In re Nadi General Transport [1993] FJHC 126; Hbj0014d.1993s (24 June 1993)

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

JUDICIAL REVIEW NO. 14 OF 1993

IN THE MATTER of an Application by NADI GENERAL TRANSPORT,
a firm, for LEAVE to apply for a Judicial Review
under Order 53 of the High Court Rules, 1988

AND

IN THE MATTER of a decision of the TRANSPORT CONTROL BOARD
made on the 26th May, 1993 whereby it purported to approve a temporary application
for a Road Service Licence from MOTI CHANDRA & COMPANY LIMITED

Mr. H. Lateef: For the Applicant
Mr. V. Mishra o/i: For the Respondent, Moti Chandra &
Govind & Co., Ba Company Limited

Date of Hearing: 24th June 1993
Date of Interlocutory
Judgment: 24th June 1993

INTERLOCUTORY JUDGMENT

The Applicant and the Second Respondent Moti Chandra & Company Limited are passenger bus operators in the Lautoka, Nadi area.

For some time past the Applicant which is a firm has been operating a trip at 5.45 p.m. from Lautoka Bus Stand to Nagado. For some time past also the Second Respondent (which I shall hereinafter call "Moti Chandra") has been operating a service from Lautoka Bus Stand to Ravi departing at 5.40 p.m. which the Applicant claims is seriously affecting the Applicant's 5.45 p.m. service.

On the 7th of October 1992 Moti Chandra applied to the Transport Control Board to run two additional trips in the Lautoka area, the first of which, from Vuda Point to Lautoka Bus Stand departing at 7.05 a.m. apparently daily, does not concern me here, but the second departing Lautoka Bus Station at 5.25 p.m. to Saweni Beach which does.

In its application a copy of which is before me the reason given for the proposed new trip is "Public Demand".

On the 3rd of June 1993 on ex-parte application made to me by the Applicant I ordered that Moti Chandra be restrained from operating and continuing to operate its 5.35 p.m. service from Lautoka Bus Stand to Saweni Beach until further order and granted an injunction to this effect. Moti Chandra by Summons issued on the 18th of June now applies to have that injunction dissolved.

Here it is necessary to explain the 5.35 p.m. service which I have just mentioned. It appears that this service came into operation after the First Respondent, the Transport Control Board, on 31st of March 1993 had granted Moti Chandra a Road Service Licence to operate the proposed 5.25 p.m. service for which it had applied last October.

It appears that another bus company M.R. Khan Brothers Transport filed an objection to the proposed 5.25 p.m. service by Moti Chandra which was apparently forwarded to the First Respondent (hereinafter called "the Board") by facsimile. It also appears, and is alleged by the Applicant, that this objection was by error omitted from the agenda of the Board's meeting on 31st March 1993 and since the application appeared to be unopposed it was approved by the Board at that meeting.

It also appears that M.R. Khan Brothers Transport through its solicitors Messrs Sherani & Co. applied to this Court for a Judicial Review (No. 8 of 1993) of that decision.

It is now necessary to refer to the affidavits which have been filed by the Applicant and Moti Chandra in the proceedings to date.

On the 26th of May 1993 the matter of Moti Chandra's 5.45 p.m. service was raised before the Board at its meeting on the 26th of May 1993 even though it was not listed in the Board's agenda for that meeting.

It is alleged by the Applicant that on that date Moti Chandra had sought to amend its departure time from Lautoka Bus Stand from 5.25 p.m. to 5.35 p.m. and the Board had informed Moti Chandra's solicitors that if it wished to do this it would have to re-advertise its application so that the public could file objections if necessary.

The Applicant then alleges that the solicitors for Moti Chandra stated that no operator would be affected if the departure time was changed to 5.35 p.m. and that the Board, after consulting its Western Transport Office, granted a temporary amendment to Moti Chandra's Road Service Licence enabling Moti Chandra to depart Lautoka at 5.35 p.m.

The Applicant complains that this 5.35 p.m. service coupled with Moti Chandra's existing 5.40 p.m. service seriously affects the Applicant's loadings on its 5.45 p.m. service which covers seven kilometres on the Queen's Road traversed by Moti Chandra's two services (those at 5.35 p.m. and 5.40 p.m.) and the Applicant's 5.45 p.m. service.

