This page explains what’s proposed in the Canterbury Earthquakes Insurance Tribunal Bill being considered by Parliament.
The Canterbury Earthquakes Insurance Tribunal Bill will establish a tribunal to provide Canterbury homeowners with a fair, speedy, flexible and cost-effective way to resolve their long-standing insurance claims and help them move on with their lives.
The Bill allows that only eligible homeowners can apply for their case to be heard by the tribunal. Those homeowners who choose to take their case to the tribunal will be provided with a pathway for their long-standing insurance claims to be heard and resolved.
The tribunal’s final form will be known once the Bill is passed; a tribunal Chair is appointed; and practice notes are developed to provide the specifics of how the tribunal will operate.
A tribunal is an independent judicial body set up to deal with specific issues, whereas the courts have wider general jurisdiction. Like courts, tribunals find facts, apply the law and make reasoned, binding decisions.
In the courts, the parties try to make the most compelling argument for their case. Tribunals tend to use a more informal approach, examining the available information, talking to the parties directly, and sometimes asking for more evidence, to get to the right outcome.
Tribunals can provide a lower-cost outcome because their proceedings are often faster and less formal than the courts.
The tribunal as proposed will only consider residential insurance claims relating to the Canterbury earthquakes of 2010 to 31 December 2011. The tribunal will also be able to consider liability for earthquake damage that occurred after 2011 providing at least some of the damage in a claim occurred earlier.
The Bill proposes that homeowners (called ‘policyholders’ or ‘insured persons’ in the Bill) can apply to the tribunal if:
This includes first-time settlement claims, as well as claims re-opened due to the discovery of additional earthquake damage or deficient repairs.
The tribunal will not consider other types of insurance disputes, such as claims related to Kaikōura or other natural disasters.
Insurers and EQC will not be able to file claims with the tribunal.
The Bill recognises that the Government’s priority is to resolve long-standing claims from the Canterbury earthquakes, so homeowners can move on with their lives. Focusing exclusively on these claims will allow the tribunal to provide faster outcomes for eligible homeowners, many of whom have been waiting a long time for an outcome.
No, not as proposed. Many of the disputes involving on-sold properties – those sold since the damage occurred – are highly complex and may raise new legal questions that don’t yet have answers. Keeping these disputes outside the tribunal will help ensure they don’t delay resolution of other claims.
The tribunal as proposed will only consider claims between homeowners and insurers or the EQC. However, the Bill gives the tribunal the option to ‘join’ (or add) other potentially liable parties (such as builders) to a case where this could settle the claim faster or make the process fairer.
For example, if an insurer managed repairs to a home and the work was believed to be deficient, the builder who performed the repairs could be joined to the homeowner’s claim. The builder would be required to participate in tribunal proceedings and would be subject to the tribunal’s decision.
Homeowners can ask the courts to have their claim transferred to the tribunal.
The courts can also transfer cases to the tribunal, if it is in the interests of justice to do so.
Insurers will not be able to ask for a claim to be transferred to the tribunal, but they will need to agree to its transfer if they filed the original claim with the courts.
The tribunal will be in Christchurch.
The Bill must be passed before the tribunal is established, so final timing is not yet known. It is expected that the Tribunal will be up and running in mid-2019, subject to Parliamentary processes.
Information typically required by a tribunal to support a claim includes:
The Tribunals page will have information on the application process and requirements, once known.
No, legal representation will not be necessary. It will be up to homeowners to decide whether they would like to engage a lawyer.
Free legal services are available through resources such as Community Law Canterbury(external link).
The Bill proposes the application process be fee-free. However, anyone choosing to engage other services, for example a lawyer, will need to pay for those services.
The Bill proposes a tribunal process that is flexible by providing different pathways to resolve a claim depending on the claim’s circumstances and history. It will also be proactive by managing timeframes to move claims forward.
Even once the Bill is passed, some of the details of the tribunal’s workings won’t be finalised until the Chair is in place and practice notes are developed to provide the specifics of how the tribunal will operate.
The proposed process centres around direct discussions between a tribunal member, the homeowner, their insurer and any other involved or support parties. These discussions are called Case Management Conferences and they could occur as often or as little as needed to clarify issues and progress claims.
An initial case management conference will always be held, where the tribunal will discuss the issues and decide on which option will be most efficient in resolving the claim.
One of the options that the tribunal has as proposed in the Bill, includes an independent, fully-funded mediation service. The mediation service will be provided by the Ministry of Business, Innovation and Employment, which is experienced in delivering mediation.
Mediation is a confidential process that gives parties the opportunity to work with a trained mediator to either reach a resolution between themselves, or narrow the points of dispute.
Mediation can take place at any point before hearing. After a discussion with the parties, it will be up to the tribunal to decide whether to refer parties to mediation.
If the parties agree on a settlement at any point during the tribunal process, including at mediation, the Bill allows for the terms of the settlement to be recorded as a formal decision which can be enforced as a District Court order.
If a settlement is not reached during the various stages of the tribunal process (e.g. case management conferences, mediation etc) the claim will go to hearing.
The tribunal will decide claims based on existing law and precedent, and relevant insurance contract terms.
The Bill provides the tribunal with powers like that of a court. The proposed tribunal can:
No appointments have been made yet.
The Chair and members will be appointed by the Governor-General on the advice of the Minister for Courts, once the Bill is passed.
Tribunal hearings are usually public unless there is a reason for a hearing, or part of a hearing, to be private.
Following the hearing the Tribunal’s written decision will be provided to the parties and published on the Tribunal website, unless there is good reason not to publish it.
That is difficult to know as every claim will be different.
The proposed tribunal will be able to set timeframes that must be followed, and it will actively manage cases to keep claims progressing. The tribunal will also be able to adjust its resources in response to need. These things should contribute to an efficient process for homeowners.
The Bill provides for an appeals process. Decisions could be appealed to the High Court on any grounds (fact or law), if agreed by the High Court. Subsequent appeals would be available on matters of law only.
The Bill had its first reading on 4 September 2018 after which it was
referred to Select Committee for consideration. The Select Committee reported
back on the Bill on 18 March 2019. Read the report on the New Zealand Parliament website.(external link)
The Second Reading of the Bill took place on 11 April 2019 and on 8 May 2019 it was considered and voted on by the Committee of the Whole House.
The next steps are for the Bill to:
It is expected that the Tribunal will be up and running in mid-2019, subject to the above Parliamentary processes.