State v Transport Control Board, Ex parte Tebara Transport Ltd [1992] FJHC 63; Hbj0015d.1992s (7 December 1992)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 15 OF 1992

BETWEEN:

STATE

v.

TRANSPORT CONTROL BOARD

EX-PARTE: TEBARA TRANSPORT LIMITED
AND WAINIBOKASI TRANSPORT COMPANY

Mr. H.K. Nagin for the Applicant
Miss G. Phillips for the Respondent
Mr. G.P. Lala for Noco Development Company Limited
Mr. S.P. Sharma for K.R. Latchans Limited

Dates of Hearing: 2nd and 3rd December 1992
Date of Ruling: 7th December 1992

RULING

The Applicants are bus operators and operate as follows:

(a) The First Applicant operates in the Suva/Nausori/ Rewa Delta area.

(b) The Second Applicant operates in the Nausori/Rewa Delta area.

On the 5th of February, 1992 NOCO DEVELOPMENT COMPANY LIMITED (hereinafter referred to as 'Noco') applied to the Transport Control Board for a Road Service Licence 12/7/1 (hereinafter called R.S.L. 12/7/1) to operate a bus service between Noco and Suva. NOCO DEVELOPMENT COMPANY is a newly registered company and has not previously operated any bus service.

The Applicants objected to the said Application by Noco and in accordance with the provisions of the Traffic Act also lodged competing applications. Other operators namely Island Buses Limited and K.R. Latchans Limited also lodged competing applications.

The application by Noco of R.S.L. 12/7/1 was designed to go into an area that was previously served by the Applicants and K.R. Latchan Brothers Limited. The Applicants thus claim that Noco's application was an attempt to encroach into the Applicants' area of operation. The route in the Rewa Delta area is being developed at present and the extension to Noco is an extension of about two kilometres from the area up to where the Applicants are operating.

Noco's application and the competing applications of the Applicants first came before the Respondent on the 24th of August 1992 for hearing. The Transport Control Board adjourned all the applications to its next meeting as a competing application by Island Buses Limited was omitted from its agenda for the meeting of the 24th of August 1992. On the 29th of September, 1992, the Transport Control Board held another meeting in respect of these applications and further adjourned the applications to the 28th of October 1992. The Transport Control Board also allowed Noco to advertise further in the newspapers of the route it proposed to follow. On the 29th of October, 1992 Noco advertised in the Fiji Times the route it proposed to follow. On the 20th of October, 1992 Noco caused another advertisement to be placed in the same newspaper regarding its time-table.

The next meeting of the Transport Control Board was on the 4th of November 1992 and the agenda included Noco's application and all the competing applications. At this meeting on the 4th of November 1992 the Transport Control Board read only Noco's application and granted to it a Provisional Licence subject to its production of buses to serve the route. The Transport Control Board adjourned all the competing applications to the 7th of December 1992 and did not hear them at the same time as Noco's application.

According to an affidavit sworn by the Applicant on the 23rd of November 1992 and filed in this Court on the 24th of November the Board on the hearing of Noco's application adopted an unusual procedure of hearing the objectors to Noco's application first and then allowing the Applicant Noco to make submissions in reply. According to the affidavit, the normal procedure is that an Applicant presents his case first and then any objectors are heard and finally a chance to reply is given to an Applicant.

These allegations made on behalf of the Applicants are so far not denied either by the Respondent or by Noco or K.R. Latchans Limited.

On the 23rd of November 1992 the Applicant issued an Originating Notice of Motion for leave to apply for a Judicial Review of the Respondent's decision of the 4th of November, 1992, a Stay of all Proceedings and an Interim Injunction.

The application was then made inter partes and affidavits in opposition have been sworn and filed on behalf of the Respondent, Noco Development Company Limited and K.R. Latchans Limited.

The parties agreed to have the applications due to be heard by the Transport Control Board today adjourned until tomorrow to enable me to give this ruling today. I was told it was of great urgency.

On the 3rd of December when the hearing began before me the parties stated that leave for the application to apply for Judicial Review was not opposed and I therefore made an order granting such leave. I then heard argument by all the parties on the present Notice of Motion.

In the statement filed pursuant to Order 53, Rule 3(2) of the High Court Rules (1988) the Applicants list four reasons why they say that Noco's application for a licence should have been summarily dismissed by the Respondent, namely:

(i) Noco did not comply with any matters contained in paragraph 1(a), (b) and (c) of the Transport Control Board's guidelines which were approved by the Board on the 29th of August 1989 and a copy of which is annexure 'D' to the Applicant's first affidavit now before me. Guideline 1(a) deals with the number of buses required by any Applicant for a licence, a history of its experience in the bus industry, its financial stability, details of the time-table of other operators operating on the proposed route, if possible consents of other operators to the proposed applications and load checks on the existing route and other operators at times stated in the guideline.

Guideline 1(b) is not directly relevant here but guideline 1(c) is. This guideline reads:

"Application for new route will not be granted unless it is absolutely necessary or desirable in the public interest with the minimum effect on other operators. Whenever possible the Board will try to extend the existing trip to cater for such needs rather than give new trip altogether."

In addition to the four grounds of the Applicants' opposition to the Board's decision, counsel for the Applicants before me made what he called his main submission, that in breach of the Board's guideline 1(c) and in clear contravention of the decision of the Court of Appeal in Civil Appeal Nos. 45, 51, 57 and 61 of 1983 K.R. Latchan Brothers Limited, Vatukoula Express Service v. Sunbeam Transport Limited, Pacific Transport Limited and Transport Control Board, the Board erred in not hearing all four applications for a licence for the route in question at the same time. Counsel submitted that in so doing the Respondent acted unreasonably and unfairly towards the Applicants and ignored the Court of Appeal's remarks at page 13 of its decision in K.R. Latchan Brothers Limited and Vatukoula Express Service (supra): "No application, at a consolidated hearing like this, could be considered in isolation." The Applicants contend that the Board should have adopted that course in the present case.

