| Fiji Islands - The State v Transport Control Board, Ex parte Maharaj Buses Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW
ACTION NO. HBJ0014 OF 1998
STATEE
v.
TRANSPORT CONTROL BOARD AND
SHANKAR SINGH TRANSPORT LIMITED
Respondent and Interested Party
EX-PARTE:
MAHARAJ BUSES LIMITED
Applicant
H.gin for the Applicpplicant
I. Tuberi for the Respondent
N. Shivam for the Interested Party - Shankar Singh Transport Limited
Dates of Hearing and Submissions: 29th June, 23rd, Date of Judgment: 22nd October 1999
JUDGMENT
In the Seventh Edition of their now classic text book on Administrative Law at page 347 Sir William Wade and Christopher Forsyth refer
to:
"The sovereign principle that powers must be exercised reasonably and in good faith and on proper grounds - in other words, that
they must not be abused. This is one of the twin pillars that uphold the structure of administrative law. The other is natural justice."
The authors then go on to say that:
"The law can thus control, to a limited but important extent, both the substance of discretionary decisions and the procedure
under which they are made."
This application for Judicial Review of a decision of the Transport Control Board of the 2nd of June 1998 raises once more the question
of when the Courts will intervene to control the exercise of discretionary power by an administrative tribunal.
The matter arises in the following way:
The Applicant is a limited liability Company which operates bus services under Road Service Licence 12/10/101 on six routes.
On or about the 3rd of April 1998 the Applicant applied for amendment to its existing Road Service Licence seeking additional trips
departing Suva daily for Navua Town at 11.30 a.m. This application was within the Applicant's own time as the Applicant had an existing
trip departing Suva for Navua Town at 12 mid-day.
The Applicant alleges in affidavits which have been filed by it in support of its application for Judicial Review that some time after
the Applicant made its application to the Respondent the Interested Party also applied for amendment of its Road Service Licence
12/10/102 which included also a trip departing from Suva at 11.30 a.m. for Navua. The Applicant alleges that this would be in direct
conflict with its application that was pending before the Respondent. The Applicant also deposes that the Interested Party applied
to depart via Veivatuloa at 5.45 a.m. and arrive at Suva Bus Stand at 6.45 a.m. The Applicant said that it already had a 5.55 a.m.
trip departing Mau (near Navua) for Suva which arrived at Suva at 6.55 a.m. while the Interested Party's proposed amendment service
would arrive at 6.45 a.m. just ten minutes ahead of the Applicant.
The Applicant claims that the Respondent should have summarily rejected the Interested Party's application under Section 65 of the
Traffic Act Cap. 176 on the ground that it was frivolous and vexatious because the Interested Party had sought to operate in the
Applicant's time slots and the Applicant's application was pending.
The Applicant claims that the Respondent was wrong in not rejecting the application by the Interested Party also because the road
to Veivatuloa has not been properly constructed and is unsuitable for buses yet the Respondent granted the service to the Interested
Party under Section 74 of the Traffic Act without giving the Applicant a right to be heard and without considering the Applicant's
application lodged on 7th April 1998.
Section 65 of the Traffic Act authorises the Transport Control Board to give notice in a newspaper published and circulating in Fiji
of the details of an application for a Road Service Licence except where the Board considers the application is frivolous, scandalous
or vexatious. The section also allows the Board to refuse to grant an application for a Road Service Licence or for an amendment
thereof if it is of the opinion that the needs of the area of the proposed service are already adequately served or because the route
proposed is unsuitable for the regular passage of a public service vehicle or for other good cause.
Under Section 74 where the Board considers that the public interest necessitates the immediate establishment of a new service or the
immediate amendment of an existing Road Service Licence, the Board may issue a new Road Service Licence for such service or may amend
such existing Road Service Licence without complying with the provisions of Section 65.
The Applicant argues that the decision of the Respondent in favour of the Interested Party was in breach of the Applicant's legitimate
expectations and was also:
(i) contrary to the provisions of the Traffic Act;
(ii) ultra vires;
(iii) unreasonable; and
(iv) contrary to the rules of natural justice.
The Applicant claims that it is now suffering irreparable damage as Shankar Singh Transport Limited is taking away all the Applicant's
passengers. It alleges that it will be put out of business if Shankar Singh Transport Limited is allowed to operate the trips complained
of.
When the matter first came before me ex-parte on 29th June 1998 I issued an injunction restraining the Interested Party until further
order from operating the bus service approved by the Respondent except for school trips and later, having received affidavits opposing
the application for leave to apply for Judicial Review, on the 23rd of November 1998 I granted leave and made orders as to the delivery
of submissions and an affidavit from the Transport Control Board.
The Interested Party disputes the Applicant's claims. It says by way of affidavit that the application made by Shankar Singh Transport
Limited for amendment of its Road Service Licence was not made subsequently to the application by the Applicant but was made two
months prior to that application on the 27th of January 1998. This is confirmed by a copy of the Interested Party's application for
major amendment of its Road Service Licence dated the 27th of January 1998. The Interested Party says that it made its application
in the public interest and after it received requests from residents of Veivatuloa Village.
