Heffernan v Fong [2012] FJMC 287; Civil Appeal 11.2010 (30 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
FIJI ISLANDS
CIVIL JURISDICTION

Civil Appeal No. 11 of 2010
SCT Claim # 2010/09

Between :

Felicity Heffernan
Appellant/ Original Respondent

And :

Jack Fong
Claimant/ Respondent in Appeal

Before: R.M. Chaitanya. Lakshman
Resident Magistrate

For the Appellant/ Original Respondent: Mr Gavin O'Driscoll
Claimant/ Respondent in Appeal: Mr Filimoni Vosarogo

Ruling

1). Introduction

The Appellant/Original Respondent in this action has appealed the decision of the Referee ordering the Appellant/Original Respondent to pay the Claimant a sum of $4999.86 in outstanding rent, water bill and other miscellaneous items. The Appellant/Original Respondent's appeal was initially struck out by the Magistrate on 12th March 2010. This was re-instated on appeal by the High Court.

2). The Grounds of Appeal

The Appellant/Original Respondent's grounds of appeal are that "the proceedings were conducted by the learned referee in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings".

3). The Law

Section 33 of the Small Claims Tribunal Decree 1991 provides that:

"(1) Any party to proceedings before a Tribunal 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 the proceedings; or

(b) the Tribunal exceeded its jurisdiction."

The scope of appeals from SCT is extremely limited. The appeal only lies where it can be said that either the proceedings were conducted in a manner which was unfair to the appellant and prejudicially affected the result of the proceedings or the Tribunal exceeded its jurisdiction. There can be no appeal on merits: Sheet Metal and Plumbing (Fiji) Limited v. Deo – HBA 7 of 1999.

4). Observations

The primary concern of this Court is whether the appellant has met the threshold set out in section 33(1) (a) and (b) of the Small Claims Tribunal Decree.

The grounds of Appeal advanced by the Appellant have been reproduced above.

This Court has scrutinized the Report of the Referee. The Referee states in the report that he "dismissed the case on 18th December 2009 due to the appellants walk[ing] out from the hearing." This Court having perused the records notes that the case was not dismissed in fact the claimant succeeded with his claim and orders were granted in his favour. Furthermore the Referee upon the Respondent "walking out" awarded the sums as submitted by the Claimant. From the SCT Referee's Report this Court finds that the Referee did not read and consider the submissions made by the appellant which she had submitted as her defence. In the event the Referee wanted to continue after the appellant walked out and determine the matter he should have considered all the matter before him and then given a ruling.

The Court records shows evidence of Procedural Unfairness and Breach of Audi alteram partem rule which is so fundamental to a conduct of a fair hearing. The appellant was denied a fair hearing and before a decision was made by the Referee all matters before him were not considered. No matter how dismayed the Referee might have been at the actions of the appellant the Referee should have carefully considered all issues and materials before him before making a decision. The Tribunal records show that Referee erred in allowing the claim after the appellant walked out without fully considering her defence and all other materials before him.

6.) Conclusion

The appellant has met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

The appeal is allowed.

Matter is remitted to the Small Claims Tribunal to be heard before another Referee.

30 days to appeal.

Chaitanya Lakshman
RESIDENT MAGISTRATE
30/10/2012