In the High Court of Fiji at Labasa
Civil Jurisdiction

Civil Appeal No.HBA 02 of 2014
Magistrates Court 107 of 2014
SCT Claims No.232 of 2014

Between:

Manilal Patel
Appellant

And:

Shri Krishna
Respondent

Appearances: Mr A.Sen for appellant
 Mr. K. Ratule for the respondent

Dates of hearing: 24th April, 2015

JUDGMENT

1.	The appellant appeals a Ruling of the Magistrates' Court declining a motion for leave to file appeal out of time, an Order of the Small Claims Tribunal.

2.	The facts of this matter are briefly as follows:

•	The respondent had filed a claim against the appellant in the Small Claims Tribunal, (Tribunal) on 10th March, 2014.

•	The appellant was served with the claim on 3rdApril, 2014, as stated in his affidavit in support for leave to appeal out of time.

•	The appellant was requested to appear before the Tribunal on 28th April, 2014.

•	On 28th April, 2014, the appellant was not present. The Tribunal ordered that the appellant pay the claim of $ 3804.00 to the respondent. The Order also provided that the appellant may file a re-hearing within 14 days.

•	On 27th June, 2014, the appellant moved the Magistrates' Court for leave to file notice of appeal out of time. 

3.	The grounds of appeal read as follows:

(i)	The Learned Magistrate erred in fact and in law in holding that the reasons and explanation given by the Appellant for the Appellant's absence was not sufficient in all the circumstances of the case.

(ii)	The Learned Magistrate erred in fact and in law in not holding that the Appellant's actions prior to the date of the first call of the matter was sufficient to allow the application for extension of time to appeal to be granted.

(iii)	That the Learned Magistrate erred in law in holding that high standards of practice ought to be practiced in the Small Claims Tribunal by ordinary layman litigants.

(iv)	The Learned Magistrate erred in law and in fact in not holding that the relevant Court staff had pertinent information which ought to have been brought to the attention of the Referee prior to or at the time of the hearing.

(v)	The Learned Magistrate erred in law and in fact in holding that the presiding adjudicator or judicial officer ought to have dispensed with the Appellant's absence.

(vi)	The Learned Magistrate erred in law and in fact in not holding that the order having been not served on the Appellant and in any case after 14 days of the Tribunal's order effectively negated the Appellant's right to a rehearing.

(vii)	The Learned Magistrate erred in law and in fact in holding that the Appellant ought to have filed an appeal if he was aggrieved when the Appellant was overseas and unaware of the Tribunal's order, the sealed order being served on the Appellant's office staff more than 14 days after Tribunal's order.

(viii)	The Learned Magistrate erred in law and in fact in not holding that the Appellant's right to natural justice, the right to attend and be heard was effectively taken away in all the circumstances of the case.

4.	The determination

A.	The first to the fifth grounds of appeal

a.	The first and second grounds of appeal contend that the Learned Magistrate failed to hold that the appellant had sufficiently explained his absence from the Tribunal on 28th April, 2014, the day he was required to be present before the Tribunal.

b.	The appellant states that he telephoned an officer of the Tribunal and informed her of his inability to be present on that day, since he was leaving for New Zealand. She requested him to send a written communication.

c.	The appellant states that he sent an email with his travel itinerary to officer of the Tribunal. This is denied by the officer.

d.	In this regard, I would refer to a statement made by the Tribunal officer, upon an internal inquiry, as reproduced in the judgment of the lower court. This provides:

I confirm that I received a call from the office of the Respondent (appellant) sometimes in April before the first call of this case in SCT. I was informed that the respondent will not be able to attend to the hearing of the case on the 28th April 2014.

I informed the caller the administrative procedure, he needs to send that to us in writing since the affidavit has been served on them after which we would then place the same on the file and produce before the referee as evidence.

