Coptic Orthodox Church Patriachate St. Marks Church v Waqanivonoloa Esquire [2013] FJHC 9; HBA5.2010 (21 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CASE NUMBER: HBA 5 of 2010
(Magistrates Court Case No. 56 of 2008)
(SCT No. 0578 of 2008)

BETWEEN:

THE COPTIC ORTHODOX CHURCH PATRIARCHATE ST. MARKS CHURCH
APPELLANT

AND:

WAKANIVONOLOA ESQUIRE
RESPONDENT

Appearances: Mr. M. Raza for the Appellant.
Mr. Wakanivonoloa for the Respondent.
Date / Place of Judgment: Monday, 21 January 2013 at Suva.

Coram: The Hon. Justice Anjala Wati.

JUDGMENT

CATCHWORDS:

APPEAL FROM MAGISTRATE'S COURT SITTING AS APPELLATE COURT FROM DECISION OF SCT, RIGHT OF LAWYER TO APPEAR AS AN EMPLOYEE, APPROVAL OF SCT FOR A PARTY TO APPEAR BY REPRESENTATIVE – SHOULD APPROVAL BE IN WRITING – SOLICITOR- CLIENT FEE; SHOULD IT BE IN WRITING, PROCEDURE ON HEARING BY SCT TO ESTABLISH FEES OF LAWYER DUE AND OWING.

LEGISLATION:

SMALL CLAIMS TRIBUNAL DECREE 1991 (SCTD).
SMALL CLAIMS TRIBUNAL RULES, 1994(SCTR).

The Cause/Background

1. On 26 February 2008, the respondent filed and served a claim against the appellant seeking unpaid solicitors costs for various work conducted by it. The claim was in the amount of $5000.
   
2. On 23 May 2008 the appellant failed to appear before the SCT and an order was made for it to pay a sum of $5000 within one month from the date of the order. The payments were to be made at the SCT Registry.
   
3. Against that order the appellant appealed to the Magistrate's Court on the following grounds:-
   
   • That the tribunal erred in law and in fact in making an order for payment of $5000 to the respondent when there was no evidence of any express agreement on fees to the respondent.
     
   • That the tribunal erred in law and in fact in failing to require the respondent to tender the bill of costs for the said sum itemising the works carried out by the respondent in the year 2007.
     
   • That the tribunal erred in law and in fact in awarding a sum of $5000 which contravenes the provisions of the Legal Practitioners Act.
     
4. The learned magistrate Ms. Irani Wakishita Arachchi, as she then was, heard the appeal and referred the matter back to the SCT for a proper bearing on the issues.
   
5. In reaching the conclusion the learned magistrate found that the SCT had exceeded its jurisdiction in hearing a lawyer Mr. Waqanivonoloa without first granting Mr. Waqanivonoloa approval as a representative of Waqanivonoloa Esquire to appear in the matter. The learned magistrate held that the approval was necessary under s. 24(3) of the SCTD.
   
6. The learned magistrate also found that a letter dated 5 January 2006 constituted a valid agreement as to fees between the parties and that appellants rights under s.77(2) of the Legal Practitioners Act 1997 was not violated.
   
7. Aggrieved with the decision of the learned magistrate the appellant filed an appeal in the High Court on the following grounds:-
   
   1. That the learned appellate magistrate erred in law and in fact in saying that s. 24(3) of the Small Claims Tribunal Decree 1991 contains an exception to a Plasticising Barrister & Solicitor.
      
   2. That the learned appellate magistrate erred in law and in fact in transferring the matter to Small Claims Tribunal for re-hearing despite the fact:-
      
      • (a) That the respondent, being a barrister & solicitor has no right of audience pursuant to section 24(5) of the Small Claims Tribunal;
        
      • (b) That the learned appellate magistrate erred in law and in fact in saying that no rights of the appellant had been violated by virtue of s.77(2) of the Legal Practitioners Act.
        
   3. That the learned appellate magistrate erred in law and in fact in holding that the letter dated the 5 January 2006 constitutes an agreement between the parties as to costs and solicitors legal fees.
      
   4. That the learned appellate magistrate erred in law and in fact in failing to award costs to the appellant.
      

The Submissions

8. Mr. Raza appearing for the appellant submitted that on the day of the hearing the SCT record does not state as to who appeared for the claimant. There only exists an order that the debt of $5000 be paid. Mr. Raza said that there was no hearing of the matter and the whole proceeding has a procedural error and thus a nullity. The tribunal therefore exceeded its jurisdiction.
   
9. Mr. Raza also submitted that a barrister and solicitor cannot appear in a SCT. Giving a right to appear exceeds the jurisdiction. Mr. Raza stated that the learned magistrate referred to exceptions in s. 24(3) of the SCTD. Mr. Raza stated that the exception only comes into being if the barrister & solicitor appears as a respondent and not as a claimant.
   
10. Mr. Raza stated that there was nothing to go back for a re-trial.
    
11. Mr. Wakanivonoloa submitted that he appeared in the SCT as a claimant. He stated that he did emphasize that to the SCT although nothing is recorded. Mr. Waqanivonoloa further stated that a lot of time has been consumed and that this Court must thus hear the substantive dispute.
    
12. Mr. Waqanivonoloa also submitted that the appellant did not care to defend the proceedings at SCT. There was evidence of bill of costs dated 8 August 2008 for $8,178.75 but the claim being limited to $5000 to the jurisdiction of SCT.
    
13. It was submitted that the appellant cannot satisfy the test in s. 33(1) (a) and (b) of the SCTD for an appeal to be on foot.
    

