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Zakreen Holdings Ltd v Dee Cees Bus Service Ltd [2015] FJHC 72; Miscellaneous Action 16.2015 (5 February 2015)

IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

Miscellaneous Action No.: 16 of 2015
LTA Tribunal appeal No. 35 of 2012

BETWEEN:

ZAKREEN HOLDINGS LIMITED
APPLICANT

AND:

DEE CEES BUS SERVICES LIMITED
1ST RESPONDENT

AND:

LAND TRANSPORT AUTHORITY
2ND RESPONDENT

AND:

CENTRAL TRANSPORT CO. LTD
TACIRUA TRANSPORT LIMITED
ISLAND BUSES LTD
ESTOL HOLDINGS LIMITED
TEBARA TRANSPORT LITD
DAWASAMU TRANSPORT LTD
FIJI BUS OPERATORS ASSOCIATION
INTERESTED PARTIES/OBJECTORS

Counsel : Mr. N. Lajendra for the Applicant
Mr. V. Vosorogo for the 1st Respondent and 3rd Interested Party
Mr. V. Kapadia for the 1st, 2nd, 4th and 7th Interested Parties
Mr. A. Pal for the 5th Interested party

Date of Hearing : 4th February, 2015
Date of Decision : 5th February, 2015

DECISION

INTRODUCTION

1. This is an application for leave to appeal and an interim stay of execution of the decision of the Land Transport Appeals Tribunal (LTAT) dated 16 January 2015. The said decision quashed the determination of the Land Transport Authority granting Road Route Licence to Zakreen Holding Limited (the Applicant). The said appeal to LTAT, was filed by Dee Cees Bus Services Limited (1st Respondent) and there were 7 interested parties before LTAT. Land Transport Authority (LTA) was also a respondent in that appeal. At the hearing before the LTAT a preliminary objection was raised by the Applicant regarding non compliance of the time period for the appeal as it was filed outside 14 days from the date of decision granting application for Road Route Licence. While answering said preliminary issue, the LTAT quashed the decision of LTA granting Road Route Licence. This was done after perusal of the records of the LTA relating to the said decision granting Road Route Licence to the Applicant. Being aggrieved by the said decision of the LTAT the present leave to appeal and stay was sought.
   

FACTS

2. The appeal before LTAT was against the decision of LTA granting Road Route Licence to the Applicant. The nature of the application before the LTAT was described in the Ruling delivered on 15th January, 2015 as follows (at page 2)
   

'A preliminary issue was raised by the Respondents on the validity of the appeal. The matter was heard on 13th June, 2014. This is the ruling following the hearing of this matter. Written submissions were made by the parties.'

3. At the hearing before High Court all parties admitted that there was no hearing of the appeal filed by the 1st Respondent, before LTAT except the limited hearing relating to preliminary objection.
   
4. The LTAT had requested for the records of the LTA relating to the determination of the issuance of Road Route Licence to the Applicant and upon the perusal of the record had not only replied to the preliminary issue raised, but also quashed the decision of the LTA granting Road Route Licence to the Applicant.
   
5. Since the Ruling of 15th January, 2015 was in pursuant to a hearing of and application of interlocutory preliminary objection, the present leave to appeal is sought from this court. All the parties to this matter do not dispute 'application approach', to consider the Ruling of LTAT as an interlocutory decision.
   
6. The Appellant had also sought a stay of Ruling delivered on 16th January, 2015.

ANALYSIS

7. The scope of my decision is limited to two issues
   
   1. Whether the Appellant should be granted leave to appeal against the Ruling delivered on 16th January, 2015 by the LTAT.
      
   2. If so, whether an interim stay of said Ruling should be granted till the final determination of the application.
      

Whether Leave should be granted

8. In relation to leave to appeal the Federal Court of Australia in Re Decor Corporation Pty Limited & Anor v Dart Industries Incorporation 1991 FCA 655 stated:
   

"In sharp v Deputy Federal Commissioner of Taxation (1988) 88 ATC 4184 at 4186 (and see also Merman Pty Ltd v Cockburn Cement Limited (1989) ATPR 49951 at 44954; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (French J., unreported, 15 January 1991) Burchett J. stated the "major consideration(s)", to be applied by the court upon an application for leave, for which Niemann is authority. The first test, which relates to the prospects of the proposed appeal, is "whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the Full Court.

The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong. In my opinion, the sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments. They bear upon each other, so that the degree, of doubt which is sufficient in one case may be different from that required in another. Ultimately, discretion must be exercised on what may be a fine balancing of considerations." (emphasis mine)

9. In all circumstances the decision of LTAT which went beyond the preliminary point raised and argued before it, that resulted the cancellation of licence granted to the Applicant, attend with sufficient doubt to warrant it to be reconsidered by the High Court. If the leave is refused the applicant is deprived of his operations of bus service, which he operated for more than 2 years, and according to the affidavit in support the sole income of the applicant is this. If so 'substantial injustice would result if leave were refused, supposing the decision to be wrong.'

