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R v Transport Control Board, ex parte Sunbeam Transport Ltd [1993] FJHC 77; Hbj0008j.1989s (10 September 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 8 OF 1989

R.

v.

TRANSPORT CONTROL BOARD

EX-PARTE SUNBEAM TRANSPORT LIMITED

Mr. H. Nagin for the Applicant
Mr. F.S. Lateef for the Respondent
Mr. A.R. Matebalavu for the Transport Control Board

JUDGMENT

On the 8th of November 1988 the Transport Control Board ('TCB') granted a Road Service Licence (RSL) No: 12/10/79 to Pacific Transport Limited ('Pacific') permitting it to operate an express bus service Ba/Suva return on the Queens Road.

The present applicant Sunbeam Transport Limited ('Sunbeam') although also a 'long haul operator' albeit on the Kings Road did not lodge a competing application for the above service.

It however was listed and heard as an objector to 'Pacific's' application and its written objection reads as follows: (at p. 67 of the precis)

"(e) 20.4.83 - SUNBEAM TRANSPORT LIMITED We refer to the advertisement in the newspaper of 19th April 1983 concerning Ba/Suva/Ba Queens Road express service.

We object to the above application on the following grounds:

(1) The proposed timetable will clash with our existing timetable as follows:

PTL Proposal

Ba Dep. 6.15 a.m.

Suva arr. 12.05 p.m.

Suva dep. 3.00 p.m.

Ba arr. 8.40 p.m.

Ba dep. 3.00 p.m.

Suva arr. 8.40 p.m.

Sunbeams existing

Express Lautoka dep. 6.30 a.m.

Ba arr. 7.10 a.m.

Ba dep. 7.15 a.m. for Suva

Stage Carriage

(i) Lautoka dep. 2.15 p.m.

Ba arr. 3.15 p.m.

Ba dep. 3.30 p.m. for Suva

(ii) Suva dep. 3.00 p.m. for Lautoka

The above timetable comparisons shows that our loading via the Kings Road will be severely affected, if the proposed application is granted thus allowing passengers shorter travelling time via a tar-sealed highway.

We request that the board reject the application as it will seriously affect our existing service."

At the public hearing of 'Pacific's' application on the 1st of November 1988 before the TCB, Counsel for the applicant is recorded in the minutes as having said:

"Mr. Nagin for Sunbeam re-iterated that there was no need."

On the 7th of February 1989 the applicant successfully sought ex parte leave to issue an application for judicial review challenging the decision of the TCB to grant 'Pacific's' application, on 3 grounds as set out in the Statement filed with the aption as follows:

"(a) That the TCB acted in breach of the relevant rules of natural justice and that it failed to give the Application a hearing or a proper hearing befeciding to approve the appl application for RSL 12/10/79 from Pacific.

(b) That the TCB in deciding to approve the application for RSL 12/10/79 from Pacific abused its discretion under the Traffic Act in that:

(i) It took into consideration irrelevant matters; and

(ii) It did not take into consideration relevant matters; and

(iii) It acted arbitrarily and/or unreasonably and/or in bad faith.

(c) That the TCB exceeded its jurisdiction under Section 55, 65 and 66 of the Traffic Act."

At the outset I would observe that the above grounds are wholly inadequate and quite unhelpful in directing the Court's mind to the specific nature or the true basis for the various complaints. For instance, it fails miserably to provide any particulars or details of any kind as to how? the TCB "... failed to give the applicant a hearing" or how? it "abused its discretion under the Traffic Act?" or what? (if any) "irrelevant matters" or "relevant matters" it took into consideration or failed to consider.

I accept that these 'defects' are somewhat ameliorated by the affidavit verifying the facts filed in Court and the written submissions of Counsel for the applicant but it should not be necessary for the Court at the ex parte stage to have to search through the documents or papers in an effort to find or narrow down the basis for the various grounds of complaint. This should be made clear on the face of the application.