Two letters dated the 15th of September and 1st of December 1997 are exhibited to the affidavit of the Interested Party opposing the
application. These purport to be from Ratu Suliano Matanitobua the Turaga-na-Vunivalu/Tui Namosi and the Namosi Provincial Council
respectively.
The first letter claims that it has been sixteen years since the road was upgraded to the village from the main highway and that since
then only taxis and carriers have been used to transport people to and from the village.
The letter also claims that the population of the village is increasing and that it urgently needs the bus service to transport people
working in Suva and school children to Navua. It also expresses the need for a mid-day bus from Suva.
The second letter addressed to the Interested Party with copies to the Permanent Secretary of the Fijian Affairs Board and the Turaga-na-Vunivalu/Tui
Namosi is in similar vein. It says although the road to the village has been declared a public road villagers and visitors to the
village have been forced to hire taxis or trucks.
The village has a population of 234 and it requests the provision of a bus service.
The Interested Party denies the Applicant's allegation that the road to Veivatuloa is not constructed properly and says that it was
approved by the Transport Control Board after numerous visits and inspections. It denies that the Applicant had any legitimate expectation
that it would be granted the licence because:
(a) the Interested Party made its application before that of the Applicant;
(b) the application for amendment to the Interested Party's licence was made in the public interest and on request;
(c) the Interested Party is also a bus company operating from Suva to Navua and is in the same position as the Applicant in that it
was entitled to apply for any amendment to its licence.
It denies the Applicant's allegation about being prejudiced by the Interested Party's 5.45 a.m. service because it says it operates
this service from Veivatuloa Village and thus does not affect the Applicant whose service departs from Mau Village.
In response to the claims by the Interested Party the Applicant says that letters such as those tendered by the Interested Party are
very easy to get and are orchestrated by the operator himself. This may be, but no application was made to the Court to cross-examine
Shiu Maharaj, the Managing Director of the Applicant on his affidavits and I am therefore prepared to regard them as evidence which
I must consider.
The Respondent has filed an Affidavit in Reply to those of the Applicant in which among other things it is stated that the Divisional
Engineer (Central/Eastern) confirmed to the satisfaction of the Board that Veivatuloa road was able to accommodate a bus service,
contrary to the allegation by the Applicant.
The affidavit also claims that the Applicant has failed to prove that it has suffered irreparable damage as a result of granting the
licence to the Interested Party. It also states that the Applicant failed to inform this Court that the licence given to the Interested
Party was subject to conditions namely that the Interested Party was not allowed to pick up or drop any passengers between Naboro
and the Suva Bus Station. Thus it is claimed the Interested Party would not in any way affect the passenger loading of the Applicant.
I turn now to the submissions by the parties. The Applicant first refers me to the judgment of Kapi J.A. speaking for the Court of
Appeal in Sunbeam Transport Limited v. Transport Control Board and Others Civil Appeal No. 24 of 1991 in which the Judge considered at some length the application of Section 74 of the Traffic Act. He says
for example:
"This power is clearly intended for an immediate need necessitated by the interest of the public and requires quick action without
being held up in procedures required by s.65 of the Act."
He also says further:
"How does this work out in practical terms? Where the Board decides to act under s.74, it should communicate with such operators
which may have the capacity to provide for the immediate need in question. It cannot simply act in a vacuum and expect any operator
to provide the services. For instance it could not simply amend an existing licence to increase the number of vehicles in any route
if the operator does not have such vehicles. The same consideration may be given to the grant of a new licence. This is common sense
and the Board should bear this in mind in the exercise of its powers. However, one thing is clear, the Board may act on its own motion
to put into effect the powers given under s.74 of the Act."
Neither the Respondent nor the Interested Party dispute these statements. But they say that in this case the Respondent did not act
in a vacuum and there is no evidence to suggest that the Respondent exercised its discretion wrongly. The Applicant also quotes part
of the judgment of Mr. Justice Rooney in R. v. Transport Control Board, ex-parte Sunbeam Transport Limited & Ors. - Supreme Court Action No. 840 of 1983 who granted an interlocutory injunction in a Section 74 case. At page 7 of his judgment he
said:
"While it is true that it is for the Board and not for this Court to determine what the public interest is, this Court must be
satisfied that the Board did in fact consider that interest."
This statement was confirmed by the Court of Appeal in K.R. Latchan Brothers Ltd & Anor v. Sunbeam Transport Limited & Ors Civil Appeal Nos. 45, 51, 57 and 61 of 1983. The Court there said:
"Section 74 empowers the Board to grant temporary licences when "it considers the public interest necessitates the immediate
establishment of a new service"."
