Chan Long Chong v Yen Yain Kai [1999] FJLawRp 36; [1999] 45 FLR 217 (10 September 1999)

[1999] 45 FLR 217

HIGH COURT OF FIJI ISLANDS

CHAN LONG CHONG & YE HUI FANG

v

YEN YAIN KAI

[HIGH COURT, 1999 (Scott J) 10 September]

Appellate Jurisdiction

Small Claims Tribunals- language in which proceedings are to be conducted - powers of Resident Magistrates and Referees to grant leave to appeal out of time- Small Claims Tribunal Decree 1991 Section 33- Magistrates Courts Rules (Cap 14 - Subs) Order XXXVII r 4.

While allowing one appeal and dismissing the other the High Court reviewed the relevant statutory provisions and HELD: (i) that the proceedings of Small Claims Tribunals should be conducted in a language which the parties understand and (ii) that a Small Claims Tribunal Referee has power to extend the time for appealing to the Magistrates’ Court upon good cause being shown.

Cases cited:
;

CM Van Stillevoldt BV v. El Carriers Inc. [1983] 1 WLR 297; [1983]

 &##160;ـ< < ERll99

Sheet Meet Metal and Plumbing (Fiji) Ltd v. Deo - HBA 7/9
Appeal feal from interlocutory decision in the Magies&#8Court
A.K. Sii> for the AppesM>M>Ms. A.s. A. Nilt Nilta for the Responbr>
;
Scott J:

As be srom tounds onds of Appeal filed on 16 February 1999 the Appellants jointly wish to appo appeal neal not only against the several Judgmentsred at thethe Suve Suva Small Claims Tribunal in Claim Nos. Nos. 3026/1997 and 0855/98 but also againagainst the refusal by the Suva Magistrates’ Court to grant leave to the two Appellants to appeal out of time against the Judgment entered against them in the SCT.

This procedure is w Sep. Separate proceedings must not be conjoined for appeal purposes and appeals from the Small Claims Tribunal do not lie direct to the High Court except where the tribunal is presided over by a magistrate. There is no record of the proceedings in the Magistrates’ Court before me. The whole appeal could have been struck out for these reasons but Mr. Singh told me that the appeal raised two general matters upon which the guidance of the Court was sought while the papers in 0855/98 appeared to reveal a fundamental defect in that the Appellant was not served with the notice of adjourned hearing. Ms. Nilta did not demur.

wo questions raised by d by Mr. Singh are:

(i) ; ҈ whetherether proceeroceedings in a Small Claims Tribunal must be conducted in a language which the parties understand; and

(160;&ـ&#1het whether a Small Claims Tribunaibunal refl referee eree and/or a Resident Magistrate have power to grant leave to appeal out me.

The answer to the fiues question is straightforward. Rule 10 (1) of the Smhe Small Claims Tribunal Rules (LN 95/94) requires that:

&#822ceedings of a of a Small Claims Tribunal may be conducted in the language that the Tribunal considers is best suited to the parties ...”.

Thisision contrasts wits with Section 51 of the Magistrates Courts Act (Cap. 14) which specifies that:

&#the lge of Magiesratesrates Courts shall be English”.

Even thoughSmall Call Call Claims Tribunal is a division of the Mrates7; Court (Small Claims Tribunal Decree 1991 ̵– Section 3 (3)) special arrangementements have been made for the proceedings all Claims Tribunal to take take place informally and in a language with which the parties are familiar. The answer therefore to the first question is in the affirmative.

In paragraph his supposupporting affidavit filed on 16 February 1999 the first Appellant complains that he was not provided with a Chinese interpreter and was not able to put his side of the case. In para 29 of the same affidavit hvit he asserts that both Appellants’ rights were compromised by the failure to provide them with a Chinese interpreter. The records of the proceedings do not support the first Appellant’s claim. On the contrary, there is nothing to show that the first Appellant asked for an interpreter or was unable to conduct his case which involved calling a witness on his behalf. Since the second Appellant did not turn up at all it is difficult to see how the provision of a Chinese interpreter could have helped.

The second question involves consideration of Section 33 of the Decree, Part V of the Magistrates’ Court Act and Order XXXVI of tles thereto.
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Section 33 f the Decreeecree requires appeals against the dehe decisions of referees to be brought in agistrates’ Court while Section 33 (3) requires such such an appeal to be brought within 14 days of the order against which it is desired to appeal. There is no provision within the Decree or the Small Claims Tribunal Rules for the period of 14 days to the extended but as previously pointed out the Small Claims Tribunal is a division of the Magistrates’ Courts and therefore it is reasonable to look to the Magistrates’ Courts Act an Magistrates’ CourtCourts Rules for guidance.

In&#u>Sheet Metal and Pand Plumbing (Fiji) Ltd v. Deo&(HBA Fatiaki J expresxpressed the view that Order XXXVII r 4 gave power to a Magistrates’8217; Court to extend the 14 day period. Ie. Although the Order was mwas made at a time when Resident Magistrates still heard appeals from Second or Third Class Magistrates under the provisions of Section 40 (1) of the Act it may suitably be applied to appeals from Small Claims Tribunals which are analogous to the “Court below” presided over by Second or Third Class Magistrates (who of course now no longer exist).

The next question isherether the Small Claims Tribunal itself has the powers to extend the 14 day period. In my view it has. I reach this conclusion for two reasons. The first is the wording of Order XXXVII r 4 which empowers the “Court below” to extend time if it sees fit. The second is that applications for leave to appeal are usually first made to the lower Court (see e.g. Court of Appeal Rules – Cap 12 – Rule 26 (3)).

The generanciples govergoverning the grant of leave to appeal out of time are well known. The principal factors taken into account in deciding whether to grant an extensie (1) the length of the delay (2) the reasons for the delaydelay (3) the chances of an appeal succeeding if the time for appealing is extended and (4) the degree of prejudice to a would-be Respondent if the application is granted (see CM Van Stillevoldt. El Carr Carriers Inc. [1983] 1 WLR 297; [1983] 1 All ER 699). Although, given the mality lity of the proceedings in the Small Claims Tribunal I would not absolutely require any application for leave to be supported by an affidavit deposing to facts relied on by the applicane better practice must be t be to support such applications at least with a written statement of reasons.

In the present I am notm not satisfied that the Appellants have shown that the Resident Magistrate erred in exercising her discretion to refus applications for leave to appeal out of time. I am not satisfied that the first Appellant lant has pointed to any shortcoming in the procedures which led to the Small Claims Tribunal making an award against him. It is clear however that the second Appellant was not served with the Notice of Adjourned Hearing (which is still lying on the file) and accordingly SCT claim 0855/98 is remitted to the Small Claims Tribunal for rehearing.

(Appeal partly allowed.)