Land Transport Appeals Tribunal
Sitting At Lautoka

Appeal # 12 of 2008

Between:

Lautoka General Transport Co. Limited
[Appellant]

And:

Land Transport Authority
[Respondent]

Fiji Transport Company Limited
[1st Interested Party]

Appearances:
For the Appellant: Mr V Kapadia
For LTA: Mr J Savou
For Interested Party: Mr R Prakash and Ms J Jattan

Judgment

Introduction

The Appellant, Lautoka General Transport Co. Limited had appealed the decision (dated 14th August 2008) of the LTA where dealing with an application for amendment of Road Route Licence [12/16/7] by Fiji Transport Company LTA decided as follows:

No	Route	Time	Decision	
1.	Stage Service
Ba
Lautoka	
Depart
Arrive	
5.20 am
6.30 am	
Approved	

2.	
Stage Service
Lautoka
Ba	
Depart
Arrive	
6.15pm
7.25pm	
Approved 	

Grounds of Appeal

The Appellant’s grounds for appeal were as follows:

“(1)	That the Authority erred in law and in fact in not giving any reasons for approving the stage services between Ba and Lautoka to Fiji Transport as a result of which the Appellant has been prejudiced and the decision ought to be aside ipso facto. 

(2) 	The Authority erred in law and in fact in granting service from Ba an departing 5.20am to arrive at 6.30am in Lautoka without assessment of the need of the travelling public so early in the morning. There has been no relevant load check report to determine the need for a service departing Ba at 5.20am. In the absence of any relevant load check report or assessment it is impossible for the Authority to establish that there is a need for a service departing Ba at 5.20am for Lautoka. There are no workers who would use the service so early in the morning and previously the Board and the Tribunal have refused such early morning applications. In another decision also dated 14th August 2008 the Authority has refused Fiji Transport application to depart Ba at 5.15am for Nadi Airport stating that the loading was very poor and also that Fiji Transport would be encroaching operator to go beyond Lautoka. If in that decision the Authority said that loading was very poor presumably referring to existing trips as the Appellant that depart after 5.45am then loading for an earlier trip departing at 5.20am is likely to be much more poorer.

(3)	The Authority erred in law and in fact in granting the return service departing Lautoka at 6.15pm arriving Ba at 7.25pm when no need for such a service has been established. There are a number of bus services in this time period towards Ba and passengers are adequately catered for. The load checks show very poor loading in any event. Fiji Transport has existing 6.30pm trip to Ba in any event they have not shown any need for another service at 6.15pm.

(4)	That the Authority erred in law in preparing load check reports from 6.00am to 6.00pm dated 26th May 2008 between Ba and Lautoka which in any event showed very poor loading. The Authority has failed to explain in the light of its own load checks reports between 6.00am and 6.00pm of poor loading why a need for this service was established.

(5)	That the Authority erred in law and in fact in failing to take into consideration that there were numerous services of the Appellant to Buabua, Teidamo, Paipai, Naviago and Ba that would be prejudicially affected by the grant of the service to Fiji Transport departing at 5.20am. In particular the Appellant has existing service that departs Ba at 5.45am and at 6.00am. The Authority has failed to explain why the 5.20am service is justified.

(6)	The Authority has erred in law and in fact in granting the service to Fiji Transport departing Lautoka at 6.15pm when the Appellant has services departing for Ba at 6.00pm and 7.00pm with further services to Teidamo and Drasa at 6.15pm and 6.45pm respectively. Fiji Transport has a service at 6.30 pm to Ba from Lautoka. No reasons have been given by the Authority to grant the 6.15pm service to Fiji Transport.

(7)	The appellant reserves the right to file amended or additional grounds of appeal upon receiving reasons for the decision and the record of the proceedings at the Authority.”

Hearing and Submissions Made

The matter was heard on 8th July 2009 by Mr Amani Bale, the previous Tribunal. The parties have agreed that this Tribunal peruse the documents filed and the notes of the previous Tribunal in providing its judgment. This Tribunal has perused and noted all the documents filed and the submissions made therein. 

The Function and Powers of the Tribunal

Section 40 (2) of the Land Transport Act provides for the function of the Tribunal, which is “to hear and determine appeals against decisions of the Authority relating to –

(a) licensing of drivers under section 56;
(b) any matter requiring a decision of the Authority under  Part VI; and any other matter prescribed by the Minister by regulations."

Regulation 34 (1) and (2) of the Land Transport (Vehicles Registration and Construction) Regulations 2000 allows the Tribunal to deal with appeals relating to issuance and cancellation of dealing certificate or trader permit. 

The powers of the Tribunal for the purposes of hearing and determining appeals according to Section 46 are to "(a) to issue a summons to a witness in the prescribed for; (b) to call for the production of books, plans and documents; (c) to examine witnesses on oath or affirmation; (d) to admit any evidence whether written or oral and whether or not such evidence would be admissible in civil or criminal proceedings; (e) to exclude any person if necessary so as to ensure the proper conduct of the appeal or to preserve order."

Furthermore, under Section 46 (2) "on an appeal under this Part the Tribunal may dismiss the appeal or make such order as it thinks just and reasonable in the circumstances directing the Authority to issue, transfer, or cancel any licence, certificate or permit, or to impose, vary, or remove any condition or restriction in respect of a licence, certificate or permit, and the Authority shall comply with that order." And under Section 46 (3) "Upon the determination of an appeal under this section the Tribunal may make such order as it thinks just with the respect to the costs of the appeal, and any person to whom any such costs are awarded may recover the amount of those costs in any court of competent jurisdiction, as a debt due from the person against whom those costs are awarded."

According to Section 47 the Tribunal "for the purposes of the hearing and determination of any appeal the Tribunal shall have regard to those matters which the Authority is required to have regard to in considering an application under this Act."

Analysis

The Tribunal has noted all the documents filed in this appeal. Due to some unforeseen circumstances and matters beyond the current Tribunal's control the decision in this matter has been pending for a very long time. 

This Tribunal has noted all the submissions that were made at the hearing. The Appellants also called a witness, namely Mr. Umendra Prasad. His evidence is noted. Having noted the grounds of appeal and the submissions of the parties on the appeal this Tribunal notes that the approval of the application was made by the Authority relying on the reports which included the load checks that were made available to it. The Authority provided each party an opportunity to be heard and considered the submissions of all the parties that appeared before it. 

The Authority considered the need for service for the trip and the Board had before it the submissions of its officers and the representations made by the parties that appeared before it. The Board had received a favourable response from its management for the approval of the trip. It supported the need and was mindful of the convenience of the public. The Tribunal has noted that the Authority had reasons for the decision that it made and it is contained in the minutes of the Private meeting of 1st August 2008.

This Tribunal finds that the Authority fairly dealt with the application. It considered all matters that were necessary. The Authority should have outlined the reasons for its decision in the decision letter to all parties. This was not done in the decision letter. This is not fatal. The rationale for the decision of the Board is contained in the minutes of the Private meeting of 1st August 2008. This has been disclosed to all the Parties on appeal. 

Having considered all matters that are before the Tribunal this Tribunal does not find that the Authority erred in law and in fact on any of the grounds listed by the Appellant. This Tribunal has also noted that the Authority had considered all the factors in dealing with the application however the public interest and interest of travelling public factors tilted the balance in favour of the applicant (Fiji Transport).

For the foregoing reasons the appeal is dismissed.

Orders

-	The Appeal is dismissed. 
-	No order as to Costs.

The Parties have the right of Appeal.

Chaitanya Lakshman
Land Transport Appeals Tribunal
24/07/2015