In re Application by Tebara Transport Ltd [1994] FJHC 57; Hbj0010d.1994s (8 June 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 10 of 1994

IN THE MATTER of an Application by
TEBARA TRANSPORT LIMITED, ISLAND BUSES LIMITED,
WAIQELE BUSES LIMITED, TUI DAVUILEVU BUSES LIMITED,
WAINIBOKASI TRANSPORT COMPANY and
WAINIBUKA TRANSPORT COMPANY
for a Judicial Review under Order 53 of the High Court Rules 1988
and High Court (Amendment) Rules 1991

and

IN THE MATTER of the Decision of the
TRANSPORT CONTROL BOARD
made on or about the 11th day of May, 1994

Mr. Manoj Narsey for Applicant Company

REASONS FOR DECISION

Yesterday afternoon (7/6/94) an application to dissolve an interim injunction made against it was made by the applicant company, the Noco Development Company Limited (NDCL) which was expressed to be of the greatest urgency. In the absence of Byrne J. to whom the application would normally have gone as the presiding Judge in the ex parte application and also in the absence on bereavement leave of the Applications Judge for this week, I agreed on the request of the Chief Registrar to deal with this application as a matter of urgency. Having read the affidavit of Tomasi Vakatora, company director of NDCL in support of the application and the submissions made by counsel for NDCL, I ordered that the ex parte interim injunction made in this court on 1st June 1994 restraining NDCL from operating its bus services in the new routes serving the Tikina of Noco and neighbouring environs in the Rewa Delta under a temporary road service licence granted by the Transport Control Board be discharged and reserved my reasons for so ordering to be given today. I set out hereunder those reasons.

The immediate effect of the ex parte interim injunction would have been to cause NDCL to cease operation of its bus services which serve a large number of bus travelling public in the newly built roads in the Tikina of Noco and neighbouring environs in the Rewa Delta. As I understand it, a temporary road service licence was granted by the Transport Control Board to NDCL as a stop-gap measure pending full hearing and final determination by the Board of the competing applications for road service licence for the new routes in the proper exercise of its statutory powers.

Having considered all the material brought in support of the application by NDCL to discharge the interim injunction made on 1st June, 1994 and having regard to the manner in which the disputes over the new routes in the Rewa Delta have been brought to Court, I was satisfied that the application for interim injunction should not have been made ex parte because of the far-reaching implications such an order would have had against the interests of NDCL without it first being given an opportunity to be heard in opposition to the application for interim injunction.

As I see it, the proceedings on 1st June, 1994 should have been governed by the provisions of Order 29 rule 1(2) of the High Court Rules (relating to the grant of interlocutory injunctions) which read:

"Where the applicant is the plaintiff and the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief such application may be made ex parte on affidavit but except as aforesaid such application must be made by Notice of Motion or Summons."

In my view the circumstances disclosed by the application for interim injunction cannot be characterised as one of urgency within the intendment of the above provisions such as would entail irreparable or serious damage to those bus operators opposed to NDCL getting the temporary road service licence to the new routes. Rather the grant by the Transport Control Board to NDCL of a temporary road service licence for the new routes on which NDCL has been operating for quite some time now, creates for all intents and purposes a status quo to NDCL, albeit only temporary for the time being, which unless overriding reasons dictate otherwise should in good sense be preserved until the substantive issues raised in the application for judicial review are finally determined by the Court. It was in my view clearly inappropriate to allow an interim injunction made on an ex parte application to obtrude and complicate the ordinary processes of the law relating to proceedings in judicial review.

For these reasons the interim injunction made ex parte against NDCL and granted on 1st June 1994 cannot be sustained and must be discharged which was ordered accordingly.

Costs to be in the cause.

Chief Justice

Suva
8 June 1994

HBJ0010D.94S