When the matter was called, there was no letter received from the Respondent. There was an order against him and he was given 14 days to file re – hearing. Should he made enquiries at the office soon after the date of the order, he would have been advised of the outcome of the case, thus he could have filed for re – hearing within the 14 days given.

However, the caller later called after the JDs was served on him (sometimes in June) that he had emailed me. I checked my email back to April; no e – mail came from that office.

They were then advised by the SCO to file motion and affidavit in the Magistrate Court for extension of time for re-hearing.

e.	At the hearing before me, Mr Ratule, counsel for the appellant drew my attention to a copy of a letter dated 9 April, 2014, addressed to the Senior Court Officer of the Tribunal at "Lautoka", sent as an attachment to an email on 11th April. A copy of the email transmission is also contained in the copy record of the lower court. Mr Ratule pointed out that the email transmission contained an endorsement in manuscript by the appellant stating that he had spoken to two named Court Officers.

f.	The endorsement is made by the appellant himself. I am unconvinced that the email was sent.

g.	In my judgment, the lower court came to a correct finding that the Tribunal did not receive any letter from the appellant. 

h.	In any event, in my view, it is not a salutary practice for a party to send a letter to the Tribunal seeking an adjournment and let the matter rest. As Mr Sen, counsel for the respondent said, it was incumbent on the appellant to have ascertained, if his application was received, processed and another date granted. 

i.	The Learned Magistrate, in his Ruling, quite correctly held that:

And finally I have noted, that the Appellant does not explain as to why he did not take steps to file the notice of appeal if he was aggrieved by the said order of the Tribunal and it seems that he had the firm belief that the Tribunal referee would dispense his non availability and adjourn the matter to his convenience; without even realizing that the Tribunal did not received any letter or any information from him when the matter was called before the referee.

j.	The Learned Magistrate further held that:

The explanation by the SCT staff Ms Cakacaka had explained well that it was the very fault of the Appellant and I must express that it is not a healthy practice to cast a blame on the referee or the support staff when the Appellant himself was still present in Fiji few days before the call day, and he had sufficient time to extend his travel to NZ; but instead he opted to leave the Country; and expect to return at his convenience and to file appeal out of time; this is a mere abuse of the courts process.

I have also noted that the Appellant does not explain as to why he had to go out of the country without taking steps regarding his appearance or attendance to his case at the Tribunal. If a party had to leave the country due to an unavoidable reason such as for medical treatments, the Court could have considered it as an excusable ground to grant this application. But in this case the Appellant did not mention any urgency of going out of the country to New Zealand accept the fact that he had to be in New Zealand because he had already booked and purchased his airline tickets.(emphasis added)

k.	I agree with the findings and observations of the Learned Magistrate. In my view, the appellant's explanation is unsatisfactory. He was served with the claim on 3rd April, 2014. He had more than adequate time to extend his travel date to New Zealand. There was no evidence of urgency adduced by him to leave the country, as observed by the Learned Magistrate.

l.	Mr Ratule contended that the Learned Magistrate had not taken into account the length of the delay, in determining the application for extension of time.

m.	I do not find this contention correct. Albeit, the Learned Magistrate had not spelt out the delay, he has, in the penultimate paragraph of his judgment, given his mind to that matter, as follows:

The law has prescribed time limits for a reason and the Court has a discretion to extend those limits only for just and fair reasons.

n.	Section 33(3) of the Small Claims Tribunal Decree requires that an appeal shall be brought in the Magistrates' Court, within 14 days of the Tribunal's order.

o.	In Aaryan Enterprise v Mehak Unique Fashion, (Civil Appeal No.17 of 2011) it was held that Order XXXV11 gives the power to a Magistrate Court to extend time to appeal from a decision of the tribunal.

p.	The Tribunal made Order on 28th April, 2014.Fourteen days would take the appellant to 12 May, 2014. The appellant moved the Magistrates' Court on 27thJune, 2014, for leave.

q.	In my view, a delay of one and a half months without a satisfactory explanation, is unacceptable.

r.	In Tevita Fa v Tradewinds Marine Ltd and Another,(Civil Appeal No 40 of 1994) Thompson JA said.

