Zakreen Holdings Ltd v Dee Cees Bus Services Ltd [2016] FJHC 147; HBA8.2015 (4 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Civil Appeal No. HBA 8 of 2015
Miscellaneous Action No. 16 of 2015
LTA Tribunal Appeal No. 35 of 2012

BETWEEN :

ZAKREEN HOLDINGS LIMITED
APPELLANT

AND :

DEE CEES BUS SERVICES LIMITED
1ST RESPONDENT

AND :

LAND TRANSPORT AUTHORITY
2ND RESPONDENT

AND :

CENTRAL TRANSPORT CO LTD
TACIRUA TRANSPORT LIMITED
ISLAND BUSES LTD
ESTOL HOLDINGS LIMITED
TEBARA TRANSPORT LTD
DAWASAMU TRANSPORT LTD
FIJI BUS OPERATORS ASSOCIATION
INTERESTED PARTIES/OBJECTORS

Counsel : Mr. L. Lajendra for Appellant
Mr. F. Vosarogo for 1st Respondent and 3rd and 5th named Interested Parties
Ms. E. Radrole for 2nd Respondent
Mr. V. Kapadia for 1st, 2nd and 4th named Interested Parties
Date of Hearing : 13th August, 2015
Date of Judgment : 4th March, 2016

Catch Words: Sections 45(1), 46(2), 48 of Land Transport Act 1998, Regulation 6(1) of Land Transport (Public Service Vehicle) Regulation 2000, - Leave to Appeal – Question of Law-Powers of Land Transport Appeals Tribunal – Interpretation-Public Consultation-Gunning Principles (Sedley Criteria) – fairness consultation - obligation of the decision making body to inform the decision-Time for Appeal.

JUDGMENT

INTRODUCTION

1. The Appellant- Respondent (Appellant) obtained a Road Route license (RRL) to operate a public transport service. Before RRL was issued there was a consultation called by the 2nd Respondent and there were objections by the 1st Respondent as well as other interested parties. After the inquiry the outcome of the inquiry was not revealed to the public and more especially to the parties who participated and objected to the issuance of RRL to the Appellant. The Regulation 6(1) of the Land Transport (Public Service Vehicles) Regulation 2000, required an issue of permit to be published in the Gazette and also in English news paper. Strangely the decision was taken after the consultation with the objectors or the interested parties, but neither it was informed to the said parties nor it was published in the gazette or in a news paper. It is also noteworthy when the 1st Respondent’s solicitor queried about the issue of RRL to the Appellant, the 2nd Respondent did not reply to it though there were repeated inquiry by the solicitor. The 1^st Respondent appealed to the Land Transport Appeals Tribunal (LTAT) against the issue of RRL to the Appellant, but a preliminary objection was raised as the appeal to the LTAT was not filed within 14 days from the decision that was yet to be communicated to the parties that participated in the consultation. The LTAT heard the said preliminary objection and decided that the appeal was filed within time period on the basis that the decision was not communicated to the public and or the interested parties, and proceeded to cancel the RRL issued to the Appellant. Having aggrieved by the said decision the Plaintiff filed leave to appeal against the said decision of the LTAT and the leave was granted by the court. Leave was required as the application before LTAT related to interlocutory order on preliminary objection.
   

ANALYSIS

2. The LTAT determination delivered on 16th January, 2015 held inter alia as follows;
   
   1. That the Appeal was valid.
   2. The decision of the 2nd Respondent granting RLL to the Appellant is quashed and 2nd Respondent was required to deal with the application afresh in compliance with the Land Transport Act 1998(LTA)
   100. The 2nd Respondent must comply with the Law and Regulations and be guided by the Directions given herein where no Regulations are provided.
        
3. At the outset it should be noted that Section 48 of LTA1998 restricts an appeal to a question of law only. Strictly, this applies to final appeal from LTAT to the High Court, but in my judgment the same should be applied to the interlocutory appeals as well. What constituted a question of law was held in Instrumatic Ltd v Supabrase Ltd [1969] 2 All ER 131at p132
   

'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 in 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. 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 in point of law, and its decision can be reviewed by the courts. The courts can review the discretion of a tribunal, just as they can review the discretion of a judge in chambers, and on like grounds. The principles stated in Ward v James ([1965] 1 All ER 563 at p 570; [1966] 1 QB 273 at p 293),apply as much to the discretion of a tribunal as to the discretion of a judge. There was one case cited to us which appeared at first sight to be to the contrary. It was Theo Conway Ltd v Henwood, where it was held that an appeal did not lie to this court from an order of the official referee dismissing the action for want of prosecution. But on examining the case, it will be seen that counsel did not raise any point about the wrong exercise of discretion. So it is no decision on the point. Moreover, it was an interlocutory decision of two Lords Justices which is not binding on a court of three.’

