R v Transport Control Board, ex parte City Transport Ltd [1993] FJHC 89; Hbj0005j.1992s (1 October 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 5 OF 1992

R.

v.

TRANSPORT CONTROL BOARD

EX-PARTE CITY TRANSPORT LIMITED

Mr. G.P. Shankar for the Applicant
Mr. J. Howard for the Transport Control Board

JUDGMENT

On the 8th of November 1988 the Transport Control Board ('TCB') granted the opposed application of City Transport Limited ('City') for a circular express service on Viti Levu via Queens and Kings Roads. The Road Service Licence ('RSL') No: 12/9/62 issued to City is valid for 10 years up till the 8th of December 1998 and is undoubtedly a valuable asset.

Almost immediately however and through early 1989 the TCB began receiving written complaints against City from other bus companies operating along the route alleging numerous breaches of its RSL including operating an illegal trip, failing to follow or adhere to its approved timetable, illegally loading and disembarking passengers at unscheduled stops and touting of passengers by its employees.

Some of the complaints were investigated by Road Transport Officials and reports were submitted to the TCB with a recurring recommendation that the TCB review its decision granting the RSL to City.

The decision granting the RSL also became the subject matter of Court proceedings in Judicial Review No. 7 of 1989 (JR 7/89) issued on the 3rd of February 1989, in which an 'interim injunction' was granted on 6th February 1989 restraining City from operating or continuing to operate the express service granted under the RSL. In this latter regard although an application by City to dissolve the injunction was heard by Palmer J. on the 25th of April 1989 no decision has yet been delivered.

For the sake of completeness it should be pointed out that although the application in JR 7/89 was recently dismissed, the injunction granted against City was not formally dissolved because in the interim the TCB revoked the RSL thereby rendering the injunction otiose.

Returning then to the various complaints and reports, these were first placed before the TCB at its meeting on the 17th of October 1989 and was adjourned to be heard on the 31st of October 1989.

The relevant TCB minutes of the hearing on the 31st of October 1989 reads as follows:

"13/8 - CITY TRANSPORT LIMITED

(Refers to pages 27-34 of 17.10.89 precis)

Mr. Maan Singh for City.

Mr. G.P. Shankar for Akbar Buses said that the complaint was as on the precis.

Mr. Maharaj for Pacific said that their complaints were as on precis.

Mr. Nagin for Sunbeam said that their complaints were as on precis and also showed the Board copies of tickets issued by City Transport. He stressed illegally unauthorised stop.

Mr. Aiyub Khan for Valley Buses started that their complaints remained as on precis.

Mr. Khan for Kadar Buksh also stated that their complaints were as on precis.

Mr. Maan Singh for his company informed that the Round the Island Express licence was granted in November last year. An amendment was applied for last year to alter the departure time from Lautoka to date this has not been heard due to a Judicial Review filed by K.R. Latchan. As far as complaints were concerned, report made by Transport Officers, Mr. J.K. Oba suggested to the Board that the 5 hrs 10 mins was not practicable. An injunction on 6.2.69 caused stoppages of the service and to date it was not dissolved. The Chairman asked whether the injunction was likely to be resolved.

Mr. M. Singh denied that they had illegal stops. He felt it was wrong to hear the complaints when he wanted to rectify the timetable. He was not given a chance. The Chairman called Mr. Nagin to speak on the issue of the tickets.

Mr. Nagin informed that the tickets speak for themselves.

RESOLUTION: Decision reserved."

Later that same day the TCB resolved:

"That the Road Service Licence No: 12/9/62 issued to City Transport Limited a Daily Express Service - Suva/Lautoka via Kings Road and Queens Road is REVOKED with effect from the date of notification of decision for wilful breach of conditions i.e. unauthorised stopping and breach of times changed."

At its meeting on the 14th of November 1989 the TCB announced its earlier decision revoking amongst others, RSL 12/9/62 granted to City with immediate effect.

It is not entirely clear when the decision of the TCB was notified to City but in any event on the 1st of March 1990 City lodged an ex-parte application seeking leave to apply for judicial review of the TCB's decision revoking RSL 12/9/62.

It is immediately obvious that in so far as the relief sought was an order for certiorari, the application was brought after the time limit provided for in Order 53 r.4(2) of the High Court Rules, namely, "... three months after the date of the proceeding" had expired.