Be that as it may leave was granted to the applicant; however, before leaving this aspect it should be pointed out that Order 53 r.3(5) of the High Court Rules expressly provides the following restriction or limitation to the grant of leave to issue judicial review, where it states:

"The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

In R. v. IRC ex parte Federation of Self-Employed [1981] UKHL 2; [1982] AC 617 Lord Wilberforce in upholding the Divisional Court's finding that the federation had shown no "sufficient interest" to justify its application for relief said at p.630:

"There may be simple cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the Courts being flooded and public bodies being harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest cannot be considered in the abstract as an isolated point: it must be taken together with the legal and factual context. The rule requires sufficient interest 'in the matter to which the application relates'."

In this instance since 'Sunbeam' did not have a competing application for the service or the route sought by 'Pacific' under RSL 12/10/79 can it be said that "... (the applicant) has a sufficient interest in the matter to which the application relates ..." so as to entitle it to challenge the decision of the TCB in granting the licence to 'Pacific'?

Clearly 'Sunbeam' cannot be said to be an "unsuccessful applicant" in the grant of the RSL by the TCB to 'Pacific' and although, as already observed, it is an established "long-haul" operator, the route over which the RSL was granted is not one already substantially serviced by 'Sunbeam' (other than for a very short common leg between Ba and Lautoka).

In Durayappah v. Fernando [1967] 2 A.C. 337 the Privy Council whilst affirming the applicability of the audi alteram partem principle in the circumstances of the case nevertheless refused to upset the order of the Minister dissolving the municipal council. In delivering the reasons for the decision, Lord Upjohn said at p.352:

"Though the council should have been given the opportunity of being heard in its defence, if it deliberately chooses not to complain and takes no steps to protest against its dissolution, there seems no reason why any other person should have the right to interfere."

Similarly it might be said in this case if the persons most likely to be aggrieved, namely the unsuccessful competing applicants choose not to complain against the decision of the TCB to grant 'Pacific's' application for the RSL there seems no reason why 'Sunbeam' which had not sought the RSL should be heard to complain.

Nevertheless decisions in this area clearly show a progressive widening of what the Court's have come to consider is a "sufficient interest" to seek judicial review and although I do not accept the mere fact that 'Sunbeam' is a bus-operator, is a "sufficient interest" for it to contest every decision of the TCB, equally, it would be inapt to describe this present application as "... a mere busybody interfering in things which do not concern (it)..."

Suffice it for present purposes to say that the question of 'Sunbeam's' "standing" to bring these proceedings has not been challenged and accordingly it would be inappropriate for me to decide this matter unassisted by Counsel. I am of course mindful that 'Sunbeam' was an unsuccessful objector as of right to the grant of the particular RSL.

I turn then to deal with the specific complaints of the applicant under the following convenient headings: 'BREACH OF NATURAL JUSTICE and BIAS'; 'FUNCTUS OFFICIO' and 'EXCESS OF JURISDICTION and ABUSE OF DISCRETION'

BREACH OF NATURAL JUSTICE and BIAS

The basis for this complaint appears to derive from the undisputed fact that after the public hearings conducted by the TCB and before it had rendered its decision on 'Pacific's' application for RSL 12/10/79, the TCB unbeknown to and in the absence of other competing applicants and objectors (of which 'Sunbeam' was one) met and entered into correspondence with Counsel representing 'Pacific'.

This fact it is claimed is a breach of natural justice and "smacks of bias in favour of Pacific and against the other operators and objectors".

In considering this ground of complaint I am reminded of the words of Lord Shaw of Dunfermline when he said in Local Government Board v. Arlidge [ 1915] A.C. 120:

"The words 'natural justice' occur in arguments and sometimes in judicial pronouncements in such cases ... In regard to these certain ways and methods of judicial procedure may very likely be initiated; and lawyer-like methods may find especial favour from lawyers. But that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of Justice is wholly unfounded. This is expressly applicable to steps of procedure or forms of pleading."

