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[F.A.Q.]
Fiji Sessional Legislation |
GOVERNMENT OF THE SOVEREIGN DEMOCRATIC REPUBLIC OF FIJI
DECREE NO. 7
SMALL CLAIMS TRIBUNAL DECREE, 1991
ARRANGEMENT OF SECTIONS
1. Short title, commencement
2. Interpretation
PART I - ESTABLISHMENT OF TRIBUNALS
3. Establishment of Tribunals
4. Exercise of Tribunals
Jurisdiction
5. Times and places of sittings
6. Appointment of
Referees
7. Salary and allowances
PART II - JURISDICTION AND FUNCTIONS OF TRIBUNALS
8. Jurisdiction of Tribunals
9. Further limitations of
jurisdiction
10. Counter claims
11. Abandonment to bring within
jurisdiction
12. Cause of action not to be divided
13. Contracting out
prohibited
14. Exclusion of other jurisdictions
15: Functions of
Tribunal
16. Orders of Tribunal
17. Orders of Tribunal to be final
PART III - PROCEEDINGS OF TRIBUNALS
CLAIMS
18. Lodging of claims
19. Notice of claim and of
hearing
20. Parties
21. Minors and person under disability
22. Transfer
of proceedings of Magistrate's Court, etc.
23. Transfer of proceedings from
Magistrates' Court, etc.
24. Right of audience
25. Proceedings may be held
in private
26. Evidence
27. Tribunal may act on evidence available
28.
No costs allowable
29. Procedure where no provision made
ENFORCEMENT OF ORDERS
30. Enforcement of orders except work orders
31.
Enforcement of work orders
PART IV - REHEARING AND APPEALS
32. Rehearing
33. Appeals
34. Referee to furnish
report
35. Powers of court on appeal
PART V - MISCELLANEOUS PROVISIONS
36. Want of form
37. Registrar to provide
assistance
38. Contempt of Tribunal
39. Protection of Referees,
etc.
40. Publication of orders
41. Rules
42. State Proceedings Act not
restricted
43. State bound
44. Transitional
First Schedule - Forms
Form 1 Claim
Form 2 Application to enforce alternative
to work order
Form 3 Objection to enforcement of Order
Form 4 Application
to enforce work Order
Form 5 Application for rehearing
Form 6 Notice of
Appeal
Second Schedule - Fees
-------------------------
A DECREE TO ESTABLISH SMALL CLAIMS TRIBUNALS IN FIJI TO PROVIDE PROMPT AND INEXPENSIVE RELIEF TO CLAIMANTS
IN exercise of the powers vested in me as President of the
Sovereign Democratic Republic of Fiji and Commander-in-Chief of the Armed
Forces
and acting in accordance with the advice of the Prime Minister and the Cabinet I
hereby make the following Decree -
Short title and commencement
1.-(1) This
Decree may be cited as the Small Claims Tribunal Decree, 1991.
(2) This
Decree shall come into force on the day so specified by the Attorney-General and
Minister for Justice by Notice in the Fiji
Republic Gazette.
Interpretation
2. In this
Decree, unless the context otherwise requires -
"claim" means a small claim lodged with or transferred to a Tribunal pursuant to this Decree;
"claimant" means a person who lodges a claim with a Tribunal and includes-
(a) a claimant in any proceedings transferred to a Tribunal pursuant to section 23;
(b) in respect of a counter claim, the counter claimant; and
(c) any person who becomes a party to proceedings on any claim in the capacity of a claimant;
"Minister" means the Attorney-General and Minister for Justice;
"motor vehicle" has the same meaning as in the Traffic Act;
"Referee" means a person appointed as such under section 6 and includes a Resident Magistrate when he is exercising the jurisdiction of a Tribunal;
"Registrar" means the Registrar of the Magistrates' Court of which the Tribunal is a division pursuant to section 3(4) and includes any Deputy Registrar of that Court;
"respondent" means any person against whom a claim is made and any person who becomes a party to the proceedings on that claim in the capacity of a respondent;
"small claim" means a claim in respect of which a Tribunal has jurisdiction under section;
"Tribunal" means a Small Claims Tribunal established under section 3;
"work order" means an order to make good a defect in goods or chattels, or a deficiency in the performance of services by doing such work or attending to such matters (including the replacement of goods or chattels) as may be specified in the order.
PART I- ESTABLISHMENT OF TRIBUNALS
Establishment of Tribunals
3.-(1) The
Minister after consultation with the Chief Justice, may from time to time, by
notice in the Fiji Republic Gazette,
establish in accordance with this section such number of Tribunals as he thinks
fit to exercise the jurisdiction in respect of small
claims created by this
Decree.
(2) A Tribunal established under subsection (1) shall be known as
a Small Claims Tribunal.
(3) Each Small Claims Tribunal shall be a
division of a Magistrates' Court.
