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Lautoka General Transport Company Ltd v Westbus (Fiji) Ltd [2003] FJHC 107; HBA0002j.2002S (30 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL APPEAL NO. 2 OF 2002

Between:

LAUTOKA GENERAL TRANSPORT
COMPANY LIMITED
Appellant

and

WESTBUS (FIJI) LIMITED and
LAND TRANSPORT APEALS TRIBUNAL
Respondents

Mr. R. Prakash for the Appellant
Mr. M. Raza for the Respondent

JUDGMENT

This is an appeal by Lautoka General Transport Company Limited (the “Appellant”) from the decision of the Land Transport Appeals Tribunal (hereafter referred to as the “Tribunal”) made on 19 December 2001 wherein the learned Tribunal refused to dismiss an appeal under the Land Transport Act (the ‘Act’) by Westbus (Fiji) Limited (the ‘Westbus’) for want of jurisdiction and proceeded to set a date for hearing the substantive appeal.

The appellant seeks an Order that the said decision dated 19 December 2001 be set aside and the appeal to the Tribunal by Westbus be dismissed.

The Grounds of Appeal (as stated in Notice of Appeal) are as follows:-

1. That the learned Tribunal erred in law in holding that it had jurisdiction to hear and determine appeals under Section 40 (2) of the Land Transport Act against the decision of the Land Transport Authority made in respect of an application made and heard under the Traffic Act.
   
2. That the leaned Tribunal erred in law in holding that the reference in Section 112 (5) to the Land Transport Act to ‘proceedings instituted´ or “action begun” did not include pending applications for Road Service License or permit or their amendment under the Traffic Act.
   
3. That the learned Tribunal erred in law in holding that the Land Transport Authority was in error in applying the Traffic act when deciding on a pending application for Road Services License made under the Traffic Act.
   
4. That the learned Tribunal exceeded its jurisdiction in setting a date to proceed to the hearing of the substantive appeal.
   

Leave was granted to the appellant to appeal out of time. It was further ordered by this Court that all other proceedings for the hearing of the appeal be stayed until the determination of this appeal. This appeal against the Tribunal (the 2nd Respondent) was discontinued.

Background facts

The background facts in so far as they are material to the issue before me are set out at length in Mr.Pyara Singh’s affidavit sworn 1 February 2002 in support of the appellant’s application for a stay. Very briefly, the facts are (as stated in the said affidavit):

4. That the Land Transport Authority on 24th January 2001 made a decision refusing an application by Westbus (Fiji) Limited for an amendment of its Road Route License Number 12/19/5.
   
5. The application by Westbus (Fiji) Limited was made under the Traffic Act. However, the matter was heard by the Land Transport Authority, a body established under the Land Transport Act. When the said application was heard, the Authority made it clear that it was hearing the said application under the Traffic Act and it was acting under powers given by Section 112 (5) of the Land Transport Act.
   
6. Westbus (Fiji) Limited appealed the decision of the Land Transport Authority to the Land Transport Appeals Tribunal and Lautoka General Transport Company Limited opposed the appeal on the basis that the learned Tribunal did not have the jurisdiction to hear the appeal.
   
7. The learned Tribunal made a decision that it had the necessary jurisdiction in the circumstances of this case and further ruled that unless a notice of intention to appeal is given, it would proceed to hear the appeal.
   

Appellant’s submission

The appellant applies to Court that the appeal by Westbus to the Tribunal against the decision made by the Land Transport Authority on 24 January 2001 whereby the Authority refused an application for amendment of Westbus’s Road Permit No. 12/19/5 be dismissed.

The appellant was one of the objectors to the application by the Westbus and an interested party entitled to be heard in the appeal. The Act came into force on 1 July 2000 and under s112 of the Act, the former Traffic Act was repealed.

The application by Westbus was made on 26 November 1998 under the provisions of the Traffic Act. The hearing took place on 24 January 2001 and decision was made the same day.

At the time of hearing the application the Authority stated that it was hearing it under the Traffic Act and this fact was confirmed by the Authority through its Counsel before the Tribunal.

The Authority acted under the provisions of section 112(5) of the Land Transport Act. The Tribunal’s jurisdiction to hear and determine appeals is contained in section 40(2)(b) of the Act. It has jurisdiction to hear and determine appeals against decisions of the Authority relating to decisions under Part VI of the Act. Part VI deals with Public Service Vehicle Licensing. Counsel submits that these provisions do not give jurisdiction to hear and determine appeal of decisions made under the Traffic Act.

