Disputes Tribunal Quick Reference Guidelines

RESOLVING YOUR DISPUTE AT THE DISPUTES TRIBUNAL

Although all reasonable steps have been taken to ensure the accuracy of the information contained in this document, the Ministry of Justice disclaims any and all responsibility for any inaccuracy, error, omission, or any other kind of inadequacy, deficiency, or flaw in, or in relation to, the information; and fully excludes any and all liability of any kind to any person or entity that chooses to rely upon the information.

Published by the Ministry of Justice 2014 © Crown Copyright ISBN 978-0-478-32447-1 (online)

Ministry of Justice The Vogel Centre, 19 Aitken Street DX SX10088, Wellington, New Zealand

T +64 4 918 8800 F +64 4 918 8820 E info@justice.govt.nz

W www.justice.govt.nz

Contents

Section 1: Thinking about using the Disputes Tribunal 6

1.1 Introduction 6

1.2 Terms you will encounter 6

1.3 What does the Disputes Tribunal offer? 7

1.4 How much can I claim? 8

1.5 What are typical examples of disputes? 9

1.6 Are there some things I can’t take to the Disputes Tribunal? 9

1.7 Tips when thinking about making a claim 10

Section 2: Making your claim and submitting it 11

2.1 Preparing to make a claim 11

2.2 Case Study One – Tania’s motor vehicle accident 12

2.3 Preparing a claim 12

2.4 Researching legal arguments 14

2.5 Taking an organisation to the Tribunal 15

2.6 More tips for bringing a claim 15

Section 3: Preparing to defend a claim 17

3.1 What do I do if I receive a Notice of Hearing? 17

3.2 What if I think the applicant is at fault? 17

3.3 Case Study One continued – Tania’s motor vehicle accident 17

3.4 What if I agree with the claim? 18

3.5 What if the hearing is in a different city from where I live? 18

3.6 What if I can’t attend on the day of the hearing? 18

3.7 Tips when defending a claim or making a counterclaim 18

Section 4: At a Disputes Tribunal hearing 20

4.1 What should I do before the hearing? 20

4.2 Who should I take with me to the hearing? 20

4.3 What should I take with me to the hearing? 21

4.4 What happens on the day of the hearing? 21

4.5 Referee’s decision – Case Study One 22

4.6 What are the types of decisions that can be made? 22

4.7 Does the Disputes Tribunal conduct independent investigations? 22

4.8 Tips for the hearing 23

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Section 5: After the Disputes Tribunal hearing 24

5.1 What if I was unable to attend the hearing? 24

5.2 Case Study Two – Manu’s engine problem 24

5.3 What are the reasons for a rehearing? 25

5.4 Can I appeal a Disputes Tribunal decision? 25

5.5 Case Study Three- The Brown’s fence 25

5.6 What can I do if the other party does not comply with a Disputes Tribunal order? 27

5.7 What if I don’t obey an order of the Disputes Tribunal? 30

Further Information 31

Section 1: Thinking about using the Disputes Tribunal 1.1 Introduction

This booklet is a simple user’s guide to bringing or defending a Disputes Tribunal claim, attending a hearing, and what happens after the hearing process.

You may find it helpful if you are thinking about making a claim, or have recently received a notice stating that you are required to attend the Disputes Tribunal.

The booklet contains three examples of common claims made in the Disputes Tribunal. These provide a practical step-by-step demonstration of how you can bring or defend a claim.

This section explains a few things you may like to know about the Disputes Tribunal before bringing or defending your claim.

On the following page you will see some of the terms you will come across when completing Disputes Tribunal forms or reading material about the Disputes Tribunal.

1.2 Terms you will encounter

The person bringing the claim to the Disputes Tribunal is referred to as the applicant.

The person defending the claim is called the respondent.

When you are talking about both the applicant and the respondent they are called parties.

The hearing is managed by a referee.

Referees are not Judges, but any order they make is a binding order of the District Court. Referees are usually legally qualified and are chosen because they are good at making commonsense decisions and helping people to reach their own agreement. If you can’t agree, the referee will consider the law and the facts and make a decision which is binding on the parties.

With the approval of the referee, the applicant, and the respondent may each bring a support person who is allowed to attend the hearing to provide moral support. The support person must remain silent unless asked to speak by the referee.

Parties may also bring their own witnesses who will usually be excluded from the hearing until they are required to give evidence about their knowledge of what happened.

When your case involves technical issues that you aren’t familiar with, it may be a good idea to take along an expert witness. For instance, if your case involves a dispute with a motor vehicle dealer, you could ask a mechanic to be your expert witness.

If the applicant or the respondent is under 18 years old or has a disability, the Tribunal can allow a representative to put the party’s case across. You should seek approval for a representative prior to the hearing.

Lawyers and debt collectors and other persons who regularly represent others in tribunals are not allowed to represent a party at the Tribunal.

If a party is a company, it will need to be represented by a director, officer, employee or majority shareholder.

If the case involves your insurance company, they will be allowed to speak in support of your claim, as they are a party to the hearing. You will still have to attend the hearing.

If you have difficulty speaking or understanding English you can ask the Tribunal to arrange for an interpreter to be present. This cannot be someone organised by you, but will be arranged by the court. This request should be made well before the hearing date to give the staff time to arrange the interpreter.

