State v Transport Control Board, ex parte S. Nair Transport [1997] FJLawRp 30; [1997] 43 FLR 191 (5 August 1997)

[1997] 43 FLR 191

HIGH COURT OF FIJI ISLANDS

THE STATE

v

TRANSPORT CONTROL BOARD

ex parte

S. NAIR TRANSPORT, ISLAND BUSES LIMITED
& DEE CEES BUS SERVICES LIMITED

[HIGH COURT, 1997 (Scott J) 5 August]

Revisional Jurisdiction

Traffic- Transport Control Board- grant of road service licence- whether Board must give reasons for decision taken- Traffic Act (Cap. 176) Division 3.

The Transport Control Board awarded road service licences to 2 operators but rejected competing applications by 5 other companies. No reasons for the award were forthcoming. The High Court stressed the desirability of giving reasons for decisions and quashed the award on the ground that the Board could not be seen to have acted within its jurisdiction.

Cases cited:

Buses v. Transpransport Control Board (C.A. 9/84, FCA Reps )

Pacific Transport v. Khan (A/96- eps 97/3)

R>R v Lancashire County- Council ex parte Huddleston [160;[1986]1986] 2 All ER 941

The State v. port ol Board ex parteparte Peni Company Limited

(HBJ 22/94S)

Motion forn for judicial review in the High Court.H. Nagin for the Applicr>I. Tube Tube Tuberi forRespondent
H. Late Lateef for the 1st Isted Party
M.Raza for the 2nd Interesard Part Party

Scott :
The Applicant movrs for Judiceviewuant to leave grae granted by consent on 15 November 1996. The principal relief sought is a is an Order of Certiorari to quash a decision e Resnt (the Board) red) reached on 31 July 1996 the effect of w of which was to grant the 1st and 2n0;Interested Parties ties road services to operate to and from Muanikoso, Nasinu. The Muanikoso Estate is a new Housing Aity subd subdivision, the ftenants of which moved into occupation in early 1996.
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Int July 1995, apparentarently before any houses had actually built on the estate but after the road into it had been coen constructed, the 1st Interested Party (d) appliepplied to the Boar a licence to operate a busa bus service to and from the new estate.

Following the Board’s advertisement of Island7;s application the Applicant (Nair) lodged an application tion for an amendment to one of its current licences, the effect of which,ranted, would have been to allow it to service the new esta estate.

Nair’s applicawasn was followed by matching applications from a number of other bus operators namely the second interested party (Dee Cee), Tebara Transport, George Transport Davuilevu Buses and K.R. Latchan Bros. Ltd.

T
The prre governingrning the grant of road service licences by the Board is set out in Division 3 of the Traffic Act (Cap 176). Section 65 provides that after an application for a licence has been pued the Board must receive aive any objections in writing to the application. The objections must state the grounds of the objection and copies of any objections must be provided to any other applicant.

The supportingdavit filt filed by the general manager of Nair exhibits 21 pages of representations received in connection with the seven competing applications. In general, epplicant, while seeking the grant of a licence to service tice the new estate for itself objected to a grant to the other applicants on the grounds of encroachment on to already established routes. Muanikoso is close to the Suva/Nausori stretch of the Kings Road which is almost certainly the most densely populated and bus serviced stretch of road in Fiji. It is clear that there was very fierce competition indeed for the new service.

On ly 1996 the Board cord convened for the purpose of hearing evidence and oral representations from the competing applicants. The minutes of the public meeting are exhibited to the affidavit of oard’s secretary, Mr., Mr. Gyneshwar Chandra Naidu filed on 20 December 1996. Although the minutes were not formally accepted by the Applicant or by the Interested Parties as being complete and accurate they do, as I find and as will become clear below, constitute a sufficiently accurate record of what transpired for present purposes.

Athe Board had heard alrd all the representations made to it, it retired and reached the decision which it is now sought to quash. It granted licences to the tworested Parties and refused the other applications.
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all the affidavits hads had been filed in Court counsel for the parties agreed that the most convenient way forward was for written submissions to be filed and in due course four excellent, cl and comprehensive writtenitten submissions were placed before me for which I am grateful.

Mr. Nagin advanced four arguments. Put shortly they are as follows:

(a) ҈ < the Board should have rl tall the applications for licences to service the new estate because there were no, or almo almost no people living there:

&#1p> audi alteram partem;;rule.(c)& ҈& t60; the dece decision to grant licences was unreasonaasonable fble for the same reasons as set out in (a) abov>

160;

(d) #160;n&#Na0; #82r&; s 7; s legitimateimate expe expectations were defeated by the Board’ s failure to give reasons for its decision.