4. The abovementioned case was applied in Fiji High Court in Fiji Bus Operators' Association v Land Transport Authority [2002] FJHC 233; HBA0001J.2002S (decided on 21 November 2002)(unreported), for the determination of question of law, and further held, (Per Singh J)
   

“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.'(emphasis removed)
   
5. The grounds of appeal in terms of the Notice of Appeal are as follows:
   

“1. THAT the Land Transport Appeals Tribunal erred in law in determining the substantive appeal as:

(a) No hearing was conducted in respect of the substantive appeal;
(b) The Appellant was never given an opportunity to be heard in respect of the substantive appeal and thereby denied natural justice.

2. THAT the Land Transport Appeals Tribunal erred in law in quashing the Road Route License of the Appellant as section 46(2) of the Land Transport Act only empowers the Land Transport Appeals Tribunal to direct the Land Transport Authority to cancel a license but not to itself cancel it as it did which action is outside and beyond the powers of the Land Transport Appeals Tribunal.

3. THAT the Land Transport Appeals tribunal erred in law in failing to apply the principle in Fiji Bus Operators’ Association & Ors. v Land Transport Authority & Ors. Civil Appeal No. HBA 0001 of 2002, a decision that was referred to the Land Transport Appeals Tribunal and binding upon it that permit/license holder must not be penalized for the failure of Land Transport Authority to comply with Regulation 6(1) of the Land Transport (Public Service Vehicle) Regulation 2000.

4. THAT the Land Transport Appeals Tribunal erred in law in holding the non-communication by Land Transport Authority to the 1st Respondent and the Interested Parties/Objectors of Land Transport Authority Board’s decision as a basis to quash the License of the Appellant for the following reasons:

1. Such responsibility to communicate Land Transport Authority Board’s decision is only to a procedural/administrative function of Land Transport Authority and non-observance of such procedural/administrative function by Land Transport Authority does not nullify/invalidate the decision of Land Transport Authority Board to have granted the license to the Appellant;
   

b) Applying the ratio of Fiji Bus Operators’ Association & Ors. v Land Transport Authority & Ors. Civil Appeal No. HBA 0001 of 2002 that a permit/license holder must not be penalized for the failure of Land Transport Authority to comply with its procedural/administrative function as to do so will be manifestly unjust on the license/permit holder.

5. THAT the Land Transport Appeals Tribunal erred in law in holding that the 1st Respondent’s Appeal is valid given the computation of time to appeal is within 14 days from the date of decision pursuant to section 45(1) of the Land Transport Act, 1998.

6. THAT the Land Transport Appeal’s Tribunal erred in law in holding the 1st Respondent acted in haste the moment it found all the information in relation to the grant of Road Route License to the Appellant when the evidence presented showed otherwise, in particular the letter dated 10 January 2012 from Messrs. Mamlakah Lawyers showed that the 1st Respondent was aware of the grant of Road Route License to the Appellant as early as 10 January 2012 but chose to do nothing until 17 October 2012 (approximately 10 months after) when it lodged a Petition of Appeal and stay application of the decision of Land Transport Authority Board pending determination of Appeal to the Land Transport Appeals Tribunal.”
   