1.3 What does the Disputes Tribunal offer?

quick

Claims are usually heard about 5 – 8 weeks after they are lodged. This will vary according to the volume of work in each Tribunal. If the parties can’t come to an agreement, the referee will make a decision. The referee may give a decision verbally at the end of the hearing. If not, the decision will be posted to both parties. If there is an order for money to be paid the order will state the date by which payment has to be made.

informal

You don’t have to dress formally to go to the Tribunal. You can wear clothes you feel comfortable in. The referee sits with the parties, usually in a small hearing room rather than a court room. Evidence does not need to be given under oath unless the referee requires this. The referee’s role is to see that both parties get a fair hearing.

private

The referee will invite the parties into the hearing room at the appointed time and the hearing will be conducted in private. Members of the public are not allowed to attend unless they are an approved support person or witness of one of the parties.

inexpensive

The Disputes Tribunal is inexpensive because the fees are relatively low and it does not allow lawyers to represent parties during the hearing.

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1.4 How much can I claim?

The Tribunal deals with claims up to $15,000 or, if the parties agree, up to $20,000. Both parties must sign an Agreement to Extend Jurisdiction form if lodging a claim for over $15,000 (to a maximum of $20,000). This form must be lodged with the claim.

You may reduce your claim to bring it within the financial jurisdiction of the Tribunal.

You can download the form at: http://www.justice.govt.nz/tribunals/disputes-tribunal/forms-and-guides

Costs

Costs refer to the expenses you can usually seek to recover from another party to any legal proceedings. These include fees for:

Consulting lawyers and other experts in preparing for the hearing;

Court costs for having taken the matter first to the District Court;

The Tribunal filing fee; and/or

The payment of witnesses and other evidential expensive.

The Tribunal does not award costs against parties involved in the case. The Tribunal is meant to be as accessible as possible to people, to the extent that they should be able to approach the Tribunal without incurring major legal and other expenses.

Where costs may be awarded There are four exceptional situations where the Referee has discretion to award costs against a Tribunal party.

1. If an applicant makes a “frivolous or vexatious” claim. Such a claim is clearly without merit or has been taken in order to annoy or harass the other party. .

2. If an applicant lodged a claim knowing it is not within the jurisdiction of the Disputes Tribunal.

3. If a party has unnecessarily prolonged proceedings by engaging in conduct intended to impede the prompt resolution of the proceedings.

4. If a claim is transferred to the Disputes Tribunal from the District Court, the respondent could be ordered to pay the applicant the cost of the District Court filing fee and their

Application type Payable under Disputes Tribunals (Fees) Amendment Rules 2013

if the total amount sought under the claim is less than $2,000

$45

if the total amount sought under the claim is $2,000 or more but less than $5,000

$90

if the total amount sought under the claim is $5,000 or more

$180

Fees:

lawyer’s fee for preparing the claim. This would only happen if the respondent led the applicant to believe that the debt was undisputed (as undisputed debts are pursued in the District Court and not in the Disputes Tribunal), but then decided to dispute the debt after the claim had been filed.

1.5 What are typical examples of disputes?

The Tribunal can help you when:

you are not satisfied with work that has been done

you are not satisfied with something you bought

you have been charged too much money for work that has been done

someone else has caused damage to your property

someone has borrowed your property and won’t return it

you were misled by advertising or an inducement into buying something that was not what you thought it was

you have agreed to hire, buy or sell something on credit and the other party does not do what was agreed

you have been asked for money you don’t think you owe

you and your neighbour don’t have a boundary fence and you are not able to agree on the type of boundary fence to be erected.

1.6 Are there some things I can’t take to the Disputes Tribunal?

The Tribunal can’t help you with:

collecting undisputed debts (such as parking fines)

disputes about rates, taxes, social welfare benefits or ACC payments

disputes about parenting and care of children or child support

disputes about relationship property

disputes about wills

disputes about ownership of land and boundary lines

the value of goodwill (with a business that is bought or sold)

disputes about trade secrets or other intellectual property such as copyright

disputes about Unit Titles and Body Corporate issues

employment disputes

disputes between landlords and tenants

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1.7 Tips when thinking about making a claim

Try to resolve the dispute informally, by talking to the other party, before resorting to the Disputes Tribunal. Often parties can reach an agreement avoiding the time and cost of a hearing.

You have the right to make a claim to the Disputes Tribunal regardless of what it says in any contract you have signed.

There must be some dispute over who is at fault or the amount of money being claimed. The Disputes Tribunal cannot be used to collect undisputed, but unpaid, debts (such as parking fines).

Remember that the hearing is held in the District Court nearest to the applicant. If you live in Wellington and the person you have a dispute with lives in Palmerston North the hearing will be held in Wellington, provided you apply first. If the other party applies first, the hearing will be held in Palmerston North. You will receive notice of the time and place of the hearing.

Tell the Tribunal staff as soon as possible if:

o you cannot attend the hearing due to a genuine and sufficient reason. o you feel a representative will be needed to help you with your hearing. o you need an interpreter. o if you need a witness to attend and that person is unwilling or doesn’t understand the significance of the request. In appropriate cases, the referee can issue a summons to require attendance.

o The hearing will proceed as scheduled unless the Tribunal staff advice you otherwise.

Section 2: Making your claim and submitting it

2.1 Preparing to make a claim

The Disputes Tribunal staff cannot advise you on what to put in your claim application, but they can give you advice about the process of making a claim.