Nevertheless, leave to apply for judicial review was granted and although there does not appear to have been any application for an extension of time nor any specific order extending the time, Counsel for the TCB concedes:

"In granting leave the Court also gave the applicant leave to apply out of time and extended the time for making the application."

Be that as it may Order 53 r.4 (1)(b) provides (where application is made after the time limit has expired):

"... the Court may refuse to grant any relief sought on the application if in the opinion of the Court, the granting of the relief sought would be (amongst other consequences) detrimental to good administration."

Nothing further need be said about that matter, however, before dealing with the substantive application for judicial review there is an existing motion seeking the summary dismissal of the present application on the dual grounds of 'want of prosecution' and 'failure to comply with the Court's order' when granting leave that copies of the Motion and supporting affidavit be served on the respondent (TCB) within 7 days.

It is necessary to briefly chronicle the important dates and events that occurred since leave was granted on the 16th of March 90. These are:

(1) On 29th March 90 the substantive motion, affidavit and statement was filed in Court.

(2) On 6th April 90 the matter was adjourned. The day's head sheet records:

"(Action is dead -? licence)."

(3) On 20th April 90 the matter was adjourned at the request of City's Counsel "to see that the papers are in order."

(4) On 3rd May 90 a "Summons for Directions" was filed by the applicant.

(5) On 4th and 16th May 90 the matter was adjourned.

(6) On 23rd May 90 in the absence of Counsel for the applicant the action was struck out by the Chief Registrar.

(7) On 2nd July 90 the applicant refiled its "Summons for Directions".

Thereafter between the 10th of October 1990 and 27th February 1991 the matter was successively adjourned without much happening.

(8) On 22nd May '91 again in the absence of Counsel for the applicant the matter was adjourned sine die by the Chief Registrar.

(9) On 24th June '91 the TCB filed its present motion for summary dismissal.

(10) On 12th July '91 the TCB's application was adjourned to the Chief Registrar to fix a date for argument.

(11) On 7th August '91 Chief Registrar listed the TCB's motion for argument "on 29/8/91".

(12) On 29th August '91 written submission were ordered with a consent of the parties and these were ultimately completed on the 30th of October '91.

It is clear from the various Court minutes that from as early as 6th April '90, the TCB's present solicitors had always always appeared for it albeit that a formal notice was not filed until the 17th of April '90. Furthermore although Counsel for the TCB complains of non-service of the, substantive motion, his submissions makes specific reference to the affidavit verifying the facts which was filed in support of the application and there is no doubt in my mind that the TCB was aware of the present proceedings and the specific nature of the complaints made against it.

As for the question of 'delay' there can be no doubt that the present application took an inordinately long time to be heard after its inception. Nevertheless, the matter is somewhat complicated by the filing of 2 "Summons for Directions" which, if I may say so, is not entirely appropriate in proceedings by way of Judicial Review brought under Order 53 and perhaps not surprisingly neither has been heard or granted.

The other relevant factor is the existence of a decision of Byrne J. in Judicial Review No. 30 of 1989 (JR 30/89) delivered on the 17th of January '91 quashing the decision of the TCB revoking a road service licence.

That decision is heavily relied upon by Counsel for the applicant because, it is claimed, of the numerous indistinguishable similarities between it and the present application.

In Counsel's submissions:

"The Court had in an earlier case of Reliance Transport Co. (Application No.30 of 1989) allowed the application and quashed the decision of the Board to revoke the Road Service Licence. The Reliance case as well as City Transport and 3 others were heard on the same day and same irregular procedure was followed. We would have expected the Board to concede this application in view of the Court's decision.

The only difference between Reliance and City is that in the case of Reliance several breaches were alleged whereas in the case of City one act only or at the most just a handful but like Reliance the Board did not have any evidence or proof against City Transport."

It is noteworthy that Counsel for the applicant was also Counsel for Reliance before the TCB and in the Court proceedings before Byrne J. and therefore would be knowledgeable about the similarities in the cases.

Furthermore so far as can be ascertained the grounds of complaint taken before Bryne J. (of which there were 12) included or were similar to these taken in the present application (of which there are 10) listed in the STATEMENT filed pursuant to Order 53 r.3(2)(a) of the High Court Rules.

