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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBJ0019 OF 2004
BETWEEN:
STATE
v
LAND TRANSPORT AUTHORITY
Respondent
EX-PARTE: FIJI TAXI UNION
Applicant
Counsel: Mr. H. Nagin – for Applicant
Mr. F. Vosarogo & Mr. Raman – for Respondent
Date of Hearing: 12th October, 2004
Date of Judgment: 14th October, 2004
JUDGMENT
Procedural Background
This is a judicial review application. It was agreed by the parties that the application for leave be treated as a hearing of the substantive motion for judicial review in an expedited process designed to save time and provide the parties with a decision as quickly as possible.
The issues generated by the applications were fully argued before me by counsel on the afternoon of the 12th of October. The urgency of the matter has meant that my decision needed to be delivered on the morning of the 14th of October. Accordingly this judgment should be read subject to the caveat that it is prepared and delivered in that short time frame. In the time available I have not gone much beyond counsels written submissions and authorities.
Background (Introduction)
The applicant (Fiji Taxi Union, “FTU”) is a registered association. It represents the interests of a large number of taxi drivers. It has the capacity to bring legal proceedings under Section 6 of the Industrial Associations Act (Cap. 95). I take note of the comments on the locus standi of the applicant raised in my brother Justice Jiten Singh in his Judgment of The State v The Land Transport Authority, Ex-parte: Fiji Taxi Union & Others, HBJ0001 of 2004 at page 9 and 10. Despite the respondent’s protests for the reasons expressed in his honour’s judgment, I am satisfied that the FTU has the necessary standing to bring this action.
The applicant complains that the Land Transport Authority (LTA) respondent is using an electronic smoke detection machine (ESDM) to test exhaust emission from members' taxis without proper regulatory approval from the Minister. It is primarily claimed that by using these machines without such approval the LTA is exceeding its powers.
The FTU also claims that the purported use of these ESDMs to issue defect notices is unreasonable, irrational, arbitrary and in excess of the LTA’s jurisdiction.
They seek an order of certiorari removing the decision of the LTA authorizing the use of ESDMs to issue defect orders and declarations of unreasonable, irrational, arbitrary abusive and excessive jurisdictional action.
The respondent counters the application by challenging the applicant’s standing and interest in bringing such a judicial review application. I have earlier resolved that issue.
In the alternative, the LTA claims that the decisions to use ESDMs is authorized by a general administrative power contained within the legislation. Accordingly it is said the introduction of the ESDM was neither illegal nor ultra vires. It is further pleaded that in making this decision the LTA was under no duty to accord the applicant natural justice but even if it was it did not act unreasonably, arbitrarily, irrationally or in excess of jurisdiction when making its decision to introduce the ESDM programme.
The LTA claims on policy grounds that their statutory obligation to ensure the protection of the environment outweighs any other matter. They also complain that if I were to find against them, there would be exorbitant costs to undo the defect notices they have already issued. I reject that argument. It has no merit.
Finally counsel submits that this is an unnecessary collateral challenge in judicial review to a matter that should be resolved by challenge to the admissibility of opinion evidence used in any criminal proceedings taken against a driver. Accordingly, it is argued that the court must be slow to interfere with that process.
Exhaust Pollution
Applicant’s counsel quite correctly concedes that it is commendable for the LTA to try and protect our environment from pollution. However he says when doing so the LTA must act within the ambit of its powers.
People don’t like being on roads or footpaths when smoky vehicles abound.
Smoke is a by-product of incomplete combustion. Incomplete combustion can significantly increase the number and amounts of certain toxic chemicals which are released from vehicles into the air. In particular diesel motors which are not operating properly produce large amounts of black smoke containing high concentrations of nitrogen oxides and carbon particulates that drastically affect air quality health standards.
The major components of smoke all have significant health impacts. Nitrogen oxide contributes to inflamed lung tissue and with long term exposure leads to permanent lung damage. Hydro-carbons can have many health effects ranging from respiratory damage to damage to the immune system and an increased risk of certain cancers.