There are two ways in which you can submit your claim:

1. You can apply online at:

2. You can complete a claim form. The claim form is available from either your local District Court or a community agency, such as a Citizens Advice Bureau, or a Community Law Centre. Staff at these places can help you fill out the claim form and assist with queries regarding the hearing.

Examples of how to fill out forms and printable or auto fill forms are available here: http://www.justice.govt.nz/tribunals/disputes-tribunal

Submitting the claim

Depending on the method you used to fill in your claim form, select one of four ways in which you can submit your claim:

complete the form online - follow the instructions and submit your application online.

send your claim form by post to: CPU - DX SX 10042 Wellington.

submit your claim form in person at the Court closest to where you reside

send your claim form by courier to: Central Processing Unit, 8 Gilmer Terrace, Level 4, Wellington, 6011.

All applications are processed in the Ministry of Justice’s Central Processing Unit.

Once an application is processed, you will be sent a letter advising of a hearing time.

The Ministry of Justice has some quick reference fact sheets to help you with each process or stage of your case. These can be downloaded from the Disputes Tribunal website or obtained at a District Court.

http://www.justice.govt.nz/tribunals/disputes-tribunal/apply-online

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2.2 Case Study One – Tania’s motor vehicle accident

Tania Smith was driving home at 4:00 pm on 9 April 2014 when another vehicle, driven by Tom Payne, failed to stop at the Give Way sign on the corner of Troy Street and Wellington Avenue and the cars collided. No one was hurt but both vehicles were damaged.

The drivers stopped and exchanged telephone numbers and addresses. Both drivers were uninsured. The Police were called and Tom was issued with a ticket for failing to give way. Tania phoned Tom on three occasions to try to resolve how the damage to her car would be paid for. Tom did not respond and now claims that Tania was speeding.

2.3 Preparing a claim

Step One: Tania rings her local District Court and is advised that she can apply online or be sent a Claim Form and the explanatory information. The explanatory information about the Claim Form is also available online: http://www.justice.govt.nz/tribunals/disputes-tribunal Tania reads it all, including the back of the Claim Form. Tania obtains three written quotes to repair the damage to her car as no insurer is involved. If Tania’s car is going to cost more to repair than the value of the car, then she should provide a pre-accident valuation and a wreck valuation. If an insurer is involved it will usually arrange for the necessary evidence of the damage.

Step Two: Tania fills out her claim form.

1) Applicant details – Tania fills in her name, address and telephone number/s

2) Respondent’s details – Tania fills in Tom’s name, address and telephone number/s. It is very important that information is correct and up to date.

3) Second respondent details – Tania leaves this blank as the dispute is only between her and one other party. This is where you can give details of any third party involved in the dispute.

4) Insurance details – Tania leaves this blank because she is uninsured. If you are insured, you have to name your insurance company here. The Court will then notify your insurance company of this claim. If you do not want to make an insurance claim, you can ask your insurance company to sign the waiver (i.e. that your insurance company will not be involved) on the Acknowledgement from Applicant’s Insurer form available from the Court.

5) Details of your claim – in this box Tania explains:

what happened, and the circumstances leading to the crash

the value of her claim (how much money is needed to repair her car, based on the written quotes she obtained)

where it happened

when it happened, both the time and the date

the road and weather conditions at the time

who was involved

why she believes Tom was at fault

what the damage was Tania should include or attach any documents she considers important for her case.

6) Contact with the respondent – Tania describes the attempts she has made to resolve the

dispute with Tom, and his reason for not paying.

7) Applicant’s signature and the date – Tania makes sure she fills this in.

Step Three: Tania decides to post her completed claim form. She encloses a copy of her evidence for the referee and each other party and sends it to: CPU - DX SX 10042 Wellington. Tania also encloses a cheque for $90 because her claim is for an amount between $2000 and $5000.

Never send cash. See table below methods of payment.

Choose the appropriate method of submitting your claim form (see page 9).

Paying for your claim:

A receipt can be requested for any payments made to the Court. A receipt will be posted out for any application filed by post.

When the Disputes Tribunal receives Tania’s claim form they contact Tom. Tom will receive a copy of the claim form and other documents that Tania provided to the Tribunal and a Notice of Hearing, so he knows what is being claimed. Tom can choose to either:

contact Tania to settle the dispute without having to go to the Disputes Tribunal, or

do nothing and let the claim proceed. Tania will also be sent a notice telling her the date, time and place of the hearing.

Step Four: Tania and Tom prepare for the hearing. If Tania is well prepared, she will be able to present her side of the story clearly at the hearing. The same applies for Tom. Generally a party will only get one opportunity to put his or her version of the events to the Tribunal and should put some effort into preparation for the hearing.

Payment method Instruction

Credit card and Eftpos When submitting an application online, you must pay by credit card. There are credit card and Eftpos facilities at most registry counters. Credit card payments can be made over the telephone.

Cheques Cheques are accepted. They should be made out to ‘Ministry of Justice’ It is recommended that you include your telephone number on the back of the cheque.

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There is no need for Tania or Tom to memorise all the details of what they are going to say. They will be allowed to read from a prepared statement if that suits them.

A copy of this statement can be given to the referee to help explain the party’s account of what happened.

If you do not have all the information yet, then you may give some additional information at the hearing. However, if there is a lot of information it should be sent to the Tribunal and the other party (or parties) well before the hearing date.