10. In Edmund March v Bank of Hawaii &Ors [2000]1 FLR 230 the Fiji Court of Appeal stated as follows: (Pathik . J)

"Whilst I am inclined to agree that Air Canada's case appears to be distinguishable, I must bear in mind that I am dealing with an application/or leave to appeal and not with the merits of an appeal. It will therefore not be appropriate for me to delve into the merits of the case by looking into the correctness or otherwise of the Order intended to be appealed against. However, if prima facie the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into consideration before deciding whether to grant leave or not."

11. In Fiji Court of Appeal decision of Proline Boating Company Ltd v Director of Lands [2013] FJCA 39; Misc. Action 39A.2011 decided on (17 May 2013)(unreported) Calanchini AP (as his lordship then was) held,
    

'[14]. The Appellant relies on 25 grounds of appeal. To a large extent they are repetitive and overlapping. It is certainly not necessary to delve into the grounds of appeal in considering whether leave to appeal should be granted. This is even more so the case when the appeal procedure has been commenced within the time prescribed by the Rules. Leave to appeal is required because the decision refusing to grant leave to apply for judicial review is an interlocutory decision. Generally the Courts are reluctant to interfere with interlocutory decisions. However leave will be more readily granted when legal rights as distinct from matters of practice and procedure are involved and some injustice may be caused: See In re the Will of F B Gilbert (deceased) [1946] NSWStRp 24; (1946) 46 S R NSW 318 at 323 and Kelton Investments Limited and Tappoo Limited –v- Civil Aviation Authority of Fiji and Another (unreported ABU 34 of 1995 delivered 18 July 1995). The question to be resolved in this application is should the Applicant be given leave to appeal' (emphasis added)

12. Native Land Trust Board v Narawa [2004] FJSC 7; CBV0007.2002S ( decided on 21 May 2004)(unreported), the Supreme Court of Fiji held,(at paragraph 32)
    

'......The interlocutory orders to which it applies may cover a range of cases from those only concerned with matters of procedure and pre-trial management to those which may have a significant impact on the scope and outcome of the proceedings. Some decisions, while technically interlocutory, may be to all intents and purposes final. In such cases "a prima facie case exists for granting leave to appeal" – Ex parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 275; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 400. When a proceeding is dismissed for want of a reasonable cause of action the decision may be treated as interlocutory – Hunt v Allied Bakeries [1956] 1 WLR 1326; cf Mickelberg v 6PR Southern Cross Radio Pty Ltd [2001] WASC 267; Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148. But leave will usually be granted in such a case where there is any doubt about the decision at first instance – Little v Victoria [1998] 4 VR 596 at 598-601. See generally the discussion in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; (2000) 104 FCR 564 at 583-584.(emphasis added)

13. Though the preliminary objection and the ruling relating that are in principle interlocutory, the decision to quash the determination of LTA may be to all intent and purposes final considering the orders sought in the appeal before LTAT hence 'a prima facie case exists for granting leave to appeal'. There is also some 'doubt about the decision at the first instance' specially considering the manner it was done in LTAT.
    
14. In the proposed appeal grounds are annexed SM 10 to the affidavit in support and it is stated as follows
    

'1. That the Land Transport Appeals Tribunal erred in law in determining the substantive appeal as;

1. No hearing was conducted in respect of the substantive appeal.
   
2. The Applicant/Appellant was never given an opportunity to be heard in respect of the substantive appeal and thereby denied natural justice.
   

2. That the Land Transport Appeals Tribunal erred in law in holding that the 1st Respondent's Appeal is valid.

3. That the Land Transport Appeals Tribunal erred in law in quashing the Road Licence of the Applicant/Appellant.

4. That the Land Transport Appeals Tribunal fell in error in using the non communication on the part of LTA of not informing the 1st Respondent and the Interested Parties/Objectors of LTA's decision and the non publication of LTA's decision in the gazette and a newspaper published in the English language circulating throughout Fiji as a ground to quash the Road Route License of the Appellant as such responsibility is an administrative action of LTA and non observance of such administrative action on the part of LTA cannot be used to penalize a permit/license holder by cancellation of permit/license as it will be manifestly unjust as held in Fiji Bus Operators' Association and Others v Land Transport Authority and Others, Civil Appeal No. HBA 0001 of 2002 (a decision which was referred to the Appeals Tribunal).

5. That the Land Transport Appeals Tribunal erred in law in holding the 1st Respondent acted in haste the moment it found all the information in relation to the grant of Road Route License to the Appellant when the evidence presented showed otherwise.'

