Fiji Bus Operators' Association v Land Transport Authority [2002] FJHC 233; HBA0001J.2002S (1 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No.: HBA0001 of 2002

BETWEEN:

FIJI BUS OPERATORS’ ASSOCIATION
LATCHAN’S EXPRESS SERVICE LIMITED
TEBARA TRANSPORT LIMITED
ISLAND BUS LIMITED
SUNBEAM TRANSPORT LIMITED and
TACIRUA TRANSPORT COMPANY LIMITED
Appellants

AND:

LAND TRANSPORT AUTHORITY
JINESH PRASAD & 25 OTHERS
Respondents

Mr. V. Kapadia - Counsel for Appellants
Mr. J. Apted - Counsel for 1st Respondent
In Person - 2nd Respondent

JUDGMENT

At the outset I must apologize to the parties for the delay in delivering the judgment.

This is an appeal from the decision of the Lands Transport Appeals Tribunal dated 19th December 2001 by the appellants Fiji Bus Operators Association and others.

The appeal arises under the provisions of the recently enacted Land Transport Act 1998 and Land Transport (Amendment) Act 1999 which replaced the Traffic Act and brought about certain changes to the traffic laws. One of the major changes was the introduction of permits for mini buses. The second respondents had applied for mini bus permits to the Land Transport Authority, which, despite objections from the appellants granted permits to the twenty-six respondents. The appellants appealed to the Land Transport Appeals Tribunal under the provisions of Section 45 of the Land Transport Act which permits appeals against the decision of the Authority to the Appeals Tribunal. The Appeals Tribunal dismissed the appeal and refused to set aside the grant of mini bus permits to the twenty-six respondents. This appeal is against the decision of the Appeals Tribunal refusing to set aside the mini bus permits issued by the Land Transport Authority.

This appeal is confined to errors of law. Section 48 of the Land Transport Act, which allows appeals from the decision of the Appeals Tribunal, reads:

'A decision of the Tribunal shall be subject to an appeal, only on points of law, to the High Court.'

Therefore the appeal is limited in its scope to points of law only. In explaining what is the meaning of 'points of law' Lord Denning in INSTRUMATIC LTD. v. SUPABRASE LTD. 1969 2 ALL E.R. 131 at page 132 remarked as follows:

'There are many tribunals from which an appeal lies only on a 'point of law'; and we always interpret the provision widely and liberally. In most of the cases the tribunal finds the primary facts (which cannot be challenged on appeal); and the question at issue is what is the proper inference from those facts. In such cases, if a tribunal draws an inference, which cannot reasonably be drawn, it errs on point of law, and its decision can be reviewed by the courts. That was settled, once and for all, in EDWARDS (Inspector of Taxes) v. BAIRSTOW [1955] UKHL 3; 1955 3 ALL E.R. 48. In other cases the question is whether, given the primary facts, the tribunal rightly exercised its discretion. In such cases, if the tribunal exercises its discretion is a way which is plainly wrong, it errs on point of law, and its decision can be reviewed by the courts.'

So Lord Denning sees matters on points of law arising in two circumstances; namely, drawing of improper inferences from primary facts and exercise of discretion which is plainly wrong in light of primary facts.

The Supreme Court of Australia, Northern Territory gave a more detailed and helpful approach to the consideration of 'point of law' in WILSON v. LOWERY [1993] NTCA 127; 1893 110 F.L.R. 142.

'The authorities have been conveniently summarized ... We venture to repeat them:

1. In the process of arriving at an ultimate conclusion a trial judge goes though a number of stages. The first stage is to find the preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies.
   
2. Regardless of the trial judge’s reasons, if there is evidence which, if believed, would support the finding, there is no error of law.
   
3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case fell within the words of the statute ... there is an error of law.
   
4. But, a finding of fact cannot be disturbed on the basis that it is ‘perverse’, or ‘against the evidence or the weight of the evidence or contrary to the overwhelming weight of evidence’. Nor may this Court review a finding of fact merely because it is alleged to ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made, and even if the reasoning was demonstrably unsound: Haines v. Leves (1987) 8 N.S.W. L.R. 442 at 479-470.
   
5. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject to the same limitations that apply to primary facts.
   
6. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law.
   
7. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be drawn, it errs in point of law and its decision can be reviewed by the courts: Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 W.L.R. 519 at 521; [1969] 2 ALL E.R. 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v. Bairstow [1956] A.C. 1.'
   

