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Public Employees Union v Deo [2010] FJMC 175; Appeal Action 36.2009 (15 December 2010)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 1748 of 2008
APPEAL ACTION NO: 36 of 2009

BETWEEN:

PUBLIC EMPLOYEES UNION
Appellant

AND:

INDRA DEO
Respondent

SCT CASE NO: 1747 of 2008
APPEAL ACTION NO: 45 of 2009

BETWEEN:

PUBLIC EMPLOYEES UNION
Appellant

AND:

BAL RAM
Respondent

SCT CASE NO: 972 of 2008
APPEAL ACTION NO: 302 of 2009

BETWEEN:

PUBLIC EMPLOYEES UNION
Appellant

AND:

JOSATEKI PENA
Respondent

For Appellant in all three cases: Mr. Rabuku H.
Respondents in all three cases: Present in Person

RULING re: Appeal out of time

1. All these three cases are for ruling regarding appeal out of time sought by the appellants. Since the issue raised by the appellant in all three cases is same, I decided to deal all three cases together.
   
2. In Civil case 36 of 2009, Writ of Fieri Facias had been issued on the appellant to pay $3700 with cost to the respondent as per the order of Small Claims Tribunal (SCT) dated 06th August 2009. In Civil case 45 of 2009, Writ of Fieri Facias had been issued on the appellant to pay $3500 with cost to the respondent as per the order of SCT dated 09th October 2008. According to the Order of SCT dated 12th January 2009, application for re-hearing by the appellant had been dismissed due to non-appearance.
   
3. In Civil case 302 of 2009, Judgment Debtor Summons had been issued on the appellant to pay $2800 with cost to the respondent as per the order of SCT dated 08th July 2009. According to the order of SCT dated 04th September 2008, re-hearing requested by the appellant had been dismissed due to the absence of the appellant and the referee had thought it to mention that this behavior is a sign of disrespect by the appellant.
   

Applicable Law

4. Sec. 33 of the Small Claims Tribunal Decree deals with the appeal procedure.

S. 33

(1) Any party to proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31(2) on the grounds that:

(a) the proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings; or

(b) the Tribunal exceeded its jurisdiction.

(2) An appeal brought pursuant to subsection (1) shall be made:

(a) if against an order made by a Resident Magistrate exercising the jurisdiction of a Tribunal to the High Court; and

(b) in any other case, to the Magistrates' Court.

(3) An appeal shall be brought by a party by the filing of a notice of appeal, in Form 6 of the First Schedule to this Decree, together with the fee prescribed in the Second Schedule, in the Tribunal within 14 days of the Tribunal's order. [Emphasis mine]

5. According to the above-mentioned section it is clear, that any party who wish to appeal against the Tribunal's Order shall file a notice of appeal in the Tribunal within 14 days of the Tribunal's Order.
   
6. In this present situation there is no evidence to prove that the appellant had followed the above procedure. Appellant sought leave to "Appeal out of time".
   
7. Small Claims Tribunal Decree is silent regarding the procedure to extent the time of filing of appeal.
   

Law with regards to appeal out of time

8. In Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999) the court was of the view that the Magistrate's Courts Rules applied to the Small Claims Tribunal in instances where there is no provision under the Small Claims Tribunal Decree.
   
9. Order XXXVII r.4 provides that the court below or the Magistrate may extend the time within which the grounds of appeal are to be filed. When reading this together with section 33(3) of the Small Claims Tribunal Decree of 1991, Cap 14A, the interpretation is that the Tribunal or the Magistrate has the power to extend the time of filing notice of appeal which contains the grounds of appeal as prescribed by form 6. Where a notice of motion together with an affidavit in support has to be filed in the Tribunal or the Magistrate's court seeking extension of time to file grounds of appeal.
   
10. The Hon Justice Mr. Fatiaki in Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 (14 April 1999) expressed the view that Order XXXVII r 4 gave power to a Magistrates' Court to extend the 14 day period.
    
11. In Chand v Chand [1999] FJHC 61; HBA0018D.1999S (12 July 1999) the court provided factors that have to be considered in order to grant extension and the factors are as follows:
    

(a) the length of delay;

(b) the reasons for the delay;

(c) the chances of the appeal succeeding if time for appealing is extended; and

(d) the degree of prejudice to the respondent if the application is granted

12. In Chan Long Chong & Ye Hui Fang v. Yen Yain Kai [High Court, 10th September 1999] by referring to CM Van Stillevoldt BV v. El Carriers Inc [1983] 1 WLR 297; [1983] 1 All ER 699, Scott J re-iterated the above-mentioned principles.
    
13. In Civil cases 36 and 45 of 2009, on 04th May 2010, the counsel for the appellant sought time to file necessary papers for "appeal out of time" and 14 days granted to file the same. However, on 18th May 2010, counsel informed the Court that the documents he filed in the registry was returned and sought further time.
    
14. On 25th May 2010, no one appeared for the appellant and bench warrant had to be issued.
    
15. In Civil case 302 of 2009, Judgment Debtors Summons had been issued on the appellant and served on 24th September 2009. However, no one appeared on behalf of the appellant and bench warrant had been issued against the appellant. On 04th May 2010, counsel for the appellant sought leave to 'Appeal out of time".
    

Length of Delay

16. In Civil case 36 of 2009, SCT order was on 06th August 2009 and in Civil Case 45 of 2009, SCT order was on 09th October 2008. In Civil case 302 of 2009, SCT order was on 08th July 2008.
    
