Sharma v Tuinasau [2013] FJMC 411; Civil Appeal 81.2012 (27 November 2013)

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

Civil Appeal No. 81 of 2012
SCT Claim # 2587/12

Between:

Hemant Sharma
Appellant/ Original Respondent

And:

Melenia Tuinasau
Original Claimant / Respondent in Appeal

For the Appellant/ Original Claimant: Present - Vakaloloma & Associates
Respondent/ Respondent in Appeal: In Person.

Ruling

1). Introduction
The Appellant/Original Respondent in this action has appealed the decision of the Referee who ordered on 22nd October 2012 that he pay "... $4995.00 within 30 days of the date of the order."

2). Grounds of Appeal
The Appellant/Original Respondents grounds of appeal as filed in the notice of appeal is as follows: "... claimant paid $2205 for service provided why she have claim for $4995 if water was not in the system. We take all liability for repairs."

The submission by the counsel for the appellant is that the SCT exceeded its monetary jurisdiction and proceedings were unfair by allowing Tom Sinclair as a witness.

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.

The Respondent has clearly stated that she incurred expenses in excess of $5000.00 however her claim was limited to the jurisdiction of the SCT and as such the 1st stated ground that the SCT0 exceeded its jurisdiction fails. The SCT allowed the respondent's claim of $4995.00 which is within the jurisdiction of the SCT.

The appellant's argument is on the testimony of Mr.Thomas Sinclair. Mr Sinclair was a witness as he had repaired the vehicle. He was available for questioning by the Appellant when he gave his version of events in the SCT. He had fixed the Respondents vehicle. The Court also notes that both parties had agreed to him being called to assist the SCT at the hearing. No issues were raised by the appellant when Mr Sinclair was called at the SCT at that stage. This Court also notes Section 26 (2) of the Small Claims Tribunal Decree which provides that "a Tribunal may, on its own initiative, seek and receive such other evidence and make such other investigations and inquiries as it thinks fit. All evidence and information so received or ascertained shall be disclosed to every party." The Tribunal did not exceed its powers with regards to seeking Mr Sinclair as a witness. This ground of appeal by the appellant also fails.

The Court has carefully examined the Small Claims Tribunal records. This Courts perusal of the records shows that the Referee has fairly determined the claim. The Claimant and the Respondent were heard and the documents submitted considered. They were given opportunity to put forward their case, adduce evidence and call witnesses. The Grounds raised in appeal by the Appellant does not meet the threshold and the Records reveal that the Referee considered all the matters that were before him.

5.) Conclusion

The appellant has not met the threshold set out in section 33(1) (a) & (b) of the Small Claims Tribunal Decree 1991.

The appeal is dismissed.

Chaitanya Lakshman
RESIDENT MAGISTRATE

27th November 2013