Canterbury Earthquakes Insurance Tribunal Act 2019

1: Title
This Act is the Canterbury Earthquakes Insurance Tribunal Act 2019.
2: Commencement
This Act comes into force on the later of—
a: 10 June 2019; and
b: the day after the date of Royal assent.
1: Purpose, preliminary provisions, eligibility, bringing claims, and case management
1: Purpose and preliminary provisions
3: Purpose
The purpose of this Act is to provide fair, speedy, flexible, and cost-effective services for resolving disputes about insurance claims for physical loss or damage to residential buildings, property, and land arising from the Canterbury earthquakes.
4: Overview of Act
1: This section is a guide to the general scheme and effect of the Act.
2: Subpart 1 of Part 1
3: Subpart 2 of Part 1 Part 3
4: Subpart 3 of Part 1
5: Subpart 4 of Part 1
6: Subpart 1 of Part 2
7: Subpart 2 of Part 2 Part 1 of Schedule 2
8: Subpart 1 of Part 3 Part 2 of Schedule 2
9: Subpart 2 of Part 3
5: Definitions
In this Act, unless the context otherwise requires,— Canterbury earthquakes chairperson section 57(4) chief executive claim
a: the chairperson has accepted an application to the tribunal under section 13
b: a court has transferred proceedings to the tribunal under section 16 claimant
a: a person who is a policyholder or an insured person (or both) who has a claim before the tribunal because—
i: the chairperson has accepted the person’s application under section 13
ii: the person was a plaintiff in proceedings that a court has transferred to the tribunal under section 16
b: an insurer or the EQC, if they were a plaintiff in proceedings that a court has transferred to the tribunal under section 16 department subpart 1 of Part 2 EQC section 4 expert see sections 24(1)﻿(f) 27(1)﻿(f) 39(1)﻿(f) function insurance claim
a: a claim made under a contract of insurance by a policyholder to an insurer:
b: a claim made under the Earthquake Commission Act 1993 insured person section 2(1) insurer
a: means a person who is liable as the insurer under a contract of insurance in respect of a residential building or residential property; but
b: for the purpose of this Act, also includes Southern Response mediator subpart 1 of Part 2 Minister policyholder residential building section 8 residential land section 8 residential property section 8 respondent
a: means a person against whom a claim is before the tribunal; and
b: includes a third party respondent sitting Southern Response tribunal Part 3
6: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1
7: Act binds the Crown
This Act binds the Crown.
2: Eligibility criteria and parties to claim before tribunal
8: Application of Act
1: This Act applies to disputes between policyholders and insurers about insurance claims for physical loss or damage arising from the Canterbury earthquakes to a residential building or residential property.
2: This Act also applies to disputes between insured persons and the EQC about insurance claims for physical loss or damage arising from the Canterbury earthquakes to a residential building or residential land, or both.
3: This Act also applies if—
a: a policyholder or an insured person (or a person who is both) has both—
i: a dispute or disputes described in subsection (1) or (2) first dispute
ii: a dispute or disputes about an insurance claim for further physical loss or damage to the same building, property, or land that is the subject of the first dispute (the second dispute
b: that further physical loss or damage arose from any earthquake or aftershock that occurred after 31 December 2011.
4: Despite subsections (1), (2), and (3)
5: For the purpose of subsection (1) residential building residential property
a: include similar terms (such as home) used in a contract of insurance between a policyholder and an insurer; and
b: have the meanings given in a contract of insurance to residential building, residential property, or any similar term.
6: For the purpose of subsection (2) residential building residential land section 2(1)
7: For the purpose of subsection (3)
a: the first dispute and the second dispute may be or include disputes with different insurers:
b: if the EQC is not a party to the first dispute, the second dispute may be or include a dispute with the EQC:
c: further physical loss or damage may be related to or be entirely separate from the particular physical loss or damage that is the subject of the first dispute.
9: Eligibility criteria to bring claim before tribunal
1: The eligibility criteria to bring a claim before the tribunal are that the claim—
a: must arise from a dispute between the parties under section 8
b: must seek resolution of liability, or remedies, or both; and
c: must be within the jurisdiction of the tribunal to make an order under section 46
2: Subsection (1)﻿(c) section 13 section 16(2)﻿(a) or (4)﻿(a)
a: to form a view on any question of law; or
b: to assess the likelihood of success of the claim or any defence to it.
10: Bringing claim to tribunal
1: A claim may be brought to the tribunal only in accordance with subsection (2) or (3)
2: A person who is a policyholder or an insured person (or both) may bring a claim to the tribunal against an insurer or the EQC (or both) by making an application under section 12 section 13
3: A claim may also be brought by the transfer of proceedings from a court to the tribunal under section 16
11: Additional parties and removal of parties
1: If the tribunal considers it necessary for the fair and speedy resolution of a claim, it may order that—
a: a person be joined as a third party respondent:
b: a party be removed.
