IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL JURISDICTION

MISCELLANEOUS ACTION NO.: 89 OF 2011

BETWEEN:

DIRECTOR – NATIONAL FIRE AUTHORITY
APPLICANT

AND:

GANESHWAR NAIDU
RESPONDENT

Solicitor for the Applicant: Krishna & Co.
Solicitor for the Respondent: In Person

RULING

INTRODUCTION

The applicant on 24th day of March, 2011 filed a motion to appeal out of time against the order of the “Small Claims Tribunal” dated 08th day of November 2010 and also to set aside Judgment Debtor Summons dated 15th of December 2010.

In support of the applicant’s motion an affidavit was filed by one “Senitiki Tukai”, a Station Officer of National Fire Authority, based at Lautoka.

The main ground advanced by the applicant to support its motion is that the order of the “Small Claims Tribunal” dated 08th day of November 2010, is irregular since there was no proper service of process in the applicant.

The respondent opposed the application by the applicant. He denies the fact that the order entered by the Small Claims Tribunal Referee dated 08th day of November 2010 is irregular. He further states that there is proper service if process on the applicant.

THE LAW

The Small Claims Tribunal Decree 1991 provides:

Functions and jurisdictions of Tribunal (Section 15)

(1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.

(2) If it appears to the Tribunal to be impossible to reach a settlement under subsection (1) within a reasonable time, the Tribunal shall proceed to determine the dispute.

(3) ...

(4) The Tribunal shall determine the dispute according to the substantial merits and justice of the case, and in doing so shall have regard to the law but shall not be bound to give effect to strict legal rights or obligations or to actual forms or technicalities.

(5) Without limiting the generality of subsection (4), a Tribunal may, in respect of any agreement or document which directly or indirectly bears upon the dispute between the parties, disregard any provision therein which excludes or limits,

(a) conditions, warranties, or undertakings; or
(b) any right, duty, liability, or remedy which would arise or accrue in the circumstance of the 
dispute; if there were no dispute; if there were no such exclusion or limitation.

(6) To give effect to its determination of the dispute or in granting relief in respect of any claim, which is not disputed, the Tribunal shall make one or more of the orders which it is empowered to make under section 16 or under any other law.

CLAIMS

Lodging of claims

1.	Proceedings shall be commenced by the lodging of a claim in Form 1 of the First Schedule to this Decree, together with the fee prescribed in the Second Schedule, with the appropriate Tribunal.

2.	The appropriate Tribunal for the purpose of subsection (1) is the one nearest by the most practicable route to the place where the claimant resides.

Notice of claim and of hearing

1.	When a claim is lodged in accordance with section 18 of this Decree, the Registrar shall:

(a)	immediately fix a time and place of hearing and give notice thereof in the prescribed form to the claimant by endorsing the details on Form 1; and

(b)	as soon as reasonably practicable, give notice of the claim and of the time and place of hearing to-

(i)	the respondent ; and

(ii)	every other person who appears to the Registrar to have a sufficient connection with the proceedings on the claim in the capacity of a claimant or respondent by delivering a scaled copy of the claim with the details of the hearing endorsed on it.

2.	If a Tribunal finds that a person who appears to it to have a sufficient connection with the proceedings on a claim in the capacity of a claimant or respondent has not been given notice of the proceedings, it may direct the Registrar to give and the Registrar shall give to such person notice of the claim and of the time and place for hearing.

3.	For the purposes of this section, a person has a sufficient connection with the proceedings on a claim if his presence as a claimant or respondent is necessary to enable the Tribunal to effectually and completely determined the questions in dispute in the claim or to grant the relief which it considers may be proper.

HEARINGS

1.	At the hearing of a claim every party shall be entitled to attend and be heard.

2.	Subject to subsection (3) and (6), no party shall appear by a representative unless it appears to the Tribunal to be proper in all the circumstance to so allow and the Tribunal approves such representative.

Order of Tribunal (Section 16)

(1) A Tribunal may, as regards any claim within its jurisdiction, make one or more of the following orders and may include therein such stipulations and conditions (whether as to the time for, or mode of, compliance or otherwise) as it thinks fit:

(a) the Tribunal may order a party to the proceedings to pay money to any other party;

(b) the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;

(c) ...;

(d) ...;

(e) if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);

(f) if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);

(g) the Tribunal may make an order dismissing the claim.

(2) ...

