State v Transport Control Board, Ex parte Waiqele Buses Ltd [1998] FJHC 130; Hbj0007j.1997s (8 September 1998)

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

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

JUDICIAL REVIEW NO. 7 OF 1997

STATE V

TRANSPORT CONTROL BOARD

EX-PARTE: WAIQELE BUSES LIMITED

ass=MsoNormal amal align=center style=text-align:center>BETWEEN:

WAIQELE BUSES LIMITED
Applicant

AND:

TRANSPORT CONTROL BOARD
Respondent

AND:

LATCHMAN BUSES LIMITED
Interested Party

Mr. H. Nagin for the Applicant
Mr. I. Tuberi for the Respondent
Mr. G.P. Lala for the Interested Party

JUDGMENT

This is an application for judicial review by WAIQELE BUSES LIMITED (the "Applicant") pursuant to leave granted by this Court on 5 September 1997 against the decision of the TRANSPORT CONTROL BOARD (the "Board") made on 2 April 1997 whereby the Board granted Road Service Licence (the "RSL") No. 12/23/1 to LATCHMAN BUSES LIMITED (the "interested party").

This RSL allowed the interested party to run an express service between Savusavu and Labasa. The Applicant holds a RSL for the normal services between the same towns.

The Applicant is a bus operator in the Labasa and Vanualevu area and has a RSL 12/24/11 being Labasa/Savusavu service.

On 5 September 1996 the interested party a new company altogether applied for RSL 12/23/1 to operate an express service from Labasa to Savusavu and return. When the application was advertised the Applicant lodged an objection on 30 September 1996. It also lodged a competing application to that of the interested party on 1st October 1996 and this was advertised on 25 October 1996. Both the applications were listed for hearing on 2 April 1997 at Labasa and were heard that day.

The procedure adopted at the hearing has become the subject-matter of this judicial review.

Relief sought

The applicant seeks the following relief:

(a) AN ORDER OF CERTIORARI to remove the said decision of the TRANSPORT CONTROL BOARD purporting to approve the application of LATCHMAN BUSES LIMITED made on the 2nd day of April, 1997 into this Honourable Court and that the same be quashed.

(b) A DECLARATION (in any event) that the TRANSPORT CONTROL BOARD has acted unfairly and/or in breach of the rules of natural justice and/or abused its discretion under the Traffic Act and/or exceeded its jurisdiction and/or acted in breach of the legitimate expectations of the Applicant.

(c) Damages

(d) Further Declarations or other relief as to this Honourable Court may seem fit.

(e) Costs.

Grounds of relief

The grounds on which the applicant seeks relief are as follows:

(a) That the TRANSPORT CONTROL BOARD has acted in breach of the rules of natural justice and/or unfairly in granting the Road Service Licence to LATCHMAN BUSES LIMITED as the Transport Control Board did not give the Applicant a fair hearing and received representations from Latchman Buses Limited after the hearing was completed and the Transport Control Board was unfairly biased in favour of Latchman Buses Limited.

(b) That the TRANSPORT CONTROL BOARD 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 such as the fact that Latchman Buses Limited was an entirely new company and not operated any bus services before and did not own any buses. The Labasa/Savusavu route was adequately serviced by the Applicant which was an existing operator on the route and had made substantial investment in the bus industry; and

(iii) It acted arbitrarily and/or in bad faith an/or unreasonably; and

(iv) It failed to follow its own Guidelines and purported to revoke them shortly before the hearing of the applications; and

(v) It failed to properly consider the evidence and submissions and the competing application of the Applicant; and

(vi) It failed to give reasons for its decision.

(c) That the Transport Control Board exceeded its jurisdiction under the Traffic Act.

(d) That the Transport Control Board acted contrary to the legitimate expectations of the Applicant.

Applicant's contention

The Applicant through its counsel alleged that the Board stated, inter alia, that it could just decide on the Transport Report and did not have to worry about hearing of submissions. A copy of the report was not supplied to the Applicant or its counsel. A member of the Board said "quite wrongly" that the Fair Trading Decree required them to promote competition on the routes.