The soot pumped out of tail pipes known as “fine particulates” can lodge deep in the lungs and cause serious respiratory disorders.
Air pollution from motor vehicles is particularly harmful to young children and the elderly. Children are at risk because their lungs are not fully developed, they breathe faster and they often spend lots of time outdoors going to and from school during periods when motor vehicle emissions are at their highest. The elderly are at risk because of the natural deterioration in lung tissue conditioning. Indeed even the walkers and runners of our society and those seeking to partake in outdoor exercise are at risk of permanent damage to lung tissue and reduced resistance to infection from smoke emissions.
I detail the matter in this way because it is clear that without enhanced vehicle emission inspection and better vehicle maintenance this serious public health and environmental issue will not be addressed.
Accordingly it is not surprising the Government moved through the Land Transport Act to empower the respondent to inspect motor vehicles and issue defect notices when they were of the opinion that the vehicle was unfit for safe use or was adversely affecting the environment.
The applicant is entirely correct when it submits that however noble these objectives are, however sensible for the protection of our health, however appropriate enhanced vehicle emission inspection and vehicle maintenance programmes may be for the environment that process must remain within the ambit of the respondent’s power. The respondent is after all a creature of statute.
This judicial review is concerned with that process. The issue for this Court to determine is whether or not the LTA has exceeded its powers by introducing ESDMs as part of its defect inspection equipment.
The Applicant’s Case
The Act
The Land Transport Act has generated immense controversy since its promulgation as law. The respondent’s attempts to drag professional drivers into the 21st century has been fertile ground for litigation.
I have considered the statutory provisions of the Act and I detail those provisions:
It is argued that this last section demonstrates by analogy that all measurements of concentration are meant to be properly prescribed by regulation. I disagree with the generality of that argument.
I don’t see Section 113(6)(c) as having a generally instructive usefulness beyond the strict area of the analysis of breath and blood alcohol concentration. My reason for that finding is that the process of breath and blood alcohol concentration analysis in Fiji involves assessment of intoxication from tables as opposed to direct scientific analysis and accordingly particular standard description is required to ensure fairness in the criminal process.
The Regulations
The need to control smoky vehicles has seen the Minister enact the Land Transport Traffic Regulations 2000 and the Land Transport (Vehicle Registration and Construction) Regulations 2000, on the 7th of July in the year 2000. These regulations were the subject of a most helpful judgment of my sister Justice Shameem in Suresh Chandra v The Land Transport Authority, HAA0024 of 2004S. For the purposes of this decision I adopt her honour’s assumption on the validity of the regulations.
The principle regulation (Regulation 47) reads: “A driver of a motor vehicle on a public street must not cause or permit visible smoke to be projected from the exhaust pipe or any other part of the machinery of the motor vehicle for a period in excess of 10 seconds“.
The applicant contends that R.47 details the method by which enforcement officers may make their decision about smoky vehicles. The Minister clearly had in mind a process of observation as the prime tool for detection.
Counsel placed great reliance on my brother Justice Jiten Singh’s decision (supra). This was a judicial review of the LTA’s prescribed construction requirements for public service vehicles. The LTA’s prescription was quashed as the learned judge had the view that the Minister through regulations had already declared the criteria for the construction of public service vehicles and the LTA could not by itself graft on to regulations some more onerous requirement as it did not have the regulatory power to do so. At page 6 of the judgment Singh J. says:
“It (the LTA) can only do what the legislation has enabled it to do. The age and construction requirements as imposed (by the LTA) are therefore ultra vires of the LTA”.
The LTA’s Response
In answer to the applicant’s submission counsel for the LTA responds by saying that Parliament; by virtue of The Land Transport Act and in particular Regulation 106 of the Land Transport (Vehicles Registration and Construction) Regulations 2000; has empowered the LTA through its authorized enforcement officers to inspect vehicles and if satisfied that there is a defect which could adversely affect the safety or emission control of the vehicle issue a defect order.
