In The Land Transport Appeals Tribunal
At Lautoka

Appeal # 9 of 2015

Between:

Paradise Transport Limited.
[Applicant]

And:

Land Transport Authority
[1st Respondent]

Kadar Buksh Limited
[2nd Respondent]

And:

Sunbeam Transport Limited
Valley Comfort Transport Limited
Khan Buses Ltd
Taunovo Bus Company Limited
Pacific Transport Limited
Sunset Express Limited
Interested Parties

Appearances/Representations:
For Appellant: Mr Vasu Pillay.
For LTA (1st Respondent): Ms Franisese Kinivuwai.
For Kadar Buksh Limited (2nd Respondent): Mr Nemani Vakacakau.
For Sunbeam Transport Limited: Mr Viren Kapadia.
Valley Comfort Transport Limited: No appearance
Khan Buses Ltd: Mr Naveed Khan.
Taunovo Bus Company Limited: Mr Filimoni Vosarogo
Pacific Transport Ltd: Mr Ramesh Prakash
Sunset Express Ltd: Mr Filimoni Vosarogo

Date of Hearing: 27th February 2015
Date of Decision: 20th March 2015

Ruling – Stay Application

Introduction

The Applicant in this matter had filed a Petition for Appeal, a Notice of Motion – Ex-parte, if necessary [to restrain the 2nd Respondent, Kadar Buksh Limited (KBL) until the determination of the appeal] together with an affidavit of Sultan Ali. These documents were filed with the Tribunal on 9th January 2015. The Tribunal directed that all parties be served and the matter be heard Inter-parte.

All the Parties have been properly served the notice of motion. None of the parties have filed any reply to the motion filed by the Applicant. This Tribunal notes that the Motion gave adequate notification to each party of the hearing date of the said matter. 

This is the ruling following the hearing of the notice of motion seeking a stay of the decision of the Land Transport Authority to restrain the 2nd Respondent from operating an express bus service departing Suva and Lautoka at 5.30 am and 6.30pm respectively. 

Brief History of the matter

The LTA through a letter dated 12th December 2014 dealing with an application by Kadar Buksh Limited (KBL) dated 2nd February 2011 approved subject to variation trips from Lautoka and Suva at 5.30 am and 6.30pm respectively. The application by KBL was for trips from Lautoka and Suva at 6.00am and 6.30pm respectively. 

According to the ‘decision letter’ the Land Transport Authority had deliberated on the oral and written submission by parties on 27th November 2014. 

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.”

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.”

The Law on  Stay 

In Estate Management Services Ltd .v. Pagenstecher [2012] FJHC 1175, the Court stated that "the principles governing the grant or refusal of a stay application pending appeal are well settled. The principles' governing a stay has been stated thus in Halsbury's Laws of England (4th Ed. Vol. 37 para 696):

"Two principles have to be balanced against each other as to whether a stay of execution pending  the appeal  should be granted: first that a successful litigant should not be deprived of the fruits of this litigation, and secondly, that an appellant should not be deprived of the fruits of a successful appeal ."

The Court considering a stay should take into account the following questions. They were the principles set out by the Court of Appeal and approved subsequently and applied frequently in this Court. They were summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal  ABU0011.04S 18th March 2005. They are:

"(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 proceedings.

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

The Hearing

The hearing proceeded with the Parties advising the Tribunal that they will be making oral submissions. LTA informed the Tribunal that it will call 2 witnesses at the hearing. It was agreed between the Applicant and the Respondent that service was effected on the Applicant. The Counsel for LTA conceded at the hearing that they could not provide letters or evidence at the hearing confirming that the parties were advised of the decision. None of the witnesses were called by LTA at the hearing. 

The Submissions

The submissions for the parties at the hearing was as follows:

Mr. Vasu Pillay [Counsel for the Applicant/Appellant] – Skeletal submissions are before the Tribunal. Seek stay of the decision of the Board. Affidavit of Secretary of Paradise Transport Limited has been filed in support. Rely on decision of Sir Vijay in Sunbeam and Pacific Transport. Current state of Paradise's licence is not clear. Since 2004 LTA has objected to Paradises Licence. LTA saw merit in KBL's licence and granted licence to KBL. No load surveys in 2011, 2012 or 2013. Any change in circumstances. Not addressed in Board papers. Grounds of appeal deals with service, unilateral change of timetable. It goes beyond procedure. Actual ruling not delivered to us. Decision should itself be looked at. KBL is not a long haul operator. LTA unilaterally changed the timetable. 

