Au-yeung Tak-lung v. Luk Sau-fung
Read the full judgment text of HCSA 1/1976 on BabelCite. This High Court CFI judgment.
1. This, the first review from the newly constituted Small Claims Tribunal, raises a question of jurisdiction of some importance.
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HCSA000001/1976
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----------------- Coram: Pickering, J.A. and McMullin, Ag.J.A. Date of Judgment: 8th December, 1976. ----------------- JUDGMENT ----------------- 1. This, the first review from the newly constituted Small Claims Tribunal, raises a question of jurisdiction of some importance. 2. The background to the claim is unimportant. Suffice it is to say that the claimant claimed $3,000 from the defendant. On the 9th November, 1976, the date of the hearing, the defendant, although served, was not present and the claimant was permitted to prove her claim in the absence of the defendant, this being a course which the learned adjudicator was authorised to take by section 17 of the Small Claims Tribunal Ordinance, Cap.338. Judgment was given for the claimant. 3. On the 26th November both parties appeared before the adjudicator and the defendant applied for the setting aside of the judgment saying that she had been served on the evening of 29th October but had left for Japan at noon on the next day; she claimed that she had sent a letter to the claimant from Japan seeking an adjournment. The claimant making no objection to the application for setting aside, that application was granted but, since the defendant was alleging duress and fraud on the part of the claimant and her brother, the learned adjudicator made an order for the transfer of the case to the District Court; this was expressed to be both of the Tribunal's own motion and upon the application of the defendant. 4. We have sought for the authority of the learned adjudicator to set aside his own judgment and have found none. Section 104 of the Magistrates Ordinance, Cap.227 empowers a magistrate in the circumstances therein set out to review his own decision. A similar power is conferred upon a District Judge by section 53 of the District Court Ordinance, Cap.336. No such specific power is contained in the Small Claims Tribunal Ordinance. We have considered whether section 37 of the Ordinance can be prayed in aid of the course taken by the learned adjudicator. That section reads:-
5. No rules have yet been made under section 36. The procedure adopted in setting aside the judgment cannot be said to have arisen "in any particular proceeding" because the proceeding had been concluded at the date the order purportedly setting aside the judgment was made; nor do we consider that the learned adjudicator was determining the practice and procedure "generally" for it is not open to him to determine practice and procedure in respect of a matter which is not before him. Once he gave judgment he was functus officio and his purported order setting aside the judgment was null and void so that the original judgment was never in fact set aside but enures and is valid. 6. Moreover the adjudicator, being functus officio, could not transfer the proceeding to the District Court under section 7 of the Small Claims Tribunal Ordinance. 7. In a situation in which fraud and duress are alleged, even belatedly, we regard it as unsatisfactory that no machinery exists for re-opening the claim so that those matters may be explored and we would welcome an amendment to the Ordinance conferring upon Adjudicators similar powers in regard to review of their own judgments as are possessed by District Court Judges and Magistrates. 8. In the result however the proceedings before us, which were by way of an application by the claimant for review of the order purportedly transferring the claim to the District Court, must succeed and the application is allowed. The parties being in person, no question of costs arises. Representation: Applicant in person Respondent in person. |