2: However, the tribunal may order that an insurer or the EQC be joined as a respondent only if the claimant is both a policyholder and an insured person.
3: If a claim involves more than 2 parties and a party or parties are removed from it, the claim may continue in the tribunal only if—
a: at least 1 person who is a policyholder or an insured person (or both) remains as a claimant and at least 1 insurer or the EQC remains as a respondent; or
b: at least 1 person who is a policyholder or an insured person (or both) remains as a respondent and at least 1 insurer or the EQC remains as the claimant.
4: If a claim cannot continue in the tribunal under subsection (3)
a: if the claim is filed in the other forum within 6 months of the date on which the order was made to remove a respondent; and
b: even if the time for filing a claim in that other forum has passed; but
c: only if the claim before the tribunal was brought within any applicable limitation period.
3: Bringing claims to tribunal, ineligible claims, and status of claims under other enactments
Bringing claims by application to tribunal
12: Claim brought by application to tribunal
1: A person who is a policyholder or an insured person (or both) may bring a claim by applying to the tribunal.
2: The application must set out (for both a first dispute and a second dispute ( see section 8(3)
a: the date of the application; and
b: a description of the claim and the parties involved; and
c: the remedy sought; and
d: the names and addresses of the parties involved; and
e: if available, the addresses that the parties have specified for the service of notices.
3: The application must—
a: be in writing; and
b: be in the form (if any) approved by the tribunal; and
c: include sufficient information and supporting documentation to fairly inform other parties and the tribunal of the substance of the claim being brought; and
d: be accompanied by the prescribed fee (if any).
4: The filing date of an application is the date on which the tribunal receives the complete application.
13: Applications that chairperson may accept
The chairperson may accept an application only if it meets the eligibility criteria in section 9
14: Serving notice on respondent
1: This section applies if the chairperson has accepted an application.
2: The claimant must serve notice of the claim before the tribunal on the respondent (or respondents), unless the tribunal serves notice of the claim on the claimant’s behalf.
3: See clause 12
15: Response from respondent
1: A respondent may file with the tribunal a written response and supporting documentation within 15 working days of being served a notice of the claim or within a later time period directed by the tribunal.
2: A response must—
a: be in writing; and
b: be in the form (if any) approved by the tribunal; and
c: include sufficient information and supporting documentation to fairly inform other parties and the tribunal of the substance of the response.
3: The respondent must serve a copy of any response and supporting documentation on the claimant and any other respondent before or immediately after any response and supporting documentation is filed with the tribunal.
4: See clause 12 Bringing claims to tribunal by transfer of proceedings from court
16: Claim brought by transfer of proceedings from court
1: If a person who is a policyholder or an insured person (or both) is a plaintiff in court proceedings relating to an insurance claim in dispute, a Judge may, on the application of that person or on the Judge’s own motion, order that the proceedings be transferred to the tribunal.
2: An order to transfer proceedings may be made under subsection (1)
a: the proceedings meet the eligibility criteria for a claim under section 9 section 8 see clause 6(2)
b: the other party or parties to the proceedings have been given a reasonable opportunity to comment; and
c: the Judge making the order believes that the transfer is in the interests of justice.
3: If a person who is a policyholder or an insured person (or both) is a defendant in court proceedings relating to an insurance claim in dispute, a Judge may, on the application of that person, order that the proceedings be transferred to the tribunal.
4: An order to transfer proceedings may be made under subsection (3)
a: the proceedings meet the eligibility criteria for a claim under section 9 section 8 see clause 6(2)
b: the other party or parties to the proceedings agree to the transfer; and
c: the Judge making the order believes that the transfer is in the interests of justice.
5: If court proceedings are transferred to the tribunal, a plaintiff in the proceedings becomes a claimant before the tribunal.
6: If proceedings are transferred, the tribunal may have regard to any notes of evidence transmitted to it by the court, and it is not necessary for that evidence to be given again unless the tribunal requires it.
7: Sections 12 to 15
8: For the purpose of this section, Judge 2006 No 84 s 120 Ineligible claims because of proceedings in another forum
17: Application ineligible because of proceedings or decision in another forum
A person may not bring a claim before the tribunal under section 12
a: they have commenced arbitration relating to the same insurance claim in dispute; or
b: they have commenced proceedings relating to the same insurance claim in dispute in the Disputes Tribunal and the proceedings are in progress; or
c: they have commenced proceedings relating to the same insurance claim in dispute (including by way of counterclaim) in a court and the proceedings are in progress (although the proceedings may be transferred to the tribunal under section 16
d: they were a party to proceedings before a court or the Disputes Tribunal relating to the same insurance claim in dispute and the proceedings have been decided by the court or the Disputes Tribunal.
18: Withdrawal of claim on claimant commencing proceedings in another forum
1: A claimant may not continue a claim before the tribunal if—
a: they commence arbitration relating to the same insurance claim in dispute; or
b: they commence proceedings relating to the same insurance claim in dispute (including by way of counterclaim) in a court or in the Disputes Tribunal.
2: If a claimant commences arbitration or proceedings of a kind referred to in this section,—
a: the claimant must notify the tribunal:
b: the claim must be treated as withdrawn. Status and effect of claim under other enactments
19: Status and effect of claim under other enactments
1: This section applies to a claim before the tribunal when—
a: the chairperson accepts the relevant application; or
b: a court transfers the relevant proceedings to the tribunal.
2: The claim before the tribunal must be treated as—
a: proceedings for the purpose of section 76
b: legal proceedings under section 248
c: legal proceedings under section 321(1)﻿(b)
d: actions or proceedings for the purposes of section 42
4: Case management
20: Managing claims and natural justice
1: When managing claims, the tribunal must have regard to the purpose of this Act, which is to provide fair, speedy, flexible, and cost-effective services.
2: In particular, the tribunal—
a: must encourage the parties to work together on matters that are agreed; and
b: if experts are used (whether by a party or the tribunal), must consider using conferences of experts to avoid duplication of advice or evidence on matters that are or are likely to be agreed.
3: The tribunal must comply with the principles of natural justice.
4: However, subsection (3)
5: For case management relating to adjudication of claims, see section 37 First case management conference
21: Notifying date for first case management conference
1: The tribunal must notify the parties within the time period set out in subsection (2)
2: The time period for notification is within 15 working days of—
a: the chairperson accepting the relevant application; or
b: a court transferring the relevant proceedings to the tribunal.
3: The tribunal may notify a change of date of the first case management conference if the circumstances require it.
22: Attendance at first case management conference
1: A party must attend the first case management conference unless—
a: the party has a reasonable excuse for not attending; or
b: the tribunal decides that the party does not need to attend.
2: If a party is not a natural person, the following individuals may attend the first case management conference on behalf of the party, but only if they are authorised to bind the party:
a: for the EQC, an officer or employee:
b: for another corporation or an unincorporated body of persons,—
i: an officer or employee; or
ii: a member of the corporation or body; or
iii: an individual who holds a majority interest in that corporation or body:
c: for a person jointly liable or entitled with another or others, one of the individuals jointly liable or entitled or, in the case of a partnership, an employee of the partnership.
3: The tribunal may impose in respect of any participant ( A B
4: Any participant who attends the first case management conference must do so in person unless—
a: the necessary facilities are available for the participant to attend by telephone, audiovisual link, or another remote access facility; and
b: the tribunal considers it appropriate for the participant to attend via one of those means.
23: Accompanying party at first case management conference
1: A party at the first case management conference may be accompanied by—
a: 1 or more representatives ( see clause 3 of Schedule 2
b: experts employed by the party:
c: 1 or more support persons, with the approval of the tribunal.
2: The tribunal may direct that the number of representatives and experts at the first case management conference be limited to allow for the efficient conduct of the conference.
24: Matters for first case management conference
1: At the first case management conference, the tribunal may—
a: set a timetable for future steps to progress the claim, for example, for information or documents to be produced and the convening of an expert conference:
b: identify any issues on which the parties are agreed and the core issues in dispute:
c: obtain further information regarding the claim or a response to the claim:
d: decide whether parties need to be joined or removed and, if so, make an order under section 11
e: direct a respondent to file a response to the claim:
f: appoint an expert adviser to assist the tribunal:
g: direct the parties to mediation and set time frames for mediation:
h: direct that arrangements be made to inspect the dwelling house, property, or land to which the claim relates (as long as the consent of the owner or occupier is obtained before entry):
i: issue any other reasonable directions that may assist with the early resolution of the claim.
2: If a respondent is joined to the claim, the tribunal must—
a: notify them that they have been joined as a respondent to the claim:
b: specify the date by which a response must be filed with the tribunal and served on the other parties:
c: specify the date by which any information or documents must be produced to the tribunal and the other parties.
3: An appointment of an expert adviser under subsection (1)﻿(f)
4: Expert advisers must act in accordance with practice notes issued by the chairperson.
5: Before directing the parties to mediation, the tribunal must inform the parties of the effect of section 35
6: At the first case management conference, the tribunal must inform the parties of the effect of section 46(8)
7: The first case management conference must be held in private.
25: Independence of expert advisers
1: Expert advisers appointed by the tribunal—
a: must act independently when assisting the tribunal with any particular claim or aspect of it; and
b: must be independent of any of the parties to the claim.