Ground (b) is depende t on the validity of the premise that the Board is bound to follow a precise procedure when “receiving any evidence and apresentations for or against any application in respect of the proposed service” unde under the provision of Section 65(3) of the Act. In my view that premise cannot be justified. So long as the procedure adopted is fair there can, in my view, be no objection to it. Upon examination of the minutes of the meeting and Exhibit A to Mr. Nair’ s supporting affidavit, already referred to, I can find nothing to suggest that Mr. Kapadia who is an experienced, forceful and effective advocate not known for bouts of shyness was in any way prevented from fully presenting his objections to the other applications or from fully presenting those facts and matters which he wished to urge in support of Nair’s application. Examination of Exhibit A reveals that contrary to the requirements of Section 65 (3) Nair chose not to provide a full statement of the grounds of its objections to the competing applications but in each case stated “further grounds of objection will be given on the day of the hearings”. I can find no basis for such a procedure in the Act. In my view Nair failed to avail itself of the opportunity given by the Act to provide a full written statement of its case and was not prevented at the hearing from presenting such submissions as it wished to place before the Board. This ground also fails.

The third ground (d) adverts to the fact that the Board did not give reasons for its decision. Both Dee Cees and the Board state in their written submissions (paragraphs 5.01 and 6.02) tair did not ask for reasons to be provided. This however iser is not correct, as can be seen from paragraph No. 1 of Nair’s letter to the Board dated 19 November 1996 (see Nair’s affidavit in reply filed 2 June 1997 - Exhibit A).

Appareaccepting that a at a request for reasons was in fact made Mr. Lateef, for Island, advanced a number of “good reasons&#822r the grant in paragraph. 4.03 of his written submissions. Mr. Tuberi suggested that the Bohe Board’s reasons for its decision were set out in Mr. Naidu’s affidavit.

In my both these attempttempts to deflect the force of Mr. Nagin’ s argument fail. That Mr. Lateef can conceive of “good reasons” does not mean that those were in fact the reasons he Board’ s decision sion while examination of Mr. Naidu’s affidavit and particular paragraphs 9 and 13 thereof reveals no more than a denial of suggested reasons and a number of factors taken into account before the decision was reached.
<Akbar Buses v. Trv. Transport Control Board (C.A. 9/84, eps 84/40) /40) the Fiji Court of Appeal recommended the Board should always give at least brief reasons for its decisions. In (HBJ 22/J 22/94S) havined&#ted R v Lancashire Countynciouncil ex parte Huddleston always&#1ys give an nation for the the dehe decision reached in its affidavit filed in the proceedings. Both the recommendation of the Fiji Court of Appeal and my advice were, in this case, ignored.

The question of givingiving reasons has again recently been examined by the Fiji Court of Appeal in Pacific Transport v Khan (ABU 0021/1996 FCA Re/3). While the Court acknowledged that there is as yet no s no statutory duty imposed on the Board to give reasons for its decisions intedthat where the circumstances were not such that that the reasons for the decision could othd otherwise satisfactorily be ascertained natural justice required adequate reasons to be provided. The Court were on:

&#We strongly recomrecommend the TCB what was recommended to it in 1984 by this Court - namely that in all cases it give breasons for itor its den” (emphasis added).

It is pndly toly to be o be hoped that this is the last time that the Courts will have to tel Boar satisfactorily to exercise this aspect of its pots powers.wers.

In the present case seven established and reputable bus operators were vieing for the same route. All have sufficient buses and finance to support their application (see page 5 of the minu There seems, on the face of it, very little to choose betw between them. I am satisfied that neither the minutes nor the affidavits provide any or any adequate explanation of the reasons for the decision reached. In these circumstances I am satisfied that the Board “cannot be seen to have been acting within its jurisdiction” (see Bakeublic Service Appealppeal Board [1982] 2 437, 445). Although Mr. Lateef suggested that this Cous Court could direct the Board to give its reasons (see para. 4.04 of his written submissions) with respect I do not think that O. 53 r. 9(4) permits such a direction to be given.

In my view thed’ 217; s failure to give any or any adequate reasons for its decision is fatal. The Application succeeds. The decision ofBoard reached on 31 July 1996 is removed into this Court and quashed. For the avoidance of e of inconvenience to the travelling public the Board will doubtless consider acting immediately under the provisions of Section 74 of the Act.

(Certiorarued; decisdecision quashed).