Disputes Tribunals are a very useful way to settle consumer grievances. They hear disputes over faulty goods or workmanship, pricing, fencing of boundaries, car accidents, and loss or damage to other property.
The tribunals are cheap and easy to use, have few delays and no lawyers. They are not even obliged to follow the letter of the law, but must try to resolve issues on the wider basis of natural justice.
Disputes tribunals are attached to district courts, but are not formal courts themselves. There is no judge, but a referee. These people are chosen for their communication skills, pragmatic common sense and cultural sensitivity. They often do not have a legal background.
Tribunal hearings are private and relatively informal, and lawyers cannot be present.
The fees for taking a case vary according to the amount of the claim. (See table below.) Disputes for claims of up to $7,500 can be heard in a tribunal, or up to $12,000 if both parties agree.
If your claim is greater than these amounts but you wish to use the tribunal, you can reduce your claim so that it falls within the tribunal's jurisdiction.
|$1000 to $4999||$50|
|$5000 to $12000||$100|
What's Not Covered?
Tribunals cannot hear disputes about:
- Bad debts
- Land ownership
- Rates, taxes, social welfare benefits, ACC payments
- Criminal matters
- Matrimonial property
- Value of goodwill in a business
- Trade secrets or other intellectual property
Tribunals cannot collect debts where someone has simply failed to pay, or normally consider disputes six or more years old. Claims under the Fair Trading Act may only be considered if they are less than 3 years old.
Making a Claim
Before filing a claim you should try to resolve your dispute directly with the other party.
If this fails, contact the tribunal by checking under Department for Courts in your telephone directory. You can go to the district court and ask for a claim form or telephone and have one sent to you.
Before you fill in the form, write out your claim on a separate piece of paper. You can then work on it, to make it as clear as possible, before you submit the final version on the form.
If you are in any doubt about how to fill in the form or what information to include, ask the court staff for help.
In some cases, your claim may be transferred directly to a district court. This can happen if there are complex legal issues involved or if the matter is outside the tribunal's jurisdiction.
Once you have filed your claim, you will be sent a notice telling you where and when the hearing is to be held. Usually, the hearing will be within six weeks.
The person making a claim is called the "applicant", the person or firm the applicant is claiming against is called the "respondent".
The respondent gets a copy of your claim and is given at least 10 days to prepare a defence. If either party cannot make the first hearing date another may be set, but you need to give plenty of notice.
In some cases, the respondent will claim against you in return. This is known as a counter-claim. If, for example, you have claimed against the builder who mucked up the deck on your house, the builder might counter-claim over the outstanding bill. Both claims are usually heard together.
Preparing Your Case
Your likely success in a tribunal hearing is dependent on two factors - the fairness of your case and the effort you go to in preparing your case.
Gather together any relevant documents - contracts, letters, invoices, statements, cheque butts, estimates, and records of phone conversations, plans and drawings. Make sure you have all your facts and dates correct.
Contact witnesses who can support your story. Witnesses may appear in person at the hearing or supply a signed and dated written statement. If an important witness doesn't want to get involved, you can ask the court to subpoena them to appear.
If the case is highly contentious or centres on technical matters, you may find it valuable to get an independent expert's written opinion. In a building matter, for example, you could get an assessment of the work by another reputable builder.
Relevant photos can also be useful.
If you and the respondent come to an agreement before the case is heard, you should put the agreement in writing and both sign it, and let the registrar know as soon as possible.
If you need further help, discuss the matter with the court staff. The Ministry of Consumer Affairs has booklets and sells a video on disputes tribunals. The Department for Courts has also made a video, which can be viewed at district courts.
Hearings usually last an hour or a bit more. If your case takes much longer than this, it may be adjourned and continued later.
Each applicant and respondent can have a support person at the hearing, but you should ask the court beforehand if the support person can be with you. Support people are not allowed to speak at the hearing and therefore cannot be witnesses.
If, for reasons such as your age, a language problem or a disability, you do not think you can represent yourself well, you can ask the tribunal to appoint another person to speak on your behalf. This person cannot be a lawyer.
The referee begins by explaining the purpose of the tribunal and how the hearing will be run. You can ask questions about the procedure at this stage.
Each side will put its story in turn, with witnesses if appropriate, and without interruption from the other.
The referee will then summarise the dispute and mediate a discussion in an effort to reach a settlement. If an acceptable agreement is reached this is recorded and the hearing is completed. A referee may adjourn a hearing to seek expert advice. The court pays for this.
If no settlement is reached or the referee believes the settlement is unfair to one party, then the referee will make an order binding on both parties.
Sometimes the referee will reserve a decision, which means it will be made at a later date. This is then given to both parties in writing.
Taking it Further
If you fail to turn up for a hearing, your claim or defence will be heard in your absence and a order binding on both sides made.
But if you had a good reason why you could not attend, you can apply in writing to the tribunal to have the case reheard.
The tribunal can also order a rehearing if you discover new facts relating to the case. You can appeal to the district court, but only if you think you were treated unfairly. The high court may hear an appeal on a point of law.
Any application for a rehearing or appeal must be at the registrar's office within 28 days of the date that the original order was made.
Usually, you have 28 days from the time of the hearing to honour any agreement or order made. If the other party fails to do so, you then have to apply to the district court for enforcement.
Enforcing an Order
If the tribunal rules in your favour, it is up to you to check that the other party pays the money or does the work ordered.
Keep track of their current address and phone numbers. This is essential. If the other side doesn't cooperate, you can take enforcement action through the District Court. But the court won't locate the person for you if they change their address.
The tribunal will specify how long someone has to comply with an order. Normally, it's 28 days. After that time, you can apply to the District Court to have the order enforced. This is free. The cost of enforcement will be added to what the other side owes.
But you will have to drive the system. At each step, you will have to contact the District Court and fill in the appropriate forms. Nothing happens automatically.
There are two common enforcement measure:
- An order for examination is an application to have the other party appears before a court registrar to see if they have the ability to pay. The registrar decides how the debt should be paid. The registrar might decide the person should pay by installments. Or they might issue a "distress warrant" (see below). They could issue an "attachment order" (ordering deductions from a benefit, wages or salary), or a "charging order" (putting a "charge" on some property). These orders may involve "filing fees", which will be added to the total amount the person owes. Sometimes the registrar might decide the other party cannot afford to pay the debt.
- A distress warrant is an application to have a bailiff visit the other party to demand payment for the amount owing, and seize assets if they don't pay. A bailiff can only seize items that are owned by the other party. You will be asked to identify and confirm that they own the items to be seized. Check with the local court how to go about this for your particular case. If none of these things work, talk to the local court staff about what else can be done. For instance, if someone fails to comply with an order made at an examination hearing, you can apply for "contempt of proceedings". If you are successful, a District Court judge can sentence the other party to periodic detention.