Land Transport Authority v Tukania [2019] FJHC 749; HBA04.2019 (17 July 2019)

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLANT JURISDICTION

APPEAL NO. HBA 04 OF 2019

(On Appeal from LTA Tribunal No. 124/17)

IN THE MATTER of the Land Transport Act 1998.

AND

IN THE MATTER of an Appeal by JONE TUKANIA against the decision of the LAND TRANSPORT APPEALS TRIBUNAL delivered on 15^th day of February 2019 for Land Transport Authority (LTA) to immediately re-issue and reinstate Taxi Permit No. T3693 to Jone Tukania.

BETWEEN: LAND TRANSPORT AUTHORITY

APPELLANT

AND: JONE TUKANIA

RESPONDENT

Appearance: Appellant - Ms. Tauvere E.

Respondent - Mr. Sen A.

Date of Hearing : 15 July, 2019

Date of Judgment : 17 July, 2019

JUDGMENT

Introduction

[1] This is an appeal against decision of Land Transport Appeals Tribunal(LTAT) made on 15.2.2019, where it had ordered Land Transport Authority (LTA) to re-issue and reinstate the Taxi Permit No T3693 (PSV Permit ) and in the name of Appellant-Respondent( Appellant). LTAT had also set aside the purported decision of LTA (Respondent- Appellant) to cancel Taxi Permit No T 3693. I call the decision to cancel PSV Permit purported, as permit had already expired due to non-renewal and void in law. Appellant had not renewed his Taxi permit and it had expired on 01.01.2007, and in terms of Regulation 10(5)(b) of Land Transport (Public Service Vehicles) Regulation 2000(the Regulation 2000), upon expiry of permit it becomes void.

[2] So, the Permit had expired by virtue of it not being renewed, and it became void and no force in law from 01.01.2007. There was no requirement to cancel such a void licence, as there was nothing to cancel in a void licence. The board of LTA had done so, superfluously. It was an error on their part. So the purported decision to cancel the void PSV Permit No T3693, and the manner of purported cancellation of permit in 2009 and whether that was communicated or not cannot revive an already void licence on 1.1.2007. In any event Appellant cannot wait till 2016 and write a letter to LTA, in order to acquire right to appeal to LTAT and claim that there was an appealable decision by LTA to appeal to LTAT.

Facts

[3] Plaintiff was a taxi driver who had Permit No T3693, which was issued on 02.01.2004 and it expired on 01.01. 2007. (See paragraph 8 and annexed MS O2 to affidavit in response to notice and grounds of appeal).

[4] LTAT had requested copy record regarding PSV Permit T3693 on 8.6.2018 over 11 years after expiry of permit, and was not successful. This was due to the Appellant’s letter of 18.01.2016 which is not produced in the copy record of LTAT filed in High Court.

[5] The original file regarding said permit issued to Appellant, was destroyed through a fire at old premises of LTA, in Labasa in 2014.

[6] LTA had replied to said letter of Appellant on 29.03.2016

[7] LTA was able to extract details from data base of relevant PSV Permit T 3693 which indicated the date of issue and date of expiration.

[8] Apart from that there was a record of payment of Tribunal Fee of $31 on 19.5.2009 and some other payments were also made on the same day including one year licence fee of licence to drive, which were irrelevant to this appeal.

[9] Appellant had submitted a letter he had received on 29.3.2016 from LTA which was a reply to appellant’s letter of 18.01.2016, which stated a decision was taken to cancel taxi permit by the Board on 09.12.2008 due to failure to comply with Regulation 17(1) and (2) of Regulation 2000.

Analysis

[10] Appeal to High Court from a decision of LTAT is made in terms of Section 48of Land Transport Act 1998, which states:

“48. A decision of the Tribunal shall be subject to an appeal, only on points of law to the High Court”

[11] This appeal should be confined to errors of law made by LTAT.

[12] Jurisdiction of LTAT is stated in Section 40(2) of Land Transport Act1998.

[13] First appeal ground is that LTAT, in its decision dated 15.2.2019, had not considered the nature of expired PSV Permit. This is a point of law as the legal effect of expired PSV Permit is contained in Regulation 10(5)(b) of the Regulation,2000 which states ;

‘10(5) A public service vehicle licence is void if-

.................

(b) the permit is cancelled, suspended, revoked has expired ; or....’(emphasis added and irrelevant portions deleted)

[14] There was undisputed evidence that Appellant was issued PSV Permit No T 3693 on 02.01.2004 and it expired on 01.01,2007. Regulation 10(1) of the Regulation, 2000 also stipulates time period and accordingly it was only for 3 years from the date of issue.

[15] There is no evidence of that being renewed or an application being made, for renewal on or before expiration of said permit. It should also be noted if an application is made in terms of law before expiration of the permit, such licence will be valid till the application is disposed. (see regulation 10(4) of the Regulation, 2000).

[16] In terms of Regulation 3(6) of the Regulation, 2000 an application for renewal or reissue needs to made 28 days prior to the expiration of the permit. No evidence of such application being made, this is a burden that is vested with the Appellant before LTAT. Such application also needs to comply the requirements under the Regulation, 2000.

[17] So the PSV Permit T 3693 became void on 1.1.2007 as there was no application for reissue or renew made before stipulated time period.

[18] LTAT had not considered this legal position of an expired permit in its decision and that is an error of law. So there was no valid permit issued to Appellant in law after 1.1.2007 for reissue or to reinstate as it was a void licence in law. All the actions taken by Appellant as well as LTA after it became void in law cannot attach any legality to the void permit. So, Appellant was flogging a dead horse. Hence LTAT erred in reinstating and or reissuing an already void permit. So the appeal is allowed and decision of LTAT delivered on 15.2.2019 is set aside. Cost of this appeal is summarily assessed at $1,000 to be paid within 21 days.

Final Orders

1. Appeal is allowed.
2. Decision of Land Transport Appeals Tribunal delivered on 15.2.2019 is set aside.

100. Cost of this appeal is summarily assessed at $1,000 to be paid within 21 days.
     

Deepthi Amaratunga

Judge