Again the Respondent and the Interested Party do not dispute what Rooney J. and the Court of Appeal have said but they say again that
in granting the licence to the Interested Party there is no evidence that the Board did not consider the public interest.
As to the Applicant's claim that the Respondent denied the Applicant's legitimate expectation, I first refer to the remark of Lord
Templeman in Lloyd v. McMahon [1987] UKHL 5; (1987) 1 ALL E.R. 1118 at 1170 who warned against extravagant use of the concept of legitimate expectation. He said that a catch-phrase should not be elevated
into a principle and went on:
"The true principle is that the auditor, like any other decision-maker, must act fairly."
The decision in Lloyd v. McMahon was given by the House of Lords on the 12th of March 1987. Earlier in R. v. Secretary for the Home Department, ex parte Ruddock and Others Taylor J., as he then was, in a judgment given on the 2nd of September 1986 reported in (1987) 2 ALL E.R. 518 said at page 531:
".... I conclude that the doctrine of legitimate expectation in essence imposes a duty to act fairly. Whilst most the cases are
concerned, as Lord Roskill said, with a right to be heard, I do not think the doctrine is so confined. Indeed, in a case where ex
hypothesi there is no right to be heard, it may be thought it more important to fair dealing that a promise or undertaking given
by a minister as to how he will proceed should be kept. Of course such promise or undertaking must not conflict with his statutory
duty or his duty, as here, in the exercise of a prerogative power. I accept the submission of counsel for the Secretary of State
that the respondent cannot fetter his discretion. By declaring a policy he does not preclude any possible need to change it. But
then if the practice has been to publish the current policy, it would be incumbent on him in dealing fairly to publish the new policy,
unless again that would conflict with his duties."
In Re Findlay and Others (1985) 1 AC 318 the House of Lords held that the Home Office was entitled to change its policy to the detriment of prisoners who had relied on a
previous published policy. The House held that a convicted prisoner could legitimately expect no more than that his case would be
examined individually in the light of any policy which Home Secretary might lawfully adopt pursuant to the exercise of his unfettered
statutory discretion.
In R. v. The Secretary for State for Health, ex parte United States Tobacco International Inc. (1992) 1 Q.B. 353, the Divisional Court consisting of Taylor LJ and Morland J. confirmed the normal rule that the government was entitled to make new
regulations banning oral snuff in the United Kingdom even though it had previously engaged the Applicants to act as the sole manufacturer
of oral snuff in the United Kingdom. The Court held that e Applicants' legitimate expectation entitled them to a hearing to challenge
the medical evidence against "snuff dipping" which had prompted the new regulations.
Apart from that the Court held that the government was entitled to change its policy provided it acted rationally and fairly.
Applying these cases to the instant case I am not satisfied that the Respondent abused its discretion in granting the Interested Party
its licence. There was evidence which it could accept that there was a need for the Interested Party's services and that applying
the criteria for the granting of Road Service Licences set out in Section 66 of the Act, the Respondent was entitled to hold that
the Interested Party's proposed service was desirable in the public interest. It was also entitled to hold that the Applicant would
not suffer any detriment because of the condition which the Board attached to the Interested Party's licence not to pick up or drop
passengers between Naboro and Suva Bus Station. It may also be noted that the Applicant has never applied to provide a service for
the residents of Veivatuloa Village which the Interested Party did.
For the foregoing reasons I am not satisfied that the Respondent misdirected itself in any way in granting the Interested Party its
licence and that this is not a case in which the Court should interfere with the discretion granted to the Respondent by the Traffic
Act in its granting of Road Service Licences. I am satisfied that the injunction should be dissolved on the ground of material non-disclosure
by the Applicant namely by failing to inform the Court that the application by the Interested Party was made two months prior to
that of the Applicant. I am satisfied the Applicant knew this and as such had a duty to disclose it to the Court.
The order of the Court is that the application for Judicial Review is refused. The Applicant must pay the costs of the Respondent
and the Interested Party to be taxed if not agreed.
JOHN E. BYRNE
JUDGE
Cases referred to in Judgment:
Administrative Law by Sir William Wade and Christopher Forsyth, Seventh Edition.
K.R. Latchan Brothers Ltd & Anor v. Sunbeam Transport Limited & Ors - Civil Appeal Nos. 45, 51, 57 and 61 of 1983.
Lloyd v. McMahon [1987] UKHL 5; (1987) 1 ALL E.R. 1118 at 1170.
R. v. Secretary for the Home Department, ex-parte Ruddock and Others (1987) 2 ALL E.R. 518 at 531.
R. v. The Secretary for State for Health, ex-parte United States Tobacco International Inc. (1992) 1 Q.B. 353.
R. v. Transport Control Board, ex-parte Sunbeam Transport Limited & Ors. - Supreme Court Action No. 840 of 1983.
Re Findlay and Others (1985) 1 AC 318.
Sunbeam Transport Limited v. Transport Control Board and Others Civil Appeal No. 24 of 1991.
Hbj0014j.98s
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