Ground 1

6. All the parties agree that there was no hearing of the substantive appeal in the LTAT. In the circumstances the LTAT could only determine to the preliminary question that was raised by the Appellant, as the hearing was confined only to interlocutory application. The LTAT had replied to the preliminary question, and rejected the preliminary objection. Having overruled it LTAT went further and decided the substantive appeal and the merits, for which there was no hearing. The LTAT had rejected the preliminary objection raise by the Appellants hence the hearing of the appeal should have proceeded with, but it did not. In the circumstances any determination beyond the preliminary issue, was made without hearing of the parties, and apparently it was based on the perusal of the record kept by the 2nd Respondent. Though there was a wide discretion granted to the LTAT in terms of Section 46(2) of the LTA 1998, the discretion does not extend to determination of an appeal only on the perusal of the record without giving the parties to the appeal an opportunity to be heard. One cannot imagine such power being conferred to a LTAT, though Mr. V. Kapadia contends that. He could not support such an argument, with any case law. If such power was given it should be expressly stated so and Section 46(2) of LTA 1998. It only provides discretion to the LTAT in the exercise of its powered conferred in Section LTA. If the perusal of the records could determine the fate of the Appeal before LTAT that should be stated in LTA 1998 and there would not be a need for hearings as done now. There was no such power granted to LTAT. The appeal ground 1 should be decided in the favour of the Appellant and any order made beyond the determination of the preliminary issue should be set aside and the case should be remitted to LTAT for final determination of the appeal.
   

Ground 2

7. The Section 46(2) of the LTA states as follows
   

‘(2) On an appeal under this Part the Tribunal may dismiss the appeal or make such order as it thinks just and reasonable in the circumstances directing the Authority to issue, transfer, or cancel any licence, certificate or permit, or to impose, vary, or remove any condition or restriction in respect of a licence, certificate or permit, and the Authority shall comply with that order.(emphasis is mine)

8. The power of the LTAT is wide and discretionary. It can dismiss the appeal or make a just and reasonable order, but it can only direct the Land Transport Authority to cancel, transfer any licence , certificate or permit. There is no inherent power to LTAT as it is a creation of statute and it should be governed by LTA 1998 and Regulations made in terms of that. The LTAT can also impose a new condition or remove or vary any condition with regard to the same, but this can be directed to the Land Transport Authority and it is obliged to comply with such order.
   
9. So, the LTAT can exercise its discretion in the exercise of its power but the said power only confine to directions to the Land Transport Authority, and it cannot on its own quash or vary a decision taken by the Land Transport Authority and more specifically its board. It is mandatory for the Land Transport Authority to implement the directions of the LTAT. The final result may be the same, but there is a difference in the manner of doing it. The jurisdiction of the LTAT is not identical to jurisdiction of courts regarding judicial review where decisions can be quashed. As I said earlier the effect is the same as judicial review of a decision making body.
   
10. The determinations of the LTAT are as follows;
    

‘For the reasons and findings given herein this Tribunal Orders as follows

(a) That the Appeal filed by the Appellant is valid.

(b) The decision of the LTA granting Road Route Licence to the 2nd Respondent (Zakreen Holding Limited) is quashed and the LTA is required to deal with the application afresh in compliance with the Land Transport Act 1998.

(c) The LTA must comply with the Law and Regulations and be guided by the Directions given herein where no Regulations are provided.

(d) LTA (1st Respondent) to pay each party $500 as cost in this matter within 30 days.’

11. There is no issue as to the order (a) above as the LTAT had necessary power for such determination. The order (b) was not directing the 2nd Respondent to quash or cancel the RRL issued to the Appellant. Instead the LTAT quashed the decision of the Land Transport Authority that granted the RRL to the Appellant. There was no direction to the 2nd Respondent to quash or cancel the RRL granted to the Appellant. Though the effect was same. I agree with the submission of the Appellant that LTAT did not have power to quash decisions of the Land Transport Authority, but it has power to direct the Land Transport Authority to cancel the RRL issued to the Appellant. Though its effect is the same LTAT does not have power to quash a decision of the Land Transport Authority and it can only order the Land Transport Authority directing it do the things specified in the Section 46(2) of the LTA. So the order quashing the decision of the Land Transport Authority should be set aside and the matter should be remitted to LTAT.
    

Grounds 3, 4, 5

12. The appeal grounds 3, 4, and 5 are taken together for consideration in order to avoid repetition and also convenience. The issues raised in the said grounds complement to each other. The central was the determination relating to the preliminary issue raised. The preliminary issue was the objection to the appeal before the LTAT on the basis of Section 45(1).
    
