Imtiaz v Land Transport Authority [2010] FJHC 102; HBC6.2010L (1 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 6 of 2010L

BETWEEN

ABDUL IMTIAZ
f/n Abdul Kalaam of Saru, Lautoka, Carrier Proprietor
Plaintiff

AND:

LAND TRANSPORT AUTHORITY
a Statutory body established by the Land Transport Act, 1998
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. K. Maraiwai for the Plaintiff
Mr. J. Savou for the Defendant

Solicitors: Iqbal Khan & Associates for the Plaintiff
LTA Legal Services for the Defendant

Date of Hearing: 29 March 2010
Date of Judgment: 1 April 2010

INTRODUCTION

1. On 25 January 2010, the Plaintiff filed a Writ of Summons and Statement of Claim in which he claims the following relief:
   
2. For an injunction restraining the Defendant and/or its servants agents or howsoever from impounding any motor vehicles and carriers with valid Third party and Wheel Tax until a further order of this Honourable Court.
   
3. For a refund of all the impound fees paid by the Plaintiff and other vehicle owners to the Defendant without lawful justification.
   
4. For a Declaration that the seizure by the Defendant are in breach of the Land Transport Act and hence the seizure and impounding is illegal.
   
5. Any further and other relief that this Honourable Court deems just and fit.
   
6. On the same day he also filed an Ex-parte Motion for the same orders he seeks in paragraphs 1 to 3 of his Statement of Claim.
   
7. I did not think the application should proceed ex-parte and directed that the Plaintiff serve the motion on the Defendant and it proceed inter-parte. This is the Court’s judgment after hearing both parties.
   

THE APPLICATION

8. The Motion is supported by the Plaintiff’s affidavit in which he says that he carries on a “carrier” business. His carrier is registered number EW657. On 9 December 2009, officers of the Defendant stopped his vehicle and asked the occupants whether they had hired his vehicle to which they said: No, they were the Plaintiff’s friends and not his passengers. Despite this the officers asked the Plaintiff to drive his vehicle to the Defendant’s yard. When the Plaintiff refused, the officers removed him and the occupants from the carrier and towed it to the Defendant’s yard and impounded it. He says that the Defendant’s officers should have charged him and issued him with an infringement notice rather than impound his vehicle as the Defendant had no power to seize it without a court order. He also says his vehicle was damaged by them and claims compensation for that damage.
   
9. This action seems to be issued as a “class action” or a “test case” for a number of other “carrier” operators although it is issued in the Plaintiff’s name alone.
   
10. The application is opposed by the Defendant. The affidavit in opposition, sworn by the Defendant’s Regional Manager Western, was filed late and Mr Maraiwai, Counsel for the Defendant, objected to its late filing but I do not think that his client has been prejudiced because he had not taken advantage of the time that I had given him from Friday and over the weekend to file a response before the hearing of his application.
    
11. The opposing affidavit had annexed to it a copy of the vehicle’s details which shows that the vehicle in question is not registered in the Plaintiff’s name. It is registered to someone else. The copy also showed that the vehicle was licensed for “private” use. Traffic Infringement Notices were also issued to the Plaintiff for the offence of “driving the carrier as a minibus contrary to its registered use” and to the registered owner for the offence of “allowing” his vehicle to be so driven. The registered owner has paid the $100 fine but the $50 fine for the Plaintiff has not been paid.
    
12. The affidavit further says that the Defendant’s officers saw the Plaintiff off loading a Fijian family whilst receiving payment of fares and when the booking officer confronted the Plaintiff, he became enraged, removed the keys and told the officer to tow his carrier away. Nine other carriers have been detained at the Defendant’s yard for the same reason – use of vehicle as “Public Service Vehicles” despite being registered for “private” use. The Defendant denies damaging the vehicle.
    

CONSIDERATION OF THE APPLICATION

13. The first hurdle faced by the Plaintiff was the fact that he is not the registered owner of the vehicle. He was the driver. That being the case, he has no locus standii to bring this action. His claim under the Writ and in this application is predicated on him being the owner. He is not the owner and therefore has no rights to protect. Also, as driver, the Plaintiff has no rights or claim against the Defendant as pleaded and sworn in his affidavit. I do not think that an amendment pursuant to O 15 of the High Court Rules to join the registered owner as a plaintiff or to amend the pleading can cure these defects.
    