Tania’s statement – Sample Only

On 9 April 2014 I was driving home after work along Troy Street. It was 4:00 pm in the evening and both visibility and driving conditions were very good. As I approached the top of the hill, a car driven by Tom Payne failed to stop at the Give Way sign on the corner of Troy St and Wellington Avenue. Here I will present a diagram of the accident site to better demonstrate how the accident occurred. I tried to stop, swerved and crashed into the rear of his car on the driver’s side. (I will produce photos showing exactly where my car was damaged. No one was hurt but both vehicles were damaged. Tom caused $3000 worth of damage to my car. I will produce 3 quotes for the cost of the repairs: Pete’s Panel beaters $3350 Central Panel beaters $3195 Ace Panel beaters $3000 Both Tom and I stopped at the accident and exchanged telephone numbers and addresses. We were both uninsured. I phoned him on three occasions in an effort to resolve how the $3000 damage to my car would be paid for. However, Tom was not responsive and is now claiming that I was speeding. When the referee asks to hear our witnesses, I will call my passenger Marie. Marie will testify that the road conditions were good, I was travelling within the speed limit and Tom simply failed to stop at the Give Way sign.

2.4 Researching legal arguments

It is not necessary to refer to the law. However, if you want to do so, consider seeking professional help by contacting a Community Law Centre or the Ministry of Consumer Affairs, or by making an appointment to see a local lawyer if the claim is for a significant amount of money. You can always ring around a few lawyers and ask them how much it would cost for thirty minutes of their time to review your statement and the legal arguments you are using. Bear in mind that these costs incurred by you are not normally recoverable from the other party.

The referee will usually explain the relevant law and consider any legal arguments raised by the parties. This is another good reason for writing down your arguments and giving a copy of them, and any legal references, to the referee.

2.5 Taking an organisation to the Tribunal If you are taking a business or an organisation to the Disputes Tribunal, it’s important that you enter their details correctly. You need to know the legal name of the organisation.

Check if the business is a limited liability company. This is a business that includes “Ltd” in the company name – for example, “Bob Smith Mechanics Ltd”. A register of all limited liability companies can be found on the Companies Office website (www.business.govt.nz/companies). Be aware that the legal name of the company may be different from their trading name. For example, “Bob Smith Mechanics Ltd” could trade under the name of “Wellington Mechanics”. You may need to contact the business to get this information.

Some businesses are not limited liability companies, but are instead an individual with a trading name. For example, Bob Smith (as an individual) could trade under the name of “Wellington Mechanics”. In this case, the claim should be brought against Bob Smith as an individual.

If the organisation is an incorporated society or a charitable trust, you can find their details on the Register of Societies website (www.societies.govt.nz).

2.6 More tips for bringing a claim

Find out where your nearest District Court is on the Disputes Tribunal website: www.justice.govt.nz/tribunals/disputes-tribunal

If you are insured, write your insurance details on the Claim Form. The Court will then notify your insurance company of this claim.

Your insurance company is entitled to take part in the Tribunal hearing if it has paid, or might have to pay you, for loss or damage. Sometimes your insurance company may offer to pay your claim fee. You can also choose not to put in an insurance claim if, for instance, you don’t want to lose your no claims bonus. If you do not want to make an insurance claim, you can ask your insurance company to sign the waiver on the Acknowledgement from Applicant’s Insurer form available from the Court.

If your claim exceeds $15,000, you and the respondent must sign separate Agreement to Extend Jurisdiction forms. If you cannot get the respondent’s signature, you will need to reduce your claim to $15,000.

Let the Tribunal know as soon as possible if you settle your dispute before the hearing.

Prepare for the hearing so you can present your case clearly.

Prepare a statement for your hearing.

Organise and keep all evidence and, if not already sent to the Tribunal, take it to the hearing including any letters, faxes, emails, text messages, bills or quotes that are relevant to your case.

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Make copies of any additional information the referee and the other parties. This includes your statement, any legal references and any evidence. If there is a lot of written information that you want to present, you will need to send it to the Disputes Tribunal as far in advance as possible before the hearing. Don’t forget to include a copy for each other party as well as the referee.

Double-check that the respondent’s name and address are correct, especially if it is a company.

Section 3: Preparing to defend a claim

3.1 What do I do if I receive a Notice of Hearing? If you are the respondent in a claim, you will be advised of the details of the claim as well as the time, date and location of the hearing. This information will be sent out in a Notice of Hearing. You do not need to pay anything unless you wish to lodge a counterclaim. In that case the same level of fee applies (see page 9). You may not be able to claim any money from the applicant at the hearing unless you lodge a counterclaim.

3.2 What if I think the applicant is at fault? If you wish to make your own claim against the applicant, you should submit a claim form (see page 11). Your claim against the other party, (counterclaim) should be related to the applicant’s claim and should include the applicant’s claim number. Both claims can then be heard at the same time. When deciding to defend against a claim or make a counterclaim, you should think very carefully about what information you will need to support your case and prepare your case in the same way as set out in sections 2.4 and 2.5. A written statement will help present your defence or counterclaim in a clear and logical way. You should try to obtain independent evidence to support your arguments.

