| Fiji Islands - Noco Development Company Ltd v Tebara Transport Ltd - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CIVIL JURISDICTION
CIVIL APPEAL NO. 61 OF 1992
BETWEEN: NOCO DEVELOPMENT COMPANY LIMITED
a limited liability Company, of Suva, Fiji
Appellant
(Original Second Respondent)
AND:
TEBARA TRANSPORT LIMITED and
WAINIBOKASI TRANSPORT COMPANY
First Respondent
(Original Applicants)
AND:
TRANSPORT CONTROL BOARD
Second Respondent
(Original Respondent)
AND:
K.R. LATCHAN BROTHERS LIMITED
Third Respondent
Mr H. Nagin for the Applicants/1st Respondents
Mr M.K. Narsey for the Respondents (Original Appellants)
DECISION
(Chamber Application)
This is an application by Tebara Transport Ltd and Wainibokasi Transport Company the Original 1st Respondents in this Court to dissolve
an Order made by me on 23 December, 1992
staying an interim injunction granted by Byrne J. on 7 December, 1992. The injunction restrained Noco Development Co Ltd from operating
Road Service Licence No. 12/7/1 until hearing and determination of the Judicial Review. In the course of granting the Stay Order
on the application of Noco Development Co Ltd, the Appellant, I stated inter alia-
"There is now an appeal (No. 61 of 1992) pending against Justice Byrne's interim injunction decision. The Transport control Board
granted the Appellant Company a temporary Licence under Section 74 of the Traffic Act for three months to operate a bus service between
Noco in the Rewa Delta area and Suva. There were other competing applicants including the 1st Respondents. I am now informed that
the Transport Control Board intends to deal with all the applications in January or February 1993 to make a final decision. The Applicant's
current temporary licence expires in any case on 4 February 1993. If a stay is not granted the Transport Control Board will not be
able to hear the competing applications as proposed."
The position taken by the Transport Control Board before Mr Justice Byrne was that the licence was a temporary one granted under
Section 74 of the Traffic Act. (See paragraphs 3, 4, 5 and 6 of the affidavit of the Transport Control Board's Secretary, Vika Neitoni
Rococanavanua, sworn on 24 May, 1993 and filed in the Judicial Review proceedings before Justice Byrne).
In spite of this stand taken by the Transport Control Board Justice Byrne was constrained to observe as follows:
"In my judgment the Board on the 4th of November, 1992 appears to have ignored this basic principle of our law and given preference
without sufficient cause to one Applicant for R.S.L. 12/7/1 to the detriment of the others. I am reminded of the clear words of the Court of Appeal in K.R. Latchans Limited and Vatukoula Express Service (supra) and have formed the clear opinion that it was wrong for the Respondent to have considered Noco's application for a licence
in isolation. I consider that in so doing it acted irregularly and appears to have taken into account irrelevant matters."
The initial stand taken by the Transport Control Board before me too was that the licence was a temporary one granted under Section
74 of the Traffic Act.
However, at a meeting of the Transport Control Board held on 24 February, 1993 it was made clear by the Board that the decision made
by it granting licence to Noco Development Company Ltd was made under Section 65 and not under S.74 of the Traffic Act. By his affidavit
sworn on 24 May, 1993 and filed in the High Court, the Secretary of the Transport Control Board now confirms that the information
given to the Court was erroneous and that Noco Development Co Ltd has been granted a licence under Section 65 of the Traffic Act.
This means that purportedly a permanent or substantive licence has been issued to the Appellant Company. Quite clearly this Court
was misled. It made the Stay Order under wrong premises arising from the misrepresentation made on behalf of the Transport Control
Board although it is not suggested that this Court was deliberately misled.
Counsel for the Appellant opposes this application on the ground that it would be against the interests of the travelling public
in the area concerned to dissolve the Stay and revive the interim injunction. He argues no harm will be done if the Appellant is
allowed to carry on with its service until a substantive decision is reached by the High Court.
On the other hand the Applicants argue that not only a principle of law but a question of fair administration of justice is also
involved.
Both parties however agree that an expedited hearing of the Judicial Review is called for.
I agree with Mr Nagin that it will be wrong in principle to allow the Appellant to carry on operating under R.S.L. 12/7/1. On the
other hand public interest element possibly demands that the service ought not be brought to a sudden halt.
There is no doubt in my mind that I was misled into granting the Stay. Now that the true position has been revealed, there is indeed
a change of circumstances entitling the Applicants to ask this Court to review the situation.
Having considered the affidavits filed and the submissions presented I have no hesitation in coming to the conclusion that the Stay
Order made by me should be dissolved and I order that it be dissolved with effect from 30 September, 1993. This means that Justice
Byrne's interim injunction becomes operational from 1 October, 1993. I also order that there be an expedited hearing of Judicial
Review No. 15 of 1992. The Applicants are to have the costs of this application, 50% of which are to be paid by the Appellant and
50% by the Transport Control Board.
In the meantime the Transport Control Board may deem it necessary to enquire whether public interest calls for the granting of a
temporary licence with effect from 1/10/93 and if so whether it has in the particular circumstances of this case power to grant a
separate and new temporary licence to any bus company or operator as an interim measure on conditions fair to all parties concerned.
Sir Moti Tikaram
Resident Justice of Appeal
Suva
Friday, 17 September, 1993.
Abu0061d.92s
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