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Gounder v Elcom Services Ltd [2015] FJMC 92; Civil Case 17.2014 (14 August 2015)

IN THE FIRST CLASS MAGISTRATES COURT AT
SUVA
CIVIL JURISDICTION

Civil Case No. 17/2014

BETWEEN:

GEORGE GOUNDR
of 20-24 Tofua Street, Walubay, Suva.
[Appellant]

AND:

ELCOM SERVICES LIMITED
of 83 Moala Street, Samabula,Suva.
[Respondent]

For the Appellant: not present at the hearing
For the Respondent: Reddy and Nandan Lawyers

RULING

Facts

[1] On the 8/1/2014 the Defendant of this matter filed an action before Small Claims Tribunal (hereafter refer as SCT) claiming $ 4,956.00 extra expenses he had to pay as a consequence of intentional act of the appellant of this action. More specifically the appellant George Gounder has failed to supply sea transportation to Elcom Services Ltd as agreed. The SCT ordered the appellant to pay compensation in the sum of $4956.00 after full hearing.

[2] Being unsatisfied with the order of SCT the appellant lodged appeal before this court seeking remedies up on below mentioned ground. That;

(a) SCT did not given the opportunity to explain the fact that he was not the person but a company who contracted with the respondent to provide sea transportation

(b) The proceedings were conducted by the Referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.

(c) Further the appellant has stated that it will be prejudiced if this matter is not heard as the ticket issued by Gounder Shipping Services which is entirely different entity than the appellant and he is only a shareholder and Director of Gounder Shipping Services.

(d) The vehicle is owned by Gounder Shipping Services.

(e) As per the issued ticket to defendant Gounder Shipping Services is not liable for the loss caused by the delay.

(f) Since the delay caused by bad weather Gounder Shipping Services had made a Notice at the ticketing place that berthing at Koro Jetty depend on weather conditions therefore Gounder Shipping Services will not liable for remits.

[3] And due to the above the appellant has been denied procedural fairness which was prejudicially affected the result of the proceedings.

[4] The actual issue of this matter could be brief as follows.

[A] Whether the appellant was given opportunity to present his case or not?

[B] If the answer is "yes" what are the remedies available to Appellant?

[5] The defendant of this matter only appeared before this court on 3 occasions and after that failed to appear at all. The appellant present every day and matter fixed for hearing on 18/5/2015.

[6] On the fixed hearing date only appellant represented by counsel and filed written submissions instead of hearing and stated that they will rely on their written submission.

Law

[7] 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"

[8] It is vital to clarify the issue of "What is procedural fairness at the SCT proceedings". There are 2 different meanings. One is "what is just and fair" according to concisions and the other one is as per the authorities rules of naturel justice.

[9] The legal interpretation given to grounds of appeal under 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."

[10] In 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)".

[11] 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".

[12] Rule 9(2) of the SCTR states that "even if a respondent fails to appear at a hearing, the tribunal must not make an order (other than relating to an adjournment), unless it satisfies itself of the claimant's case by calling for evidence".

[13] It is noted that according to section 17 of the decree Orders of Tribunal to be considered final. But this is limited to section 33. This means any of the SCT order will be treated as final or conclusive only at the matters where SCT has followed rules of naturel justice. Unless it is open to question by Magistrate court.

"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

[14] As per the case record the SCT ruling was based on the findings of the referee. The referee did mention and explained how he came to his conclusion. When considering the procedure followed at hearing by SCT this court cannot find any mistake of the procedure. Further it has considered most crucial evidence before it. In this matter both party appeared before SCT hearing and the SCT has given proper attention to the evidence placed before it.

[15] It is noted that mere physical appearance dose not sufficient but SCT has to consider all the evidence in a judicial manner. The SCT must ascertain the weight and realistic value of the evidence or document tendered to it. If SCT failed to consider or evaluate the evidence of one party; it is similar to indirectly results breach of rule against bias.

[16] Further listening to both parties includes evaluating and properly concerning all the evidence before the tribunal and merely allowing person to appear does amount to hearing of the case of the same party. The principle of "Audi altera partetum" could be found at section 26(2) of the decree.

"Sec 26 (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."

[17] 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.

[18] The appellant present at the SCT proceeding and presented his case. This court cannot see that the appellant attempted to raise the legal point that he and the defendant of SCT Gounder Shipping Services are 2 different entities. As per SCT record 28/1/2014 the appellant after participating to proceedings has said " parties asked to go for direct discussions . Respondent (the appellant of this matter) says OUR COMPANY (Gounder Shipping Services) IS NOT LIABLE TO PAY THE CLAIMENT AS CLAIMED".This sentence evident that at the SCT preceding the appellant was under the impression of either he represents the Gounder Shipping Services or he defending himself as the Gounder Shipping Services.

[19] This court noted if the appellant knew that he is not the correct person to answer for the case as a reasonable person he must inform it to SCT and claimant. But this court cannot see that in the SCT record. Even If the summons served to him by mistake this court does not think the appellant has any obligation to defend the Gounder Shipping Services.

[20]And the appellant had sufficient opportunity to object to the proceedings. But he did not. Further he did not dispute the documents tendered by claimant. But instead he relayed on the same document and tried to present the defence. This fact is sufficient to conclude appellant and defendant Gounder Shipping Services are same entity. Therefore it is the opinion of this court that the appellant has estapoled by his action.

[21] As mentioned in section 15(1) (4) of SCT Decree SCT is not bound by strict legal rights or forms or technicalities. Therefore considering the appellant as the defendant instead of Gounder Shipping Services makes no effect on its finding as it is more technical legal issue.

[22] Further the appellant in his affidavit mentioned that he is a director of defendant Gounder Shipping Services. Therefore the defendant is the most suitable person to answer to any claim (which actually appellant did) as he is part of defendant Gounder Shipping Services.

[23] It is evident as per the Tribunal records 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. For the reasons given this court rule the issue [A] as negative.

[24] This court would like to add that as this is an appeal from SCT. The Claimant is not present and represented by counsel. But this would not limit the responsibility of this court to ascertain the averments of appeal on the face of the record. Still the appellant has to prove his case. It is the opinion of this court the appellant has failed to prove that there is breach of rules of naturel justice or procedural unfairness occurred at the SCT proceeding. Therefore based on the this court makes following orders;

(a) Appeal dismissed, 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) of the Small Claims Tribunal Decree as SCT had given sufficient opportunity to appellant to present his case and which the appellant used.

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

(c) The decision of SCT is uphold.

[25] 28 days to appeal.

Orders are entered accordingly.
On 14th August 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate