The Disputes Tribunal was established in 1988 but is if often referred to as the Small Claims Court.
As a lay Tribunal there is no requirement for the Referees or Adjudicators to be legally trained but over the past six years or more referees who have legal training have been appointed to the role. As a lay Tribunal lawyers are not permitted to represent claimants.
The intention of the Tribunal was to provide a prompt speedy resolution of claims at low cost so as to ensure access to justice for people who do not have the capacity to incur legal costs.
The decision-making capacity of the Tribunal is unique. Decisions are to be made on the substantial merits and justice of the case having regard to the law. Consequently it is possible for a decision to be made that is technically contrary to law if the substantial merits and justice of the case justify that approach.
As many people still regard it as a Small Claims Court there is some confusion as to the jurisdiction. Some claimants believe the jurisdiction is determined solely by the monetary amount being sought when in fact it is determined by the subject matter of the claim and the monetary amount sought. The Tribunal has jurisdiction to make decisions on cases involving contracts (whether written or oral); quasi contract (monies paid in recovery of money paid in error); unjust enrichments; actions in tort that result in damage, loss, destruction of property. It is not however possible to recover economic losses unless they are consequential loss or damage as occasioned by a breach of contract.
The Tribunal also has a unique capacity to declare a person not liable for an account.
There are also significant numbers of statutes that confer jurisdiction on the Tribunal, for example the Fencing Act, the Fair Trade Act, Credit (Repossession) Act and the Credit Contracts and Consumer Finance Act; Consumer Guarantees and Sale of Goods Acts.
Consequently a significant portion of the claims heard in the Tribunal often relate to the purchases of goods and services and are “consumer complaints” and cases involving insurance companies seeking to recover losses as a consequence of motor vehicle accidents.
Any claim brought before the Tribunal cannot exceed $15,000. While that is the limit of the Tribunal’s jurisdiction, parties can agree to extend it by a further $5,000.
The Tribunal has an inquisitorial role as well as a decision making obligation. It is possible for a Tribunal referee to appoint an investigator to investigate matters that may be highly technical (for example repairs to engines or boats) and provide reports to the Tribunal and parties.
The Tribunal also has the capacity to join parties that it considers are reasonably connected to the dispute or may have a liability. In some cases it is mandatory for the Tribunal to join parties such as insurance companies where an applicant may be covered by insurance. The capacity to join an insurance company is independent of whether in fact a party has made a claim with their insurer.
Hearings are conducted in private and are required to be so by law. Parties can call witnesses. Witnesses can give evidence by phone and indeed parties can attend the Tribunal by phone.
The Tribunal has the capacity to summons a witness to appear and give evidence.
The Tribunal has the power to make an order for a monetary sum; the exchange or return of property; issue a declaration a person is not liable for an account; or order work to be performed by one party.
There is an obligation on referees to try and achieve an agreed settlement between the parties during the course of a hearing. Any such agreements can be enforced through the District Court as can orders for the payment of monetary amounts when an agreed settlement is not reached.
Legal costs are not often able to be claimed if they simply relate to the preparation of a party’s claim. However, legal costs can be claimed if they are consequential losses arising from the contract, breach of contract or tortious activity.
While intended a self help remedy, given the size of claims that can be heard by the Tribunal, parties are often seeking assistance of lawyer to formulate the claim and give advice in response to outcomes including options for appeal and rehearing.
We are pleased to offer this service to our clients.
Published: Fri, Sep 27th, 2013