearing then the matter finished and the Referee notes that it took some three hours which is rather longer than many disputes take to be heard by a Referee. But that detail is contained in the appeal notes and in the

decision of the Referee, that is how I know it took so long. At the end of it there was left open one issue and that issue was the indication which Mr Boniface gave to the Referee of his wish to file some further written evidence. That appears to have arisen from something which cropped up during the hearing itself and is unrelated to the evidence of the AA person or persons or Mr Bills. That related to evidence as to the state of the weather on the time of the use of the car when it suffered the more major failure after the repair, I think I have that right.

[17] In this respect after the hearing there was a flurry of emails and in this subsequent interchange there was a requirement on the part of Mr Boniface, if not to address the issue as to the weather, then to bring to the attention of the Tribunal the evidence of the Palmfields' technician, that is Mr Bills who the Referee says in para [3] of his minute of 14 July:

...was supposed to be summonsed for the purposes of the hearing of 21 June

2010.

[18] He goes on to say:

I certainly have no recollection of Mr Boniface raising at the hearing the matter of an absent witness...

[19] And then goes on to check this matter. Nonetheless though at para [5] the

Referee himself re-opened the matter by saying this.

It is, nevertheless, important as a matter of natural justice, that Mr Boniface should not be prejudiced, or at least believe he is or might be, as a result of the absence from the hearing of 21 June 2010 of a technician from Palmfield Motors. Accordingly, the Tribunal is prepared to direct a further hearing for the purpose of receiving whatever evidence from Palmfield Motors, Palmerston North, the applicant, Mr Boniface wishes to present. Mr Boniface will have, therefore, seven days from the date stated below to inform the Tribunal whether he does or does not wish a further hearing...

[20] Then he made some procedural directions. This minute was referred to in a further minute of 22 July 2010.

[21] But before I go onto that minute I note that there was no reference by Mr Boniface in the exchanges following the hearing and before the issue of the minute of 4 July to the absent AA evidence which had been the subject of the emails

of 18 June which is a Friday, the Friday immediately before the hearing on Monday

21 June 2010.

[22] When the Referee came back to the matter there were a number of matters which were raised that, amongst them by minute of 22 July 2010 the Referee noted that the weather issue was not being taken further, but the Palmfield Motors‟ evidence was being taken further and attached to an email which Mr Boniface had filed was an affidavit from a Mr Ross Bills, an automotive technician employed by Palmfield Motors.

[23] The Referee made reference to what he regarded as an unsatisfactory situation in that the balance had now swung so that if there was not the opportunity for the respondent to answer these matters it might be a risk of unfairness to the respondent. He directed that there be a resumed hearing for that purpose. This was to be limited to the Bills‟ evidence so that there would be the opportunity for Mr Boniface to make sure that Mr Bills attended if he wished and to answer any questions and he was directed to apply for a witness summons if he so wished to do so.

[24] That was not taken further and at the beginning of the decision, the substantive decision in this case of 6 September 2010, there was a reference to the written submissions which came and the absence of a requirement from either party for a further hearing which was now regarded as not being necessary. Again, in paras [1] and [2] of that decision the Referee gave the background, parts of which I have just related, before he moved on to determine the matter on the evidence which was then before him.

[25] Again, in respect of the matters which he refers to, there is no evidence of any suggestion of any unfairness to the appellants by the absence of viva voce evidence from a member of the AA. I shall come back to that again shortly, but the failure of the Referee to ensure, or Court staff to have drawn to the Referee‟s attention the matters of the email of 18 June, no reference is made to those matters at that stage and if there had been an oversight on the part of any person, not the Referee who I think can justifiably claim to have been ignorant in the sense of

unknowing about the email, then there was that further opportunity for the appellants to have raised it at that stage.

[26] The Referee has then given the decision in respect of this matter. It is not for me to go into the factual findings which he makes or the failure to find a causative link between the repairs carried out by the respondent company and the shortly thereafter engine failure of the appellants car. Suffice to say that having found an absence of any tenable cause or link between those two matters he went on to say that he could not give the appellants any remedy beyond a refund of the cost of the respondent‟s repairs. That was a very small sum of money in the sum of $278.35 against the claim of thousands of the appellant‟s for the loss of the vehicle for apparently the engine repairs would have exceeded the value of the vehicle itself.

[27] What I do, however, refer to in this case though is the strong expression of the Referee in respect of the conclusion which he reached. Referring to para [15] of the Referee‟s decision he says:

In this matter I am convinced that the „substantial merits and justice,‟ fairness and equity of the case calls for a refund of the fee paid by Mr Boniface to Mr Sherman but absolutely no remedy beyond that.

