| Fiji Islands - Shore Buses Ltd v Transport Control Board - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. 41 OF 1992
(High Court J/R 10/92)
BETWEEN:
SHORE BUSES LIMITED
TACIRUA TRANSPORT COMPANY LIMITED
PACIFIC TRANSPORT LIMITED
ISLAND BUSES LIMITED
YATU LAU COMPANY LIMITED
Appellants
AND:
TRANSPORT CONTROL BOARD
Respondent
Mr Hemendra Nagin for the Appellants/Ants/Applicants
Mr A. Cope for the Respondent
DECISION
(Chamber Application)
This is an application seeking an Order to stay "all further proceedings in the said action" and also an Order that "the
decision dated 25th day of June, 1992 of the Transport Control Board whereby it purports to reduce the bus fares by 3.4% be stayed
until the hearing and determination of the appeal."
On the 1st of July, 1992 the Value Added Tax Decree came into effect. On the 18th of June, 1992 the Counter-Inflation (Services)
(Control) Order 1992 was gazetted by the Prices and Incomes Board.
On the 25th of June, 1992 the Chairman of the Transport Control Board greeted the operators present at a special meeting of the Board
and informed them that the Board met the Value Added Tax officials the day before and were asked to pass on the message to the bus
operators at this meeting that according to the calculations made by Economic Analysis Unit, the Bus Operators would be getting a
benefit of 3.4% and the bus fare would therefore be reduced by 3.4%. The Transport Control Board made a decision accordingly.
It is the contention of the Appellants that the decision to reduce the fare by 3.4% was made without hearing the operators and without
giving them an opportunity.
The Bus Operators then immediately filed the Application for Judicial Review on the 30th of June, 1992. On the 3rd July, 1992, Mr
Justice Scott granted a stay of the decision of the Transport Control Board reducing the bus fares of 3.4% until the hearing and
determination of the Judicial Review.
The case for Judicial Review was heard by Mr Justice M Scott on the 19th, 20th and 21st days of August, 1992. On the 8th September,
1992 he refused the application for Judicial Review and also discharged the interlocutory stay which was granted.
The Appellants then filed a Notice of Appeal in the Fiji Court of Appeal on the 14th September, 1992. The Appellants also filed their
application for stay in the High Court. On the 9th October, 1992 Mr Justice Byrne granted the stay until the 13th of October, 1992
and adjourned the stay application for 13th October, 1992 for hearing. On the 13th October, 1992 Mr Justice Byrne adjourned the stay
application to be heard by Mr Justice Scott on the 20th of October, 1992 and granted stay until the hearing and determination of
the stay application by Mr Justice Scott.
On the 20th October, 1992 Mr Justice Scott heard the application for stay and in a decision given on the 23rd October, 1992, he refused
the Appellants' application for stay.
The Appellants therefore have now come to this Court by virtue of its concurrent jurisdiction for an order for stay pending the hearing
and determination of the appeal.
My understanding of the matter is that reduced fares have been effective since Judge Scott's decision on 23 October, 1992 refusing
stay. So I agree with the Counsel for the Respondent that what the Appellants are really seeking is a mandatory injunction against
the Board requiring it to return the condition of the Appellants' road service licences to their pre 1st July, 1992 state. There
is no such application before me and in any case I cannot grant such an application under Rules 25(1)(a) and 34(1)(a) of the Court
of Appeal Rules.
Be that as it may my view is that even on merits this application cannot succeed. I accept Mr Cope's submissions that the Board is
a public authority performing its duties to the public. As such I feel Courts should not lightly impede the functioning of such a
body endeavouring to give effect to legislation particularly when the interests of a large section If the Board has misinterpreted the legislation or has acted out of jurisdiction then nbt the Court of Appeal will will pronounce
its judgment accordingly and the Appellants will then be at liberty to seek appropriate remedies.
I am unable to accept the Appellants' argument that should they succeed in the Court of Appeal they will have suffered irreparable
damages and their appeal would be rendered nugatory because a stay has not been granted in the meantime pending appeal. Any loss
would be quantifiable and it would be open to the Appellants to take appropriate action for damages.
Until such time as the Counter-Inflation (Services) (Control) Order 1992 is in fact held to be invalid (as claimed in the Notice
of Appeal) the Order must be given due cognisance. To compel the Board in the meantime to increase the fares to its pre July 1992
level would be to condone illegality and this would be against public policy.
I am not persuaded that a case for a stay order pending appeal has been made out. Consequently this application is refused. Costs
to be in the cause.
Sir Moti Tikaram
Resident Justice of Appeal
Suva
16th July, 1993.
ABU0041D.92S
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