14. The next difficulty faced by the Plaintiff is s 15 of the Crown Proceedings Act [Cap 24] which provides:
    

15.-(1) In any civil proceedings by or against the Crown the court shall, subject to the provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require:

Provided that-

(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects be granted by way of injunction or specific performance, the court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and

(b) in any proceedings against the Crown for the recovery of land or other property the court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.

(2) The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in proceedings against the Crown.

15. In Lal v Land Transport Authority [2009] FJHC 157; HBC213.1994 (31 July 2009), this Court held that the Authority is a servant or agent of the State in the performance of its functions and therefore was not susceptible to garnishee proceedings to satisfy a judgment against it because of s 20(4) of the Crown Proceedings Act. See also: Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009). Consequently, in my view, it follows that the relief sought by the Plaintiff in paragraph 1 of the Motion and Statement of Claim cannot be granted because it is prohibited by s 15(1) (a) of the Act.
    
16. Even if such relief could be granted, the Plaintiff is faced with the difficulty of proving his claim. He concedes that the carrier is not registered as a public service vehicle (PSV) but registered for private use. The types of motor vehicle licences issued by the Defendant are set out Part IV, more specifically, s 53 of the Land Transport Act 1998 which provides:
    

Motor vehicle licence

53. - (1) The Authority may register motor vehicles under the provisions of this Act to operate under the following classes of motor vehicle licence -

(a) a private licence which –

(i) authorises the use of the motor vehicle subject to this Act and the conditions of the licence; and

(ii) does not authorise the use of the motor vehicle for commercial purposes, or as a public service vehicle;

(b) a commercial licence which –

(i) authorises the use of the motor vehicle for the carriage of goods in relation to the business of the owner, subject to this Act and the conditions of the licence; and

(ii) limits the carriage of passengers to bona-fide employees and other persons directly involved in the carrying on of the business of the owner;

(c) a government licence which authorises the use of the motor vehicle for purposes related to the functions of government, subject to this Act and the conditions of the licence;

(d) a diplomatic licence which authorises the use of the vehicle consistent with the provisions of this Act and the Diplomatic Privileges and Immunities Act and the conditions of the licence;

(e) a public service vehicle licence as provided for in Part VI.

(2) A licence issued pursuant to this Part may include conditions, as the Authority may determine, relating to the use of the motor vehicle for private purposes.

(3) The Authority may cancel or suspend a licence issued under this Part.

(4) The conditions under which a vehicle is licensed to operate shall, unless the licence otherwise expires, or is cancelled or suspended under the provisions of this Act, only be in effect for the period of the registration of the vehicle and shall lapse with the expiry, cancellation or suspension of the registration pursuant to this Act.

(5) A person who uses a motor vehicle contrary to the condition of the class of licence issued under subsection (1) commits an offence and is liable upon conviction to the prescribed penalty.

17. The legislative scheme for PSVs is set out in Part VI of the Act. The following sections are relevant:
    

Public service vehicles

61. - (1) Subject to subsection (2), a motor vehicle used for the carriage of passengers for hire, reward or other consideration is deemed to be a public service vehicle for the purpose of this Act and the regulations.

(2) A motor vehicle may, on an application made to the Authority, be exempted as a public service vehicle although it is being used for the carriage of passengers for hire, reward or other consideration if –

(a) such carriage is not the principal activity of the owner of the vehicle and the passengers are being carried in the course of that principal activity; or

(b) the vehicle is also being used for the carriage of goods and is carrying the owner of the goods or his employee.

(3) For the purpose of paragraph (a) of subsection (2), principal activity includes the operation of a school, charitable or religious organisation or similar institution but does not include any commercial activity as may be determined by the Authority.

Public service vehicles to be licensed

62. - (1) No person shall drive or use any motor vehicle, or cause or permit one to be driven or used, as a public service vehicle unless it is licensed as a public service vehicle.

(2) No person shall drive or use, or cause or permit to be driven or used, any public service vehicle contrary to the terms of a public service vehicle licence or public service permit relating to that public service vehicle.

