Hinds Bus and Truck Limited v Tasman Coach Services Limited DC Nelson CIV-2012-042-260 [2012] NZDC 1809 (2 November 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT NELSON

_{CIV-2012-042-000260}

BETWEEN HINDS BUS & TRUCK LIMITED Appellant

AND TASMAN COACH SERVICES LIMITED Respondent

Hearing: 26 October 2012

Appearances: M J Perry for the Appellant

J Churchill for the Respondent

Judgment: 2 November 2012

RESERVED JUDGMENT OF JUDGE A A ZOHRAB [as to an appeal from an order of the Disputes Tribunal]

Introduction

[1] This is an appeal from an order of the Disputes Tribunal (“the Tribunal”) dated 26 April 2012 whereby Hinds Bus & Truck Limited (“the appellant”) was ordered to pay Tasman Coach Services Limited (“the respondent”) the sum of

$4552.90 on or before 7 May 2012.

[2] The respondent purchased a second-hand bus allegedly from the appellant in November 2011 for $4350. The motor was represented as being in good running order.

[3] Upon delivery, the respondent arranged for Lloyd Heslop Motors Limited (“LHM”) to install the motor into the bus. LHM was concerned about the condition of the motor because the turbo charger appeared to be in poor condition and openings into the motor had not been covered, possibly allowing contaminants into

_{the motor.}

HINDS BUS & TRUCK LIMITED V TASMAN COACH SERVICES LIMITED DC NEL CIV-2012-042-

000260 [2 November 2012]

[4] LHM took the head off the motor and discovered sludge and oil, a blown head gasket, and loose valve guides. The respondent advised Mr Perry about the matter and requested a refund. $1000 was refunded and the respondent claimed a refund of the remaining $3350 plus freight costs of $333.50 and $869.40 for LHM’s work.

[5] Despite being advised of the hearing date, there was no appearance of the appellant or Mr Perry and the hearing proceeded without a respondent.

[6] The referee decided to rely on the Fair Trading Act 1986 in making her decision. She concluded that the appellant was in the trade of supplying bus engines and the representation made that the engine was in good running order was both false and misleading. She found that the respondent was entitled to a refund of the purchase price because the cost of putting the engine into good running order exceeded the purchase price. Further, the respondent had incurred freight costs and costs associated with attempting to install the engine, and was entitled to damages to cover those.

[7] Accordingly, the appellant was ordered to pay a refund of $3350, plus freight costs of $333.50 and $869.40 for the work done by LHM.

[8] The referee noted an email dated 22 November 2011 in which Mr Perry had offered to locate and supply another motor from the UK but observed that was impractical in the circumstances because the respondent urgently required another motor so it could get its bus back into service.

Grounds of appeal

[9] Mr Perry appeared on behalf of the appellant and contended that the manner in which the referee conducted the hearing was unfair to the appellant and prejudicially affected the result of the proceedings. The appellant’s grounds of appeal as per the notice of appeal were as follows:

(a) The name of the applicant on the original notice of hearing before the Tribunal was that of a limited company, Tasman Coast Services Limited, that did not exist, nor has ever been registered at the Companies Office, and is not a legal entity.

(b) Mr Perry wrote to the Court on 19 April 2012 drawing the attention of the Court to that fact.

(c) Mr Perry wrote to the District Court at Nelson on 26 March 2012 raising issues regarding the correct issue of proceedings and the true identities of the parties to the dispute, and that was not answered until

19 April 2012 by way of email.

(d) Mr Perry stated in his letter of 26 March 2012 that his:

“legal responsibilities will commence when I have been sent a genuine and accurate summons brought by the correct Applicant and issued against the correct Respondent – only then can I assess my situation and attend a hearing at which I can make appropriate representations to defend myself. I am certain that the Referee will both agree with and accept my position – he or she cannot commence hearing a claim if both the Applicant and the Respondent have been misrepresented on the paperwork that first set the process in motion.”

