Ministry of Justice

COVID-19 protocol of the Tenancy Tribunal at 6 December 2021

Introduction
On 3 December 2021 the Government has moved New Zealand from the COVID-19 ‘alert level’ system to the COVID-19 Protection Framework (CPF), commonly known as the Traffic Light System (TLS). The District Court is in the process of confirming the protocols that will apply under the TLS, however, those will require resources and processes within the District Court system to be implemented. It is expected to take in the vicinity of 12 weeks in order to have these functioning.

In the interim, the District Court has developed the Transitional COVID-19 Protection Framework (Transitional Framework), to apply between 6 December 2021, and the court system being able to operationalise the full COVID-19 Protection Framework (CPF).

This document sets out the protocol which would allow the Tenancy Tribunal to deliver in-court hearings in TLS Red regions (particularly Auckland), for a limited number of cases where:

• The hearing cannot proceed by remote means; and
• where the substantive subject of the dispute is significant and considered a priority case, which requires the matter to proceed without further delay.

This is in accordance with the District Court protocols for Civil matters under the previous Alert Level 3:

a. Returning Offenders applications and injunctions, or other applications that merit urgent attention.

b. Harmful Digital Communication applications, Restraining Order applications, and Tenancy Appeals that merit urgent attention.

c. Generally, matters considered to be of such significant national or community importance that the immediate attention of the District Court is warranted. This category may include proceedings taken by or that arise out of actions taken by public officials.

The Tenancy Tribunal is committed to ensuring that the health and safety of staff and participants is paramount. There is no intention to schedule non-urgent matters for a face to face hearing. The Tribunal's protocol set out in this document would apply while the Transitional Framework applies.

The protocol also limits cases heard to between a half or full day fixtures, to limit numbers of participants coming into the court buildings.

Transitional Framework
The Transitional Framework applies from 6 December 2021. Two separate transitional frameworks have been presented to cover regions operating under the TLS Red and Orange restrictions.

In broad summary, the transitional framework for TLS Red limits in-court proceedings to priority proceedings, with additional expectations such as an ability to appear remotely, where appropriate.

Tenancy Tribunal Protocol for TLS Red Regions
The Tenancy Tribunal has determined that its operational protocols for the management of COVID-19 risk, should align to the District Court protocols. Hearings of the Tenancy Tribunal are conducted in District Courthouses throughout New Zealand, and it makes sense that the Tribunal adopt the same protection mechanisms that would otherwise be applied in the District Court.

Furthermore, our assessment is that the risks presenting to adjudicators, registry staff and parties in Tenancy hearings, are materially similar to the District Court sitting in its civil or family jurisdictions.

In line with the approach in the District Court Transitional framework, the Tenancy Tribunal propose to undertake in person hearings in TLS Red regions, during the currency of the Transitional framework for cases that would be assessed as priority cases. The Tribunal protocol is that:

a. Where possible, hearings will be conducted remotely, with all parties attending via a remote facility (MS Teams).

b. If any case is not suitable for a remote hearing, the case should be assessed whether it should proceed to in person hearing, if it relates to the following matters:

a. Health or safety of the tenancy and occupants.
b. Antisocial behaviour.
c. Assault or threatened assault.
d. Claimed ongoing (significant) property damage.
e. Significant breaches of quiet enjoyment or unlawful entry

c. If any application fall outside of the above criteria, but due to the special circumstances of that case Tenancy Services assess the case as needing to be heard urgently, the case must be assessed by either the Principal Tenancy Adjudicator or Deputy Principal Tenancy Adjudicator.  In assessing whether any case should be scheduled under this discretion, consideration will be made to the level of urgency, taking into account the risks presenting as set out in the Transitional Framework and CPF.

d. In person hearings in the Auckland region are limited to the Manukau, Auckland, North Shore and Waitakere District Courts, in addition to Chorus House. No hearings will be scheduled for Pukekohe or Papakura.

e. Registry support during hearings will be reduced. The Registrar will be required to bring the parties into the hearing room and start FTR and introduce the case. The Registrar may then leave the hearing room, and the Adjudicator will manage the case from that point.

f. Only the parties, essential support people and witnesses will be allowed into the hearing room.

g. No hearing will be scheduled for less than a half day fixture.

h. Other passive safety measures will be emphasised to the Adjudicators, such as the importance of mask wearing, sanitising hands, physical distancing etc.

In order to ensure the safe and consistent operation of hearings during Transitional Framework, the Deputy Principal Tenancy Adjudicator will be based in Auckland (between 15 and 22 December 2021), and will oversee the Tribunal’s operation.

TLS Red Regions outside Auckland
There is a greater general urgency to provide limited in court hearings in the Auckland region, given cases that would be considered priority cases, have been adjourned since mid-August.

It is recognised that District Court’s outside of Auckland are likely to be able to operate under the CPF in late January or February. To that extent, it may be reasonable to delay scheduling even priority cases in the non-Auckland areas.  However, it is recognised that urgent cases will arise in the TLS Red regions outside the Auckland area, that may require an urgent hearing. 

 TLS Orange Regions
The Tribunal will continue to operate in TLS Orange regions on a restricted basis.

Wherever possible hearings in the TLS Orange regions should proceed remotely.

If scheduled for an in-person hearing, only the parties, essential support people and witnesses will be allowed into the hearing room.

Passive safety measures should be used to the maximum extent practicable, including mask wearing, sanitising hands, physical distancing etc.

J Robson
Principal Tenancy Adjudicator