This is an application by Noco Development Co Ltd., to judicially review a decision of the Transport Control Board on 9th Jul> July 1999 dismissing the Company’s application for a renewal of its road service licence. The applon also seeks to r to review
a decision of the Road Transport Board of the 31st of August 1999, dismissing the Applicant’s application for a new road service licence.
The application seeks an order of certiorari to quash the decisions on thunds that the Board acted unreasonably, arbitrarily and in
d in breach of the Applicant’s legitimate expectations.
The application is supported by the affidavit of Bruce Geoffrey Sutton sworn on 8th
Leave was granted by consent on 18th January 2000. The Respondent fin affidavfidavit in reply dated 28th January 2000. Trther affidavit filed by d by the Respondent, of Iniasi Vodo Tuberi, sworn on 28th February 2000, annexed the ret minof the Transport port Control Board, relating to the Applicant’s application for renewal, aal,
and issue of a road service licence.
The final affidavit of Bruce Geoffrey Sutton which was sworn on 16th
The matter was heard on 2nd May 2000. The facts of this cs discldisclosed by the affidavits, and which are not in dispute, are as follows. The Applicant is
a company which ran bus services for the Noco region. On 19 August 1999 1999 a receiver was appointed to the Company by the Fiji Development Bank.
On 2nd June 1997, the Respondent, withApplicant’s consent, allowed Latchan’s Express Services Ltd., to operate the Road Service Lice Licence
on behalf of the Applicant, although the licence remained in the Applicant’s name. The tmpanies were intendinending to enter into
a joint venture agreement to service the Noco bus route.
n> The Applicant had a loan agreement with the Fevelopment Bank, and the Company informed the Bank in November 1998, that it intended
to ento enter into a joint venture with Latchan’s.
On 28th June 1999 the Applicant’s road service licence was dr renewal, and the Applicant made an application accordingly.
On 14th June 1999, in a meeting between the Respondent and the Fiji Development Bank, the Bank was told that the application would be considered
at the Board’s meeting on 28th July 1999.
On 7th July 1999, the Respondent summarily dismissed the Applicant’s application for a renewal of the licence. An application foew road
soad service licence was made on 20th August 1999.
p class=MsoNormal stal style="margin-top: 1; margin-boin-bottom: 1"> On 19th October 1999 the Respondent informed the Applicant’s solicitors that the application for a new licence had been summarily dismissed
on 31st August 1999. Reasons were requeand give given in a letter dated 23rd November 1999.
That letter (annexed as Gyaneshwar Naidu’s affidavit) stated inter alia as follospan>
“We understand that you represr Bruce Sutton (Receiver/Manager) of Noco Development CompaCompany Ltd., and in your letter on the above
subject, dated 18th November 1999, you requested for reasons as to why
(1) Noco Development Co. Ltd’s application to renew its RSL No. 12/3/145 was refused, and
(2) Noco Development Comptd. (Receiver and Manager) application for new road servicervice licence was refused.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-right: 72.0pt; margin-top: 1; margin-bottom: 1"> Noco Development Company Ltd.’s application for the renewal of itd service licence was receireceived prior to the appointment of the
receiver/manager. The Compailed to satisfy tsfy the criteria under section 66 of the Traffic Act, in particular section 66(2(d)(e).
At the time of the appion,tion, none of the compabuses was in roadworthy condition. Tmpany’s unwi unwillingnesngness to continue
with the bus business could not be ignored, bas the Board’s duty towards the public interest.
Secondly, the company’s application for new road service licence was received after the Receiver/Manager was appointed. A company
underivership, aip, applying for a road service licence opposes the basic criteria under the Act. Thlication for a new road road
service licence by your client was therefore summarily refused on the ground that it was frivolous,dalous or vexatious, pursuant
to section 65 of the Traffic Act.”
On 30th June 1999, the Secretary to the Noco Tikina Council informed the Board that “they” were financially unable to mainthe 4 buses which
had been teen taken off the road by the Road Transport Department. The Secretaggested that Laat Latchan Brothers be allowed to operate
the route.
 an>
The Board decided not to make any decision on the issue until there was a report from the Road Transport Department.
