Claimant Granted Rehearing for Name Suppression in Tenancy Dispute

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[2025] NZTT 4998248, 4987788

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The application for rehearing is granted.

2. An application for suppression has been made in this case, and the Tribunal orders suppression of [[NAME]] name and identifying details.

3. The stay of the order dated 13 February 2025 is lifted and the order is enforceable.

Reasons:

1. [[NAME]] attended the hearing by phone.

2. [NAME] did not attend the hearing.

3. The landlord did not attend the hearing, however, gave reasons for her non- attendance.

4. I am satisfied that all parties were served with the notice of hearing. The hearing proceeded in the absence of the [NAME] parties.

5. These proceedings relate to two applications.

6. Application number 4987788 relates to an application by two of the three tenants to reduce a fixed term tenancy. The application was successful at the first hearing and [[NAME]] was granted name suppression in that matter.

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7. Application number 4998248 relates to the landlord’s application for compensation following the end of the tenancy. This matter was determined at a second hearing and [[NAME]] indicated he did not seek name suppression.

8. [[NAME]] has applied for a rehearing of the Tribunal order dated 13 February 2025 (Application number 4998248) as he now seeks name suppression and did not appreciate the consequences of not seeking it at the second hearing in these proceedings. He does not seek a rehearing in respect to any [NAME] matter.

9. For the reasons set out below, I am satisfied that a miscarriage of justice may have occurred and a rehearing is granted. 1

10. As I directed in the order setting this matter down for consideration, I have heard and determined the substantive issue of suppression in this order.

Rehearing’s to be heard by same adjudicator.

11. It is the usual practice of the Tenancy Tribunal that the application for rehearing is normally considered by the original adjudicator, being the adjudicator who made the decision which is sought to be reheard. I note that approach has been supported by the District Court.

12. In the decision of [NAME] v [NAME], the District Court confirmed that:

It is nothing extraordinary (indeed it is perfectly ordinary) for an adjudicator or Judge to hear a rehearing application in respect of a decision he or she has earlier given... it would be a mistake for a disappointed party to conclude that because a decision gives precedence to the points made by, and the evidence of, the successful party, their own points of evidence have been ignored. Any adjudicator or Judge must make decisions as to what is persuasively relevant. It is a virtual inevitability that the content of his or her decision or judgement will show emphasis accordingly.

13. Similarly in the District Court decision of [NAME] v [NAME], 2 the Court observed that the: “Adjudicator who hears the case initially, entitled to hear any rehearing application. It would be “normal practice” for an adjudicator to do so.”

1 See section 105 Residential Tenancies Act 1986 2 (DC. North Shore, CIV-2012-[PHONE], 7 May 2013),

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Grounds for rehearing

14. Section 105 of the Residential Tenancies Act 1986 relates to rehearing. Subsection 1 confirms that:

“The Tribunal shall in all proceedings have the power to order a rehearing of the whole or any part of the proceedings on the ground that a substantial wrong or miscarriage of justice has or may have occurred or is likely to occur.”

15. The applicant need not establish an actual miscarriage of justice or substantial wrong, only that it may have occurred. However, in the District Court Judgment of Wellington City Council v McMillan [2003] DCR 50, Judge Tuohy held that the statutory language set a high standard, and that:

[18]   … They most obviously apply … to cases of procedural error eg a hearing which takes place in the absence of a party who has not been given notice of it; the improper admission or rejection of evidence; misconduct by the adjudicator or by one of the parties or a witness. The words may also encompass the discovery of new and important evidence not previously available.

[19]   In my view, however, the words do not cover a complaint that the Tribunal was merely mistaken or wrong in its findings of fact or in its application of the law. There are two reasons for this. First the strength of the language in s 105 is such that something more than a mere wrong decision must be shown. The section does not speak of a decision being wrong, but of a substantial wrong or miscarriage of justice occurring. This implies obvious injustice, not merely an erroneous decision.

[20]   Secondly, if a mere erroneous decision is enough, whether the error is factual or legal or both, it would enable parties to in effect appeal any decision twice: once to the very Tribunal which made it by way of an application for rehearing, and then again to the District Court against the grant or refusal of the application for rehearing. Not only does that offend the general hierarchical nature of the appeal system, it would also make the time limit for filing notice of appeal against an original decision nugatory.”

16. As noted by in the District Court appeal of [NAME] v [NAME] 3:

In this Court’s view the Tribunal’s reasons for refusing a rehearing are correct. Rehearing’s are about challenges to processes and procedures and are not about what the adjudicator found or the decisions the adjudicator made.

3 [2019] NZDC 1993 Judge Christiansen

https://www.westlaw.co.nz/maf/wlnz/app/document?docguid=I71a82471496811e6b8f3f870462e5362&&src=rl&hitguid=I91c0e275e01f11e08eefa443f89988a0&snippets=true&startChunk=1&endChunk=1&isTocNav=true&tocDs=AUNZ_NZ_LEGCOMM_TOC#anchor_I91c0e275e01f11e08eefa443f89988a0

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Outcome

17. [[NAME]] seeks a rehearing of the application for name suppression.

18. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any [NAME] circumstances of the case. 4

19. The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. 5

20. In this case the tenant was granted name suppression in the first order in the proceedings.

21. I am satisfied that the tenant might not have appreciated the consequences of not seeking name suppression, this in itself is not grounds to grant a rehearing.

22. However, it is relevant that the tenant was granted name suppression in the original order therefore this should apply to the second order. The first order and the subsequent order have the tenant’s and the landlord’s cross application numbers recorded on both, therefore both orders should have the tenant’s name suppressed.

23. I therefore am satisfied that a miscarriage of justice may have occurred and grant the rehearing application and grant the tenant name suppression as sought.

[NAME] 18 March 2025

4 See Section 95 A (1) of the RTA. 5 See section 95 A (4) of the RTA.

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei. A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

Reasons: