Please note: Articles on this website were originally published by CourtKeys.com in 2015 and may now be out of date. Revised and updated content is included in Civil Litigation for Non-Lawyers [available here]. Disclaimer
On this page
- Preparing for a Disputes Tribunal hearing
- Synopsis of your argument
- Consistency with your claim
- Synopsis of argument template
- Alternative structure for synopsis
- Evidence supporting your argument
- Bundle of evidence checklist
- Witnesses
- Support people
- Representatives
- Interpreters
- Appearing by telephone
You should prepare a synopsis of your argument and any evidence supporting your position in advance, although there is not usually any requirement to file these in the Tribunal or disclose them to other parties before the hearing. Courts and Tribunals in New Zealand generally do not like surprises, so the lack of any requirement for parties to show all their cards before they play them would be something of an exception. However, any lack of disclosure before a hearing may be countered by the Tribunal actively examining arguments and the facts supporting them. It may even commission a report by an independent investigator and adjourn a hearing until that report is complete.
Synopsis of your argument
This document is also known as a ‘synopsis of submissions’. The point of the document is set summarise the points that you would need to make to convince the Disputes Tribunal Referee of your argument. These would usually be points or ‘submissions’ about facts and also about law.
Refer to the examples page for an example of a completed claim form and supplementary claim details form with submissions.
Consistency with your claim
Your submissions should be consistent with your claim where possible. If you think your submissions might not be consistent with your claim then you should consider notifying the Tribunal and other party or parties of that. If a significant change is sprung as a surprise at the hearing then the Tribunal may adjourn it to give the other party or parties a chance to prepare a response. There is also a risk that the Tribunal might refuse to consider the changes, although that is less likely.
Examples of changes that may be worth giving notice of as soon as you realise you need to make them include:
1. A new argument or different basis for your claim that was not set out in your claim form.
2. A kind of relief that is different from what was asked for in your claim form.
A lawyer could help you decide whether it is appropriate to give notice of any changes. If you do decide to give notice of any changes then you should contact the tribunal staff to discuss what would be the best way to go about doing that. If notice is appropriate then you should give notice an soon as you can so the other party or parties have time to prepare any response.
Generally, any notice of changes should include:
1. Details of your particular case in the Disputes Tribunal, such as:
1.1. The location or ‘registry’ of the Tribunal that is dealing with your case.
1.2. Any reference number that the Tribunal has assigned to your case (if known).
1.3. Who the parties to the case are.
2. Details of the hearing, such as:
2.1. The date and time when the hearing will take place.
2.2. The location or ‘registry’ of the Tribunal where the hearing will take place (if different from the Tribunal registry that is dealing with the claim generally).
2.3. The name of the Referee who will hear the case (if known).
3. That you are giving notice of a change or changes to your claim.
4. What that change or those changes are, and ensuring that you give sufficient particulars of them. See those parts of this text that deal with statements of claim for more about how you should particularise the changes to your claim.
5. Your contact details.
6. The date.
7. Your signature.
Cover page
You might first draft up a cover page for your synopsis of argument. That should set out:
1. That the case is in the Disputes Tribunal.
2. The location or ‘registry’ of the Tribunal that is dealing with your case.
3. Any reference number that the Tribunal has assigned to your case (if known).
4. Who the parties to the case are.
5. That the document is your synopsis of argument.
6. That you are filing the document.
7. Your contact details.
Refer to the examples page for an example of a Disputes Tribunal claim details form with a cover page.
Synopsis of argument template
You can download a High Court synopsis of argument template here that includes a cover page. Note that this synopsis template is for the High Court and not the Disputes Tribunal, although it is useful as a guide.
Explaining your argument
The page after the cover page could begin with the words “MAY IT PLEASE THE TRIBUNAL:” followed by a series of numbered paragraphs. You should try to limit the paragraphs to one sentence each if you can, and make those sentences as succinct as possible. You should try to limit each sentence to one thought each if you can. This may help you to be more succinct.