[28] These are strong words from a Referee for his findings on the evidence which he heard.

[29] I take it to be the appellants‟ position again today that seeking to reopen the matter as it were that the fault and the unfairness which is or might have arisen in respect of the hearing on 21 June was the inability of the AA technical experts to be called as independent expert witnesses or for that matter on behalf of the appellants themselves.

[30] The other issue in respect of Mr Bills from Palmfield Motors, I think, evaporates upon the absence of requirement for continued hearing before the application for a re-hearing of the matter was itself filed. If I understand this case correctly the Referee had himself left open, not that there would be a re-hearing, but that there would be an extended original hearing of the matter and it has only been after the result has been adverse to the appellants that the application for the

re-hearing on the wider basis of evidence of Bills and AA person or persons has arisen again. Yet on my overview of the file it was open to the appellants to have raised this on the occasion of the issue of either of the minutes of the Referee when the matter had not been resolved by him, a decision had not been made and it had been left to the parties as to what was to occur subsequently. Indeed, at the end of the minute of 22 July, given that this related to the Palmfield Motors‟ technician, that the Referee had not been told of any desire continuing on the part of the appellants to ensure the attendance of the AA person or persons, the Referee said this in para [8] at the end of the minute:

No further documents are to be filed by either party after this date without the prior leave, ie, approval of the Tribunal.

[31] If there were other matters that were to be dealt with at what was then seen to be the continuation of the original hearing to a conclusion but with extended evidence, that left it open to either party to extend wider the category of further evidence to be adduced at the resumed hearing of the dispute on a later date.

[32] There is nothing on the record which shows that the appellant has taken the opportunity to seek the leave of the Tribunal on the basis in which the appeal is brought to this Court today, that if there was an existing unfairness in the absence of the evidence from the AA people, that this should be included by way of completeness at that stage. Rather the decision was given before the application was made for the re-hearing and then, as I have earlier outlined, on the omnibus type basis a rolled up appeal against what effectively and principally was the refusal to grant the re-hearing but also included an appeal against the substantive decision.

[33] In this light then the matter has to be weighed up as to whether or not there has been any unfairness on the part of the Tribunal and to resolve this issue I go back to the decision of the Tribunal itself of 6 September 2010. In this regard at para [9] there clearly was before the Referee at the time of the hearing the communications from Mr Hausin of the AA and his opinion in respect of the observations of Mr Sherman.

[34] To this extent it seems important that I note that the view of that member of the AA staff has, to the extent set out in para [9], already been taken into account in the Referee‟s decision. In that regard the appellant today refers to some of the evidence that was before the Referee which, in his view, favoured a finding which might have been adverse to the respondent but ignored the matters which the Referee has referred to. Any quick perusal of the file would show that there clearly was other evidence before the Referee which was the basis of, and the preferable basis in terms of acceptance, of his findings which effectively favoured the respondent. I made a note of two or three of these. The AA itself was one, the Quin and Quin insurance assessing firm was a second and a letter from Roy Eaton Automotive was a third.

[35] It is not as though the Referee has embarked upon decision making in an unbalanced way, not taking into account all the evidence that was before him however it was before him, manner. That seems to me to be fatal to the appeal and if I have isolated the issues correctly as to the absence of evidence from the particular parties then in a nutshell it is this. That there has been an opportunity to have had the hearing conclude with the inclusion of other witnesses whose evidence was not given or not available in oral form on 21 June. But that because of the subsequent history and a clear desire on the part of the Referee to do right by the parties and to be fair to them both and to dispose of the matter in a manner which was fair to them and to give extended deadlines for them to take the opportunity to call what evidence they would that might not have been available on the date of the initial hearing, exhaustive though that initial hearing might have been in the first place. In these appeals there is an obligation on the part of the appellant to show that there was the conduct of the hearing by the Referee in the manner which was unfair to the appellants and that that unfairness has prejudicially affected the result of the proceedings.

[36] In this case, to the contrary, the conduct of the hearing in my view seems to have been entirely fair and extensively so in the prolonged way in which this matter has played itself out and the opportunities to the appellants to have raised on earlier occasions the concerns which are brought before this Court by way of an appeal today. So that of the two limbs there has not been unfairness so far as the appellants

are concerned and for that reason this appeal cannot succeed and now must be dismissed.

ADDENDUM:

[37] The approach I take then to the application for costs, which I do not hear Mr Boniface to oppose, is to grant costs in favour of the respondent and that will be in the sum of $400. That is inclusive of GST.

G M Ross

District Court Judge