Land Transport Appeals Tribunal
Sitting At Nausori							Appeal # 59 of 2014

Between:	George Transport Limited
		Dee Cees Services Limited					
[Appellants]

And:		Land Transport Authority
							[Respondent]

		Tacirua Transport Limited
							[Interested Party]

Appearances:
For the Appellant: Mr F. Haniff
For LTA: Mr G. Stephens.
For Tacirua Transport Limited: Mr V. Kapadia

Judgment 

Introduction

The Appellants, George Transport Limited and Dee Cees Services Limited have appealed the decision (dated 12th December 2014) of the LTA where the Authority following a hearing dated 29th July 2014 and 27th November 2014 for an application dated 4th December 2013 resolved and approved the trips the Interested Party had applied for. 

The Tribunal has noted that all parties to the proceedings have been served and have notification of this matter.

Grounds of Appeal

The Appellant’s grounds for appeal are as follows:

1.	“The LTA failed to give any or any adequate reason(s) for its decision to amend TTCL’s Road Route Licence 12/6/24 for the additional trips to and from Ram Lakha Singh Road via the Kings Road.

2.	The LTA failed to explain how it arrived at the decision to amend TTCL’s Road Route Licence 12/6/24 for the additional trips to and from Ram Lakha Singh Road via the Kings Road.

3.	The decision of the LTA was procedurally flawed because it did not consider George Transport Limited’s (“GTL”) application to provide the same service as that approved by LTA for TTCL when the additional trips fell into GTL’s area of operation. 

4.	The LTA acted unfairly and unreasonably by failing to hear GTL’s application to provide the same service as that sought by TTCL; alternatively

5.	The LTA acted unfairly and unreasonably when it heard TTCL’s application without first affording the opportunity to GTL to apply to provide the same service given that the application by TTCL’s application fell into GTL’s area of operation. 

6.	In any event, the LTA acted unfairly and unreasonably by failing to consider whether GTL and/or Dee Cee’s Bus Services Limited (“Dee Cee’s”) could have provided the services sought to be provided for by TTCL given that the application for the additional trips to and from Lakha Singh Road fell into GTL’s and/or Dee Cee’s area of operations.

7.	The LTA acted unfairly and unreasonably in permitting TTCL to encroach on to other operator’s areas of operation along Khalsa Road and the Kings Road. 

8.	The LTA  acted unreasonably in granting TTCL’s application when such trips were either unnecessary or not required as the need for such additional trips was not supported by evidence before the LTA. 

9.	The LTA failed to consider that by granting TTCL’S application, the proposed trips would directly clash with the trips of the existing operators along Khalsa Road and the Kings Road. The Appellants will adduce the timetables of the existing operators in its submissions to support this grounds. 

10.	The LTA in granting TTCL’s application failed to consider the effect of the proposed service on other operators operating on Khalsa Road and Kings Road in breach of Regulation 5(1)(b) of the Land Transport (Public Service Vehicles) Regulations 2000.

11.	The LTA failed to give proper or any consideration to the effect an additional seventy(70) trips would have on the Kings Road that is already congested at peak travel times and a route that is adequately catered for by other operators operating Khalsa Road and the Kings Road. 

12.	The LTA acted unreasonably in granting TTLC’s application when the need for such trips was not established.”

Hearing and Submissions Made

The matter was heard on 2nd September 2016. Having filed all necessary documents the parties agreed to have the matter heard by way of written submissions. Some oral submissions were also made. This Tribunal has perused and noted all the documents filed and the submissions made.  

The Function and Powers of the Tribunal
Section 40 (2) of the Land Transport Act provides for the function of the Tribunal, which is “to hear and determine appeals against decisions of the Authority relating to -
(a)  licensing of drivers under section 56;
(b) any matter requiring a decision of the Authority under  Part VI ; and any other matter prescribed by the Minister by regulations.”

Regulation 34 (1) and (2) of the Land Transport (Vehicles Registration and Construction) Regulations 2000 allows the Tribunal to deal with appeals relating to issuance and cancellation of dealing certificate or trader permit. 
The powers of the Tribunal for the purposes of hearing and determining appeals according to Section 46 are to “(a) to issue a summons to a witness in the prescribed for ; (b) to call for the production of books, plans and documents; (c) to examine witnesses on oath or affirmation; (d) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings; (e) to exclude any person if necessary so as to ensure the proper conduct of the appeal or to preserve order.”

Furthermore, under Section 46 (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.” And under Section 46 (3) “Upon the determination of an appeal under this section the Tribunal may make such order as it thinks just with the respect to the costs of the appeal, and any person to whom any such costs are awarded may recover the amount of those costs in any court of competent jurisdiction, as a debt due from the person against whom those costs are awarded.”
According to Section 47 the Tribunal “for the purposes of the hearing and determination of any appeal the Tribunal shall have regard to those matters which the Authority is required to have regard to in considering an application under this Act.”
Analysis