(e) When the Court wrote to Mr Perry by way of email on 19 April it advised that a teleconference from Ashburton Court had been only “tentatively arranged”. The opportunity for Mr Perry to receive the assurance he required that the correct parties would be identified prior to the hearing was effectively denied to him. Before commencing the trip to Nelson Mr Perry wanted to be assured that the correct parties would be identified prior to the hearing.

(f) Mr Perry, the appellant, and UK Bus Dismantlers Limited were all denied a fair hearing due to their quite justifiable non-appearance at the sitting of the Tribunal on 26 April and the referee has “blundered on with a hearing that should never have been commenced if the representations of the respondents had been correctly considered prior

to the arrangement of a date of hearing and then only the correct respondent would have been cited and had the opportunity to attend/offer his defence”.

(g) By commencing the hearing without the presence of any of the three respondents, the referee acted in a manner prejudicial to their interests.

(h) The order of the Tribunal signed by the referee is incorrect when it says that Jack Churchill (Director) attended for the appellant. Jack Churchill appeared as the applicant.

(i) Mr Norris attended at the hearing and has really been a legal advisor which is contrary to the spirit intended of the Disputes Tribunals Act

1988.

(j) Mr Perry in his personal capacity was the correct party to the transaction and he was willing to answer the claim.

(k) All of the foregoing matters add up to a serious and genuine miscarriage of justice that has been “perpetrated” by the manner in which the referee conducted the hearing.

Respondent’s position

[10] The respondent opposes the appeal.

Tribunal decisions

[11] Tribunal referees are granted wide statutory powers under the Disputes

Tribunals Act 1988 (“the Act”) to deal with claims that do not exceed a value of

$15,000. If both parties agree (but not otherwise) then jurisdiction can be extended to $20,000.

[12] The statutory powers given to the Tribunal under s 18 of the Act are to attempt to encourage parties to settle their claims but, if that fails, it is to proceed to decide the claim on the “substantial merits and justice of the case”. Section 18(6) specifically says that in making its judgment based on the substantial merits and justice of the case, the Tribunal, “Shall have regard to the law, but should not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.” The Tribunal can also ignore exempting clauses of a contract.

[13] The parties are not entitled to legal representation, but are left to present their own cases as best they can.

[14] It can be seen from the foregoing that applicants before the Tribunal ought not to expect a determination otherwise than on a very broad basis of justice as a particular referee views the matter. The law in contractual terms is secondary to the overall substantial justice of the matter.

Powers of this Court on appeal

[15] It is therefore not surprising that the powers of this Court on appeal are very restricted. The right to appeal only arises pursuant to s 50(1)(b) where the hearing has been carried out in a manner which was “unfair to the appellant and prejudicially affected the result of the proceedings”. It is now settled law, however, that the meaning of this statutory power is such that it is restricted to procedural unfairness, rather than the merits of the claim (NZI Insurance Limited v Auckland District Court [1993] 3 NZLR 453).

[16] By procedural unfairness it is meant, for example, that a party has not been given a proper opportunity to present their case, or a proper opportunity to ask questions of witnesses. The Court cannot hear appeals on the basis that the referee exceeded jurisdiction unless there is also some procedural unfairness in this regard, or that the referee made an error of law (Mellow v Tsang [2004] NZAR 537, 544 (HC)). The Court does not have jurisdiction on appeal to revise the merits of the referee’s decision, unless the decision is obviously wrong in such a way that it cannot be described as a determination according to the substantial merits and justice

of the case (NZ Insurance Limited v Blenheim District Court (2001) 16 PRNZ 493,

499 (HC)). But it requires a strong and clear case to show the decision was not in accordance with the substantial merits and justice of the case (Bayley Investments Trust v Salkeld [2003] NZAR 344 (HC)).

[17] The Act specifically provides in s50(2)(a) that a ground for appeal would arise if the referee failed to have regard to any provision of any enactment (i.e. a statutory provision) that is specifically brought to the referee’s attention and relied upon by one of the parties. Even then it must be shown that a result of the failure to rely on the statutory provision is unfair to the appellant. It can be seen therefore that the mere fact a referee may have overlooked or ignored some provision in a contract, or some general principle of law, does not provide a basis for an appeal.

