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Sami v Food Processor (Fiji) Ltd [2012] FJMC 292; JDS92.2011 (5 November 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

JDS No. 92 of 2011
SCT Claim # 2844/10

Between :

Narayan Sami
Appellant/ Original Respondent

And :

Food Processors (Fiji) Limited
Original Claimant/ Respondent in Appeal

Before: Mr. Chaitanya Lakshman
Resident Magistrate

For the Appellant/ Original Respondent: Mr Singh (Parshottam & Co)
Claimant/ Respondent in Appeal: Mr Ritesh Naidu (Naidu Law)

Ruling

1). Introduction

The Appellant/Original Respondent in this action filed a notice of motion seeking that the appellant be given leave to appeal the decision of the referee of the Small Claims Tribunal made on 30th August 2010 and the costs of the application be costs in the cause.

The Original Claimant/ Respondent in Appeal had filed a Judgment Debtor Summons in court on 11th March 2011 seeking the Appellant/ Original Respondent complies with the Order of the SCT dated 30th August 2010 for the payment of $2175.93.

This Court has noted that the Appellant/ Original Respondent on 24th June 2011 in person filed notice of motion and affidavit seeking to set aside and that leave is granted to appeal out of time. This motion was not heard and subsequently the Appellant/ Original Respondent also did not appear in Court and bench warrant was issued. This Court is now dealing with a similar Motion filed by the Counsel for the Appellant/ Original Respondent.

This Court in this application is to determine whether it will grant leave to the Appellant/Original Respondent to appeal the decision of the Referee of the SCT out of time.

2). The Law

Section 33(3) of the Small Claims Tribunal Decree 1991 ('the Decree') expressly provides that:

'An appeal shall be brought by the filing of a notice of appeal, ... within 14 days of the Tribunal's order.''

In Aaryan Enterprise .v Mehak Unique Fashion1] F11] FJHC 720; Civil Appeal 17.2011 (10 November 2011), Justice Calanchini (as he then was) stated that "the general principles for determining an applicatio an extension of time to appeal are well known. The principincipal factors taken into account are (1) the length of the delay, (2) the reasons for the delay, (3) the chances of an appeal succeeding if the time for appealing is extended and (4) the degree of prejudice if the application is granted.

3). Analysis

Any party that is aggrieved by the decision of the Referee in the SCT is required to file an appeal with 14 days of the decision of the Referee. The intention of the set-up of the SCT is to provide inexpensive, timely relief and speedy resolution of matters that come in before it.

The case in the SCT was called and final order was made on 30th August 2010. The Appellant/Original Respondent had 14 days thereafter to file his appeal. If this Court were to take into consideration the 1st appeal the Appellant/Original Respondent filed in person in this Court was filed on 24th June 2011 and the one by the Current Firm representing him on 4th July 2012. The first JDS was issued on 11th March 2011.

The delay is about 10 months taking into consideration when the Appellant/Original Respondent filed the motion to appeal out of time in person. If one were to take the current application by the Appellant/Original Respondent then it is close to 2 years. The delay is considerable in any way it is looked at. The law has prescribed time limits for a reason and this Court has discretion to extend those limits only for just and fair reasons. The appellant does not give good reasons for the delay in his failure to appeal the decision of the CT Referee. The Appellant/Original Respondent has not advanced any good reasons for the delay. The Appellant/Original Respondent has not clearly stated what his grounds of appeal are and neither has he filed a proposed notice of appeal.

The Appellant/Original Respondent does not point out any procedural unfairness which affected the decision in SCT, nor that the Referee exceeded his jurisdiction. This Court has further noted from the Court file that the Appellant/Original Respondent has a habit of writing letters to the Court and seeking adjournments. The Appellant/Original Respondent is someone knows the Court system well. In fact he has been a Service Processor of long standing. In addition the onus was on the Appellant/Original Respondent to establish at least reasonable prospects of success on appeal.

The time period now since the 1st time the case was called in SCT is over 2 years. This in itself is prejudicial to the Respondent. The Appellant/Original Respondent having known of the SCT matter only proceeded to seek to appeal after some time when the JDS was filed and called. Having considered all the factors in totality in relation to the principles governing appeal out of time this Court finds that the Appellant/Original Respondent should not be granted leave to appeal out of time.

4.) Conclusion

Application for Leave to appeal out of time by the Appellant/Original Respondent is refused. This Court will now examine the Respondent as to his means.

Chaitanya Lakshman
RESIDENT MAGISTRATE
5/11/2012