On 9th July 1999, a flying minute was sent to all members of the Board on the issue. Tinute informed the Boaat oaat a letter had been receiveceived
from the Noco Tikina Council saying that all 4 buses were unserviceable, that the signature on theication was that of a Director
of Latchan’s Express, and nond not of Noco Development, and that Latchan’s had applied to service the route. The minute recommenhat
thet the Board:
“Summarily refuse the application for renewal by Noco Development Co., as advised by SLO since their buses are not serviceable and
based on the letter written on 22/6/99 and the representation made by their representative at the meeting on 30/6/99 that they do
not wish to continue.”
The letter referred to in this minute (at Annexure H to the affidavit of Gyaneshwar Naidu is written by Ratu Isoa Damudamu, who wrote
as “chairman” of the Noco Tikina Council and Noco Development Company Ltd.
In fact the 2nd affidavit of Bruce Sutton states that the Noco Tikina Council holds 12.6% shares, the Directors being Nafitalai Cakacaka, Dhresh
Latchan and Rohit Latchan. The l written by Ratu Isoa Isoa Damudamu can therefore only be seen as a letter written on behalf of
some of the shareholders of the company, and perhaps on behalf of the travelling public of Noco.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> As to the application for renewal, the Board minutes of 31st August 1999 are relevant. At AnneJ of ffidavit of Gyof GyaneGyaneshwar Naidu, the minutes of that (private) meeting, read as follows:
“It was known that Noco Development Company could not renew their Service Licence as all its its buses were unfit for service. Tses
listed on the applicaplication belong to Tebara Transport and an application on borrowed buses would not be entertained.
The application does not comply with section 66 of the Traffic Act and under section 63(1) is considered frivolous, vexatious and
scandalous.
Noco Development Company is now insolvent and therefore cannot comply with section 65 of the Traffic Act which requires special attention.
On appointment a receiver can only continue to manage the company’s business as it was on the date of this appointment. On the date
that the rer wver was appointed Noco Development Company was no longer doing business in bus transport. Tceiver is therefore actinacting
outside his power in applying for the Road Service Licence and in any case could not satisfy theeria under section 66 which inter
alia are financial stability, applicant’s reliability andy and that it has the facilities at its disposal for use under the Road
Service Licence.
RESOLUTION: The application was refused.”
These are the facts of this case.
Delay
At the hearing of this application, counsel for the Respondent raised the issue lay, as prohibiting the grant of certiorari.
Order 53 Rule 4(1) of the High Court Rules provides:
“Subject toprovisions of this rule, where in any case the Court considers that there has been undue deue delay in making an application
for judicial review or, in a case to which paragraph (2) applies, the application for leave under rule 3 is made after the relevant
period has expired, the Court may refuse to grant -
(a) leave for the making of the application, or
(b) any relief sought on the application,
if, in the opinion of the court, the grantinthe relief sought would be likely to cause substantial hard hardship to, or substantially
prejudice the rights of, any person, or would be detrimental to good administration.
(2) In the case of an application for an order of certiorari to remove any .... proceeding for the purpose of quashing it, the relevant
period for the purpose of paragraph (1) is three months after the date of the proceeding.”
It is clear from the wording of this rule that the question of delay can be consi at both leave stage, and substantive application
stage.&nbe. Hr, as the Court of Appealppeal said in Harikisun Limited -v- Dip Singh and Others Civil Appeal No. ABU0019 of 1995S, the questions of substantial hardship, prejudice to righd detriment to good adminisministration
are only relevant at the substantive hearing.
In this case the decisions to refuse the licences were made on 9th July and 31st August 1999. This catio judicial revieweview view was filed on 9th December 1999, five months after the decision not to renew, and four montter the decision not to grant a new licence.
I note however that reasons were not given until 23rd November 1999.
The question is whether the delay was undue, and whether it caused substantial hardship or prejudice to other persons, or is detrimental
to good administration.
“Undue” means, according to the Court of Appeal in Harikisun Ltd. -v- ingh & Others (supra) at page 8, “excessive, exe, extreme, unjustifiable or going beyond what is appropriate.”
In the circumstances I do not think, that a delay of five months is excessive, extremunjustifiable. Nor do I considet the dela delay
has chas caused hardship to the Respondent or any other person. Although the Rdent has nows now awarded a licence to Latchan’s Express,
the evidence is that that company used its existing facilities to servhe route and did not need to acquire further assets. Nor do
I cer there to be a be anbe any adverse effect, by the delay of five months, on the good administration of the Respondent Board.