Orders of Tribunal to be final (Section 17)

An order made by a Tribunal shall be final and binding on all parties to the proceedings in which the order is made, and subject to section 32 and except as provided in section 33, no appeal shall lie in respect thereof.

...

Appeals (Section 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.

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

At the outset it must be noted that the form of wording used in ground (a) is unusual and is plainly distinguishable from a general right of appeal such as that conferred under Section 36 of the Magistrates Courts Act (Cap.14); Section 12 of the Court of Appeal Act (Cap.12); and on the Supreme Court under Section 122 of the 1997 Constitution.
 
What is more ground (a) specifically refers to the manner in which the referee conducted the proceedings as the crucial concern of the right of appeal on that first ground. Furthermore not only must the conduct complained about be unfair to the appellant it must, in addition, prejudicially affect the result.
 
As to the manner or procedure required to be followed by the referee in conducting a proceeding under the Decree these are principally to be found in Sections 24 to 29 (inclusive) under the heading 'HEARINGS'. A cursory examination of these provisions serves to highlight the informal, non-adversarial nature of the proceedings before the Small Claims Tribunal and militates against a general appeal on the merits or for errors of law.

The non-legalistic nature of a Tribunal proceeding is further exemplified by the requirement in Section 15(4) of the Decree that: 

The Tribunal shall determine the dispute according to the substantial merits and justice of the case and in doing so ... shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.'

The section 33(2) of the "Small Claim Tribunal Decree 1991", requires appeals against the decisions of the referees to be brought in the Magistrate's Court while section 33(3) requires such an appeal to be brought within 14 days of the order against which it is desired to appeal.

In "Sheet Metal and Plumbing (Fiji) Ltd. vs Deo (HBA 7/99) "Fatiaki J" expressed the view that Order xxxvii R4 gave power to a Magistrate's Court to extend the 14 days period. 

The Courts in Fiji have amplified the principles of granting or refusing leave to appeal out
of time.

In the case of Rupeni Silimuana Momoivalu (appellant) v. Telecom Fiji Limited (respondent) the Fiji Court of Appeal at page four (4) stated as follows:

"The case law on this question was set out clearly in the judgment of Pathik J. A. in Civil Appeal No. QABU0051 of 1994S – 1st Deo Maharaj v. Burns Philip (SS)Co.Ltd. I shall
not repeat it here except to quote from the judgment of Marsack J.A. in Latchmi v. Moti & Ors. In F.L.R 138 at p. 145 when he said "in deciding where the justice demands that 
leave should be given, care must, in my view, be taken to ensure that the rights and interest of the Respondent are considered equally with those of the applicant".

Rules of the Court

The rules of the Court are to be obeyed as stated as follows by the Privy Council in Ratnam v. Cumarasamy 1964 3 All E. R 933 at the same case of Rupeni Silimuana Momoivalu at page 8 stated as follows:

"The rules of the Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation" (underlining mine for emphasis)

Similar statements as above were made by the Court in Kenneth Hart v. Air Pacific Ltd Civil App.23/83 and Tevita Fa v. Tradewinds Marine Civil App. ABU 40/94.

In the Momoivalu case at page 8 stated that: "as in all such cases, there is a need to establish satisfactory explanation for the delay before the Court will grant leave".

Discretionary Power

The grant or refusal of leave out of time is a discretionary matter for the Court and this has to be exercised judiciously. 

Lord Greene M.R in Gatti v. Shoosmith (1939) 3 All E.R916 at 919 said:

"The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised".

In Re Manchester Economic Building Society (1883) 24 Ch.D 488 at 497, Brett M.R said:

"The Court has power to give the special leave. Exercising its judicial discretion, it is bound to give the special leave if justice requires that leave should be given".

How the discretion is to be exercised has been well stated by Lord Greene MR in Gatti v Shoosmith (supra) as follows;

"The fact that the omission to appeal in due time was due to a mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising it's discretion. I say 'may be' because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised."

In the case of Nadi Town Council (appellant) v. Kusum investments Limited (respondent) Appeal No. 023 of 2007 the Fiji Court of Appeal at page four (4), paragraph (14) stated as follows:

It has often been said that the discretion of the Court to grant or refuse an extension of time for appeal is unfettered.

In the case of Latchmi and Another v. Moti and Others (1964) 10 FLR 138.the Court approved the statement of Lord Greene, M.R. in Gatty v.Shoosmith (1939) ALL E. R 916 at p 919 that:

"The discretion of the Court being, as I conceive it, a Perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised".