In particular, I note that in JR 30/89 complaint was made that the TCB did not have any evidence of any probative value before it to prove any "wilful" act or omission on the part of the applicant '(cf: grounds 3(a) to (d)); secondly, the applicant complains he was not given an opportunity of being heard in mitigation of penalty after the TCB found the complaint proved or established (cf: ground 3(e)); and lastly, that the TCB failed to give any reasons for its decision (cf: ground 3(f)). (See: Pages 7 to 10 of the judgment of Byrne J.)

In the circumstances mindful that the decision being impugned is a revocation of a road service licence, the grant of which has been already upheld by the Court in JR 7/89, and mindful that an interim injunction remains extant, I am satisfied that any prejudice that may have been caused to the TCB (by the delay) is nominal.

Accordingly I dismiss the motion for summary dismissal and turn to the substantive application in which complaint is made against the exercise by the TCB of its powers under Section 68 of the Traffic Act.

The relevant provisions of Section 68 of the Traffic Act Cap. 176 provides:

"(1) A road service licence may be revoked, varied or suspended by the Board on the ground that any condition to which the licence was granted has not been complied with:

Provided that the Board shall not revoke, vary or suspend such a licence unless, owing to the frequency of the breach of such conditions or to the breach having been committed wilfully or to the danger to the public involved in the breach, the Board is satisfied that the licence should be revoked, varied or suspended.

(3) The Board shall, before revoking, varying or suspending any road service licence, give the licensee a due opportunity to be heard.

(4) (a) Any licensee aggrieved by the decision of the Board to revoke or suspend his road service licence may, not later than 14 days after the date of such decision appeal to the Minister whose decision shall be final.

(b) An appeal under the provisions of this subsection shall be made in writing, addressed to the person charged by the Minister with responsibility in relation to traffic ..."

Clearly the section gives the TCB the necessary power to act upon a breach of a RSL having regard either to its frequency, or the wilfulness of the breach, or any danger to the public arising therefrom.

Furthermore the licensee is given a statutory right "to be heard" before the TCB acts against his RSL and, where action has been taken against a RSL, the "aggrieved" party has a statutory right of appeal against the TCB's decision to the Minister whose decision thereon "shall be final".

This brings me to a point which was not raised or canvassed in the TCB's submissions to the Court, and that is whether the existence of a statutory right of appeal precludes proceedings by way of judicial review by a licensee aggrieved by a decision taken by the TCB in exercise of its powers under the above section.

It is only necessary to refer to the general rule or principle affirmed by Lord Scarman in R. v. Inland Revenue Commissioner ex-parte Preston ([1984] UKHL 5; 1985) A.C. 835 when he said at p.852:

"My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge; it is not an appeal. Where Parliament has provided by statute appeal procedure ... it will only be very rarely that the Courts will allow the collateral process of judicial review to be used to attack an appealable decision."

and later at p.862:

"Judicial review should not be granted where an alternative remedy is available."

It is therefore necessary to examine carefully the suitability of the statutory appeal procedure provided in Section 68 in the context of this case, and, in particular to consider whether the statutory remedy will fully resolve the question at issue; whether the procedure would be quicker or slower than an application for judicial review; and whether the matter depends on some technical or particular knowledge more readily available to the appellate body.

In the present context Section 68 may be considered a complete self-contained provision dealing with the revocation, variation or suspension of a road service licence - it sets out the powers of the TCB and the circumstances under which that power may be exercised; the procedure to be adopted by the TCB in the exercise of its powers and a right of appeal against the TCB's decision and the form and procedure to be adopted in exercising that right of appeal.

In comparing the alternative "remedies", an appeal under Section 68(4) does not require 'leave' as does judicial review. The section also provides a time limit of "14 days", and therefore an appeal is at least as expeditious, if not more so, than judicial review. The unrestricted and unqualified nature of the "grounds" which may be put forward by an aggrieved party in an appeal to the Minister also renders the appeal procedure equally suited, if not preferable, to an application by way of judicial review, and lastly, the finality of the Minister's decision in an appeal presents a greater certainty than an order in judicial review which may merely quash the decision of the TCB without necessarily determining the substantive issues.

The lodgement of an appeal however is "permissive" and given that this is a point raised by the Court, it would be inappropriate for me to form a concluded view on the matter.

I turn then to the substantive grounds advanced by the applicant in its attack on the decision of the TCB revoking its road service licence. As has been pointed out the grounds are numerous but these overlap in several instances and I propose therefore to deal with the submissions of Counsel for the applicant rather than with each ground seriatim.

