Sunbeam Transport Ltd v Transport Control Board [1993] FJHC 75; Hbj0004j.1993s (3 September 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 4 OF 1993

IN THE MATTER OF TRAFFIC ACT CAP 176

AND

IN THE MATTER of an Application by SUNBEAM TRANSPORT LIMITED (Applicant) for a Judicial Review to quash the decision made by the Transport Control Board (First Respondent) on the 8th December, 1992 whereby it granted an Express Service to Vatukoula Express Service (Second Respondent) between Vatukoula/Suva and Suva/Vatukoula by amending its Road Service Licence No. 12/9/65 and the decision made by the First Respondent on the 8th December, 1992 whereby it refused the Applicant's Application to amend its Road Service Licence No. 12/9/5 wherein it sought to delete certain stage carriages on the route in question so as to operate Vatukoula/Suva and Suva/Vatukoula Express Service.

BETWEEN:

SUNBEAM TRANSPORT LIMITED
Applicant

AND

1. TRANSPORT CONTROL BOARD
First Respondent

2. VATUKOULA EXPRESS SERVICE
A PARTNERSHIP FIRM
- SURVIVING PARTNER (SUMER SINGH)
Second Respondent

Mr. S.M. Koya: for the Applicant
Mr. J. Semisi: for the First Respondent
Mr. G.P. Shankar: for the Second Respondent

Dates of Hearing: 12th, 31st March and 22nd April 1993
Date of Interlocutory
Judgment: 3rd September 1993

INTERLOCUTORY JUDGMENT

This is an opposed application for leave to judicially review a decision of the First Respondent dated 8th December 1992 granting an express service to the Second Respondent between Vatukoula/Suva and Suva/Vatukoula by amending its Road Service Licence No. 12/9/65 and refusing an application by the Applicant to amend its Road Service Licence No. 12/9/5 wherein it sought to delete certain stage carriages on the route in question so as to operate Vatukoula/Suva and Suva/Vatukoula express service.

Numerous grounds on which leave is sought have been given by the Applicant and although I shall state some of these, in the end the Applicant's basic contention is that the First Respondent acted so unreasonably in refusing the Applicant's application and granting a licence to the Second Respondent that the Court should grant leave to judicially review the First Respondent's decisions of the 8th of December 1992.

The main grounds on which leave is sought are:

(i) That the First Respondent acted unreasonably (in breach of Wednesbury principle) in granting the Second Respondent its application aforesaid.

(ii) That the First Respondent erred in law in not holding that the partnership Firm known as Vatukoula Express Service had been dissolved by operation of law on the death of one of its two partners Dharmendra Prasad which took place before the 27th of March 1992 and therefore it had no jurisdiction to deal with the Second Respondent's application.

(iii) That having regard to evidence and submissions made to the First Respondent on the hearings of the applications concerned the First Respondent ought to have held that the proposed service by the Second Respondent was not necessary or desirable in the public interest and that the needs of the relevant area were already met.

(iv) That the First Respondent ought to have held that the Second Respondent was not able to adequately provide the service in question.

(v) That because the First Respondent had on the 31st of January 1989 rejected an application by the Second Respondent for a similar licence as being "frivolous, scandalous and vexatious", it should not have entertained the present application by the Second Respondent which was made only approximately three (3) weeks after the refusal by the First Respondent of 31st January 1989.

(vi) (a) That the First Respondent erred in law in not holding that the Second Respondent in borrowing public service vehicles from other bus companies or firms established:

(1) That the Second Respondent did not own sufficient public service vehicles to operate the services in question.

(2) That such transactions were unlawful under the Traffic Act and that at the public hearing of the Second Respondent's Application, no evidence was led to establish that the Second Respondent had complied with the mandatory requirements of the Traffic Act.

(b) Neither the First Respondent nor its Chairman had any authority in law to dispense with such statutory requirement.

(vii) That the First Respondent erred in law and exercised its discretion wrongly in refusing the Applicant's Application No. 12/9/5 upon the grounds:

(a) That the amendment sought by the Applicant was "not an amendment but rather a new service".

(b) That it was not in the public interest to do so.

(c) That the deletion of the stages on the Applicant's route forming part of its Road Service Licence No. 12/9/5 "would seriously inconvenience the travelling public".

The First Respondent has not made any submissions to this Court, obviously and correctly taking a neutral stance and simply providing as an annexure to the affidavit filed by it in these proceedings a copy of the Board's record relating to the present matter. I shall refer to part of this record shortly.

In addition to seeking an order of Certiorari to quash the Board's decisions of the 8th of December 1992 the Applicant also seeks an Interlocutory Injunction against the First Respondent and the Second Respondent preventing them from implementing the decisions and operating the service permitted by the Board respectively and seeking an order for costs.

It is now well established in law that to be granted leave an Applicant must show it has an arguable case and that if leave is granted this may subsequently be withdrawn by the court after hearing full argument on the issues at a substantive hearing - Fleet Street Casuals' case (IRC v. National Federation of Self-Employed and Small Business Ltd. [1981] UKHL 2; (1981) 2 ALL E.R. 93).

