Gregory v Giraldeau [2015] FJHC 751; HBA09.2015 (8 October 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

Civil Appeal No.HBA 09 of 2015

BETWEEN:

CAROLYNE GREGORYof the Hangar, Maintenance & Administration Centre, Nasoso Road, Nadi
Appellant/Original Respondent

AND:

CLAIRE DIANE GIRALDEAU, of Nasoso, Nadi
Respondent/Original Claimant

Counsel : Ms. V. Lidise for the Appellant

Date of Hearing :7th October 2015
Date of Ruling :8th October 2015
Before : The Hon. Mr. Justice R. S. S. Sapuvida

Interim Order for Stay of Execution/Proceedings Pending
Appeal

[1] This is an ex-parte notice of motion filed by the appellant dated 30 September 2015 seeking:

(i) For stay of execution of the orders of the Small Claim Tribunal Nadi ( hereinafter referred to as SCT ) sealed on 24 October 2014 and 14 November 2014 in SCT Claim No. 864/14 and SCT Claim No. 896/14 and,

(ii) For stay of the proceedings at the Nadi Magistrate's Court (hereinafter referred to as NMC) in Civil Action No.121 of 2015 in which the respondent has filed a Judgment Debtor Summons (JDS) against the appellant.

[2] The application for stay of execution and the stay of proceedings is pursued by the appellant until the determination of the appeal filed before this court against the judgment of the learned Magistrate of Nadi dated 20 August 2015.

[3] Having judiciously scrutinized the substance of the appellant's application for stay, the orders of the learned Referee of SCT made on 24 October 2014, and 14 November 2014, and the judgment of the learned Magistrate of Nadi dated 20 August 2015, I allowed the appellant's initial application for interim to be supported ex-parte, for one reason is that the substance of the appellant's main appeal sparkled on the face of those orders referred and, for the other reason is that the JDS application has been listed for its regular course before the NMC on 13 October 2015, for which the appellant has been summoned to appear personally to pay $ 5000.00 to the respondent (original claimant) and in any event of default, the appellant at the risk of committal to prison.

[4] The appellant's ex-parte notice of motion is supported by her affidavit dated 29 September 2015 along with the annexed documents "CG-1" to "CG- 9".

[5] The appellant has given the notice of intention to appeal [CG- 2A] on 27 August 2015 against the impugned judgment [CG- 1] of the learned magistrate of Nadi delivered on 20 August 2015.

[6] This is in accordance with the procedure guided by Order XXXVII, Rule I, of the Magistrate's Court Act [MCA] that the appellant has filed the notice of intention to appeal within seven days from the date of the judgment.

[7] The grounds of appeal [CG-2B] have been filed by the appellant on 17 September 2015 in the NMC. This is well within the period of one month from the date of the disputed judgment of the learned Magistrate. The procedure for filing the grounds of appeal is stipulated by Order XXXVII, Rule 3(1) of the MCA.

[8] Therefore, the appellant's main application in addition to the interim, to appeal the judgment of the learned Magistrate is hereby allowed to take its regular course.

[9] Now I consider the merits of the appellant's application for stay of the proceedings at the NMC and the stay of execution of the orders of SCT respectively.

[10] The application for stay of proceedings and stay of execution is sought until the determination of the appeal the appellant has filed to this Court against the judgment of the learned Magistrate Ms Chandani Dias dated 20th August 2015.

[11] The appellant was initially the subject (respondent) of two claims filed in the SCT Nadi by the respondent (claimant).

[12] The two claims were Claim No. 864/14 and Claim No. 896/14 and in both named the appellant as "Respondent". Copies of the claims are annexed CG-4 and CG-5 along with the affidavit filed by the appellant.

[13] On 24 October 2014 the SCT delivered its Ruling in respect of those two claims and the result was that once succeeded and the other was dismissed. The order in respect of the successful claim had been sealed on 24th October 2014 which set out the nature of the orders for compliance by the respondent (appellant in this case) therein. The order of the SCT is annexed as CG-7 in the appellant's affidavit in support.

[14] On 14 November 2015 the SCT had recalled the Claim No. 864/14 and sealed a second order relating to the said successful claim. The second order is annexed to the appellant's affidavit as CG-8. It is curious to notice that the SCT has altered the previous order (CG-7) by the subsequent order sealed on 14th November 2015 (CG-8). The only difference between these two orders is the description of the "respondent".