(3) An owner of a motor vehicle that is licensed as a public service vehicle shall ensure that at all times –

(a) the prescribed licence label is affixed to the motor vehicle; and

(b) the correct public service vehicle identification number is clearly marked on it.

(4) A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to the prescribed penalty.

Public service vehicle licences

63. - (1) The Authority may issue to a person who meets the prescribed requirements a public service vehicle licence of a class described in subsection (3) to enable a motor vehicle owned by that person to operate in the manner described in a public service permit held by that person.

(2) A public service vehicle licence shall only be issued to the holder of a public service permit –

(a) which is of an appropriate type; and

(b) which, except in the case of a road permit, is for the time being not used.

(3) The classes of public service vehicle licence are –

(a) a taxi licence, which shall only be issued in respect of a motor vehicle equipped for the conveyance of not less than 4 and not more than 5 persons excluding the driver;

(b) a rental vehicle licence, which shall only be issued in respect of a motor vehicle equipped for the conveyance of not more than 8 persons excluding the driver;

(c) a hire vehicle licence, which shall only be issued in respect of a motor vehicle equipped for, the conveyance of not less than 4 and not more than 8 persons excluding the driver;

(d) a road service vehicle licence, which shall only be issued in respect of –

(i) an omnibus which, for the purpose of this Act, is a motor vehicle equipped for the conveyance of not less than 12 persons excluding the driver and constructed so that the driver and passengers are located in the same structural compartment; or

(ii) a carrier which, for the purpose of this Act, is a motor vehicle constructed and equipped for the safe carriage of passengers and goods such that the majority of passengers are located separate from the driver's compartment.

18. The Plaintiff argued that the passengers that were in the carrier were his friends and relatives and not fee paying passengers. He was therefore not using the vehicle as a PSV so it is not required to be licensed under s 61 nor did he commit an offence under s 62.
    
19. The officer of the Defendant on the other hand says that he suspected the Plaintiff was carrying passengers for reward because he saw the Plaintiff off loading another family from the carrier and receiving payment for fares. Was the officer entitled to act on his suspicion and impound the carrier?
    
20. Section 73(1)(c)(iv) of the Act provides that “a police officer may, for the purposes of traffic control, seize and remove to a place of safe custody a motor vehicle where the police officer has reasonable cause to suspect that the, vehicle is not registered pursuant to this Act or the regulations”. Subsection 3 provides that “an authorised officer under this Part may exercise the powers vested in a police officer under subsection (1), either in whole or in part, except for those powers provided for under subparagraph (c) (i) and paragraph (e) of subsection (1)”.
    
21. The Plaintiff has not questioned the authority of the Defendant’s officer in this case and I therefore take it that the officer is an “authorised officer” within the meaning of the Act. I accept the officer’s version of events as reasonable cause to suspect that the carrier was being driven for reward. I am therefore of the opinion that the officer had acted in accordance with and within the powers vested in him by the provisions of s 73 in seizing and impounding the carrier in this case.
    
22. As for the claim for damage to the vehicle, the Plaintiff is not the owner neither has he been given the authority by the owner to make the claim so it is unsustainable.
    
23. The orders sought in the Plaintiff’s Motion are therefore refused. Had these orders been the only orders which this Court is asked to make, this would have been the end of the matter.
    

APPLICATION TO STRIKE OUT

24. However, in the course of argument, Mr Savou asked this Court to dismiss both the Statement of Claim and the Motion under O. 18 R. 18 of the High Court Rules 1988 or under the Court’s inherent jurisdiction for being a frivolous and vexatious claim and an abuse of process. He has not filed a summons or motion and Mr Maraiwai objected to such an application on the basis that I do not have jurisdiction under that Rule or the Court’s inherent jurisdiction to entertain it.
    