In the circumstances, therefore I consider the delay to be justifiable in the circumstances; and I am satisfied that there is no hardship
to any party or to good administration in allowing the application to be heard.
The Renewal of RSL 12/7/145
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> The evidence is that at a meeting on 14th> June 1999 a meeting was held between the Bank and the Secretary of the Transport Board, Mrd, Mr Gyaneshwar Naidu, at which the
Bank was told that the application would be tabled for a public hearing on 28th July 1999.
Mr Naidu, in his affidavit does not deny this, but says (at paragraph 7) that the matter would have been of the 28th July July meeting, except that the issue was raised in a public meeting on 30th June 1999 which pre-empted, and decided the issue.
The Applicant says that this raised a legit expectation that there would be a proper hearing on 28th July 2000, at which thch the Applicant would be heard.
The minutes of the meeting of 30th June 1999, do not indicate why the Secy to the Noco Tikina Council was allowed to speak about thet the application.
In Pacific Transport Company Ltd. -v- Mohammed Jalil Khan and Transport Control Board Civil Appeal No. ABU0021 of 19the Court of Appeal describscribed the principle of legitimate expectation as follows:
“Essentially it is that a person may in certain circumstances, have a legit expectation as to proceprocedures to be followed by an administrative decision-maker prior to a decision being made. Thectation relates to a pr a privilege advantage
or benefit to which there is no legal right. It s where -
(a) an express representation tion has been made to the person concerned, or to a group of people of whi or she is a member, that
a certain procedure will be follofollowed before a decision is made (Attorney-General of Hong-Kong -v- Ng Yuen Shiu (1983) 2 AC 629 PC, Attorney-General of New South Wales -v- Quin (1990) 170 CLR 1; or
ass=MsoNormaNormal style="margin: 1 72.0pt">(b) there is a longstanding practice of following a certain procedure before a decision is made ouncil of Civil Service Unions -v-
Minister for the Civil Svil Service (1985) AC 374).
The privilege, advantage or benefit may be substantive in naor only procedural. Hsp; Howeve Mason C.J. str. stressed in Quin (supra) at p.21, when applying the concept of legitimate expectation, a Court must “avoid confusion between the content of the expectation
and the right to procedural fairness”.”
In this case, the Applicant claims that the expectation arose in the form of (a)e. It was an expectation that the application would
buld be considered at a public hearing.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I find on the evidence that such a legitimate expectation did arise, and that as a result, the Board failed to condhe exercise of
considering ring the application in a procedurally fair manner.
Procedural Fairness
Even if I had not decided that a legitimate expion had arisen, I would have found that the refusal of the application summarily, was
proceprocedurally unfair.
The Board says that the application was refused because the buses were unroadworthy. Howevt appfrom the flying ying minute (Annexure
F to Mr Naidu’s du’s affidavit) that reliance was also given to a letter by Noco Tikina Co that it did not wish to continue with
the operations of the Noco bus service.
The Council does not appear to have had any authority to speak on behalf of the Applicant. e letter was written oalf oalf of the
public at Noco, oco, then the Applicant had no opportunity to rebut the suggestions that the services provided were unsatiory.
Furthermore, the finding made by “SLO” (Senior LOfficer) that the application was invalid, because it was signed by one Dhresh Latchan,
sho, should have been put to the Applicant. The affidavit of Bruce Sutton shows that Dhresh Latchan is a Director of the Applicant
Company and clearly had powers to make the application.
The Applicant claims that the 4 buses servicing the route had been deliberately made unroadworthy by Latchan’s Express, so that the
Applicant’s application was unsuccessful, and so that Latchan’s would get the licence. Of course, Latchan’sin facn fact get the
licence.
This is clearly a matter which should been put before the Board in a proper public hearing. It appeart the decision ofon ofon of
the Board was made on the basis of information which was partially incorrect, and which ought to have been put to the Applicant to
allow it to be aired properly.