The appellant filed nine (9) grounds of appeal. Grounds 1 and 2 which were argued together are as follows:

'1. The Land Transport Appeals Tribunal (The Tribunal) erred in law in not holding that in respect of the SUVA/NAUSORI mini bus permit applications the condition that the first trip drop passengers at Walu Bay, Civic Centre and Government Buildings is in breach of the Land Transport Authority Act (the Act) and of the Land Transport (Public Service Vehicles) Regulations (the Regulations) in that no mini bus stands or bases have ever been gazetted for these areas, no particular place specified and the condition in itself impossible to police.

2. The Tribunal erred in law in holding at paragraph 28 that the Land Transport Authority (the Authority) was entitled to infer that the people who would travel daily from Nausori to work in Suva would prefer to get off their transport closest to the place of work, rather than being obliged to disembark only at Raiwaqa Market car park when such inference cannot be drawn from the facts as there are good reasons for no gazetted mini bus stands at Walu Bay, Civic Centre and Government Buildings as a result of which no mini bus can stop at those places.'
   

Even though the above two grounds of appeal refer only to three places that is Walu Bay, Civic Centre and Government Buildings, the appellants written submissions referred also to Nadi Airport, Nadi, Sigatoka, Vatoa and Nabale. The appellant submitted that the Authority in allowing passengers to be dropped at Walu Bay, Civic Centre and Government Buildings by the mini buses and in allowing mini buses to pick and drop passengers at Nadi Airport, Sigatoka, Vatoa and Nabale acted in contravention of Regulations 47. The appellant submitted that since various places were not gazetted as bases or stands, the grant of permit allowing the mini buses to pick and drop passengers from these points breaches Regulation 47.

The Traffic Act that has been repealed by the Land Transport Act did not provide for mini bus permits. There was no provision for mini bus permits under the Land Transport 1998. Provision for mini bus permits was brought about by the Land Transport (Amendment) Act 1999 being Act number 27 of 1999. It amended Section 65 of the Land Transport Act by adding a new paragraph (e) to Section 65(2). Section 65(2)(e) enables a person to apply to the Authority for a 'mini bus permit which authorizes the use of a vehicle licensed as a mini bus, subject to this Act and licence and permit conditions, to ply or stand for hire in a base for which it is issued, or from an approved stand outside that base, for the carriage of passengers within, from or to that base.'

A mini bus licence can only be issued for a motor vehicle equipped to carry not less than eight nor more than fifteen persons excluding the driver – Section 63(3)(e) as amended by the Land Transport (Amendment) Act 27 of 1999.

For sake of completeness, other forms of public service permits, which may be issued under Section 63(3), are:

1. taxi permit where the vehicle must be equipped to carry not less than four nor more than five persons excluding the driver.
   
2. Rental permit where vehicle must be equipped to carry no more than eight persons excluding the driver.
   
3. a hire vehicle permit where the vehicle must be equipped to carry not less than four nor more than eight persons excluding the driver.
   
4. a road service permit where the vehicle an omnibus is equipped to carry not less than sixteen persons excluding the driver.
   
5. a road service permit for carriers designed to carry both goods and passengers but passengers sit in a different compartment from that of the driver.
   

The passenger capacity for mini bus is therefore confined to between the maximum capacity for rental permit or hire permit and minimum capacity of an omnibus that is a mid range capacity.

The legislature it appears had deemed it fit to provide for different types of public service permits with varying capacities to provide for effective road transport in Fiji. There are variations to the way in which these holders of such permits can operate their vehicles.

The appellants submit that Regulation 47 of the Land Transport (Public Service Vehicles) Regulations 2000 had been breached by the Authority in allowing mini bus operators to drop passengers in three stipulated places namely Walu Bay, Civic Centre and Government Buildings.

Regulation 47 reads as follows:

'1. A mini bus must not –

(a) stand or ply for hire from a point other than a stand or base from which it is authorized to operate;
(b) stop to pick up a passenger within 300m of a bus stop, bus stand or taxi stand except from a stand from which the mini bus is authorized to operate;
(c) stop in any place which would create a hazard to passengers, pedestrians or other road users or delay other traffic;

2. Subject to sub-regulation (1)(b), a mini bus may stop for the purpose of picking up a passenger at a place while –
   
   • (a) travelling to its terminus stand;
   • (b) returning to its original stand which the mini bus is authorized to operate under the conditions of its mini bus permit.'
     

