State v Transport Control Board, Ex parte Central Transport Company Ltd [1996] FJHC 76; Hbj0032d.1996s (3 December 1996)

Fiji Islands - The State v Transport Control Board, Ex parte Central Transport Company Ltd - Pacific Law Materials

IN THE HIGH COURT OF FIJI

(AT SUVA)

JUDICIAL REVIEW NO. HBJ 0032 OF 1996S

THE STATE

v

TRANSPORT CONTROL BOARD

Respondent

EX PARTE CENTRAL TRANSPORT COMPANY LIMITED

Applicant

H. Nagin for the Applicant

R. Prakash for the Interested Party

DECISION

The Applicant seeks leave to move for Judicial Review of a decision by the Respondent (the Board) on 30 October 1996 granting Nadera Transport Limited (the Inhe Interested Party) a road service licence to operate a new bus route Dabulu Road roundabout to and from Suva. The Applicant, if leave be granted, also seeks an Order preventing the Interested Party from operating the route until determination of the application for Judicial Review.

LEAVE

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Both Mr. Tuberi and Mr. Prakash pointed out that paragraph 11 of the Affidavit and supporting statement filed by the Appl suggest that the beneficiaficiary of the Board's decision should have been another bus company namely S. Nair Transport rather than the Applicant. Therefore, it was argued that the Applicant had no locus and leave should be refused. From Mr. Nagin's answer it however emerged that the principal matter complained of by the Applicant was not the granting of the licence, whether to the interested party or to another bus company but the fact that the route granted to the interested party (which was not one sought by S. Nair Transport) involved encroachment upon a route operated for many years by the Applicant namely the route Samabula roundabout to Suva bus stand via the CWM Hospital and Waimanu Road.

The Traffic Act (Cap 176) does not provide an appeal procedure for parties aggrieved by decisions of the Board but it has long been esshed that the High Court wirt will grant relief in cases where decisions of the Board had been reached unfairly. Paragraphs 8 to 12 of the supporting affidavit allege that the Board acted unfairly and inconsistently. The outcome of the decision undoubtedly affected the applicant. Leave to move for Judicial Review is granted.

INJUNCTION

The main arguments advanced by Mr. Nagin in support of the injunction whe sought were that the Applicant had for many years operated in Central Suva over this rous route but now suddenly found itself encroached upon by a long distance operator, that Nadera could just as easily look after the interests of its suburban passengers by going down Edinburgh Drive which was the route it took on the way back up out from Suva, that the history of this route suggested that the status quo before the decision was the option to be favoured and that irreparable harm, for which damages could not compensate, was the consequence of allowing the Board's decision to stand at least as far as the Samabula roundabout to bus stand part of it was concerned.

In answer Mr. Prakash pointed out that only five trips per day over the disputed part of the route were involved and that no particulars had been given of the claim that the Applicant's interests were being irreparably damaged or that damages would not be an adequate remedy. Mr. Prakash's strongest argument, as it seemed to me, was that although Mr. Nagin had indicated that his client would be happy with the Board's decision if it was only varied by substituting Edinburgh Drive for the CWM Hospital/Waimanu Road part of the interested party's route that was not in fact what his Summons was seeking while other operators, already operating up and down Edinburgh Drive, would surely be affected by any interim Order that the Applicant should use this route.

As I see it the relevant status quo is the status which has obtained since the decision of the Board. The onus is on thlicant to show that it shou should be disturbed. The arguments are finally balanced but in the end I am not satisfied that five encroaching trips by the interested Party over the Applicant's route Samabula roundabout via CWM Hospital and Waimanu Road will cause the Applicant irreparable harm which cannot, if it succeeds in the Action, be compensated for by way of damages. If an interim variation of this route was all that was being sought then the summons should have been differently worded.

Having considered the papers before me and counsels submissions I am not satisfied that I shoulerfere with the Board's decision at this stage and accordinordingly the application for injunctive relief fails and is dismissed. I would only add that given the narrow gap between the two rival operators over the disputed part of the route it should be possible to settle this matter without resort to further litigation.

M.D. Scott

JUDGE

3 December 1996

hbj0032d.96s