Jung v Thomas [2013] NZHC 887 (26 April 2013)

Last Updated: 8 May 2013

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1301 [2013] NZHC 887

IN THE MATTER OF an application for Judicial Review

BETWEEN DYLAN DAE BONG JUNG AND YANG HEE SHIN

Applicants

AND WILLIAM EARLE THOMAS First Respondent

AND DISPUTES TRIBUNAL Second Respondent

Hearing: 3 December 2012

Appearances: Applicants in person

R A Edwards as Amicus Curiae

Judgment: 26 April 2013

_{JUDGMENT OF PETERS J}

This judgment was delivered by Justice Peters on 26 April 2013 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors: Price Baker Berridge, Auckland: [e-mail]

_{Crown Law, Wellington: [e-mail]}

_{Counsel: R A Edwards, Auckland: [e-mail]}

_{Copy for: D D B Jung: [e-mail]}

JUNG V THOMAS HC AK CIV-2012-404-1301 [26 April 2013]

Introduction

[1] This is an application for judicial review of an order made in the Disputes Tribunal (“Tribunal”) in February 2012, declining to transfer proceedings commenced by the First Respondent (“Mr Thomas”) in September 2011.

[2] Mr Thomas, the Tribunal and the Attorney-General (whom I directed be served) abide the decision of the Court. Given that, I directed that an amicus, Ms R Edwards, be appointed and I thank her for her submissions. A copy of the Tribunal’s record has been filed.

[3] For reasons set out below, I am not satisfied that any ground of review is made out and I decline this application accordingly.

Background

[4] In May 2009 Mr Thomas commenced proceedings against the Applicants (“Jungs”) in the District Court at Auckland, seeking to recover damages of approximately $57,000.

[5] At the time Mr Thomas and the Jungs were the registered proprietors of units in a unit title development in Auckland. In 2005 they commenced proceedings against the Auckland City Council (as it was) and others. Those proceedings were settled in March 2007. The proceedings that Mr Thomas commenced in May 2009 were in respect of repair work that he alleged the Jungs were required to carry out to their unit, following the settlement. The Jungs defended the proceedings. Amongst other things, their case was that Mr Thomas’s proceedings were brought in breach of the settlement agreement.

[6] In August 2011, Mr Thomas abandoned the part of his claim that exceeded

$15,000 and sought an order from the District Court that the proceedings be transferred to the Tribunal. The reasons for his abandonment may be gleaned from the judgment of Judge Joyce to which I refer below. On 30 August 2011 a Registrar at the District Court made the order sought and Mr Thomas commenced proceedings

in the Tribunal by lodging a claim on 1 September 2011.1 In additional material lodged in the Tribunal, Mr Thomas stated that he could no longer to afford to litigate the dispute in District Court.2

[7] On 7 September 2011, the Jungs applied to review the order referred to in [6]

above. The application came before Judge Joyce in December 2011 and on

20 January 2012 Judge Joyce issued a judgment dismissing the application. In his judgment the Judge said:3

[18] ... Since the commencement of the proceedings [the Jungs] have been resisting on the interlocutory front, including by arguing beyond ordinary bounds over costs.

[19] The most recent of their applications – that which I suspect precipitated [Mr Thomas’s] pragmatic (obviously) decision to drop his claim to one for damages of $15,000 – was one that made, with respect, little sense except as an illustration of a non-constructive approach to the litigation.

[20] My overall impression is of an unwillingness on the part of [the Jungs] to address the real issues: that being, as I see it, manifest in the way in which they have tackled interlocutory issues ...

[8] On 23 December 2011, and so before Judge Joyce had given his judgment, the Jungs sought to file a counterclaim in the District Court proceedings. The counterclaim was more than two years out of time and on 23 December 2011

Judge Joyce directed it not be accepted for filing, pending leave being granted to do so. In his judgment, the Judge made the following statement regarding the counterclaim:4

[27] ... this is yet another discursive document bearing but marginal resemblance to a conventional pleading in a case which (coming as it does under the old rules) required that attention: It strikes me as nothi ng more than an in terrorem effort.

[9] Given Judge Joyce’s judgment there was no impediment to the Tribunal determining Mr Thomas’s proceedings.

1 Disputes Tribunals Act 1988, s 24(1).

2 Record of the Disputes Tribunal, 31 July 2012 at 73.

3 Thomas v Jung DC Auckland CIV 2009-004-001282, 20 January 2012.

4 Ibid.

[10] On 31 January 2012 the Jungs purported to file a counterclaim in the proceedings before the Tribunal. I mention three matters regarding that document.

[11] The first is that, in their written submissions, the Jungs state the counterclaim was lodged as an affirmative defence. In that case it was not a counterclaim at all.

[12] Secondly, the sum claimed was $400,000 and costs. That amount vastly exceeded the Tribunal’s jurisdiction. The Tribunal may order the payment of sums of up to $15,000 or, if the parties agree, up to $20,000.5 It was the Jungs’ intention to seek an award exceeding the Tribunal’s jurisdiction, because they believed that doing so would lead to Mr Thomas’s proceedings being transferred from the Tribunal to the High Court. In material accompanying the counterclaim, the Jungs stated that they:6

... would like to transfer this proceeding to the High Court because the claim amount is well over the limit of the [Tribunal].

[13] In support of the request to transfer, the Jungs referred to, and annexed a copy of, a letter dated 7 September 2011 from a Deputy Registrar of the District Court to then counsel for the Jungs. Amongst other things, that letter said:7

... [the Jungs] are entitled to file a counterclaim in the Tribunal for whatever amount they believe they are justified in claiming. If it is in fact outside the Tribunal’s jurisdiction, the Tribunal will not have jurisdiction to hear it and will have to transfer both the claim and the counterclaim back to the District Court for determination.