[18] It is clear therefore that this Court on appeal has jurisdiction to direct a rehearing of the matter, or otherwise revise the decision of the Tribunal if some procedural unfairness has occurred, or if a statute that has been brought to the referee’s attention is ignored by that referee. Even then it must be shown that the result is unjust.

Appeal report of referee

[19] In her appeal report dated 14 August 2012 the referee responded to the appeal points raised by Mr Perry as follows:

(a) The referee acknowledges the typographical error in the notice of hearing sent to the respondents that was identified by Mr Perry’s letter of 26 March 2012. Ms Vaile from the Court was directed to respond to the letter advising Mr Perry that the referee would determine the correct parties to the case at the hearing and she did so. The referee notes that the applicant was correctly identified as Tasman Coach Services Limited on the claim form, which was sent together with the notice of hearing.

(b) Mr Perry’s letter dated 26 March 2012 was not received by the Court until 11 April 2012. The letter was referred to the referee and, after consultation, Ms Vaile from the Court responded by email dated 19

April 2012. Mr Perry was advised that the correct parties would be determined at the hearing in the letter sent by the Court dated 19 April

2012.

(c) As a consequence of Ms Vaile’s email of 19 April 2012 Mr Perry can

have been in no doubt that the hearing was proceeding on 26 April

2012. The referee acknowledged that Mr Perry’s response email of 19

April 2012 was not referred to prior to the hearing on 26 April, but notes that even if she had received an email she would have proceeded with the hearing as his email simply asserts his position that the names of the parties are incorrect and further states that he will not attend the hearing until he has received a summons to do so that has been truthfully and accurately placed before the Court as an accurate representation of the facts. Mr Perry had already been advised that the hearing was to proceed on 26 April 2012 and had the opportunity to attend as he desired to do so. A teleconference had tentatively been arranged at the Ashburton Court awaiting confirmation from Mr Perry. The referee advised in her report that Tribunal hearings do proceed in the absence of parties who have been properly notified of a hearing but do not attend.

(d) The referee acknowledges that in her original decision and order dated

26 April 2012 she had incorrectly noted that Jack Churchill attended for Hinds Bus & Truck Limited when it should have been Tasman Coach Services Limited. She acknowledges that was an error on her part, but was of the view it was clear from the decision that Mr Churchill attended for Tasman Coach Services Limited.

(e) Mr Norris was not a representative of Tasman Coach Services Limited at the hearing. Mr Churchill was. Mr Norris is not a lawyer and was a witness giving evidence as to communications between himself and

the other party on behalf of Tasman Coach Services Limited. The referee advised that Mr Norris did not play a prominent role in the hearing. The hearing lasted 1 hour and 48 minutes, and Mr Norris’s evidence was the last 15 minutes of the hearing. Finally, any business arrangement between Tasman Coach Services Limited and Mr Norris or Norris Management Services Limited for the supply of services is not a matter for the Tribunal.

(f) The hearing was conducted in accordance with the Act and the

Tribunal’s practices and procedures.

(g) All of the issues raised on the appeal were raised by Hinds Bus & Truck Limited in the application for rehearing and which were addressed in the Tribunal’s decision of 5 July 2012 in which the Tribunal concluded it could find no grounds upon which an application for a rehearing could be reasonably granted.

Discussion and decision

[20] In my view there is nothing of any significance in the typographical error relating to the notice of hearing in which the applicant is named as Tasman Coast Services Limited. It was made abundantly clear to the parties to whom the matter was addressed as to what the issues were and the claim form clearly outlines the nature of the claim, the parties and refers to significant correspondence with Mr Perry.

[21] The Tribunal is designed to deal expeditiously with relatively modest claims and there is more than sufficient information in the claim form to put both Mr Perry and the various other parties mentioned in the correspondence on notice as to what was going to be in issue before the Tribunal.

