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Padarath v Naidu [2013] FJMC 172; Civil Appeal 42.2012 (23 April 2013)

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

Civil Appeal No. 42 of 2012
SCT Claim # 2322/12

Between :

Pravin Padarath
Appellant/ Original Respondent

And :

Ramapa Naidu
Original Claimant / Respondent in Appeal

Before: R.M. Chaitanya. Lakshman
Resident Magistrate

For the Appellant/ Original Respondent: Mr A. Pal (AP Legal)
Respondent/ Respondent in Appeal: In Person.

Ruling

1). Introduction

The Appellant/Original Respondent in this action has appealed the decision of the Referee who ordered "that the Respondent refund the sum of Five Thousand Dollars ($5000.00) as claimed within 30 days from the date of the order". The Order was dated 22nd May 2012.

2). The Grounds of Appeal

The Appellant/ Original Respondent's grounds of appeal are as follows: "(i) failing to notify the Applicant of the hearing date on 22nd May 2012 after matter had been previously adjourned indefinitely (ii) failing to afford the Applicant an opportunity to present his defence before making the Orders on 22nd May 2012. (iii) failing to verify whether the Applicant has been served with a Notice of Adjourned Hearing for the hearing of 22nd May 2012 when the Orders of the Referee were made (iv) failing to consider the documentary evidence of the Applicant which had been on record with the Referee as Part of the Defence of the Applicant before awarding the entire sum to Respondent (v) failing to afford the Applicant an opportunity for rehearing when the Applicant expressly noted in his Application for a rehearing that the Applicant was not notified of the hearing of 22nd May 2012 when the Orders were made. (vi) by determining the Applicant was uncooperative without affording an opportunity to the Applicant to defend the allegation of uncooperativeness (vii) The Referee being emotional in his decision making and subsequent Referee's Appeal Report therefore losing an objective state of Mind to make a fair and impartial decisions – as noted on Page 66 of the record of the SCT (note 3 of the proceedings of 22 May 2012 and Page 70 of the record of the SCT (last lines of the Referees Appeal Report where the Referee uses emotive language to express his views)."

3). The Law

Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal 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.

4. Observations
   

The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the "Small Claims Tribunal" Decree. The grounds of Appeal advanced by the Appellant have been reproduced above.

The Court has carefully examined the Small Claims Tribunal records. This Courts perusal of the records shows that the Referee has not properly determined the claim. The Appellant has listed a number of grounds of appeal. After the fifth hearing on 29th March 2012 the matter was adjourned for another hearing. The Appellant was not notified of this hearing. The Referee erred in proceeding to determine the matter in the absence of the Appellant who had no notification of the 6th Hearing. This Court has not seen any NOAH that was served on the Appellant or any other form of notification for him to appear at the SCT.

This Court also notes that a number of issues arise out of the matters raised by the Appellant on appeal, which include use of emotive words in dealing with matters at the SCT. In dealing with any matter at the Tribunal Referees need to guard against use of emotive words or comments that are made when Referees are asked for a report.

This Court would also like to point out certain administrative issue which the Senior Court Officer should note as Officer responsible for providing and certifying the records. When Records are compiled he/she is to ensure that names of parties are correctly noted (see front and back cover). Pages are properly numbered (some pages have 2 numbers – for example 23 and 40 – which one is the page number) and the annexures are in order. If pages are photocopied they must be properly copied and visible (see page 34 of copy record). Page 55 is attached upside down.

5.) Conclusion

The appellant has met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

The appeal is allowed. The File is returned to the Small Claims Tribunal for the matter to be heard before another Referee.

Chaitanya Lakshman
RESIDENT MAGISTRATE

23rd April 2013