(4) A notice under subsection (1)
establishing a Small Claims Tribunal shall specify the Magistrates' Court of
which the Tribunal
is to be a division.
(5) The Minister may at any time,
by notice in the Fiji Republic Gazette
-
(a) disestablish a Small Claims Tribunal; and
(b) direct how the records of that Tribunal shall be dealt with.
Exercise of Tribunal's Jurisdiction
4.-(1) The
jurisdiction of a Tribunal shall be exercised by a Referee appointed under
section 6 of this Decree, or by a Resident Magistrate.
(2) If the Referee
or Resident Magistrate hearing any proceedings in respect of a claim dies,
becomes incapacitated, or is for any
other reason unable or unavailable to
complete the hearing or dispose of the proceedings, they shall be heard afresh
by another Referee
or Resident Magistrate, unless the parties agree that the
proceedings be otherwise disposed of.
Times and places of sittings
5. The days,
times, and places of the regular sittings of a Tribunal shall be determined by
the Chief Magistrate.
Appointment of Referee
6.-(1) The Chief
Justice, after consultation with the Minister, may, from time to time, by
warrant under his hand appoint qualified
persons to be Referees for the purposes
of this Decree.
(2) A person is qualified to be so appointed if he is
capable by reason of his special knowledge or experience of performing the
functions
of a Referee. A Referee need not have legal qualifications.
(3)
Subject to subsection (4), every person appointed as a Referee shall hold office
for a term of 3 years and may, from time to time,
be re-appointed for a like
term.
(4) A Referee may at anytime be removed from office by the Chief
Justice after consultation with the Minister for disability, bankruptcy,
neglect
of duty, misconduct, proved to their satisfaction or may at any time resign his
office by writing addressed to the Chief
Justice.
(5) A Referee may, with
the consent of the Chief Justice, hold any other office or engage in any other
employment of calling.
Salary and allowances
7. There shall be
paid to every Referee (other than a Resident Magistrate), such remuneration by
way of fees, salary, and allowances
(including travelling allowances and
expenses) as is determined by the Public Service Commission.
PART II - JURISDICTION AND FUNCTIONS OF TRIBUNALS
Jurisdiction of Tribunals
8.-(1) Subject to
this section and to section 9, a Tribunal shall have jurisdiction in respect of
any claim which does not exceed $2,000
in value.
(2) To determine whether
a claim exceeds $2,000 in value, the following shall be taken into
account:
(a) where a claim is made for the recovery of chattels, the value of those chattels; and
(b) where a claim is made for a work order, the value of the work sought to be included therein.
(3) A claim for an unliquidated sum
is deemed to be for a maximum value of $2,000.
(4) If it is necessary for
the purpose of this Decree to ascertain the value of any chattels or work or to
resolve any dispute as
to such value, that value shall be determined by the
Tribunal in such manner as it thinks fit.
(5) A Tribunal shall also have
such other jurisdiction as is conferred upon it by any other law.
Further limitations of jurisdiction
9. A Tribunal
shall have no jurisdiction in respect of any claim:
(a) for the recovery of land or any estate or interest therein;
(b) in which the title to any land or any estate or interest therein, is in question;
(c) which could not be brought in a Magistrates' Court; and
(d) which is required by any law to be brought only before any other specified court.
Counter claims
10.-(1) A
respondent may counterclaim against the claimant if the counterclaim is within
the jurisdiction of the Tribunal.
(2) A counter claim shall be treated in
all respects as if it were a claim under this Decree.
Abandonment to bring within jurisdiction
11. A person may
abandon so much of a claim as exceeds $2,000 in order to bring the claim within
the jurisdiction of a Tribunal, and
in that event any order of the Tribunal
under this Decree or any other Law, in relation to the claim shall operate to
discharge from
liability in respect of the amount so abandoned any person
against whom the claim and the subsequent order is made.
Cause of action not to be divided
12. A cause of
action shall not be divided into 2 or more claims for the purpose of bringing it
within the jurisdiction of a Tribunal.
Contracting out prohibited
13.-(1) A
provision in any agreement to exclude or limit:
(a) the jurisdiction of a Tribunal; or
(b) the right of any person to involve that jurisdiction, shall be of no effect.
(2)
Without limiting the generality of subsection (1), a Tribunal shall have
jurisdiction in respect of a claim notwithstanding any
agreement relating
thereto which provides for:
(a) the submission to arbitration of any dispute or difference; or
(b) the making of an award upon such a submission to be a condition precedent to any cause of action accruing to a party to the agreement.
(3) Subsection (1)
does not apply where a cause of action has accrued, or is believed to have
accrued, to a person and he had agreed
to the settlement or compromise of the
claim based on that cause of action.