15. The learned counsel for the interested parties contended that the appeal grounds 2 and 3 are vague and cannot form as grounds of appeal. That is correct as this would allow the applicant to be vague and repetitive, and will not serve its purpose. In Nasese Bus Company Ltd v Chand [2013] FJCA 9; ABU40.2011 (8 February 2013) Calanchini AP (as his lordship then was) dealt with the requirements of Rule 15 of Court of Appeal Rules and the issue of clear and precise grounds of appeal.
    
16. The learned counsel for the 1st Respondent said that appeal ground 5 is only a point of 'fact' hence cannot be considered as a ground of appeal. In terms of section 48 of the Land Transport Act, a decision of the Tribunal shall be subject to an appeal, only on point of law. But whether this extends interim orders was not raised at this hearing hence I will not deal with that at this moment. Since it was a specialized tribunal it may be prudent to leave all the issues arising from facts to the LTAT.
    
17. The Appellant raised a preliminary objection before the hearing of the appeal and the hearing before the LTAT confined only to the said preliminary objection. If the said preliminary issue was overruled then the matter could continue before the LTAT for a final determination. The Ruling dated 16th January, 2015 overruled the preliminary objection, but in the Ruling it had also quashed the decision of the LTA granting licence to the Appellant. So, there is an arguable ground for the Applicant as stated in proposed ground 1.
    
18. The leave to appeal against the Ruling of 16th January, 2015 of LTAT is granted for the foregoing reasons and I need to consider whether an interim stay of that Ruling is warranted in the circumstances.
    

Whether Interim Stay should be granted

19. Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 13; ABU0011.2004S ( decided 18 March 2005) (unreported) Fiji Court of Appeal held,
    

'Principles on a stay application

[7] The principles to be applied on an application for stay pending appeal are conveniently summarised in the New Zealand text, McGechan on Procedure (2005):

"On a stay application the Court's task is "carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful": Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p 87.

The following non-comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p 50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

(a) Whether, if no stay is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo."(emphasis added)

20. The above factors are not comprehensive and the consideration is 'right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful'.
    
21. The overall balance of convenience and the status quo would be in favour of the Applicant in granting a stay. There was no stay granted by the LTAT though such an application was filed by the 1st Respondent who was the Appellant before LTAT in 2012. The Ruling was delivered on 16.1.2015. There is no evidence of even perusing said application for stay before LTAT, though all the parties before me were before LTAT since 2012.
    
22. There is a public interest in this proceeding in granting the stay as the applicant was operating a bus service for more than 2 years. Though all the parties to present application were before LTAT, no stay of the LTA decision was granted. I was told that the commuters were catered through some interim measure after the Ruling of 16 January, 2015 but I do not have evidence to that effect from the commuters. In theory entering of new player would create competition in market and good for public interest.
    
23. There are number of novel issues that were raised by learned counsel for the interest parties which I do not intend to deal in this application and novelty also favours granting the stay. The manner in which LTAT dealt preliminary objection is novel and needs consideration.
    
24. The effect on third parties are the effect on the other bus operators from the buses of the applicant. They were subjected to the similar effect for more than 2 years. The only bus operator who took pains to file an appeal was 1st Respondent after about 10 months from operation of the Applicant, but before that it had written to the LTA a letter requesting information and there was no reply from them. Obviously the grant of stay would have negative effect on 1st Respondent as well as other interested parties. The effect of that is not certain. Considering the fact that they did not persue a stay in LTAT since 2012 is a factor to be taken in.
    
25. The bona fides of the applicant are not seriously challenged as there is an arguable ground for appeal against the Ruling of 16th January, 2015.
    
26. If the stay is not granted the Applicant would suffer more as it will not earn from operation of bus service. The applicant as a new comer to the industry would suffer more if stay is not granted.
    
27. Considering all the above factors and the circumstances of this case I am inclined to grant an interim stay, but I am equally minded to possibility of abuse of such stay considering the circumstances. So I would allow 7 days to the Applicant to file the appeal and the registry is directed to mention the said appeal on 13th February, 2013 for directions.
    

FINAL ORDERS

1. The leave is granted to the applicant to appeal the Ruling of the Appeals Tribunal in LTA Tribunal Appeal No. 35 of 2012 delivered on 16 January, 2015.
   
2. Interim stay is granted of the decision of the appeals Tribunal in LTA Tribunal Appeal No. 35 of 2012 delivered on 16 January, 2015
   

100. The Applicant is directed to file and serve the appeal within 7 days.
     

4. The registry is directed to mention the appeal on 13.2.2015 for directions.
   
5. No order as to costs considering the circumstances.
   

Dated at Suva this 5th day of February, 2015.

.....................................
Justice Deepthi Amaratunga
High Court, Suva