Marketplace disputes, David and Goliath battles - the secret court cases hidden from the public

Ethan Griffiths
Ethan Griffiths

Open Justice multimedia journalist, Wellington

A woman upset a hired band didn’t play enough Abba, a fight with an airline that a business class seat didn’t lie flat and a lack of buttercream in a 21st birthday cake are the sorts of issues that end up before the Disputes Tribunal. But Ethan Griffiths asks - why do we barely hear about the cases?

In January 2017, frail 92-year-old Freda Love lay shivering in her bed. Her mattress was soaked in her own urine and open windows blew freezing air into her room. She had nothing but a thin shawl scantily covering her body.

Outside, her son Robert Love walked over the frosted concrete to the entrance of the Bupa St Kilda rest home in Cambridge. He walked into his mother’s “premium” room - which he was paying an extra $50 a week for - only to discover the appalling sight.

Just over two weeks later, Freda was admitted to hospital. The following month she died.

In the midst of grief, Tauranga-based Love questioned precisely what led to her death.

He raised complaints with Bupa, believing what he considered to be a lack of care afforded to Freda caused her significant distress, which contributed to her swift deterioration.

He claimed their failings amounted to 14 distinct incidents that included her catheter being forgotten, windows left open at all hours and her call button being removed from next to her bed.

“I wanted accountability, and even though [the process] became a slow, unfolding train crash, I didn’t want to stop until I got it.

“If this was happening to my mother, you could be almost certain it was happening to other people.”

Launching civil proceedings in the High Court wasn’t an option for Love. Restricted financially, he instead took his case to the Disputes Tribunal - one of the most accessible legal bodies where it costs as little as $45 to file a claim.

For many unable to afford lawyers’ fees, it’s the court of last resort.

Facebook marketplace disagreements, trades jobs gone wrong or disputes between a customer and an airline are the sorts of issues that end up before the tribunal.

It’s a quick and streamlined process to settle disputes under $30,000 where parties put their own case. Legal representation is banned.

While the tribunal requires the claim to be for a financial sum, Love was more interested in proving his claim that Bupa had failed in the care of his mother.

His methodical planning and preparation served him well.

Robert Love holds a picture of his late mother, who suffered distress from failings in care during her time in a rest home. Photo / John Borren
Robert Love holds a picture of his late mother, who suffered distress from failings in care during her time in a rest home. Photo / John Borren

The tribunal ruled Bupa’s St Kilda rest home in Cambridge was responsible for a systematic failure, failing to provide a reasonable level of care. Bupa later apologised and was ordered to refund Love $10,000.

But while justice had been served within the walls of the tribunal, the public was none the wiser.

Love was sure other families had seen a loved one neglected in residential care and wanted to show it was possible to win.

While the Disputes Tribunal hears more than 11,000 cases each year, 95 per cent of its decisions are never published. Hearings are held behind closed doors - the public and the media can’t attend.

The Ministry of Justice maintains a small database of decisions, but it captures just a tiny snapshot of the tribunal’s proceedings.

According to the Ministry, around 600 decisions deemed to be of public interest are uploaded annually – about 5 per cent of the tribunal’s annual determinations.

In published decisions, all parties, including registered companies, are anonymised regardless of the outcome.

If a decision is not uploaded, the only way it can reach the public is if a party to the proceeding gives a copy to the media.

“I essentially became a public relations expert, emailing journalists and trying to pitch my story,” Love recalls.

“I figured the only way I might extract some value from this process was to publish the evidence. Otherwise, where is the public accountability?”

The case of his mother’s treatment went on to garner attention nationwide and put the spotlight on rest home care.

Just down the road from Love, Tauranga surgeon Mark Morgan employed a similar strategy.

He recently won a $13,000 payout after taking airline Emirates to the tribunal, challenging its advertisement offering “lie flat” business class seats when his seat didn’t actually lie flat.

After the tribunal ruled in his favour, the story went global. It made headlines in the US, UK, Australia and as far away as Nigeria - but if it wasn’t for Morgan providing local media with the decision, the public would have no knowledge of the case.