17. Therefore, the length of delay to move for 'appeal out of time' are as follows:
    
    1. Civil Case 36 of 2009 – 09 months
       
    2. Civil case 45 of 2009 - 01 year and 07 months
       
    3. Civil case 302 of 2009 – 01 year and 10 months
       

Reasons for the Delay

18. Present General Secretary on behalf of the Appellant had sworn affidavits to support the application to appeal out of time and in all three cases mentioned in this ruling, he had given reasons for delay as follows:
    

"Since, assuming the role of General Secretary after the sudden passing away of my predecessor I embarked on reforming the management of the Union. In one of our major reform is to engage a new legal counsel as our legal counsel Mr. A.K. Narayan has been representing the State in few of the State's litigation matters in Court. Therefore due to the issue of conflict of interest we have engaged a new solicitor to handle our legal matters. During this transitional period we were not able to obtain any reliable legal advice and guidance to enable us a proper representation to the Suva Small Claims Tribunal. Therefore I pray that we be given another fair opportunity to proper defend the interest of the Union in this claim".

19. In al three cases, the same General Secretary had filed separate affidavits supporting the summons and in paragraph 5, it is stated that "the Union was not represented in the initial hearing as the Union was not served with any documents".
    
20. I consider the above statement as a blatant attempt to mislead this Court for the reason that in Civil cases nos: 45 of 2009 and 302 of 2009, there is evidence to show that the appellant had sought re-hearing from Small Claims Tribunal but had not taken any attempt to appear in the Tribunal to support their application.
    

Chances of Appeal succeeding if the time is extended

21. As per sec. 33 of the SCT Decree, only two grounds upon which an appeal can be made to the respective court, and those grounds are:
    

a. The referee conducted the proceeding in a manner that was unfair to the appellant and which prejudicially affected the result of the proceeding; or

b. The referee exceeded his jurisdiction as specified under Part II of the Decree.

22. In the first ground of appeal there are two limbs, namely:
    

1. There must be procedural unfairness while the referee conducted the proceeding; and

2. That the procedural unfairness was prejudicial to the proceeding in the Tribunal.

23. The Honorable Justice Mr. Fatiaki in Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 (14 April 1999) also expressed that the wording in ground (a) is unusual and is plainly distinguishable from a general right of appeal that is conferred by the Magistrate' Court Act and Court of Appeal Act.
    
24. The Honorable Justice Mr. Fatiaki also endorsed the principles expressed by in Hertz New Zealand Ltd v Disputes Tribunal (1984) 8 PRN2 at 151 as

"there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal" [Emphasis mine]

25. Further his Lordship Justice Mr. Fatiaki, considered the principles laid down in,

NZI Insurance New Zealand Ltd v Auckland District Court[1993] 3 NZLR 453; 1993 NZLR LEXIS 695 that a normal grammatical construction of the 1988 Act, the better interpretation is that the right of appeal is limited to cases of procedural unfairness and does not extend to the correction of errors of law (wording of New Zealand Act and Fiji Decree is similar)

26. According to the appellant that the Respondents in all three cases are in breach of the sec. 16 of the Constitution of the Public Employees Union and thereby are not entitle for any claim.
    
27. When considering the Sheet Metal & Plumbing (Fiji) Ltd v Deo [1999] FJHC 25; [1999] 45 FLR 80 (14 April 1999) case, it is clear that the right of appeals from the orders of SCT is clearly distinguishable from the general right of appeal and the appellant is duty bound to prove that his appeal falls within the parameters of sec. 33 of the Small Claims Tribunal Decree 2009.
    
28. Appellant had failed to prove any procedural unfairness whilst the referee conducting his proceedings.
    
29. Even though appellant mentioned that they were unaware as to the proceedings in the SCT, I refuse to accept that position as there is evidence to show that the appellant had requested for re-hearing at SCT.
    

Degree of prejudice to the respondent if the application is granted

30. In paragraph 17 of this ruling I have clearly mentioned the time period the appellant had wasted without filing their appeal. According to the SCT Decree, appeal should be filed within 14 days of the order of the Tribunal.
    
31. In Civil case 45 of 2009 and 302 of 2009 the delay is more than one year and in Civil case 36 of 2009 it is 09 months.
    
32. The question is whether it is a reasonable delay, when considering the explanation given by the appellant. According to the appellant after the death of the former General Secretary they were in a transitional period where they could not obtain any reliable legal advice and guidance. However, none of those affidavits filed in the Court give an indication as to when the present General Secretary assumed his duties.
    
33. Even if I am to believe that the appellant had difficulties in obtaining proper legal advice, I am not in a position nor I have any material to justify the delay of 09 months (let alone the delays in two cases exceeding one year and six months) which is the shortest period of delay in all three cases.
    
34. Therefore, I refuse to accept the above-mentioned ground as a reasonable explanation to justify the inordinate delay in moving this court for 'Appeal out of time'.
    
35. This delay inevitably has caused prejudice to the respondents in all three cases.
    

Conclusion

36. Based on the above-mentioned grounds I decide that appellant had failed to give justifiable reasons for the inordinate delay in seeking to appeal out of time and the appellant failed to prove that the appeal falls under grounds mentioned in sec. 33 of the SCT Decree 2009.
    
37. Applications for appeal out of time in Civil cases, 36 of 2009, 45 of 2009 and 302 of 2009 are thereby dismissed.
    
38. Appellant is ordered to pay $300 (summarily assessed) to each respondent in all three cases (total $900) as cost within 30 days from today.
    
39. 28 days to appeal.
    

On this Wednesday the 15th day of December 2010

Kaweendra Nanayakkara
Resident Magistrate