The Applicant must also show that it has sufficient interest in the proceedings to give it initial standing before the Court.

Finally in an application for Certiorari it must normally make its application for leave within three months of the decision or decisions sought to be reviewed (High Court Rules, Order 53, Rule 4(2)).

In the present case the Applicant issued its Originating Summons on the 3rd of March 1993 and so was within the three months' period. I am also satisfied that the Applicant has sufficient interest to enable it to make the application. The question of whether or not the Applicant has shown an arguable case is however more difficult.

To answer this question requires a brief reference to the history of the present case and of the facts concerning it. In my judgment in Judicial Review No. 16 of 1991, State v. Transport Control Board and Vatukoula Express Service, Ex-parte: Sunbeam Transport Limited, delivered on 29th November 1991, I revoked leave to judicially review the decision of the First Respondent made on the 25th of March 1991 to re-list an application by the Second Respondent to amend its Road Service Licence No. 12/9/65 so as to incorporate therein Vatukoula/Suva and Suva/Vatukoula services daily via King's Road and subsequently refused a stay of execution on my judgment. On the 31st of January 1992 the Court of Appeal dismissed an appeal by the Applicant against my Stay Order.

Both Respondents annex to their affidavits in the present proceedings a copy of my judgment of the 29th of November 1991 and the First Respondent also exhibits a copy of the Order of the Court of Appeal of 31st January 1992. It was as a result of the Order of the Court of Appeal that the First Respondent resumed the hearing of the Second Respondent's application for its licence on 27th March 1992 and continued it on 17th November 1992, giving its decision on the 8th of December 1992.

The Second Respondent submits that because of the above facts the present application is res judicata and that the present application is an abuse of the Court process.

In my judgment this submission is correct. The facts before me are sufficiently similar to those which were before me in Judicial Review No. 16 of 1991 and in my view the Applicant here is attempting to litigate the same question over again.

On that ground alone I find myself able to reject the present application for leave to apply for Judicial Review.

However even if I am wrong in this view, in my judgment the application for leave must also be refused on the ground that the Applicant has not shown it has an arguable case. The Applicant in effect, it seems to me, is inviting this Court to substitute its own view of the facts of the Second Respondent's application for that of the Transport Control Board, which of course, this Court cannot do.

I have read the record of the proceedings before the Board and there is nothing to persuade me from that record that the Board took into account any irrelevant matters or failed to take into account any relevant matters.

Evidence was given to the Board of an alleged need for the Second Respondent's proposed service and witnesses who supported the Second Respondent's application were cross-examined by the late Mr. Koya and Mr. H..K. Nagin, both very experienced lawyers and familiar with the practice and procedure of the First Respondent.

It was submitted to the Board that the Second Respondent did not have sufficient buses to provide the new service but the Board rejected this submission having heard evidence to the contrary.

It was also submitted by the late Mr. Koya that the partnership firm known as Vatukoula Express Service had been dissolved by operation of law on the death of the co-partner Dharmendra Prasad before the 27th of March 1992. Mr. Sumer Singh the surviving partner in the firm gave evidence that he was continuing as proprietor of the business which clearly the Board accepted. This is mentioned at page 4 of the record of the proceedings on the 17th of November 1992. The number and type of buses intended to be used by the Second Respondent in its new service is also mentioned at pages 4 and 5 of the record for that day.

I am also not satisfied that the Board failed to apply its own guidelines in granting a licence to the Second Respondent or that it failed to give due weight to the matters referred to in Section 66 of the Traffic Act which it had to consider before granting the licence.

To conclude my reasons for holding that the Board has not on the face of the record in any way abused the discretion given it by the Act I would quote with approval the words of Lord Brightman in Puhlhofer v. Hillingdon London B.C. [1986] UKHL 1; (1986) 1 ALL E.R. 467 at 474 His Lordship said:

"But it is not in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the action of local authorities under the Act save in the exceptional case. The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity or unreasonable in the Wednesbury sense (see Associated Provincial Picture Houses Ltd v. Wednesbury Corp ([1947] [1947] EWCA Civ 1; 2 All ER 680, [1948] 1 KB 223), i.e. unreasonableness verging on an absurdity: see the speech of Lord Scarman in Nottinghamshire CC v Secretary of State for the Environment [1985] UKHL 8; [1986] 1 All ER 199 at 202[1985] UKHL 8; , [1986] 2 WLR 1 at 5. Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

I see no reason for holding that the First Respondent erred in the sense of the well-known principles applicable to matters of this kind in reaching its decision and I so hold. This in short is to say that I am not satisfied on the material that the Applicant has shown an arguable case for the granting of leave to judicially review the Board's decision complained of.

It follows from the foregoing that I am of the opinion also that no case has been made by the Applicant for the granting of an Injunction against the First Respondent preventing it from further dealing with this matter. The result is that the application is dismissed and I order the Applicant to pay the costs of both Respondents.

JOHN E. BYRNE
JUDGE

HBJ0004J.93S