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Chong v Ravindra [2015] FJMC 81; Civil Case 12.2014 (23 June 2015)

IN THE FIRST CLASS MAGISTRATES COURT AT
SUVA
CIVIL JURISDICTION

Civil Case No. 12/2014

BETWEEN:

VUATE CHONG
of 4 Qaranivalu Road, Delainavesi, Fiji.
[Appellant]

AND:

RISHI RAVINDRA
of lot 12 RL Sharma Road, Nadera, Fiji,
Taxi Driver.
[Respondent]

For the Appellant: IN PERSON
For the Respondent: IN PERSON

RULING

Facts

[1] The Respondent filed an action before Small Claims Tribunal ( hereafter refer as SCT) claiming compensation for the damages He sustained as a consequence of negligent act of the driver of the appellants employer more specifically Honey Dew Farms Ltd . And SCT order the appellant to pay damages in the sum of $1813.25 after hearing. Being unsatisfied with the order of SCT the appellant lodged appeal before this court seeking remedies up on below mentioned 3 grounds. That;

a. The appellant is not satisfied with the ruling of the Tribunal or the decision of the Referee;
b. There was a full body point of the damaged vehicle in the claimed invoice and not painting on the damaged part only; and
c. The Respondent cannot provide the replaced parts indicated on the invoice.

[2] The actual fact of this matter could be brief as follows. One of the vehicle (Registration EA871) belongs to Honey Dew Farms Company Ltd was involved in the accident with the Respondent's taxi registration LT1449.The Respondent claimed full repair costs for his damaged vehicle from the driver who was liable for the accident. Then the appellant has attended the matter and had given Witten under taking on behalf of the Honey Dew Farms Company Ltd to repair the vehicle. The Appellant still admits this fact and agreed to pay for the repairs that needed to be done and this substantiated in a written statement dated 14th April 2013.On 1st August 2013; the Respondent lodged a claim with the Small Claims Tribunal against the Appellant Due to some disagreements about the garage were the repair of the vehicle to be done.

[3] On 9/12/2013 the appellant was ordered to pay $1813.25 as he has sign the agreement and under took the liability. The Appellant (Vuate Chong) was not the driver at the material time and nor was he the owner of the vehicle, he was just employed there when the accident occurred and inform the Court that he is no longer employed with Honey Dew Farms Ltd as of January 2014.

[4] Both the appellant and respondent filed their submissions and agreed to precede the hearing of the matter based on Witten submissions. The main defence of the respondent is as The Tribunal records itself shows that both parties were present at the hearing and was given equal opportunities to present their case and from the facts provided by the parties the Tribunal was able to make a decision therefore no acceptable ground of appeal to intervene the SCT decision.

[5] The main issues to be resolve by this court are;

A] Whether the SCT conducted the proceedings fairly and without prejudice to the appellant?

B] If the answer is "No" what are the available remedies to the appellant?

Law

[6] It is noted the main issue of this matter is concerned with the one of the grounds of appeal against the SCT decision. This is fairness of the proceeding at the SCT.

"Sec 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.............etc"

The main question here is "What is procedural fairness which has prejudicially affected the result of the proceedings". As per the authorities this are rules of naturel justice.

[7] The interpretation given to above provisions of SCT Decree could be found at Aaryan Enterprise v Mehak Unique Fashion [2011] FJHC 727; Civil Appeal 17.2011 (10 November 2011). Hon. Justicce W D Calanchini (as he then was) more elaborated the meaning as follows;

"In essence the ground allows for an appeal to the Magistrates on the grounds that the appellant has been denied natural justice in the form of procedural fairness which has prejudicially affected the result of the proceedings. The other allowable ground of appeal under the Decree is that the Tribunal exceeded its jurisdiction. Together they represent a limitation on the general principle that an appellant's right to appeal is as of right in respect of an error of law and/or fact. It is a right of appeal which requires the appellate court (the Magistrates Court) to review the proceedings conducted by the Referee in the Small Claims Tribunal and determine whether the applicant's complaint has any merit. There is certainly no right of appeal in respect of any error of law nor in respect of any factual error. The procedure to be adopted is clearly one of review and not one of re-hearing."

[8] Even the relevant section 33 is limited to 2 grounds of appeal the sub section 33(1) (a) has to read with wider sense unlike 33(1) (b) as it is applicable to entire proceedings of SCT. This means from the accepting of form 1 to delivering the ruling SCT has to follow the rules of naturel justice and must act fairly. In Sheet Metal and Plumbing (Fiji) Limited -v- Uday Narayan Deo Civil Appeal No. 0007 of 1999 Fatiaki J consider the purpose of the Small Claims Tribunal, that is, to provide prompt, inexpensive and lay tribunals for the settling of small claims. His Lordship referred to Section 15(4) of the Decree which provides;
"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."

[9] The SCT is granted privilege of applying more flexible attitude with regard to application of law of evidence. This is not a limitless provision as if the tribunal thinks it is necessary it has the freedom of applying law of evidence.

"Sec 26.-(1)Evidence tendered to a Tribunal by or on behalf of a party to any proceedings need not be given on oath, but the Tribunal may at any stage of the proceedings require that such evidence, or any specific part thereof, be given on oath whether orally or in writing.

(2) A Tribunal may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it thinks fit. All evidence and information so received or ascertained shall be disclosed to every party.

(3) A Tribunal may receive and take into account any relevant evidence or information, notwithstanding the provisions of the Evidence Act and whether or not the same would normally be admissible in a Court of Law".

[10] The powers of tribunal on agreement has mentioned in Section 16 of the SCT Decree.

