Royal Justice: A Litigant's Experience

Yesterday we resolved a dispute with a former boarder from late last year, and the experience illustrates the consequences of the dominance of royal courts on dispute resolution, and the organisation of the royal courts into a formal hierarchy applying a body of rules under the stare decisis doctrine. I will contrast this experience with the alternative of a non-royal tribunals resolving disputes under customary law (i.e. anarchist institutions).

We had a private boarder staying with us who proved unsuitable for our household and family, so we gave him 3 weeks notice to leave, as per the contract terms. After about a week, his behaviour became intolerably obnoxious so we asked hm to pack up his things and leave immediately. He refused to leave so we called the police, who refused to remove him and threatened to arrest me. We then locked him out and packed his things for him and put them out for him to collect. He packed them in his car and parked up in our driveway next to our house. When he left the car we had it towed. He got his car back and parked it up again, and so we had it towed again. About a month later we received a Disputes Tribunal case in the mail claiming for his bond, missing and damaged personal items, tow fees and damage to his car, about $2,500 all up.

Although the substantial law the case was decided on was nothing unusual or controversial, what was remarkable was the quality of the service provided and the process that was followed. Our former boarder, Mr Greening, tried to file the case in the Tenancy Tribunal, and here is where the issue of jurisdiction started: under the royal courts, competition between royal courts has been eliminated as each court's jurisdiction is non-overlapping. The Tenancy Tribunal rejected Mr Greening's case as he didn't provide a tenancy agreement -- a document Mr Greening appeared to have lost (actually it was a boarding contract). The Tenancy Tribunal told him to file in the Disputes Tribunal.

The Disputes Tribunal hearing was conducted by a referee Mr Gower, a very strict man who liked to use a lot of legal jargon without explaining it. I'm sure Mr Greening had no idea what the terms 'repudiation' or 'bailment' meant and Mr Gower didn't explain them. He also liked to apply common law and statutory legal rules with a very high degree of strictness (despite not being 'bound to give effect to strict legal rights and obligations or to legal forms and technicalities'). Soon after opening the proceedings, when he found out that I wanted my wife to be joined as a party to the case and that I intended to set off the bond against damage caused by Mr Greening, he threatened to award costs against me for not having filed a counterclaim or a request to join my wife as a party. The legal rule, Mr Gower said, was that only undisputed debts could be set off, and this rule was to be applied strictly. Mr Gower was also an adjudicator in the Tenancy Tribunal.

Mr Gower became concerned that the Disputes Tribunal may not have jurisdiction to hear the case, as the Tenancy Tribunal may have jurisdiction. Despite being a Tenancy Tribunal adjudicator, he felt it necessary to refer the matter to the Tenancy Tribunal to rule on whether or not it had jurisdiction - this being the designated tribunal to make such a ruling on jurisdiction. Mr Greening duly re-filed his case in the Tenancy Tribunal and we filed a counterclaim and requested both my wife and I to be parties to the case.

The Tenancy Tribunal adjudicator was a lady who appeared to have some difficulty in deliberating on whether or not the Tenancy Tribunal had jurisdiction. Mr Greening had nothing to submit, and I submitted two arguments, one that we were a 'boarding house' and came under the recent legislation (which allowed us to terminate a boarding house tenancy immediately for a serious breach) and another that we were exempted by a provision for properties primarily used as the landlord's residence, which would send us back to the Disputes Tribunal. She appeared to want to avoid putting us under the provisions of the Residential Tenancies Act and decided that we had discharged the burden of proof to show the house was primarily the landlord's residence. The decision appeared to stretch the otherwise rigid legislation and common law rulings under the stare decisis doctrine.

Yesterday, back at the Disputes Tribunal, the substantial issues were resolved by a new referee, Mr Kay. Mr Kay told us Mr Gower had asked for the case to be re-assigned because he was a Tenancy Tribunal adjudicator also. Somehow, we are supposed to have a better service from someone who is less familiar with the area of law concerned. Mr Kay's style was very different from that of Mr Gower. Mr Kay used little legal jargon, and he explained the terms he did use. Mr Kay looked for a prompt, reasonable resolution rather than attempting to follow every particular legal rule strictly. He appealed to custom rather than legal rules in allowing us to set of the loss caused by Mr Greening's breach of contract against the bond balance of Mr Greening. He also found the easiest way to resolve the case: he said Mr Greening's case was too weak, and that he did not discharge the burden of proof (a nice legal way of telling Mr Greening he didn't believe him).

How would this dispute have played out in an alternative legal system of competing private tribunals under customary law?

Firstly, the question of jurisdiction would be much less important: any tribunal that wanted the business and could get at least 1 party to the dispute to agree to accept its jurisdiction could have heard the case. This could have avoided the need to go back and forward between tribunals looking for the sole tribunal with the authority and capacity to resolve the dispute.

Secondly the dispute would not have been determined by appeal to legislation and case law. Put another way, the pretense of upholding the 'rule of law' would no longer apply. In the absence of legislation and binding case law would have been three approaches: negotiation, custom and innovation. Negotiation is always a possibility for resolving any particular dispute. By definition, a dispute is a disagreement, so it can be ended by agreement. Custom is applying the practices of people dealing with issues successfully or tolerably well in the past to the present dispute. Such past resolutions, if they are accepted in the community and by the parties, create valid expectations that they are likely to be applied in future disputes of the same nature. Innovation is trying new techniques or rules for resolving disputes as a feature of the service selected by the parties or for resolving new types of disputes.

Thirdly, in addressing the immediate conflict when Mr Greening refused to vacate the house, it would not be the Royal police attending, but a private security agency. Even if I was a difficult customer, I would not expect such an agency to threaten to arrest me, as the police did several times. Indeed my previous experiences with the NZ Police have also involved actual rather than threatened unnecessary and illegal use of police powers against me. A private security agency would probably perform two functions: firstly, it would seek to make or keep peace through negotiation. The NZ Police did not attempt any negotiation whatsoever in this case, we tried it several times though the ordeal, both directly and through other people including even the local MP (who accurately foretold us Mr Greening would sue us, and use the police against us). Secondly, it would assist people to exercise self-help legal remedies such as the eviction of trespassers, effecting lock outs, removal of chattels, and defence of land, people and property. The tow companies were examples of this: they both towed away Mr Greening's car on my orders and at Mr Greening's expense. Such an agency would be careful to act lawfully, because goon-squad behaviour would result in costly settlements for wrongs.