2: An expert adviser who is being considered for appointment to assist, or is assisting, the tribunal and who has a conflict of interest in relation to the particular claim—
a: must disclose it to the tribunal and all the parties; and
b: unless all the parties agree otherwise,—
i: must not accept the appointment:
ii: must withdraw from acting in relation to the claim.
3: A party who agrees to an expert adviser being appointed or continuing to act forfeits any right to object to the expert adviser acting on the basis of the conflict of interest that was disclosed by the expert adviser. Further case management
26: Further case management
1: For the purpose of case management following the first case management conference and at any stage before the parties begin preparing for a hearing (if one is needed), the tribunal may, as it considers appropriate in order to progress the claim,—
a: hold any number of case management conferences; and
b: if a party is not a natural person, require the attendance at a case management conference of an individual listed in section 22(2)
c: otherwise communicate with the parties in any way it considers is efficient.
2: A case management conference must be held in private.
3: A case management conference may be conducted by telephone, audiovisual link, or another remote access facility if the tribunal considers it appropriate and the necessary facilities are available.
4: The tribunal may direct that the number of participants at a case management conference be limited to allow for the efficient conduct of the conference.
5: If a party has been joined to the claim since the first case management conference, the tribunal must as soon as practicable inform the new party and at the same time remind the other parties of the effect of section 46(8)
27: Powers of tribunal
1: The tribunal may do any of the following that are relevant to the stage of proceedings at which a case management conference or other communication with the parties occurs:
a: set a timetable for future steps to progress the claim, including for any of the things in paragraphs (b) to (k)
b: direct that information or documents be produced:
c: request written submissions from a party or the parties on preliminary matters, as long as it then gives the relevant parties a reasonable opportunity to comment on them:
d: decide whether parties need to be joined or removed and, if so, make an order under section 11
e: direct a respondent to file a response to the claim:
f: appoint an expert adviser to assist the tribunal:
g: convene an expert conference:
h: even if the parties have attempted mediation previously, direct the parties to mediation and set time frames for mediation:
i: direct that arrangements be made to inspect the dwelling house, property, or land to which the claim relates (as long as the consent of the owner or occupier is obtained before entry):
j: request, direct, or order the parties to do anything provided for in Part 1 of Schedule 2
k: issue any other reasonable directions for resolving the claim.
2: Section 24(2)
3: An appointment of an expert adviser under subsection (1)﻿(f)
4: Section 25 subsection (1)﻿(f)
5: Expert advisers must act in accordance with practice notes issued by the chairperson.
6: Before directing the parties to mediation, the tribunal must inform the parties of the effect of section 35
28: Transfer of claim to court
1: The tribunal may order that a claim be transferred to the District Court or the High Court at any time before the tribunal makes an assessment of liability if, in the tribunal’s view, it is more appropriate for a court to decide the claim for any or all of the following reasons:
a: the claim presents undue complexity:
b: the claim is a novel claim:
c: the subject matter of the claim is related to the subject matter of proceedings that are already before the court.
2: Before making an order under subsection (1)
3: If the total amount at issue is within the jurisdiction of the District Court stated in section 74
4: Any other claim must be transferred to the High Court.
2: Mediation and adjudication of claims
1: Mediation
29: Application of this subpart
This subpart applies where the tribunal directs the parties to mediation.
30: Mediation services
1: The chief executive must employ or engage persons to provide mediation services that are fair, speedy, flexible, and cost-effective to assist parties to resolve claims.
2: Nothing in this Act prevents any person from seeking and using mediation services other than those provided by the chief executive under this subpart to settle a dispute to which this Act could apply. 2006 No 84 ss 77(1) 79
31: Independence of mediators
1: A mediator—
a: must act independently when deciding how to deal with any particular claim or aspect of it; and
b: must be independent of any of the parties to whom the mediator provides mediation services.
2: A mediator who has a conflict of interest in relation to a particular claim—
a: must disclose it to all the parties; and
b: must, unless all the parties agree otherwise, refuse to act (or withdraw from acting) in relation to the claim.
3: A party who agrees to a mediator acting (or continuing to act) forfeits any right to object to the mediator acting on the basis of the conflict of interest that was disclosed by the mediator. 2006 No 84 s 78(1)
32: Procedure in relation to mediations
1: Except as provided in this section, the mediator decides what services are appropriate to a particular claim.
2: If the parties to a claim agree that they require more time for mediation of the claim than is provided by any order of the tribunal, the parties may apply to the tribunal for more time for mediation.
3: The mediator—
a: may, having regard to the purpose of this Act and the needs of the parties, follow any procedures, whether structured or unstructured, or do any things that the mediator considers appropriate to resolve the claim promptly and effectively; and
b: may receive any information, document, or other material, in any way that the mediator thinks fit, whether or not it would be admissible in judicial proceedings.