[14] I doubt the statements in that letter are correct but, regardless, they could not bind the Tribunal in any way.

[15] The third matter is that I have reservations as to whether, in fact, the Tribunal has power to receive a counterclaim. Nothing turns on this point for the purpose of

_{this application. I note, however, that proceedings in the Tribunal are commenced by}

5 Disputes Tribunals Act 1988, s 10.

6 Record of the Disputes Tribunal, above n 2, at 90.

lodging a claim in the prescribed form together with the prescribed fee.8 On receipt of such a claim, the Registrar is required to fix a time and place of hearing and notify the parties of the same.9 There is no provision in the Disputes Tribunals Act 1988 (“Act”) or in the Disputes Tribunals Rules 1989 (“Rules”) for the filing of a counterclaim and the Rules do not prescribe any form for filing a counterclaim. Sections 11(1) and 11(9) of the Act refer to a claim “in the nature of a counterclaim” but that is still a claim. There is also provision in the Act for two or more claims to be heard together, which might assist if those claims required the Tribunal to address common facts or issues.10

[16] By notice dated 10 February 2012 the Tribunal notified the parties that

Mr Thomas’s claim was to be heard on 16 March 2012.11

[17] By letter dated 17 February 2012, the Tribunal advised the parties that a Tribunal Referee had dismissed the request referred to in [12] above, namely that the Tribunal should transfer the proceedings to the High Court.12

[18] By email dated 17 February 2012, the Jungs were advised that the Tribunal had accepted the counterclaim in error; that the counterclaim was being returned with a refund of the filing fee; and advising that the Jungs would have to file their claim in the High Court, and apply to the High Court for an order transferring the proceedings before the Tribunal to the High Court.13 In their written submissions, the Jungs state that the counterclaim and filing fee have not been returned or reimbursed as the case may be. They may raise that matter with the Tribunal if they

_{wish but the point is irrelevant to this application.}

8 Disputes Tribunals Act 1988, s 24(1).

9 Ibid, s 25(1).

10 Ibid, s 39(2).

11 Record of the Disputes Tribunal, above n 2, at 138.

12 Ibid, at 142.

Discussion

[19] The grounds on which review is sought are not stated in the statement of claim. However, the relief sought is that the High Court should:14

... cancel the hearing on 16 March 2012 in [the Tribunal] and transfer the proceedings to the High Court because the Tribunal does not have any jurisdiction over $15,000 (or less than $20,000 if everyone agrees). Their decision to hear a $400,000 counterclaim filed on 31 January 2012 should be cancelled.

[20] The Jungs also refer in their statement of claim to s 36 of the Act, ss 30, 44 and 45 of the District Courts Act 1947 and r 5.64 of the High Court Rules.

[21] The Tribunal is established under the Act. As a matter of principle decisions of the Tribunal are subject to review. However, such review takes place in light of the purpose and content of the Act15 and, as was said in Evans v Disputes Tribunal at New Plymouth:16

It must be emphasised that this proceeding is not by way of appeal, either on fact or on law, but an application for review of a Tribunal which is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. If a plaintiff cannot come within the limited scope of appeal provided by s 50 of the Act, the prospects of inducing this Court to intervene by way of review are slight.

[22] Turning to the relief sought, I am satisfied that the Tribunal has not made any decision to hear the Jungs’ claim (or counterclaim) for $400,000. That is apparent from the matters referred to in [18]. Given that, it is not necessary for this Court to make any order concerning that claim.

[23] That being the case, the only matter before the Tribunal is

_{Mr Thomas’s proceedings, in which he seeks an award of $15,000. I am not aware}

14 Statement of claim, 12 March 2012 at [6].

15 Murray v Disputes Tribunal [2012] NZHC 2206; Bellis v Green (1991) 5 PRNZ 21; Evans v Disputes Tribunal at New Plymouth (2000) 14 PRNZ 183; and Earthquake Commission v Disputes Tribunal (1996) 10 PRNZ 317.

16 Evans v Disputes Tribunal at New Plymouth at [17].

of any jurisdiction that would enable to me to transfer those proceedings to this

Court. Nor would I exercise such jurisdiction if it existed.

[24] The Tribunal has power to transfer proceedings to the District Court pursuant to s 36 of the Act, being a provision to which the Jungs refer in their statement of claim. The Tribunal does not have power to refer proceedings to the High Court.

[25] Section 36(1) is concerned with the transfer to the District Court of proceedings which the Tribunal determines are outside its jurisdiction. The Tribunal has made no such determination in respect of the proceedings commenced by Mr Thomas.

[26] Section 36(2) provides that the Tribunal may transfer proceedings commenced in the Tribunal to a District Court if, in the opinion of the Tribunal, the proceedings would be more properly determined in a District Court. The Tribunal has determined that it should hear Mr Thomas’s claim. The sum Mr Thomas claims is within the jurisdiction of the Tribunal. The proceedings were transferred from the District Court to the Tribunal and the District Court dismissed the Jungs’ application to review the order for transfer. I do not consider there is any basis for interfering with those decisions.

[27] I have reviewed the other provisions referred to in [20]. I am not satisfied that they have any relevance to this application.

[28] The other issue which arises is that referred to in [5] above, namely that the Jungs consider Mr Thomas has filed his proceedings in breach of the settlement agreement. Given the decisions I have reached, it will be for the Jungs to make any submission to that effect to the Tribunal when it hears Mr Thomas’s proceedings.

[29] I dismiss this application accordingly. There will be no order as to costs.

..................................................................

M Peters J