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disputes

How referees make decisions: Equity and good conscience

Key Takeaway

Disputes Tribunal referees in New Zealand resolve disputes based on "equity and good conscience," meaning fairness and the merits of the case, rather than strict legal rules. The process is informal, aims for just outcomes within monetary limits, and involves lower costs than court. Decisions are binding, with limited appeal options.

Understanding Decisions Based on Equity and Good Conscience in New Zealand's Disputes Tribunals

The Disputes Tribunal in New Zealand provides an accessible and informal forum for resolving a variety of civil disputes. A key aspect of how decisions are made by referees within the Tribunal is the principle of "equity and good conscience."

How Referees Make Decisions: Equity and Good Conscience

When a dispute is heard in the Disputes Tribunal, the referee, who is the person presiding over the hearing and making the decision, is required to determine the case "according to the merits and justice of the case" [Source: Disputes Tribunals Act 1988, s 18(6)]. This means that the referee is not strictly bound by legal precedent (previous court decisions) or the formal rules of evidence that apply in higher courts [Source: Disputes Tribunals Act 1988, s 18(6)]. Instead, decisions are made "according to equity and good conscience" [Source: Disputes Tribunals Act 1988, s 18(6)].

Equity and good conscience refers to the principles of fairness, reasonableness, and natural justice. It allows the referee to consider all circumstances of the dispute, focusing on what seems just and fair between the parties involved, rather than applying legal technicalities rigidly. This approach is intended to make the resolution process more accessible and less intimidating for ordinary New Zealanders who may not have legal representation.

Jurisdiction of the Disputes Tribunal

Jurisdiction refers to the official power of the Tribunal to make legal decisions and judgments. The Disputes Tribunal can hear a wide range of civil claims involving money or property. Generally, the monetary limit for claims is $30,000 [Source: Disputes Tribunals Act 1988, s 13(1)]. However, if both parties agree in writing, the Tribunal can hear claims up to $50,000 [Source: Disputes Tribunals Act 1988, s 13(2)].

Types of disputes commonly heard include those relating to consumer goods and services, minor property damage, and contractual disagreements. Certain matters are excluded from the Tribunal's jurisdiction, such as employment disputes, family matters, land ownership, and some building disputes involving more complex issues [Source: Disputes Tribunals Act 1988, s 10, s 11].

The Hearing Process

The process begins when an applicant (the party making the claim) files an application with the Tribunal. The respondent (the party responding to the claim) then has an opportunity to provide their side of the story.

Disputes Tribunal hearings are designed to be informal. Parties typically represent themselves, and lawyers are generally not permitted to appear on behalf of parties, except in very limited circumstances and with the Tribunal's permission [Source: Disputes Tribunals Act 1988, s 38]. This informality supports the "equity and good conscience" approach, encouraging direct communication and resolution.

During the hearing, both the applicant and the respondent are given the opportunity to present their case, explain their version of events, and provide any relevant documents or evidence [Source: Disputes Tribunals Act 1988, s 18(3)]. The referee plays an active role in facilitating discussion, asking questions, and seeking to identify the true nature of the dispute and explore potential settlement options between the parties [Source: Disputes Tribunals Act 1988, s 18(1), (4)]. The referee also has the power to make independent inquiries to gather information relevant to the case [Source: Disputes Tribunals Act 1988, s 18(5)].

Costs

There are application fees to bring a claim to the Disputes Tribunal [Source: Disputes Tribunals Act 1988, s 27]. These fees are generally much lower than those for initiating proceedings in higher courts. A significant feature of the Disputes Tribunal is that parties are not typically awarded legal costs, meaning one party will not be ordered to pay the other party's legal fees [Source: Disputes Tribunals Act 1988, s 43]. This also contributes to the accessibility and fairness of the process, as it prevents parties with greater financial resources from having an advantage.

What to Expect

Those participating in a Disputes Tribunal hearing can expect an informal environment where the focus is on resolving the dispute fairly and reasonably. The referee will strive to understand all aspects of the case and help parties reach a mutually agreeable solution if possible. If a settlement cannot be reached, the referee will make a binding decision.

Outcomes can include orders for one party to pay money to another, perform certain work, return property, or provide a declaration about the rights of the parties [Source: Disputes Tribunals Act 1988, s 19]. Once a decision is made, it is binding on both parties [Source: Disputes Tribunals Act 1988, s 33].

Appeals against a Disputes Tribunal decision are possible, but only on points of law or jurisdiction, not simply because a party disagrees with the referee's assessment of the facts or the fairness of the outcome [Source: Disputes Tribunals Act 1988, s 50]. This means appeals are limited to instances where the referee might have incorrectly applied a legal principle or exceeded their powers.

When to Seek Independent Legal Advice

For specific information regarding a personal situation, including understanding the precise monetary limits applicable to a case, the exact types of disputes covered by or excluded from the Tribunal's jurisdiction, or preparing for a hearing, it is advisable to consult official government resources or seek assistance from a Community Law Centre for free legal guidance. While lawyers cannot typically represent parties in the Disputes Tribunal, they can provide advice beforehand. Information can also be found on the Ministry of Justice website or the Disputes Tribunal website.

Key Resources