IN THE MATTER of an Application for leave to apply for Judicial Review by WAIQELE BUSES LIMITED
AND IN THE MATTER of the Decision of the Transport Control Board (the Respondent) made on the 2nd day of April 1997 whereby it granted Road Service
Licence No. 12/23/1 to LATCHMAN BUSES LIMITED (the interested Party)
WAIQELE BUSES LIMITED
Applicant
AND:
TRANSPORT CONTROL BOARD
Respondent
AND:
LATCHMAN BUSES LIMITED
Interested Party
Mr. H. Nagin pplicant
Mr. I.V. Tuberi for Respondent
Mr. G. P. Lala for Interested Party span>
DECISION
There are two applications before me. One is for Leave to Apply for Judicial Review under Or 53 r 3(2) of the High Court Rules. The
other is a motion for Stay and an Interlocutory Injunction. Both the applications were filed on 7 April 1997.
At the request of counsel the hearing inter partes was adjourned from time to time when the Respondent and Interested Party were ordered
to file Affidavits in Reply to the Applicant's affidavit.
The parties made written submissions to which I have given due consideration.
The facts very briefly are that on 2 April 1997 the Respondent granted Road Service Licence No. 12/23/1 (hereafter referred to as
the "RSL") to LATCHMAN BUSES LIMITED (the Interested Party) (the "I.P.") This RSL allows the I.P. to run an express service between Savusavu and Labasa. The Applicant holds a RSL for the normal services
between Labasa and Savusavu. The grounds upon which the Applicant is seeking relief against the Respondent are set out on pages 2
- 4 of the Application for Leave.
The Respondent objects to leave being granted on the ground that the Applicant does not have sufficient interest in the matter as
required under Or 53 r 3(1) which provides:
"The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the
application relates."
The learned counsel for the Respondent urges the Court to consider whether the Respondent has in any way breached or failed to perform
its statutory duties. In concluding his submissions Mr. Tuberi said:
"the Respondent has not breached any of its discretion under the Act. On the authority of R v INLAND REVENUE COMMISSIONERS, Ex parte NATIONAL FEDERATION OF SELF-EMPLOYED and SMALL BUSINESS LIMITED [1981] UKHL 2; (1981) 2 W.L.R 722 the Applicant does not have sufficient interest in this matter because per Lord Diplock, the Applicant "had completely failed
to show any conduct of the" Respondent "that was ultra vires or unlawful" and, per Lord Scarman, the Applicant "having
failed to show any grounds for believing that the" Respondent "have failed to do its statutory duty had not shown an interest
sufficient in law to justify any further proceedings by the court on its application."
The Interested Party also objects to leave being granted and to the grant of a stay and an injunction. On injunction the learned counsel
for the I.P. states as follows:
"It is very difficult to strike the "balance of convenience" when a decision to grant an interlocutory injunction will
in reality give the applicant all he seeks; this is so in a case where, if a temporary order is made, the main issue will no longer
be alive when the notional time for trial arrives. The interlocutory application then becomes the trial of the action although it
involves only a superficial consideration of the evidence then available and does not purport to be a decision on the merits see
Lawlor v Union of Post Office Workers [1965] Ch 712; W Sofronoff "Interlocutory Injunctions Having Final Effect" 61 ALJ 341. A "temporary" order in these circumstances bears hard upon a party who would be entitled to judgment if the action were
tried forthwith. Paradoxically a procedure designed to preserve the subject matter pending trial then has the opposite effect. Once
a temporary order is made the applicant's purpose is achieved and however dubious the case the contest is no longer worth pursuing."
I consider that the leave application has to be considered first for the reason as stated hereunder in REGINA v SECRETARY OF STATE FOR TRANSPORT (Ex parte) FACTORTAME LTD & OTHERS No. 2 (1990) 1 WLR 818, that:
"in applications for Leave, other interim steps cannot be taken until such time as Leave has been granted. The rationale behind
this of course is that until leave has been given to commence an action, the action as such is a non-entity and consequently no other
interim or interlocutory proceedings within that action can take place until the action has some substance."
