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Shoreline Import & Export v Global Electrical and Wholesalers [2005] FJHC 554; HBA0018 & 019.2004L (2 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA0018 & 019 OF 2004L

BETWEEN:

SHORELINE IMPORT AND EXPORT
Appellant

AND:

GLOBAL ELECTRICAL AND WHOLESALERS
Respondent

Counsel: Mr. G.P. Shankar for the appellant
Mr. V. Naidu for the respondent

Date of Hearing: 2 August 2005
Date of Judgment: 2 August 2005

EXTEMPORE JUDGMENT

The matter before the court is an appeal from the decision of the Learned Magistrate at Lautoka delivered on the 8^th September 2004 with respect to judgment to get a Summons Action No. 19 and 20 of 2004 finding that the Learned Magistrate was identical with respect to both matters which were between the same parties, the only difference being a slightly different quantum with respect to each claim. Proceedings between the parties originally commenced in the Small Claims Tribunal and were numbered respectively Actions 19 of 2004 and 20 of 2004. In those actions, the sum of $1,351.90 was claimed in Action No. 19 of 2004 and the sum of $1,225.00 in Action No. 20 of 2004.

It appears from the record of the Magistrates Court and the submissions made that orders were made by the Small Claims Tribunal for payment of the amounts referred to and that these orders were in fact made in the absence of the debtor. It appears again from the record and the submissions that the debtor was present initially before the Tribunal but was not present on the day when the matters were finally dealt with. His only explanation in the affidavit filed before the Learned Magistrate is that he had effectively made his point to the Tribunal that the debt was not owing and therefore did not appear. Not being present when the Tribunal made its finding resulted in a lack of awareness of the orders made by the Tribunal until such time as enforcement action was taken and served.

Application was then made, it would appear from the court record, to appeal out of time to the Learned Magistrate against the determination of the Small Claims Tribunal. The orders were made by the Tribunal on the 15^th January 2004. The application was made to the Magistrates Court on the 22^nd June 2004. The time prescribed to the lodging of an appeal under the Small Claims Decree is 14 days.

In the ruling dated the 8^th September 2004, the Learned Magistrate considered the provisions of Chan Long Chong & Ye Hui Fang v Yen Yain Kai – Civil Appeal No. HBA0005 of 1999, 45 FLR 217 which itself refers to an earlier decision of Sheet Metal & Plumbing (Fiji) Ltd v Uday Narayan Deo – HBA0007 of 1999, 45 FLR 80. The conclusion reached by the Learned Magistrate following these decisions of the High Court was that the Magistrates Court had the power or capacity to grant leave to file an appeal out of time from the determination of the Small Claims Tribunal. It would appear that the magistrate did not err in his finding.

The Learned Magistrate then set forth 4 principles to be taken into account when considering an application for leave to appeal out of time. He set those out as:

1. The length of delay.

2. The reasons for the delay.

3. The chances of appeal succeeding at the time for appeal is extended.

4. The degree of prejudice to a would be respondent if the application is granted.
   

The length of delay and the reason for it were clearly set out in the affidavit, that being a lack of knowledge of the order of the Tribunal but the fundamental issue is the basis for that lack of knowledge. That issues has been considered in Shocked & Another v Goldschmidt & Others [1998] 1 All ER 372 where Leggatt LJ said at page 377 when dealing with an application to set aside a judgment said:

“The cases about setting aside judgments fall into two main categories:

(a) those in which judgment is given in default of appearance or pleadings or discovery, and

(b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set it aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed.”

His Lordship at page 381 set out a series propositions or generally vacations, the first of which was or is:

“Where a party with notice of proceedings had disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.”

It appears to me from the material before the court that in this instance that is the situation. A party has disregarded the opportunity of appearing and of further submitting before the Tribunal, that I considered to be, a significant and overriding consideration when one considers the factors to take into account when deciding to grant an extension of time to appeal. The extension is clearly sought as a result of the party’s own failure and in those circumstances based upon the authorities to which I have referred, I am of the view that an extension should not be granted and it is on this point that I am of the opinion that the Learned Magistrate fell into error.

In the circumstances therefore, the appeal is allowed. The order of the Learned Magistrate is set aside. I order that the respondent to pay the appellant’s cost which I assess in the sum of Five Hundred Dollars ($500.00) and I order that the money held in the Magistrates Court, Ba be paid out in accordance with the orders of the Small Claims Tribunal.

John Connors
JUDGE

At Lautoka
2 August 2005