Secretary, Public Employees Union v Kishore [2011] FJMC 52; SCT 1851.2010 (7 April 2011)

IN THE FIRST CLASS MAGISTRATE'S COURT AT SUVA
CENTRAL DIVISION - SMALL CLAIMS TRIBUNAL

SCT CASE NO: 1851 of 2010
APPEAL ACTION NO: 66 of 2010

BETWEEN:

SECRETARY, PUBLIC EMPLOYEES UNION
Appellant

AND:

NAND KISHORE
Respondent

Appellant: In Person
Respondent: In Person

JUDGMENT

1. This is an appeal against the order made by the referee of Small Claims Tribunal on 30th August 2010. The SCT order is to pay $ 1673.63 to the Respondent by 30th September 2010.
   
2. Both parties filed their submission in writing and this Judgment based on the submissions.
   
3. On 13th September 2010, in the SCT, the appellant has mentioned his intention to appeal as follows.
   

1. Tribunal erred in Law and facts in awarding claimant $1673.63 when he is not entitle to that sum.

2. Tribunal erred in Law and facts failing to consider the respondent submission on the issue on law accordingly to the Constitution Sec. 6 clause 16 of the Union. That stated if the claimant is in 13 weeks in arrears the member forfeited all union benefits but the member remains a member of the Union.

3. Tribunal erred in Law and facts in totally disregarded the submission of the Union respondent.

4. Tribunal erred in Law and Facts in totally not recognizing the Constitution of the Union whereas the legal document is the Supreme Law of the Union and the same is registered with the Registrar of Trade Unions of the Republic of the Fiji Islands under the ERP 2007.

4. In filed written submission appellant informed the Court that the referee failed to properly consider the appellant's submission and in view of the Sec. 16 of the Public Employees Union Constitution, respondent is not allowed for any benefits.
   
5. Appeal Provisions regarding the Small Claim Tribunal matters are laid down under sec. 33 of the Small Claims Tribunal Decree, 1991 and read as follows:
   

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

(b) the Tribunal exceeded its jurisdiction

6. Appellant's above-mentioned statement does not fall under any of the limbs in sec. 33 of the Small Claims Tribunal Decree 1991.
   
7. Respondent denied being in arrears as mentioned by the appellant.
   
8. Following decided case law is very relevant in deciding an appeal.
   

Vidya Wati & Suresh Charan v. Waqabaca Truck Hire and Machinery [2005] HBA 0001/2005 on 04th May 2005 Per Singh J], where it was held that, "an error of law is not a permitted ground of appeal nor is an appeal allowed on merits of the case – Sheetmetal and Plumbing (Fiji) Limited v. Uday Narayan Deo - 45 FL R 80, where Justice Fatiaki (now the Chief Justice) endorsed the principles expressed by Greig J in Hertz New Zealand Ltd. v. Disputes Tribunal - 1984 8 PRN2 at 151 as "there is no appeal on the merits even if there is clear and fundamental error of law in the conclusion of the tribunal". [Emphasis is mine].

9. When perusing Small Claims Tribunal docket it is clear that the appellant could not satisfy this Court that he did not receive a fair hearing at SCT.
   
10. Accordingly final orders are:
    
    • (a) Appeal Dismissed.
      
    • (b) Respondent is now free to enforce the order of the SCT.
      
    • (c) Appellant is ordered to pay $200 as the cost of this action (Summarily assessed) to the respondent within 28 days.
      
11. 28 days to appeal.
    

On this Thursday the 07th April 2011

Kaweendra Nanayakkara
Resident Magistrate