The learned counsel’s legal submission in his own words is as follows:

The Respondent’s application was not determined at the date of commencement of the Land Transport Act and by virtue of Section 112 (5) of the Land Transport Act it could continue until determined under the repealed Act i.e. the Traffic Act. The Respondent’s application in the circumstances existing could have only been determined under the Traffic Act. Accordingly, the decision is one, which is made under the Traffic Act. It is hence a decision that is not made under Part VI of the Land Transport Act.

It is humbly submitted with respect that since the decision being appealed is not a decision under Part VI of the Land Transport Act, the Land Transport Appeals Tribunal did not have the jurisdiction to hear and determine the appeal.

It is further submitted that under the Traffic Act there were no provisions to appeal the decisions relating to grant or amendment of Road Service Licences. Although there are savings provisions for continuance of pending proceedings and actions the Land Transport Act does not have any provision for appeals of decisions made under the Traffic Act.

The crucial question for the determination of this appeal is as to how Section 112(5) of the Land Transport Act is to be interpreted. In particular, what is the meaning to be given to the words “Any proceedings instituted or action begun” in Section 112(5).

It is respectfully submitted that the words are to be given an interpretation which includes applications pending under the Traffic Act. The Land Transport Authority when hearing the pending application gave itself jurisdiction to hear the application by virtue of this interpretation of Section 112(5) and we humbly submit that the Authority was correct in applying this interpretation.

Mr. Prakash submits that the Tribunal has made an error of law in interpreting section 112(5) by giving a narrow meaning to the section and limiting the meaning of the word “proceedings”.

Respondent’s submission

Mr. Raza for Westbus (the 1st Respondent) refers the Court to his submission contained at pp112 to 115 of the Record of Proceedings before the Tribunal. He submits in short that the Tribunal does have jurisdiction to hear the appeal and he supports the Ruling given by the Tribunal.

Mr. Raza further submits that the Act replaces the Traffic Act and that any transitional matters are to be dealt with in this light.

Counsel then deals with his interpretation of the relevant sections of the Act in so far as they pertain to the issue before the Court.

Consideration of the issue

This is an appeal by the appellant under s48 of the Land Transport Act (No. 35 of 1998) which provides:

“A decision of the Tribunal shall be subject to an appeal, only on points of law, to the High Court”.

I have before me useful written submissions, inter alia, on law on the issue from both counsel. I have already outlined hereabove the facts and circumstances giving rise to the present appeal.

It is the interpretation which one places on the words ‘any proceedings instituted or action begun’ under the repealed Act as contained in s112 of the Act, which has become the real issue in this case.

The said section for completeness reads as follows:

112. (1) The Traffic Act is repealed.

(2) All by-laws, regulations, code, orders, notices, appointments, licences and permits made or issued under the provisions of the repealed Act shall be deemed to have been made or issued under the corresponding provisions of this Act and shall remain of full force and effect until such time as they are revoked, extended or amended under this Act.

(3) Any regulations, codes or by-laws made under the provisions of the repealed Act in respect of which there are no corresponding provisions in this Act, shall remain of full force and effect as though they had been made under the authority of this Act until such time as they have been revoked or amended under the provisions of this section or any other Act and may be amended or revoked under this subsection.

(4) Any appointments or delegation made under the repealed Act before the commencement of this Act continues until the appointment or delegation is revoked under this Act.

(5) Any proceedings instituted or action begun under the repealed Act before the commencement of this Act which has not been determined before the commencement of this Act continues until determined under the repealed Act.

(6)-----------

I have considered the submissions of the Appellant, the Respondent and the Tribunal on their interpretation of the said section 112.

Mr. Raza agrees with the Tribunal’s interpretation. This is what
Sir Vijay R Singh, the Land Transport Appeals Tribunal had to say, inter alia, on this aspect and on the issue in his Ruling of 19 December 2001.

“6. The objection to an appeal to the Tribunal is predicated on the proposition that the appellants’ applications to the TCB under the Traffic Act amounted to ‘proceedings instituted’ or ‘action begun’ within the terms of section 112 (5).