In the case of Nadi Town Council v. Kusum Investments Limited at page (4),
Paragraph 15, it states that: "Before leave can be granted for an extension of time the 
Court must be satisfied that the applicant has a good arguable appeal". 

Tomkins, J.A said in BDO Spicers Auckland Trustee Company Ltd v. NLTB and others (2003) FJCA 67 at paragraph 35, 

"To be a more difficult test to satisfy is the question. 

Does the applicant have a good arguable case".

In the case of Hari Narayan (applicant) v. Chandar Lok (respondent) the Fiji Court of Appeal at page six (6) stated as follows:

In Sundar v. Prasad (1997) FJCA 39; ABU 0022D, 97S, Sir Moti said at pg 4 of his decision:

"Nevertheless in the last analysis a Court cannot over look a determining factor namely that an Applicant will or is likely to suffer an irreparable serious injustice if an extension is not granted."

In this same case of Hari Narayan v. Chnadar Lok the Fiji Court of Appeal at page nine (09) quoted the case of Clarke v. Edinburgh & District Tramways Co. Ltd [1919] S.C.(H.L) 35,37 which was quoted with approval by Viscount Sankey L.C in Powell v. Streatham Manor Nursing Home (1935) A.C. 243, 250; Lord Shaw said:

"In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself, as I now do in this case, the question, am I who sit here without those advantages, sometimes broad and sometimes subtle, which are the privileges of the judge who heard and tried the case- in a position, not having those privileges, to come to a clear conclusion that the judge who heard them was plainly wrong.

Lord Shaw had already pointed out that these privileges involved more than questions
of credibility and said: "Witnesses without any conscious bias towards a conclusion may have in their demeanor, in their manner, in their hesitation, in the nuance of their expressions, in even the turns of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page."

In the exercise of discretion the factors which are normally taken into account in deciding whether to grant an extension of time are:

a)	The length of the delay;
b)	The reasons for the delay;
c)	The chanced of the appeal succeeding if time for appealing is extended; and
d)	The degree of prejudice to the respondent if the application is granted (vide CM Van Stillevoldt BV v EL Carriers Inc (1983) 1 WLR 207 at 212; Norwich and Peterborough Building Society v Steed (1991) 2 AER 880 C.A.

According to the case of "Chans Long Chang vs Yen Yain Kai (1999) FJ HC 107, 45 FLR 217, the general principles governing the grant of leave to appeal out of time are as follows:-

(1)	The length of the delay.
(2)	The reason for the delay.
(3)	The chances of an appeal succeeding if the time for appealing is extended.
(4)	The degree of prejudice would cause to the respondent if the application is granted. 

OBSERVATION 

The primary concern of this Court is whether the order of the "Small Claims Tribunal" dated 08th day of November 2010 is regular.

Therefore, this Court has to decide whether there is a proper service of the Notice of Hearing.

I now examine the "Small Claims Tribunal" record.

The respondent is the original claimant in the Small Claims Tribunal No. 1363 of 2010.

The application is the original respondent in the Small Claims Tribunal claim no. 1363 of 2010.

The Notice of Hearing for claim no. 1363 of 2010 contains two different dates namely 08th of August 2010 and 25th day of August 2010. This notice of hearing has been issued on 06th of July 2010. Hence, it is crystal clear that the initial date of the hearing of the claim no. 1363 of 2010 was 08th of August 2010.

According to the Small Claims Tribunal record of the claim no. 1363 of 2010, the claim was not called before a referee of the Tribunal on the first returnable date of 08th of August 2010. The reason is 08th day of August 2010 was on Sunday.

Subsequently, the "Small Claims Tribunal referee" has endorsed a new hearing date in the Notice of Hearing of claim no. 1363 of 2010. The new hearing date is 25th day of August 2010.

According to the "affidavit of service" the "Notice of Hearing" dated 06th of July 2010, the claim has been served on the applicant on 14th of July 2010. But the affidavit of service is "crossed off" due to the reasons best known to the respondent.

According to the second affidavit of service, the claim has been served on the applicant on 27th of July 2010. But this affidavit of service cannot be legally accommodated as proper service of process on the applicant, due to the reasons adduced below;

1)	It does not contain acknowledgment of service.
2)	It does not contain the name of the receiver.
3)	It does not contain the signature of the receiver.

According to the "Small Claims Tribunal" record, the Claim has been firstly called before the referee on 25th of August 2010. The applicant was absent and the claim has been adjourned for 08th of September 2010.