13. The LTAT has rejected the preliminary issue raised by the Appellants.
    
14. The Section 45(1) of the LTA states as follows
    

‘45. - (1) An appeal under this section shall be commenced by notice of appeal, in writing, which shall state specifically and concisely the grounds of appeal, and shall be lodged with, or forwarded to, the Secretary to the Tribunal not later than 14 days after the date of the decision in respect of which the appeal is brought or within such other period as may be provided in the regulations. (emphasis added)

15. There is no regulation made regarding the appeal period in terms of Section 45(1) of LTA 1998. So in the absence of that, 14 day time period should be applied. Whether it should be interpreted restrictively or liberally and what was the intention of the legislators is the issue.
    
16. The counsel for the Appellant argue that the language of the statute is clear and the literal interpretation should be given to the above quoted section.
    
17. Bennion on Statute Law[1] by Fransis Bennion (1990) states as follows;
    

‘Literal or strained construction?

Where the grammatical meaning of an enactment is clear, to apply that meaning is to give it a literal construction. Where on the other hand the grammatical meaning is obscure, giving the enactment a literal construction involves applying the grammatical meaning of the corrected version. If (in either case) a literal construction does not correspond to the legislative intention it becomes necessary instead to apply a strained construction in order to arrive at the legal meaning of the enactment. Where the enactment, or (in the case of grammatical obscurity) its corrected version, is not ambiguous the question for the interpreter there is: shall it be given a literal or strained construction in arriving at the legal meaning? Where the enactment is ambiguous the questions are first, which of the ambiguous meanings is more appropriate in arriving at a literal construction, and second, should it in any case be given some other (strained) meaning? As Mackinnon LJ said in Sutherland Publishing Co v Caxton Publishing Co [1938] Ch 174, 201: “When the purpose of an enactment is clear, it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used...”

In the later case of Jones v DPP [1962) AC 635, 668 Lord Reid appeared to contradict this by saying: ‘It is a cardinal principle applicable to all kinds of statutes that you may not for any reason attach to a statutory provision a meaning which the words of the provision cannot reasonably bear ...’. In this conflict Lord Reid must be adjudged wrong and Mackinnon LJ right. There are very many decided cases where courts have attached meanings to enactments which in a grammatical sense they cannot reasonably bear. Sometimes the arguments against a literal construction are so compelling that even though the words are not, within the rules of language, capable of another meaning they must be given one. To assert, in the face of the innumerable cases where judges have applied a strained construction, that there is no power to do so is to infringe the principium contradictionis, or logical principle of contradiction.

In former time the practice of giving a strained meaning to statutes was known as ‘equitable construction’. This term had no more than an oblique reference to the technical doctrines of equity, but mainly indicated a free or liberal construction.

Since, in the light of the interpretative criteria which apply to a particular enactment, its legal meaning may be held to correspond either to the grammatical meaning or to a strained meaning, it follows that the legal meaning of a particular verbal formula may differ according to its statutory context Customs and Excise Comrs v Cure & Deeley Ltd [1962] 1 QB 340, 367). Automatic literalism is rejected in a modern statutory interpretation. Legislative intention is always the ultimate guide to legal meaning, and this varies from Act to Act.’ (emphasis is mine)

18. I am not inclined to accept the arguments of the Appellants based only on literal interpretation of the Section 45(1) of the LTA 1998, a fortiori when the Regulations made under LTA 1998, specifically required the decisions to be publicized by the gazette and also by one English new paper which has circulation in the whole of Fiji. The ‘object of all interpretation is to discover the intention of the Parliament’. (See Maxwell on the Interpretation of Statues(12th Edi)(2015)Lexis Nexis p 28)
    
19. Is it possible for the Land Transport Authority to take a decision and not to implement it for 14 days, or conceal it from parties who objected to the issue of RRL so that there would not be any appeal to LTAT? If so LTAT would be of no practical use to aggrieved parties who participated at the consultations with the Land Transport Authority. Such a scenario would not have considered by the drafters for obvious reasons. When public consultation was made mandatory as regard to issuance of RRL it would have been illogical to think that the decision making body would conceal its decision from the interested parties who participated in the consultative process.
    
20. Appeal to the LTAT was the final phase of public consultation that was allowed under the LTA 1998 and its regulation relating to the issue of RRL. The public consultation was part of the regulations made under LTA 1998, but unfortunately the issue of time period for appeal was not addressed in the said regulations, though there was provision under Section 45(1) of LTA 1998, for such special regulations being made relating to time period for appeal. This was a lacuna, when Regulations regarding consultation were made.
    