Another way to help you to be more succinct is to try to limit your synopsis to no more than 7 pages in total using the margin, font, font size and spacing as in the synopsis of argument template. Keep in mind that this document is intended to be a kind of summary only. You can of course elaborate on the points you need to make at the hearing. Also, the 7 page limit is not suggested as a target but as a maximum limit. That limit might not be appropriate in every situation. More pages might be called for where a case involves complicated facts and law.
You would usually try to include the following in your synopsis:
1. A brief statement of what you are claiming and why.
This might take one or two sentences. For example:
1. Mr Smith owes me $10,000 in accordance with a loan agreement that he has broken.
2. A summary of the essential facts forming the background to the dispute.
This might take up the best part of a page or so. For example:
2. I am the plaintiff in this case and Mr Smith is the defendant.
3. Mr Smith and I made a written loan agreement on 1 March 2013.
4. The loan agreement provided that I would advance $9,000 to Mr Smith who would repay the advance plus interest as set out in my claim form. I have also included a copy of the loan agreement at page 1 of the bundle of evidence I have submitted.
5. I made the advance to Mr Smith on or about 15 March 2013. A copy of my bank statement for March 2013 showing the $9,000 being debited from my account is included in my bundle of evidence at page 8.
6. Mr Smith paid the first instalment that was due under the loan agreement on or about 1 July 2013. A copy of my bank statement for July 2013 showing the $1,000 payment credited to my account appears at page 10 of my bundle of evidence.
7. Mr Smith did not pay any other instalments due under the loan agreement when they fell due.
8. The reason Mr Smith has given me for not paying his instalments is that I have not complied with the Credit Contracts and Consumer Finance Act 2003 because I did not provide initial disclosure or continuing disclosure under that Act, and he therefore does not have to pay me back.
9. I do not accept Mr Smith’s argument.
10. The amount of principal outstanding plus interest calculated in accordance with the loan agreement comes to $10,000.
3. An explanation of your argument
This part would usually make up the bulk of your submissions. It would go into detail about the evidence and the law that supports your position, as well as addressing argument against your position.
For applicants, a helpful way to structure this part of your submissions is to use the “F.I.L.A.C.” sequence:
1. Facts
2. Issues involved in the dispute
3. Law
4. Application of the law to the facts
5. Conclusion
Facts
You would probably have already described some essential facts in the ‘background’ part of your submissions. The facts in that part would probably do no more than set the scene of the dispute in most cases though. Here, you would address those facts that specifically relate to the dispute that has been raised. Parties tend to emphasise the facts that support their argument. Facts that do not support their argument are either underemphasised or dismissed as irrelevant or untrue.
Perhaps think of the ‘background’ part of your submissions as describing the battlefield and this part as pointing out the reasons why the battle should go your way. Keep in mind though that this part is only concerned with factual or evidential reasons for why you should succeed with your argument. Legal reasons are to be dealt with separately.
The facts that you would need to address are those that are relevant to the issues involved in your dispute. You would go on to set out those issues later in your submissions if you were using the F.I.L.A.C. structure, and this demonstrates why you should plan your submissions before you start writing them up: You need to figure out where you are going before you get started. That will help you identify what is relevant and what is not.
Staying with the example of the loan to Mr Smith, this part of your submissions would deal with those facts that are relevant to why you do not accept Mr Smith’s Credit Contracts and Consumer Finance Act 2003 argument. You would need to figure out what you would want to say about that argument in order to identify which facts might be relevant.
Part 2 of the Credit Contracts and Consumer Finance Act 2003 deals with initial disclosure and continuing disclosure. Section 10 provides:
This Part applies to consumer credit contracts.
Section 11 provides, among other things:
(1) A credit contract is not a consumer credit contract if –
(a) the debtor is a natural person; and
(b) the debtor enters into the contract primarily for personal, domestic, or household purposes; and
[…]
(d) when the contract is entered into, 1 or more of the following applies:
(i) the creditor, or one of the creditors, carries on a business of providing credit (whether or not the business is the creditor’s only business or the creditor’s principal business):
(ii) the creditor, or one of the creditors, makes a practice of providing credit in the course of a business carried on by the creditor:
(iii) the creditor, or one of the creditors, makes a practice of entering into credit contracts in the creditor’s own name as creditor on behalf of, or as trustee or nominee for, any other person:
(iv) the contract results from an introduction of one party to another party by a paid adviser or broker.