Regulation 49(2) also deals with picking and dropping of passengers. It reads:

'A driver of a mini bus may pick up or set down passengers along the route specified in the permit.'

Section 49(2) allows a mini bus to pick and drop passengers along the defined route specified in the permit. There are certain restriction placed on this general permission by virtue of Section 47 of the Regulation. A mini bus cannot pick passengers from within 300 metres of a bus stand, bus stop or taxi stand unless the mini bus stand is located within that 300 metre zone. Hence within the 300-metre zone a mini bus cannot pick a passenger even if a passenger hails it to stop. On the other hand it may stop to drop a passenger within the 300-metre zone provided Regulation 47(c) is not breached in that no obstruction is caused.

The appellants’ submission in concluding that mini buses can operate so that they may only drop passengers at a stand or base from which the mini bus is authorized to operate ignores the provisions of Section 49(2) of the Regulation altogether. Regulations 47 to 49 must be read together to see what is allowed and what is not.

Regulation 47(a) deals with actively soliciting. A mini bus can only solicit for business from the allocated stand, the starting point of its journey. It cannot do that once it has moved from its stand. En route it can only stop to pick a passenger if hailed by a passenger subject to Regulation 47(b) and (c). It cannot wander away from its defined route in search of passengers.

It is clear from Regulation 7(1)(d) of Land Transport (Public Service Regulations) 2000 that the authority has powers to impose conditions in addition to those prescribed by Regulations for convenience of the public.

Regulation 7(1)(d) reads as follows:

'In addition to the conditions prescribed in respect of permits, either generally or in particular cases or classes of cases, the Authority when issuing a permit may impose any condition or restriction the Authority thinks fit on matters that the Authority is required to have regard to when considering applications for permits and in particular for ensuring that –

(d) ... any time tables to be observed and any picking up or setting down places to be used in the service carried on under the permit comply with any requirements the Authority specifies;

and generally for securing the safety and convenience of the public.'

The power granted under Regulation 7 is fairly broad and discretionary. The words are 'may impose'.

Convenience of public would be best served by travelling public or workers being dropped off as close as possible to the place of work instead of being dropped off at Raiwaqa and thus having to catch another transport which would be both a waste of time and money.

The Tribunal in its decision at paragraph 28 said 'that the several thousand who traveled from Nausori daily to work in Suva would much prefer to get off their transport closest to their place of work'. This is axiomatic and it is also in harmony with the spirit of Section 8(1)(b) of the Act as the Tribunal ruled and also Regulation 7(1)(d) as stated above.

Section 8(1)(b) of the Act says one of the functions of the Authority is to ensure road transport passenger services adequate to meet requirements of the public.

It is obvious that the public requires transport system which can take them closest to their place of works in the cheapest form with minimum loss of time.

Further when one looks at the composition of the Authority it can be noted that these are people who have knowledge of matters in the field of transport and they may well have used that knowledge and expertise to reach certain conclusions. The composition of the authority, which is subject of Section 7 of the Act, requires the Minister among others to appoint five members 'who in his opinion have experience and expertise in the areas covered by the functions of the Authority'.

A specialized Tribunal with members who possess particular skills and knowledge has a distinct advantage over courts, which may be unfamiliar with circumstances prevailing in that particular field. That is a strong factor to bear in mind and courts are generally reluctant to interfere with conclusions of such tribunals. This is probably the reason why appeals from the Land Transport Appeals Tribunal are confined to points of law.

The appellant further submitted that the words 'base' and 'stand' are used interchangeably. The word 'base' is not defined in the Land Transport Act or the Regulations. It was, however, defined in the Traffic (Taxis and Rental Cars) Regulation which have now been repealed. Section 2 of those regulations defined 'base' as an 'area specified in a permit granted in respect of a motor vehicle, from or within which such motor vehicle is authorized to operate.'

The word 'stand' is defined in the Land Transport Act in respect of taxi but not for mini buses. Section 2 of the Land Transport Act says –

'Stand when used in relation to a parking place for taxis means a parking area provided by the appropriate council or rural local authority or highway authority for use by taxis.'