The regulation goes further and says:
“R.106(2) if a police officer, authorized officer or an inspector is of the opinion that the defect or defects are such that the vehicle is unfit for safe use or protection of the environment, the police officer, authorized officer or inspector MUST issue a defect order directing the driver or owner or persons in charge of that vehicle to:
(a) discontinue the use of the vehicle”................etc (the emphasis is mine).
By reference to my sister Justice Shameem’s decision in Suresh Chandra (supra), it is argued that merely because a piece of inspection equipment is not regulated does not mean that the authorized enforcement officer cannot use it. In that case her honour was dealing with the challenge to an authorized officer’s use of a wrist watch to time the ten second emission rule contained in Regulation 47. Her honour was of the opinion and I agree that officers do not need to get certificates for verification on their watches before using them for the detection of crime.
The respondent submits that authorized officers are only giving effect to Regulation 106 when they stop these vehicles and use the ESDM as an aid in forming their opinion about any vehicle. Indeed I note that if they come to that opinion officers “must” issue a defect order.
Decision
In his LTA decision to which I have earlier referred the Honourable Justice Singh at page 3 said:
“It is axiomatic that a public or a statutory authority which derives its existence and its powers from a statute cannot lawfully act outside those powers”.
The argument raised by Mr. Nagin in that case is the same that he advances now. His principal argument remains that the LTA has exceeded its jurisdiction by its decision to use ESDMs and has thereby usurped the powers of the Minister.
I accept that the empowering section for the LTA does not give the authority any power to make regulations or anything that has the substantive effect of regulation. The power to make regulations is vested in the Minister not the LTA. The applicant submits that the use of ESDMs must be specified by regulation. I disagree. This case and the one of my brother Justice Singh can be quite clearly distinguished. In the former his honour was dealing with a situation where the LTA in reliance on Regulation 50 of the Land Transport (Public Service Vehicles Regulations 2000) published a prescription describing the construction, age, engine capacity, driver identity and air conditioning requirements for public service motor vehicles. His honour was there dealing with the respondent’s creation of a regulatory like prescription to pre-emptively strike against all public service vehicles whose age and construction defied their publicized notice.
That is a completely different thing to a decision made by an enforcement authority to arm its authorized personnel with tools to assist in the assessment of defects in motor vehicles or indeed, crime.
If learned counsel Mr. Nagin is correct then the logical extension of his argument is that every piece of equipment used by any enforcement officer would require legislative fiat before its use was lawful. As a matter of common sense and logic that cannot be so. Parliament can never have intended that enforcement authorities may only for example use torches, wrenches, watches, dogs or cameras prescribed by their Minister.
Mr. Nagin goes on to submit that the Minister by regulation has already specified what he considers are adequate requirements for the testing of smoky vehicles. He submits that the 10 second rule in Regulation 47 is the only measurement an authorized enforcement officer may use in coming to his opinion about the safe use and environmental appropriateness of a motor vehicle. However, with respect to counsel that argument goes too far. The Minister may make regulation concerning emission standards but that does not in and of itself preclude authorized enforcement officers using any device be it a torch, wrench or ESDM to assist them in forming their opinion on the safe use and environmental suitability of any motor vehicle.
I am of the view that while the Minister has by regulation laid out some criteria, that cannot and does not preclude enforcement officers using assessment aids.
It therefore follows that I must find against the applicant on its major ground. For the record I grant leave for the judicial review application to be bought but decline to accept that in using ESDMs the LTA is in any way acting in excess of its powers or usurping the regulatory powers reserved only to the Minister.
However, in fairness to counsel I shall now deal briefly with the other grounds raised in submission.
