Chan Man-fai t/a Mandarin Palace Night Club v. Wong Siu-ying

HCSA000004/1981

Small Claims Tribunal - inadequate investigation - fair trial not had - heavy responsibility on tribunal exercising summary jurisdiction.

Date of hearing: 19th May, 1981

Appellant in person.

Respondent in person.

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Coram: Sir Alan Huggins, V.-P., Leonard & Cons, JJ.A.

Date of hearing: 19th May, 1981

Date of Judgment: 19th May, 1981

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. On 1st May we granted leave to the Appellant to appeal against the decision of the Small Claims Tribunal. He was the Defendant in those proceedings. The claim was for a sum of $2,709.90 on a dishonoured cheque.

2. Today both parties are before us. It appears from the notes of proceedings prepared by the Adjudicator that at the first appearance of the parties before him the Defendant was never asked to indicate what was his defence nor, indeed, whether he admitted any part of the claim: all that is recorded is a statement of the Claimant in these words: "The Defendant was paid $1,000 on the dishonoured cheque". That may well have been, and probably was, an error in transcription but it is the duty of the Adjudicator to see that the papers reaching this Court are correct. The notes relating to the subsequent hearing are manifestly in error. There is a record of a statement by the Claimant that "the $1,000 I mentioned on 31st December 1980 did not include the sum of $2,709.90 in this claim". That nonsensical statement is reproduced in the Reasons for Decision. We now learn from the Claimant that what she in fact said was that the $1,000 was not included in the sum of $2,709.90 in this claim. It is, therefore, common ground that a total debt - which the Defendant admitted - of $3,709.90 was to be paid by a cheque for $2,709.90 and $1,000 in cash and also that the $1,000 had nothing whatever to do with the dishonoured cheque.

3. The Adjudicator has recorded a statement by the Defendant that he had paid $1,000 and that the amount owed should be $1,709.90. Not only was that clearly not correct but no further question qppears to have been asked to obtain an explanation of it. The Defendant tells us that he was answering a question which he understood to have been put to him as to how much he owed on the cheque after he had paid $1,000. If that be correct there was clearly a misunderstanding between the Adjudicator and the Defendant.

4. More important is the fact that there was in evidence a document which showed on its face the calculation of the total debt. It showed on the back three payments which totalled $2,709.90 - the precise amount of the cheque. No proper inquiry appears to have been made in the Tribunal as to the explanation for the existence of these figures totalling the amount of the cheque: all that we have is the statement by the Claimant that they related to something entirely different and had nothing to do with this case. It does not appear from the reasons for the Adjudicator's decision that he considered this strange coincidence.

5. This Court has no power to interfere with findings of fact. Nevertheless, it does have a duty to ensure that parties appearing before the Tribunal have a fair hearing. In my view there were matters before the Tribunal in this case which were not sufficiently investigated. The proper order of this Court would be that the matter should go back for rehearing before another Adjudicator.

6. Proceedings in the Small Claims Tribunal are of a summary nature. No particular procedure is laid down. A tribunal which has such very wide discretion as to the manner in which it conducts its proceedings has a very heavy responsibility, and it is vital that it should be clear on the face of the tribunal's record that the parties have had a fair and full hearing. All too often in cases which have come before this Court from the Small Claims Tribunal we have been forced to the conclusion that a fair hearing has not been had.

Leonard, J.A.:

7. I agree that clearly there was inadequate investigation by the Tribunal in this case, in particular having regard to the Exhibit C2. I also consider that the only result at which we can arrive is a direction that the matter be reheard by a different tribunal.

Cons, J.A.:

8. I agree that the appeal should be allowed for the matter to be reheard before another tribunal.

19th May 1981.

Representation:

Appellant in person.

Respondent in person.