Deo v National Insurance [2000] FJLawRp 52; [2000] 1 FLR 207 (19 September 2000)

[2000] 1 FLR 207

IN THE HIGH COURT OF FIJI

MUNI DEO

v

NATIONAL INSURANCE

High Court Civil Appellate Jurisdiction
Scott, J
19 September, 2000
HBA 2/00S

Damages - no written defence or counterclaim - appeal against decision of referee awarding judgment - whether referee's jurisdiction was exceeded - whether a Tribunal has the jurisdiction to make an award in favour of a party who has not filed a Claim or a counterclaim - whether evidence itself alone can constitute a claim or counterclaim - whether the proceedings were sufficiently noted by the referee - discussion of how a counterclaim is to be placed before a Small Claim Tribunal - Small Claims Tribunal Decree (7/91) ss8, 10, 10(1), (2), 26, 26(2), (3), 33(1)(b) and 34(1), (2).

The Appellant was charged with careless driving but was later discharged by the Court after the driver of the second vehicle failed to appear. The Appellant lodged a claim in the Small Claims Tribunal seeking damages from the respondent. Although no written defence or counterclaim was filed, the referee ordered the Appellant to pay the $2,000 repair costs incurred through his careless driving to the respondent. The Appellant appealed in the Suva Magistrates' Court on the grounds that the referee exceeded her jurisdiction. The appeal was dismissed. The Appellant further appealed against the dismissal on the same grounds.

Held - (1) A respondent who wishes to file a defence and counterclaim must file a written counterclaim no later than the day fixed for hearing of the claim by adapting Form 1.

(2) A tribunal does not have jurisdiction to make awards in favour of parties who have not filed written counterclaims to the tribunal.

(3) Evidence itself does not constitute a claim or counterclaim.

(4) Where a file lacks evidence, proceedings are not sufficiently noted, to enable a referee to prepare a report of the proceedings, showing what occurred at the proceedings and the reasons for any conclusion which was reached.

(5) Where a referee did not summarise the case made by either appellant or respondent the referee did not comply with guidelines or requirements of section 34(1) of the Small Claims Tribunal Decree.

(6) Referee's decision to order the claimant to pay money was made in excess of jurisdiction.

(7) Appeal to the Magistrates' Court fell within terms of section 33(1)(b) and should have been allowed.

Judgment for the appellant.

No cases referred to in judgment

Raman Singh for the appellant
Kafoa Muaror for the respondent

19 September, 2000.

JUDGMENT

Scott, J

On 9 September 1997 there was a traffic accident at Laucala Bay Road. The Appellant was the driver of one vehicle while the other was insured by the Respondent.

The Police charged the Appellant with careless driving but on 28 June 1998 the Appellant was discharged after the driver of the other vehicle failed to appear at Court.

On 3 August 1998 the Appellant lodged a claim in the Suva Small Claims Tribunal seeking $2,000 damages from the Respondent. Although the Respondent was represented at the first mention date at the Tribunal (2 September 1998) and indicated that the claim was disputed, no written defence or Counterclaim appears in the record. A number of documents were, however, filed including a claim letter addressed by the Respondent to the Appellant, a sketch plan of the accident site, an accident claim form and a letter dated 22 September 1997 from the Traffic Officer Central attributing blame for the accident to the Appellant. The referee adjourned the matter for hearing to 20 November.

On 20 November the referee again adjourned the matter to 3 February 1999. It appears from the record the reasons for the adjournment were:

"1. More detailed evidence is required.

2. Witnesses.

3. And the actual persons involved in the accident".

On 3 February the referee reached a finding. The record is as follows:

"the Tribunal ordered:

in accordance to the Police Statement - re: "Accident involving vehicle no. CN 153" it is clear that the Respondent, National Insurance has the right to claim the amount in question as the repair costs. Therefore the balance of $2,000 is to be paid by the Claimant for the damages incurred through his careless driving. The amount of $2,000 to be paid at the Small Claims Tribunal Registry in installments of $200 per fortnight until the full amount is cleared. No default of this payment is expected or the full amount will become payable at once."

On 1 November 1999 the Appellant lodged an appeal in the Suva Magistrates' Court. The four grounds of appeal amount to the same thing. It is said that in making an award of damages to be paid by the Appellant to the Respondent the referee exceeded her jurisdiction since the Respondent had made no claim against the Appellant.

