IN THE HIGH COURT OF FIJI
(SUVA)
CIVIL JURISDICTION

ACTION NO. 24 OF 1993

BETWEEN:

IN THE MATTER OF AN APPLICATION BY
LAUTOKA GENERAL TRANSPORT COMPANY LIMITED

AND

IN THE MATTER OF THE DECISION GIVEN BY THE TRANSPORT CONTROL BOARD - FIJI TRANSPORT COMPANY

AND

IN THE MATTER OF THE DECISION GIVEN BY THE TRANSPORT CONTROL BOARD - LAUTOKA GENERAL TRANSPORT COMPANY LIMITED.

Mr. V. Kapadia for the Applicant
Mr. V.Tuberi for Transport Control Board
Mr. Prakash for Fiji Transport Company

RULING

This is an application to dissolve an ex parte injunction granted by myself. I regret that the delivery of this judgment has taken rather longer than I would have wished. The action in this proceeding concerns the grant of Road Service Licence No.12/15/17 by the Transport Control Board (hereinafter shall be referred to as T.C.B) to the Fiji Transport Company (hereinafter shall be referred to as F.T.C) at Lautoka on 9th November, 1993 after hearing both applications by the F.T.C. and Lautoka General Transport Company Limited (hereinafter shall be referred to as L.G.T.C).

On 26th of November, 1993 I granted the applicant an order against the T.C.B that their decision made on 9th November, 1993 whereby it granted F.T.C. an amendment to its Road Service Licence No. 12/15/17 and all proceedings thereunder be stayed until the hearing and determination of this action or until further order of this Court.

I also granted the applicant an interim injunction against F.T.C. by itself and / or howsoever be restrained from operating or in any manner whatsoever dealing with the amendment of Road Service Licence No. 12/15/17 which was purported to be approved by the T.C.B. on 9th November, 1993 until the hearing and determination of this action or until further order of this Court.

In his affidavit of the 24th of November, 1993 and in a statement filed pursuant to Order 53 Rule 3 (2) of the High Court Rules 1988, Pyara Singh states that the FTC on 28th July, 1992 and 5th August, 1992 lodged an application with the T.C.B. for amendment of its Road Service Licence (RSL) No.12/15/17. This application was advertised in the Fiji Times on 30th September, 1992. Since the proposed amendment to RSL 12/15/17 would have seriously affected the applicant's operation he prepared an objection on 2nd October, 1992 on behalf of the applicant in respect of the proposed amendment.

In accordance with the provisions of the Traffic Act he also lodged a competing application on behalf of the applicant with T.C.B. on 6th October, 1992. On 13th November, 1992 F.T.C. lodged an objection to the application by applicant.

On or about 2nd June, 1993 the Applicant's solicitors wrote to the Board requesting that "load checks" be carried out by T.C.B. in respect of the services between Ba and Lautoka to enable T.C.B. to establish whether there is a need for additional trips in the area.

After a number of adjournments T.C.B. heard F.T.C. and Applicant's application together on 9th November, 1993 at its meeting in Lautoka.

Pyara Singh alleged that at the said hearing T.C.B. failed to produce the load checks report carried out prior to the hearing relating to the need for bus services between Ba and Lautoka at the times applied for by Applicant and F.T.C. The load checks report was produced at the request of the Applicant's counsel during the hearing of the application of F.T.C. In the circumstances the applicant did not have sufficient opportunity to study the load checks report or make substantial submissions thereon.

He further alleges that T.C.B. did not take into consideration the fact that F.T.C. did not have sufficient buses with valid certificate of fitness to comply with the requirements of Section 66 of the Traffic Act and the procedures and guidelines of the T.C.B.

The Applicant's counsel also filed at the hearing with T.C.B. written objections to the application of F.T.C. which the T.C.B. failed to consider.

The T.C.B. heard the application of F.T.C. first together with objections against it including the Applicant's objection and then heard the Applicant's application for amendment of its R.S.L. and then proceeded to approve F.T.C.'s application and refused the Applicant's application.

Before me is an application by Fiji Transport Company to dissolve the interim injunction I granted the Applicant. In his affidavit of the 17th January 1994 Devendra Singh stated that his firm mainly operates on routes between Ba and Lautoka but the Applicant mainly serves the Lautoka area although it has few Ba/Lautoka routes. That an application for an amendment of Road Service Licence was made by his firm as appearing in Annexure "A" of the Applicant's affidavit. The RSL number stated on the precis was wrong and it was subsequently corrected by T.C.B. The RSL to which the application refers to is 12/15/24 as shown in Annexure "B" of his affidavit. (a copy of a letter from the T.C.B. confirming the amendment of his RSL Number 12/15/24). His firm does not hold RSL 12/15/17 any more. His firm's RSL 12/15/24 was amended on 9th November, 1993 by T.C.B. after a full hearing and all objectors to the application and competing applications were heard. The Applicant was present and represented by Counsel at the hearing and they fully participated in the hearing. The application was granted only after the need for the service was fully established and all the the requirements under the Traffic Act were complied with. His firm started operating on the new route since 10th November, 1993 and the buses had been running on very good loads. The new route was designed mainly for the workers who travel daily from Ba to Lautoka and back. The new trip granted is within their own scheduled times and it does not seriously affect the Applicant's operation. The Applicant's trips run only for a short distance on the Kings Road in Lautoka area and its trips cater mainly for inland passengers and not those on the Ba/Lautoka trunk route. A real need for a new service was fully established and the independent load checks by the Department of Road Transport supported the need for the establishment of the new service. The application of Akbar Buses Ltd was also heard and the Department of Road Transport load checks were made available to all parties at the same time. The Applicant had full opportunity to consider the load checks and the applicant has not been prejudiced in any way. The Applicant was represented by Counsel who did not request for any adjournment to consider the load checks or object to the continuation of the hearing.