LTA does not have power to change timetable without service on interested parties. Reg 5 (5) of PSV Regulations. No public interest comments. LTA went beyond its authority to give its decision. Illegal decision. KBL is using the illegal decision to run the route. No public interest in consideration. Procedural error. Also substantive illegality in decision itself. Time table is integral part of decision. Decision is wrong at law.

Mr. Nemani Vakacakau [Counsel for the 2nd Respondent – KBL] – simple issue for Tribunal to deal with. Application by a Bus Company that does not have a RRL. Not entitled to file appeal. Not be prejudged by this. No RRL. Rely on American Cynamide case. 2nd and 3rd grounds on issue of amended timetable. LTA has power to amend and vary existing licence. Foundation of 3 grounds of appeal collapse. LTA has not followed procedures. Reg 5(5) gives LTA powers to do that. They have enforced the powers. They see the need. Main issue is public interest. Whether a triable issue? None. Applicant has no interest on the road. What harm. None to them. Tribunal must be concerned about the party which has the fruits of its labour. Whole application is vexatious. Court should not entertain this application. 

Mr Ramesh Prakash [Counsel for Pacific Transport Limited – Interested Party] – Support the stay application. Endorse application by the Applicant. Not filed any affidavit. Bad decision in law. Pacific Transport has filed its appeal with the Tribunal. Misconceived submission that only public interest is paramount. All factors in Reg 5 have to be considered. Which is 1st and which is last is not in Regulations. Have to balance those interest. Interest of other operators in there. Have to consider other operators and other persons. Reason is to give notice to public and other existing operators. LTA can vary within confines. They donot have discretion to change timetable. Reasoning is clear. Substantial restriction even of 15 minutes is extensive. Without any notice to anybody. Fundamental flaw in this decision. Decision is bad. Timetable later or not at all. No timetable as yet. 

Mr. Viren Kapadia [Counsel for Sunbeam Transport Limited – Interested Party] – Sunbeam has locus. 2 other appeals by Sunbeam other than this. Tribunal has affidavit of Sultan Ali. Got this only and 2 annexures. Tribunal needs to consider ration in Pacific Transport matter (Para 66). In this appeal the issue of non-service of hearing notice. Service of documents. Were they actually served. Crux of issue whether all documents were served on objectors. Decision letter was not issued. They had to ask for it.

Cynamide case is what Applicants say. Had a route. Got quashed by High Court. For re-hearing before the Tribunal. Got struck out. Is for re-instatement based on the facts. They have locus as an objector. Focus on strength of appeal. This grant to KBL is in breach of encroachment principles. Can see report page on comments. A strong merit to appeal. Decision in breach of PSV guidelines. 

Unilateral change in time. Letter does not give reason for change of timing. Privy Council decision in Latchan case. Must give reasons for decision. No letter has reasons for decisions. Total absence of reasons for decision. PSV report shows objectors claim encroachment. Decision of 12th December 2014, Board changed time unilaterally. No timetable. Express or stage. Where it stops. Nonsensical. Where it should stop. KBL had applied for a particular timetable. Strength of appeal there for it to see. Looking at the law here. 

Reg 5(5) spirit and letter of the law. Need to follow the law. Natural justice. Letter refers to Reg 5 (1) (b). they have to explain who is being affected. Other public operators. LTA needed to explain its decision. Why timetable has not been issued. Letter is defective. Appeal has merit. Stay pending appeal has to be granted. Only 2 months down the line as compared to Zakreen. An appropriate time to consider. Not too long. 

Mr Filimoni Vosarogo [Counsel for Taunovo Bus Co Limited and Sunset Express Limited] – Wish to point out submissions made by the Applicant. Also reiterate the submissions made by Mr Kapadia. Para 66 of Pacific Transport Decision in context. Whatever you have before you is what Tribunal has. Not from the bar table. In support of the Applicant. Support stay. No RRL in law. If we refer to the Regulations. Proposed time table and fare structure – Reg 3 (8) (a) to (e). PSV public review process- Reg 5- 7. Regs 6 and 7. A decision alone is not permit in law. Seek to comply with Reg 6. Must – nothing less will suffice. See comments in report. No recommendation in the management report. Nothing in decision which links to report. Do not refer how they came to the decision. Reg 7 – condition and restrictions – complete permit contains. Reg 7 (1) (a) to (d). Not an RRL in law if it does not contain those. No RRL should be staged. 