In a brief Judgment which oddly enough did not mention the matter of jurisdiction, the Suva Magistrates Court dismissed the appeal on 20 October 1999. This is an appeal from that order of dismissal.

Both Counsel agreed that the appeal gives rise to a number of general importance to the workings of the Small Claims Tribunal. These questions will be dealt with in turn.

Question 1: How is a Counterclaim to be placed before a small Claims Tribunal?

Answer: The relevant section of the Small Claims Tribunal Decree (7/91) is Section 10. This provides in Subsection (1) the Respondent (a person against whom a claim has been made) may counterclaim. Subsection (2) provides that a Counterclaim shall be treated in all respects as if it were a Claim.

Although the Decree does not lay down a precise procedure for dealing with a Counterclaim and there is no Form for the counterclaim in the Form annexed to the Decree, it is clear to me that upon receipt of a Claim a Respondent who wishes not merely to defend but also to counterclaim must file a written Counterclaim no later than the day fixed for the hearing of the Claim. Probably the most convenient way to file a Counterclaim is by very slightly adapting Form 1 so that it becomes a Counterclaim Form rather than a Claim Form.

In my view it is not sufficient for a Respondent wishing to Counterclaim to do so merely orally. A claim has to be reduced into writing and sworn be true (see Form F1). Section 10(2) leads me to the conclusion that counterclaim should also comply with these requirements.

Question 2: Does a Tribunal have jurisdiction to make an award in favour of a party who has not filed a Claim or Counterclaim?

Answer: A Tribunal only has jurisdiction to make awards in favour of Claimants or Counter Claimants (Decree 7/91 - Section 8). While a referee may find that a Claimant has failed to prove the claim and that the other party is therefore entitled to a ruling in his favour a referee must not make an award (e.g. an order for payment of money or delivery of goods) in favour of a Defendant who has not counterclaimed.

Perhaps the point can be further clarified by distinguishing between a ruling and an award. Where a Claimant is unsuccessful then a ruling will be made against the Claimant and in favour of the Respondent but this does not mean that the Respondent is awarded anything. An award may only be made in favour of a party who has actually presented a claim or counterclaim to the Tribunal.

Question 3: Can evidence itself alone constitute a claim or counterclaim?

Answer: This question arises from the special provisions of Section 26 of the Decree. Under Section 26(2) a referee may on his or her own initiative make enquiries and seek evidence. Under Section 26(3) the referee may then take into account whatever evidence is considered relevant.

In the present case, as has already been noted, a letter was placed before the referee which blamed the Appellant/Claimant for the accident. The referee apparently used this letter as evidence against the Appellant/Claimant. That was permitted by section 26. Where, however, the referee erred was in making an award on the basis of the letter. The referee had no jurisdiction to make an award in favour of the Respondent since the Respondent had not presented a Counterclaim to the Tribunal and therefore there was no claim being made by the Respondent upon which the referee could adjudicate.

Question 4: Were the proceedings sufficiently noted by the referee?

Answer: Section 34(2) of the Decree requires the referee to keep a record of the proceedings sufficient. Enable a report of the proceedings to be prepared, showing what occurred at the proceedings and the reasons for any conclusion which was reached. The record of proceedings should follow the format laid out on pages 41 & 42 of the Small Claims Tribunal Manual.

I have examined the original Tribunal file and although the evidence Forms are on the file they do not contain any evidence at all. I have to conclude that the proceedings were therefore not sufficiently noted.

Question 5: Did the referee's report comply with Section 34(1)?

Answer: In this case the Report merely stated that the referee had nothing to add to the Order made by her on 3 February in favour of the Respondent. The Report did not follow the guidelines set out on page 78 of the Small Claim Tribunal Manual and in particular it did not summarise the case made either by the Appellant or by the Respondent. In my opinion it did not comply with the requirements of Section 34(1).

The Referee ordered the Respondent to proceedings before her to pay money to the Claimant. But the Respondent did not have a claim before the Tribunal. For this reason it is my opinion that the referee had no jurisdiction to make the order that was made. The appeal to the Magistrates Court fell within the terms of Section 33(1)(b) of the Decree and should have been allowed. This appeal succeeds and I enter judgment for the Appellant.

Appeal succeeds.

Marie Chan