The Applicant complains that it was not given any opportunity to be heard before the decision of the Board changing Moti Chandra's 5.25 p.m. service to 5.35 p.m. was made as the Applicant did not have any matters before the Board on the 26th of May 1993. The Applicant seeks Judicial Review of the decision of the Board of the 26th of May in the form of an Order of Certiorari to quash the decision and declare that the Board abused its discretion under the Traffic Act or exceeded its jurisdiction in not giving the Applicant an opportunity to be heard. I am not concerned here with the application for leave for Judicial Review.

In its reply Moti Chandra filed two affidavits, the first by Girish Chandra the Managing Director of Moti Chandra & Company Limited and the second by Anand Latchman a Bank Officer of Saweni, Lautoka.

Girish Chandra first makes a number of technical objections to the title of the Applicant and the contents of my Order of the 3rd of June and to the form of the affidavit filed on behalf of the Applicant. It is conceded by the Applicant that in the title to the proceedings it should be described as a firm and now I give the Applicant leave to amend its title appearing on the Court documents by adding the words "a firm" after the words "Nadi General Transport". It is then alleged that the Applicant's affidavit is defective in that the jurat does not contain the additional and allegedly important words "before me a Commissioner for Oaths". I consider this latter objection frivolous and I disregard it; de minimis non-curat lex.

Coming to the substance of the present matter Moti Chandra alleges in its affidavit that the Board granted it its 5.35 p.m. service because there was a need for such a service and not, as alleged by the Applicant, because the application was unopposed.

It admits that M.R. Khan Brothers Transport instituted Judicial Review Action No. 8 of 1993 against Moti Chandra but states that the matters in dispute between M.R. Khan Brothers Transport and Moti Chandra were settled and both parties therefore agreed to raise the matter and inform the Board at its meeting on the 26th of May.

It alleges that the Board was informed that Judicial Review No. 8 of 1993 had been settled and this was the reason why the Board gave Moti Chandra permission to amend its departure time from 5.25 p.m. to 5.35 p.m.

I state here that I am not satisfied about the allegations of settlement made by Moti Chandra. I am informed by my Personal Assistant that Judicial Review No. 8 has been re-listed before the Chief Registrar of this Court on the 7th of July next and that it appears from this that the matter has not yet been settled.

Moti Chandra then claim that the Applicant has not made full and frank disclosure of relevant matters to the Court and that I should accordingly dissolve the Injunction of the 3rd of June.

The principal matter allegedly not disclosed is that the Applicant should have informed the Court that Moti Chandra was given a temporary licence under Section 74 of the Traffic Act and therefore the Board was not obliged to hear any opposing party.

I shall now set out Section 74(1) and (2) of the Traffic Act 1965 Cap.152 which have an important bearing on the question now before me but first must mention Section 65 of the Act.

Under Section 65 where an application is made for a full or permanent Road Service Licence, that is a licence for longer than three months, Section 65 of the Act provides that the Board shall publish notice of the application in a newspaper circulating in Fiji giving details of the application and inviting written representations for and against the application within the following ten days. By sub-section (3) of Section 65 if any written representations are then received the Board shall by public notice specify a date for the hearing of any public evidence for and against the application and, by Sub-section (4) after receiving any evidence and representations, grant or refuse the application.

"74. (1) 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 a new road service licence for such service or may amend such existing road service licence without complying with the provisions of section 65 of this Ordinance.

(2) A new road service licence issued under this section shall expire three months after the date of issue."

The important words in Section 74 for the purposes of the present matter are "public interest", "immediate establishment" and "immediate amendment of an existing Road Service Licence".

Moti Chandra argues that it satisfied all these requirements and that for this reason the Board granted its temporary licence.

The affidavit filed to support Moti Chandra, that of Mr. Latchman, states that he and at least fifty other residents from the area of Saweni Beach requested Moti Chandra to start a regular bus service in their area and that there is a need for such a service. He states that if the service is now stopped it will create much inconvenience to the travelling public of the Saweni Beach area.