3.3 Case Study One continued – Tania’s motor vehicle accident

When Tom receives the Notice of Hearing he wants to be able to claim for the damage caused to his vehicle. He claims that the accident happened because Tania was driving too fast. The damage to Tom’s car costs $500. In order for him to be able to claim this amount, he needs to file a claim against Tania. This is referred to as his counterclaim. It costs him $45 because he is claiming for an amount less than $2000. The basis of Tom’s claim is that Tania was speeding and, therefore, caused or contributed to the accident. In order to prove his claim, Tom needs to get some independent evidence. It is possible for parties to obtain the Traffic Crash Report from the Police, which can be used as evidence in the hearing. Tom obtains a copy of the report, which reveals the length of tyre marks made by Tania’s car prior to the accident. There is a comment in the report which indicates that Tania must have been exceeding the 50km speed limit. Tom believes that he would have cleared the intersection safely, and his car would not have been hit by Tania, if she had not been exceeding the speed limit.

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3.4 What if I agree with the claim? If you wish to settle the claim or want to agree on instalment payments before it goes to the Disputes Tribunal, contact the applicant (or their insurer if applicable) and make arrangements to pay them directly.

3.5 What if the hearing is in a different city from where I live?

If you are unable to make it to the location where the hearing is to be held (for example, if you live a considerable distance away or have a disability that prevents you from attending) you can ask to be connected to the hearing by teleconference. You should make this request in writing. There is no form to complete. If your request is granted, you will sit in a room in your local District Court building and be connected to the hearing by a telephone. You will need to send any written material to the Disputes Tribunal as far in advance as possible before the hearing.

3.6 What if I can’t attend on the day of the hearing? If you cannot attend the hearing on the date fixed, immediately contact the staff at the District Court named on the form. The staff may be able to arrange an alternative hearing time for you. You need a good reason to be granted a new hearing date – for example, being ill or overseas. You may be asked to provide evidence of your unavailability, such as a medical certificate or copies of your flight itinerary. If you simply fail to turn up, or leave your request for an alternative time too late, the hearing may proceed without you. Consequently you may not be able to get a rehearing without good reason for non-attendance. An order by the Disputes Tribunal is legally binding and can be enforced in the District Court. It is a serious matter and the hearing must be taken seriously by both parties.

3.7 Tips when defending a claim or making a counterclaim

Consider and write down the reasons why you believe you are not at fault or that you should not have to pay. If a claim is made against you at the Disputes Tribunal and you want to claim an amount of money from the applicant, you should lodge a counterclaim as soon as possible. You should prepare your case in the same way as set out in sections 2.4 and 2.5. If there is a lot of written information that you want to present, you will need to send it to the Disputes Tribunal as far in advance as possible before the hearing. Don’t forget to include a copy for each other party as well as the referee.

Ask for a teleconference if you need to. If you need teleconferencing, ring the staff early to arrange it. You will find their contact details on your notice of hearing. If you have a good reason why you are not available at the scheduled time for the teleconference hearing, let the staff know immediately. The referee will require time to consider whether the hearing date can be changed, so you should act promptly if you want your request to be considered.

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Section 4: At a Disputes Tribunal hearing

4.1 What should I do before the hearing?

If your address changes lease let the Tribunal staff know. Have your case number handy.

Check everyone on your side knows the time and date of hearing including any witnesses, support person, or representative.

4.2 Who should I take with me to the hearing? Depending on the circumstances you may have: An interpreter - Disputes Tribunal staff will arrange for an independent interpreter if you advise them that you need one. This is a free service. Be sure to request an interpreter when you make your claim. If a conflict of interest exists between the interpreter and any party this should be disclosed to the other party and their consent obtained prior to the hearing. Such a situation would only be allowed if no other affordable solution was available. Family, friends or acquaintances cannot act as interpreters. Your witness or witnesses - If someone you need to act as a witness for your refuses to do so, contact the Disputes Tribunal staff as soon as possible. They may issue a summons which requires them to attend the hearing. A support person - In some circumstances the Disputes Tribunal may allow you to bring a friend or support person. However, they must not say anything at the hearing unless asked to speak by the referee. A representative - In most cases you are expected to present your claim, or defend a claim made against you, yourself. That is, you have to represent yourself. However, there are some special circumstances in which the Disputes Tribunal can allow a representative to put your case for you. The Disputes Tribunal may allow someone to represent you if:

You have a disability which makes presenting your case difficult: for example, if your disability causes serious communication problems.

You are less than 18 years old

You are a company or other organisation, and the representative is an officer, employee, or someone with a majority interest

You are making the claim jointly with another person (or a number of others), or a claim has been made jointly against you and another person (or a number of others), and you want to be represented by one of these other people.

You can show the Tribunal that, for some other good reason, you are unable to appear in person or present your case adequately.

If you think you need a representative, please contact the Disputes Tribunal staff immediately. The Disputes Tribunal has to agree and approve your representative before they can represent you.

Please also remember, if you are allowed a representative, they cannot be a lawyer or someone who regularly acts as an advocate before Tribunals or Courts.

4.3 What should I take with me to the hearing?

Use this checklist

□ Your statement to read from

□ All your evidence even if you have already provided copies. For example letters, faxes, text

messages, bills, bank statements, quotes, emails, photos, diagrams. If the documents are

stored on digital equipment, print out the relevant item.

□ If you have them, your legal references (for example copies of any advice obtained from a

lawyer, agency or resource)

□ Photocopies for the referee of any evidence in case you want to keep the original copies, for

example of photos or bills

□ Pen and paper to take notes

4.4 What happens on the day of the hearing?

The Referee is in charge of the conduct of the hearing The following steps are used to show what happens at a typical hearing: Step One: Arrive at the hearing room early with your witnesses and, if applicable, support person. Wait until the referee calls you in.