4: However, a mediator does not have power to determine any matter, even if asked to do so by the parties. 2006 No 84 s 81(1)–(3)
33: Confidentiality
1: The people specified in subsection (2)
a: any information, document, or other material created for the purposes of mediation (including any admission or agreed terms of settlement); and
b: any information that, for the purposes of a mediation, is disclosed orally in the course of the mediation.
2: The people are—
a: the mediator:
b: a party to the mediation:
c: the chief executive:
d: a person employed or engaged by the department:
e: a person who assists the mediator or a party.
3: A mediator must not give evidence in any civil proceedings, whether under this Act or any other Act, about—
a: the mediation services provided by the mediator; or
b: anything related to those services that comes to the mediator’s knowledge in the course of providing those services.
4: No evidence is admissible in any court, or before any person acting judicially, of any information, document, or other material that, by subsection (1)
5: Nothing in the Official Information Act 1982 applies to any information, document, or other material disclosed to the mediator in the course of a mediation under this subpart.
6: Nothing in this section—
a: prevents the discovery or affects the admissibility of any evidence that would otherwise be discoverable or admissible and that existed independently of the mediation process merely because the evidence was presented in the course of a mediation under this subpart; or
b: prevents the gathering of information by the department for research, educational, monitoring, or evaluation purposes so long as the parties and the specific matters in issue between them are not identifiable; or
c: prevents the disclosure by any person employed or engaged by the chief executive to any other person employed or engaged by the chief executive of matters that need to be disclosed for the purposes of giving effect to this Act. 2006 No 84 s 84
34: Settlements to be provided to chief executive and tribunal
1: If a claim (or part of a claim) settles at mediation, the mediator must promptly provide a copy of the agreed terms of settlement to the chief executive and to the tribunal.
2: The agreed terms of settlement provided to the chief executive may be—
a: used by the department for research, educational, monitoring, or evaluation purposes so long as the parties and the specific matters in issue between them are not identifiable; and
b: disclosed to any person who is employed or engaged by the chief executive if the disclosure is necessary for the purposes of giving effect to this Act. 2006 No 84 s 86
35: Enforcement of mediated settlements
1: The tribunal must record the agreed terms of settlement provided to the tribunal under section 34(1)
2: The decision is enforceable under section 52
3: Section 33(4) 2006 No 84 s 87
36: Mediation services not to be questioned as being inappropriate
Mediation services provided under this subpart cannot be challenged or called into question in any proceedings on either or both of the following grounds:
a: that the nature or content, or both, of the services was inappropriate:
b: that the manner in which the services were provided was inappropriate. 2006 No 84 s 88(1)
2: Adjudication, enforcement, and appeals
37: Managing adjudication of claims and natural justice
1: When managing the adjudication of claims (including at hearings), the tribunal must have regard to the purpose of this Act, which is to provide fair, speedy, flexible, and cost-effective services.
2: In particular, the tribunal—
a: must encourage the parties to work together on matters that are agreed; and
b: must not admit or permit unnecessary or irrelevant evidence or cross-examination; and
c: if experts are used (whether by a party or the tribunal), must consider using conferences of experts to avoid duplication of advice or evidence on matters that are or are likely to be agreed.
3: The tribunal must comply with the principles of natural justice.
4: However, subsection (3)
a: permit the cross-examination of a party or person:
b: allow the use of an expert by a party in the tribunal’s processes for managing the adjudication of a claim, or allow a party’s expert to give evidence, if the tribunal considers this is unnecessary. 2006 No 84 s 57
38: Case management conference to prepare for hearing
1: If adjudication is necessary to resolve a claim, the tribunal must hold a case management conference to prepare for a hearing.
2: At that case management conference, the tribunal must—
a: identify any issues on which the parties are agreed and the core issues in dispute; and
b: decide whether parties need to be joined or removed and, if so, make an order under section 11
3: Section 24(2)
4: Section 26
5: At the first case management conference to prepare for the hearing, the tribunal must inform the parties and, if a party is later joined to the claim following that conference, must as soon as practicable inform the new party and at the same time remind the other parties, of the effect of section 46(8)
39: Powers of tribunal
1: For the purposes of preparing for a hearing and the hearing of a claim, the tribunal may—
a: set a timetable for future steps to progress the claim, including for any of the things in paragraphs (b) to (k)
b: direct that information or documents be produced:
c: direct that statements of evidence be exchanged:
d: consider evidence from another claim heard by the tribunal or on appeal that it thinks relevant and applicable to the present claim, as long as the tribunal—
i: informs the parties that it intends to do so; and
ii: gives them a reasonable opportunity to comment:
e: request written submissions from a party or the parties, as long as it then gives the relevant parties a reasonable opportunity to comment on them:
f: appoint an expert adviser to assist the tribunal:
g: convene conferences of the parties or experts:
h: even if the parties have attempted mediation previously, direct the parties to mediation and set time frames for mediation:
i: direct that arrangements be made to inspect the dwelling house, property, or land to which the claim relates (as long as the consent of the owner or occupier is obtained before entry):
j: request, direct, or order the parties to do anything provided for in Part 1 of Schedule 2
k: issue any other reasonable directions for resolving the claim.