[15] In the first order the respondent is described as "Carolyne Gregory" whilst in the second order the respondent is described as "Carolyne Gregory for Fiji Airways Limited". The appellant being unsatisfied with the orders of the SCT, appealed to the Magistrate's Court Nadi and judgment was delivered with regard to the same on 20 August 2015.

[16] The appellant had made several applications before the SCT to strike out the claims filed personally against her on the ground that those claims should be filed against the Fiji Airways.

[17] Notwithstanding these efforts of the appellant, the SCT sealed its orders against the appellant, and I find nowhere in these proceedings named the Fiji Airways as a party at the SCT or in NMC proceedings.

[18] The JDS form 24 (GC-3) issued on 02 September 2015 by the NMC itself names the appellant as the respondent to the proceedings. It further carries the SCT claim no. 864/2014 and Magistrate's court case no. 121 of 2015.

[19] None of these factors has been taken up for consideration by the learned Magistrate in her judgment.

[20] The appellant on these grounds now seeks to appeal the judgment of the Magistrate's Court.

[21] Another ground is that the appellant has not been given her right to be heard, before the judgment was delivered by the learned Magistrate. Thereby the appellant pleads that her rights as a party before the Magistrate's Court was disregarded when the learned Magistrate failed to consider whether the SCT orders were made properly and legally against the appellant. The appellant alleges that the refusal of her right to be heard before the Magistrate Court amounsts to a breach of the principles of natural justice.

[22] The appellant has submitted her grounds of appeal as follows:

" 1. The learned Magistrate erred in law in dismissing the Appellant's appeal.

2. The learned Magistrate erred in law in failing to afford the Appellant her right to be heard on her grounds of appeal before pronouncing judgment on 20th August 2015.

3. The learned Magistrate erred in law in failing to ensure that the Appellant was afforded her right to a fair hearing in the proceedings before the Magistrates Court.

4. The learned Magistrate erred in law in failing to grant the application made on behalf of the Appellant for judgment not to be pronounced on 20 August 2015 on the basis that the Appellant had not been heard.

5. The learned Magistrate erred in law in failing to grant the application made on behalf of the Appellant for judgment not to be pronounced on 20 August 2015 on the basis that the Record of the proceedings of the Small Claims Tribunal was deficient in that it did not contain the claim 896/14 and other documents including the order sealed on 24th October 2014.

6. Alternatively, the learned Magistrate erred in law when she held that the order of the Small Claims Tribunal was directed to "Fiji Airways" and not against the Appellant and further, that the Appellant was appearing before the Small Claims Tribunal as a representative of Fiji Airways when:

(a) The only named respondent to the claims filed by the Original Claimant was "Carolyn Gregory" in her personal capacity;

(b) The evidence before the Small Claims Tribunal shows that the Appellant was not appearing in a representative capacity on behalf of "Fiji Airways";

(c) "Fiji Airways" was never named as a party to any of the claims filed by the Respondent and therefore could not be properly and legally made the subject of any orders of the Small Claims tribunal.

7. Alternatively, the learned Magistrate erred in law when she failed to consider that the Small Claims Tribunal had exceeded its jurisdiction when it purported to make orders against "Fiji Airways Limited" as "the Respondent", when Fiji Airways was never a named respondent in any of the claims filed by the Original Claimant.

8. Alternatively, the learned Magistrate erred in law when it failed to find that the proceedings were conducted by the Tribunal in a manner which was unfair and prejudicially affected the result of the proceedings in that it had held "Fiji Airways Limited" liable for monies purportedly owed to the Original Claimant when "Fiji Airways Limited" was never a party to any of the Claims filed by the Original Claimant and therefore could not be legally and properly made the subject of any orders."

[23] Having carefully examined the appellant's grounds of appeal with available certified copies of previous proceedings in SCT and NMC, I am able to find the following:

(a) That the learned Magistrate has failed to afford the appellant her right to be heard when she decided on 23 July 2015 to deliver the judgment on 20th August 2015 whilst the matter had been fixed for mention on 23rd July 2015, as reflects from the cause list of NMC for 23rd July 2015, (CG-9).

(b) That the learned Magistrate misled herself when she held that the order of the SCT was directed to Fiji Airways and not against the appellant, and further she misled when she held that the appellant was appearing before the SCT as a representative of Fiji Airways. This is a blatant contrary to the certified documents relating to the SCT proceedings. The only named respondent to the claims filed against the "respondent" before the SCT was "Carolyn Gregory"(the appellant) in her personal capacity. The certified documents of the SCT confirm that the appellant was not appearing in a representative capacity on behalf of Fiji Airways.