The Tribunal has noted the grounds of appeal and the submissions made by the parties. 
The Tribunal finds from the decision letter that no reasons are given for the decision. When dealing with an applications the Respondent, LTA must give reasons for its decision. In this case there are a number of parties they all would like to know what the basis of the Respondent’s decision was.
This Tribunal would like to highlight what the Fiji Court of Appeal recommended to the Transport Control Board the predecessor to Land Transport Authority, which is still pertinent now in Pacific Transport Ltd v Khan [1997] FJCA 3; Abu0021u.1996s (12 February 1997). The Court stated that “we strongly recommend to the TCB what was recommended to it in 1984 by this Court - namely, that in all cases, it give brief reasons for its decision. Failure to do so involves parties in more cost and litigation. As is noted in some of the authorities, a failure to give reasons can make a ‘disappointed’ litigant a ‘disturbed’ litigant.”
This Tribunal Notes from the Fiji Court Appeal decision that the practice required of the TCB and now the LTA is to give reasons for its decisions. It can be brief. In the said matter the LTA was required to explain why the application was being approved. Only stating that the application is approved is not enough. In the said matter the LTA should have given reason or reasons why the application was approved and why the objections were not upheld. This would have assisted the parties understand the rationale of the LTA in reaching its decision.
From the records the Tribunal notes that George Transport Limited had applied for extension of route to Sakoca Village. The objector in that application is Tacirua Transport. In a report prepared to the Chairman dated 2nd May 2014, The Management commented that a “similar request received from George Transport Ltd on 06/02/2014 and relevant fees were accepted on 01/07/2014.” The Tribunal further noted from the same report that the Management informed the Board and Chairman that “George Transport is also a current operator on the Khalsa Road.” Despite this information the Tribunal notes from the minutes of 27th November 2014 that the Board resolved that the application by George Transport was not a competing application and at the same time stated that Tacirua’s application must be considered first. This to the Tribunal was an attempt by the Board to deal with the Tacirua application first and ‘side-line’ the application by George Transport by dismissing it as not being a competing application. The Board again did not state why the application by George Transport was not competing. The application was found by the Management of LTA to be similar. The Tribunal from the Records notes that the application is similar. It being similar makes the applications competing. The Tribunal has noted that the words similar and competing have been used interchangeably in reference to the applications that come before the Respondent. 

Whenever competing applications are before the Respondent it has been emphasised that they must hear all relevant applications and then a decision must be made on them. It is clearly logical that such a practice is encouraged as it will allow the Board to look at all the issues at once and also fairly deal with the applications as all the materials will be looked at when the applications are dealt with together. Given the fact that the Board has all along been dealing with competing/similar applications together is a better and preferred approach. By acknowledging that the applications are similar and at the time of determining the applications a bare statement without giving any reason why the application is not a competing application is unfair to the party. The party should at least have been informed why the application is not similar. If some other issues are unresolved in an application that issue must be resolved and then the competing applications dealt with. 
One important policy amended by the Respondent when dealing with the application was the encroachment policy. The Respondent is at liberty to amend the policies that relate to the transport industry. However it would be fair to all parties that it followed the same procedures that it used when it established those policies. That is consultation and input from all relevant stakeholders. It is not fair to any party/stakeholder if the “goal post is changed mid match”. 
This Tribunal understands the rationale of the encroachment policy is to provide existing operators to grow within their routes without competition. Competition within a route is not encouraged in the bus industry as the bus operation involves considerable investment and risks. The bus industry is a highly regulated industry. Bus operators need to maintain adequate fleets for service. The commitments are high, with supplies and parts to be readily available for maintenance of the fleet. The LTA and the bus operators had developed and harnessed the principle of encroachment to provide existing operators in the routes comfort of operation without any fear that some other operator will take away their loads. The encroachment principle so developed is for all operators as it provides valuable protection for all of them. This is a very important policy and should not be taken lightly by the Respondent’s.
The Tribunal noted from the Minutes of the Respondent of 27th November 2014 that that the opening remarks of the Chairman on the encroachment policy was to have a consultative process and further submissions from the bus operators were required. The next portion of the minutes shows that the Board changing the encroachment policy. The processes of the Respondent are very confusing. One thing is being said and another done. It clearly shows that in order to dispose of certain applications the policies were changed. The changed policies were used to approve the applications. To the Tribunal the actions of the Respondent in treating similar/competing applications and unilaterally changing policies developed in consultation with the stakeholders are unfair and cannot be taken lightly. The process of the Respondent in dealing with the application was unfair. The changing of policies when stating that consultation was to take place shows that the Board rushed through the matter and did not carefully consider the application. It would be a bad precedent if the Tribunal does not highlight this serious flaws on the part of the LTA. The Processes and Practice of LTA in dealing with the matter was flawed and matters were considered by changing policies midstream. 
The decision of the Respondent for the above-mentioned reasons are unfair and irrational and therefore cannot stand. The appeal succeeds. The Respondent is directed to hear this matter with the competing application afresh. 
Orders

-	Appeal is allowed. 
-	The decision of the Respondent to grant the application for amendment of RRL 12/6/24 to Tacirua Transport Limited is set aside.
-	The Board is directed to hear this matter and the competing application afresh. 
-	Respondent to pay Appellants costs for the appeal which is summarily assessed at $300.00 within 21 days. 

The Parties have the right of Appeal.

Chaitanya Lakshman
Land Transport Appeals Tribunal
13/1/2017