Appellant and Respondent in Person
JUDGMENT
On 23 September 1996 the Respondent commenced proceedings against the Appellant in the Small Claims Tribunal at Suva for $2,000 worth
of arrears of rent.
Some days later the Appellant was served with a Notice of Hearing advising him that the claim has been set down for hearing on 23
October 1996 at 9.00 a.m.
It appears that following receipt of the Notice of Hearing the Appellant visited the Tribunal and advised the Registrar, Ms. Elenoa
Ratuva that he would not be available on 23 October. This visit was followed by a letter dated 14 October in which the Appellant
asked for the hearing to be adjourned to the following January or February. The letter does not offer any explanation of the Appellant’s
unavailability in late October, November or December 1996.
What happened next is in dispute. According to the Appellant, although Ms. Ratuva had told him that he would be “notified of the adjournment”
he was not notified “of the refusal for adjournment” (see paragraph 10 of the Appellant’s affidavit filed on 2 June 1997). Ms. Ratuva,
on the other hand, in her affidavit filed on 10 June 1997 exhibits a copy of an affidavit of service and also a notice of adjourned
hearing which together indicate that the Appellant was, on 4 November 1996 advised that the hearing would now take place on the 8th.
That the Appellant was in fact served with this notice of adjourned hearing is consistent with a second letter sent by him to the
Tribunal on 6 November which repeated that he would not be available to attend a hearing on any date during 1996 and in particular
would not be available on 8 November since “my wife and I had fixed “puja” on this date”.
On 8 November the Tribunal proceeded to hear the Respondent’s claim in the absence of the Appellant. Having heard the Respondent the
Tribunal found in his favour and awarded him $2,000 in respect of his claim. On about 9 December 1996 the Appellant was served with
a Judgment Debtor Summons (see Annexure C to his affidavit filed on 2 June 1997). On 29 January 1997 an Order was made by the Tribunal
on that summons committing the Respondent to prison in default of payment of the sum awarded.
On 2 May 1997 the Appellant applied to the Suva Magistrates’ Court first, for leave to appeal out of time against the Judgment of
the Tribunal reached on 8 November and secondly, for a stay of the suspended order for committal made upon him on 29 January. In
his supporting affidavit sworn on 2 May the Appellant made it clear that the two grounds of appeal were first, that the entry of
Judgment in his absence by the Tribunal was a breach of the rules of natural justice and secondly that the Tribunal had no jurisdiction
to enforce the Order against him. On 12 May Ms. Gwen Phillips, Resident Magistrate, refused both applications. Her reasons, amounting
in all to 10 pages, are exhibited as Annexure J to the Appellant’s affidavit filed on 2 June 1997.
On 13 May the Appellant commenced proceedings in the High Court (file No. HBA 10/97). He sought:
i) A stay of all proceedings in the Tribunal and the Magistrates Court;
ii) leave to appeal out of time against the Judgment of the Tribunal reached on 8 November 1996; and
iii) the setting aside of the Order for enforcement made by the Tribunal on 29 January 1997.
On 13 May the matter came before Fatiaki J ex parte. An interim stay was ordered until 29 May. On 29 May the matter came before me. I pointed out that no appeal had in fact been lodged
against Ms. Phillips’ Judgment of 12 May and accordingly there was no foundation for the reliefs sought. I dismissed the applications.
On 29 May the Appellant filed a Notice of Appeal against Ms. Phillips’ Judgment and also lodged further applications in identical
terms to those in HBA 10/97. On 3 June the Appellant moved his applications. I indicated to him that I would also hear the Appeal
at the same time. In addition to his affidavit filed on 2 June the Appellant also filed and relied upon a written submission dated
3 June. In these papers the Appellant made a number of assertions highly critical of the manner in which Ms. Ratuva had handled the
matter. In particular, as has been seen, the Appellant contended that he was not notified that his request for an adjournment had
been refused, that the hearing had proceeded without his knowledge in his absence and that he had not come to know of this until
12 December when he was served with the Tribunal’s Order (see paragraph 12 of the Appellant’s affidavit filed on 2 June 1997).
In view of the nature that the Appellant’s allegations against Ms. Ratuva I arranged to have a copy of the Appellant’s affidavit provided
to her and sought her comments. This was done under the provisions of RHC O 55 r 7(2). Having received Ms. Ratuva’s affidavit in
answer I gave the Appellant an opportunity to reply to it. This he did on 4 July 1997.
The two questions now before me are first, did Ms. Phillips err in the exercise of her discretion to refuse the Appellant leave to
appeal out of time and second, did she err in refusing to stay the Order of enforcement made on 29 January 1997?
Ms. Phillips very carefully considered the reasons offered by the Appellant for his failure to seek leave to appeal until almost 6
months after the first decision of the Tribunal. Having considered each argument advanced she came to the conclusion that “to all
intents and purposes Mr. Charan sat on his hands for much of the Tribunal proceedings. It was only when he could not longer avoid
the threat of imprisonment, on expiry of the Judgment Debtor Summons Order grace period that the present application was made”. With
that conclusion I entirely agree. Indeed, I would go further.
In my opinion the Appellant’s request for an adjournment of the hearing until the following year was wholly unreasonable and the refusal
of the application was entirely proper. Having been given notice of the Hearing on the 8th he should have attended. The “puja’ excuse,
if not entirely spurious certainly could not properly amount to an excuse for not attending at the Tribunal at any time on that day.
The Courts in Fiji are quite willing to accept reasonable requests for relisting to accommodate religious observances and regularly
do so. “Puja” at most would take one or two hours. Knowing that he had not been advised by the Tribunal that the hearing on the 8th
would be vacated, the Appellant who notoriously spends most of his time in the environs of the Courts at Suva should have checked
with the Tribunal to establish what would occur or had occurred on that day. A simple telephone call would have sufficed. That the
Appellant did not appeal within the stipulated 14 days period ( see Section 33 (3) of the Decree) was in my view not because the
Appellant did not and could not know the result of the hearing which had taken place in his absence but because he deliberately chose
in the words of Ms. Phillips to “sit on his hands”. Although the Appellant rightly points out that the notice of adjourned hearing
was served on him without giving him the requisite 10 days notice provided by Rule 3(2)(a)(2) of the Small Claims Tribunal Rules,
as is clear from his letter of 6 November he had declared himself unavailable for any date in 1996 and accordingly the short service
was merely a technical breach which did not itself result in the Appellant not being present on the 8th.
The appeal against the refusal of the resident Magistrate to allow the Appellant to appeal out of time fails and is dismissed. The
only remaining matter is the Order made by the Tribunal on 29 January.
Under Section 30 of the Decree Orders by the Tribunal for payment of money are deemed to be Orders of the Magistrates Court of which
the Tribunal is a division (see Section 3(3) of the Decree). Enforcement in the Magistrates Court is governed by Orders XXXIV, XXXV
and XXXVI of the Magistrates Court Rules (Cap. 14). In my view the wording of these Orders and in particular of Order 36 Rules 19
and 20 is such that only a Magistrate may preside and make the necessary orders e.g. of commitment. In my opinion a Tribunal Referee
does not have jurisdiction to make enforcement orders save in respect of work orders under the provisions of section 31 of the Decree.
It follows that the Order made by the Tribunal on 29 January is set aside and to that extent only this appeal succeeds.
M.D. Scott
Judge
10 July 1997
Hba0011j.97s
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