2: Before directing the parties to mediation, the tribunal must inform the parties of the effect of section 35
3: Section 28 2006 No 84 s 73
40: Tribunal’s powers to seek and receive evidence, investigate, and make inquiries
1: The tribunal may, on its own initiative, seek and receive any evidence and make investigations and inquiries that it considers appropriate.
2: All evidence and information received by the tribunal must be disclosed to every party, and each party must be given a reasonable opportunity to comment on it.
41: Expert advisers
1: An appointment of an expert adviser under section 39(1)﻿(f)
2: Section 25
3: Expert advisers must act in accordance with practice notes issued by the chairperson.
42: Hearing of claim
1: The substantive hearing of a claim must be held in public except if, or to the extent that, an exception in this section applies.
2: On application by a party, the tribunal may order that all or part of a hearing be held in private.
3: The tribunal may make an order under subsection (2)
a: hearing from the parties; and
b: having regard to—
i: the interests of the parties; and
ii: the public interest; and
c: considering the open justice principle.
4: The tribunal may decide a claim on the papers if the tribunal considers it appropriate. However, before making that decision, the tribunal must give the parties a reasonable opportunity to comment.
5: A hearing or any part of it may be conducted by telephone, audiovisual link, or other remote access facility if the tribunal considers it appropriate and the necessary facilities are available. 1996 No 99 ss 14G 14H 2006 No 84 s 106
43: Consolidation of expert evidence on same subject matter for multiple claims
1: The tribunal may order that expert evidence on a subject matter relevant to more than 1 claim be given at a special sitting of the tribunal at which the parties to all affected claims and their representatives are entitled to be present and be heard, including to cross-examine the witness or witnesses giving the evidence (subject to any other provision in this or another Act).
2: Evidence that is given at the special sitting may include evidence resulting from a conference of experts.
3: The evidence given at the special sitting forms part of the evidence for each claim.
4: A claim may be included in a special hearing only if—
a: the tribunal considers it would be efficient to do so; and
b: all parties to that claim agree.
44: Further provisions relating to tribunal
Further provisions relating to the tribunal’s procedure, evidence, expert advisers, witnesses, an annual report to the Minister, provision of assistance and guidance to parties, and publication of information and decisions are set out in Part 1 of Schedule 2 Tribunal’s decision
45: Matters tribunal may decide
1: The tribunal may decide, under section 46
a: any liability of any party to any other party; and
b: any remedies for that liability.
2: If the tribunal decides that an insurer or the EQC has, or both have, no liability to a claimant who is a policyholder or an insured person, or both, the tribunal may still decide that a third party respondent has liability to that claimant.
3: If the tribunal decides that a policyholder or an insured person has no liability to a claimant who is either an insurer or the EQC, or has no liability to either, the tribunal may still decide that a third party respondent has liability to that claimant.
46: Tribunal’s decision: substance
1: The tribunal may make any order that a court of competent jurisdiction could make in relation to a claim in accordance with the following:
a: the terms of the contract of insurance in dispute between the parties:
b: the general law of New Zealand, in particular,—
i: the law of contract as it relates to contracts of insurance:
ii: the Earthquake Commission Act 1993
2: For the purposes of the Limitation Act 2010
a: the making of an application under section 12
b: the transfer of proceedings to the tribunal under section 16
3: An order may require the payment of general damages in accordance with the general law of New Zealand.
4: Despite section 47
5: If an order requires a party to do something, other than pay money, the tribunal must also set an amount of money that is payable by them, and the date by which that amount is payable, if they fail or refuse to do that thing by that date.
6: If the tribunal decides that a party is liable to make a payment to another party, the tribunal may make the payment subject to any conditions.
7: The tribunal may decide that the liability of a party depends on another party meeting particular conditions.
8: If a claim is settled by agreement between the parties before the tribunal’s decision is given (otherwise than through the mediation process provided in this Act), the tribunal—
a: must terminate the claim; and
b: if requested by the policyholder or insured person, may record the settlement in the form of a decision of the tribunal.
9: The agreement of all parties is not required before the tribunal records a settlement agreement as a decision under subsection (8)﻿(b)
10: The resulting decision is enforceable under section 52 2006 No 84 s 90 Section 46(2) replaced 30 November 2022 section 18 Statutes Amendment Act 2022
47: Costs
1: The tribunal may award costs against a party only in accordance with this section.