The Applicant further argues that it has made a lot of investment in purchasing three services and two buses at a total cost of $484,000.00. The granting of this licence will affect it very badly. There are sufficient buses to service the route. There is no need for express service on this route. Mr. Nagin says that the Board had in 1989 adopted a set of guidelines and in July 1996 it purported to revoke those guidelines without giving the bus operators a chance to have a say on the same. The Applicant which was an existing operator should have been granted the licence but by not doing so the Board has acted in breach of the Applicant's legitimate expectations on the ground that as long as the Applicant provided good service its route would be protected from encroachment.

Mr. Nagin made the following further submission alleging bias on the part of the Board. He said:

1.07 After the hearing of these applications the Transport Control Board called Latchman Buses Limited's director Kamal Deo Prasad and his brothers Ravin Deo Prasad and Rajendra Deo Prasad for a private meeting. All Counsel and other operators were told to remain outside. After a short while Ravind Deo Prasad and Rajendra Deo Prasad came out and Kamal Deo Prasad remained with the Board for further 10 minutes. During this time Ravind Deo Prasad came and advised the operators outside that Latchman Buses Limited was going to get the Labasa/Savusavu Licence.

1.08 After this meeting with Latchman Buses Limited's director Kamal Deo Prasad the Transport Control Board called everyone back into the meeting and without giving any reasons approved the application of Latchman Buses Limited.

1.09 Immediately after the said decision the Transport Control Board meeting was adjourned for lunch. All the Board members and staff of the Transport Control Board were hosted to a lunch by Latchman Buses Limited and its director Kamal Deo Prasad at Easy Restaurant in Labasa town.

1.10 Kamal Deo Prasad had been boasting two weeks before the said Transport Control Board meeting that he was definitely going to get this licence. In fact the day before the Board meeting on 2nd April, 1997 he caused a sign board to be made showing "Labasa/Savusavu Express". This together with the lunch immediately after the Board meeting clearly shows or gives an appearance of bias.

Mr. Nagin further submits that by relying on the Report from the Divisional Transport Officer, Northern without making it available to the Applicant or its Counsel it is in breach of the principle embodied in the maxim audi alteram partem.

On 'legitimate expectation', Mr. Nagin submitted, inter alia, that the Applicant had legitimate expectation that it would be accorded a fair hearing by the Board and that it would be provided with a copy of the Transport Report. Also that reasons would be given by the Board. He said that it also had legitimate expectation as it was the then existing operator in the area it would be preferred over outside operators.

On the giving of 'reasons' by the Board, Mr. Nagin submitted, inter alia, that "even though the giving of reasons is not regarded as mandatory in normal cases but where the decision seems strange or unusual then reasons must be given or else the Court may infer that there are no adequate reasons for the decision".

On the ground of "irrelevant consideration", Mr. Nagin submitted that by applying the provisions of Fair Trading Decree the Board took into account irrelevant considerations and therefore the decision is "tainted". He says what the Board has to do is to follow the Traffic Act and in particular section 66(2).

He said that the Board has not taken into account relevant considerations. The Board he says exceeded its jurisdiction under s66 of the Traffic Act because it failed to properly take into account the matters referred to in that section.

He said that for these reasons the decision of the Board should be quashed.

Respondent's contention

Mr. Tuberi for the Respondent submitted that because there was a hearing and the parties were heard on "both the applications" this is evidence enough that there was no denial of natural justice.

The learned Counsel submits that the alleged lunch was not organised by the Interested Party and that it was after the decision had already been made.

On the question of bias the Respondent says that it "supports and wholly agrees with the discussion and submission on the law of bias by the Interested Party which was filed on the 16th February 1998". Mr. Tuberi says that the Applicant is relying heavily on 'bias' to support its claim for certiorari.