It is also convenient to deal with the grounds under the heads earlier identified in the context of the judgment of Byrne J. in JR 30/89 namely: The absence of evidence before the TCB; The failure to hear the applicant in mitigation of penalty; and The failure to furnish reasons.

At the outset I would respectfully point out that the decision in JR 30/89 although undoubtedly persuasive is not binding on me.

ABSENCE OF EVIDENCE

In this regard Counsel submits that there was no evidence before the TCB to prove the complaint or justify the exercise by the TCB of its discretion under Section 68 of the Traffic Act. Accordingly it is claimed the revocation of the applicant's road service licence was manifestly unreasonable.

In dealing with this ground of complaint in JR 30/89 Byrne J. correctly observed with respect at p.7:

"... that nothing is said in the Traffic Act about the way in which the Board shall conduct any inquiries such as the present. The Act does not say that in any proceedings before the Board the rules of evidence are not to apply but one can presume from the Act's silence on this point that this was the intention of the Parliament. Such a presumption in my view is reasonable because the functions of the Board are at best only quasi-judicial."

Then at p.8 he says:

"That said, however, in my judgment the Board should have been left in some doubt as to whether the allegations of wilful breach of the applicant's licence had been proved to its satisfaction. The question here in my opinion is this:

Is it fair that the Board should have decided to revoke the applicant's licence on such material? In my judgment it should not."

and later on the same page the following statement occurs:

"Accordingly I am prepared to find that the material before the Board should not have satisfied it that the applicant's breach of its licence was wilful. In so doing in my judgment it misdirected itself by taking into account adverse evidence of dubious probative value."

With all due respect to my learned brother I would part company with his judgment on this issue.

In R. v. Deputy Industrial Injuries Commissioner ex-parte Moore (1965) 1 Q.B. 456 Diplock L.J. in discussing the rule that a tribunal must base its decision on evidence, said at p.488:

"(The) technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his."

Nor in my view ought the Court under the guise of "fairness" ascribe to itself a function or power to determine what weight (if any) ought to be given to the evidential materials placed before the TCB by the complainants and the licensee.

In this case the TCB had before it no less than 11 lengthy letters of complaint from other bus operators along the route detailing numerous failures on the part of City in complying with its approved timetable; in its dropping and picking passengers at unauthorised and unscheduled stops along its approved route; in undercharging passengers in breach of the surcharge imposed by the TCB; and in the touting of passengers by its employees.

There were also 5 reports compiled by officers of the Road Transport Department verifying various complaints received against the applicant and in which adverse remarks and recommendations were made against City.

For instance, in DTO(W)'s report dated 11.1.89 can be found the following:

"The departure of City Transport express bus from Lautoka since granted the Round- the-Island trip has never been on time as stipulated in RSL 12/9/62.

The last checks carried out were on 8.1.89, 9.1.89 and 10.1.89 and in all these checks the said bus departed earlier than 12.10 p.m.

This is not the end of the story, the whole operation is full of blatant disregard of the regulation and procedures set by the TCB for the operation of this calibre. Unless and until disciplinary action is taken to curtail such illegal operation the situation will surely deteriorate.

I would like to suggest that the TCB could review its decision in granting this particular service especially when City Transport's action is completely contrary to the terms and conditions of its RSL."

and a week later in DTO(W)'s report dated 18.1.89 he says:

"... I hope that relevant action should be taken to solve these blatant disregard of the regulation by City Transport.

Similar complaints have been received and the latest one was by Sunbeam Transport Ltd. which was also investigated and found to be true.

This report confirmed that City Transport express service has been operated in such an haphazard way since its inception.

I would like to suggest that the Board be informed and recommendation should be made to review the timetable of this express service which I feel to be ill-conceived. For your information please."

From the above it is clear to my mind that the TCB had before it "evidence" in the sense earlier described by Diplock L.J. and although there was no suggestion of any endangerment of the travelling public, the "evidence" was undoubtedly relevant to "the frequency" and "the wilfulness" of the applicant's breaches of the terms and conditions of its road service licence. Furthermore the weight to be attached to that "evidence" was a matter entirely for the TCB to decide.

In passing I note that the applicant in JR 30/89 had not only written a letter to the TCB giving various explanations for the complaints received against it, in addition, at the hearing before the TCB, Counsel appeared and "made numerous submissions on behalf of the Applicant". Reference was made to stoning incidents, the poor road conditions and delays caused by heavy traffic during the cane harvesting season.