Exclusion of other jurisdictions
14.-(1) If a
claim is lodged with or transferred to a Tribunal and is within its
jurisdiction, the issues in disputes in that claim (whether
as shown in the
initial claim or as emerging in the course of the hearing) shall not be the
subject of proceedings between the same
parties in any other Court or Tribunal
unless -
(a) an order is made under section 22 or section 35(1)(c);
(b) the proceedings before that other Court or Tribunal were commenced before the claim was lodged with or transferred to the Tribunal; or
(c) the claim before the Tribunal is withdrawn, abandoned, or struck out.
(2) If
subsection (1)(b) applies to
proceedings before another Court or Tribunal, the issues in dispute in the claim
to which those proceedings relate (whether
as shown in the initial claim or
emerging in the course of the hearing) shall not be the subject of proceedings
between the same
parties to a Tribunal unless the proceedings are transferred to
a Tribunal under section 23 or the claim before the other Court or
Tribunal is
withdrawn, abandoned, or struck out.
Functions of other jurisdictions
15.-(1) The
primary function of a Tribunal is to attempt to bring the parties to a dispute
to an agreed settlement.
(2) If it appears to the Tribunal to be
impossible to reach a settlement under subsection (1) within a reasonable time,
the Tribunal
shall proceed to determine the dispute.
(3) If an agreed
settlement is reached, the Tribunal may make one or more of the orders which it
is empowered to make under section
16 or under any other Law, and shall not,
where giving effect to the agreement of the parties, be bound by the monetary
restriction
proved for by subsections 16(3) and (4).
(4) The Tribunal
shall determine the dispute according to the substantial merits and justice of
the case, and in doing so shall have
regard to the law but shall not be bound to
give effect to strict legal rights or obligations or to actual forms or
technicalities.
(5) Without limiting the generality of subsection (4), a
Tribunal may, in respect of any agreement or document which directly or
indirectly
bears upon the dispute between the parties, disregard any provision
therein which excludes or limits,
(a) conditions, warranties, or undertakings; or
(b) any right, duty, liability, or remedy which would arise or accrue in the circumstance of the dispute; if there were no dispute; if there were no such exclusion or limitation.
(6) To give effect to its
determination of the dispute or in granting relief in respect of any claim,
which is not disputed, the Tribunal
shall make one or more of the orders which
it is empowered to make tinder section 16 or under any other law.
Order of Tribunal
16.-(1) A
Tribunal may, as regards any claim within its jurisdiction, make one or more of
the following orders and may include therein
such stipulations and conditions
(whether as to the time for, or mode of, compliance or otherwise) as it thinks
fit:
(a) the Tribunal may order a party to the proceedings to pay money to any other party;
(b) the Tribunal may make an order declaring that a person is not liable to another in respect of a claim or demand for money, the delivery of goods or chattels, or that work he performed;
(c) the Tribunal may order a party to deliver specific goods or chattels to another party to the proceedings;
(d) the Tribunal may make a work order against any party to the proceedings;
(e) if it appears to the Tribunal that an agreement between the parties, or any term thereof, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, the Tribunal may make an order varying the agreement, or setting it aside (either wholly or in part);
(f) if it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, the Tribunal may make an order varying or setting aside the agreement, or the writing (either wholly or in part);
(g) the Tribunal may make an order dismissing the claim.
(2) If a Tribunal makes
a work order against a party it:
(a) shall, where the order is made under section 15(6) or section 31(2); and
(b) may, where the order is made under section 15(3),
at the same time make an order
under subsection (1)(a) of this
section to be complied with as an alternative to compliance with the work
order.
(3) A Tribunal shall not make an order under this Decree which
exceeds the monetary restriction hereunder which is applicable to that
order and
any order which does exceed that restriction shall be entirely of no effect. The
monetary restrictions are:
(a) an order under subsection (1)(a) shall not require payment of money exceeding $2,000:
(b) a declaration under subsection (1)(h) shall not relate to a claim or demand exceeding $2,000;
(c) an order under subsection (1)(c) shall not relate to goods or chattels exceeding $2,000 in value;
(d) the work to be done or matters to be attended to under a work order shall not exceed $2,000 in value;
(e) an order under paragraph (e) or paragraph (f) of subsection (1) shall not be made in respect of an agreement if the value of the consideration for the promise or act of any party to the agreement exceeds $2.000.
(4) Except as provided in subsection
(2), a Tribunal shall not, in respect of a claim, make more than one of the
orders authorised
by subsections
(1)(a),
(1)(b),
(1)(c) or
(1)(d), or by any other Law, if the
aggregate amount or value of those orders exceeds $2,000; and every order so
made contrary to this subsection
shall be entirely of no effect.
(5)
Nothing in subsection (1) shall restrict the making by a Tribunal of any order
which it is authorised to make by any other Law.
(6) An order which is
beyond the jurisdiction limitations of section 9 shall be of no force or
effect.
Orders of Tribunal to be final
17. An order made
by a Tribunal shall be final and binding on all parties to the proceedings in
which the order is made, and subject
to section 32 and except as provided in
section 33, no appeal shall lie in
respect thereof.
