State v Transport Control Board, Ex parte Tuidavuilevu Buses Ltd [1993] FJHC 101; Hbj0039d.1991s (29 October 1993)

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

JUDICIAL REVIEW NO. 39 OF 1991

BETWEEN:

STATE

v.

TRANSPORT CONTROL BOARD

EX-PARTE: TUI DAVUILEVU BUSES LIMITED

Mr. H.K. Nagin: For the Applicant
Mr. G.P. Shankar: For K.R. Latchan Brothers Limited

Date of Hearing: 4th June 1993
Date of Preliminary Ruling: 29th October 1993

PRELIMINARY RULING ON APPLICATION BY APPLICANT TO
SUBPOENA WITNESSES

On the 3rd of October 1991 I granted the Applicant leave to judicially review a decision of the Transport Control Board made on the 26th of August 1991 whereby it purported to refuse part of the Applicant's application for amendments of RSL 12/7/18 and to quash the decision. I also granted the Applicant leave to seek a declaration that the Transport Control Board acted in breach of the rules of natural justice in refusing to authorise the Applicant to run a 4.40 p.m. trip from Suva Bus Station to Nausori.

The case was fixed for hearing before Scott J. on the 25th of February 1993 but did not proceed that day because of an application issued on the 1st of October 1992 by K.R. Latchan Brothers Limited for orders:

(1) That subpoenas issued by the Applicant to adduce oral evidence be set aside.

(2) That the leave granted be rescinded.

(3) That the application in so far as it affects K.R. Latchan Brothers Limited be struck out.

(4) That the Applicant has no reasonable or probable cause to seek judicial review.

The application for the last-mentioned order of course is tied in with the application for order number (2).

When the matter came before Scott J. on the 25th of February counsel for K.R. Latchan Brothers Limited apparently indicated that he wished the Court to deal with the application for order number (1) before proceeding with the substantive question. It was therefore re-listed before Scott J. on the 3rd of June but by then His Lordship, having read the documents, concluded that as I had granted the Applicant leave in the first instance I should deal with all remaining issues.

On the 4th of June I stated that I would give my preliminary ruling on the application for order number (1) later and I now do so. There are on the Court file written submissions on behalf of counsel for the Applicant and K.R. Latchan Brothers Limited, dealing in the case of the Applicant only with the preliminary question of the right of the Applicant to issue subpoenas to witnesses and in the case of K.R. Latchan Brothers Limited dealing with both the preliminary question and in many respects with the substantive question. This ruling will be confined to the preliminary question of whether the subpoenas issued to some nine witnesses by the Applicant should be set aside.

To appreciate the legal question raised in the application by K.R. Latchan Brothers Limited it is necessary to first refer briefly to the matters alleged by the Applicant and not denied by the Transport Control Board which has filed an affidavit in response to the Applicant's affidavit on the substantive question.

The applicant contends that prior to May 1990 K.R. Latchan Brothers Limited (hereinafter referred to as "Latchan") operated a 4.40 p.m. service on RSL 12/9/21 from Suva on Route 91 but since May 1990 began operating this trip from Suva Bus Station on Route 98.

On the 2nd of May, 1990 the Applicant wrote to the First Respondent (the "Board") complaining about this shift in operations by Latchan and followed up this letter by two others dated 11th of July and 18th of August 1990.

The Board indicated that it would call Latchan before it in relation to the matter and on the 20th of September 1990 the Board wrote to Latchan requesting it to show cause to the Board under Section 68 of the Traffic Act Cap. 176. This Section gives the Board the right to revoke, vary or suspend any licence on the ground that any condition to which the licence was granted has not been complied with.

The hearing was adjourned to the 29th of October 1990 when the Board heard the Applicant's complaint but said that it could not do anything about it.

On the 17th of July 1990 the applicant applied for certain amendments to its RSL 12/7/18 and after various adjournments the application was listed for hearing on 26th of August 1991. On that date the Applicant's application for amendments to its licence was partly approved by the Board which however refused the Applicant's application for the 4.40 p.m. trip because of what is termed "the base problem in relation to Latchan".

The principal ground on which the Applicant seeks to quash the Board's decision is that Latchan has not legally obtained a licence for the 4.40 p.m. service from Suva Bus Station.

In its short Affidavit in Reply the Board admits most of the claims made by the Applicant but denies the last about the alleged illegality of Latchan's 4.40 p.m. service.

For its part K.R. Latchan Brothers Limited has sworn an affidavit denying the claim by the Applicant about the illegality of its 4.40 p.m. service. In an affidavit sworn on the 30th of October 1991 the Manager of Latchan states:-

(a) that its RSL was amended on or about 27th July 1977;

(b) its RSL was renewed in 1985;

(c) the buses were operating from Base 98 since 27th July 1977.

It says that its 4.40 p.m. service operated from Base 91 prior to 27th July 1977 but from that date it operated from Base 98 and appropriate endorsement was made to Latchan's Road Service Licence.

The reason why the Applicant has sought to subpoena various witnesses is that it wishes to adduce further evidence to establish certain facts which it says are crucial to the outcome of this judicial review and which appear to be in dispute as can be seen by the various affidavits.