In this present case however, no written explanation was presented to the TCB either before or during the hearing of the complaints despite the managing director's concessions that he had received "copies of some of the letters (of complaint) before the hearing". Furthermore at the hearing Mr. Maan Singh for the applicant denied any 'illegal stops' and referred to a pending application before the TCB to alter the applicant's departure time from Lautoka.

Needless to say the existence of an application to alter an approved timetable is no reason or excuse for failing to comply with it and the TCB's decision speaks loudly of the view it formed on the "evidence" before it which included the applicant's "explanation".

This complaint is without any substance or merit and is accordingly dismissed.

NO HEARING IN MITIGATION OF PENALTY

In dealing with this complaint in JR 30/89 Byrne J. referred to R. v. Barnsley M.B. Council Ex.p. Hook (1976) 1 W.L.R. 1052 and said at p.9:

"As Hooks case says the Court can interfere by Certiorari if a punishment is altogether excessive and out of proportion to the occasion. In my judgment such is the case here. I consider that the least the Board should have done as a matter of natural justice was to hear the applicant on the question of penalty. It failed to do so and for this reason alone, which I consider is fundamental to this case, the Board's decision should be set aside."

The case however is distinguishable in several material respects from the present. In the first place, Hook was effectively "banned for life" and secondly, there had been serious breaches of 'the rules of natural justice', in particular, the principle "nemo judex in causa sua". I also note that of the 3 justices only Lord Denning expressly referred to the excessive and disproportionate nature of the punishment imposed as a ground for interfering by way of certiorari. Scarman L.J. made no mention of it at all and Sir John Pennycuick mentioned it in the context of whether "good cause" had been shown and observed: "... that the isolated and trifling incident at the end of a working day is manifestly not a good cause ..."

In this case however the penalty or punishment is fixed by statute, namely, "revocation, variation or suspension" and whilst it might be that the penalties differ in their gravity they are undoubtedly available to the TCB to impose whenever acting under Section 68. Secondly, no complaint has been made that the TCB failed to comply with the statutory requirement of giving the applicant "a due opportunity to be heard". Indeed the applicant was expressly required to show cause why the TCB should not act against its road service licence pursuant to Section 68 and the applicant appeared by its managing director at a public hearing and was heard. Finally, the numerous verified incidents of default on the part of City of the condition(s) of its RSL can hardly be classed as "isolated" or "trifling". Certainly the TCB did not think so.

It would have been obvious to the applicant from the nature of the proceedings (i.e. to show cause why a penalty should not be imposed), and the reference to the Section under which the TCB proposed to act, that there were 3 possible penalties available to the Board in the event that the applicant failed "to show cause" and in my view it was during the 'statutory hearing' that the applicant could and should have addressed the TCB on the question of which of the alternative penalties (if any) ought to be imposed, if it desired to be heard on that particular matter.

It's failure to do so, cannot and does not give rise in my view, to any breach of 'the rules of natural justice' on the part of the TCB. With all due regard to Counsel's submissions I fail to see what more the TCB could have done besides asking the licensee to show cause why one or other (if any) of the penalties should not be imposed against it for the breaches of its road service licence. If that does not raise in a direct and positive manner the question of the punishment to be imposed, by the TCB, then what one might ask would?

In my view the TCB is only required by statute to give the licensee "a (single) opportunity to be heard" at which all matters that the licensee wishes to be heard on can be aired.

I cannot accept the suggestion in Counsel's submissions that the procedures of the TCB can or ought to be equated to that of a Court of law where (in a civil case) there is a finding of liability before damages are assessed or (in a criminal case) where there is a conviction before sentence is imposed and where, at both later stages, the defendant is given a further opportunity to be heard, yet that would be the effect of upholding the applicant's submissions in this regard.

In other words the TCB would be required to give a licensee 2 separate hearings, one as to the breach of the conditions of its road service licence, and a second, as to the penalty that should be imposed. I cannot accept that was the intention of the legislative in enacting Section 68(4) of the Traffic Act.

Megarry J. in Bates v. Lord Hailsham of St. Marylebone and Others (1972) 1 W.L.R. 1373 in dealing with a statutory provision which prescribed a period of 1 month for the receipt of representations and in dismissing an argument that "fairness" required in the circumstances a substantially longer period, said at p.1378:

"Here, Parliament has laid down the procedure to be followed. Expressum facit cessare tacitum. It is easier to imply procedural safeguards when Parliament has provided none than where Parliament has laid down a procedure however inadequate its critics may consider it to be."