No evidence of minutes of decision. No reference for need for service. Not a decision in law. No condition. Not a permit. Not a RRl in law. Deficiency are magnitude. Not small. Whether RRL in law or permit in law. Stay should be granted. 

Ms Franisese Kinivuwai [Counsel for 1st Respondent – LTA] – Appeals relied upon are 223/224. Appeal was struck out. Appeals before Tribunal do not act as stay. Transport industry is not static. Since 2004 no stay on the time of 5.30am. 2nd and 3rd ground was given an opportunity to voice his opposition. Did not grasp opportunity. We had advised applicant of hearing and to make submissions. 

No serious question to be tried. Not shown to Tribunal how they will be harmed by this application. No irreparable harm. KBL has begun servicing the route. They will be affected. Reg 5 – have powers to vary the decision making process to vary the service. No set case law on Reg 5. 

Mr Naveed Khan for Khan Buses did not want to state anything at the hearing. 

Analysis

This Court has noted the submissions made for each party. Before venturing on to deal with the stay application this Tribunal would briefly like to touch on the issue of locus standi of the Applicant as raised in the submissions by the Counsel for the 2nd Respondent. From the materials before it this Tribunal finds that the Applicant was an objector in relation to the application by KBL. The Applicant has standing as an objector and this alone gives the Applicant standing to institute an appeal or seek a stay before this Tribunal. This Tribunal from the material before it finds that the Applicant has locus in this matter. 

This Court has noted the principles set out by the Court of Appeal and approved subsequently and applied frequently by the Court's and these have been summarized in Natural Waters of Viti Ltd v Crystal Clear Mineral Waters (Fiji) Ltd Civil Appeal ABU0011.04S 18th March 2005 and are as follows:

(a)	Whether, if no stay  is granted, the applicant's right of appeal will be rendered nugatory (this is not determinative). –

(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 and (f).The public interest in the proceedings.

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

The above listed factors are not exhaustive and the consideration of 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' is not lost sight of by this Tribunal.

The overall balance of convenience and the status quo would be in favour of the Applicant and the Interested Parties in granting an Interim stay. 

While the Tribunal mindful of the public interest in this proceeding in granting Interim stay the Tribunal notes the short period time of operation of the route by the 2nd Respondent. The impact of the suspension of the route for a short time will not have drastic impact. The Fijian travelling public are resilient and various transportations are available to them. In any event until the decision was made by LTA the public had been relying on other transport. The substantive issues of timetabling, encroachment, decision conveying process and others are so important in this proceeding that needs to be properly addressed. 

A number of novel issues were raised by learned counsel's for the Applicant and the Interest Parties which need to be dealt with at the appeal stage and this Tribunal does not intend to deal with those in this application and novelty also favours granting the Interim stay. The manner in which LTA dealt with the application is novel and needs consideration.

The effect on third parties in this case is the effect on the other bus operators apart from the Applicant. A number of Interested Parties have supported the Applicant and are seeking stay. Submission was also made that unilateral changing of the time of the trips in the application and the granting of a different time by the LTA affected certain bus operators who initially had not been affected or were not parties. These operators were never heard as they were not notified of the change in the time and the granting of the route for a different time from that was applied for. 

The bona fides of the Applicant and the Interested Parties are not seriously challenged as there are arguable grounds for appeal. Given the short time period the trips have been operation for and given the fact that this Tribunal will swiftly move with the appeal no Party should lose out or suffer any loss if Interim stay is granted. The 2nd Respondent did not file any affidavit to show any impact the grant of stay will have on them. Despite that this Tribunal has considered that the 2nd Respondents being current operators in other routes will not be affected by the suspension of the new route granted to them by LTA in the short term. 

Having considered all the above factors and the circumstances of this case the Tribunal is inclined to grant an interim stay. The Tribunal would also direct that the timelines for the matter be agreed upon and the appeal dealt with timely and effectively.  

For the foregoing reasons the Court orders as follows:

(a)	Interim Stay is granted of the decision of the Land Transport Authority made on the 12th December 2014 whereby it granted to Kadar Buksh Limited Road Route Permit (Road Route Licence) to operate express bus service departing Suva and Lautoka via Queens Road at 5.30am and 6.30pm respectively until the hearing and determination of the appeal.

(b)	No order as to costs.

Dated at Lautoka this 20th day of March 2015.

Chaitanya Lakshman
Land Transport Authority Tribunal