On the matter of "abuse of discretion", Mr. Tuberi submits that the Board had not abused its discretion. He says that the "Applicant's application was dismissed because it provided the same timetable as supplied by the interested Party". The Board exercised its discretion under section 66 of the Act. The Applicant's substantial investment, he says, is an irrelevant matter.

Mr. Tuberi submits that the 'guidelines' of the Board was abandoned well before the present application came before it because it affected the exercise of its discretion.

On 'legitimate expectation', he submitted that no question of this arises in the exercise of discretion on the part of the Board under the Act.

As for "reasons" he said that the Applicant could have obtained this had he applied for it.

Interested Party's contention

Mr. Lala commenced by dealing with the aspect whether the Board was required to give reasons. He relied on the Court of Appeal case of PACIFIC TRANSPORT COMPANY LIMITED v MOHAMMED JALIL KHAN & TRANSPORT CONTROL BOARD (Civ. App. No. ABU0021 of 1996). He referred to a number of other authorities. In short his argument boils down to this that there is no obligation to give reasons. He also dealt with the reason for the abandonment of the 'guidelines' by the Board which was that it affected the exercise of its discretion.

On the aspect of bias Mr. Lala referred to a number of authorities. He submitted that in this case the allegation of bias is "baseless and cannot be supported by legal standards". The reasons he gives in his submission are as follows:-

1) Firstly and most importantly, the lunch was not organised by Mr. Kamal Deo, the director of Latchman Buses LTD, but was organised by Mr. Parmod Kumar on behalf of Northern Bus operators. (as per affidavit of Gyaneshwar Chandra Naidu, annexed and marked "A"). Also that Providing lunch of this nature was custom and tradition of Northern Buses operators, as entertaining the TCB officials on their visit to Northern division.

2) That Mr Kamal Deo nor did any of his employees attended the lunch with any TCB officials.

3) That the lunch was after the decision was handed down by TCB.

4) That Mr. Deo only offered to pay since no body was there.

In the present case the main issues is that of a "suspicion of bias". The test as to this matter as gathered from the relevant law mentioned above is that "would a reasonable person knowing all the facts available to the court suspect that the decision maker might have been biased.

The important feature according to this test which has over the years developed is that of "Knowledge of facts" when suspicion of bias is presumed.

Also considered should be the decision of Stollery v Greyhound Racing Control Board, [1972] HCA 53; (1972) 128 CLR 509 at 519 that a mere suspicion of bias is not enough. The party alleging bias must establish it by admissible evidence.

Also considered should be the issue raised by Mason J in Renaud [1986] HCA 39; (1986) 60 ALJR 528 that of to "immobilise tribunals simply by reciting that justice must appear to be done."

Mr. Lala submitted that 'legitimate expectation' principle does not apply here. He outlined the law on the subject. He stated that in this case if the "Applicants were to have legitimate expectation, then the expectation would result in the Applicant having exclusive licence for the route in question. This would contravene the Fair Trading Decree which would constitute a monopoly to the Applicants." It will result in not promoting "the interests of consumers and will not develop the industry as efficient and effective also it would not prevent the unfair and undesirable trade practices". Mr. Lala concluded by saying that the "decision of legitimate expectation may arise from one explicit statement to the applicant individually or as one of the class. However, the expectation, when it exists, is of one being heard before one's application is rejected, it is not a right to receive the desired benefit.

Consideration of the issues

I have for my consideration very comprehensive written submissions from all three Counsel and I have given them due weight.

The decision of the Board when it granted the interested party the licence to operate the route in question whilst rejecting the Applicant's application has given rise to this judicial review.

As is well-known in an application for judicial review the Court is concerned not as much with the merits of the decision as with the process by which the decision was reached. In REG v INLAND REVENUE COMMISSION, Ex parte PRESTON [1984] UKHL 5; (1985) A.C. 835 at 862, LORD TEMPLEMAN on this aspect said:

"Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers".

In a judicial review Courts ensure that the administrative actions are intra vires and keep within the bounds of their authority. These actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless a statute, expressly or by clear implication provides a contrary intention.