PART III- PROCEEDINGS OR TRIBUNALS
CLAIMS
Lodging of claims
18.-(1)
Proceedings shall be commenced by the lodging of a claim in Form 1 of the First
Schedule to this Decree together with the fee
prescribed in the Second Schedule,
with the appropriate Tribunal.
(2) The appropriate Tribunal for the
purpose of subsection (1) is the one nearest by the most practicable route to
the place where
the claimant resides.
Notice of claim and of hearing
19.-(1) When a
claim is lodged in accordance with section 18 of this Decree, the Registrar
shall:
(a) immediately fix a time and place of hearing and give notice thereof in the prescribed form to the claimant by endorsing the details on Form 1; and
(b) as soon as reasonably practicable, give notice of the claim and of the time and place of hearing to-
(i) the respondent; and
(ii) every other person who appears to the Registrar to have a sufficient connection with the proceedings on the claim in the capacity of a claimant or respondent,
by delivering a sealed copy of the claim with the details of the hearing endorsed on it.
(2) If a Tribunal finds that a
person who appears to it to have a sufficient connection with the proceedings on
a claim in the capacity
of a claimant or respondent has not been given notice of
the proceedings it may direct the Registrar to give, and the Registrar shall
give, to such person notice of the claim and of the time and place for
hearing.
(3) For the purposes of this section, a person has a sufficient
connection with the proceedings on a claim if his presence as a claimant
or
respondent is necessary to enable the Tribunal to effectually and completely
determine the questions in dispute in the claim or
to grant the relief which it
considers may be proper.
Parties
20.-(1) Subject
to subsection (2) the claimant, the respondent, and every person to whom notice
of a claim has been given under section
19(i), (ii) or section 19(2) shall be
the parties to the proceedings on that claim.
(2) A Tribunal may at any
time, order that the name of a person who appears to it to have been improperly
joined as a party be struck
out from the proceedings.
Minors and persons under disabilities.
21.-(1) Subject
to this section a minor may be a party to, and shall be bound by, proceedings in
a Tribunal as if he were a person of
full age and capacity.
(2) If a
minor who has not attained the age of 18 years is a party to any proceedings in
a Tribunal, the Tribunal may, if it considers
that it would be in the interests
of the minor to do so:
(a) at any time appoint to represent the minor a person who is willing to do so (and who is not disqualified by section 24(5)), and authorise that person to control the conduct of the minor's case; or
(b) when approving a representative under section 24(3)(c), or at any time thereafter, authorise that representative to control the conduct of the minor's case.
(3) If a party to any proceedings in a
Tribunal is a person of unsound mind:
(a) the Public Trustee; or
(b) if a Committee of the estate of that person of unsound mind has been appointed under the Mental Treatment Act the Committee, subject to that Act,
shall
control the conduct of that person's case.
(4) A person empowered by or
under this section to control the conduct of the case of another person may do
all such things in the
proceedings as he could do if he himself were a party to
the proceedings in place of that other person.
Transfer of proceedings to Magistrates' Court, etc.
22.-(1) If any
proceedings have been commenced in a Tribunal which it has no jurisdiction to
hear and determine, the Tribunal may, instead
of striking out the proceedings,
order that they be transferred to a Magistrates' Court in its ordinary civil
jurisdiction.
(2) If any proceedings have been commenced in a Tribunal
which in the opinion of the Tribunal would more properly be determined in
a
Magistrates' Court, the Tribunal may, on the application of a party or of its
own motion, order that proceedings be transferred
to a Magistrates' Court in its
ordinary civil jurisdiction.
(3) The Tribunal shall not make an order
under this section in respect of a claim if any agreement of a kind described in
section
13(2) requires that the claim be submitted to arbitration.
Transfer of proceedings from Magistrates' Court, etc.
23.-(1) If
proceedings within the jurisdiction of a Tribunal have been commenced in a
Magistrates' Court which has a Tribunal as a division
of it, before a claim in
respect of the same issues between the same parties has been lodged in or
transferred to a Tribunal, the
magistrate may, on the application of either
party or of his own motion, order that the proceeding be transferred to the
Tribunal,
subject to such provision (if any) as to payment of costs as he thinks
fit.
(2) If proceedings within the jurisdiction of a Tribunal has been
commenced in the High Court before a claim in respect of the same
issues between
the same parties has been lodged in, or transferred to, a Tribunal, that Court
or a Judge thereof may, on the application
of either party or of its or his own
motion, order that the proceeding be transferred to a Tribunal subject to such
provision (if
any) as to payment of costs as the Court or Judge thinks
fit.
(3) A Tribunal to which proceedings are transferred pursuant to this
section may have regard to any notes of evidence transmitted
to it and it shall
not be necessary for that evidence to be given again in the Tribunal unless the
Tribunal so requires.