Neither term is defined in the Act for the purposes of a mini bus. However, looking at Section 65(2)(b) of the Act it appears that the two words are not synonymous. Section 65(2)(e) refers to 'carriage of passengers within, from, or to that base.' If base and stand were interchangeable terms, then one may ask the question how does one carry passengers within a stand? Would a passenger ever take a ride within a stand? The section also talks of approved stand outside that base. The only logical conclusion one can draw from this is that the terms are not interchangeable. Base is a much wider concept in terms of area covered than a stand. A stand is a specific location outside the base whereas a base is a general area. The interpretation placed upon these words by the first respondent is the correct one.

The Authority may therefore allow a mini bus to ply for hire from two different places namely from the base or from an approved stand outside that base for carriage of passengers to that base or vice versa.

GAZETTING OF BASES AND STANDS

The appellant further submitted that since the bases or stands for Walu Bay, Government Buildings and Civic Centre were not gazetted, both the Authority and the Tribunal acted in breach of Section 65(2)(e) and Regulation 47. The Authority and the Tribunal only permitted the mini bus operators to drop passengers on the first trip at these points and not to ply for hire from there. These drop off points are not a stand so there is no need to gazette.

The same principles apply to the permits granted to mini buses to pick and drop passengers at Nadi Airport, Sigatoka, Vatoa and Nabala. The Tribunal was therefore correct in upholding that there was no need to gazette these nor is there any restriction on picking passengers who hail a mini bus en route in view of Section 49(2).

The appellants further submitted that bases and stands must be gazetted before permits are issued. There is no section in the Act which requires that bases and stands be gazetted before mini bus permits may be issued. In sharp contrast Section 3(5) of the Regulation forbids the Authority from dealing with taxi permits unless an 'applicant provides a written notification from the appropriate council or rural local authority stating the taxi stand to be used if the application is approved.'

Section 113 of the Act gives the Minister power to make regulations. He consults the Authority before making regulations. He has discretion in making regulation. The key words are may make regulations. The relevant provisions for purposes of this appeal are contained in Section 113(4)(d) and (q), which read as follows:

S.113(4) 'The Minister, after consultation with the Authority, may make regulations necessary to give effect to the provisions of this Act.

(d) prescribe the requirements to be fulfilled and the conditions to be observed by the owners of public service vehicles and holders of public service permits and persons employed in relation thereto and regulate the conduct of such persons in carrying out their duties;

(q) prescribe routes, bases, and other local divisions of the Fiji Islands or any part of them to be serviced by public service vehicles.'

Mr. Kapadia further submitted that by virtue of Section 107 of the Local Government Act all streets within the City of Suva are vested in the Council. There are by-laws for buses and taxis. Mr. Kapadia further submitted that the Authority in allowing drop off points acted contrary to advice given to it by the Traffic and Public Transport Committee of Suva City Council to the effect.

'The Land Transport Authority be advised that there should not be any other pick up or drop off points at any other areas within the City of Suva except as specified above.'

One would expect that in normal course the Land Transport Authority would act in close consultation with the City Council. However, it has not done so. In doing so the Land Transport Authority has acted in contravention of the resolution of the Council but that does not render the grant of permits to mini bus operators illegal. It would be grossly unfair to take away permits for that reason.

I find no error of law in the reasoning of the Tribunal in respect of grounds 1 and 2.

Grounds 3 and 8 were argued together. Ground 3 of appeal is –

'The Tribunal erred in law in not holding that the Authority had acted in breach of the Act and the Regulations made thereunder in granting mini bus permits between Suva/Lautoka when no mini bus stands or bases had been gazetted for Sigatoka, Nadi and Nadi Airport as required by Regulation 47 of the Regulation.'

Ground 8 reads –

'The Tribunal erred in Law in not holding that the Authority had acted improperly, unfairly, arbitrarily, unjustly and in contravention of the Act and the regulations made there under when it failed to hold that in the absence of gazetted mini bus stands and bases between Suva and Nausori and between Suva/Navua, Navua/Sigatoka, Sigatoka/Nadi, Nadi/Nadi Airport, Nadi Airport/Lautoka, Korovou/Nausori and Nabaka Village/Lami that the mini bus permits holders would act in breach of the Act and the Regulations by picking up and dropping passengers between these areas in contravention of the Act and Regulations which would be impossible to police and which would be wasteful competition with bus operators in the same sphere as prescribed in Regulations 5(1)(b) and 7(1)(c) of the Regulations.'

