Pillay v Land Transport Authority [2014] FJHC 1; HBA01.2012 (20 February 2014)

IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBA 01 OF 2012

BETWEEN:

KRISHNA SWAMI PILLAY
Appellant

AND:

LAND TRANSPORT AUTHORITY
Respondent

Counsel : Mr. S. Sharma for the Appellant
Mr. J. Mainavolau & Mr. K. Ratule for the Respondent.

Date of Hearing : 18th October, 2013
Date of Judgment : 20th February, 2014

JUDGMENT

Introduction

[1] The appellant made an application to the Land Transport Authority for issuance of a new taxi permit. After inquiry the Land Transport Authority refused the application. The appellant aggrieved by the said decision appealed to the Land Transport Authority Appeals Tribunal. The Land Transport Authority Appeals Tribunal gave its judgment on 15.3.12 whereby the appeal of the appellant was dismissed with cost. Subsequently the appellant has tendered this appeal to the High Court.

Grounds of Appeal

[2] The appellant filed an amended petition of appeal dated 19.7.12 and submitted the following grounds of appeal:

(a) That the Tribunal erred in law and fact in dismissing the appeal, without properly considering, the issue of Public interest to have a taxi permit in the area applied for (hereinafter referred to as airport area);

(b) That the Tribunal erred in law and fact in dismissing the Appeal when the Appellant had proved the he carried out a feasibility study of the need to have a taxi in the airport area;

(c) That the Tribunal erred in law and fact in unreasonably taking into consideration facts which should not have been considered by a reasonable Tribunal, such as the Appellant already having two taxi permits;

(d) That the Tribunal erred in law and in fact in that, it dismissed the Appellant's appeal without considering the fact that other citizens have more than one taxi permit and taxi bases;

(e) That the Tribunal erred in law and fact in ruling that there are already taxis operating from the airport area without any evidence whatsoever coming from the Respondent or objector and to make it worst, there is no taxi base in the airport area;
(f) That the Tribunal erred in law in failing to consider that the Appellant would be operating a taxi close to the Savusavu Airport where there is no taxi base for the travelling public and the tourists who come and go from Savusavu; and

(g) That the Tribunal erred in law in failing to consider that the objector's buses only operate during the day and not at night and further failed to consider that the airport area and Savusavu town are separated by steep hills on both sides and elderly people would be physically affected if they walk to town or hospital.

[3] When the case was argued the counsel for the petitioner informed the court that he was pursuing his arguments only on the grounds of appeal stated in 4E, 4F, 4G. Accordingly the arguments were based only on the said grounds of appeal.

Determination

[4] An appeal has to be preferred under Section 48 of the Act. The appeal to the High Court can be made on a point of law.

[5] As the counsel for the appellant confined his grounds of appeal to 4E, 4F, 4G, this court will now deliberate on the said grounds of appeal.

[6] The appellant and the respondent have both tendered their written submissions to supplement the oral submission made. The respondents vehemently object to the appeal on the basis that all three grounds of appeal relied by the appellant are on factual matters and not on points of law. Counsel for the respondent further submitted that an appeal from the Land Transport Authority Appeals Tribunal to the High Court can be made only on a point of law.

[7] The Appellant in his written submissions has tried to canvas the procedural aspects adapted by the Land Transport Authority in coming to its conclusions.

[8] I find this had never been pleaded or canvased before me or the Land Transport Authority Appeals Tribunal. It was not canvased even at the oral submissions stage, as it's not a ground of appeal. This court will consider the merits of the appeal only on the grounds of appeal canvased before me by both parties.

[9] I also find that the written submissions filed by the appellant are of very little help in resolving the appeal. The written submission had tried to canvas issues which were not taken up before me nor put in, as grounds of appeal. At the submission stage it was revealed that the appellant had appeared and conducted the proceedings before the Land Transport Authority as well as the Land Transport Authority Appeals Tribunal.

[10] However he has failed to raise any of the issues that he had stated in his written submissions before the above stated forum. Also the appellant failed to canvas the issues before me when oral submissions were made, instead very strangely they had decided to canvas these issues only at the written submission stage which deprives the respondent the right to reply the allegations made.

[11] The respondent has raised a preliminary objection to the appeal stating that an appeal lies to this court only on a point of law. Counsel for the Respondent argued that if the appeal is preferred not on a point of law the court should reject the appeal on that ground itself.

[12] In determining what is meant by a point of law both parties relied on the decided case of Fiji Bus Operators' Association –v- Land Transport Authority (2002) FJHC 233; HBA 000/J. 2002s which had quoted in Instrumatic Ltd –v- Supabrase Ltd 1969 2 ALL E.R. 131 at page 132 where it was held:

"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 in a way which is plainly wrong, it errs on point of law, and its decision can be reviewed by the courts."

[13] 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 summarised ... 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 findings, 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 a 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 appellant court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might 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 512; [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.'
   

[14] If the Land Transport Authority Appeals Tribunal has drawn improper inferences from primary facts and exercise discretion which would be wrong in light of the primary facts there is a point of law. However the onus of satisfying court on this aspect lies with the appellant.

[15] Keeping this in mind I will explore the three grounds of appeal the appellant canvassed. At the Land Transport Authority as well as at the Land Transport Authority Tribunal the respondent had decided to appear in person. Whether the proceedings before the Land Transport Authority was done fairly or whether the objection of the appellant was properly recorded was not a ground of appeal before the Land Transport Authority Appeals Tribunal nor in this proceeding before me.