The application for leave to appeal was filed only 4 days after the end of the period of six weeks. That is a very short period but time-limits are set with the intention that they should be observed and even lateness of only a four days requires a satisfactory explanation before an extension of time can properly be granted. 

s.	The objective of the Small Claims Tribunal Decree is set out its long title as follows:

A DECREE TO ESTABLISH SMALL CLAIMS TRIBUNALS IN FIJI, TO PROVIDE PROMPT AND INEXPENSIVE RELIEF TO CLAIMANTS. 

t.	In the oft quoted case of Sheet Metal Plumbing (Fiji) Ltd v Deo,(Civil Appeal No. 7 of 1999) where Fatiaki J(as he then was) declared that "the central purpose of the Tribunal is 'to provide...relief to claimants'; and By a process that is both 'prompt and inexpensive", as stated in the long title. 

u.	In the case before me, the lower court thus concluded that the "court must not tolerate such attitude as it defeats the purpose of the Enactment of the Small Claims Tribunal i.e. to give litigants quick access to justice".

v.	The quartet of factors to be considered by a court in exercising its discretion to grant an extension of time for an appeal are the length of the delay; reasons for delay; the chances of the appeal succeeding if time is extended; and the prejudice caused to the respondent.

w.	On a perusal of the record of the lower court, I find that the appellant has not set out the merits of his proposed appeal. 

x.	Calanchini J (as he then was) in Aaryan Enterprise v Mehak Unique Fashion, (supra) stated that:

The onus was on the Respondent to establish at least reasonable prospects of success in the appeal. In my judgment the Respondent did not discharge the burden and in fact failed to establish any basis for concluding that the appeal had reasonable prospects of succeeding.

y.	The FCA in Uqeuqe v Housing Authority of Fiji, ([1998] FJCA 57:ABU0042 of 1998) declared:

Even more important than the absence of a satisfactory explanation for such a lengthy delay, is the obligation on the Applicant to show there is at least a reasonable chance of succeeding on appeal if leave were granted.

z.	In that case, a lapse of five weeks was classified as "fatal".

aa.	In my view, the Learned Magistrate has exercised his discretion correctly and declined the application for extension of time. I conclude that there are no merits in the first to the fifth grounds of appeal.

B.	The sixth and seventh grounds of appeal

i.	In his sixth and seventh grounds of appeal, the appellant contends that the order was not served on him. He states that it was served on his office after the 14 day period set out in the order of the Tribunal had lapsed, when he was still overseas.

ii.	In his affidavit in support for leave, he averred that "later in May, 2014, I returned to Fiji. An order was received in my office by my staff, Anand, on 12th May, 2014. This was more than 14 days after the appeal period had lapsed". 

iii.	It would appear that the appellant returned to Fiji in May, 2014, and went back to New Zealand. His affidavit was sworn on 24 June, 2014, in New Zealand. He has not explained his delay from May, to June, 2014, to file his application for leave.

iv.	In support of the contention that he was overseas when the Order was served, the appellant had provided his travel itinerary. I note that the appellant had produced a document titled "my e-ticket" showing his departure from Nadi on 9thApril, 2014, and arrival in Auckland, the same day. But he has not provided any cogent evidence of his return date to Nadi.

v.	I do not accept the contention that he was overseas, when the Order was served.

vi.	The sixth and seventh grounds of appeal fail.

vii.	In the light of my finding that the Learned Magistrate had correctly declined the application for extension of time, the appellant's final ground of appeal that his right to natural justice and the right to attend were effectively taken away, cannot be maintained.

5.	Orders 

I make Order as follows:

(a)	The appeal of the appellant is dismissed.

(b)	The appellant shall pay the respondent costs summarily assessed in a sum of $ 1000.

12th May, 2015

A.L.B.Brito-Mutunayagam
Judge