Fiji National University v M B Pala Investment [2011] FJMC 177; Civil Appeal 38.2010 (15 November 2011)

IN THE MAGISTRATE'S COURT AT ALUTOKA

Civil Appeal No 38/10

BETWEEN

FIJI NATIONAL UNIVERSITY ( Fiji School of Medicine )
Applicant

AND

M B PALA INVESTMENT
Respondent

RULING

1. The Appellant, Fiji School of Medicine filed a notice of motion on the 22nd July 2010 seeking "for an extension of time beyond 14 days specified in Section 32(3) of the Small Claims Tribunal Decree 1991 to such period as the Court may allow for re hearing of the Claimant's claim by the Tribunal and in the interim that all the orders made by the Tribunal may be stayed until the final determination of the Claimant's claim."
   
2. On the 25th August 2010 the Appellant's Counsel sought time to support the notice of motion.
   
3. In the mean time the Respondent filed an "affidavit in reply to the application out of time appeal" on the 02nd September 2010 seeking for orders to dismiss the Appellant's application.
4. Again on the 8th September the Counsel for the Appellant sought time to file a supplementary motion and an affidavit.
   
5. On the 20th September 2010 an amended notice of Motion and a supplementary affidavit is filed by the Fiji School of Medicine changing the caption to read it as "Applicant and Respondent" instead of "Appellant and Respondent". Further the following orders were sought;
   
   1. The time to apply for re hearing of the claimant's claim as required under section 32(3) of the Small Claims Tribunal be extended beyond 14 days.
      
   2. An order that the claim be re heard by the Small Claims Tribunal within 30 days or such time as this honourable Court may decide.
      
6. It appears that the amended Notice of Motion has been served on the Respondent on the 25th September 2010.
   
7. On the 13th October 2010 the Respondent did not appear and the Court gave a final date for the Respondent to file any objections regarding the amended notice of motion.
   
8. On the 03rd November 2010 although an agent of the Respondent was present no objection was filed by the respondent regarding the amended notice of motion. Accordingly the Court ordered that "the appeal out of time application is granted. Parties are informed to file written submissions."
   
9. It appears that the order made by the Court on the 03rd November 2010 is made per incuriam. In fact it was misconceived by the Court as well as by the parties that it was an application for leave to appeal out of time. Initially the Fiji School of Medicine named them as Appellant in the first Notice of Motion and this case is listed as a Civil Appeal.
   
10. However both parties subsequently filed written submissions as ordered by the Court.
    
11. I have considered the written submissions filed by both parties. Further I perused the record of the Small Claim Tribunal claim number 812/09.
    
12. It appears that the Tribunal had heard the matter ex parte and the Fiji School of Medicine had not appeared on three consecutive dates. It does not appear that the Fiji School of Medicine has acted in a diligent manner. However I have observed that the final Order made by the Tribunal has not been served on the Fiji School of Medicine at any time and the Claimant has directly proceeded to enforce the said order.
    
13. Section 32 of the SCT Decree sets out that a party can make an application for re hearing within 14 days after the Tribunal order. However it appears that the Fiji School of Medicine has not been served with a copy of the Tribunal Order before the enforcement procedures. Further the Co Coordinator of the university states in his affidavit that on the 19th July 2011 when he took the documents to the Tribunal registry a clerk had refused to accept them and had advised him to file them in the Magistrate's Court registry.
    
14. Be that as it may it should be noted that the Fiji School of Medicine has not acted in a responsible and diligent manner at the Tribunal. I am not satisfied about the vague explanations for non appearance given by the Fiji School of Medicine. Yet I am of the view that by non service of the Tribunal Order an injustice is occurred to the Applicant.
    
15. Thus I decide to order a re hearing of the claim at the Small Claim Tribunal subject to the payment of 1000 dollars by the Applicant ( Now the Fiji National University ) as cost to the Respondent, M B Pala Investment. Further I order that the cost should be paid within 28 days from this order and upon payment of the cost the Tribunal shall conclude the re hearing within two months without any further delay.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

15.11.2011