Ground 3 of appeal is that mini bus permits granted for Suva and Lautoka were done in contravention of the Act and Regulation as no stands had been gazetted and therefore Regulation 47 was contravened. The appellants’ submissions suffer from confusion. Regulation 47 does not deal with issue or grant of permits to mini buses. It is designed to control behaviour or conduct of mini bus drivers after a permit has been granted. In the event Regulation 47 is breached there is penalty provided for it under Section 58 of the Regulations. The offending persons can be charged. The fear that people might breach the law is not reason enough to deny grant of licence. Would anyone suggest that because some drivers fail to obey traffic rules is reason enough not to grant drivers licence to anyone else.

GROUND 8

The appellant submitted that the grant of mini bus permits was wasteful competition with omni buses operating between Suva and Nausori and Suva and Lautoka and in doing this the Authority ignored the effect of proposed service on other public service vehicle operators – Regulation 5(1)(b) and wasteful competition with alternative form of transport – Regulation 7(1)(c). The appellants submit that there was enough capacity on the omni buses on these routes and there was no survey done on demand for mini buses.

Regulation 5 deals with factors, which the authority must consider. The section, however, does not provide an exhaustive list of factors. It also enables the authority to consider 'any matter it thinks fit' with a special attention to the 'checklist'. Any one of these factors is by itself not reason enough to grant or refuse a permit. All the factors must be considered both individually and collectively and then overall effect assessed and the Authority then in exercise of its deliberate judgment may or may not grant a permit.

Further the regulations must not be considered in isolation either. One of the functions of the Authority is to ensure the provisions of road transport passenger services adequate for the requirements of the public – section 8(1)(b) of the Act. It is only after considering all these matters the Authority reaches its decision.

The appellant submitted that the Authority acted inconsistently in refusing express service between Suva and Nausori for omnibus on grounds that there was no need and on the other hand granting mini bus permits which is really an express service on grounds that there was a need.

The issue is not one of competition but of 'wasteful competition'. It is more than the issue of availability of seats. There may be empty seat on buses. However, there may not be demand for bus seats. The proper question to ask is what type of demand is there – demand for seats on omnibuses or demand for seats on mini buses.

The Tribunal too expressed concern in his ruling about this inconsistency but said, 'I am conscious of another factor: that the authority was dealing with permits for mini buses that were already operating as public service vehicles, albeit illegally making new operations legitimate did not add to capacity'.

In other words the Tribunal considered that there was a need but it was taken care of by a form of illegal operations of mini buses.

The fact that the Tribunal agreed with appellants concern at the Authority’s inconsistent decisions did not mean the Tribunal ought to have cancelled the mini bus permits. If the particular bus operator was aggrieved by the refusal, it ought to have appealed against the decision of the Authority to the Tribunal rather than submitting it as a ground for revoking all mini bus permits issued for Suva-Nausori route and to prevent issue of mini bus permits on Suva/Nausori route in future. This would have disastrous consequences as some mini bus operators may have bought vehicles and incurred debts in the process; people may well have left employment to concentrate on their own business of mini bus operators.

The Authority and the Tribunal would be well aware of the notorious fact that the mini buses had been operating illegally over the years due to demand. Faced with such a fact it could not be expected to bury its head in the sand and expect the problem to solve itself. In reaching its conclusions, it could take such facts into consideration. Refusal of permits would not necessarily have released the mini bus passengers to be picked up by the buses.

The Tribunal was therefore correct in its approach when considering these matters. These grounds therefore fail.

Grounds 4 and 5 which were argued together read as follows:

Ground 4 –

'The Tribunal erred in law in holding at paragraph 31 that although it was mindful of the inconsistency in the Authority refusing bus owners additional services between Suva/Nausori on the ground that there is no need and yet on the other hand granting mini bus permits between Suva and Nausori on the grounds that there is a need, but that because the mini buses were operating illegally anyway legitimising their operations did not add to the capacity on the Suva/Nausori Highway. This finding of the Tribunal does not have any basis in any facts found by the Authority.'

Ground 5 –

'The Tribunal erred in law in not holding that the Authority had not carried out any load check reports in Nausori/Suva/Navua/Sigatoka and Nadi and that the load check reports relied upon by the Authority were mainly for areas between Suva and Nausori only and also not in respect of any alleged illegal mini bus operations and therefore no demonstrated need was established to the Authority for minibus services between these places. The Tribunal therefore erred in law in making assumptions at paragraphs 30 and 31 which had no basis in fact.'