Step Two: Inside the hearing room, everyone will be introduced and the referee will explain the process, including the right of both parties to tell their side of the story without interruption. If the other person says something you disagree with, it’s best to write it down. You will get a chance to comment later.

Step Three: The referee will ask the witnesses to go into the waiting room until they are called.

Step Four: The applicant speaks first and produces their evidence. When the applicant is finished, the respondent gets to speak and can give their evidence.

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The referee can call either party’s witnesses at any time. They typically wait to involve the witnesses once both parties have stated their cases and the referee has identified the contentious issues or points in dispute.

Step Five: The referee explains the law, identifies points that the parties agree on, points that they disagree on, and areas for discussion. Both parties get to make comments and ask questions to clear up points that they disagree on. The referee will often identify the strengths and weaknesses of the parties’ positions.

Step Six: The parties are given an opportunity to reach an agreement. The referee will approve the agreement if appropriate.

Step Seven: If the parties are unable to reach an agreement, the referee will make a decision on the basis of the evidence provided and the applicable law.

4.5 Referee’s decision – Case Study One

Both Tom and Tania feel that the other person caused the accident. They appear to be unable to reach a joint decision. The referee makes the decision for them. The referee writes the order, reads it out and gives it to the parties, or more frequently, the referee may write the order after the hearing and send it out to the parties.

4.6 What are the types of decisions that can be made?

A referee can order that:

one party must pay a sum of money to the other party

one party is not liable to pay money to the other party

work must be done to a satisfactory standard and what happens if that is not done

an agreement will be altered or cancelled

certain goods must be handed over by one party to the other party or that money be paid for the goods

the claim be dismissed

the claim be struck out because it is not one of the types of dispute the Tribunal can help you with.

4.7 Does the Disputes Tribunal conduct independent investigations? Sometimes, if there is not enough information available at the hearing, the referee may seek other evidence, make a site visit or order an independent investigation to take place.

Further evidence to support a position must be obtained by the party at the party’s cost. In rare cases, where there is conflicting expert evidence, the referee can order an independent investigation at the Tribunal’s cost to assist the referee in making his or her decision.

4.8 Tips for the hearing

Check where the hearing will be held before the hearing.

Contact the Disputes Tribunal staff immediately if you cannot attend the hearing. You will need a very good reason for asking to have an alternative hearing time arranged. This applies even more if you leave it late. If your reason is accepted, you will need to back it up with evidence, such as a hospital report or funeral notice.

Always arrive early at the place where the hearing is held.

If you are bringing a support person, make sure that person is someone you don’t need as a witness.

Present your argument clearly and try not to rush through the evidence.

Do not interrupt the other party when they are speaking. Note down on paper any points that you disagree with. You will get the chance to deal with these once the other side has put its case.

If the other party suggests a solution that you feel you can live with, think seriously about accepting it.

It is often better to come to an agreement with the other party than have an order imposed on you by the referee

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Section 5: After the Disputes Tribunal hearing

5.1 What if I was unable to attend the hearing? If you do not attend your hearing because you did not receive the Notice of Hearing, or for instance, for one of the reasons below, you can file an Application for Rehearing. In the case of:

sickness – you should provide a medical certificate

death of a close family member or friend – you may be required to provide a death notice

an accident or incident on the way to the hearing – you may be required to produce evidence. Other reasons may also be acceptable. Contact the Disputes Tribunal as soon as possible after missing the hearing or receiving the order to check if you are eligible for a rehearing. It is unlikely you will be eligible for a rehearing if you did not attend your hearing because:

you just forgot

you had to work or had another commitment

you misread the hearing date. You are expected to make alternative arrangements for work or other commitments. It is your responsibility to ensure you carefully read all the documents sent to you, to immediately request any changes and follow up with Tribunal staff if no response is received.

5.2 Case Study Two – Manu’s engine problem

Manu has been having difficulties starting his car on cold winter mornings. He eventually takes his car to Jamie’s Garage and Auto Repairs. He tells Jamie he needs the car the next day as he intends to go to Hastings. When Manu picks the car up he is charged $445 for an engine tune up and a fuel system clean. That night Manu leaves for Hastings but the very next morning he has the same engine problems. He rings Jamie who tells him to get the car back to Wellington so he can look at it. Manu tows the car to a Hastings garage where a distributor lead is replaced for $50, which fixes the problem. When Manu returns to Wellington he goes to see Jamie and tells him that the Hastings garage fixed the real problem. Manu says he wants his money back. Jamie refuses, claiming that the car needed to be tuned anyway and that the distributor problem must have occurred on the way to Hastings. Manu sends Jamie a letter the following week, threatening Disputes Tribunal proceedings if he doesn’t get his money back. Jamie ignores the letter and does not respond to telephone calls. Manu fills out a claim form and the Dispute Tribunal sends Jamie a Notice of Hearing. Jamie does not receive the letter and the hearing goes ahead without him. The referee finds in favour of Manu. Jamie is sent the referee’s decision ordering him to pay back Manu’s $445.

Jamie rings the Disputes Tribunal to sort this out. When the staff member hears that Jamie did not receive the notice of hearing, he advises Jamie that a form to apply for a rehearing is available online or the staff member can send him one. The staff member also tells Jamie that he needs to apply for a rehearing within 28 days of the date of the decision unless very special circumstances apply.