On 08th of September 2010, the applicant was absent and the referee adjourned the proceeding to 07th October 2010, for service of Notice on the applicant.

On 07th of October 2010, the applicant was absent and the hearing had been adjourned to 08th of November 2010, since the respondent was not ready for hearing.

I carefully examined the "Small Claims Tribunal" record. The notice has not been served on the applicant. There is proof of service, nevertheless the referee has fixed the hearing for 08th of November 2010.

On 08th of November 2010, the referee has commenced the hearing of the Claim in the absence of the applicant. After recording the evidence of the respondent, the referee has entered an adverse order against the applicant.

In my view, the order entered by the referee on 08th of November 2010, is irregular, since there was no proper service of the Notice of Hearing on the applicant.

The order against which the applicant desires to appear had been made on 08th of November 2010. The applicant filed his application for leave to appeal out of time on 24th of March 2011. Hence, the applicant's application is out of time for almost four (04) months. The period of delay is …… The reason for the delay is Justifiable and Plausible. The simple reason is that the applicant has not been served with a copy of the "Small Claim Tribunal Order" until he received the "judgment Debtor Summon on 03rd of March 2011. It is incumbent upon the respondent to serve the copy of the "Small Claims Tribunal" order on the applicant. According to the "Small Claims Tribunal" record there was no Service of the Order on the applicant.

The grounds of appeal adduced by the applicant are states as below;

That the proceedings were conducted by the Referee in a manner which was unfair to the Appellant and prejudicially affected the result of the proceedings on the following grounds;

•	That the Small Claims Tribunal Form has the Respondent as "Director", being a single person not plural and therefore the Referee should have applied due care and diligence which was in all circumstances of this case reasonable to ask the Claimant, the name of the Director, or at least which Director was served.

•	That the Claimant's Invoice relied on by the Referee to give a decision clearly shows that the Invoice is addressed to National Fire Authority of Fiji and therefore Contract arose from Suva and the matter should have being filed in Suva.

•	That the two Affidavits of Service filed by the Claimant should have being reasonable in all circumstances to raise adverse inferences against the Claimant by the Referee wherein the Referee should have required further evidence and/or a further notification to the Appellant. One Affidavit of Service says served claim on 14th July 2010 but the entire Affidavit of Service is "crossed off". Another Affidavit of Service says served on "27th July, 2010" on the "Respondent" – no name in the Affidavit.

The next issue to be determined here is whether the applicant has shown "Meritorious ground of appeal namely the chances of an appeal succeeding if the time for appealing is extended. The applicant must show a real prospect of success. The applicant's grounds of appeal would succeed because there is an irregularity in the service of process on the applicant.

It appears to this Court that the Small Claim Tribunal referee has made an adverse order against the applicant on 08th day of November 210, without offering an opportunity to be heard.

This amounts to a breach of "Audi Alteram Parterm" rule which is so fundamental to a conduct of fair hearing.

Due process requires that before an adverse decision is made against a person, that person should be afforded an opportunity to be heard. Due process is same as natural justice and is a vital component of judicial proceedings. The Court said in Foods Pacific Limited v. Lami Towm Council HAR004 of 2009;

"The accused was entitled to natural justice or due process of law before any order that adversely affected his rights was made. It is a fundamental principle that our justice system has been founded on."

Lord Bridge in Lloyd v McMhon (1987) AC 625 at page 702 said;

"The so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness? demand when anybody, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

In R v Commission of Racial Equality ex parte Cottrell and Rothon (1980) AER 265, Lord Lane at page 271 said;

"Indeed, all that the rules of natural justice mean is that the applicant should be treated fairly. Accordingly, before assessing the fairness of the manner in which the decision complained of was taken…., it is necessary to analyze the context in which it was made and the nature of the decision"

The next issue is where the balance of convenience lies. Taking account of the consequences for the applicant of the leave to appeal is not granted against the consequences to the respondent if the leave to appeal is granted, I am of the view that the balance of convenience favour the applicant.

CONCLUSION

The order made by the Small Claim Tribunal referee against the application is irregular since there is no proper service of the Notice of hearing on the application.

Accordingly,

1.	The applicant's application for leave to appeal out of time is allowed.

2.	The Judgment Debtor Summons dated 15th of December 2010, is set aside.

30 days to appeal.

....………………………………
Jude Nanayakkara
RESIDENT MAGISTRATE
Magistrate Court – 03
LAUTOKA

Dated 26th September 2011