2: A costs award may be made against a party whether the party is successful or not (with all or part of the party’s claim or response) if the tribunal considers that—
a: the party caused costs and expenses to be incurred unnecessarily by—
i: acting in bad faith; or
ii: making allegations or objections that are without substantial merit; or
b: the party caused unreasonable delay, including by failing to meet a deadline set by the tribunal without a reasonable excuse for doing so.
3: A costs award must relate to costs and expenses incurred by the parties only and not to costs and expenses incurred by the tribunal.
4: If the tribunal does not make an order under this section, the parties must meet their own costs and expenses.
5: An order for costs may, on registration of a certified copy of the tribunal’s decision, be enforced in the District Court as if it were an order of that court. 2006 No 84 s 91
48: Tribunal may award interest
1: In a claim for the recovery of money, the tribunal may order the inclusion of interest on all or part of the money ordered to be paid for all or part of the period between the date on which the cause of action arose and the date of payment.
2: Interest must be calculated,—
a: if provision is made for interest in the relevant contract of insurance, in accordance with that contract:
b: if no provision is made in the relevant contract of insurance or the claim does not involve a contract of insurance, in accordance with Schedule 2
49: Tribunal’s decision: form
1: The tribunal’s decision must be in writing and include the tribunal’s reasons for it.
2: After a copy of a decision is given to the parties, the tribunal may correct any minor clerical or typographical errors or errors of a similar nature.
50: Nothing done by or relating to tribunal invalid because of failure to comply with technicality or legal form
No direction, decision, or order given or anything done by the tribunal, or anything done by anyone relating to the tribunal, is invalid because of a failure to comply with a technicality or legal form.
51: Suppression orders
1: The tribunal may order that all or part of the evidence given or the name or any identifying particulars of any witness not be published.
2: An order may be made subject to any conditions that the tribunal considers appropriate, having regard to the interests of the parties and to the public interest.
3: A person who breaches an order made under this section commits an offence and is liable on conviction to a fine not exceeding $3,000. Enforcement, referral of questions of law to High Court, and appeals
52: Enforcement of tribunal decisions (other than costs awards)
1: A decision of the tribunal may be enforced as if it were an order of the District Court except as provided in this section.
2: If application is made to the District Court for the issue of any process to enforce a decision by the tribunal setting an amount payable by a party who fails or refuses to do something by a certain date ( see section 46(5)
3: If that party does not file a notice of objection within 10 working days after receiving that notice, the decision may then be enforced against the party.
4: A notice of objection may be given only on the ground that the party believes that the decision of the tribunal has been fully complied with.
5: This section applies even if the amount at issue exceeds the jurisdiction of the District Court stated in section 74 2006 No 84 s 98
53: Questions of law may be referred to High Court
1: If a question of law arises during any case management process under this Act or at the hearing of a claim, the tribunal—
a: may (if a member is acting as the tribunal, with the written approval of the chairperson) refer the question to the High Court for its opinion; and
b: may delay the hearing until it receives the court’s opinion.
2: The tribunal must give the parties a reasonable opportunity to comment on whether the question should be referred to the High Court.
3: The High Court must give the tribunal its opinion on the question, following which the tribunal must continue the hearing of the claim in accordance with the opinion.
54: Appeals
1: A party to a claim that has been decided by the tribunal may appeal on a question of law or fact that arises from the decision.
2: An appeal must be filed in the High Court and requires the leave of the High Court.
3: A notice of appeal and an application for leave to appeal must be filed together within—
a: 20 working days of the tribunal’s decision; or
b: any further time that the High Court allows.
4: The High Court may—
a: confirm, modify, or overturn the tribunal’s decision:
b: order a remedy or award costs or interest that could be ordered or awarded by the tribunal.
5: Except to the extent modified by this Act, the High Court Rules apply to an appeal brought under this section.
6: A party may appeal a decision of the High Court to the Court of Appeal and a decision of the Court of Appeal to the Supreme Court, in each case—
a: with the leave of the court that is being appealed to; and
b: on a question of law only.
3: Canterbury Earthquakes Insurance Tribunal
1: Canterbury Earthquakes Insurance Tribunal established
55: Canterbury Earthquakes Insurance Tribunal established
1: The Canterbury Earthquakes Insurance Tribunal is established.
2: The tribunal comprises all members.
3: The chairperson presides over the tribunal.
56: Nature of proceedings
Proceedings of the tribunal are—
a: judicial proceedings subject to appeal to the High Court, Court of Appeal, and Supreme Court; and
b: inquisitorial in nature ( see section 40 2009 No 51 s 218
57: Appointment of members of tribunal
1: The minimum number of members that must be appointed to the tribunal is 1.
2: Each member of the tribunal is appointed by the Governor-General on the recommendation of the Minister.
3: The Minister must recommend for appointment—
a: only people who, in the Minister’s opinion, are suitable to be appointed as members, taking into account their knowledge, skills, and experience; and
b: at least 1 person who has the experience required to be the chairperson under subsection (5)
4: One member must be appointed by the Governor-General as the chairperson of the tribunal.