In the first ground the Applicant alleged that the Board acted in breach of the rules of natural justice and that it was "unfairly biased" in favour of the interested party.

Subject to what I say hereafter, on the affidavit evidence before me I find that as far as the hearing of the applications goes, at the commencement there was one with the parties present. Under s66(2) of the Traffic Act the Board proceeded to consider the Applications and after a private session with the director Kamal Deo Prasad (of the interested party) approved that of the interested party. As for allegation regarding the use of guidelines it has no merit as at the time of the hearing it (the guidelines) had already been abandoned and in fact the Board did not have to consider any guidelines in the exercise of its discretion under the said section.

However, on the evidence which I accept I find that what actually marred the proceedings is the element of 'unfairness' and 'bias' on the part of the Board in some respects outlined by the Applicant in its affidavit. There was unfairness in the manner in which the decision was reached. This is an important head of challenge. The relevant evidence in this regard is as hereunder. Under clause 8 of the Applicant's affidavit it is alleged:

After the hearing of these applications the Board called Latchman Buses Limited's Director Kamal Deo Prasad and his two brothers Ravin Deo Prasad and Rajendra Deo Prasad for a private meeting to sort out their dispute. After a short while Ravin Deo Prasad and Rajendra Deo Prasad came out and Kamal Deo Prasad remained with the Board for further ten minutes.

During this time Ravin Deo Prasad came and advised us outside that Latchman Buses Limited was going to get the Labasa/Savusavu Licence.

9. THAT afterwards the Transport Control Board called us in and wrongly approved the application of Latchman buses Limited without giving any reasons. It was very very unusual that Latchman Buses Limited's application was approved when the same was defective and Latchman Buses Limited was not an operator in the area and did not have any buses.

The Chairman announced this decision but made no announcement as to what had been done about the Applicant's competing application.

The reply to this passage is contained in clause 9 of the Board's affidavit sworn by the Secretary of the Board on 22 April 1997. It stated:

9.(iii) The Respondent action in meeting with the Prasad's brothers did not affect the hearing as the Applicant pointed out that the purpose was for the brothers to sort out their differences.

In reply Mr. Kamal Deo Prasad of the interested party swore an affidavit on 26 April 1997 stating that "allegations contained in paragraph 8 of the affidavit of the applicant are malicious and false. I refer to the affidavit filed in this Court by secretary of the Transport Control Board in which reference is made to the said allegation and I adopt the reply therein".

In is clear from what the Secretary to the Board stated in his affidavits and with which Mr. Kamal Deo Prasad agreed, there is no denial of the Applicant's said allegation on the issue of unfairness and bias.

The way the Board went about dealing with the Applications particularly the private session with only the interested party present points to likelihood of bias and unfairness.

Bias

Another form of "procedural unfairness" is "bias". On this aspect I find the following passage from the judgment of LORD MUSTILL in DODDY v SECRETARY OF STATE FOR THE HOME DEPARTMENT (1995) 3 All E R 92 at 106 pertinent:

"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following:

(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may-weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

On the whole of the evidence before me I find this to be a strong case of bias on the part of the members of the Board. This situation has arisen particularly as a result of the Board's decision to hold a private meeting with the said Kamal Deo Prasad (a director in the company - the interested party) and his two brothers to the exclusion of the Applicant without its consent or agreement. The fact that there was this meeting in camera is not denied by either the Board or the interested party and the reason for holding this meeting is very vague and unconvincing amounting to no reason at all on the evidence. Immediately after this meeting the two brothers came out leaving behind Kamal Prasad for further 10 minutes and then the Applicant and its counsel were called in and without any further discussion the Board's decision was announced. It announced that Latchman Buses Limited's (interested party's) application was approved.

Thereafter the meeting was adjourned for lunch which was at a Restaurant. It was attended by the Board members and staff of the Transport Control Board. There is some dispute as to who organised the lunch, but it is admitted that Kamal Deo Prasad paid for it and the reason given was because "no one else was there" whatever that means.

