Land Transport Appeals Tribunal
Sitting At Lautoka

Appeal # 13 of 2008

Between:

Lautoka General Transport Co. Limited
Appellant

And:

Land Transport Authority
Respondent

Classic Buses (substituted Dayal Buses)
1st Interested Party

Nadi General Transport Co Ltd
2nd Interested Party

Moti Chandra & Co Ltd
3rd Interested Party

Appearances:

For the Appellant: Mr Pyara Singh
For LTA: Ms E Radrole 
For First Interested Party: Mr Victor V. Sharma (Vijay Naidu and Associates)
For Second Interested Party: Mr F Vosarogo
For Third Interested Party: No Appearances 

Judgment

Introduction

The Appellant, Lautoka General Transport Co. Limited had appealed the decision (dated 12th August 2008) of the LTA where dealing with an application for amendment of Road Route Licence [12/19/4] by Dayal Buses Limited, The LTA Board decided as follows:

No	Route	Time	Decision	
1.	Nadi
Keolaiya via Sukhu Store
(Carreras Road)	Depart
Arrive	4.40 am
5.40 pm	Approved	

2.

3.

	Nadi
Keolaiya via Sukhu Store
(Carreras Road)
Nadi
Keolaiya via Sukhu Store
(Carreras Road)
	Depart
Arrive

Depart
Arrive	5.05pm
6.05pm

5.10pm
6.10pm	Refused

Approved	
4.	Nadi
Keolaiya via Sukhu Store
(Carreras Road)
	Depart
Arrive	5.40pm
6.40pm	Approved	

Grounds of Appeal

The Appellant’s grounds for appeal were as follows:

“(1) That the Authority erred in law and in fact in granting the two services to Dayal Buses when similar applications in the past have been refused from time to time on the basis that there is no need for these additional services from Nadi as the travelling passengers are adequately catered for from Nadi. If there is a need from votualevu Round about then the services ought to be granted from that point but not from Nadi. 

(2) The Authority erred in law and in fact in granting service into Votualevu to operators like Westbus and Dayal Buses based a meeting the Chief Executive Officer of the Authority on the 13th September 2006 at Valelevu and as set out in the Memorandum of Regional Manager western dated 15th September 2006. All affected parties were not called at this meeting such as the Appellant, Moti Chandra, Nadi General Company and other Operators on the Nadi, Lautoka route. The Chief Executive Officer of the Authority had no powers to approve the acceptance of application for amendment to road route licence in Votualevu area as set out in the Memorandum of the Regional Manager western dated 15th September 2006. The decision of the Authority to endorse a decision of the Chief Executive Officer of the Authority to grant this service in breach of the Land Transport Act and Regulations is therefore an error of law and ought to be set aside forthwith.

(3) The Authority erred in law and in fact in allowing applications to be lodged by dayal Buses on 15th November 2006, despite a general freeze on applications for amendments. The Appellant was not allowed to lodge an application for amendment for amendment to its services between Nadi and Lautoka and yet Dayal Buses was allowed to make these applications during the period that a freeze was applicable to all applications in Fiji. In giving such preferential treatment, the authority has denied the Appellant natural justice and fairness and therefore the decision is wrong in law and in fact.

(4) That the Authority erred in law in fact in not dismissing the application when it was aware that other operators had applied previously for this service when the application had been refused by the previous Boards. Westbus appealed to the Tribunal where the Tribunal then granted Dayal Buses Limited only one trip to depart Nadi at 5.00pm with a condition attached to it that it was not to use any other supplementary bus and that it was not to set down passengers along Queens Road upto Votualevu round about. This was done expressly by the Tribunal to protect the Nadi/Lautoka operators such as the Appellant. The Authority there has not put any such conditions to the grant of the two services and has not considered at all the prejudicial impact of such a service on the Appellant’s services departing Nadi for Lautoka at the relevant time.