5.3 What are the reasons for a rehearing? Either party can apply for a rehearing in the Disputes Tribunal or can lodge an appeal to the District Court against a decision if they believe they have grounds to do so. For the Tribunal to grant a rehearing of the dispute, the party applying will usually have to show that not all the relevant information was available, or that a mistake was made, or that something else went wrong that prevented a proper decision from being made. For example, a person might apply for a rehearing if:

the referee made a material error in the amount of money a party has to pay as compensation (for example, incorrectly added up losses), or

after a hearing at which the referee approved an agreement between the parties, a party discovers facts: o that are directly relevant to the dispute, and o that could not, with reasonable effort, have been obtained before the hearing, and o that would have had a bearing on whether the person would have agreed to the settlement.

A rehearing will not be granted just because a person disagrees with the decision.

5.4 Can I appeal a Disputes Tribunal decision? You may appeal if you consider that:

the proceedings were conducted by the referee in a manner which was unfair to you and prejudicially affected the result of the proceedings; or:

that an inquiry carried out by an investigator was conducted in a manner which was unfair and prejudicially affected the result of the proceedings.

You must give reasons why the inquiry or the hearing was unfair and how this prejudiced your case. These reasons could include:

you brought up a relevant legal point that the referee did not take into account The referee did not allow witnesses to give evidence.

the investigator did not disclose essential information when reporting to the Tribunal.

5.5 Case Study Three- The Brown’s fence The Browns and the Wongs have been neighbours for five years, during which time they have rarely spoken to each other. Their two properties have been separated by a boundary hedge. In the summer of 2014 the hedge begins to die. The Browns want to destroy what is left of the hedge and erect a fence. They obtain a quote from a builder. The quote is for the construction of a two metre close-boarded fence. The proposed fence is to be built along the entire boundary between the two properties.

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The Browns send a ‘fencing notice’ to the Wongs stating that the fence is to be built and that the Wongs are required to pay half the proposed cost of $2194. The fencing notice states:

Fencing Act 1978 Fencing Notice

TO: Mr and Mrs Wong, 27 Downtown Abbey Street, Johnsonville Please take notice that I desire that a fence be erected between your said property and my adjoining property at 29 Downtown Abbey Street, Johnsonville in accordance with the following particulars:

1. Our common boundary is 18 metres long. 2. The proposed height of fence is 1.8 metres. 3. The close-boarded style. 4. The use of a contractor to construct the fence. 5. The estimated cost of $2194 to be shared equally at $1097 each.

o Labour (including GST) $789 o Materials (including GST) $1405

6. Materials are to be paid for by 30 June 2014. 7. Date of commencement of work 30 May 2014.

Within 21 days of receipt of this notice you may object to any of the above particulars and make your counter proposal. Within the same time, if you claim you are not liable to pay for fencing, you may notify me accordingly and supply the name and address of the person who is liable for fencing in connection with your property. If no objection is received, I will proceed with the fencing in accordance with this notice and you will be deemed to have agreed to the proposals set out in this notice and will be liable to share the cost accordingly. This notice is given under the Fencing Act 1978. Dated this 23rd day of April 2014. Signed J Brown – 29 Downtown Abbey Street,

Johnsonville.

When the Wongs receive the notice they are unhappy. They think that the hedge is adequate, and that the cost of the fence is too high. Within 21 days of receiving the notice they file a cross-notice stating their objection to the proposed fence. After sending the notice and the cross-notice, the parties are still unable to come to an agreement about the fence. The Browns refer the matter to the Disputes Tribunal (under section 24A of the Fencing Act 1978).

At the hearing each party tells their version of the dispute. The Browns say that the hedge is no longer adequate and that it provides them no privacy. This is why they wish to build a more suitable fence between the two properties. They show photos of what the hedge used to look like and what it currently looks like.

The Wongs then tell their side of the story. They are unhappy because the Browns did not even discuss the matter with them. The first they knew of the proposed fence was when they received the Brown’s Fencing Notice. They say the proposed fence is too expensive and that the hedge is still an adequate fence. They also have some reservations about precisely where the boundary lies between their properties. They feel that they are being harassed because they are recent immigrants. They are unsure about why the hearing is taking place and are having difficulty expressing themselves because of their limited English skills. The referee says that, as the parties are neighbours, it would be better for their future relationship if they could agree on how the dispute should be resolved. The referee suggests that one option would be for the parties to agree to erect a style of fence that is cheaper to build. The referee tells the Wongs that unless an agreement is reached the decision will have to be made for them. The Wongs take this to mean that they must come to an agreement. They say that they don’t want an expensive fence. The Browns say that they will be happy with a cheaper type of fence, provided that the fence is at least two metres high. The parties eventually agree to get quotes from different builders for various types of fence. They also agree that they will build a fence which is at least two metres high. The referee then puts the parties’ agreement in writing. After the hearing the Wongs tell a friend that they felt they had no alternative but to agree to the solution offered at the hearing. Their friend goes with them to the local Community Law Centre and explains how the Wongs had found it hard to defend their case at the hearing because of their limited English skills. The lawyer suggests that they lodge an appeal to the District Court because they were unaware of their rights and had felt pressured into making the agreement.

