IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 41 OF 1991

IN THE MATTER of an Application by
VATUWAQA TRANSPORT COMPANY LIMITED
and BLUELINE TRANSPORT COMPANY
for a Judicial Review under Order 53 of the High Court Rules, 1988 and High Court
(Amendment) Rules 1991

AND

IN THE MATTER of the decision of the TRANSPORT CONTROL BOARD
made on the 30th day of September, 1991.

H.K. Nagin: For the Applicants
S. Sharma: For the Respondent
M. Narsey: For Yatu Lau Company Limited

Dates of Hearing: 27th April, 17th and 25th May 1994
Date of Interlocutory Judgment: 20th July 1994

INTERLOCUTORY JUDGMENT

On 31st of March 1993 I refused the Applicants' leave to apply for Judicial Review of a decision by the Respondent, Transport Control Board of the 30th of September 1991 to adjourn an application by Yatu Lau Company Limited for certain amendments to its Road Service Licence No. 12/6/17. The relevant facts are stated in my ruling and I shall not mention them again here.

Following my ruling, on 21st April 1993 the Applicants applied to the Court of Appeal for leave to apply for Judicial Review before a single judge of the Court of Appeal. Alternatively they asked that leave be granted to appeal against my refusal of 31st March 1993. Both applications have been opposed by the Second Respondent Yatu Lau. On the 8th of February 1994, the Fiji Court of Appeal in Chambers refused the Application for leave for Judicial Review but, since the Applicants had not made the application to appeal against the refusal by this Court pursuant to Rule 26(3) of the Court of Appeal Rules, the Fiji Court of Appeal referred the matter to the Resident Justice of Appeal as he then was and is now the President. I shall refer henceforth to Sir Moti Tikaram under his new title "President".

In his ruling delivered on the 8th of February the President held that he not only had no jurisdiction to hear the application let alone grant leave to apply for Judicial Review.

He then dealt with the alternative application, that is whether he should grant leave to appeal from my ruling. He refused leave to appeal on the ground that the Applicants had failed to comply with Rule 26(3) of the Court of Appeal Rules. Sub Rule (3) says:

"Wherever under these Rules an application may be made either to the Court below or to the Court of Appeal it shall be made in the first instance to the Court below."

For the Applicants it is said that it is a cardinal error for the Court to refuse leave to appeal for the simple reason that the Court itself had earlier pronounced that the Applicants' case did not have merits.

This submission itself has no merits because a study of my ruling of 31st of March 1993 will show that I carefully refrained from discussing the merits of the application for the obvious reason that it would be wrong for me to do so on an interlocutory application. I was then referred to my ruling on the application for leave to appeal in Civil Appeal No. 13 of 1991, Madison Pharmacy Limited v. Kwong Tiy Company Limited delivered on 15th February 1991.

The facts in that case however were different from those in the instant case and I granted the Appellant, Madison Pharmacy Limited leave to appeal because I considered the matters raised by the proposed appeal of some professional interest. These were whether the Respondent's action was an abuse of process and whether I had erred in law in making an order for consolidation when there was no such application before the Court.

In this case one of the orders sought by the Applicants was an order of prohibition prohibiting the Board from proceeding any further with the hearing of Yatu Lau's application for amendment of its licence.

In refusing leave the Applicants submit that the effect of my ruling was to lock out the Applicants from further pursuing their application for Judicial Review and that in a way my decision could be called a final decision in that it finally disposed of the Judicial Review proceeding.

Even if this submission be correct it still fails to mention that the reason why I refused leave was because, following several decisions by this Court and the Court of Appeal, I held that the Courts should not interfere unnecessarily in the administrative functions of the Board. I saw nothing in the material in this case to persuade me that it was in any way sufficiently distinguishable from previous decisions to warrant my giving the Applicants leave.

It appears from the Applicants' submission that the question which the President considered was of professional interest was about prohibition and whether this should issue against the Board.

I cannot accept this submission. It is clear reading the judgment of the President that the area of practice of grave interest to him was whether a single judge or the full bench of the Court of Appeal could give leave to apply for Judicial Review. He discusses this at pages 2-5 of his ruling. No where in his ruling does the President mention the appropriateness or otherwise of whether prohibition should issue against the Board. The Applicants could have made their application for leave to appeal much earlier by simply following the procedure described in Rule 26(3) of the Court of Appeal Rules; they chose not to.

In my ruling of the 31st of March 1993 I referred to the guidelines of the Board in deciding whether or not to issue new licences or extend existing licences and mentioned the Board's desire in this case to obtain a report on the passenger loadings of the First-named Applicant and Yatu Lau's trip on the route in question.

Such a procedure is provided for in Guideline 1 of the Board's Guidelines and it seems to me to be sensible and a matter with which this Court should not intervene on the evidence presently before me.

I still fail to appreciate what damage the Applicants could have suffered by allowing the Board to obtain the reports it wanted. As I said on page 5 of my ruling if, having considered those reports and having circulated them to the parties for their comments the Board found against the Applicants it may have been open to them to seek Judicial Review of the Board's decision. By adopting the procedure they have followed they denied themselves this possible opportunity. In my view therefore if the Applicants have suffered any disadvantage it is of their own making. In my judgment therefore the application for leave to appeal must be refused with costs against the Applicants.

JOHN E. BYRNE
J U D G E

Authorities mentioned in judgment:

(1)	Court of Appeal Rule 26(3).
(2)	Civil Appeal No. 13 of 1991, Madison Pharmacy Limited v. Kwong Tiy Company Limited.
(3)	Ruling of 15th February 1991.

Additional authorities mentioned in argument:

(1)	Buckle v. Holmes (1926) 2 K.B. 125.
(2)	Ex-parte Gilchrist, re Armstrong (1886) 17 Q.B.D. 521.
(3)	Lane v. Esdaile (1891) A.C. 210.
(4)	White v. Brunton (1984) Q.B. 570.
HBJ0041D.91S