In reply both the Respondent and NOCO DEVELOPMENT COMPANY LIMITED AND K.R. LATCHANS LIMITED tendered evidence purporting to show that the Board's decision of the 4th of November was reasonable.

Annexed to the affidavit filed on behalf of the Respondent is a list of over 210 signatures purporting to be by interested members of the public residing in the Noco District and villages therein in support of Noco's application. This list and other letters to the Board by various interested members of the public in the area were before the Board when it granted the Provisional Licence to Noco. Also before the Board were two service check lists taken by an inspector of the Board on the 6th and 9th of October 1992 showing the number of passengers carried by the Applicants and K.R. Latchans Limited on those days.

The Respondent, supported by both Noco and K.R. Latchans Limited, submits that these check lists show that the Applicants were operating on the proposed route illegally and that they have not been frank with this Court. They also claim that there was sufficient material before the Board to warrant it granting a Provisional Licence to Noco.

It was submitted to me by the Applicants that the Respondent granted the licence under Section 74 of the Traffic Act whereas in fact the application by Noco and the applications of the Applicants, K.R. Latchans Limited and Island Buses Limited were all made under Section 65.

Section 65 provides that on receipt of an application for a Road Service Licence or for the renewal, transfer or amendment of a Road Service Licence the Board shall then follow the procedure set out in Section 65 which, summarised, is to cause newspaper advertisements to be published with details of the application and inviting representations in writing for or against the application.

Section 74 by contrast provides for temporary licences and states that where the Board considers that the public interest necessitates the immediate establishment of a new service or the immediate amendment of an existing Road Service Licence the Board may issue such new licence or amend any existing licence without complying with the provisions of Section 65.

Any such licence issued shall expire three months after the date of issue. In the present case Noco's licence expires on the 4th of February 1993.

The Respondent, supported by both Noco and K.R. Latchans Limited, contends that the Board's decision of the 4th of November 1992 to grant Noco a temporary licence involved a licence for which the Applicants had not applied. It is said that the Applicants were objectors only and their status was only of an objector as it still is. It was therefore submitted that the Applicants either before the Board on the 4th of November or now have no rights so far as this application is concerned.

Against this the Applicants submit that it is wrong for the Respondent and its present supporters to so categorise the Applicants. Counsel for the Applicants points out, correctly in my view, that Sections 65, 66 and Section 74 of the Traffic Act refer not only to applications for Road Service Licences but also to amendment to an existing licence. It is therefore submitted that the Applicants had every right to expect that the Board would treat them and all other applications for the licence in question in the same way on the 4th of November and that it failed to do so.

The recently retired Master of the Rolls in England, Lord Donaldson, remarked approximately two years ago that instead of the time-honoured expression "the balance of convenience" it would be better to say that in considering whether or not to grant an injunction a Court should consider where the balance of the risk of injustice lies.

In considering either of these questions of where the balance of convenience or where the risk of injustice probably lies I am aware that Noco is a Fijian owned company and I am also aware that there appears to be a need for a public transport service in the area concerned.

I am also aware however that both the Constitution of the 25th of July 1990 and for centuries before that, the common law, provide that in the eyes of the law all persons are equal.

In my judgment the Board on the 4th of November 1992 appears to have ignored this basic principle of our law and given preference without sufficient cause to one Applicant for R.S.L. 12/7/1 to the detriment of the others. I am reminded of the clear words of the Court of Appeal in K.R. Latchans Limited and Vatukoula Express Service (supra) and form a clear opinion that it was wrong for the Respondent to have considered Noco's application for a licence in isolation. I consider that in so doing it acted irregularly and appears to have taken into account irrelevant matters.

As to the claim by the Respondent that the Applicants operated illegally on the proposed route, and did not disclose this to the Court, the only evidence is that this occurred on two occasions and that K.R. Latchans Limited, which now criticises the Applicants, was also guilty of the same misconduct. As against this possible lack of frankness by the Applicants there has to be weighed what I consider the greater apparent misconduct by the Respondent in not hearing all applications at the same time and in so doing, appearing to demonstrate an unjustified preference for one Applicant at the expense of the others.

In the interest of justice I consider that it would be unfair to allow Noco to continue to operate licence granted by the Board until this Court has heard and determined the substantive application for Judicial Review.

I appreciate that the guidelines of the Board are simply that but I consider they are very useful and that whenever possible the Board should endeavour to follow them. Prima facie in my view on the present material, the Board failed to pay due regard to guideline 1(c) particularly.

I therefore order that the decision of the Respondent on the 4th of November 1992 whereby it purported to grant to NOCO DEVELOPMENT COMPANY LIMITED Road Service Licence 12/7/1 and all proceedings thereunder including the hearing of all competing applications be stayed until the hearing and determination of this action.

I also order that NOCO DEVELOPMENT COMPANY LIMITED by itself, its servants or agents be restrained from operating or in any manner whatsoever dealing with Road Service Licence 12/7/1 until the hearing and determination of this action.

It would seem that the matter is of some urgency and I therefore direct that it be placed in the Chief Registrar's list on 9th December, 1992 so that a date may be fixed for the hearing of the substantive application.

JOHN E. BYRNE
J U D G E

HBJ0015D.92S