(5) That the Authority erred in law and in fact in fact in granting the two services to Dayal Buses without an analysis of passenger load survey to distinguish whether there is loading going in from Votualevu round about towards Votualevu Post Office. The load checks report dated 14th and 15th May 2008 between the period 3.00pm to 6.30pm do not give any indication of where the passengers are heading. In any event passenger loadings in that three and half hour time period range from 66% to 129% and do not precisely set out the loading in the critical 4.40pm to 5.40pm time slot which is relevant to these applications. The decision therefore is wrong in fact when it does not have relevant supporting data.

(6) That the Authority has erred in law and in fact when it relied on a bad statement by the Regional Manager Western that there have been complaints received from the public that current operators are operating on overload trips when such no complaint letters were made available to the Objectors and to the Appellant. In denying inspection of such complaint letters (if they exist) the Authority has acted in breach of the rules of natural justice.

(7) That the Authority erred in law and in fact in relying on the report of the Regional Manager Western which stated that the proposed service will not affect existing operators when the said statement is not supported by any evidence or load check report. The Appellant is affected by these services and the Authority has failed to take this into consideration and has given reasons for the decisions conveyed to it in the letter dated 14th August 2008 for the decision it has made.

(8) That the Authority has erred in law in fact in not giving any reasons for the decision made in granting the three services to Dayal Buses. In the absence of reasons for the decision of the Authority it ought to be set aside ipso facto. The Authority has erred in law and in fact in granting Dayal Buses a service departing 4.40pm from Nadi for Votualevu Post office when the Appellant has bus departing Nadi at 4.50pm for Lautoka. The Appellant also has another service that departs at 5.00pm from Lautoka.

(9) 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 October 2015. The long delay of this matter is attributed to a number of issues which are well known to the parties. The parties have agreed that this Tribunal peruse the documents filed and the written submissions made before 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. A number of pertinent issues have been raised by the Appellant on appeal. It is over 7 years from the decision of the Respondent in this matter that this Tribunal is dealing with the issues herein. It would have been appropriate that all the issues were dealt with promptly. The Tribunal is mindful that changing a status which has remained in place for over 7 years could be detrimental to the travelling public. It should be borne in mind that the Tribunal is mindful of certain issues which are at the core of justice, such fairness and the principles of natural justice. These cannot be compromised. The Tribunal is grappling with matters which have been delayed in the Tribunal and no fault of this is attributed to the Parties. 

From the documents in the file it is clear that no reasons have been given for the decision the LTA reached. It is settled law that an administrative body needs to give reasons for its decision. The LTA failed in not giving reasons for its decision. 

In this matter the Appellant is a Nadi to Lautoka and vice versa operator. The objection is that 4.30 to 5.30pm is Lautoka General's timeslot. The Tribunal notes that the amendment applied for was from Nadi to Votualevu. Given the fact that the travelling public need a single journey/one bus to reach their destination this Tribunal will not alter the decision made. The Tribunal has also noted that Dayal Buses was the existing operator from Nadi to Votualevu at the time it sought amendments. The amendment to its route it sought from the Respondent would be beneficial to those travelling from Nadi to Votualevu. The concern for the Appellant as noted by the Tribunal is the amendment given for the 4.40pm trip. The Appellant does not wish the 2nd Respondent to depart before its trip. Given the change in demographics over time the Tribunal notes that the trips can coexist given the population increase in the Nadi to Lautoka corridor. The Appellant as a Nadi to Lautoka would not be drastically affected for the amendment granted to Dayal Buses from Nadi to Votualevu as those people travelling from Nadi to Lautoka route and beyond Votualevu have the choice to travel in the appellant's buses. 

While the LTA failed in not giving reasons for its decision, the length of delay in dealing with the appeal, the changes in demographics, the needs of the travelling public seeking one bus journey to its destination balance out matters. The amendment so granted by LTA will not adversely affect the Appellant. 

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
16/12/2015