Fiji Bus Operators Association v Kelton Investments Limited No 2 [1999] FJHC 30; Hbc0024d.99s (6 May 1999)

Fiji Islands - Fiji Bus Operators Association v Kelton Investments Limited No. 2 - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 24 OF 1999

:

FIJI BUS OPERATORS ASSOCIATION
Plaintiff

AND:

KELTON INVESTMENTS LIMITED
Defendant

Mr. H. Lateef for the Defendant

DECISION

This is Fiji Bus tors Association's (the "Plaintiff's") application for an order that the defe defendant 'be restrained from permitting or allowing the operation of Minibuses from its property comprised in Certificates of Title Nos. 51/5044, 5969 and 6247 and situate at Rodwell Road, Suva' (the "property") and 'interfering in any manner whatsoever with the said property until the hearing and determination of this action or until further Order'.

In support of its application the plaintiff which is a registered industrial association has filed an affidavit sworn 20 January 1999. The plaintiff has also issued a Writ of Summons herein wherein it seeks orders for an injunction and damages.

The plaintiff says that the defendant is a limited liability company and is the registered proprietor of the property. It complains that the defendant has allocated "a base for sixteen illegal Minibuses in the car park on the said property" whereby it says that the defendant is in breach of section 62(1) of the Land Transport Act "by causing or permitting a non-licensed public service vehicle to be driven".

It further states that "the operations of these illegal Minibus from opposite the Bus Station is causing substantial and irreparable loss and damage to the plaintiff's members".

The defendant has filed an affidavit in response and states, inter alia, that it has not provided a 'base' but 'space' in its car park which is open to all shoppers and is open to anyone who pays car park fees. It says that the plaintiff's action "if any should be against either illegal minibus operators or the authority concerned in policing such alleged illegal practices". The defendant denies that it has in any way permitted the Minibus Operators from operating illegal services.

As ordered both counsel filed written submissions herein and I have given due consideration to the arguments put forward in them.

Determination of the issue

The issue for my determination is whether I should grant an injunction as prayed on the facts and circumstances of this case.

The Fiji Times advertisement in annexure 'A' to Ajit Singh's affidavit (for the plaintiff) clearly states that the defendant will offer a "base" to "all minibus operators interested in a permanent base" and in fact it did give a 'base' according to a report in the Fiji Times (vide annexure "B"). However, it says now that the word "base" in the Fiji Times is incorrect and should refer to "car park space". It admits that the "bases can only be allocated by the Council and not the Defendant". But the affidavit of Stephen Reid, a director of Discount Traders (one of the lessees of the property) says that the defendant "has solved the problems by providing spaces to the minibus inside the car park on a rental basis".

It is quite clear from the affidavit evidence before me that the defendant has under the guise of "car park space" allocated 'bases' to the Minibus Operators who are unlicensed which is likely to give rise to 'permitting' under s.60(10) of the Traffic Act. One cannot throw one's common sense out the window. I reject altogether Michael Ah Koy's assertion that he does not know whether they (the Minibus Operators) have licences to operate or not when the whole of Fiji knows about it. Mr. Kapadia's analogy in the Defendant's case 'to women loitering outside a hotel and soliciting for prostitution' is interesting indeed but may not fit the circumstances of this case to that extent.

From the 'car space' provided to the Minibus Operators the defendant has given them a 'base' to operate from and it is this operation without a proper licence under the Traffic Act which is the bone of contention. On the facts and circumstances of this case Mr. Lateef's argument to the effect that you can do anything you like on your land holds no water and is not a plausible argument on the evidence before me.

Since I have gone slightly more into the 'merits' of this case, it is proper that I add at this stage that on an application for an interlocutory injunction, the authorities suggest that the court 'should not normally attempt to determine which side is more likely to win at trial, the court may, in an appropriate case, express fairly strong views about the merits, particularly where there is no significant factual issue and where to do so many save the parties time and expense by producing an early resolution of the dispute'. (Headnote to B & W CABS LIMITED (Receiver and Manager appointed) v BRISBANE CABS PTY LTD & Another [(1991) 30 FCR 177 - judgment of PINCUS J].

The above principle I consider is appropriate to the case before me and I adopt it here. As I see it, the only serious issue is whether to grant an injunction with nothing left to be decided except damages, if any. Hence if injunction is granted that should solve the issue between the parties without proceeding to trial. Nothing significantly new is likely to emerge at the trial and the parties may treat the matter as sufficiently determined without proceeding any further.

For these reasons I find that the case is of sufficient strength to warrant an interim relief by way of interlocutory injunction which I grant as prayed until further order of this Court with costs in the cause.

D. Pathik
JUDGE

At Suva
6 May 1999

Hbc0024d.99s