5: The chairperson must have held a New Zealand practising certificate as a barrister or as a barrister and solicitor for at least 7 years.
58: Performance of functions of tribunal
The functions of the tribunal are performed by its members.
59: Further provisions relating to tribunal members
Further provisions relating to tribunal members are set out in Part 2 of Schedule 2 Chairperson’s responsibilities
60: Assignment of member to act as tribunal
The chairperson must assign 1 member (and may assign themselves) to act—
a: as the tribunal for each claim:
b: as the tribunal to perform the functions required to be performed under section 66(4)
61: Orderly and efficient operation
The chairperson is responsible for making any arrangements that are practicable to ensure that each member (including themselves) performs their functions—
a: in an orderly and efficient manner; and
b: in a way that achieves the purpose of this Act.
62: Delegation by chairperson
1: The chairperson may delegate any functions (except this function to delegate) to a member who the chairperson is satisfied has the necessary knowledge, skills, and experience to perform that function.
2: A delegation—
a: must be in writing; and
b: must be to a named member; and
c: is revocable at any time, in writing; and
d: does not prevent the performance of the function by the chairperson.
3: A member to whom a function is delegated may perform it in the same manner and with the same effect as if it had been conferred directly by this Act and not by delegation.
4: A member who appears to act under a delegation is presumed to be acting in accordance with its terms in the absence of evidence to the contrary.
5: A member to whom a function is delegated is entitled to additional remuneration for work undertaken in performing that function at the rate at which the chairperson would be paid to perform the function (also see clause 34 Registrar and staff of tribunal
63: Registrar and staff
1: The Secretary for Justice may appoint a person as the Registrar for the tribunal.
2: The Secretary may assign employees of the Ministry of Justice to act as staff of the tribunal as may be required for the tribunal to have the services and resources necessary to perform its functions.
3: A person appointed as the Registrar and employees who are assigned to act as staff may also hold any other office or position in the Ministry.
2: Contempt, exclusion of liability, tribunal records, regulations and rules, and consequential amendments
64: Contempt of tribunal
1: A person commits an offence if they—
a: wilfully insult or obstruct the tribunal, a member, a witness, or an officer or staff member of the tribunal during a sitting of the tribunal or while a member, a witness, or an officer or staff member is going to, or returning from, a sitting of the tribunal; or
b: wilfully insult or obstruct a person attending at a sitting of the tribunal; or
c: wilfully interrupt, or otherwise misbehave at, a sitting of the tribunal; or
d: wilfully and without lawful excuse disobey an order or direction of the tribunal during the hearing of a claim; or
e: fail to—
i: attend at the tribunal after receiving a witness summons to do so; or
ii: produce any books, papers, documents, records, or things that the tribunal has required be produced.
2: A person who commits an offence against subsection (1)
3: The tribunal may order the exclusion of a person from a sitting of the tribunal if that person’s behaviour, in the opinion of the tribunal, constitutes an offence against subsection (1)
4: An officer or a staff member of the tribunal or a constable may take any steps that are reasonably necessary to enforce the exclusion.
65: Exclusion of liability
1: This section applies to—
a: the Secretary for Justice and the chief executive; and
b: a mediator, a member of the tribunal (including the chairperson), or an expert adviser; and
c: an officer, an agent, or a staff member of the tribunal.
2: Unless they have acted in bad faith, none of those people are under any criminal or civil liability for—
a: an act done or omitted in the course of performing a function under this Act; or
b: any words spoken or written at, or for the purposes of, a mediation or a sitting or hearing of a claim; or
c: anything in a notice given under this Act.
66: Tribunal records
1: The tribunal is responsible for ensuring the safe custody of the records and papers relating to an application or a claim under this Act.
2: The records and papers must be available for public inspection at all reasonable times, on payment of the fee payable (if any) for searching and accessing court records under the District Courts Fees Regulations 2009
3: Subsection (2) section 33
4: The District Court (Access to Court Documents) Rules 2017 Regulations and rules
67: Regulations
1: The Governor-General may, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing fees for the purposes of this Act:
b: making rules for tribunal procedures:
c: providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
2: Regulations under this section are secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 67(2) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
68: Rules of court: District Court and High Court
1: In addition to the powers conferred by the District Court Act 2016 Senior Courts Act 2016
2: Rules may be made only with the concurrence of—
a: the Chief District Court Judge (for rules for the District Court) or the Chief Justice (for rules for the High Court); and
b: 2 or more members of the Rules Committee established under section 155
3: See section 148 section 228 Section 68(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021 Consequential amendments
69: Consequential amendments to enactments
Amend the enactments specified in Schedule 3 2019-06-10 Legal Services Act 2011 Courts Security Regulations 2019