21. The duty to consult affected parties is now a common law duty of public decision making bodies in UK. The LTAT being a specialized tribunal that deals with the decisions of the Land Transport Authority is a specialized administrative tribunal for review of the decisions and the administrative law is applicable to it. The Land Transport Authority is a public decision making body and its decisions are reviewed by LTAT. The duty to consult interested parties before issuance of RRL is contained in the Regulations made under LTA 1998. So, there is a duty to act fairly in the consultation process.
    
22. UK Supreme Court in R (on the application of Moseley (in substitution of Stirling Deceased) Vs London Borough of Haringey [2014] UKSC 56; [2014] 1 WLR 3947] it was held, (29 October 2014)
    

’23.A public authority's duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source, for example, of its duty to consult the residents of a care home for the elderly before deciding whether to close it in R v Devon County Council, ex parte Baker [1995] 1 All ER 73. But irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted.’

Further held,

‘25. R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent's decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189:

"Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,... that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."

Clearly Hodgson J accepted Mr Sedley's submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112:

"It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, "a prescription for fairness".(emphasis added)

23. While emphasizing that the consultation is not litigation, held that time was ripe for UK Supreme Court to endorse 'Gunning principles' (or Sedley criteria) for public consultations. This was held on the basis of fairness in consultations process.
    
24. What is 'fairness' in consultation will depend on the circumstances of the case. (See R (Edwards) v. Environment Agency [2006] EWCA Civ 877 at paragraph [90]). The nature of the issues under consultation and also legislative and procedural remedies available in law relating such consultation would be some of these factors.
    
25. The public consultation regarding the issue of RRL is sine qua non for transparency and accountability purposes, too. The regulations made under LTA 1998 facilitate the consultative process and in such a scenario, there is no need to conceal, the decisions taken on such consultations, to the interested parties. A fortiori when there is imbedded right of appeal to a specialized tribunal within a stipulated time, and also requirement for communication of the said decision through Gazette and English news paper. The communication of the decision cannot be separated from fairness in consultation under the statutory provisions contained in the LTA 1998, and Regulations made under that statute and the circumstances in this case.
    
26. In such an instance it is not fair to interpret 14 day time period so as to calculate the time period from the date of decision of the Land Transport Authority or Board when they are yet to communicate their decision to the interested parties and also to the public at large as required by law. If such an interpretation was intended by the legislature there was no need for a right of appeal in the LTA 1998, as an appeal could have easily avoided by the decision making authority by concealing it for more than 14 days from the interested parties.
    
27. After consultation, the legislation has allowed a right of appeal and this is for a very good reason. When power is granted to public body by a law there are checks and balances in the same law that grants such power, against the abuse and or misuse of it. The right to appeal to LTAT is also such an instance. There should be finality regarding the decisions of the Land Transport Authority and for that purpose a 14 day time period was stipulated in the Section 45(1). This cannot be interpreted to defeat the duty act fairly in the public consultation, depriving the right of appeal to special tribunal (LTAT).
    
28. Lord Diplock in of Civil Service Unions and others v Minister for the Civil Service - [1983] UKHL 6; [1984] 3 All ER 935 at 950 held
    

'My Lords, I see no reason why simply because a decision-making power is derived from a common law and not a statutory source it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second 'irrationality' and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community;...'(emphasis added)

29. The public consultation process empowered by the Regulations made under the LTA 1998 should not be defeated by the restrictive interpretation to statutory limitation of 14 day time period. If that is done decision making body could cherry-pick its decisions that would be subject to appeal. This is the most undesirable outcome, to say the least. If that is done that would defeat the purpose of establishing LTAT and also the right to appeal granted by the statute.
    
30. So, LTAT was correct when it held that since there was no communication to the parties who participated in the public consultation process regarding the issue of RRL hence the appeal was not outside the time period. I affirm that finding by LTAT.
    
31. The Land Transport Authority or its Board in this instance had taken three 'decisions' that resulted in the issue of RRL to the Appellant at three different times. First decision was taken on 7th December, 2010 and in that instance it was decided to issue RRL to the Appellant after expiration of 7 day deadline for another operator, but strangely enough there was no finding as to such deadline was actually notified to the said operator. The LTAT had observed in its determination at paragraph 4 that there was no evidence of communication of that decision to any party to this proceeding including the Appellants! This fact was not denied by them at the hearing before me. The next 'decision' was taken on 18th April 2011 but the LTAT had observed no such decision, and the final decision relating to the issue of RRL was taken on 3rd May, 2011. This decision was communicated to the Appellant and also to CEO and GMO of the 2nd Respondent. (see page 95 of the Appeal Record). This decision refers to earlier 'decisions' taken on 7th December, 2010 and also to 18th April, 2011.
    
