March 2014
Over the past three months Liam Harris, a Law Clerk in our Commercial Team, has had the opportunity to regularly attend Disputes Tribunal (Tribunal) hearings as an observer. The purpose of this article is to pass on the benefit of his experience to those lodging or defending a claim in the Tribunal in the future. This article includes a note on the Tribunal itself, tips on what to consider when preparing evidence for a hearing and some comments on what to expect from the hearing itself.
The Tribunal is a lay people’s forum for hearing and determining disputes. The focus of the Tribunal is on practical dispute resolution and not technical legal analysis. The Tribunal aims to resolve claims in an informal, inexpensive and speedy manner. In most Tribunal hearings, claimants or defendants are not allowed to make use of advocates. In these circumstances the responsibility of preparing for a hearing will fall on the parties themselves.
If you have a claim in contract, quasi contract (a contract that is implied or created because of the circumstances) or tort (negligence, injury or damage to property) then it is likely that the claim can be heard and determined by the Tribunal. However, the upper limit of any claim which can be heard by the Tribunal is $15,000 (or $20,000 by agreement between the parties).
In order to lodge a claim in the Tribunal, a claim form needs to be completed and filed and a filing fee paid (the amount of which depends on the amount of your claim). The claim form is available on the Ministry of Justice website (www.justice.govt.nz).
To avoid delays, it is important that your claim is correctly lodged. This may seem obvious but mistakes are often made. Common mistakes to avoid include:
When a claim is lodged against you, a notice will be sent informing you of what the claim is about, and when it will be heard. Options to consider when a claim has been made against you are:
The Tribunal information page contains comprehensive information that is useful for both applicants and defendants. Again, this information can be accessed at (www.justice.govt.nz).
Proper preparation of the evidence in support of your claim or defence is extremely important to successfully bringing or defending a claim in the Tribunal. Having accurate and relevant evidence will strengthen your case. Consider the following when compiling your evidence:
Note: Make sure you provide copies of all the evidence you intend to present at the hearing to the other party before the hearing begins.
After you have lodged a claim, or a claim has been lodged against you, a hearing will typically be scheduled within 6 weeks. Useful pre-hearing considerations are:
On average, hearings are around 45 minutes in length (although this can be shorter or longer depending on the complexity of the claim).
The hearing will begin with the referee outlining the procedure and rules for the hearing. Both parties will then present their evidence during which the referee will ask questions about the evidence being presented.
Following this, any witnesses giving supporting evidence at the hearing for the claim or defence will be called into the room separately. After a witness has presented his or her evidence, the other party will have the opportunity to ask the witness questions. Helpful tips for questioning a witness are:
The referee will then explain to both parties the relevant law and issues that need to be determined to resolve the dispute. If you do not understand the law or the issues that the referee outlines, bring this to the attention of the referee.
When the issues have been worked through and both parties have a better understanding of their position in the dispute, the referee will often ask whether the parties are willing to settle the dispute on their own terms. When considering whether or not to settle, you should consider the strengths and weaknesses of your position and what you would accept to resolve the dispute.
At the conclusion of the hearing, the referee will not issue a decision but will instead take time to further consider the evidence that has been presented by both of the parties. The order and the reasons for it will be sent to the parties approximately two weeks after the date of the hearing.
When lodging a claim with the Tribunal, attention to detail is paramount. Ensure you have not made any errors and that you have included enough detail in the description of your claim. When defending a claim, your options are to try and settle the claim before the hearing, defend the claim and/or bring a counterclaim against the applicant.
When preparing evidence, create a timeline of the events surrounding the claim, gather relevant evidence to support your interpretation of the events and organise your evidence well. Also, consider whether your evidence will be strengthened by the involvement of a witness.
Before the hearing, determine whether you will need a support person to attend the hearing with you. Also, consider your position on settlement as negotiations may occur during the hearing. Remember that any decision to settle should also be informed by what you learn about your position as the hearing unfolds.
During the hearing, if the other party has brought a witness to give evidence, organise some basic questions to ask the witness beforehand. Avoid asking suggestive questions. Also, if you do not understand anything the referee has said or the issues they outline at the hearing make sure you let them know.
The Tribunal is a very accessible forum for the general public to use for resolving disputes. However, not having a legal representative can leave many floundering as to how to best approach a Tribunal hearing. Hopefully, the above will be a useful guide if you are preparing a Tribunal claim or defence or preparing for a hearing. However, if you would like additional advice about the Tribunal process or how to prepare a submission for a Tribunal hearing please contact our Dispute Resolution Team on 07 838 2079.