"Sec:16 (1) A Tribunal may, as regard 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 like 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".

[11] According to section 17 of the decree Orders of Tribunal to be considered final. But this is limited to section 33.

"Sec: 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 be in respect thereof."
Determination

[12] The SCT has ruling was based on the agreement dated 14/4/2013 between the appellant and respondent. The heading of the said agreement is "Agreement between Rishsi R avindra and Honey Daw Farms- grasscuting". The appellant and respondent have signed this document. This court noticed the letters "For HDF" has written next to appellant signature. This means the appellant did not sign personally but on his professional capacity as the employee of the owner of the vehicle involve that's Honey Daw Farms.

[13] When considering the procedure followed at hearing by SCT this court cannot find any mistake of the procedure other than fail to consider most crucial evidence before it which is amount to refusing to hear the party whom produced the same. Both parties were present at the hearing. But it is noted that mere physical appearance dose not sufficient but SCT has to consider all the evidence and which is the duty of SCT. Failed to consider evidence of one party is similar to indirectly results bias to the other party. This court noted that this is a breach of rules of fairness. Especially when the SCT Decree is granted wide power over the agreements under section 16 it has to exercises that more judicially or neutrally.

[14] Further Small Claims Tribunal Decree 1991 provides the Functions and jurisdictions of Tribunal.

"Sec 15.(1) The primary function of a Tribunal is to attempt to bring the parties to a dispute to an agreed settlement.

(2) ..,

(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.

[15] Since the SCT procedure is based on "JUSTICE" The SCT has to do something more than the normal court of the country. Its role is absolutely neutral but inquisitorial. Therefore it is the duty of SCT to protect the interest of the all the parties before it irrespective of their attendance, status etc. the main concern of the SCT must be justice but nothing else. The agreement dated 14/4/2013 the issue of this matter has signed between deferent parties than the parties of this matter.This court is mindful about the fact that as per on the face of the agreement the appellant has signed it but it was more likely for on behalf of the employer of the appellant on professional capacity. If The SCT has doubt about this fact SCT has to evaluate the evidence, before it reach the conclusion. Or it is the duty of SCT to call the hidden 3rd party of the caption under section 19 which is Honey Daw Farms- grasscuting ltd for verification. But this has not happened.

[16] On the case authority of Thorp J, in N.Z.I Insurance N.Z. Ltd v Auckland District Court [1993] 3 N.Z.I. it was stated;

"The essential matter (in the words used) is its specification of the basis for appeal against a referee's determination as being the conduct of proceeding in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and repairs any intending appellant to direct the (Court) to some unfairness in the form, and not simply the result of the Tribunal's hearing.

'read on (its) own, and on the basis of (its) ordinary grammatical meaning (the action) would not have any careful interpreter in much doubt that the right of appeal (it) created was a special type of appeal, limited to cases of procedural unfairness (and does not extend to the correction of errors or law)".

[17] Listen to both parties includes evaluating and properly concerning all the evidence before the tribunal and merely allowing one party to appearing does amount to hearing of the case of the same party. In this matter even though the appellant appeared before SCT the tribunal has not given proper attention to the evidence placed by him. This is eventually creates breach of principle of hearing either parties or "Audi altera partetum" principle of naturel justice.

[18] Further as per the rule of naturel justice of "audi altera patetum" / both party to be heard the judiciary has a duty to act neutrally especially when one party is absent at the proceedings this rule/principle highly applies. Since the SCT procedures based on just and equity (unlike the adversarial method of procedure at court) the SCT has to directs its mind and inquire from the present party to explain or justify the any doubts. If the answer is unsatisfactory the claims should not entertained. The SCT cannot just accept whatever the document tendered by the party who is present at the proceedings without rally evaluate the same.

[19] In this case the SCT cannot disregard the basic principle of Law of Contracts. More specifically that is privacy of Contract. Even though the SCT is privileged with some liberty on following Law of Evidence it doesn't have power to disregard the other substantial laws of the country or evidence tendered.

[20] In Pacific Transport Company Ltd v Latchan Express Services Ltd [1997] FJHC 264:
" The situation that prevails here leads me on to consider the 'doctrine of privity of contract'. There is no privity between the parties to this action. The doctrine as stated in Halsbury's Vol 9 4th Ed. Para 329 is as follows and it is pertinent to bear it in mind in considering the issues before me.

"The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations on strangers to it that is persons who are not parties to it. The parties to a contract are those persons who reach agreement and whilst it may be clear in a simple case who those parties are, it may not be so obvious where there are several contracts, or several parties, or both, for example in the case of multilateral contracts; collateral contracts, irrevocable credits, contracts made on the basis of the memorandum and articles of a company, collective agreements; and contracts with unincorporated associations.

Despite some earlier doubts, the doctrine of privity has been accepted by the Courts and would seem to be intimately connected with the doctrine of consideration and the rule that consideration must move from the promises".

[21] It is the opinion of this court that failing to find out the actual parties is amount to breach of rules of naturel justice and which are rules related to fairness but nothing. Failing to hear appellant or he evidence is fatal breach of natural justice. Therefore based on the this court makes following orders;

(a) Appeal allowed, In view of the reasons set out in above paragraphs and as this Court satisfied that the Small Claims Tribunal proceedings were conducted in manner which does not falls under section 33(1) (a) & (b) of the Small Claims Tribunal Decree as SCT fail to give proper consideration to the evidence of Appellants which result breach of rules of naturel justice.

(b) I make no order with regard to costs.

(c) The decision of SCT is squash. Matter will reheard by SCT.

[22] 28 days to appeal.

The Orders to be entered accordingly.

On 23rd June 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate