Cross v Martin DC Palmerston North CIV-2012-054-390 [2012] NZDC 1794 (30 October 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT PALMERSTON NORTH

_{CIV-2012-054-000390}

BETWEEN PAULA SUSAN CROSS Appellant

AND LESLEY MARTIN Respondent

Hearing: 30 October 2012

Appearances: Appellant appears in Person

Respondent appears in Person

Judgment: 30 October 2012

_{ORAL JUDGMENT OF JUDGE G M ROSS}

[1] The matter that I am dealing with is an appeal by Ms Cross who is the appellant and the respondent is Ms Martin and it is in relation to a decision of the Referee of the Disputes Tribunal at Palmerston North. The decision is dated

17 August 2012 and that decision was that there was to be made a payment by

Ms Cross to Ms Martin of the sum of $79.50 and that was to be paid by

24 August 2012.

[2] It is made clear at the beginning of her appeal that Ms Cross regards this as an important matter of principle for her far exceeding the mere $79.50 which is the subject matter of the order which is now appealed against. The appeal relates to a website auction from her selling site and purchase by today’s respondent of a jacket.

[3] There are limited grounds of an appeal from a Referee of the Disputes Tribunal and Parliament has made it that way for good reason. It used to be called the Small Claims Court or Small Claims Tribunal and there, there were modest limits financially to the jurisdiction. No representation of parties by lawyers,

_{which is still the same, easy access and inexpensive access to relatively rough justice}

CROSS V MARTIN DC PMN CIV-2012-054-000390 [30 October 2012]

in the sense that the Tribunal’s referees did not have to be qualified lawyers and in many cases were not. However, they gave their decisions almost straight away and they were obliged to comply with the general requirement under s 18(6) Disputes Tribunal Act 1988:

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.

[4] That is now called the Disputes Tribunal but the restriction on appeals to the District Court remain. Those appeals can only be upheld if a referee has been found to have conducted a hearing in a manner which is unfair to a party and that unfairness has prejudicially affected the results of the proceedings.

[5] This means that it is a procedural or process issue only which can found an appeal to the District Court. In this case the grounds of the appeal are more technical than that, and it is not as though the referee has failed to have regard to any provision of an enactment which has been brought to his attention or that he has applied that wrongly. It is the decision that he has reached on the basis of the evidence that he has heard and the application of the law to the evidence that is challenged.

[6] As I say it is not a case where it is really advanced on behalf to the appellant that the issues of her being bullied or not allowed to present her case or there has been a greater emphasis placed on the respondent’s case. I indicated during the course of the hearing today that I did not think that any suggestion of her being bullied would be upheld because of my observation of her as an assertive person who was well able to stand up for herself and to defend her corner capably, a person with a salesperson’s type of personality, not a shy retiring type and somebody who had obviously intimate product knowledge from experience of marketing both the particular product which was sold to the respondent and in the manner in which this was sold.

[7] However, what has occurred then is that a claim is made that he has got it wrong in respect of the law in relation to this matter as it has been applied to the facts which he has determined. I appreciate for Ms Cross that, as she sets out in her

appeal notice, it is important for her and her business reputation to state accurately what is for sale and it is offensive for her to have a ruling against her that a representation in an advertisement has induced a sale when the representation was described as a misrepresentation even though it was clearly pointed out by the referee that it was not on any kind of deliberate basis.

[8] So that is, in a sense, the issue at the end of the day in respect of the referee’s decision. So given that there are no particular procedural or process issues with the manner of the hearing or the way in which it was conducted by the referee I turn to see if, in respect of the adoption of evidence or parts of it or the application of the law to the evidence as the referee determined it to be or the emphasis which he placed on certain parts of the evidence, has fulfilled that strict criteria of being unfair to the appellant, such unfairness obviously because of the outcome for her affecting the results of the proceedings.

[9] In this regard the present situation of the law is that it can only be if the referee has got it totally wrong in his application of the law or his failure to have regard to an important point or part of the law which he should have applied which might have led to a different result or if he has failed totally to understand the nature of the contractual arrangement between the parties.