7. I have reached the conclusion that Parliament intended the reference in s.112 (5) to ‘proceedings instituted’ or ‘action begun’ to apply to pending judicial proceedings, say, for example, by way of applications for judicial review of decisions of the TCB, PLA etc, and prosecutions for offences under the Act, and not to applications for road service license or permit or their amendment. Had Parliament intended that the Authority should apply the Traffic Act to applications that predated the coming into force of the Land Transport Act, it would have so. But there was no sense in such an arrangement; the Authority’s powers with regard to applications were, for all practical purposes, the same as the TCB’s under the repealed Traffic Act”.
   

I am entirely in agreement with the Tribunal that had the Legislature intended that the Authority should apply the Traffic Act to ‘applications’ it would have said so in so many words just as it has done in s112(2) and (3) of the Act in relation to other matters after the repeal of Traffic Act in s112(a).

I further agree with the Tribunal that after 1 July 2000 when the Act came into effect ‘the power to make decisions on applications relating to public service vehicles was vested in the Authority, it could only exercise its functions in accordance with the Land Transport Act, not the repealed Traffic Act’.

The said section 112(5) which is under scrutiny is quite clear for it refers to ‘proceedings instituted’ or ‘action begun’. Here there is no mention of ‘applications’ pending for determination. The legislature could have quire easily said so in a ‘saving clause’ if that was the intention as it has done in s112(2) and (3) in regard to other matters.

I agree with Sir Vijay when he said in his Ruling that the said words which are the bone of contention apply to ‘pending judicial proceedings, say, for example, by way of applications for judicial review of decisions of the TCB, PLA etc, and prosecution for offences under the Act, and not to applications for road service licence or permit or their amendment’.

By analogy we get some support for the proposition that an ‘application’ is not an ‘action’ when it was held that ‘a statutory demand in bankruptcy proceedings was not an ‘action’ [In re a Debtor No. 88 of 1991 – 10.7.92, TLR 345]. In re a Debtor the words of the section were “... no action shall be brought ...” and Sir Donald Nicholls, the Vice-Chancellor disagreed with counsel that service of a statutory demand constituted the bringing of an action within the meaning of the section. His Lordship said that “the phrase “no action shall be brought” was referring to a legal process and used lawyers’ language”. His Lordship went on to say:

“Traditionally an “action” was the name given to the legal process initiated by issue of a writ of summons, In the context of section 69 it would include other forms of civil proceedings, for example an originating summons.”

But “action” was not wide enough to embrace a non-legal process such as the statutory demand.

A Statutory demand was one of the statutorily prescribed prerequisites to obtaining remedies afforded to creditors by a bankruptcy order. The demand was not issued by a court”.

Similarly, as to what are ‘proceedings’, an example of that is to be found in Regina v Darlington Borough Council, Ex parte Association of Darlington Taxi Owners and Another No. 2 14.4.94 T.L.R. 210 where Auld J said: ‘an application for leave to apply for judicial review clearly constituted proceedings ...’

So in the light of the above observation in the two cases it can hardly be deduced that ‘applications’ in this case can be categorized as either ‘proceedings instituted’ or ‘action begun’.

The only logical and sensible interpretation that can be given to the said phrases “proceedings instituted” and ‘action begun’ is that ‘applications’ pending before the Authority before the repeal of the Traffic Act is that these applications are not covered by these expressions and that it was not the intention of the Legislature to do so for had that been the intention it would have said so, and as Sir Vijay said in his Ruling with whom I agree that “there is no discernible merit in requiring the Authority to apply the provisions of the repealed Traffic Act, only because the application to be considered was made under that Act”.

I further agree with the Tribunal that after 1 July 2000, when the Act came into effect, ‘the power to make decisions on applications relating to public service vehicles was vested in the Authority, it would only exercise its functions in accordance with the Land Transport Act, not the repealed Traffic Act’.

Conclusion

To sum up, having considered the submissions made by both counsel, I interpret the phrases ‘proceedings instituted’ and ‘action begun’ as not including ‘application’ or ‘applications’ pending before the Land Transport Authority under the repealed Traffic Act. In short, I uphold the Tribunal’s Ruling in all respects and agree with the reasons advanced for the said Ruling for the Tribunal could not have come to any other conclusion on the meaning and interpretation of those phrases in the present context.

For these reasons I find that there are no merits in the grounds of appeal. The appeal is therefore dismissed with costs to the respondent in the sum of $350.00.

D. Pathik
Judge

At Suva
30 May 2003