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Fiji Electricity Authority v Labour Officer [1994] FJHC 103; HBN0001j.1993b (23 August 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 1993

Between:

FIJI ELECTRICITY AUTHORITY
Appellant

- and -

THE LABOUR OFFICER FOR AND ON BEHALF
OF EMORI MUDREACAGI
Respondent

Mr. V.P. Ram for the Appellant
Mr. W.G. Rigamoto for the Respondent

JUDGMENT

The Fiji Electricity Authority (hereafter referred to as 'FEA') the Respondent in Court below, is appealing against the order made by the learned Magistrate, Labasa on 4 December 1992 refusing to set aside an order made by him on 20 May 1991.

In the said order of 4 December 1992 the learned Magistrate said, inter alia, as follows:-

"The order made by this Court referred to by the respondent applicant in this application was made on 20th May 1991 extending the time of three months set down in Section 16 subsection 3 of the Workmen's Compensation that for filing an application for cancellation of an agreement made under subsection 1 of the same section.

In addition to the extension of time granted as prayed for by the principal applicant a further determination too was made holding that the amount of compensation of $1272.31 for 5% disability paid to Emori Mudreacagi the injured workman under the Workmen's Compensation Act was not the correct entitlement of the injured workman and that the injured workman was entitled to $3816.93 which was 15% disability recommended by Lautoka Hospital and of which $1272.31 had already been paid to the injured workman thus entitling him to a further sum of $2544.62."

The facts, following the wording in the Appellant's submission, are as follows:-

"On 3.3.88 an employee Emori Mudreacagi (referred to as "EM") employed by FEA sustained injuries in the course of his employment. He was treated at Labasa Hospital and subsequently discharged. The doctor assessed his disability at 5% permanent and according to that assessment FEA and the Labour Officer with EM agreed on compensation at $1272.31. Payment was made by FEA under an agreement which was subsequently entered into between FEA and EM under the supervision and approval of the Ministry of Labour. Apparently the problem of the injury which was not treated professionally at the Hospital but also through Fijian Medicine ...") was admitted into hospital for dislocation of my back bone and the Fijian medicine and the massage had helped me improved the injury on my back. Twice I got admitted in hospital and now I am on sick leave and at home" became worse around mid 1989 and EM complained to the Ombudsman. A fresh assessment was made. On 23.1.90 the new medical assessment was forwarded to the Ministry of Labour. This put the permanent disability at 15%. On 19.4.90 a fresh demand in the sum of $2544.62 was forwarded to FEA which through its insurers denied liability and refused to pay. By June 1990 the Ministry knew of the refusal to accept liability. The Ministry made a decision to take the new assessment to Court in February 1991, and prepared the application on 20.3.91 .... swore the affidavit on 21.3.91 and eventually filed the application on 16.4.91. The application then came before the Court on 10.5.91 when ....

(a) the Labour Officer appeared for EM

(b) No appearance was entered for FEA

(c) the matter appears to have been heard in the first instance

(d) the application then adjourned to 20.5.91

On 20.5.91 there was again no appearance by FEA and the ruling of the Learned Magistrate was delivered wherein extension of time was granted and at the same time the order was varied. NO ORAL EVIDENCE WAS TENDERED."

The four Grounds of Appeal are as follows:-

"1 THAT the Learned Magistrate erred in law and in fact in dismissing the Orders sought by the Appellant in its Motion dated the 22nd day of July 1992.

2 THAT the Learned Magistrate erred in law in making Order that he did make on the 20th day of May 1991 without hearing any evidence on oath to determine the extent of permanent partial disability of Emori Mudreacagi or to assess the quantum.

3 THAT the procedure adopted by the Learned Magistrate on the said 20th day of May 1991 was wrong in law and the Order made was irregular.

4 THAT the Learned Magistrate erred in law and in fact in granting to the Respondent an extension of time under the Provisions of Section 16 of the Workmen's Compensation Act Cap. 94."

I shall deal with ground 3 first.

After EM had accepted the said sum of $1272.31 an originating Summons was issued on 16 April 1991 and hearing date was set for 10 May 1991. It was in this Summons that (a) an extension of time under s. 16(1) and (b) other declarations including an additional compensation of $2544.62 based on 15% disability were sought.

The F.E.A. maintains that the judgment is irregular because (a) there was no proof of service (b) the decision is ultra vires and (c) even if the Court had power to do so no decision could be made without adducing evidence, to prove the allegation of facts.

According to Court Record prepared for this Appeal, on 10 May 1991 there was no appearance on behalf of F.E.A. It is recorded that: "Summons had been served on the respondent on the 19th of April, 1991. There is no appearance for the respondent. Adjourned to 20/5/91." Then on 20.5.91 it is recorded: "the respondent is not present nor is there any representation for him. Order delivered in Open Court." This is the Order that was sought under the Summons.

Although the learned Magistrate has recorded that there was service of the Summons, there is no proof of that in the record. Neither is there an Affidavit of Service of the Summons nor is there any statement to Court by the Applicant that there was service.

The learned Magistrate did not state the source of his knowledge regarding service which left all concerned in the dark as to what gave rise to his making the said statement about service; the learned State counsel for the applicant in his submission makes the following irrelevant statements in defence of the learned Magistrate in an attempt to establish proof of service instead of stating the date when the Summons was served:

"... it is submitted that the Learned Magistrate, having served in this jurisdiction for quite some time, would have been properly .... to his duties under Order VII Rule 2 of the Magistrate's Court unless if for any reason he was "not satisfied that service has been properly effected". In the absence of any substantive evidence to the contrary, it is submitted that one must assume, given the Magistrate's in-depth knowledge and experience in this jurisdiction that he had properly satisfied himself by one form or another as to proper service, before specifically noting what he did."

It is perfectly clear from the record that there was no proof of service of the Summons and I do so hold. It was mandatory that service be affected before the learned Magistrate could lawfully proceed to consider the orders sought in the Summons. In these circumstances any orders made herein under the Summons are a nullity. The FEA should have been given the opportunity to be heard which is its legal entitlement.

In the outcome I find that the orders made were irregular and ought to be set aside. I therefore set aside the orders made on 20 May 1991 and order that the Originating Summons be heard de novo before another Magistrate in accordance with the law and order that service of the Summons be effected on the Appellant within 7 days. In view of the order that I have made I do not propose to consider the other grounds of Appeal namely 1, 2 and 4.

I award costs against the Respondent which are to be costs in the cause.

D. Pathik
Judge

At Labasa
23 August, 1994

HBN0001.93B