I say this without hesitation that these two factors, namely, the private meeting and the lunch have tainted the decision of the Board pointing squarely to 'bias' on the part of the Board thus vitiating the Board's decision. Whether the lunch was before or after the Board meeting is neither here nor there. To have a private meeting, for which there should not be any need unless with the consent of the other party which is excluded, and then going for lunch which is paid for by the successful applicant to which other applicant does not appear to have been invited is inviting criticism of the manner in which the Board conducted its meeting and deciding on matters which are of a quasi-judicial nature.

It is of fundamental importance that judges, tribunals and boards are free from bias particularly those which are regarded as undesirable in a judge.

The justification for quashing a decision irrespective of whether the tribunal was in fact biased is to be found in LORD HEWART'S dictum that "it is of fundamental importance that justice should both be done and be manifestly seen to be done" (R v SUSSEX JJ, ex p. McCarthy [1923] EWHC KB 1; 1924 1 KB 256, 259)

What is 'bias' and its significance has been clearly stated in the judgment of LORD THANKERTON in FRANKLIN v MINISTER OF TOWN AND COUNTRY PLANNING [1947] UKHL 3; (1948) AC 87 at p103 - 104 and it is worth bearing in mind in the context of this judicial review. It is as follows:

I could wish that the use of the word "bias" should be confined to its proper sphere. Its proper significance, in my opinion, is to denote a departure from the standard of even-handed justice which the law requires from those who occupy judicial office, or those who are commonly regarded as holding a quasi-judicial office, such as an arbitrator. The reason for this clearly is that, having to adjudicate as between two or more parties, he must come to his adjudication with an independent mind, without any inclination or bias towards one side or other in the dispute. (emphasis mine)

He goes on to say ibid:

As Lord Cranworth L.C. says in Ranger v. Great Western Ry. Co (I): "A judge ought to be, and is supposed to be, indifferent between the parties. He has, or is supposed to have, no bias inducing him to lean to the one side rather than to the other. In ordinary cases it is a just ground of exception to a judge that he is not indifferent, and the fact that he is himself a party, or interested as a party, affords the strongest proof that he cannot be indifferent." To this may be added the statement by Lord Hewart C.J. in Rex v. Sussex Justices. Ex parte McCarthy (2): "It is said, and, no doubt, truly, that when that gentleman (the deputy clerk) "retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done". (emphasis added)

I would very much like to refer to the Queen's Bench Divisional Court case of R v STRATFORD-upon-AVON JUSTICE, ex p. EDMONDS (1973 Crim. L. R. p.241) presided over by Lordery CJ where the facts were so close to the case bese before me that the decision therein need to be stated so as to bring to the attention of the Board that its decision could be vitiated if there is a lapse in the procedure of the nature as has occurred in this case. In EDMOND (supra) it was held:

granting the application, that, as appeared from R. v. East Kerrier Justices, Ex p. Mundy [1952] 2 Q.B. 719 and R. v. Bodmin Justices, Ex p. McEwen [1947] K.B. 321, it was necessary not only that justice should be done but also that it should manifestly be seen to be done. The informant, although acting bona fide, acted far too impetuously. Bearing in mind that he was a senior police officer as well as the informant in relation to the charge being considered by the justices, and even though the visit was brief and the conversation only a matter of a few seconds within the retiring room, it resulted in justice not manifestly being seen to be done by anyone in court. (Per Eveleigh J.). The mere fact that a person, even an informant, was seen to go into the justices' retiring room would not of itself allow an application for certiorari to succeed, but the impression created by the informant was that he went specifically to make a point and, as he was heard to speak while in the room, any onlooker could be excused for thinking that the informant had had the opportunity to make the point. The order of certiorari would go. (emphasis added)

The commentary on this case which is as follows is worth noting:

It will invalidate a conviction if evidence is given or appears to be given to justices otherwise than in open court, because the defendant has no means of dealing with it. It would appear that the result in the present case might have been different if the justices had made clear in open court that they had received no evidence from the informant. Devlin J. thought that a conviction could be upheld where the justices had wrongly received evidence of previous convictions after deciding to convict but before announcing their decision in open court, if "the error was publicly corrected, and no person who sat in the court, unless he was going to suggest that the justices had acted in bad faith ... could have left the hearing under the impression that some injustice had been done." [1952] 2 Q.B. at p. 724.

At the risk of being lengthy, on the point of test to be applied whether there is bias, I refer to the following quotation from the judgment of CHARLES J.A. in THE MAGISTRATES' COURT AT PRAHRAN v MURPHY (1997) 2 V.R. (C.A) 186 at 207 quoting from WEBB v R [1994] HCA 30; (1994) 181 CLR 41, where MASON C.J. and McHUGH J said at 47:

When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case.... The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of "fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done." (emphasis added)

Deane J. said, at 67-8, that:

In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances, a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue....[t]he test directly reflects its rationale, namely, that it is of fundamental importance that the parties to litigation and the general public have full confidence in the integrity, including the impartiality, of those entrusted with the administration of justice. However, the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer.

In this case after hearing and after seeing the Applicants in private the Board announced its decision without giving any reason as to how it has arrived at it although in law it is not mandatory to do so. How can the Board Secretary say that this procedure namely its private hearing "did not affect the hearing" is beyond my comprehension, if anything, it created in the mind of the Applicant the likelihood of bias. This situation should have been avoided by the Board.

The abrupt decision after the private meeting meant that the Applicant was not being given the opportunity of being fully heard based on the authority of R v BURTON-upon-TRENT JUSTICES ex parte HUSSAIN (April 1996 Adm.L.R. p.233). There POTTS Jat p.237 said that "the justices made no findings of fact and gave no reasons for their decision. In my judgment they ought to have done both". He said that had they done this "the applicant would have been informed of the basis upon which the court reached its decision. In my judgment, the applicant was entitled to be so informed". There it was held that because of the failure to make findings of fact and to give reasons there was a denial of natural justice.

On the right to be heard in full as opposed to hearing partly in camera, for which there should not be any need, it is amplified by the following passage from the judgment of LORD GODDARD C.J in REX v TORQUAY LICENSING JUSTICES Ex parte BROCKMAN (1951) 2 K.B. 784 at 785 C.A. which I consider apt:

That there is no objection to justices deciding among themselves the general lines upon which they will exercise their judicial discretion has been recognized in a number of cases, and the first to which we will refer is Reg. v Walsall Justices (8), decided as long ago as 1854. There the justices had made it known that they would not hear applications for any new licenses, and, when an application was made to them at the annual licensing meeting, they refused to hear what was to be urged on behalf of the applicant. The court held that the justices were not entitled to take up that position - that as the applicant wished to be heard he was entitled to be heard; but it is quite clear that the court considered that there was nothing wrong in the justices prescribing a policy for themselves, although they were bound to hear any application which a person was entitled to make and it would be for them to decide whether the general policy was to be applied in that particular case. Lord Campbell, C.J., said (9): "The justices cannot exercise the discretion reposed in them unless they hear the facts and arguments which the applicant is prepared to adduce". Erle, J., said (9): "There may have been good reasons why a general resolution, otherwise proper, ought not to be applied in the case of this individual". The observation of that judge seems to contain the kernel of the matter: the justices cannot make a rule to be applied in every case without hearing it. They may lay down for themselves a general rule but are bound to consider whether it is applicable to any particular case. (emphasis mine).

In this case the very nature of the case necessitated that the Board make its practice public for the information of all concerned. There is nothing in evidence to show to what extent the provisions of Fair Trading Decree was invoked, if at all. In this regard the following statement of SALTER J in REX v HOLBORN LICENSING JUSTICES Ex parte STRATFORD CATERING COMPANY LIMITED 42 TLR 778 at 781 is apt:

.....it is impossible to prevent [justices], in the privacy of their own room, from adopting any standard or practice which seems to them right, and, if they do, I think it is both right and convenient that they should state their practice publicly for the information of all concerned. They must, of course, apply their minds properly to the circumstances of each particular case"

This shows that there is nothing wrong in the Board laying down a line of policy for themselves, provided that they consider whether a particular case before them calls for the application of that policy.