5.6 What can I do if the other party does not comply with a Disputes Tribunal order?

If the Disputes Tribunal makes an order in your favour and the other party does not comply you have a number of options. However you cannot take any action until the date by which payment is to be made that is written in the order has passed. If the other party doesn’t comply your options include:

Applying to the court for enforcement action. There is a fee for this, but this fee is added on to the amount payable by the debtor.

Hiring a debt collection agency to collect the debt on your behalf. (They may charge a set fee or a percentage of the debt).

Hiring a solicitor to act on your behalf. A formal letter from a solicitor setting out the costs of enforcement action may be enough to get the person to act.

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Using the District Court Enforcement actions are special powers that only a court has to collect debt or property. These actions are generally carried out by the Collections Unit of the District Court. There is a fee for each application that you make. The fee must be paid at the time you make your application. The list of fees is set out in the “Paying civil enforcement fees” form available here. If you intend to pay by credit card you will need to complete this form (it can be completed online), print it and include it with your application.

If you wish to use the District Court to collect your debt, you will need to:

Choose the appropriate enforcement option(s) listed below

Apply to the District Court for each step of the enforcement process

Ensure you have a copy of the order.

You can ask the Court to take any of the following actions against the other party (debtor):

issue an attachment order

require the filing of a financial statement

order an assessment of financial means

issue a warrant to seize property

conduct a financial assessment hearing

issue a charging order

initiate contempt proceedings If a financial statement is filed: If the creditor files a financial statement, a deputy registrar will assess the information provided and if satisfied that the debtor has the financial capacity may: set out new payment terms and conditions (such as instalments), or direct that a court enforcement action begin, for example: - make deductions from the debtor’s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property).

If an assessment of financial means is required If the creditor files an application for an assessment of financial means, a deputy registrar will contact the debtor to assess his or her financial situation. If satisfied that the debtor has the financial capacity they may: set out new payments terms and conditions (such as instalments), or direct that a court enforcement action begin, for example: - make deductions from the debtor’s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property).

If a financial assessment summons is issued The financial assessment hearing summons may be served by the creditor, their agent or the bailiff. The summons can be served on the debtor personally or it can be left with someone (who appears to be over the age of 14 years) at the debtor’s home or work address.

The debtor will be ordered to appear at Court for a hearing at a specific date, time and location. The debtor must attend this hearing unless they pay the full debt before the hearing, in which case the hearing will be cancelled.

If the debtor does not attend this hearing, a warrant for their arrest may be issued.

At the hearing the debtor’s financial situation will be assessed by a deputy registrar on behalf of the creditor. The creditor will usually be at the hearing. If satisfied that the debtor has the financial capacity, the deputy registrar may: set out new payment terms and conditions (such as instalments), or direct that a court enforcement action begin, for example:

- make deductions the debtor’s benefit, wages or salary (attachment order) or, - take and sell assets or possessions to meet the debt (warrant to seize property).

The debtor should bring all relevant financial documents with them to the financial assessment hearing such as bank statements, payslips, and evidence of other income and expenses. Court Enforcement Options Money debts Attachment order to wages or benefit: If you know that the other party (the debtor) is employed or receiving a benefit, the District Court can order that payments be deducted directly from the debtor's income and paid to you. This is known as an attachment order. You cannot apply online for an attachment order, but the application form can be downloaded from: http://www.justice.govt.nz/fines/civil-debt/application-forms/application-for-an-attachment-order The fee for an application for an attachment order is $50.

Post the completed application form to the Central Processing Unit, DX: SX10042, Wellington or you can take it to your nearest District Court.

Once the attachment order is set up it is your responsibility to monitor the payments. The court does not check if payments are made.

Agreed attachment order: You may reach agreement with the other party (the debtor) to enforce the debt through an attachment order. If so, the details will be recorded in the order by the referee. Post a copy of your order and the $30 filing fee to the Central Processing Unit DX: SX10042, Wellington or take it to your nearest District Court. If you are posting to the Central Processing Unit and paying by credit/debit card, complete the paying civil enforcement fee form.

You can download the form from: http://www.justice.govt.nz/fines/civil-debt/application-forms/paying-civil-enforcement-fees-form

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Once received the agreed attachment order can be processed immediately. For further information on enforcement see the collections website: http://www.justice.govt.nz/fines/civil-debt/copy_of_collecting-your-civil-debt-1

5.7 What if I don’t obey an order of the Disputes Tribunal? If you do not comply with the order, the creditor (the other party) can take one of a number of enforcement actions. They may use the services of their solicitor or a debt collection agency and request that these fees are recovered when the debt is paid or ask the Court to take enforcement action, which will add a filing fee to the amount the debtor must pay. The creditor can add the cost of these fees to the amount owed by the debtor and request that they are recovered when the debt is paid. A filing fee is a fee collected for an application is made to the Tribunal. To enforce an order of the Tribunal in the District Court, the creditor does not have to pay a filing fee, see Disputes Tribunal Act 1988. For Disputes Tribunal orders, when the application is filed by the creditor, the filing fee can be added to the debt.

Further Information

If you are unclear about how to prepare your claim, you can seek assistance from a Citizens Advice Bureau or Community Law Centres. Disputes Tribunal staff cannot advise you what to put in your application, but can give you advice on the process for making a claim or counterclaim. Where the amount being claimed is significant, it may be advisable to seek guidance from a solicitor with regard to your potential submissions and/or specific points of law, before lodging your claim or attending the hearing at the Disputes Tribunal.