AND —————– AND —————–
Coram: Cons, J.A., Yang and Bewley, JJ.
Date of Judgment: 9 June 1980
1. These are applications for leave to appeal from two decisions of the Small Claims Tribunal whereby the adjudicator dismissed forlack of evidence two claims brought by the applicant. The grounds of appeal were framed in several ways, but principally it is saidthat the learned adjudicator failed to give the applicant a chance properly to prove his claim by the production of documentary evidence.
2. That is in substance an allegation of fact. Despite the able and persuasive argument of Mr. Philip Lee, we are not persuaded thatthere is sufficient evidence to support it. Rather the indications are, to our mind, more inclined the other way, that the personrepresenting the applicant before the tribunal was in reality not prepared with sufficient evidence to maintain the claims.
3. The second complaint, related to the first, is that the adjudicator did not, as it were, take over the conduct of the claim fromthe applicant’s representative and prove it for him. This complaint is immediately answered by the same reason as the first.
4. Apart from that, although we appreciate that by section 16 of the Ordinance the adjudicator is bound to adopt an informal approachand to “inquire into any matter which it may consider relevant to a claim, whether or not it has been raised by a party”, how muchis required from the adjudicator will depend upon the circumstances of each individual case. He will in any event need first to havereason to think that relevant matter is available. The reason may come from the case itself or it may come from the experience ofthe adjudicator having previously dealt with many similar claims. He may for example be aware that a particular type of claim isusually proved by documentary evidence. If in such a case no sufficient evidence is led, the adjudicator ought to enquire after thedocuments. However if the person appearing before the tribunal is a person who has proved many similar claims before and yet stillproduces no documents, we think the adjudicator is justified in assuming without question that such evidence is not available.
5. For these reasons, we refused leave to appeal. However, certain comments of the learned adjudication in the Reasons for Decisionhave caused us some concern. They appear to indicate a view that large organizations which make frequent use of the tribunal, particularlythose hongs which are accustomed to finance hire purchase transactions, should be accorded less favourable treatment before the tribunalthan individual litigants.
6. Such an approach would seriously impugn the impartiality of the Small Claims Tribunal and we cannot think the words of the adjudicatorwere so intended. Where the claim is in fact a small claim, that is for not more than $3,000, large hongs and small men alike arebound to bring their claim before the tribunal. The law gives them no option and their comparative wealth is irrelevent: Monis Beraha v. Peter Shui and another(1). The tribunal ought to give them equal treatment.
Philip Lee (C.Y. Kwan & Co.) for the applicant.
(1) Small Claims Tribunal Review 1978 No. 2