32. None of these decisions were communicated to the parties who participated in the consultation and objected to the issue of RRL to the Appellant. It should also be noted that the first decision to grant RRL was taken on 7th December, 2010 subject to an ultimatum given for third party to commence the operation.
    
33. The communication of decision after consultation was a basic requirement in any such consultative process. It was expressly stated in the Regulation 6(1) of the Land Transport (Public Service Vehicles) Regulation 2000. The requirement was to gazette and also publish in a local English news paper which has a distribution throughout Fiji. The 2nd Respondent having violated its own Regulation now seeks refuge in terms of Section 45(1) of LTA.
    
34. In the absence of communication of the decisions taken to issue RRL to the Appellant the 14 day time period does not have any purposeful meaning. The 2nd Respondent cannot secretly take a decision and wait for more than 14 days and then implement it, thus preventing an appeal. If the Section 45(1) is interpreted in the restrictive manner the result is clear. There would not be any use of LTAT as the Land Transport Authority can suppress its decisions whenever they desire to do so in order to prevent an appeal against such decisions. This is not a desirable outcome and not the intention of the legislature.
    

35. So, the determination regarding the preliminary objection was correctly decided by the LTAT. It is not only the publication of the decision, but the entire process of the public consultation became a farce due to structured and timely manner in which the decisions were taken at different times and also at different intervals, without revelation of the said decisions. In such a situation how could anyone make an appeal within 14 days from the decision? The law does not expect the people to do impossible and unrealistic things.

36. So, Fiji Bus Operators' Association v Land Transport Authority [2002] FJHC 233; HBA0001J.2002S (decided on 21 November 2002) (unreported) cannot be relied by the Appellant to prevent the appeal to the LTAT in their preliminary objection. I do not need to go to evaluate the merits of the appeal as is yet to be heard in LTAT. There is nothing preventing in the said judgment from the determination of this appeal by the LTAT. I refrain from saying anything about the applicability of the judgment to the merits of the appeal as the hearing of appeal has not concluded
37. For the reasons given above appeal ground 3 and 4 are premature in certain aspects as it deals with the final appeal. Since I have already dealt with the LTAT determination regarding the annulment of the issuance of RRL to the Appellant, there is no requirement to deal with said decision for this appeal more than what I have said. The appeal ground 5 is not successful for the reasons stated earlier.
Ground 6
38. There was no communication from the 2nd Respondent as to the decisions it had taken regarding the RLL issued to the Appellant, though several letters were written by the solicitor for the 1st Respondent. This amply demonstrates the behavior of the 2nd Respondent. If the consultation and the decision were done in a transparent and fair manner there was no need to conceal its decision taken to issue RRL to the interested parties and more specifically to 1st Respondent. So I cannot find any merits in the appeal ground 6.

CONCLUSION

39. The preliminary objection raised by the Appellants in the LTAT is overruled for the reasons given in this Appeal. That part of the determination of the LTAT is affirmed, while setting aside the rest. There is a duty to the 2nd Respondent to conduct the public consultation in fair and transparent manner. Since there is a right of appeal against the decisions that result in such consultation there is a duty cast upon the 2nd Respondent to communicate its decision relating to such consultation to the parties that participate as well as to the general public. The decision of the LTAT is quashed, but subject to the finding on the said preliminary issue. The Appeal before the LTAT is remitted to the LTAT for hearing of the substantive appeal. It should be heard by another person for obvious reasons. The appeal is partially granted. Considering the circumstances of the case I would not order any costs for this appeal.

FINAL ORDERS

1. The Orders of the LTAT is quashed except the determination of the preliminary issue.
2. The appeal to LTAT is remitted to LTAT for hearing of the substantive appeal, by another person.

100. No costs.
     

Dated at Suva this 4th day of March, 2016

......................................
Justice Deepthi Amaratunga
High Court, Suva

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^[1] Longman Publication(3^rd Edition) at page 91