I accept that when I first read of the complaint at the ex parte stage I had considered that at the very least there had been a failure on the part of the TCB to maintain the appearance of doing 'even justice' between the parties, however, upon reading the affidavit filed on behalf of 'Pacific' together with the annexures there attached and the submissions of Counsel for 'Pacific', I have not the slightest doubt that there is no substance in this ground of complaint.

The correspondence and discussions between the TCB and Counsel for 'Pacific' referred to a quite unrelated and different application and could have had no bearing whatsoever on the decision of the TCB on the present route under consideration.

I cannot accept for one moment that by that meeting (on an unrelated matter) the TCB exhibited any favouritism towards 'Pacific' in its present application under review nor is there a shred of evidence to support the assertion that 'Pacific's' application for RSL 12/10/79 was granted as an 'appeasement' for its failure as an objector on another application for a different route before the TCB.

It is common enough ground that 'Pacific' is one of the longest established 'long-haul' operators in the industry and has been providing both stage and express services along the Queens Road between Lautoka and Suva and vice versa for a good number of years.

Furthermore it is common ground that the TCB had amongst other minor matters heard over several days of hearings two sets of unrelated applications conveniently divided into Group 'A' applications which dealt with "circular or round-the-island services" and Group 'B' applications which dealt with other matters and "non-circular routes" into which latter group the present application fell to be considered. Furthermore Counsel for 'Pacific' had appeared for several operators besides 'Pacific' in both Groups, firstly for objectors and then, for an applicant-cum-objector.

In those circumstances even though it has been said that "... the court does not look into the mind of the ... tribunal ... (or) ... to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other ...". I cannot accept, given the undisputed facts of this case, that right-minded persons fully acquainted with the facts would think it likely or probable that the TCB would, or did favour 'Pacific's' application at the expense of the other competing applicants (of which 'Sunbeam' was not one).

It is well to remember the timely observation of Slade J. when he said in R. v. Camborne J.J. Ex parte Pearce [1955] 1 Q.B. 41 at p.52:

"Whilst endorsing and fully maintaining the integrity of the principle (of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done) this Court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done."

This complaint has no merit and is accordingly dismissed.

FUNCTUS OFFICIO

This ground of complaint is set out in the submission of Counsel for the applicant as follows:

"The Board having made its decision on the 3rd November, 1988 to refuse Pacific's application had become functus officio and could not change its decision or review its decision. It has therefore exceeded its jurisdiction."

The submission is principally based on the resolution of the TCB granting 'Pacific's' application for RSL 12/10/79 and which is entered in the minutes as follows:

"ITEM B - PAGE 65 - PRECIS 31/10/88 -12/10/79 - PACIFIC TRANSPORT LIMITED

The Board's refusal of the above application on 3/11/88 is cancelled by the Board's resolution of 8/11/88 to approve the above application in part with Mr. A. Tikaram voting against."

The essence of Counsel's submission on this matter is the relatively simple one that once a decision has been made by the TCB there is no power vested in it to cancel or alter its decision.

No authority has been cited in support of the proposition but presumably the submission is based on a narrow literal reading of the provisions of Section 65(4) of the Traffic Act which expressly empowers the TCB on "any application ... (to) grant or refuse (it) ..."

With all due regard to Counsel's submissions I cannot agree. The submission in my view incorrectly treats the TCB's resolution as if it were the 'Road Service Licence' itself and ignores the provisions of Section 65(6) which expressly provides:

"(6) Where the Board grants an application, the secretary shall, upon payment of the appropriate fee, issue the road service licence as granted by the Board."

As was said by Lord Denning M.R. in a planning case Slough Estates v. Slough B.C. [1969] 2 ALL E.R. 988 at p.991:

"The grant is not made when the local authority resolves to give permission. It is only made when its clerk, on its authority, issues the permission to the applicant. Seeing that it has to be done in writing, one can only look to the permission itself and the documents incorporated in it."

In this case a copy of Road Service Licence No. 12/10/79 is before the Court as an annexure and speaks for itself as to the licensee, the route, the timetable and other terms and conditions attached to the licence by the TCB.