(4) Section
8(3) shall not apply to a claim which
is transferred to a Tribunal pursuant to this section, unless the claimants
consents to transfer.
HEARINGS
Right of audience
24.-(1) At the
hearing of a claim every party shall be entitled to attend and be
heard.
(2) Subject to subsections (3) and (6), no party shall appear by a
representative unless it appears to the Tribunal to be proper in
all the
circumstances to so allow, and the tribunal approves such
representative.
(3) The following parties may appear by a representative
who is approved by the Tribunal:
(a) the State, if the representative is a servant of the State;
(b) a corporation or an unincorporated body of persons, if the representative is a employee or member thereof;
(c) a person jointly liable or entitled with another or others, if the representative is one of the persons jointly liable or entitled or, in the case of a partnership, is an employee of those persons;
(d) a minor, or other person under a disability.
(4) A Tribunal shall when a
representative of a party is proposed for its approval, satisfy itself that the
person proposed is acting
in the best interests of that party and has sufficient
personal knowledge of the case and sufficient authority to bind the
party.
(5) A Tribunal shall not approve a representative who is, or has
been admitted as a barrister or solicitor or who, in the opinion
of the Tribunal
is, or has been, regularly engaged in advocacy work before Tribunals; but this
prohibition does not apply where the
person proposed for approved under
subsection (3) is a person or one of the persons jointly liable or entitled with
another or others,
or is an employee of a party.
(6) The Consumer Council
of Fiji may, by its employees, servants or agents, represent any claimant in
proceedings before a Tribunal
if the claimant so consent and the representative
is not a barrister or solicitor.
Proceedings may be held in private
25. Proceedings
before a Tribunal may be held in private if all of the parties agree
thereto.
Evidence
26.-(1) Evidence
tendered to a Tribunal by or on behalf of a party to any proceedings need not be
given on oath, but the Tribunal may
at any stage of the proceedings require that
such evidence, or any specific part thereof, be given on oath whether orally or
in writing.
(2) 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.
(3) A Tribunal may receive and take into
account any relevant evidence or information, notwithstanding the provisions of
the Evidence Act and whether or not the same would normally be admissible in a
Court of Law.
Tribunal may act on evidence available
27.-(1) If the
case of any party is not presented to the Tribunal, after reasonable opportunity
has been given to him to do so, the issues
in dispute in the proceedings may be
resolved by the Tribunal, or relief in respect of an undisputed claim may be
granted by it,
on such evidence or information as is before it, including
evidence or information obtained pursuant to section
26(2).
(2) An order made by the
Tribunal in the circumstances described in subsection (1) shall not be
challenged on the ground that the
case of the party was not presented to the
Tribunal, but the party may apply for a rehearing under section 32 on the ground
that
there was sufficient reason for his failure to present his case.
No Costs allowable
28. Costs shall
not be awarded against a party unless, in the opinion of the Tribunal, a claim
made by that party is frivolous or vexatious,
in which case it may order that
party to pay to another party the reasonable costs of that party in connection
with the proceedings.
Procedure where no provision made
29. Subject to
this Decree and any rules made hereunder, a Tribunal shall adopt such procedure
as it thinks best suited to the ends of
justice.
ENFORCEMENT OF ORDERS
Enforcement of orders except work orders
30.-(1) Every
order made by a Tribunal requiring a party to pay money or deliver specific
goods or chattels to another party shall be
deemed to be an order of the
Magistrates' Court of which the Tribunal is a division, and subject to this
section, may be enforced
accordingly.
(2) An application made to a
Magistrates' Court for the issue of any process to enforce an order requiring a
party to pay money to
another as an alternative to compliance with a work order
shall be in Form 2 of the First Schedule and the Registrar shall give notice
of
the application to the party against whom enforcement is sought.
(3) If
that party does not file in the Court within a period of 21 days from the date
it receives notice of the application in Form
2, a notice of objection in Form
3, the order may, after the expiry of that period, be enforced pursuant to
subsection (1).
(4) The notice referred to in subsection (3) may only be
given on the ground that is is [sic] the belief of the party that the order
of
the Tribunal has been fully complied with and that he therefore disputes the
entitlement of the applicant to enforce it.
(5) If the party against whom
enforcement is sought files the notice referred to in subsection (3) within the
prescribed time, the
Registrar shall refer the matter to the Tribunal to be
heard and determined under section 31(2).
(6) Notwithstanding sections 62
and 63 of the Magistrates' Court Act, no filing fee shall be payable by a person
who seeks to enforce
an order pursuant to subsection (1), but any fee which
would otherwise be payable therefor shall be recoverable from the opposite
party
for the credit of the Consolidated Fund.