There are numerous authorities on the subject of the right to be heard. In ANNETTS v McCANN 170 CLR 596 at 598 the High Court of Australia said:

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interest and legitimate expectations the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

This involves having an opportunity to be heard and Dixon CJ in The Commissioner of Police v. Tanos [1958] HCA 6; 98 CLR 383 at 395 said -

For it is deep rooted principle of the law that before anyone can be punished and prejudiced in his person or property by any judicial or quasi judicial proceedings he must be afforded an adequate opportunity of being heard.

Reasons for decision

On the aspect of the need to give reasons I refer to the case I decided recently, (STATE v TRANSPORT CONTROL BOARD J.R. No. 17 of 1994 - judgment 21.8.98). I have though touched upon the need to give reasons bearing in mind the facts and circumstances surrounding the Applications. Obtaining the reasons by writing to the Board is no answer to the allegation pertaining to the absence of reasons behind the decision.

In a situation such as the one prevailing here the Court in Ex parte HUSSAIN (supra) at p.237 upheld the submission requiring the Authority to give reasons. There POTTS J said that "the decision letter did not sufficiently inform the applicant of the ground or grounds on which the licensing Authority had concluded that revocation was appropriate". There the licensing Authority "simply informed the applicant that his driver's licence was revoked under s62(1)(a), (b), (c) and (d), but failed to specify what the applicant had done or tried to do in order to justify revocation".

To give or not to give reasons in Transport Control Board cases have been fully discussed by the Court of Appeal in PACIFIC TRANSPORT COMPANY LTD (supra) where at p.2 it states:

The Act does not impose any express obligation on the TCB to give reasons for its decisions, nor does any other statute; however, when a decision inconsistent with policy which has previously been applied, the absence of any statement of reasons for departing from that policy can raise a doubt whether the tribunal gave proper consideration to relevant matters before reaching its decision.

The Court goes on to discuss this matter and referred to its own earlier decision in AKBAR BUSES LTD v TRANSPORT CONTROL BOARD (unreported 27 July 1984 Civ. App. No. 9 of 1984) where it recommended to the TCB that it should always give brief reasons for its decisions. It goes on to state:

The basis for this recommendation can be found in the various authorities which had been collected in another unreported decision of the Court given at the same sessions (Rajendra Nath v. Madhur Lata (13th July 1984, Civil Appeal No. 11 of 1984). In Nath's case there had been a right of appeal from the decision for which no reasons had been provided, a fact which made the provision of reasons even more desirable.

The Court of Appeal had gleaned from certain High Court decisions that TCB had not been following the recommendations of the Appeal Court in AKBAR BUSES (supra) nor its own guidelines.

To conclude on this aspect it was necessary for the Board to have given reasons for its decision on the facts and circumstances of this case.

The last ground is that the Board acted contrary to the 'legitimate expectation' of the Applicant. For the reasons given there is no merit in this ground.

Conclusion

To conclude I grant Judicial Review of the Respondent's decision for the above reasons particularly on the ground of bias (procedural unfairness), also, although not mandatory, reasons were not given for the decision when these were warranted on the facts and circumstances of this case and also the Applicant was not given a proper hearing by taking into account irrelevant considerations the Board acted ultra vires thus contravening the provisions of section 66 of the Traffic Act resulting in the denial of natural justice.

It is therefore ordered that certiorari go to quash the decision of the Respondent of 2 April 1997 granting LATCHMAN BUSES LIMITED (the Interested Party) the licence to operate an express service between Savusavu and Labasa with costs against the Interested Party to be paid to the Applicant to be taxed if not agreed.

D. Pathik
Judge

At Suva
8 September 1998

Hbj0007j.97s