I accept that under Section 55(3) of the Traffic Act:

"All acts, matters and things authorised and required to be done by the Board shall be decided by resolution at any meeting at which a quorum is present ..."

but that does not and cannot enable an unsuccessful applicant or objector to challenge the grant of a 'Road service licence' by launching a collateral attack on the wording or form of the resolution incorporating the TCB's decision granting the licence.

The existence of a resolution is a minimum procedural requirement and merely evidences the decision of the TCB on any particular matter. It is not and does not form the jurisdictional basis for the decision.

In my view prior to the notification of its decision and the issuance of a 'Road service licence', the TCB has and retains the necessary incidental power to revoke or alter its decision by resolution.

The present situation however might be described as the converse position in that it relates to a refusal of an application, here again, I am firmly of the view that unless and until the Board's refusal has been communicated to the affected parties, it can be revoked or altered as the TCB sees fit.

No estoppel arises in such a situation nor could it, neither has it been suggested that anyone has been prejudiced in anyway by the cancellation of the board's earlier un-notified refusal in this instance.

The fact of the matter is that the TCB for reasons not disclosed decided, after earlier refusing an application, that it ought to be approved in part and an appropriately-worded resolution was accordingly passed to reflect that change of mind. For all we know the earlier refusal could have been a mistake.

There can be no doubting the duty of the TCB to pass resolutions for whatever decisions it takes on any particular matter. The nature and content of such resolutions however is nowhere provided for in the legislation and ought not in my view to be limited or restricted to one of merely 'granting' or 'refusing' an application in toto.

Needless to say if I should uphold the submission of the applicant then even where an obvious mistake had been made in the drawing up of the resolution such as a refusal being incorrectly recorded as a grant there would be no power in the TCB to correct that error. I cannot agree that such a drastic result could have been ever intended by the legislature.

Needless to say if the TCB had actually issued a licence pursuant to that error, it would have had power in my view to revoke the licence and the Court would have permitted it to go behind the licence to reveal the true nature of its error. (See: Norfolk County Council v. Sec. of State for the Environment [1973] 1 W.L.R. 1400)

Furthermore Mocatta J. in Rockwell Machine Tool Co. v. Customs and Excise [1970] 2 Lloyds Rep. 176 in interpreting the statutory provision before him in that case said at p.184:

"When a Court has to construe a statute, it is, I think, entitled, if the words of the statute permit, to have regard to the administrative inconveniences and practical difficulties that may flow from any particular construction in so far as those are obvious and may therefore be presumed to have been in the collective mind of the legislature when enacting the statute in question."

I am content to dismiss this complaint on the broad principle that where any written law confers on a body power to do any act or decide anything then all such powers shall be deemed to be also conferred or implied as are necessary to enable it to exercise its powers to the fullest extent.

EXCESS OF JURISDICTION and ABUSE OF DISCRETION

The complaint under this head makes reference to the provisions of Sections 55, 65 and 66 of the Traffic Act. More particularly Counsel's submissions points to the failure of the TCB to take into account the submissions placed before it at the hearing of the application that there was no need for the particular service sought under the application.

In dealing with this ground of complaint it is necessary to make some preliminary observations on the potential for confusion that can and does arise from the manner in which applications and objections for road service licences are presently being dealt with by the TCB.

Section 63 of the Traffic Act makes it an offence to use any motor vehicle as a stage or express carriage except under a road service licence granted by the TCB; Section 64 then sets out the procedure whereby an application may be lodged for the grant of a road service licence; Section 65 outlines the procedure that must be followed by the TCB upon receiving an application for a road service licence which it has decided to entertain, and Section 66 enumerates various matters that the TCB must have regard to in exercising its discretion to grant or refuse any application for a road service licence.

It should be noted at the outset that an application for a road service licence is a serious matter and ought not to be lodged by an applicant who does not genuinely seek it nor in my view ought such an application to be entertained if the reason(s) given for the application are bad or insufficient on the face of the application.