Enforcement of work orders
31.-(1)
If:
(a) a party in whose favour a work order has been made considers that the work order has not been complied with by the other party; and
(b) that other party has not complied with an alternative money order provided for in section 16(2),
the party, in whose favour the work
order was made may, instead of applying to the Magistrates' Court for the issue
of process for
enforcement pursuant to section 30, lodge in the Tribunal a
request in Form 4 of the First Schedule to this Decree that the work
order be
enforced.
(2) Proceedings on a request for enforcement under subsection
(1) and on a notice under section 30(5) shall be treated as it [sic]
such
request or notice were a claim lodged under section 18, and upon the hearing of
the matter the Tribunal may:
(a) vary the work order or make a further work order or any other order which is authorised by section 16;
(b) grant leave to the party in whose favour the work order was made to enforce the alternative money order provided for by section 16(2), or so much thereof as the Tribunal may allow and either subject to or without compliance with the provisions of section 30(2);
(c) discharge any order previously made by the Tribunal.
(3) After the expiration
of 12 months from the date of a work order, it shall not be enforced without the
leave of the Tribunal.
PART IV - REHEARING AND APPEALS
Rehearing
32.-(1) Subject
to subsection (2), a Tribunal may, upon the application or a party to any
proceedings, order the rehearing of a claim,
to be had [sic] upon such terms as
it thinks fit.
(2) A rehearing may be ordered under subsection (1) only
if an order has been made under section 15(6) or section 31(2) and, in the
latter case, shall be limited to rehearing the enforcement proceedings taken
under that section.
(3) Every application for a rehearing shall be in
Form 5 of the first Schedule, shall be lodged together with the fee prescribed
in
the Second Schedule and shall be made within 14 days after the Tribunal's
order and shall be served upon the other parties to the
proceedings.
(4)
When a rehearing is ordered:
(a) the Registrar shall notify all parties to the proceedings of the making of the order and of the time and place appointed for the rehearing; and
(b) the order of the Tribunal made upon the first hearing shall cease to have effect.
(5) Notwithstanding subsection
(4)(b), if the party on whose
application a rehearing is ordered does not appear at the time and place for the
rehearing or at any time
and place to which the rehearing is adjourned, the
Tribunal may, without rehearing or further rehearing the claim direct that the
original order be restored to full force and effect.
(6) This Decree
shall apply to a rehearing in all respects as it applies to an original
hearing.
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.
(2) An appeal brought pursuant
to subsection (1) shall be made:
(a) if against an order made by a Resident Magistrate exercising the jurisdiction of a Tribunal to the High Court; and
(b) in any other case, to the Magistrates' Court.
(3) An appeal shall be
brought by a party by the filing of a notice of appeal in Form 6 of the First
Schedule to this Decree, together
with the fee prescribed in the Second Schedule
in the High Court or any Magistrates' Court (as the case may be) within 14 days
of
the Tribunal's order.
(4) As soon as practicable after such notice of
appeal has been filed the High Court or the Registrar of that Magistrates' Court
(as
the case may be) shall:
(a) lodge a copy thereof in the Tribunal's records relating to the proceedings;
(b) fix the time and place for the hearing of the appeal and shall notify the appellant;
(c) serve a copy of even notice of appeal together with a notice of the time and place for hearing the appeal on even other party to the proceedings before the Tribunal and each such party may appear and be heard.
(5) The filing of a
notice of appeal against an order shall operate as a stay of any process for the
enforcement of that order but
the High Court or the Magistrates' Court may at
any time on the application of a party to the proceedings order that any process
may be resumed or commenced or the process having been resumed or commenced,
order that it be further stayed.
Referee to furnish report
34.-(1) Within 14
days after a notice of appeal has been lodged in the Tribunal's records under
section 33(3) the Referee who heard the
proceedings shall furnish to the
Registrar a report on the proceedings and on the manner in which the proceedings
were conducted
and the reasons therefor.
(2) A Referee shall keep a
record of the proceedings of a Tribunal sufficient to enable him, if required,
to furnish a report under
subsection (1).
(3) If, for any reason, the
Referee who heard the proceedings is unavailable to furnish the report, the same
shall be compiled by
the Registrar from such information as he is able to
collect from the records of the Tribunal or otherwise.
Powers of court on appeal
35.-(1) On the
hearing of the appeal a Judge or Resident Magistrate may:
(a) quash the order of the Tribunal and order a rehearing of the claim in the Tribunal on such terms as he thinks fit;
(b) if the appeal is heard by a Resident Magistrate quash the order and invoke his authority under section 4 to exercise the jurisdiction of a Tribunal;
(c) quash the order and transfer the proceedings to a Magistrates' Court for hearing; or
(d) dismiss the appeal.
(3) An appeal under this section shall
be heard by a Judge or Resident Magistrate in chambers and, subject to this
Decree and any
rules made hereunder, the procedure thereat shall be such as he
may determine.
PART V - MISCELLANEOUS PROVISIONS
Want of form
36. No
proceedings of a Tribunal or order or other document thereof shall be set aside
or quashed for want of form.