“I didn’t realise how widely it would go, but I thought at least locally there might be some interest from other people who had been similarly affected.”

For Morgan, the greatest difficulty was figuring out whether or not he had an arguable case. He would have referred to previous decisions, but nothing similar had ever been uploaded to the decisions database, he says.

No comparison

According to Whangārei lawyer Nick Coyle, who takes an interest in the tribunal, claimants often come looking for advice on how to make their case.

Sometimes, there were almost no comparable decisions to gauge whether or not someone had an arguable case, he says.

“Thinking about towing disputes, for example – you would think that as a member of the public, you should be able to determine whether you have grounds to spend your time bringing a claim to challenge a towing fee.

“The tribunal has published a few decisions of public interest, which in theory should provide guidance. However, two or three decisions cannot cover the wide variety of possible circumstances.”

Tribunal decisions were not precedent-setting, but could provide a valuable picture of the potential success of claims, Coyle says.

By comparison, all Tenancy Tribunal decisions are uploaded to an online database, many of which the Herald and other media report. They’re only anonymised if a party successfully seeks suppression.

The Motor Vehicle Disputes Tribunal also makes its decisions public - names of individuals and businesses included.

In practice, the inconsistency means if you challenge a dealer for selling you a shoddy car, it’s public. But if you’re sold a dodgy lawnmower, it winds up in the Disputes Tribunal and likely remains secret.

Consumer NZ chief executive Jon Duffy.
Consumer NZ chief executive Jon Duffy.

Consumer New Zealand chief executive Jon Duffy says there is a case to be made for the publication of decisions, giving consumers a greater idea of what is going on.

While 5 per cent of decisions being uploaded was a good start; “It’s certainly not comprehensive enough to help inform the debate of what’s going on out there in various markets.”

“By contrast, if you look at the Motor Vehicle Disputes Tribunal, they produce an annual report which can break the data in the hearings down into litigant issue and location.

“This is really relevant stuff. We don’t have that ability with the Disputes Tribunal, which I would argue impacts a far greater number of New Zealanders.”

If that information were available, Duffy says, it would go a long way to identifying issues and working towards potential consumer law reform.

The change that never eventuated

The overarching secrecy of the tribunal essentially boils down to its nature as both an adjudication and a mediation body.

Since it was introduced in 1977, originally called the Small Claims Court, hearings have been held in private, and decisions largely kept under wraps.

According to Otago University associate professor of law Bridgette Toy-Cronin, the idea was that those with disputes would be more likely to come forward if their grievances weren’t aired in public, and an emphasis was placed on parties reaching a compromise.

“Mediation, almost by definition, is a confidential process. The idea is that the parties will be willing to lay all their cards on the table.”

In the Tenancy Tribunal, private mediation is offered before a case reaches a hearing.

In a report on the Disputes Tribunal’s closed-door law 19 years ago, the Law Commission said: “There would no longer appear to be any compelling reason for such a major compromise of open justice.”

Another Law Commission report four years later in 2008 came to a similar conclusion: “There should be very few cases where total secrecy is ever justified.”

When the Government went about raising the appointment period of referees from three to five years in 2013, a Cabinet paper obtained under the Official Information Act and seen by the Herald shows ministers agreed to amend the act, opening up the tribunal to the public and mandating the publication of decisions.

But shortly thereafter, the then-Courts minister, the late Chester Borrows, met with then-principal Disputes Tribunal referee Anne Darroch, who opposed the publication of decisions.

Documents show the late Chester Borrows met with principal referee Anne Daroch in early 2014, who raised concerns about opening up the tribunal. Photo / Bevan Conley
Documents show the late Chester Borrows met with principal referee Anne Daroch in early 2014, who raised concerns about opening up the tribunal. Photo / Bevan Conley

The notes from that meeting, written by a ministry staffer, show Darroch said if decisions were released publicly, referees would have a higher demand for legal research assistance that was already under serious strain.

“You can’t have it all,” the document records her as saying.

“But shouldn’t referees be making good decisions for their own sake?” asked Warren Fraser, the then-policy manager for courts and tribunals.