25. Order 18 Rule 18(1) provides:
    

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

26. It is well settled that all Courts have inherent jurisdiction to prevent an abuse of its process in a pending action: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, 314; HCA 17; (1974) 131 CLR 311 (14 May 1974) per Barwick CJ, McTiernan J:
    

6. Whilst conceding that he could cite no authority in direct support of his proposition, counsel for the applicant submitted that it is settled that a court has inherent power to protect itself from an abuse of its process and he argued that to make an order preventing a vexatious litigant from bringing proceedings without leave is but one means which the court may use in certain circumstances to achieve that end. In addition, counsel drew attention to decisions to the effect that the inherent powers of the court may exist side by side with a rule of court dealing with the like subject matter which is not regarded as being necessarily intended to abrogate the inherent power. It is true that there are statements of high authority referring to the power of the court to prevent abuse of its process. But these statements have been made in cases in which the court was concerned with actions which had been instituted in the court and were pending therein. The cases were concerned with such summary steps relating to the action as the making of an order staying it or dismissing it or striking out a pleading. Examples of statements of the principle relating to the court's inherent power to prevent an abuse of its process and of the circumstances in which that power was exercised are provided by the judgments in Willis v. Earl Beauchamp (1886) 11 P 59; Metropolitan Bank Ltd. v. Pooley (1885) 10 App Cas 210, at pp 214, 220-221; and Cox v. Journeaux (No. 2) [1935] HCA 48; (1935) 52 CLR 713 (at p314)

27. I therefore go on to consider whether the Plaintiff’s Statement of Claim and Motion should be struck under the inherent jurisdiction and I apply the same principles applicable to an application under the Rule.
    
28. In National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000), the Court of Appeal[1] said:
    

The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the court. In this case the Judge’s task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable.

29. See also Tawake v Barton Ltd [2010] FJHC 14; HBC231.2008 (28 January 2010), a decision in which Master Tuilevuka summarised the law in this area and which I respectfully adopt:

[33] The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they can not possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267.

[34] His Lordship Mr Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.

2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ... or is advancing a claim that is clearly frivolous or vexatious.

3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination ... Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer ... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ... A question has arisen as to whether O 26 r 18 applies to part only of a pleading

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

29. This Court is of the opinion that this is one of those exceptional cases that was referred to in Buli (supra). The whole claim is based on ownership. Unlike Buli, the vehicle in this action is registered in someone else’s name other than the Plaintiff’s and that is not disputed. The registered owner is not a party to these proceedings and the Plaintiff is not suing as his agent or someone otherwise authorised by him. There is no allegation that the owner is under any legal disability and there is no explanation as to why these proceedings were not brought in his name. Also, the inclusion of other carriers in the Statement of Claim and in the Plaintiff’s affidavit seems to suggest that this was a “class” action or “test” case, as I have said, but apart from that the claim and this application have been pleaded and argued as a personal action by the Plaintiff driver.
    
30. Further, this Court has no doubt that the legal issues raised in the claim, even if the Plaintiff was entitled to bring it, are in the Defendant’s favour. I was referred to the unreported decision of Finnigan J in Fiji Van and Carrier Operators Association v Land Transport Authority [2006] HBC 268 of 2006 (17 November 2006) in which his Lordship thought that whether officers of the Authority had power to seize carriers and charge impounding fees was a serious issue to be tried. It does not appear that the provisions that I have referred to above were brought to his Lordship’s attention or for his consideration. Having considered them myself, I do not think, with respect, that there are any such serious issues so that decision does not help the Plaintiff.
    
31. For these reasons, the Statement of Claim and the Motion should be dismissed.
    

COSTS

32. This action and the application were doomed to failure from the start. It is one of those exceptional cases where such costs are justified: Lok v Singh [2010] FJHC 7; HBC321.2000L (20 January 2010); Khan v Carpenters Fiji Ltd [2009] FJHC 149; HBC132.2003 (23 July 2009); Singh v Naupoto [2008] HBC 199/08, Costs Decision of 8 August 2008, and Rokotuiviwa v Seveci [2008] FJHC 221; HBC374.2007 (12 September 2008).
    
33. The facts and law are not complicated and submissions were not extensive or the hearing long, although the matter was called twice because of the Defendant’s delay in filing its affidavit. Taking these matters into account, I summarily assess costs at $1,500 to be paid within 28 days.
    

ORDERS

34. The Orders are therefore as follows:
    
    1. The Plaintiff’s Motion and Statement of Claim both filed on 25 January 2010 are dismissed and struck out.
       
    2. The Plaintiff shall pay the Defendant’s costs of $1,500 within 28 days.
       

Sosefo Inoke
Judge

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^[1] The Rt. Hon. Sir Thomas Eichelbaum, The Hon. Sir David Tompkins, The Hon. Sir Rodney Gallen, Justices of Appeal