Registrar to provide assistance
37. A Registrar
shall ensure that assistance is reasonably available from himself or his staff
to any person who seeks it in completing
the forms required by this Decree or
any rules made thereunder, in relation to the lodging of a claim in a Tribunal,
an application
for a rehearing, an appeal against an order of a Tribunal, or the
enforcement of an order in the Tribunal or in a Magistrates' Court.
Contempt of Tribunal
38.-(1) Any
person who:
(a) wilfully assaults, insults, or obstructs a Referee, or any witness or any officer of a Tribunal during a sitting of a Tribunal or while a Referee a witness or an officer is going to or returning from a sitting of a Tribunal;
(b) wilfully assaults, insults, or obstructs any person in attendance at a sitting of a Tribunal;
(c) wilfully interrupts, or otherwise misbehaves at, a sitting of a Tribunal; or
(d) wilfully and without lawful excuse disobeys any order or direction of a Tribunal (other than an order mentioned in section 15(3), section 15(6), or section 31(2) of this Decree) in the course of the hearing of any proceedings,
is guilty of
an offence and is liable to a fine not exceeding $500 or to imprisonment for any
term not exceeding 6 months.
(2) A Referee may order the exclusion from a
sitting of a Tribunal of any person whose behaviour in the opinion of the
Referee, constitutes
an offence against subsection (1), whether or not such
person is charged with the offence; and any Registrar, or officer under his
control, or police officer may take such steps as are reasonably necessary to
enforce such exclusion.
Protection of Referees, etc.
39.-(1) A Referee
shall have and enjoy the same protection as a Magistrate has and enjoys under
the Magistrates' Courts Act.
(2) For the avoidance of doubt as to the
privileges and immunities of Referees, parties representatives and witnesses in
the proceedings
of a Tribunal it is declared that such proceedings are judicial
proceedings.
(3) The privileges and immunities referred to in subsection
(2) shall extend and apply to any person who gives information or makes
any
statement to the Tribunal and relating to a claim.
Publication of orders
40. The Registrar
shall cause to be published in such manner as the Minister from time to time
directs, such particulars relating to
the result of proceedings in Tribunals as
the Minister specifies in the direction.
Rules
41.-(1) The Chief
Justice may make rules:
(a) regulating the practice and procedure of Tribunals;
(b) prescribing such things (including fees) as are required by this Decree to be prescribed;
(c) prescribing such matters as are necessary or convenient for carrying out the provisions of this Decree.
(2) Without limiting the generality of
subsection (1), rules may be made providing for the following:
(a) the keeping of records by Tribunals and the form thereof;
(b) the form of documents to be issued by Tribunals and the sealing of its documents;
(c) the form and content of documents to be used by parties and intending parties, and the service of documents and the giving of notices by such persons;
(d) the function, powers, and duties of Tribunals and Registrars in relation to -
(i) the service of documents and giving of notices;
(ii) the enlargement of dates of hearing; and
(iii) the adjournment of proceedings;
(e) the withdrawal and amendment of claims;
(f) the summonsing of witnessing, and the payment of witnesses from public funds or otherwise;
(g) the commission of offences by, and punishment of persons who refuse to give evidence or obey a summons to witness;
(h) the transfer or proceedings -
(i) from a Magistrates' Court or the High Court to a Tribunal;
(ii) form a Tribunal to a Magistrates' Court;
(iii) from one Tribunal to another;
(i) the removal of orders of tribunals into a Magistrates' Court for enforcement;
(j) the searching of the records of Tribunals.
(3) Notwithstanding section 42,
rules made under this section may make particular provision for:
(a) the giving of notices to, and service of documents on the State; and
(b) the length of the notice to be given to the State before proceedings to which the State is a party may be heard.
State Proceedings Act not restricted
42. Nothing in
this Decree shall limit or restrict the operation of the State Proceedings
Act.
State bound
43. This Decree
binds the State.
Transitional
44.-(1) An action
commenced in the Magistrates' Court or the High Court, prior to the date this
Decree comes into force, shall not be
transferred to a Small Claims Tribunal
unless with the consent of all parties.
(2) A right accrued or obligation
incurred before this Decree comes into force shall not be affected by the
operation of section 15(4).
Made at Suva this 12th day of March
1991.
PENAIA K. GANILAU
President of
the Sovereign Democratic
Republic of Fiji and Commander-in-Chief
of the
Armed Forces
________
FIRST SCHEDULE: FORMS
SMALL CLAIMS TRIBUNAL DECREE
Form 1
Claim
Section 18(1)
Lodged in the Small Claims
.........................................................Claim Number:
..
Tribunal Registry at
..........................................................................................
on the ..........day
of ............................ 19...
To ...................................................................................................
of ....................................................................................(Respondent)
...................................................................................................