Needless to say past practice has shown that the mere fact of lodging an application is no sure basis for assuming that the particular road service licence being sought is genuinely desired by the applicant. This is clearly illustrated by the numerous withdrawals and admissions at the public hearings of the TCB that a competing application has been lodged "... to protect the applicant's interest ..." (whatever that might be)

It needs to be said that the provision of bus services to the travelling public of Fiji is a 'privilege' and ought not to be treated as a monopoly. Furthermore in receiving applications for road service licences the TCB ought first to consider in appropriate cases whether or not to exercise its summary power to refuse to entertain an application for a road service licence as provided for in terms of the proviso to Section 65(1).

Indeed it might well be considered desirable for the TCB to require applicants to furnish with their applications some prima facie evidence to overcome the various disqualifying matters set out in the 3 limbs of the 'proviso' before an application for a road service licence will be entertained.

In Civil Action No. 499 of 1983 Kermode J. (as he then was) reproduced a Circular letter No.1 of 1982 dated the 27th of April 1982 in which the TCB set out what information it required to be supplied with any application for a new road service licence. His lordship observed in that case that several applicants had not complied with the TCB directive and the same can be said of the present applications.

Needless to say if the TCB continues to accept applications that fail to comply with the terms of its above-mentioned Circular Letter then its threat to summarily dismiss such applications (in future) sounds hollow and is an idle one and the present inconsistent stances adopted by applicants and multiplicity of applications will continue unabated to the detriment of the TCB and the industry as a whole.

This present application is perhaps illustrative of the 'problems' that can arise from the existing practice of the TCB. The minutes of the relevant TCB hearing records the following submissions of Counsel for 'Pacific' at p.27:

"RSL 12/10/79 - PACIFIC TRANSPORT LIMITED (Pages 65-69 of precis refers)

Mr. Lateef for applicant said that this (application) was pursuant to Lautoka General Transport's application. Applied to protect their interest. Referring to Transport Officer's previous report, Mr. Lateef added that there was no need. Mr. Lateef continued that if the Board saw no need then they will withdraw."

Furthermore in its written objections to the application of Lautoka General Transport (RSL 12/10/77) the applicant besides detailing how its existing services would be adversely affected also drew the TCB's attention to an earlier refusal of the same application "... after ... considering the objections apart from the requirements of S.66 as to need etc. ..."

Clearly this present application was lodged not because the applicant genuinely desired the licence or saw a real 'need' for the service but rather to forestall another application for the same route.

In those circumstances it is not at all surprising that Counsel for the applicant submits that the TCB abused its discretion by not taking into account the following matters:

"(i) There was no evidence of need;

(ii) Pacific was saying there was no need."

In response however Counsel for 'Pacific' referred to "... the fact that four operators had applied for the trips (as) sufficient to show need ..." Reference was also made to various well-known decisions in this area including K.R. Latchan v. Sunbeam Transport Civil Appeal Nos. 45, 51, 57 and 61 of 1983, a Fiji Court of Appeal decision in which the Court clearly endorsed the principle that a body such as the TCB was entitled to "... use its existing knowledge of public transport available, as against the demand for bus transport."

I accept at once that the question of "need" is a fundamental statutory consideration for the TCB whenever it has to consider whether to grant or refuse an application for a road service licence, but, I am equally certain in my mind given the nature of the 'evidence' which the TCB may consider and act upon, that this Court ought not to interfere with the TCB's decision on that question unless it is demonstratively plain that there was no evidence whatsoever of any "need" for the service applied for.

Finally I make the observation that "need" is but one of several matters that the TCB is obliged to have regard to in deciding whether or not to grant or refuse any application for a road service licence and, in this case, the application was for the provision of a new return express service between Ba and Suva along the Queens Road as opposed to existing stage carriages already servicing the route or parts of it.

It has not to my mind been demonstrated that the TCB exceeded its jurisdiction or abused its discretion in finding that there was a "need" and in granting 'Pacific's' application for the road service licence.

The applicant having failed on all grounds this application is refused with costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
10th September, 1993.

HBJ0008J.89S