Now imagine that, for the purposes of the example:
1. the loan to Mr Smith was not for personal, domestic or household purposes; and
2. you are not in the in business of providing credit or make a practice of giving credit.
An argument would follow that you are not required to provide initial or continuing disclosure because the loan agreement did not amount to a ‘consumer credit contract’.
Submissions on relevant facts might then be:
11. I am not in the business of providing credit and I do not make a practice of providing credit as part of any business of mine or on behalf of anyone else:
11.1. I have never made any loans to anyone else except for the loan I made to Mr Smith.
11.2. I gave the loan to Mr Smith because my son, Paul Jones, had personally guaranteed a loan to Mr Smith’s business given by ABC Limited. Copies of the loan from ABC Ltd and the personal guarantee given my son are included in my bundle of evidence at pages 12 and 25 respectively.
11.3. Mr Smith was to use my loan to pay off the loan from ABC Ltd and therefore release my son from his liability under the guarantee. This is as recorded in the loan agreement at page 3 of my bundle of evidence
12. Mr Smith did not obtain the loan for personal, domestic or household purposes: It was for his business as I have said, and I have referred to the provision in the loan agreement recording the purpose that the loan was to be used for in support of that position.
Issues
Your submissions could then go on to describe the issues that arise from the facts. You should have already identified those issues for yourself when preparing to write your submissions, but this is the part where you would write about the issues if you follow the F.I.L.A.C. structure.
The issues could be to do with evidence or law or a mixture of both.
In the Credit Contracts example you might say:
13. The immediate issue is whether the Credit Contracts and Consumer Finance Act 2003 applies to the loan agreement.
You could go on to make submissions on secondary issues such as whether you have complied with that Credit Contracts Act if it does apply, and if you have not complied then what consequences follow. These need not be addressed for the purposes of the example though.
Legal principles
The next thing to write about in your submissions are the legal principles that are relevant to resolving the issues one way or the other. ‘Legal principles’ may be found in authorities such as legislation, case law and legal texts.
You should carefully set out where you have found each legal principle you refer to.
An example of a reference to legislation:
“Section 27, subsection (2)(a) of the Property Law Act 2007”
An example of a reference to case law:
“Norman v ANZ National Bank Limited [2012] NZCA 356 (8 August 2012) at paragraph [37]”
However, note that you should not say “v” or “versus” in the Norman v ANZ National Bank Limited example if you were referring to that case orally. You should say “and” instead, so “Norman and ANZ National Bank Limited” if you were talking about that case out loud.
An example of a reference to a legal text:
“Burrows, Finn and Todd, Law of Contract in New Zealand (3rd ed, 2007) at 10.6.2(a)”
In the Credit Contracts example involving the loan to Mr Smith, you might carefully trace the provisions of the Credit Contracts and Consumer Finance Act 2003 that relate to the kinds of contracts where initial and continuing disclosure are required:
14. Part 2 of the Credit Contracts and Consumer Finance Act 2003 deals with initial disclosure and continuing disclosure. Section 10 provides:
This Part applies to consumer credit contracts.
15. Section 11 of the Credit Contracts and Consumer Finance Act 2003 provides, among other things:
(1) A credit contract is not a consumer credit contract if –
(a) the debtor is a natural person; and
(b) the debtor enters into the contract primarily for personal, domestic, or household purposes; and
[…]
(d) when the contract is entered into, 1 or more of the following applies:
(i) the creditor, or one of the creditors, carries on a business of providing credit (whether or not the business is the creditor’s only business or the creditor’s principal business):
(ii) the creditor, or one of the creditors, makes a practice of providing credit in the course of a business carried on by the creditor:
(iii) the creditor, or one of the creditors, makes a practice of entering into credit contracts in the creditor’s own name as creditor on behalf of, or as trustee or nominee for, any other person:
(iv) the contract results from an introduction of one party to another party by a paid adviser or broker.
16. Consequently, a contract would have to meet the definition of a ‘consumer credit contract’ before the requirements of the Credit Contracts and Consumer Finance Act 2003 that relate to initial and continuing disclosure apply.