Unreasonableness
It was submitted by the applicant that the use of the ESDM is unreasonable as the Minister has already prescribed a method for monitoring smoke emission from vehicles. It is said that such a drastic change in methodology is both unreasonable and arbitrary. This was in effect an extension of the previous argument. Counsel submits that before using ESDMs the LTA had to go to the Minister and have the ESDM properly regulated as it could not in itself introduce a machine and start issuing defect orders based on its readings. I reject that argument. I do so again on the basis of the logic portrayed in the decision of my brother Justice Singh. At page 8 he says:
“If I may add they are like proprietors of restaurants who cannot conduct business the way they want to but have to consider health matters as well. Public safety and comfort is important in road transport. Are these unreasonable demands? In judicial review proceedings the standard of unreasonableness which will justify a court quashing a decision reached is very high” – Justice Scott in The State v Public Service Appeal Board and Ministry of Education Ex-parte: Sharda Lal.
A decision is unreasonable in the Wednesbury sense if it is “so wrong that no reasonable person could sensibly take the view”. Simply because someone differs from the view taken by the Authority does not render the Authority’s decision unreasonable as “two unreasonable persons can perfectly reasonably come to the opposite conclusion on the same set of facts without forfeiting their right to be reasonable” (In re: W. (An infant) 1971 A.C. 682 at 700D.
At paragraph 7, 8 and 9 in the respondent’s affidavit in reply, the deponent details the ESDM methodology.
On the basis of that affidavit I find the authority’s decision to use ESDMs is not so outrageous or so absurd that no reasonable person could have reached it. Indeed quite the opposite. A reasonable and calm person would expect an authority charged with protection of the environment to use the most modern equipment possible as an aid in defect assessment for safety and environmental concerns. This ground does not succeed.
Abuse of Discretion
In reliance on the dicta from Associated Pictures Limited v Wednesbury Corporation [948] 1 King’s Bench 223 counsel for the applicant argued that a decision of a public authority is illegal when it takes into account irrelevant matters or it fails to take account relevant matters.
The point was not forcefully put and occupied only one bare paragraph of generalized submission but I detect counsel to be saying that the LTA failed to take into account the Minister’s 10 second rule regulations as determinative of emission control measures and therefore acted illegally by starting to use ESDMs. Further counsel was concerned at the lack of consultation citing a breach of common law duty to consult State v Minister for Tourism and Transport, Ex-parte: Tower Insurance Limited. I reject each argument.
I repeat the ESDM is merely an aid in assessment for the authorized officer to form an opinion that the vehicle may have safe use and environmental defects. The respondent makes it clear in its affidavit that this is the process it uses. It has not issued a detailed prescription of some arbitrarily defined standard, rather it has simply decided to let its authorized officers use a more sophisticated device to assist in defect determination. The LTA must be left free to do so and it is not an abuse of discretion for any law enforcement authority to decide it will use any particular device to aid in its detection obligations. For these reasons I can see no valid basis for a claim that the LTA was under any duty to consult. I am not satisfied on the evidence before me that relevant considerations were ignored or irrelevant matters considered.
Conclusion
The Land Transport Authority’s decision to use ESDMs as an aid to assess vehicle safety or environmental defects is not ultra vires and is a reasonable, rational and logical decision for it to make in pursuit of its obligations to control the safe and environmentally sound use of motor vehicles.
I further find based on the affidavit material supplied that the respondent is not using ESDMs to issue defect orders. The machines are a tool to assist authorized enforcement officers in the detection of defects rendering vehicles as unfit for safe use or as environmentally hazardous.
I hold that the LTA has acted within its powers and in accordance with the rules of natural justice in the introduction and use of the ESDMs on the public roads of Fiji.
However, the Authority must equally be aware that for the purposes of prosecution of motor vehicle owners for failing to remedy defects or driving vehicles while subject to defect notices it will in each and every case have to satisfy the Court that the defect opinion reached is properly admissible for evidential purposes.
These issues were of great public interest and accordingly there will be no order for costs against the unsuccessful applicant.
[ Gerard Winter ]
JUDGE
At Suva
14th October, 2004
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