The Law and Analysis

14. Before I deal with the grounds of appeal, I must set out grounds under which the decision of the Small Claims Tribunal can be appealed. The relevant provision is s. 33 of the SCTD:
    

"33(1) Any party to the proceedings before a Tribunal may appeal against an order made by the Tribunal under section 15(6) or section 31 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".

15. The first ground of appeal requires me to examine the right of a lawyer to represent a party. The need arises because the respondent is a law firm with one partner of Mr. Waqanivonoloa who appeared before the SCT on the day of the hearing.
    
16. The SCT record does not state whether or not Mr. Waqanivonoloa appeared in SCT but Mr. Waqanivonoloa asserts that he did appear and he appeared as a claimant not as a lawyer. I accept that the Mr. Waqanivonoloa did appear in SCT otherwise there is no reason for the issue before the two appellate courts.
    
17. Let me examine s.24 in detail.
    
18. S. 24(1) allows every party to attend and be heard. This section is specifically for individual bodies sued in their individual capacities.
    
19. S. 24(2) states that the individual bodies cannot be represented unless it appears to the tribunal to be proper in all the circumstances to so allow, and the tribunal approves such representative.
    
20. S.24(3) allows the following parties to appear by a representative who is approved by the tribunal:
    
    • (a) The State, if the representative is a servant of the State;
      
    • (b) A corporation or an incorporated body of persons, if the representative is a employee or member thereof;
      
    • (c) A person jointly liable or entitled with another or others, if the representative is one of the persons jointly liable or entitled or; in the case of a partnership, is an employee those persons;
      
    • (d) A minor, or other person under a disability.
      
21. S.24(4) provides that when a representative is proposed for its approval, the tribunal shall satisfy itself that the person proposed is acting in the best interest of that party and has sufficient personal knowledge of the case and sufficient authority to bind the party.
22. S.24(5) states that the Tribunal must not approve a representative who is or has been:
    
    • (i) Admitted as a barrister or solicitor; or
      
    • (ii) Who, in the opinion of the tribunal, is or has been, regularly engaged in advocacy work before tribunals,
      

But the prohibition does not apply where the person proposed for approval under subsection (3) is a person or one of the persons jointly liable or entitled with another or others, or is an employee of a party. What this means is that a barrister & solicitor can appear in SCT if the barrister & solicitor is jointly liable or entitled to a claim or to pay for a claim or is an employee of a party.

23. In this case the respondent was Waqanivonoloa Esquire. Although Mr. Waqanivonoloa is a barrister & solicitor, he was employed by the firm and also was entitled to the benefits of the claim so he could appear as a representative.
    
24. The learned magistrate stated that there was no such approval given. I understand that the learned magistrate meant the written approval. I do not find any requirement for a written approval in s. 24(3) or s. 24(5). By allowing Mr. Waqanivonoloa to appear, it is understood that the SCT approved him to represent the firm. I do not find that this aspect is within the ambits of s. 33(1) (a) and (b) for an appeal to have been granted on this point.
    
25. The next aspect is that of the agreement between the parties for the fees. The learned magistrate stated that the letter of 5 January 2006 was the letter of agreement. Let me examine that letter which appears on the records:-
    

''Re: appointment of your firm as legal officer to advice, instruct and act on the churches behalf until further notice.

Mesake, it is with great pleasure to request your personal and professional services, and appoint yourself as legal adviser for the church in Fiji until further notice.

I request that you commence work based on our discussion today at 3.00pm".

26. The above letter is only a letter to appoint the respondent lawyers. There is no evidence of any agreement as to the fees.
    
27. The claim is the only evidence before the SCT. Nowhere in the claim does it state that $5,000 was agreed as the fees or how the sum of $5,000 is arrived at or made up of.
    
28. There was also no bill of cost before the SCT to award a claim for that amount.
    
29. It can be argued that the respondent by his absence has deemed to have admitted the claims of the applicant. However I note that there is a procedural flaw in the filing of the claim. The form requires the content to be sworn to be true. In this case the witness has not taken oath and signed the claim. The person witnessing the signature has signed. I further cannot fathom on what evidence, therefore the SCT acted to grant the orders.
    
30. I bear in mind s. 26(1) of the SCTD which states that the "evidence tendered to a Tribunal by or on behalf of a part 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".
    
31. I do not find any sworn or unsworn evidence tendered on how the claim for $5,000 is made up of.
    
32. Rule 9 of the SCTR states how the Tribunal may call for evidence. Rule 9(2) 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".
    
33. Without a proper hearing I find that the tribunal did not satisfy itself of the claimant's claim. I therefore find that the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings.
    
34. The order for payment of $5,000 should not have been made without evidence of fees due and owing being established to the satisfaction of the Tribunal.
    
35. I take judicial notice of the fact that Mr. Waqanivonoloa is now deceased and his firm is no longer operational. The claim was also not established on evidence. In the circumstances it is improper to make any orders for re-hearing.
    
36. S.71 and s.72 of the Legal Practitioners Decree is relevant where there is a written agreement for legal fees. In light of my finding s.72 does not apply.
    

Orders

37. The appeal is allowed on the ground that the SCT did not conduct a proper hearing of the issue of outstanding lawyer's fees and such the proceedings was procedurally unfair under s.33(1)(a) of the SCTD.
    
38. The order of the tribunal is wholly set aside.
    
39. I make no order as to costs.
    
40. Orders accordingly.
    

Anjala Wati
Judge
21.01.2013
___________________________

To:

1. Mr. M. Raza, solicitor for applicant.
2. Respondent.
3. File: HBA 5 of 2010.