Application
This step ties the relevant legal principles to the particular facts of your case. So you would explain how the law applies to the facts for each issue that is being argued about. In the example of the loan to Mr Smith you might submit:
17. The loan agreement does not fall within the definition of a ‘consumer credit contract’ because the requirements of section 11(1)(b) and (1)(d) are not met.
18. Regarding section 11(1)(b), Mr Smith did not obtain the loan for personal, domestic or household purposes.
19. Regarding section 11(1)(d), I am not in the business of providing credit and I do not make a practice of providing credit.
Conclusion
You would write about what follows from the application of the law to the facts of the case at this point in your submissions. It should be a statement of your position on the issues that are in dispute because it would not be sensible to arrive at a conclusion that is inconsistent with your position.
In the example of the loan to Mr Smith:
20. Therefore Mr Smith’s defence cannot succeed because there is no requirement to provide initial or continuing disclosure in this case.
21. It follows that the loan agreement is enforceable as claimed.
There can be a degree of overlap between facts, issues, legal principles and their application and the conclusions they lead to from time to time, and it might be difficult to divide everything into separate categories. That should not be a problem so long as to do actually address each F.I.L.A.C step in the course of your submissions. The main thing is to make your position clear and the reasons why you have taken that position.
Alternative structure for synopsis
An alternative way to structure your synopsis would be to use the slightly different I.R.A.C. sequence. This can be useful where there is little or no dispute over the facts of a case, and where the plaintiff has already set those out to the court.
I.R.A.C. stands for Issue, Rule (legal principle), Application (of the law to the facts of the case) and Conclusion. You would apply the I.R.A.C. sequence to each separate issue being argued about in a case.
Evidence supporting your argument
An indexed, paginated and bound bundle of documents you intend to put forward as evidence in support of your case could be very useful at the hearing. Then you could quickly and easily refer the tribunal referee to a particular page in your booklet, and the referee could find that page without difficulty. Lose papers can be clumsy to use in general, and carry a greater risk of misunderstandings about the particular documents of parts of documents you refer to.
You could make up a bundle of documents for yourself, the disputes tribunal and every other party to your case. Every bundle should be exactly the same. You should not include original documents but keep them separately and take them to the hearing just in case you need to produce them for some reason. The documents you should copy and include in your bundles are anything that could help you prove your argument. These could include:
1. letters;
2. emails;
3. contracts;
4. invoices;
5. receipts;
6. photographs; and
7. quotes for repairs.
This is not to say that a bundle of documents is necessarily all the evidence that you will need to prove your case though. You may also need witnesses. See the part about witnesses below for more about that.
Bundle of evidence checklist
The things that you should be sure to include in your bundle of evidence:
1. A cover page. This should be the same as the cover page for any synopsis of argument you prepare, except that it should describe the document as a ‘bundle of documents’ rather than a ‘synopsis of argument’ or ‘synopsis of submissions’. See the part above that deals with the cover page for a synopsis of argument for more.
2. An index. This might describe each document in the bundle, the date of each document and the page in the bundle where the document can be found.
3. Copies of documents you are relying on in evidence. Copy each page of each document onto a single side of a leaf of white paper. That is to say that you should make up the bundle using ‘single sided copying’.
4. Page numbering. You should number each page of your bundle in the bottom right hand corner.
5. Copy the bundle. You should make sure you have a bundle for yourself, a copy for the tribunal and a copy for every other party to the case.
6. Bind the bundle. You might be able to do this with a staple, or you might need something more elaborate depending on the size. You might even need to split the bundle up into volumes, but there would probably not be a need for that in the Disputes Tribunal except in very rare cases.
Bundle of evidence template
You can download a bundle of evidence template here: Disputes Tribunal Bundle of Evidence
Witnesses
You may need witnesses to give evidence in support of your case at the hearing. In that case you will need to organise your witnesses before the hearing. You should speak to potential witnesses to find out what they have to say.
Consider contacting the Tribunal for a witness summons requiring your witnesses to come to the hearing. A summons can be particularly helpful if you need someone to give evidence in your case but who refuses to attend the hearing and act as your witness.
Support people
The general expectation is that you will attend a Disputes Tribunal hearing and represent yourself. However, the Tribunal may permit you to bring a support person with you in some circumstances. Any support person should not say anything at the hearing unless asked by the Referee. If you are interested to bring a support person with you to your hearing then you should contact the Tribunal staff and discuss this with them. You might be asked to make a written application. If you are then see those parts of this text dealing with applications for interpreters below for guidance on written applications generally.
Representatives
As with the part of this text about support people, the general expectation is that you will attend a Disputes Tribunal hearing and represent yourself. However, the Tribunal may allow a representative to present your case for you in special circumstances, so long as that representative is not a lawyer. Those ‘special circumstances’ may include:
1. where your corporation is a party and you are an employee or someone holding a majority interest then you may be allowed to represent your corporation;
2. where you are involved in the claim jointly with another person or several others, and you want one of those others to represent you;
3. where you are under 20 years old; and
4. where you have a disability that would make it difficult for you to present your case.
If you are interested to bring a representative with you to your hearing then you should contact the Tribunal staff and discuss this with them as soon as possible. That is because the Tribunal must approve your chosen representative before the hearing.
You might be asked to make a written application for a representative. If you are then see those parts of this text dealing with ‘applications for interpreters’ below for guidance on written applications generally.
Interpreters
The Disputes Tribunal can arrange for an independent interpreter to attend the hearing if you need an interpreter. It is a free service, but something that you need to arrange with the Tribunal well before the hearing day.
The application for an interpreter should be made in writing, such as by a letter or an email. You should contact the tribunal staff to discuss what would be the best way to make the application and who you should address it to.
Generally, your application should include:
1. Details of your particular case in the Disputes Tribunal, such as:
1.1. The location or ‘registry’ of the Tribunal that is dealing with your case.
1.2. Any reference number that the Tribunal has assigned to your case (if known).
1.3. Who the parties to the case are.
2. Details of the hearing, such as:
2.1. The date and time when the hearing will take place.
2.2. The location or ‘registry’ of the Tribunal where the hearing will take place (if different from the Tribunal registry that is dealing with the claim generally).
2.3. The name of the Referee who will hear the case (if known).
3. That you are making an application for an interpreter to assist you at the hearing, and the language that the interpreter would need to know in order to properly assist you.
4. Your name, and clearly identifying that it is you who is making the application.
5. The reasons why you are making the application, and the reasons why it should be granted. That Mandarin is your first language for example, that you do not feel you have a good understanding of English and that you are concerned that you might not properly communicate what you want to say or understand what is said to you.
6. Your contact details, including the phone number that the Tribunal could reach you on if your application were granted.
Appearing by telephone
Another thing that you might need to organise before the hearing is whether you can attend by telephone instead of being there in person. This might be appropriate where you are overseas or otherwise live far away from where the hearing will take place.
You would need to make an application to the tribunal for leave to appear by telephone. That application should be made as soon as possible to ensure it is dealt with before the hearing day. The application should be made in writing, such as by a letter or an email. You should contact the tribunal staff to discuss what would be the best way to make the application and who you should address it to.
Generally, your application should include:
1. Details of your particular case in the Disputes Tribunal, such as:
1.1. The location or ‘registry’ of the Tribunal that is dealing with your case.
1.2. Any reference number that the Tribunal has assigned to your case (if known).
1.3. Who the parties to the case are.
2. Details of the hearing, such as:
2.1. The date and time when the hearing will take place.
2.2. The location or ‘registry’ of the Tribunal where the hearing will take place (if different from the Tribunal registry that is dealing with the claim generally).
2.3. The name of the Referee who will hear the case (if known).
3. That you are making an application to appear at the hearing by telephone.
4. Your name, and clearly identifying that it is you who is making the application.
5. The reasons why you are making the application, and the reasons why it should be granted. For example, that you live overseas and that it would not be practical if you were required to travel to attend the hearing in person, or that the costs would be prohibitive.
6. Your contact details, including the phone number that the Tribunal could reach you on if your application were granted.
Note: This content was originally published by CourtKeys.com in 2015. Disclaimer