THOMAS ARTHUR CHAPMAN v. THAI AIRWAYS INTERNATIONAL LTD.

IN THE COURT OF APPEAL

1995, No. 1
(from the Small Claims Tribunal)

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J U D G M E N T

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Bokhary, J.A.:

1. We have to review a decision of the Small Claims Tribunal under which the adjudicator transferred a claim to the District Court. That transfer was under section 7 of the Small Claims Tribunal Ordinance, Cap. 338. This review is under section 27 of that Ordinance. The claim is a relatively simple one, arising out of the loss by an airline of a passenger's luggage. It was in May last year that the luggage was lost. The claim was commenced on October 3 that year.

2. The transfer, on December 1 last year, was of the adjudicator, Mr T. C. Hon's own motion. Neither the claimant passenger nor the defendant airline asked for a transfer.

3. Looking at the adjudicator's notes, he transferred the claim because he thought that the airline ought to have legal representation. As to why he thought that, it would appear that he was of the view that some considerable legal complication arose in connection with the claim.

4. Certainly, when you have claims like this, you will have things like the Warsaw Convention in the background or perhaps even in the foreground. But conventions of that sort are not designed to make things more complicated. They are designed to make things simpler and uniform around the world.

5. After his decision to transfer the claim, the adjudicator entertained an application by the claimant passenger for a review of that decision. And on that occasion, January 18 this year, the defendant airline did no more than suggest that the transfer was appropriate. The adjudicator, on that occasion, spoke of a transfer being conducive to justice being seen to be done.

6. Before us, the defendant airline, ably and reasonably represented by Mr Liang of counsel, has taken the position that it has no objection to the claim proceeding in the tribunal but that it takes the view that the claim would be more appropriately dealt with in the District Court.

7. Of course, we have to attach due weight to an exercise by the adjudicator of his discretion. But when a small claim is excluded from the very tribunal set up to deal with such claims, there has to be some good and sufficient reason for that course. And here we find no such reason.

8. Pressed as to what legal complication may arise in the case, Mr Liang said that possibly some difficulties may arise as to whether certain IATA resolutions ought to be imported into the contract by way of implication. That in itself ought not to be an overly complicated matter. The rules as to when you are to imply a term are well-established.

9. Accordingly, we think that the proper course is for us to remit the claim to the tribunal for it to be dealt with there - expeditiously, we hope and expect. That is the order which we make. The only thing left is the question of any order which we may make as to costs and expenses. And on that we have now to hear the parties.

[After hearing the parties, the Court ordered the defendant airline to pay the claimant passenger $5,600 expenses.]