Section 66(2) of the Road Transport Acvides as follows:
“In exercising its discretion to grant or refuse a road service licence in respect of any route and its discretion to attach any conditions
to any such licence, the Board shall have regard to the following matters:
(a)&nbssp; the extent tohwhic ptheoseoposed service is necessary or y or desirable in the public interest;
(b) &nbbsp;& &nsp; exsp;extent to which the oeds of the area through which the proe proposed route will pass are already met;
N-GB> 
(c) the desirability ofneagie the provision of adeq adequate and efficient services and eliminating unnecessary and unremunerative
services;
&-GB> nbsp;
(d) the applicant’s reliab, financial stability and tand the facilities at his disposal for carrying out the proposed services;
nbsp;
>
(e) &nbbsp;&&nsp;; tsp; the nume number, type and design of vehicles which the applicant proposes to use under the licence;
&
span><
(f) &nnbsp; &nsp; and evi ancerepd sentationation received by it at any public sitting held in accordance with the provisions of
section 65 and any representations otherwise made by local authorities, public bodi any ns cag on transpoansport sert servicervices
of any kind likely to be affected.”
Section 70 provides that the same procedures apply to renewal of licences as they do to applications for new licences. Section 6vides
when the Bohe Board rard receives an application which complies with section 64, and which, in the opinion of the Board “is notolous,
scandalous or vexatious” the Board shall advertise, and conduct a hearing.
In considering the application scandalous and vexatious, the Board clearly decided that the application did not satisfy tction 66
criteria of roadwooadworthiness. The information on whhe Bohe Board relied was not only the result of the investigation by transport
officers as to the condition of the buses, but also the letter from the Noco Tikina Council, which appears to hav no authority to
speak for for the Applicant. Furthermore, thestigation tion report at Annexure G to the Naidu affidavit, shows that the vehicles
were unlicensed, not that they were unlicensed because they were unroadworthy.
Given the evidence of Bruce Sutton, that the buses were deliberately kept unlicensed by Latchan’s Express, whhen got a licence to
operatperate the route, the decision of the Board that the application should be summarily dismissed, must be open to question.
The words “frivolous, vexatious and scandalous” are normalld in describing applications which are an abuse of the process, and are
obviously unsustainstainable.
Although the Board undoubtedly has powers to dismiss applications on these grounds without any further invation or inquiry, the exercexercise
of that discretion must be based on accurate information.
In my view, the Board failed to act fairly, in summarily dismissing the renewal application, without ensuring the ity of the facts
before it.e it.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Even if the Applicant had failed to show legitiexpectation, it would have succeeded in its ground that the Board’s decision to dismiss
thes the application summarily was procedurally unfair, and based on inaccurate information.
The decision not to renew the RSL is quashed.
The Refusal of a New Licence
Section 65 undoubtedly gives the Board the power to dismiss applications without a hearing where tre frivolous or vexatious.
However, in denying the Applicant a hearing whenad been servicing a bus route for some years, the Board failed to act in a way that
was pros procedurally fair. In FraserState ServiServices Commission (1984) 1 NZLR 116, 122 it was held that even when there is a discretion to conduct an inqconferred by statute, a refusal to exercise that discretion
may constitute a denial of natu natural justice if fairness demands such an inquiry.
The basis for the refusal of a new licence, was financial instay. Counsel for the Board argued that the fact that the Company was
in the hands of a of a receiver spoke volumes about the financial position of the Company.
Again, the application was dismissed without a he, and on the basis that the buses were “unfit for service”, and that the Applicant
was “ins “insolvent.”
As the affidavit of Bruce Sutton alleges, the Board erred in fact, on both these issues. Scott J in Judicial Review HBJ020/1996S, that there is noise procedure to be followed by the Board in considering applications under section
65 of t of the Traffic Act. “All that was red was that that the procedures adopted, were fair.”
In this case, if the Board allowed the receiver of the company to answer queries on its financial position, it would have received
far more accurate information about the applicant’s financial stability, then relying as it did on representations made by the Tikina
Council which could not speak for the Company. Itd certainly have been toen told of the role played by Latchan’s Express in the
application and joint venture proposals, the circumstances in which the vehicles had been taken off the road, and the Applicant’s
ability to service the route.
The failure to give the Applicant the opportunity to be heard on issues, led to findings of fact which are disputed by the Applicant.
This failure leads me to remove the decision into this court, and to quash it, on the ground of procedural unfairness.
In summary, the applications for certiorari to quash both decisions are allowed.
The Respondent must pay the Applicant’s costs to be taxed if not agreed.
Nazhat Shameem
b>JUDGE
At Suva
HBJ0049J.99S
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