Prasad v Khan [2024] FJMC 8; Civil Appeal 01 of 2024 (18 April 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CIVIL DIVISION

Civil Appeal No. 01/24

Between:
Vijendra Prasad
APPELLANT

And:
Reshmi Khan
RESPONDENT

For the Appellant: In Person
For the Respondent: In Person

RULING ON APPEAL

1. This is an appeal of an order of the Referee on the 6^th December 2023 in which the Referee ordered that the Appellant pay the Respondent the sum of $2,000.00 being for base stand in Sigatoka Town.
2. The Appellant filed the Notice of Appeal on 7^th December 2023 on the following ground that the Referee was biased in her decision making.

3. The records were compiled and the appeal came up for hearing on 8^th March 2024.

4. The parties submitted their positions on the said date.

The submissions for the Appellant

5. The Appellant submits that the Referee was biased because she did not give him time to speak; she did not consider his letter to the Sigatoka Town Council dated 17^th October 2023; and she insisted that his daughter pay the $2,000 and he did not agree to this.
   

The submissions for the Respondent

6. The Respondent submits that the Referee heard the Appellant’s arguments; the Referee also considered the Appellant’s letter to the Sigatoka Town Council dated 17^th October 2023 and finally the Appellant did agree to pay the $2,000.

Analysis

7. Appeals in the Tribunal are provided for at section 33 of the Small Claims Decree.

The section provides as follows: -

“Appeals

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 the proceedings; or

(b)the Tribunal exceeded its jurisdiction.”

8. The leading authority on appeals from the Small Claims Tribunal is the case of Sheet Metal Plumbing –v- Deo [199] FJHC 25 where His Lordship Mr. Justice Fatiaki extensively discussed the right of appeal in the Small Claims Tribunal.

9. As Justice Fatiaki stated in the above case:-

“I am fortified in my narrow view of the appellant’s right of appeal, by the observations of Thorp J. in N.Z.I. Insurance N.Z. Ltd. V. Auckland District Court [1993] 3 N.Z.L.R. 453 when he said of a similar right granted in the Disputes Tribunals Act 1988 (New Zealand), in identical terms to our ground (a) above, at p.458:

‘The essential matter (in the words used) ... is its specification of the basis for appeal against a referee’s determination as being the conduct of proceedings in a manner that was unfair to the appellant and prejudicially affected the result of the proceedings. This formulation is both specific and unusual. On its ordinary grammatical construction it provides only a limited right of appeal, and requires any intending appellant to direct the (Court) to some unfairness in the form, and not simply the result, of the tribunal’s hearing.’

And a little later in his judgment his honour said:

‘read on (its) own, and on the basis of (its) ordinary grammatical meaning, (the section) would not leave any careful interpreter in much doubt that the right of appeal (it) created was a special type of appeal, limited to cases of procedural unfairness (and does not extend to the correction of errors of law).’

Even more trenchant is the view expressed by Greig J. in Hertz New Zealand Ltd. V. Disputes Tribunal (1994) 8 PRNZ where his honour said in rejecting the appeal in that case, at p.151:

‘... there is no appeal on the merits even if there is a clear and fundamental error of law in the conclusion of the Tribunal.’”

10. The Court has considered the written submissions of both parties.

11. The cited authority is clear in that the Magistrate’s Court sitting on appeal, will not substitute its decision for the Referee’s decision, instead the Court will only look at the way in which the Referee conducted the proceedings and whether the Referee acted fairly or not. The Court also needs to look at whether the Referee acted within her jurisdiction. However, after assessing the grounds and submissions on appeal of the Appellant, the second limb is not in issue. Therefore, the following will only look at the first limb.

Whether Referee Conducted the Proceedings Fairly

12. The Appellant states that the Referee was biased for the three reasons stated above. The Court has had to look to the copy record to see whether the reasons have any merit.
13. The copy records show that the Referee allowed the Respondent time to speak and when she did, the Respondent is quoted on record that he agreed to pay the $2,000. While the copy records show the letter to the Sigatoka Town Council dated 17^th October 2023, it does not state whether the letter was considered. But the question, remains is whether the letter was presented to the Referee during the hearing as it is not on record that the said letter was indeed presented. But the more pressing question is – what if the letter was presented? I have had a read of the letter and it contains confirmation of the Appellant gifting the stand to Shahrukh Khan. There is no evidence that it (the said letter) was received by the said Council. There is also no evidence that the said stand is owned by the Appellant. And even if the said stand was owned by the Appellant, the Appellant states clearly in the said letter that he was gifting the stand to Shahrukh Khan. Not selling it, but gifting it. These acts of selling and gifting are in their respective essence distinct and so I will leave it at that.
    
14. The copy records also shows that the Appellant agreed to pay the $2,000 to the respondent. The Appellant states that his children will assist. The records further show the Appellant actively participating in the proceedings as he suggested $40 as installments but because of the respondent’s disagreement, it was agreed to that he will pay $80 a month.

Decision

15. For the above reasons, the Court finds that the appeal must fail as the Referee was not biased and was not unfair to the Appellant. The Tribunal also acted within her jurisdiction.

16. The appeal is hereby dismissed.

17. Costs summarily assessed at $100 to be paid to the Respondent in 30 days from today.

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J Daurewa
Resident Magistrate
18^th April 2024