(c) That the learned Magistrate has failed to observe that "Fiji Airways" was never named as a party to any of the claims filed by the respondent (Claimant in the SCT). Therefore, the "Fiji Airways" could not be made a party to be the subject of any orders of the SCT.

(d) That the learned Magistrate erred in facts when she stated in her judgment dated 20th August 2015 at paragraph 12, that;

"After considering those documents, I found that the order of the Small Claims Tribunal directed to the Fiji Airways and it is not against the appellant and the appellant considered as a representative of Fiji Airways, and the appellant also acted as a representative."

And further, when she stated at paragraph 13, that;

"It is not clear why this appellant filed this appeal without any orders against her. "

[24] Thus, I observe the above findings of learned Magistrate are totally in conflict with the details of the parties as the names are clearly visible on the very same documents the learned Magistrate states that she has referred to in her judgment.

(e) That the Fiji Airways had never been a party to any of the claims at issue before the SCT.

(f) That the cause list of the NMC No. 3, for 23 July 2015 (CG-9) confirms that SCT Appeal 02 of 2015 was scheduled in the cause list for mention and not for hearing.

(g) That the learned Magistrate has not afforded a hearing for the grounds of appeal originally filed by the appellant, when she failed to understand that the issue of filing of the amended grounds of appeal and the actual hearing of the appeal are two distinctly different issues.

(h) The learned Magistrate in her judgment dated 20 August 2015 has stated that she rejected the appellant's amended grounds of appeal since the appellant failed to file the amended grounds of appeal within seven (7) days from her order, and yet she has failed to revert back to the grounds of appeal originally filed by the appellant and to proceed with a hearing for the same despite the application made by the appellant's solicitors not to pronounce the judgment without a hearing.

(i) That the learned Magistrate has failed to consider that the appellant's original grounds of appeal were before her subject to a hearing, but the learned Magistrate has not given a hearing for the appeal filed by the appellant before her. On the face of it affirms that the learned Magistrate has failed to address her mind to the rules of natural justice when the appellant was refused a hearing of her appeal filed in the Magistrate's court against the orders of SCT.

[25] On the foregoing reasons I clearly see that there is a serious question to be determined in the appeal before this court and also the appellant has satisfied the fact that if a stay of execution is not granted the appellant's appeal before this court will be rendered nugatory and will suffer irreparable prejudice to the appellant.

[26] The other matter here I observe, with utmost displeasure which nevertheless has no direct relevancy to the result in this ruling, and yet affects the proper administration of the Rules and Procedures laid down by the MCA 2003, is that the Registry of the NMC has failed or neglected to make up the record of appeal and transmit the same to this court within seven (7) days from the filing of grounds of appeal. This is a clear disregard to the Order XXXVII, Rule V, (7), of the MCR 2003, as it reads;

V.-Transmission of Record

Contents of record of appeal

7. Within seven days from the filing of grounds of appeal, the court below shall, without the application of any party, make up the record of appeal, which shall consist of the writ of summons, the pleadings (if any), all documents admitted as evidence or tendered as evidence and rejected, the notes of the evidence, the judgment or order of the court below and the grounds of appeal. The record of appeal, when completed, shall be forwarded to the Chief Registrar or clerk of the appellate court as the case may be.

[27] The appellant has filed her grounds of appeal on 17th September 2015, and yet the Registry of the NMC has not taken steps to transmit the appeal record to this court.

[28] Having that in mind, I consider the basic principles relevant to the granting of stay of proceedings, in light of the sentiments made in Natural Waters of Viti Limited –v- Crystal Clear Mineral Water (Fiji) Limited ABU 0011 of 2004S and Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, when I arrived my decision to grant interim relief sought by the appellant by her ex-parte notice of motion dated 30th September 2015.

[29] Therefore I make the following interim orders in favor of the appellant:

(i) The stay of execution of the orders of SCT sealed on 24 October 2014 and 14 November 2014 in SCT Claim No. 864/14 until further orders of this Court.

(ii) The stay of the proceedings at the Nadi Magistrate's Court in Civil Action 121 of 2015 until further orders of this Court.

(iii) The appellant shall serve the copies of all documents filed in this application to the respondent within fourteen [14] days from this order.

(iv) The Registry of the NMC shall forthwith transmit the record of appeal to this Court.

(v) The Deputy Registrar of this Court to communicate these orders to the Registry of the NMC forthwith.

(vi) This matter will be taken up inter-parte on 23 October 2015.

R. S. S. Sapuvida
Judge

Dated on this 8th day of October 2015 at Lautoka

Solicitors: Young & Associates for the appellant