[10] In considering this appeal and in listening to the submissions of Ms Cross and Ms Martin in reply, I cannot say that I am taken to that point. In these cases the referee is an independent judicial officer who comes afresh to the transaction which has been completed between these parties and that means that, as he has set out in his decision, he has to define the issues as he sees them between the parties and he has defined the issues here. He must reach certain factual conclusions from the evidence which is before him and in doing that his position is governed by s 40 Disputes Tribunals Act which enables him to take into account evidence of a wide variety of kinds and in different ways so that evidence which might not normally be evidence before a Court or adduced in a way which is perfectly admissible in a Court of law can be taken into account by the referee.

[11] But just because he does not mention particular pieces of evidence in his decision does not mean that he has not considered that evidence and he is entitled to place emphasis on evidence that he has considered or if it is appropriate to reject other parts of evidence that he has accepted.

[12] Moreover he is entitled to analyse the evidence that he has heard and it seems to me here that in doing what he has done and economically setting out the decision which he has given in two pages, which includes his assessment of the evidence that he has heard and his analysis of that evidence and the adoption of those facts which he has accepted to the law, that he has logically and economically encaptured the essence of this case.

[13] The essence of this case is that it seems to me there are two sides of it and the side that he has chosen to adopt, as I say on the evidence which he has heard and on the law to which he has referred, relates to this particular purchaser and this particular transaction and it matters not that there might be numerous other transactions of a like type where persons are not the subject of a misrepresentation or an inducement to purchase.

[14] What he was looking at was this transaction, the evidence from Ms Martin, as to why she made this purchase from this advertisement at that time and it relates to this jacket. When the transaction is boiled down to those particular respects and it is an individual and unique transaction between these parties but with the common feature that there obviously are others who see and purchase as a result of the description of goods advertised for sale by Ms Cross.

[15] It is nonetheless the reliance on the description of the jacket in the advertisement which has induced Ms Martin to purchase that jacket and that is with some background in the matter and some knowledge of the product as it was advertised to be and then a taking up with the vendor of her concerns upon her receipt of that jacket.

[16] This does not mean at all that so far as Ms Cross is concerned that there is some kind of challenge to her business ethos or that her reputation need be tarnished

in any way. It just means that for some purchasers clearly a caution in the description of the items which are for sale is required. In the light of the evidence which was referred to by the referee in his decision, and what he has chosen to adopt from the advertisement and from the manufacturer’s sites which have been produced to him in documentary evidence, those are matters for him in respect of the nature of the item, the nature of the manufacturer of the item and where the particular item in the view of the purchaser fell as against the particular wider brand name.

[17] So that here, given that he has determined the matter on the basis of his consideration of the evidence that he has seen, as I say, the adoption of the view that there has been a misrepresentation in terms of s 6 Contractual Remedies Act 1976. His analysis, his logical putting together of these matters leading to the result that the remedy section of the Contractual Remedies Act, should be applied. I cannot see any fault in that process which he has adopted or the expression which he has reached and has made in reaching his decision in respect of this particular transaction.

[18] I go back to where I started that generally these matters are to be dealt with on the merits and justice of the case and legal issues, whilst they are to be taken into account, are a part of the decision making process but need not be all of it in any event.

[19] In this case I think that this particular referee has summed up this matter more than adequately and I cannot find fault with that course.

[20] For these reasons, Ms Cross, the appeal must be dismissed and it is. His decision is upheld, the money will have to be paid within seven days of this date and I understand that the jacket has already been returned.

[21] I do not make any other orders in this case. The matter has got some significance reputationally so far as the appellant is concerned. I would not have thought it had come to that, it need not harm her reputation, it is one case clearly out of thousands which she tells me that she has been involved in. But that is the way

that the referee saw it and there are insufficient grounds for me to turn over his decision.

G M Ross

District Court Judge