The grounds upon which the Applicant is seeking relief against the T.C.B. are as follows:-

a) That there was no evidence before the Board or any material or any circumstances to justify the granting of the amendment to R.S.L. 12/15/24 of F.T.C.

b) The T.C.B. has acted in breach of the relevant rules of Natural Justice and/or unfairly in granting the amendment of R.S.L. 12/15/24 to F.T.C.

c) That the T.C.B. abused its discretion under the Traffic Act in that:-

i) It took into consideration irrelevant matters; and

ii) It did not take into consideration relevant matters; and

iii) It acted arbitrarily and/or unreasonably.

iv) It failed to follow its own guidelines.

d) That the T.C.B. exceeded its jurisdiction under the Traffic Act.

The Applicant alleges that the proposed amendment of R.S.L. 12/15/24 would have seriously affected his operations and he therefore lodged an objection to the said application with the Board on or about 2nd October, 1992.

The Applicant then lodged a competing application for an amendment of its Road Service Licence No. 12/16/9 on the 6th October, 1992 for additional trips (daily) between Ba departing 6.45 a.m and Lautoka arriving at 8.00 a.m. and departing Lautoka 4.55 p.m. and arriving Ba at 6.10 p.m. This application for amendment of the Applicant's R.S.L. No.12/16/9 was based on the same time as that advised by F.T.C. in its amendment of R.S.L. 12/15/24 in respect of the Ba - Lautoka route.

On 9th November, 1993 at Lautoka the T.C.B. heard FTC's application together with the Applicant's application and its objection to F.T.C.'s application. The T.C.B. purported to approve FTC's application for amendment of its R.S.L. 12/15/24 and at the same time dismissed the Applicant's application for amendment of its R.S.L. 12/16/9.

Both Mr Prakash and Mr Kapadia who appeared before me are experienced Counsel and I have found their arguments frank and helpful. Supporting the application for dissolution of injunction Mr Prakash argues that the exparte injunction ought not to have been granted in the first place as affidavit of Pyara Singh for the Applicant does not disclose any strong or pressing grounds to justify an order for exparte injunction. There was no urgency for such an order as damages would be an adequate remedy. Furthermore he argued that F.T.C. is not a party to these proceedings and therefore the ex parte injunction cannot be ordered against it. In support of his argument he referred to the case of Sher Ali Khan Transport Ltd v Transport Control Board Judicial Review No. 3 of 1990 at page 3 where my Brother Palmer has this to say.

"On reflection following the very helpful submissions of Counsel I have come to the conclusion that the injunction against Tara Singh cannot stand, if only because Tara Singh has never been made a party to these proceedings. "- - -

In his reply Mr Kapadia referred to Order 53 Rule 9 and contended that the ex parte injunction against F.T.C. was in order. He further argued that damages would not be an adequate remedy to the Applicant and therefore the ex parte injunction ought not be disturbed.

The principles applicable to granting Interlocutory Injunctions have been authoritatively explained by Lord Diplock in American Cynamid Co v Ethicon Limited (1975) A.C. 396 and can be briefly summarised as follows:

(1) The Plaintiff must establish that he has a good arguable claim to the right he seeks to protect.

(2) The Court must not attempt to decide the merit of the claim on the affidavits; it is enough if the Plaintiff says that there is a serious question to be tried.

(3) If Plaintiff satisfies this test, the grant of an injunction is a matter for the exercise of the Court's discretion on the balance of convenience.

In the case of Evans Marshall Co. Ltd v Bertola S.A (1973) 1 W.L.R. 349 Sachs L.J. said at page 379:

"The standard question in relation to the grant of an injunction, "Are damages an adequate remedy", might perhaps, in the light of the authorities of recent years, be rewritten: "Is it just, in all the circumstances, that a plaintiff should be confined to his remedy in damages?""

In Mr Kapadia's submission the Applicant's application was ignored by the T.C.B. in favour of the F.T.C. The Applicant had hoped and in fact expected their application to be successful. If damages are an adequate remedy for the Applicant then the injunction should be dissolved.

In American Cyanamid page 408 Lord Diplock had this to say:

"It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises. It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. Where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo."

Reflecting on the submissions of both Counsel I am in agreement with Mr Prakash that damages would be an adequate remedy available to the Applicant.

As I have already mentioned the F.T.C. has not been made a party to this proceedings and I am inclined to agree with the decision of my Brother Palmer in Sher Ali Khan's case (supra). Order 53 Rule 9 of High Court Rules 1988 referred to by Mr Kapadia does not help the Applicant much; which states:

Rule 9(1) On the hearing of any motion or summons under Rule 5, any person who desires to be heard in opposition to the motion or summons, and appears to the Court to be a proper person to be heard, shall be heard, not withstanding that he has not been served with notice of the motion or the summons.

Rule 5(1) When leave has been granted to make an application for judicial review, the application shall be made either by originating motion or by originating summons.

(2) The notice of motion or summons must be served on all persons directly affected- - -

It is clear from the wording of Order 53 Rules 5 and 9 that they refer to the "Hearing of Application for Judicial Review", they do not authorise the grant of an ex parte injunction against anyone who is not a party to the proceedings.

Since damages are an adequate remedy open to the Applicant and that the F.T.C. has never been made a party to these proceedings the injunction made against F.T.C. is accordingly dissolved.

I make no order as to cost.

S W Kepa
JUDGE

 July, 1994
HBE0024D.93S