State v Land Transport Authority, Ex parte Prasad [2005] FJHC 391; HBJ0001D.2005B (29 November 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0001D OF 2005B

BETWEEN:

STATE

V.

LAND TRANSPORT AUTHORITY
RESPONDENT

EX-PARTE: RAJENDRA DEO PRASAD
S/O LATCHMAN
APPLICANT

Counsel for the Applicant: G/P. Shankar, G.P. Shankar & Co.
Counsel for the Respondent: Mr. T. Romanu and Mr. J. Savou, Legal Office, Land Transport Authority.

Date of Decision: 29 November, 2005
Time of Decision: 9.30 a.m.

EXTEMPORE DECISION

The essence of the Applicant’s argument to support his application for leave to appeal for judicial review, is the right to be heard granted to a permit holder under Regulation 12 (2) of the Land Transport (Public Service Vehicles) Regulations 2000. The Regulation states:

“(2) The Authority must before cancelling, varying or suspending a permit, give the holder of the permit an opportunity to be heard.”

According to the Appellant, his rights protected under this provision, had been violated as the Respondent had not granted him any opportunity of being first heard. The Respondent in reply, merely referred to a “private meeting” between the Authority and the Applicant held on 14^th July 2005 here in Labasa, but no details as to whether the meeting had in fact been held in pursuance of the requirements of Regulation 12 (2) above.

The right of appeal under Regulation 18 as alternative remedy available to the Applicant, and which, the Respondent argues, makes the Judicial Review application inappropriate or at the very least pre-mature, can only be sustained if the decision made is arrived at having taken into consideration the fundamental rights of a person to be heard. This is especially so as in the case where such right is not only guaranteed by the legislation of which the public body is exercising its powers under, but also where the decision may be unfavourable to the person and where it will immediately result in him suffering some economic or financial cases, as would occur in this case, resulting from the suspension of his licence, pending his appeal. In my view, the respect and observance of the Appellants’ rights, under Regulation 12 (2) and the consequent losses that arise from the decision of the Board, are so fundamental considerations to the exercise of the Board’s powers, that its failure to observe them immediately gives rise to the right of the aggrieved party to seek redress, independent of the appeal processes that may be available to him under the Act. The fact that the Board’s decision under Regulation 12 (1) is only a part of a broader decision making process, inclusive of the appeals under Regulation 18, will not deny the Appellant his right of redress in the first instance.

In this case the legal position which I have explained above would have given the Appellant liberty to apply for judicial review of the Board’s decision made under Regulation 12 (1). But the decision purportedly made pursuant to the Regulation was withdrawn by the Board and the withdrawal conveyed to the Appellant in a letter dated 22 July 2005. In effect there is no decision at all upon which this application is based. It is the threat of the Board making a decision unfavourable to the Appellant which Counsel contends is sought to be impugned and the stay is basically to stop the Board from making a decision under Regulation 12 (1).

The whole basis of the judicial review remedy is the existence of a decision by a public authority or body. The grounds normally advanced by an Applicant in support of the review namely, “illegality” “irrationality” and “impropriety”, all presuppose the existence of a decision. If there is no decision, then there is no judicial review.

The allegations by the Appellant that the Board is biased and is incapable of making a fair decision is putting the cart before the horse. How can the Board be accused of bias if its decision is yet to be made? The accusation that the Board is bias and discriminates against the Appellant can only be matters that may constitute elements of “irrationality” and/or “impropriety” in which an aggrieved party may attack the decision of the Board, if and when it is made.

The Board cannot be prevented from performing its statutory function merely on the ground that it is likely to abuse it or that its decision will be unfavourable to the Appellant. To do so would be an abuse of the Court process.

In the end I am satisfied that the application is without merit.

Leave to appeal for judicial review is denied. The Stay Order of 25 August 2005 is set aside.

Costs of $200-00 to the Respondent.

F. Jitoko
JUDGE