FACTS

The particular facts alleged by the Applicant are:

(i) That prior to April 1990 Latchan's were not using the 4.40 p.m. trip from Suva to Nausori on Route 98.

(ii) Latchan was never given the licence to operate the 4.40 p.m. trip on Route 98 from Suva to Nausori.

(iii) The Board does not deny that Latchan is not entitled to operate the 4.40 p.m. service on Route 98.

(iv) In his affidavit dated 30th October 1991 on behalf of Latchan, Rohit Ram Latchan has sworn that his Company's Road Service Licence was amended in 1977 and renewed in 1985 and that the Company's buses have been operating from Base 98 since 1977.

(v) The Applicant claims that no such service was ever granted to K.R. Latchan Brothers Limited and they did not operate that service until 1990.

The Applicant thus contends that there is a serious dispute on the facts and this only can be resolved by oral evidence. Filing more affidavits will not resolve the question.

The Applicant says that these facts are crucial in determining whether the Board had acted ultra vires beyond its jurisdiction and in breach of the rules of natural justice in refusing to grant the Applicant the 4.40 p.m. trip from Suva/Nausori on Route 98.

The Applicant quotes cases which it says are authority for leave being given to it to subpoena the witnesses and I shall refer to some of these shortly. In opposition to the Applicant's claim Latchan submits that in judicial review proceedings evidence is generally given on affidavit because the Court examines the decision making process and that although cross-examination is now permitted on affidavits in judicial review proceedings this is the exception rather than the rule.

I agree with this contention. The question for me is whether or not as a matter of justice the Applicant should be given leave to subpoena the witnesses it proposes.

I shall now discuss some of the cases. This Court has at times permitted oral evidence to be given in applications for judicial review but only where, as far as I can ascertain to date, the parties agree that such evidence should be called to enable the Court to form a better view of the matters in issue. Oral evidence was given before Jayaratne J. in Judicial Review No. 35 of 1989 Board of Fire Commissioners of Suva v. Arbitration Tribunal when the Court allowed evidence of the alleged notification to the Respondent of the hearing date of the application and a denial by the Respondent that it had been given any notice.

In Judicial Review No. 36 of 1990 State v. Transport Control Board - Ex-parte: Pacific Transport Company Limited by consent I allowed oral evidence as to whether the Transport Control Board had made a decision granting a Road Service Licence before one of the members of the Board had left or whether the decision was made after he had left.

In Judicial Review No. 4 of 1991 State v. Public Service Commission - Ex-parte: Suruj Ram in a judgment given on the 20th of August 1993, without objection from the Respondent I allowed additional evidence to be given on behalf of the Applicant in an attempt to establish inconsistency by the Respondent in its dealings with the Applicant.

In Leiserach v. Schalit (1934) 2 K.B. the Court held that where on the hearing of a motion to set aside the award of Arbitrators it was found impossible otherwise to ascertain the material facts of the case the Court could, and would, accede to an application by a party for leave to call the Arbitrators as witnesses in regard to those facts.

The Court gave leave because it considered the facts were exceptional.

In O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at 282 Lord Diplock took the opportunity to emphasise that the older cases had to a considerable extent been superseded by the amendments to Order 53 made in 1977 in the English rules which have been adopted in Fiji.

Lord Diplock pointed out that pre-1977, even applications for leave to cross-examine were virtually unknown - let alone the grant of leave itself - save in very exceptional circumstances. He said Lord Goddard C.J. stated this in R. v. Stokesley (Yorks) Justices, Ex parte Bartram (1956) 1 ALL E.R. 563.

However Lord Diplock went on -

".......whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires."

In Khawaja v. Secretary of State [1982] UKHL 5; (1983) 1 ALL E.R. 765 at p.792 Lord Bridge remarked:

"..... the discretion to allow cross-examination should only be exercised when justice so demands."

On page 94 of Judicial Review: Law and Procedure by R.J.F. Gordon the author refers to fresh evidence at the hearing and I quote the passage in full because it bears directly on the question before me.

"The rules relating to the admission of fresh evidence appear to differ according to whether judicial review is being sought on the original application or by way of appeal (see below for the rules relating to appeals).

On the substantive hearing the court will admit new evidence in the following circumstances:

1. to show the nature of the material before the decision-making body;

2. to determine a fact upon which jurisdiction depended, or whether essential procedural requirements were observed;

3. to prove alleged misconduct, as - for example - bias on the part of the decision-maker or fraud or perjury by a party."

I have read all the cases cited to me by counsel for the parties and have come to the conclusion that in this case the interests of justice, which are the paramount consideration in any case, require that the Applicant should be given leave to subpoena the various witnesses it proposes to call on the issues mentioned by it.

In my judgment based on the Applicant's allegations, such witnesses may be able to establish (1) and (2) of Mr. Gordon's criteria for the tendering of such evidence and that it would therefore be unfair to the Applicant to refuse permission to call such witnesses.

This is not to be taken as a precedent for all future cases but simply because it seems to me desirable on the present material to do so in this case. I therefore order that the Applicant have leave to subpoena the witnesses it proposes and in respect of whom subpoenas have previously been issued.

JOHN E. BYRNE
J U D G E

HBJ0039D.91S