Or as was more trenchantly expressed by Lord Moulton in Local Government Board v. Arlidge (1915) A.C. 120 in rejecting an argument that the Board's procedure was contrary to natural justice in that A was not afforded an opportunity of being heard orally before the Board, said at p.150:

"Parliament has wisely laid down certain rules to be observed in the performance of its functions in these matters, and those rules must be observed because they are imposed by statute, and for no other reason, and whether they give much or little opportunity for what I may call quasi-litigious procedure depends solely on what Parliament has thought right. These rules are beyond the criticism of the Courts, and it is not their business to add to or take away from them, or even to discuss whether ... they are adequate or not."

There is no merit in this ground of complaint which is also dismissed.

FAILURE TO FURNISH REASONS

Under this complaint Counsel for the applicant referred to a passage in de Smith and an article by Prof. J. Northey in [1978] N.Z.L.J. and to various dicta in New Zealand, Australian and English cases in support of a growing trend towards a requirement to give reasons for a decision arrived at by a body performing quasi-judicial functions such as the TCB.

More relevant however, are the observations of the Fiji Court of Appeal in Akbar Buses Ltd. v. TCB and Another Civil Appeal No. 9 of 1984 where in setting aside an "astounding decision" of the TCB where no reasons were given, the Court observed at p.12:

"It is true that there is no statutory requirement in the Traffic Act, as there is sometimes found elsewhere, for the Board to give reasons for its decision."

and later at p.13:

"Although, as (has) been said, there is no statutory requirement for reasons to be given, it appears to us that this Board should do so, albeit in brief terms, especially if the decision is one which, in the absence of stated reasons appears as inexplicable as that under review."

There can be no doubting the desirability for all Courts and Tribunals where possible to give reasons for decision. The reasons for this are various and include, helping to concentrate the mind of the Tribunal on the issues for determination; enabling the parties to see that their cases have been understood and carefully considered and it allows an appellate Court or Tribunal to less readily infer that there are in fact no adequate reasons to support the findings and determination of the lower Court or Tribunal.

Having said that however I do not read the decision in the Akbar Buses case (op.cit) as altering the general common law principle that, in the absence of statutory authority, there is no requirement in administrative law that reasons must be given as a matter of course or in compliance with the 'rules of natural justice' (per Lord Denning M.R. in R. v. Gaming Board for Great Britain ex-parte Benaim and Khaida [1970] EWCA Civ 7; [1970] 2 Q.B. 417).

More recently in Potter v. N.Z. Milk Board (1983) N.Z.L.R. 620 Davison C.J. in rejecting a submission that for policy reasons the Court should hold firmly that in every case where there is a full right of appeal from a Tribunal then that Tribunal has a duty to give reasons for decision as an aspect of 'fairness' or that 'natural justice' requires that reasons be given, said at p.627:

In response ... let me say that I am not prepared on the present state of the authorities, nor having regard to the requirement of justice, to take such a step ... In the absence of statutory provision requiring a Tribunal to give reasons for decision, this Court should in my view decline to lay down any inflexible rule. Rather each case should be considered on its merits and in cases where the absence of reasons has proved prejudicial to a party, appropriate method to relieve the party of such prejudice may be adopted."

In the present case the decision of the TCB as earlier set out at p.4 clearly sets out the TCB's reason for revoking the applicants road service licence, namely, "... wilful breach of conditions i.e. unauthorised stopping and breach of times changed".

This 'reason' is expressly made a ground for revoking a road service licence in terms of the second limb of the proviso to Section 68(1) of the Traffic Act and, if I may say so, is fully supported by the "evidence" placed before the TCB and made available to the licensee.

The decision of the TCB in the circumstances was anything but "astounding" or "inexplicable" to adopt the characterisations of the Fiji Court of Appeal in the Akbar Buses Ltd. case (op.cit).

I am not persuaded by anything in Counsel's general submissions or in the particular circumstances of this case that this is a suitable occasion to depart from the common law rule nor has it been shown that the TCB failed to give any reason for its decision to revoke the applicant's road service licence. Plainly it did.

The applicant having failed on all grounds this application is accordingly dismissed with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
1st October, 1993.

HBJ0005J.92S