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Accident Compensation Cases

Housing New Zealand Ltd v Bell (DC, 04/09/96)

Judgment Text

Judge T H Everitt
This is an appeal brought by Housing New Zealand Limited against a decision of the Tenancy Tribunal sitting at Dunedin, the respondent is K Bell. The appeal number is 547-8 of 96. Housing New Zealand Limited is represented by Ms Wilson and the respondent K Bell by Mr Horder. Ms Wilson presented helpful submissions in writing and opened by seeking leave to have the appeal conducted by way of a complete rehearing on the evidence and had three witnesses available and briefed to give evidence. 
I made it an initial ruling without giving reasons in full but some reasons, refusing that application and the appeal then proceeded on the basis of Ms Wilson making submissions as to the questions of breach and compensation, particularly in relation to the Accident Rehabilitation and Compensation Insurance Act 1992, Section 14. She submitted that there was insufficient evidence to support a finding of a breach of Section 45 (1) (B) and submitted that the award of compensation appeared to be based on loss of wages or a great deal of its consideration and that was statute barred. 
During the hearing of submissions it became apparent to me that the appeal did have some merit and Mr Horder I think very properly and responsibly, accepted that in a great part the order for compensation was in error being contrary to Section 14 of the Act that I have referred to. I further discussed with counsel the possibility of there being a rehearing, as I have jurisdiction under Section 118 of the Act to quash the order and order a rehearing. 
I discussed that with Mr Horder and Ms Wilson and was conscious of the fact that I had not heard any full submissions from Mr Horder, as he had not been called upon to answer at that point. 
Again I think quite responsibly and properly Mr Horder considered the matter in the interests of his client, that perhaps a rehearing would be appropriate and I have invited counsel to consider the terms of a rehearing. I have now received an agreement by counsel that I should quash the order and order a rehearing, I just interpose here at this point, is it accepted before a different adjudicator or the same adjudicator? The order to be for the rehearing before a different adjudicator. 
The conditions of that rehearing are first the parties are entitled to be represented by counsel. This is a matter of comment by me that it is not usual for counsel to represent parties before the Residential Tenancies Tribunal. However, here I think the Tribunal would be assisted greatly by counsel's submissions, particularly on the questions of law that are inevitably going to be raised. 
The second matter of agreement is that the parties are to exchange briefs of evidence no later than seven days before the notified hearing date of the rehearing. 
Third I order a stay of proceedings in respect of the existing rental arrears owed by Mrs Bell to Housing New Zealand. 
Fourth to make it perfectly plain in any event, the question of termination of tenancy is not to be a matter before the Tribunal at the rehearing, on the ground of the existing rental arrears of $975. That is intended and I comment here to make it plain, that the existing arrears are going to be dealt with under the present rehearing application. Termination of tenancy is not to be an issue. 
Fifth the question of compensation or any compensation that may arise is to be left to the sole discretion of the adjudicator under the Act who hears the application for rehearing. 
I think I should take an opportunity to mention one or two matters that have come to my attention during the hearing of this appeal, and first I wish to say that generally speaking the Tribunal is a specialist Tribunal set up by Parliament under the Residential Tenancies Act 1986 for the purpose of hearing disputes between landlords and tenants in a residential sense or residential context. It has developed over the years an expertise, a procedure and protocols and generally in my view, acts within the spirit of the Act as one can take from the various provisions in the statute. The next point I want to make is this, that appeals to the District Court on questions of fact are unlikely to be successful unless it can be shown that there was no evidence to support the finding of fact, or the adjudicator engaged in unacceptable, unconscionable, procedural or other misconduct which affected in the finding of fact. 
I would like to say that reasons should be given by the adjudicator in his or her decision for the findings of fact and the application of the law, adequate for the issues before the Tribunal. The purpose of this note is that on an appeal it is apparent that the orders made are not supported by adequate reasons for the issues before the Tribunal and it may be a helpful guidance to the adjudicator to consider setting out in a little more detail the reasons adequate for the issues. 
This appeal has also raised an issue relating to the attitude of parties to a Tribunal adjudication and it is my view that all participants before the Residential Tenancies Tribunal should and must attend at the hearing fully prepared with all the evidence that they consider to be relevant as to the notified issues, whether they agree with the merit of the notified issues or not. Here it was apparent that Housing New Zealand did not consider it appropriate to bring evidence along because of certain matters, because it believed the issue being raised by Mrs Bell as to compensation was statute barred. The lesson in all of this is for participants to be at the Tribunal with their evidence in full because it ill behoves a participant to then appeal to this Court on questions of fact, claiming that they had further evidence which was not heard, and this raises the question that I have passed over briefly and mentioned earlier to counsel this morning, that it will not be in all cases of an appeal that it will be heard de novo. Each case has to be approached on its own facts as to the necessity and need to have further evidence or new evidence called. 
As to guidance of matters such as a breach of Section 49, the landlords responsibilities, it is my view that a mere technical breach will not always require an order for monetary compensation. I believe that before monetary compensation orders can be made there must be a finding that there was conduct or a failure to act on the part of the landlord which a reasonable person would regard as a significant breach of the landlord's obligations, and it is in this regard that I believe the Tribunal is best placed to determine this question, having regard to its expertise and its jurisdiction under the Act. Not every breach, in short, will require monetary compensation. 
Finally it is clear to me on the papers that there can be no real complaint about the adjudicator's finding of fact. The evidence which Housing New Zealand wished to place before me was not placed before the adjudicator and one can hardly complain in those circumstances. Second, the adjudicator having appeared to find a breach of the landlord's obligations, it is my view that rather insufficient reasons were given for the finding. The final matter is that this rehearing and appeal does have merit in that the order for compensation has proceeded on the basis of an error of law in that in my view, and I confirm, the Tenancy Tribunal has no jurisdiction to award compensation for injuries, loss of wages, medical fees or anything of that nature arising as a result of an accident pursuant to the tenancy. That is a matter which is fully covered by Section 14 of the Act that I have already referred to. 
Apart from those observations, and that is all they all, I think that concludes the matter Mr Horder and Ms Wilson. You can address me on costs, Ms Wilson particularly. 
It is not an appropriate case where I order or would consider ordering costs in any general jurisdiction that I have because of the way that the appeal has devolved, and in any event Mr Horder advises me that his client is legally aided. Ms Wilson also confirms that Housing New Zealand had instructed her in the personal circumstances of Mrs Bell no costs would be sought in any event. 

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