[16] When the matter was fixed for hearing before the Land Transport Authority Appeals Tribunal, both parties had agreed to conduct the hearing by way of written submissions. Accordingly I find the tribunal had granted permission to file the written submissions and both parties had filed their written submissions.

Petitioner in his grounds of appeal states:

4(e) That the tribunal erred in law and the fact in ruling that there are already taxi operator from the airport area without any evidence whatsoever coming from the respondent or objector and to make it worst, there is no taxi base in the airport area;

(f) That the Tribunal erred in law in failing to consider that the Appellant would be operating a taxi close to the Savusavu Airport where there is no taxi base for the travelling public and the tourists who come and go from Savusavu; and

(g) That the Tribunal erred in law in failing to consider that the objector's buses only operate during the day and not at night and further failed to consider that the airport area and Savusavu town are separated by steep hills on both sides and elderly people would be physically affected if they walk to town or hospital.

[17] However I find in paragraph 10 and 20 of the judgment the Land Transport Appeals Tribunal has held that the taxi stand is not at the airport area but in the close proximity to the airport area.

[18] Further the Appeals Tribunal has also considered the evidence placed by both parties and had come to its conclusions by considering the facts presented by both parties.

[19] The appellant tried to create a doubt as to whether the Appeals Tribunal had come to the conclusion on primary facts.

[20] The facts pertaining to the case was submitted to the Appeals Tribunal by the parties. When they were given the opportunity to present further evidence both parties had relied on the affidavit evidence, documents and written submissions. I am of the view that the Appeals Tribunal had quite correctly come to its conclusion after considering all the facts that had been submitted to the Appeals Tribunal.

[21] I also think that the Appeals Tribunal has quite correctly drawn reasonable inferences about the number of trips the objector's bus was plying. The inference had been drawn based on the facts and figures submitted by all the parties. Accordingly I cannot find any error of law to justify this ground of appeal.

[22] To elaborate the law on this point both parties stressed on the case of Sunbeam Transport Ltd –v- Flying Prince Transport Ltd (2007) FJCA 25; ABU 0060S (23.3.2007). Where it was held:

"The tribunal conducted a full hearing at which the parties were free to adduce further evidence under section 46(1) of the Act. It cannot be said that, in adopting the course it did, the tribunal exercised its discretion wrongly or otherwise contrary to law".

[23] As I have stated earlier the Appeals Tribunal had given both parties the opportunity to lead evidence when it was fixed for hearing. But both parties have opted to conduct the hearing by way of written submission.

[24] I am of the view that after adopting to have the hearing by way of written submissions the appellant cannot now argue to say that they should have been given the opportunity to deliver fresh evidence. The opportunity to submit fresh evidence was available, but the appellant had declined to avail that opportunity, instead he had preferred to tender affidavit evidence, written submission, etc.

[25] I find Ground 4F is based on factual matters. However it was incumbent on the appellant to have adduced evidence to show that there was a requirement and a demand for a new taxi base, but he has failed to discharge his burden. The appellant has failed to adduce sufficient evidence under section 5(1) of the Land Transport Authority Act to prove his case. The Appeals Tribunal has considered this fact in paragraph 22 of the Judgment.

"Despite merely stating that there is a great demand for a taxi service the appellant failed to provide any material evidence to substantiate the said contention. He contended that his propose base is 200m away from the air port which I do not consider cater the public who seek transport from the air port as the appellant claim."

[26] Ground 4G of the appellant's grounds of appeal too is based on factual matters.

"That the Tribunal erred in law failing to consider that the objector's buses only operate during the day and not at night and further failed to consider that the airport area and Savusavu town are separated by steep hills on both sides and elderly people would be physically affected if they walk to town or hospital."

[27] The Appeals Tribunal had come to its conclusions on the facts submitted by both parties. The appellant argued that the report submitted by Moses Cava was incorrect. By this argument the appellant is challenging the methodology adapted in collecting required information by the Land Transport Authority.

[28] The Respondent strenuously argued that this was not a point of law and submitted the decided case. Fiji Bus Operators Association –v- Land Transport Authority (2002) FJHC 233, HBC 0001j.2002s (1.11.2002).

"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."

[29] As per the above cited case the methodology of collecting data is not a point of law. This court is inclined to accept the said position in deciding whether this ground of appeal is held on a point of law or fact. Accordingly I hold that ground of appeal number 4G is not based on a point of law.

Conclusion

[30] It is unfortunate that the appellant had decided to appear by himself before the Land Transport Authority and the Land Transport Authority Appeals Tribunal. As per the judgment this appeal is preferred as the appellant had failed to adduce any evidence to justify his claim under section 5(1) of the Land Transport Authority Act. He could have availed himself the opportunity granted to him by the Land Transport Authority Appeals Tribunal but has decided to rely on written submission to conclude the hearing.

[31] The three grounds of appeal the appellant relied were heavily objected to by the Respondent on the basis that the grounds of appeal were not based on point of law. The appellant has failed to satisfy court that infact he has appealed on a point of law. An appeal to this court from the Land Transport Authority Appeals Tribunal can be preferred only on a point of law. In Fiji Bus Association –v- Land Transport Authority it was, held "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 for 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."

[32] Accordingly I hold that appellant has failed to convince the court that he has appealed on points of law.

[33] Also I am satisfied that the Land Transport Authority Appeals Tribunal had given a considered judgment and the appellant has failed to convince me that the Land Transport Authority Appeals Tribunal had erred in law in arriving at its judgment.

[34] Accordingly the appeal is dismissed with a cost of FJ$ 1500 summarily assessed in favour of the respondent.

Mayadunne Corea
JUDGE

20.02.14