[22] Mr Perry was advised by way of email dated 19 April 2012 with respect to his letter of 26 March 2012 raising issues about the correct identification of parties that:

I have placed your letter on file and the Referee will consider this on the day of hearing. It is the role of the Referee to determine applicable parties to the case.

I note this matter is set down next week. I have tentatively arranged a teleconference at the Ashburton Court for you to attend. Please confirm if you wish for me to firm up this booking.

[23] It was made abundantly clear to the parties to whom the notice of hearing was sent, and also to Mr Perry, that there was a firm date set for the hearing and that it was for the referee to decide who the parties were.

[24] Mr Perry replied by way of email dated 19 April that he was not satisfied with the response and, amongst other things, stated as follows:

My legal responsibilities will commence when I have been sent a genuine and accurate summons brought by the correct Applicant and issued against the correct Respondent - only then can I assess my situation and attend a hearing at which I can make appropriate representations to defend myself.

I am certain that the Referee will both agree with and accept my position – he or she cannot commence hearing a claim if both the Applicant and the Respondent have been mis-represented on the paperwork that first set the process in motion!!

In view of the vague definition of an email is a legal document, please note that it is my intention to print off this email and post it to you with my signature to ensure that it obtains a legally binding status.

[25] In my view there is nothing of any substance raised in Mr Perry’s submission that the referee was not aware of this response at the time of the hearing. Mr Perry and the various parties were aware of the date of hearing and had been advised that it was for the referee to make a decision as to whom the correct parties were to the agreement and the Court was prepared to facilitate Mr Perry’s appearance by way of teleconference.

[26] It is for the referee to decide who the correct parties are and whether or not documentation has been appropriately filled out, not for Mr Perry.

[27] Mr Perry has presumptuously stated in his email of 19 April he was certain that the referee would both agree with and accept his position. However, the referee

did not agree with and accept his position and, in my view, she was entitled to reach that conclusion.

[28] The Tribunal is supposed to be a cost effective way of resolving relatively modest disputes. It was made abundantly clear to Mr Perry and the various other parties noted in the notice of hearing what was at issue and the referee was not prevented from dealing with the matter simply because some of the paperwork was typographically deficient.

[29] Most significantly, Mr Perry and the other named respondents were well aware of the hearing date and he chose not to appear in his own personal capacity or on behalf of the other parties named in the notice of hearing and did so at his peril.

[30] Mr Perry contends that “the referee blundered on with a hearing that should never have been commenced”. However, with all due respect, the only person who has blundered is Mr Perry for arrogantly choosing not to partake in the hearing.

[31] In my view, there has been no unfairness of a procedural nature as Mr Perry has failed to attend in defiance of the notice of hearing. The referee was perfectly entitled to deal with the matter on a robust commercial basis and conclude that Mr Perry and others did not want to appear. The respondent appeared and was entitled to its “day in Court”.

[32] Further, the suggestion that the reference in the order to Jack Churchill attending for Hinds Bus & Truck Limited somehow calls into question the validity of both the hearing and the decision defies commonsense. Mr Perry knew who Mr Churchill was appearing for and it is apparent from the decision and order that the referee knew who Mr Churchill was appearing for.

[33] Mr Perry is correct that lawyers cannot appear on behalf of either an applicant or respondent before the Tribunal. Mr Norris is not a lawyer and did not hold himself out a lawyer in the course of the hearing. He appeared simply as a witness for 15 minutes of the 1 hour and 45 minute hearing, so there is nothing in this submission.

[34] In my view, the matters raised by Mr Perry have already been dealt with by the referee in her refusal of the grant of rehearing. However, notwithstanding the attempt to relitigate those same matters, I am of the view that there has been no procedural unfairness. Whilst it is regrettable that there was no appearance from the various named respondents, or Mr Perry, the fault for the non appearance and loss of opportunity to argue the merits of the case rests solely with Mr Perry.

[35] The appeal is dismissed.

A A Zohrab

District Court Judge