The appellant submits that the Authority failed to conduct proper method of finding out what the needs of public are because there was no survey on number of mini buses operating between Suva and Nausori and Suva and Lautoka. The attack is on the methodology of survey. The appellant is saying survey reports should have been conducted at Suva and Nausori. An attack on the method of data collection is hardly a point of law.

The appellants are saying that the mini bus permits were issued without any factual basis.

Most of the matters which are canvassed in these two grounds have already been attended to and dealt with in earlier grounds and there is no need for the court to repeat them.

The Authority may well have concluded that the experience of past years showed demand for seats on mini buses hence ground 4 and 5 fail.

Ground 6 of appeal reads –

'The Tribunal erred in law in not holding that the Authority had not complied with the mandatory provisions of Regulation 6(1) of the Regulations as a result of which the Authority could not issue any mini bus permits.'

Regulation 6(1) reads:

'The Authority must publish a notice in the Gazette and at least one newspaper published in the English language and circulating throughout the Fiji Islands the issue or variation of a permit but not its renewal or refusal.'

The Authority has failed to publish and therefore the permits must be revoked submits the appellant. The Tribunal at paragraph 37 of its decision agrees that the Authority should observe the regulation. There is no error of law on part of the Tribunal on this point.

The Act does not state what is the effect of failure to publish. The duty to publish is on the Authority not upon the person to whom the permit is issued. The Regulations are also silent as to the time within which the publication must be done. The purpose of publishing would be to inform the travelling public of the grant of permit so it knows about the lawful permit holders.

As earlier stated, once a permit is granted, a person may radically change his/her position in anticipation of using the permit – by purchase of a vehicle often by borrowing money. They would hope to repay the loan from the earnings from the business. It would be manifestly unjust to cancel permits in such circumstances which are not of permit holders making.

Ground 7 reads:

'The Tribunal erred in law in holding that the Authority did not have to re-advertise the applications for mini bus permits when it held that the mini bus permit applications made on the basis of a fixed time table did not comply with the Act. The Tribunal erred in law in not holding that Regulation 4 of the Regulations makes it mandatory for the Authority to publish details of the applications which it was going to hear to enable relevant objections to be filed within 14 days thereafter and which did not happen.'

The appellants’ submission is that the original applications were on the basis of timetable but permits issued were not on basis of timetable. Therefore they submit that there was a radical change in applications and the applications ought to have been re-advertised in terms of Regulation 4.

The Authority had issued permits without timetable because it was persuaded to do so as a result of submissions made by the appellants. The Authority therefore issued permits on the basis of powers it considered it had.

The Tribunal dealt with the matter in paragraph 22, 23 and 24 of its decision. The Tribunal in paragraph 23 said: 'the appellant can scarcely argue that they were denied opportunity to have their say on any relevant issue'. The Tribunal also correctly noted that the present applications were for new permits under Regulation 3(9) and not application for amendment under Regulation 3(8)(d). Therefore there was no need to advertise.

The appellants had the opportunity to be heard; they made their submissions, and some of their submissions were adopted by the Authority like the timetable. Little purpose would be served in re-advertising and hearing the same arguments once again. The appellants’ arguments are based on speculation that there may be others out there who might object if there is re-advertisement without timetable. The issue is have the appellants been denied a hearing. There was no need to re-advertise simply because the Authority intended to issue permits with no fixed timetable to comply with the law.

ISSUE OF COSTS

Ground 9 of Appeal is as follows:

'The Tribunal erred in law in awarding costs against the Appellants when important and substantial grounds of Appeal had been filed as this was the first occasion such an application was heard by the Authority and the Tribunal under the Act and there was no reasonable or just basis for awarding costs against the Appellants.'

Award of costs is a discretionary matter. A successful party is generally allowed costs and there must be very strong reasons before a court or Tribunal will depart from such practice. The appellant submits that the novelty of proceedings is a good reason to depart from normal practice. The Tribunal considered otherwise. There is no point of law involved so this ground fails.

It is crucial for the parties to appreciate the proper approach which this court can take when the decision of the Tribunal is challenged. This court’s function is limited to review the decision of the tribunal in order to determine whether a question of law arose from them. If proceedings were conducted and decided in accordance with the law then this court is not entitled to interfere with the decision even if it concluded that it might have conducted and decided the case differently. The parties must resist any attempt to present appeals on facts as raising points of law.

The appeal is therefore dismissed with costs to be taxed if not agreed.

{ Jiten Singh }
JUDGE

At Suva
November 2002