“A good, reasoned decision is not inherently linked to likelihood of publication.”

After that meeting, moves to open up the tribunal never eventuated.

For Toy-Cronin, while researchers like herself can apply to sit in on hearings, research can be restricted by the non-publication of decisions.

It’s also hard to know exactly how well the tribunal is operating, she says.

“The major barometer for the tribunal is whether people are complaining publicly or not. That’s not a particularly robust way of monitoring a body.

“I personally think it’s problematic the tribunal is closed off as it is. It’s a small claims court, and I’m not really convinced that privacy is particularly necessary.

“The Tenancy Tribunal doesn’t have that privacy, but people don’t routinely hang out there, it’s not a public spectacle.”

A potential middle ground could be an assumption that decisions are released but potentially redacted, she says.

Calls for reform

These days, both National and Labour have differing positions on reform of the Disputes Tribunal.

Newly appointed Minister for Courts Rino Tirikatene believes in the status quo, saying the tribunal should be held in private and decisions broadly kept secret, other than those deemed to be in the public interest.

“Unlike other tribunals, Disputes Tribunal referees are required to try to settle disputes through mediation during the hearing,” he says.

“If this is not possible, referees decide matters on their merits rather than points of law. Private hearings facilitate this process.

“Public hearings and decisions could fundamentally alter the tribunal’s unique nature,” he says. “Parties might not be as willing to compromise if supporters or media were present.”

Newly minted Minister for Courts Rino Tirikatene says the current privacy framework in the Disputes Tribunal works well.
Newly minted Minister for Courts Rino Tirikatene says the current privacy framework in the Disputes Tribunal works well.

He said the current practice of anonymising and releasing some decisions was sufficient for the public to identify decisions relevant to them.

While the National Party’s courts spokesperson Chris Penk didn’t offer a view on whether tribunal doors should be opened, he believed the tribunal should publish its decisions.

“This should be a default practice, with parties having a time-limited opportunity to argue that - in the particular circumstances of their case - it would be unfair or unreasonable to publish a decision.”

He said National was contemplating reform for the tribunal, including changing maximum thresholds and enabling financial orders to be enforced, which was not possible under current legislation.

“It’s appropriate to require a greater degree of transparency, therefore, as justice should not only be done but also be seen to be done.”

For Robert Love, while accepting there are some cases where coming to a resolution trumps public scrutiny, the balance should, most of the time, land on the side of transparency. Releasing a handful of redacted decisions doesn’t go far enough.

“Someone in the Disputes Tribunal should have the ability to decide if it is an exceptional case, it needs publicity and it needs precedent. Unfortunately, in my case, the whole system is geared towards suppression.”

“I’m a stubborn bugger. I just had to pull the lid off and let people see what was really going on.

“I did the best I could do for my mother.”

How to tackle the Disputes Tribunal

The Disputes Tribunal is a quick and inexpensive way to settle disputes. Lawyers cannot represent parties, the hearing operates more informally than a court, and the presiding referee encourages settlement. Claims are heard in person, but occasionally via video or phone. Claimants pay a fee of $45, $90 or $180 depending on the size of the claim. All claims must be under $30,000.

You can lodge a claim online on the Disputes Tribunal website. Your application will be sent to the tribunal team, who will confirm your application and schedule a hearing.

Don’t go breaking my bank - colourful claims

The tribunal’s accessible nature sees it assessing a wide range of claims, including that of 15-year-old James de Hair, who last April challenged the seller of an iPhone he purchased on Facebook, winning a full refund.

In 2020, a man who attended the ill-fated Auckland Sir Elton John concert where he fell sick halfway through his performance was refunded 40 per cent of his concert ticket. The settlement didn’t require a full hearing; concert promoters came to the table and settled after a claim was lodged.

Last June, a woman lodged a claim over a lack of buttercream inside a cake. Because she declined a refund and took the cake home she wasn’t entitled to a refund, the tribunal ruled.

Another case saw a woman complain after a hired band didn’t know enough Abba songs. After cancelling the booking, she attempted to recoup the full $500 deposit, but the band only refunded half. The tribunal dismissed the application.