The Disputes Tribunal process
This article discusses lodging or defending a claim in the Disputes Tribunal, including tips on what to consider when preparing evidence for a hearing and some comments on what to expect from the hearing itself.
The Disputes Tribunal
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).
Lodging a claim
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:
- Failing to correctly name the party that you are bringing the claim against. For example, failing to recognise the distinction between a company and an individual. In a breach of contract situation a key question to ask is who is my contract with?
- Failing to name an interested party. Parties who are affected by the outcome of a Tribunal hearing need to be named when a claim is lodged.
- Failing to include important details in your claim. For example, if you do not include an important element of your claim in the claim form, it may be determined at the hearing that the element you failed to include is outside the jurisdiction of the Tribunal and therefore unable to be resolved.
Defending a claim
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:
- To try and settle the claim with the other party before the hearing.
- To attend the hearing and defend the claim.
- To lodge your own claim against the other party (a counterclaim). If you lodge a counterclaim, both claims will typically be heard at the same time. The above comments on lodging a claim apply equally to counterclaims.
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:
- Begin by creating a timeline of events relating to the claim. This will provide you with a blueprint for your preparation. Only include the events that are most relevant to the dispute.
- Gather relevant evidence (for example, letters, emails, photos, invoices) to support each event.
- Organise your evidence logically so that it can be easily accessed and referred to. This could include using a folder and dividers, numbering the pages of your evidence and including an index.
- It is very important to include evidence to support the dollar amount of what you are claiming (for example quotes, invoices, receipts or bank statements). This is equally important if you are disputing the amount claimed against you by the other party.
- Arrange for any witnesses who can support your claim or defence to be involved in the hearing (It is possible for a witness to give evidence over the phone if necessary). It is important to note that a witness and a support person should not be the same person. A witness will not be allowed to be in the room during the course of the hearing and will only be present when giving 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:
- Making sure you read the notice of hearing (checking the time, date and location of the hearing). If you do not turn up, it is likely that the hearing will still proceed and an order can be made in your absence.
- If the hearing date is not suitable, contact the Tribunal as soon as possible to ask if a new date can be allocated. You are more likely to obtain a new date for the hearing if you have strong grounds for not being able to attend on the original date.
- Organise a support person to attend the hearing to help you sort through your evidence or remind you of important points.
- The Tribunal aims to achieve settlement between the parties during the hearing so consider the basis on which you would settle the claim by agreement with the other party and be prepared to negotiate. With any Tribunal hearing there is a chance that the referee will not make an order in your favour therefore, depending on the circumstances, settlement may be the best option. Throughout the hearing, consider the strengths or weaknesses of your position and how it may affect your decision to settle.
The hearing process
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:
- If possible, prepare your questions prior to the hearing. Even if you add to or change them at the hearing, it is recommended that you have a list of questions in mind beforehand.
- Avoid asking suggestive questions. For example, “He was wearing a red hat wasn’t he?” is a suggestive or leading question because it suggests to the witness that the hat was red. In contrast, a question like “What was the colour of the hat he was wearing?” is an open-ended question which prompts the witness to recall the answer from memory.
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.
If you would like further information please contact Daniel Shore on 07 958 7477.
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