(here insert full name and address of the person or business the claim is made against)
TAKE NOTICE THAT
of
.............................................................................................(Claimant)...
.................................................................................................................
(here insert full name address of the person or business making the claim)
CLAIMS AGAINST YOU:
(a) that you pay to him the sum of $ ............................................................................or
(b) that the following be done by you ........................................................or
(c) that you pay to him money to a value to be decided by the Tribunal
(d) .................................................................................................or
(here state any other relief claimed)
FOR THE
FOLLOWING REASONS
(e) ...................................................................................................
(here set out, in as much detail as possible, the grounds of the Claim and all relevant facts and attach copies of any documents relied upon)
And I hereby swear (or solemnly and sincerely affirm) that the reasons set out above are true and correct
.........................................
Signature of Claimant
Sworn (or Affirmed)
before me on the ...............................................................
day of .......................
19....... at .........................
...........................................................
Signature
of Justice of the Peace or other person qualified to take oaths or
affirmations
(Reverse side of Form 1)
NOTICE OF HEARING
TO:
.............................................................................................
(Claimant)
AND
.........................................................................................
(Respondent)
AND.....................................................................
(A party to these proceedings)
TAKE NOTICE THAT:
1. The above
claim has been set down for hearing at the Small Claims Tribunal at
........................................................................
(here
insert place and address) on ........ day the ................... day of
......................... 19.... at .........o'clock.
(2) If you wish to
contest the claim you must appear before the Small Claims Tribunals at the place
and time set out above and then
there state your reasons why the Claim should
not be granted.
(3) No party may appear by a barrister or solicitor and
no party may appear by a representative unless the Tribunal approves, pursuant
to Section 24 of the Small Claims Tribunal Decree, or unless the representative
is from the Consumer Council of Fiji.
(4) Details of proceedings will be
advertised by the Tribunal after the Claim is disposed of.
(5) If you do
not appear at the hearing, the Tribunal may hear and decide the case in your
absence.
(6) A person named above as a party may be ordered to pay money,
or perform work or deliver goods or chattels, not withstanding that
the claimant
did not, in the original claim directly seek relief against that party.
Register Small Claims Tribunal
______
SMALL CLAIM TRIBUNAL DECREE
Form 3
OBJECTION
TO ENFORCEMENT OF ORDER
Section 30(3)
Claim Number: ......
To: The Registrar, Small Tribunal
AND:
...............................................................................................
...............................................................................................
...............................................................................................
...............................................................................................
(here insert name and address of other parties)
TAKE NOTICE THAT:
I object to the enforcement of
the Tribunal's Order dated the ....... day of ................199... to pay
money as an alternative
to compliance with a work order, on the ground that I
have fully complied with the work order.
.............................................................................................
(Name and Signature of person filing objection)
_____
SMALL CLAIMS TRIBUNALS DECREE
Form 4
APPLICATION
TO ENFORCE WORK ORDER
Section 31
Claim Number: ......
To: The Registrar, Small Claims Tribunal
AND
.................................................................................................
.................................................................................................
.................................................................................................
.................................................................................................
(here insert name and address of Party ordered to perform work order)
TAKE NOTICE THAT:
I claim that
the work order may by the Tribunal on the ....... day of
........................... 199... has not been carried out
nor has the
alternative money order been complied with;
(2) I require the enforcement
of the said work order.
.....................................................................
(Name
and Signature of person who seeks the enforcement of the work order)
Dated this .................... day of ....................... 19.... .
______
SMALL CLAIMS TRIBUNAL DECREE
Form 5
APPLICATION
FOR REHEARING
Selection 32
Claim Number: ........
To: The Small Claims Tribunal at
...................................................
AND:
.....................................................................................
.....................................................................................
.....................................................................................
(here insert name and address of the other parties)
TAKE NOTICE THAT
...................................................................................................................
(here insert name and address of applicant)
Hereby applies for an order that the claim herein be
reheard, for the following reasons-
........................................................................................
(here set out reasons why a rehearing is sought)
...........................................
Signature
of Applicant
Dated ............. this ........... day of ........... 199....
_________
SMALL CLAIMS TRIBUNAL DECREE
Form 6
NOTICE
OF APPEAL
Section 33
Claim Number: .......
TAKE NOTICE THAT
..........................................................................................
(here insert name and address of party who is appealing)
Hereby appeals against the order of the Small Claims
Tribunals at ................. made on the .............. day of
......................
19... on the following grounds-
........................................................................................................
........................................................................................................
........................................................................................................
(here set out grounds, bearing in mind that the right of appeal is limited by section 33(1))
...................................................
Signature
of Applicant
Dated this ......... day of ............... 19...
______
SECOND SCHEDULE
Fee for lodging document in a Small Claims Tribunal
For each claim or counterclaim .......................................................$5.00
For each application for a rehearing ..................................................$10.00
For each notice of appeal .............................................................$10.00
---------------------------------------
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