In any case Or 53 r 3(8)(a) provides that where "leave to apply for judicial review is granted" and "the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates ..." However, since the motion for stay has been filed simultaneously the court will consider it at the appropriate stage and that would
be after the grant or refusal of leave. But in any urgent case the court could grant interim relief and in this regard SUPERSTONE and GOUDIE in the book JUDICIAL REVIEW (1992) under the caption "Interlocutory Injunction and Stays" at p.363 states:
"The White Book suggests that a judge could grant interim relief before granting leave in an especially urgent case (sed quaere).
(The approach of Donaldson MR to pending proceedings in R v SECRETARY OF STATE FOR THE HOME DEPARTMENT, ex p. TURKOGLU (1988) QB.398 at P.401D might be relevant to this issue)"
On the affidavit evidence before me I find that there are points fit to further investigate on an inter partes basis. There is also
an arguable case (R v SECRETARY OF STATE FOR THE HOME DEPARTMENT ex p. RUKSHANDA BEGUM (1990) COD 107), ANTAIOS CIA NAVIERA SA v SAKEB REDERIERNA AB, THE ANTAIOS (1985) AC 191).
In view of what I have said above on the papers filed herein and after considering the submissions, I grant leave for judicial review
to the Applicant.
As for stay, it was quite in order for the Applicant to apply as it did and there is support for this proposition in the judgment
of DONALDSON MR in TURKOGLU (supra) at p.401 where he said:
"In my judgment you cannot apply to the High Court for bail unless the High Court is seised of some sort of proceeding. It may be seised of an application for leave to apply for judicial review or it may be seised of the substantive application. So long as it is seised of either of those applications, you can apply to the
High Court and the court can grant or refuse bail. If leave to apply is granted, then that application immediately becomes merged
in the substantive application. So there is a continuous underlying proceeding of which the High Court is seised and no problem arises.
If the application for leave to apply is adjourned, the High Court is still seised of the application." (underlining mine for emphasis).
I would also refer to thlowollowing passage from SUPERSTONE (supra) (ibid).
"quot;18.3.1.1 Interim relief As soon as an injunction is granted, it has the immediate effect of protecting a person's rights.
Interim (interlocutory) injunctions in particular may be granted ex parte (by virtue of the plaintiff's application in the absence
of the other party) and it will be obvious that interim relief of this kind is particularly appropriate in certain circumstances.
If, for example, a decision has been taken that will result in a person being deported, a TV programme being broadcast, or a building
being demolished. In any of these situations, the applicant is seeking to argue that by going ahead not only will the body concerned
be acting ultra vires, but that once the action has been taken it will be too late to prevent irrevocable damage from being done.
Having regard to these circumstances, the interim injunction serves to prevent the execution of the decision until a hearing has
taken place. This raises the question as to whether the courts should have the power to order such relief before leave for judicial review has
been granted and, crucially, before the other side has had any chance to present evidence. It should be noted, however, that because of the danger
of abuse by vexatious applicants, interim relief will be granted only sparingly by the courts, depending on the 'balance of convenience' as explained by Lord Diplock in his judgment in American Cyanamid Co. v
Ethicon [1975] UKHL 1; [1975] AC 396." (underlining mine for emphasis).
After considering the arguments put forward by counsel and on the affidavits I am not satisfied in the exercise of my discretion to
make an Order for a stay or an injunction.
In arriving at this decision I have considered the factors which ought to be taken into account in an application of this nature such
as the nature of the case, prejudice to the parties and balance of convenience (Sir Moti Tikaram J.A. (now President F.C.A.) in REDDY'S ENTERPRISES LIMITED and the GOVERNOR OF THE RESERVE BANK OF FIJI Civ. App. No. 67 of 1990).
The basis of the Court's approach to the grant of stay is the need for the applicant to show a strong prima facie case. This in my
view the applicant has not done. Looking at the nature of the case, it is a case where the applicant is an existing operator and
has other routes and the Interested Party is a new operator altogether. The latter will suffer greater prejudice than the former
if stay was granted. The balance of convenience I find favours the refusal of stay on the facts and circumstances of this case.
I therefore consider that this is not a proper case in which a stay of the decision of the Respondent is warranted. The application
of the balance of convenience principle dictates that the Court ought not to interfere with the decision but that the judicial review
proceedings determine the decision which is being challenged.
In the outcome, leave to apply for judicial review is granted but the application for a stay and an injunction is refused. The costs
are to be costs in the cause.
D. Pathik
Judge
At Suva
5 September 1997
Hbj0007d.96s
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