I have received helpful submissions by counsel for the parties. Mr. Mishra for Moti Chandra submits that it is clear the Board granted his client a temporary licence under Section 74 of the Traffic Act. He submits that I should dissolve the Injunction of the 3rd of June because public rights are affected as claimed by Mr. Anand Latchman. He submits that the licence granted to Moti Chandra is only for three months and the Applicant must obtain a hearing eventually when Moti Chandra seeks to have this licence made permanent because then the Board must notify all interested parties under Section 65.

He contends that even if I was satisfied that the Applicant has shown a prima facie case for an injunction it has not shown that it has suffered irreparable damage. He points out that his client already has a 5.40 p.m. trip and asks how it could be alleged that shifting its time from 5.25 to 5.35 p.m. could affect the Applicant? He submits that if potential passengers miss the 5.25 p.m. then they could catch his client's 5.40 p.m. service and that any damage suffered by the Applicant must be minimal. He submits that the balance of convenience must rest with his client in that the public interest is in favour of the 5.35 p.m. service and that accordingly the Injunction should be dissolved.

In reply, Mr. Lateef for the Applicant disputes the claim that there is any public interest involved in this matter. He asks me to disregard the affidavit of Anand Latchman as being irrelevant to the present case. He points out that the reason why Moti Chandra sought its 5.25 p.m. service was public demand and that its application was lodged on the 7th of October 1992 but was not heard by the Board until the 31st of March 1993 almost five months later. He emphasised the words "public interest" and "immediate establishment" in Section 74 and says the delay refutes any notion of public interest. I consider there is much force in this submission.

Unfortunately to date the Transport Control Board has not yet filed any affidavit as to the Board's position in this matter and to that extent I consider my judicial hands are somewhat tied in deciding the present application. However it seems to me very arguable on the material that if the Board considered Moti Chandra's application for its 5.35 p.m. service to be because of public demand, it would not have let the application for the 5.25 p.m. service lie unheard for nearly five months. It certainly seems arguable that the Board did not consider there was any need for the immediate establishment of a new service and in the Orders I propose to make at the end of this judgment I shall direct the Board to file an affidavit as to the facts of this matter within its knowledge and to appear before me in the near future.

If this tentative view subsequently proves to be correct then it follows that there was no need for the immediate amendment of Moti Chandra's temporary licence for its 5.25 p.m. service.

Over the last twenty years the Courts in England, Australia and New Zealand, to whose decisions the Courts of Fiji refer most frequently, have shown an increasing tendency to interfere and require a right to be heard to be given to any person whose livelihood or interest has been adversely affected by the actions of Ministers or Administrative Tribunals denying a right to be heard. I shall not refer to any of those decisions by name but they are recorded in the books and are referred to in the judgments of this Court and the Court of Appeal over those last twenty years. I should add that the decisions of the Courts of Canada which are now being quoted in Fiji more than in the past reveal a similar trend.

In those circumstances if the Applicant is correct in arguing that Section 74 of the Traffic Act does not apply to the present case then I can see good reason for maintaining the Injunction at least for the time being. There also appears to me to be a prima facie case in granting the Applicant leave to judicially review the decision complained of but I shall not give any ruling on this until I have received an affidavit from the Board. To do so at this stage would seem to me to be premature. As to the question of damage there are reported decisions of the Courts here that in the case of bus companies damages are frequently very hard to assess.

Applying the law as stated in American Cyanamid Co. v. Ethicon Limited [1975] UKHL 1; (1975) A.C. 396 the material presently before me satisfies me that there is a serious question to be tried and that at the moment at least the balance of convenience warrants the Injunction being continued. I am thus not satisfied on this material that damages would be an adequate remedy for the Applicant.

I therefore refuse the application to dissolve the Injunction and order that the costs of it be in the cause. I further order:

(1) that the First Respondent Transport Control Board file and serve an affidavit as to the facts on the present parties by the 1st of July 1993;

(2) that the Board appear before me at 9.00 a.m. on that day together with the other parties; and

(3) that the Injunction of the 3rd of June 1993 to be continued until the 2nd of July 1993.

JOHN E. BYRNE
JUDGE

HBJ0014D.93S